●
Earnings Feed
Filings
Companies
Insiders
Pricing
Blog
⌘
K
Login
Start Free
MSD Investment Corp.
·
10-K
Mar 25, 6:58 PM ET
Share
Compare
MSD Investment Corp. 10-K
Loading document...
Share
More
Contents
146
ARTICLE IDefinitions
Section 1.01 Defined Terms. Terms used but not defined herein have the respective meanings given to such terms in the Loan Agreement.
ARTICLE IIAmendments
Section 2.01 Amendments to the Loan Agreement. The Loan Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double underlined text) as set forth on the pages of the Loan Agreement attached as Exhibit A hereto.
ARTICLE IIIConditions to Effectiveness
Section 3.01 This Amendment shall become effective as of the date first written above upon the satisfaction of the following conditions:
ARTICLE IVRepresentations and Warranties
Section 4.01 The Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, as of the date first written above, (i) no Event of Default, Unmatured Event of Default, Collateral Manager Default or Unmatured Collateral Manager Default has occurred and is continuing and (ii) the representations and warranties of the Borrower contained in the Loan Agreement are true and correct in all material respects on and as of such day (other than any representation and warranty that is made as of a specific date).
ARTICLE VMiscellaneous
Section 5.01 Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section 5.02 Severability Clause. In case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 5.03 Ratification. Except as expressly amended and waived hereby, the Loan Agreement is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.
Section 5.04 Counterparts; Electronic Execution. The parties hereto may sign one or more copies of this Amendment in counterparts, all of which together shall constitute one and the same agreement. Delivery of an executed signature page of this Amendment by email transmission shall be effective as delivery of a manually executed counterpart hereof. The parties agree that this Amendment may be executed and delivered by electronic signatures and that the electronic signatures appearing on this Amendment are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.
Section 5.05 Headings. The headings of the Articles and Sections in this Amendment are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
ARTICLE IDEFINITIONS
Section 1.01 Certain Defined Terms.
Section 1.02 Other Terms. All accounting terms used but not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and used but not specifically defined herein, are used herein as defined in such Article 9.
Section 1.03 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.” All time deadlines shall be based on the Eastern Standard Time zone unless stated otherwise.
Section 1.04 Interpretation. In each Transaction Document, unless a contrary intention appears:
Section 1.05 Currency Conversion. For purposes of (i) complying with any requirement of this Agreement stated in Dollars and (ii) calculating any ratio or other test set forth in this Agreement, the amount of any Collateral Obligation denominated in an Eligible Currency other than Dollars shall be deemed to be the Dollar Equivalent of such amount of such Eligible Currency.
ARTICLE IITHE FACILITY
Section 2.01 Advances.
Section 2.02 Procedure for Advances and Conversion of Advances.
Section 2.03 Determination of Yield and Undrawn Fee. Yield accrued on each Advance (including any previously accrued and unpaid Yield) and the Undrawn Fee (as applicable) shall be payable, without duplication: (i) on the Termination Date; (ii) on the date of any payment or prepayment, in whole or in part, of principal outstanding on such Advance; and (iii) on each Payment Date.
Section 2.04 Remittance Procedures. The Collateral Manager shall instruct the Account Bank (which instruction shall be deemed given upon receipt by the Collateral Agent (with a copy to the Account Bank) of the information required to be delivered by the Collateral Manager pursuant to Section 6.08(b) in connection with each Monthly Report) and, if the Collateral Manager fails to do so, the Collateral Agent (as directed by the Administrative Agent) may instruct the Account Bank, to apply funds on deposit in the Controlled Accounts as described in this Section 2.04; provided that, at any time after delivery of a Notice of Exclusive Control, the Collateral Agent (as directed by the Administrative Agent) shall instruct (and the Collateral Manager shall be restricted from instructing) the Account Bank with respect to the application of funds on deposit in the Controlled Accounts as described in this Section 2.04; provided further that, the Collateral Manager shall instruct the Account Bank on or prior to the Determination Date immediately preceding each Payment Date, to convert amounts on deposit in the Canadian Dollar Account, the Euro Account and the GBP Account, as applicable, into Dollars to the extent necessary to make payments pursuant to this Section 2.04.
Section 2.05 Instructions to the Collateral Agent and the Account Bank. All instructions and directions given to the Collateral Agent or the Account Bank by the Collateral Manager, the Borrower or the Administrative Agent pursuant to Section 2.04 shall be in writing (including instructions and directions transmitted to the Collateral Agent or the Account Bank by telecopy or e‑mail), and such written instructions and directions shall be delivered with a written certification that such instructions and directions are in compliance with the provisions of Section 2.04. Subject to the remainder of this Section 2.05, the Collateral Agent may conclusively rely on such instructions and directions. The Collateral Manager and the Borrower shall promptly (and in any event within three (3) Business Days) transmit to the Administrative Agent by telecopy or e‑mail a copy of all instructions and directions given to the Collateral Agent or the Account Bank by such party pursuant to Section 2.04. The Administrative Agent shall promptly (and in any event within three (3) Business Days) transmit to the Collateral Manager and the Borrower by telecopy or e‑mail a copy of all instructions and directions given to the Collateral Agent or the Account Bank by the Administrative Agent pursuant to Section 2.04. If either the Administrative Agent or the Collateral Agent disagrees with the computation of any amounts to be paid or deposited by the Borrower or the Collateral Manager under Section 2.04 or otherwise pursuant to this Agreement, or upon their respective instructions, it shall so notify the Borrower, the Collateral Manager and the Collateral Agent in writing and in reasonable detail to identify the specific disagreement. If such disagreement cannot be resolved within two (2) Business Days, the determination of the Administrative Agent as to such amounts shall be conclusive and binding on the parties hereto absent manifest error. In the event the Collateral Agent or the Account Bank receives instructions from the Collateral Manager or the Borrower which conflict with any instructions received by the Administrative Agent, the Collateral Agent or the Account Bank, as applicable, shall rely on and follow the instructions given by the Administrative Agent; provided that the Collateral Agent or the Account Bank, as applicable, shall promptly provide notification to the Collateral Manager or the Borrower of such conflicting instructions; provided further that any such failure on the part of the Collateral Agent to deliver such notice shall not render such action by the Collateral Agent invalid.
Section 2.06 Borrowing Base Deficiency and Minimum Equity Test Payments.
Section 2.07 Discretionary Sales; Other Asset Sales; Substitutions.
Section 2.08 Payments and Computations, Etc.
Section 2.09 Undrawn Fee; Make-Whole Fee; Optional Prepayment Penalty.
Section 2.10 Increased Costs; Capital Adequacy.
Section 2.11 Taxes.
Section 2.12 Collateral Assignment of Agreements. The Borrower hereby collaterally assigns to the Collateral Agent, for the benefit of the Secured Parties, all of the Borrower’s right and title to and interest in, to and under (but not any obligations under) the Underlying Instruments related to each of the Collateral Obligations, all other agreements, documents and instruments evidencing, securing or guarantying any Collateral Obligation and all other agreements, documents and instruments related to any of the foregoing but excluding any Excluded Amounts or Retained Interest (the “Assigned Documents”). The parties hereto agree that such collateral assignment to the Collateral Agent, for the benefit of the Secured Parties, shall terminate upon the Collection Date.
Section 2.13 Grant of a Security Interest. To secure the prompt, complete and indefeasible payment in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations (including amounts owing with respect to Advances Outstanding, Yield, any Undrawn Fee, Optional Prepayment Penalty, Make-Whole Fee and any other amounts at any time owing hereunder) and the performance by the Borrower hereunder of all of the covenants and obligations to be performed by it pursuant to this Agreement and each other Transaction Document, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent, the Borrower hereby (as applicable) (i) collaterally assigns, assigns by way of security and pledges to the Collateral Agent, on behalf of the Secured Parties, and (ii) grants to the Collateral Agent, on behalf of the Secured Parties, a security interest in, all of the Borrower’s right, title and interest in, to and under (but none of the obligations under) all of the Collateral Portfolio, whether now existing or hereafter arising or acquired by the Borrower, and wherever the same may be located.
Section 2.14 Evidence of Debt. The Administrative Agent shall maintain, solely for this purpose as the agent of the Borrower, at its address referred to in Section 11.02 a copy of each assignment and acceptance agreement and participation agreement delivered to and accepted by it and a register for the recordation of the names and addresses and interests of the Lenders (the “Register”). The entries in the Register shall be conclusive and binding for all purposes (including principal amounts and stated interest on Advances), absent manifest error, and the Borrower, the Administrative Agent and each Lender shall treat each person whose name is recorded in the Register as a Lender under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. No Advance hereunder shall be assigned or sold, in whole or in part without recording such assignment or sale on the Register.
Section 2.15 Survival of Representations and Warranties. It is understood and agreed that the rights and remedies of the Secured Parties with respect to any breach of any of the representations and warranties set forth in Sections 4.01, 4.02 and 4.03 made on each Cut‑Off Date, Advance Date, Reporting Date and any date on which Collateral Obligations are Pledged hereunder shall survive the pledge to the Collateral Agent hereunder and the termination of this Agreement.
Section 2.16 Release of Collateral Obligations.
Section 2.17 Treatment of Amounts Received by the Borrower. Amounts received by the Borrower pursuant to Section 2.07 on account of Collateral Obligations shall be treated as payments of Principal Collections or Interest Collections, as applicable, on Collateral Obligations hereunder.
Section 2.18 Repayments and Prepayments; Permanent Reduction of the Facility Amount; Termination.
Section 2.19 Collections and Allocations.
Section 2.20 Reinvestment of Principal Collections. On the terms and conditions hereinafter set forth as certified in writing to the Collateral Agent and Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof), the Borrower or the Collateral Manager (on behalf of the Borrower) may, to the extent of any Principal Collections on deposit in the Principal Collection Account:
Section 2.21 Increase of Commitments; Facility Amount.
Section 2.22 Defaulting Lenders.
Section 2.23 Mitigation Obligations. If any Lender requests compensation under Section 2.10, or requires the Borrower to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.11, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Advances hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.10 or 2.11, as applicable, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
Section 2.24 Replacement of Lenders. If any Lender requests compensation under Section 2.10, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.11, or if any Lender is a Defaulting Lender hereunder, or if any Lender does not consent to any amendment or modification (including in the form of a consent or waiver) pursuant to Section 11.01 and such Lender’s consent is required for such amendment or modification (so long as at the time of such replacement, each such replacement Lender consents to such amendment or modification), then the Borrower may, within 90 days of such Lender’s request for compensation, such Lender’s becoming a Defaulting Lender or such Lender’s withholding of such consent required pursuant to Section 11.01, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender (other than the Designated Lender as to which the terms of this Section 2.24 which relate to such Lender not consenting to any amendment or modification shall not apply) to (x) assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 11.04), all of its interests, rights and obligations under this Agreement and the Transaction Documents to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment) or (y) terminate all of its interests, rights and obligations under this Agreement and the Transaction Documents and reduce the aggregate Commitments outstanding; provided that:
Section 2.25 Benchmark Replacement Setting.
Section 2.26 Fees of Counsel. The Borrower shall pay to Orrick, Herrington & Sutcliffe LLP as counsel to the Administrative Agent and the Lenders, within two (2) Business Days following an invoice therefor, its reasonable and documented invoiced fees and out of pocket expenses through the Closing Date.
ARTICLE IIICONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Effectiveness.
Section 3.02 Conditions Precedent to All Advances. Each Advance (including the Initial Advance, except as explicitly set forth below) to the Borrower from the Lenders shall be subject to the further conditions precedent that:
Section 3.03 Conditions to Pledges of Collateral Obligations. Each Pledge of an additional Eligible Collateral Obligation pursuant to Section 2.06, an additional Eligible Collateral Obligation pursuant to Section 2.20 or any other Pledge of a Collateral Obligation hereunder shall be subject to the further conditions precedent that (as certified to the Collateral Agent by the Borrower):
ARTICLE IVREPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower. The Borrower hereby represents and warrants, as to itself, as of the Closing Date, as of each applicable Cut‑Off Date (solely with respect to the relevant Collateral Obligations being pledged as of such Cut‑Off Date), as of each applicable Advance Date, as of each Reporting Date and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made (unless a specific date is specified below):
Section 4.02 Representations and Warranties of the Borrower Relating to the Agreement and the Collateral Portfolio. The Borrower hereby represents and warrants, as of the Closing Date, as of each applicable Cut‑Off Date (solely with respect to the relevant Collateral Obligations being pledged as of such Cut‑Off Date), as of each applicable Advance Date, as of each Reporting Date and any date which Collateral Obligations are Pledged hereunder and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required or deemed to be made (unless a specific date is specified below):
Section 4.03 Representations and Warranties of the Collateral Manager. The Collateral Manager hereby represents and warrants, as of the Closing Date, as of each applicable Cut‑Off Date (solely with respect to the relevant Collateral Obligations being pledged as of such Cut‑Off Date), as of each applicable Advance Date, as of each Reporting Date and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made (unless a specific date is specified below):
Section 4.04 Representations and Warranties of the Collateral Agent. The Collateral Agent in its individual capacity and as Collateral Agent represents and warrants as follows:
Section 4.05 Representations and Warranties of each Lender. Each Lender hereby individually represents and warrants, as to itself, that it is a “qualified purchaser” under the 1940 Act.
Section 4.06 Representations and Warranties of the Collateral Custodian. The Collateral Custodian in its individual capacity and as Collateral Custodian represents and warrants as follows:
ARTICLE VGENERAL COVENANTS
Section 5.01 Affirmative Covenants of the Borrower. From the Closing Date until the Collection Date (with any reference to the term “it” meaning the Borrower):
Section 5.02 Negative Covenants of the Borrower. From the Closing Date until the Collection Date (with any reference to the term “it” meaning the Borrower):
Section 5.03 Affirmative Covenants of the Collateral Manager. From the Closing Date until the Collection Date:
Section 5.04 Negative Covenants of the Collateral Manager. From the Closing Date until the Collection Date:
Section 5.05 Affirmative Covenants of the Collateral Agent. From the Closing Date until the Collection Date:
Section 5.06 Negative Covenants of the Collateral Agent. From the Closing Date until the Collection Date, the Collateral Agent will not make any changes to the Collateral Agent Fees without the prior written approval of the Administrative Agent and the Borrower.
Section 5.07 Affirmative Covenants of the Collateral Custodian. From the Closing Date until the Collection Date:
Section 5.08 Negative Covenants of the Collateral Custodian. From the Closing Date until the Collection Date:
ARTICLE VIADMINISTRATION AND MANAGEMENT OF CONTRACTS
Section 6.01 Appointment and Designation of the Collateral Manager.
Section 6.02 Duties of the Collateral Manager.
Section 6.03 Authorization of the Collateral Manager.
Section 6.04 Collection of Payments; Accounts.
Section 6.05 Realization Upon Collateral Obligations. The Collateral Manager will use reasonable efforts consistent with the Collateral Management Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a Defaulted Obligation as to which no satisfactory arrangements can be made for collection of delinquent payments. In addition, the Collateral Manager may, consistent with the Collateral Management Standard, sell or otherwise transfer, or if it deems advisable to maximize recoveries, hold any Defaulted Obligation, equity or other securities received by the Borrower in connection with a default, workout, restructuring or plan of reorganization or similar event under a Collateral Obligation. The Collateral Manager will comply with the Collateral Management Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including reasonable efforts consistent with the Collateral Management Standard to enforce all obligations of Obligors foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence. Without limiting the generality of the foregoing, unless the Administrative Agent has specifically given instruction to the contrary, the Collateral Manager may cause the sale of any such Underlying Collateral to the Collateral Manager or its Affiliates for a purchase price equal to the then fair value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Collateral Manager delivered to the Administrative Agent setting forth the Collateral Obligation, the Underlying Collateral, the sale price of the Underlying Collateral and certifying that such sale price is the fair value of such Underlying Collateral. In any case in which any such Underlying Collateral has suffered damage, the Collateral Manager will not expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral unless it reasonably determines at the time of such expenditure that such repair and/or foreclosure or repossession will increase the recoveries by an amount greater than the amount of such expenses. The Collateral Manager will remit to the
Collection Account the recoveries received in connection with the sale or disposition of Underlying Collateral relating to a Defaulted Obligation.
Section 6.06 Collateral Manager Compensation. As compensation for its activities hereunder and reimbursement for its expenses, the Collateral Manager shall be entitled to the Collateral Management Fee and reimbursement of its reasonable and documented out‑of‑pocket expenses as provided in Section 2.04.
Section 6.07 Payment of Certain Expenses by Collateral Manager. The Collateral Manager will be required to pay all expenses incurred by it in connection with its activities under this Agreement, including fees and disbursements of its Independent Accountants, Taxes imposed on the Collateral Manager, expenses incurred by the Collateral Manager in connection with payments and reports pursuant to this Agreement, and all other fees and expenses not expressly stated under this Agreement for the account of the Borrower. The Collateral Manager, on behalf of the Borrower, will be required to pay all reasonable fees and expenses owing to any bank or trust company in connection with this Agreement or the maintenance of the Controlled Accounts. The Collateral Manager may be reimbursed for any reasonable out‑of‑pocket expenses incurred hereunder (including out‑of‑pocket expenses paid by the Collateral Manager on behalf of the Borrower), subject to the availability of funds pursuant to Section 2.04; provided that, to the extent funds are not so available on any Payment Date to reimburse such expenses incurred during the immediately ended Remittance Period, such reimbursement amount shall be deferred and payable on the next Payment Date on which funds are available therefor pursuant to Section 2.04 and such deferred reimbursement amount shall bear interest beginning on the Payment Date immediately following the Remittance Period in which such expenses were incurred until paid at an annual rate equal to the Yield Rate. For the avoidance of doubt, the Collateral Manager shall remain liable for, and shall pay in accordance with the terms hereof, all expenses payable by it as set forth in this Section 6.07 or otherwise under this Agreement, notwithstanding any failure of the Collateral Manager to be reimbursed on any Payment Date due to the insufficiency of funds. Following realization of the Collateral Portfolio and distribution of proceeds in the manner provided in Section 2.04, any claims of the Collateral Manager against the Borrower in respect of any deferred reimbursement amount or otherwise shall be extinguished and shall not thereafter revive.
Section 6.08 Reports to the Administrative Agent; Account Statements; Collateral Manager Information.
Section 6.09 Annual Statement as to Compliance. The Collateral Manager will provide to the Administrative Agent, each Lender and the Collateral Agent within 90 days following the end of each fiscal year of the Collateral Manager, commencing with the fiscal year ending in 2023, a fiscal report signed by a Responsible Officer of the Collateral Manager certifying that (a) a review of the activities of the Collateral Manager, and the Collateral Manager’s performance pursuant to this Agreement, for the fiscal period ending on the last day of such fiscal year has been made under such Person’s supervision and (b) the Collateral Manager has performed or has caused to be performed in all material respects all of its obligations under this Agreement throughout such year and no Collateral Manager Default has occurred or, if any such Collateral Manager Default has occurred, a statement describing the nature thereof and the steps being taken to remedy such Collateral Manager Default.
Section 6.10 Procedural Review of Collateral Portfolio; Access to Collateral Manager and Collateral Manager’s Records. (a) Each of the Borrower and the Collateral Manager shall permit representatives of the Administrative Agent (who may be accompanied, at any time during the continuance of an Event of Default, by representatives of any requesting Lender) at any time and from time to time as the Administrative Agent shall reasonably request (x) to inspect and make copies of and abstracts from its records relating to the Collateral Obligations included in the Collateral Portfolio and (y) to visit its properties in connection with the collection, processing or management of the Collateral Portfolio for the purpose of inspecting such records, and to discuss matters relating to the Collateral Portfolio or the Borrower’s and/or the Collateral Manager’s performance under this Agreement and the other Transaction Documents with any officer or employee or auditor (if any) of the Collateral Manager or the Borrower, as applicable, having knowledge of such matters in each case other than (1) material and matters protected by attorney-client privilege and (2) material which such Person may not disclose pursuant to any Applicable Law. Each of the Borrower and the Collateral Manager agrees to render to the Administrative Agent such clerical and other assistance as may be reasonably requested with regard to the foregoing; provided that, such assistance shall not interfere in any material respect with the Collateral Manager’s business and operations. So long as no Unmatured Event of Default or Event of Default has occurred and is continuing, such visits and inspections shall occur only (i) upon two (2) Business Days’ prior written notice, (ii) during normal business hours and (iii) no more than twice in any calendar year. During the continuation of an Unmatured Event of Default or an Event of Default, there shall be no limit on the timing or number of such inspections and no prior notice shall be required before any inspection.
Section 6.11 The Collateral Manager Not to Resign. The Collateral Manager shall not resign from the obligations and duties hereby imposed on it except upon the Collateral Manager’s determination that (i) the performance of its duties hereunder is or becomes impermissible under Applicable Law and (ii) there is no reasonable action that the Collateral Manager could take to make the performance of its duties hereunder permissible under Applicable Law. No such resignation shall become effective until a Replacement Collateral Manager shall have assumed the responsibilities and obligations of the Collateral Manager in accordance with Section 6.02.
ARTICLE VIIEVENTS OF DEFAULT
Section 7.01 Events of Default. If any of the following events (each, an “Event of Default”) shall occur:
Section 7.02 Additional Remedies of the Administrative Agent.
Section 7.03 Judicial Proceedings.
ARTICLE VIIIINDEMNIFICATION
Section 8.01 Indemnities by the Borrower.
Section 8.02 Indemnities by Collateral Manager.
Section 8.03 Legal Proceedings. In the event an Indemnified Party becomes involved in any action, claim, or legal, governmental or administrative proceeding (an “Action”) for which it seeks indemnification hereunder, the Indemnified Party shall promptly notify the other party or parties against whom it seeks indemnification (the “Indemnifying Party”) in writing of the nature and particulars of the Action; provided that its failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure has a material adverse effect on the Indemnifying Party. Upon written notice to the Indemnified Party acknowledging in writing that the indemnification provided hereunder applies to the Indemnified Party in connection with the Action (subject to the exclusion in the first sentence of Section 8.01, the first sentence of Section 8.02 or Section 8.02(d), as applicable), the Indemnifying Party may assume the defense of the Action at its expense with counsel reasonably acceptable to the Indemnified Party. The Indemnified Party shall have the right to retain separate counsel in
connection with the Action, and the Indemnifying Party shall not be liable for the legal fees and expenses of the Indemnified Party (excluding the Collateral Agent, the Collateral Custodian and the Account Bank) after the Indemnifying Party has done so; provided that if the Indemnified Party determines in good faith that there may be a conflict between the positions of the Indemnified Party and the Indemnifying Party in connection with the Action, or that the Indemnifying Party is not conducting the defense of the Action in a manner reasonably protective of the interests of the Indemnified Party, the reasonable legal fees and expenses of the Indemnified Party shall be paid by the Indemnifying Party; provided further that the Indemnifying Party shall not, in connection with any one Action or separate but substantially similar or related Actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees or expenses of more than one separate firm of attorneys (and any required local counsel) for such Indemnified Party, which firm (and local counsel, if any) shall be designated in writing to the Indemnifying Party by the Indemnified Party. If the Indemnifying Party elects to assume the defense of the Action, it shall have full control over the conduct of such defense; provided that the Indemnifying Party and its counsel shall, as reasonably requested by the Indemnified Party or its counsel, consult with and keep them informed with respect to the conduct of such defense; provided, further, that, if any Action asserts any liability with respect to either U.S. Bank National Association or U.S. Bank Trust Company, National Association in its individual capacity, each of U.S. Bank National Association and U.S. Bank Trust Company, National Association shall have the right to retain its own counsel, at the expense of the Indemnifying Party, to defend itself in such Action (other than to the extent that any such action arises from or is proximately caused by the gross negligence, bad faith or willful misconduct of U.S. Bank as determined by a court of competent jurisdiction). The Indemnifying Party shall not settle an Action without the prior written approval of the Indemnified Party unless such settlement absolves the Indemnified Party of any alleged misconduct and provides for the full and unconditional release of the Indemnified Party from all liability in connection with the Action. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the defense of the Action.
Section 8.04 After‑Tax Basis. Indemnification under Section 8.01 and 8.02 shall be in an amount necessary to make the Indemnified Party whole after taking into account any Tax consequences to the Indemnified Party of the receipt of the indemnity provided hereunder, including the effect of such Tax or refund on the amount of Tax measured by net income or profits that is or was payable by the Indemnified Party.
ARTICLE IXTHE ADMINISTRATIVE AGENT
Section 9.01 The Administrative Agent.
Section 9.02 Force Majeure.
Section 9.03 Enforcement.
Section 9.04 Merger or Consolidation.
ARTICLE XCOLLATERAL AGENT
Section 10.01 Designation of Collateral Agent.
Section 10.02 Duties of Collateral Agent.
Section 10.03 Merger or Consolidation. Any Person (i) into which the Collateral Agent may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Collateral Agent shall be a party, or (iii) that may succeed to the properties and assets of the Collateral Agent substantially as a whole or its corporate trust business, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Agent hereunder, shall be the successor to the Collateral Agent under this Agreement without further act of any of the parties to this Agreement.
Section 10.04 Collateral Agent Compensation. As compensation for its Collateral Agent activities hereunder, the Collateral Agent shall be entitled to the Collateral Agent Fees and Collateral Agent Expenses from the Borrower as set forth in the Collateral Agent and Collateral Custodian Fee Letter, payable to the extent of funds available therefor pursuant to the provisions of Section 2.04. The Collateral Agent’s entitlement to receive the Collateral Agent Fees shall cease on the earlier to occur of: (i) its removal as Collateral Agent pursuant to Section 10.05 or (ii) the termination of this Agreement.
Section 10.05 Collateral Agent Removal. The Collateral Agent may be removed, with or without cause, by the Administrative Agent by notice given in writing to the Collateral Agent (the “Collateral Agent Termination Notice”); provided that, notwithstanding its receipt of a Collateral Agent Termination Notice, the Collateral Agent shall continue to act in such capacity until a successor Collateral Agent has been appointed and has agreed to act as Collateral Agent hereunder; provided that the Collateral Agent shall continue to receive compensation of its fees and expenses in accordance with Section 10.04 above while so serving as the Collateral Agent prior to a successor Collateral Agent being appointed.
Section 10.06 Limitation on Liability.
Section 10.07 Collateral Agent Resignation. The Collateral Agent may resign at any time by giving not less than 90 days written notice thereof to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) and with the consent of the Administrative Agent, which consent shall not be unreasonably withheld. Upon receiving such notice of resignation, the Administrative Agent shall promptly appoint a successor collateral agent or collateral agents, with the consent of the Borrower, not to be unreasonably withheld, conditioned or delayed, by written instrument, in duplicate, executed by the Administrative Agent, one copy of which shall be delivered to the Collateral Agent so resigning and one copy to the successor
collateral agent or collateral agents, together with a copy to the Borrower, the Collateral Manager and the Collateral Custodian. If no successor collateral agent shall have been appointed and an instrument of acceptance by a successor Collateral Agent shall not have been delivered to the Collateral Agent within 45 days after the giving of such notice of resignation, the resigning Collateral Agent may petition any court of competent jurisdiction for the appointment of a successor Collateral Agent. Notwithstanding anything herein to the contrary, the Collateral Agent may not resign prior to a successor Collateral Agent being appointed. For the avoidance of doubt, any Collateral Agent Fees shall be payable to the Collateral Agent so resigning until such time as a successor Collateral Agent shall have been appointed.
ARTICLE XIMISCELLANEOUS
Section 11.01 Amendments and Waivers.
Section 11.02 Notices, Etc.
Section 11.03 No Waiver; Remedies. No failure on the part of the Administrative Agent, the Collateral Agent or any Lender to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
Section 11.04 Binding Effect; Assignability; Multiple Lenders.
Section 11.05 Term of This Agreement. This Agreement, including, without limitation, the Borrower’s representations and covenants set forth in Articles IV and V and the Collateral Manager’s representations, covenants and duties set forth in Articles IV, V and VI, shall remain in full force and effect until the Collection Date; provided that the rights and remedies with respect to any breach of any representation and warranty made or deemed made by the Borrower or the Collateral Manager pursuant to Articles III and IV and the indemnification and payment provisions of Article VIII, IX and Article XI and the provisions of Section 2.10, Section 2.11, Section 11.07, Section 11.08 and Section 11.09 shall be continuing and shall survive any termination of this Agreement.
Section 11.06 GOVERNING LAW; JURY WAIVER. THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5‑1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER.
Section 11.07 Costs and Expenses.
Section 11.08 No Proceedings.
Section 11.09 Recourse Against Certain Parties.
Section 11.10 Execution in Counterparts; Severability; Integration. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e‑mail in portable document format (.pdf) or facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. In the event that any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. Each of this Agreement, the other Transaction Documents, and any other written instruments authorized or contemplated hereby or thereby, as applicable, contains the final and complete integration of all prior expressions by the parties thereto with respect to the subject matter thereof and shall constitute the entire agreement among the parties thereto with respect to the subject matter thereof, superseding all prior oral or written understandings.
Section 11.11 Consent to Jurisdiction; Service of Process.
Section 11.12 Confidentiality.
Section 11.13 Waiver of Set‑Off. Each of the parties hereto (other than the recipients of such waiver) hereby waives any right of set‑off it may have or to which it may be entitled from time to time under this Agreement or any other Transaction Document against the Administrative Agent, the Lenders or their respective assets.
Section 11.14 Headings and Exhibits. The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof. The schedules and exhibits attached hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.
Section 11.15 Ratable Payments. If any Lender, whether by setoff or otherwise, shall obtain any payment (whether voluntary, involuntary, through the exercise of any right of setoff, or otherwise) on account of Advances owing to it (other than pursuant to Section 2.10 or Section 2.11) in excess of its ratable share of payments on account of the Advances obtained by all the Lenders, such Lender shall forthwith purchase from the other Lenders such participations in the Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; provided that, if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery together with an amount equal to such Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered.
Section 11.16 Failure of the Borrower or the Collateral Manager to Perform Certain Obligations. If the Borrower or the Collateral Manager, as applicable, fails to perform any of its agreements or obligations under Section 5.01(t), Section 5.02(o) or Section 5.03(e), the Administrative Agent may (but shall not be required to) itself perform, or cause the performance of, such agreement or obligation, and the reasonable and documented expenses of the Administrative Agent incurred in connection therewith shall be payable by the Borrower upon the Administrative Agent’s demand therefor.
Section 11.17 Power of Attorney. The Borrower irrevocably authorizes and appoints the Administrative Agent as its attorney‑in‑fact to act on behalf of the Borrower (i) to file such financing statements and other instruments as are necessary or desirable in the Administrative Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Secured Parties in the Collateral Portfolio and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral Portfolio as a financing statement in such offices as the Administrative Agent in its sole discretion deems necessary or reasonably desirable to perfect and to maintain the perfection and priority of the interests of the Secured Parties in the Collateral Portfolio. This appointment is coupled with an interest and is irrevocable.
Section 11.18 Delivery of Termination Statements, Releases, etc. Upon payment in full of all of the Obligations (other than unmatured contingent indemnification obligations) and the termination of this Agreement, the Collateral Agent shall deliver to the Borrower termination statements, reconveyances, releases and other documents the Borrower deems reasonably necessary or appropriate to evidence the termination of the Pledge and other Liens securing the Obligations, all at the expense of the Borrower.
Section 11.19 Non‑Petition.
Section 11.20 Intent of Parties. All parties hereto intend that the Borrower’s obligations to the Lenders, incurred through the Indebtedness borrowed hereunder, shall be in the form of “loans” and not “securities” for all purposes.
Section 11.21 Covered Transactions. The Borrower shall not use the proceeds of any Advance in a manner that would cause such credit extension to become a “covered transaction” as defined in Section 23A of the Federal Reserve Act (12 U.S.C. § 371c) and the Federal Reserve Board’s Regulation W (12 C.F.R. Part 223), including any transaction where the proceeds of any Advance are (x) used for the benefit of, or transferred to, an “affiliate” of a Lender (as such term is defined in 12 C.F.R. Part 223), or (y) used to invest in any fund advised by a Lender or an “affiliate” thereof (as such term is defined in 12 C.F.R. Part 223).
Section 11.22 Erroneous Payments.
ARTICLE XIICOLLATERAL CUSTODIAN
Section 12.01 Designation of Collateral Custodian.
Section 12.02 Duties of Collateral Custodian.
Section 12.03 Merger or Consolidation. Any Person (i) into which the Collateral Custodian may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Collateral Custodian shall be a party, or (iii) that may succeed to the properties and assets of the Collateral Custodian substantially as a whole or the corporate trust business of the Collateral Custodian, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Custodian hereunder, shall be the successor to the Collateral Custodian under this Agreement without further act of any of the parties to this Agreement.
Section 12.04 Collateral Custodian Compensation. As compensation for its Collateral Custodian activities hereunder, the Collateral Custodian shall be entitled to the Collateral Custodian Fees from the Borrower as set forth in the Collateral Agent and Collateral Custodian Fee Letter, payable pursuant to the extent of funds available therefor pursuant to the provisions of Section 2.04. The Collateral Custodian’s entitlement to receive the Collateral Custodian Fees shall cease on the earlier to occur of: (i) its removal as Collateral Custodian pursuant to Section 12.05, (ii) its resignation as Collateral Custodian pursuant to Section 12.07 or (iii) the termination of this Agreement.
Section 12.05 Collateral Custodian Removal. The Collateral Custodian may be removed, with or without cause, by the Administrative Agent by 30 days written notice given in writing to the Collateral Custodian (the “Collateral Custodian Termination Notice”); provided that, notwithstanding its receipt of a Collateral Custodian Termination Notice, the Collateral Custodian shall continue to act in such capacity until a successor Collateral Custodian has been appointed and has agreed to act as Collateral Custodian hereunder.
Section 12.06 Limitation on Liability.
Section 12.07 Collateral Custodian Resignation. Collateral Custodian may resign and be discharged from its duties or obligations hereunder, not earlier than 90 days after delivery to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof) of written notice of such resignation specifying a date when such resignation shall take effect. Upon the effective date of such resignation, or if the Administrative Agent gives Collateral Custodian written notice of an earlier termination hereof, Collateral Custodian shall (i) be reimbursed for any costs and expenses Collateral Custodian shall incur in connection with the termination of its duties under this Agreement and (ii) deliver all of the Required Loan Documents in the possession of Collateral Custodian to the Administrative Agent or to such Person as the Administrative Agent may designate to Collateral Custodian in writing upon the receipt of a request in the form of Exhibit M; provided that the Borrower shall consent to any successor Collateral Custodian appointed by the Administrative Agent (such consent not to be unreasonably withheld). In the case of a resignation or removal of the Collateral Custodian pursuant to this Section 12.07, if no successor custodian shall have been appointed and an instrument of acceptance by a successor custodian shall not have been delivered to the Collateral Custodian within 90 days after the giving of such notice of removal, the Collateral Custodian may petition any court of competent jurisdiction for the appointment of a successor custodian. Notwithstanding anything herein to the contrary, the Collateral Custodian may not resign prior to a successor Collateral Custodian being appointed.
Section 12.08 Release of Documents.
Section 12.09 Return of Required Loan Documents. The Borrower may, with the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed), require that the Collateral Custodian return each Required Loan Document (a) delivered to the Collateral Custodian in error or (b) released from the Lien of the Collateral Agent hereunder pursuant to Section 2.16, in each case by submitting to the Collateral Custodian and the Administrative Agent a written request in the form of Exhibit M hereto (signed by both the Borrower and the Administrative Agent) specifying the Collateral Portfolio to be so returned and reciting that the conditions to such release have been met (and specifying the Section or Sections of this Agreement being relied upon for such release). The Collateral Custodian shall upon its receipt of each such request for return executed by the Borrower and the Administrative Agent promptly, but in any event within five (5) Business Days, return the Required Loan Documents so requested to the Borrower.
Section 12.10 Access to Certain Documentation and Information Regarding the Collateral Portfolio; Audits of Collateral Manager. Upon reasonable prior notice to the Collateral
Custodian, the Borrower, the Collateral Manager and their agents, accountants, attorneys and auditors (at the Borrower’s expense), authorized representatives of the Administrative Agent will be permitted during normal business hours to examine and make copies of the Collateral Obligation Files and any other documents or records in the possession or under the control of the Collateral Custodian relating to any or all of the Collateral Obligations included in the Collateral Portfolio. Prior to the occurrence of an Unmatured Event of Default or an Event of Default, upon the request of the Administrative Agent and at the cost and expense of the Borrower, the Collateral Custodian shall promptly provide the Administrative Agent with the Collateral Obligation Files or copies thereof, as designated by the Administrative Agent, subject to the limitations and other conditions set forth in Section 6.10.
Section 12.11 Bailment. The Collateral Custodian agrees that, with respect to any Required Loan Documents at any time or times in its possession or held in its name, the Collateral Custodian shall be the agent and bailee of the Collateral Agent, for the benefit of the Secured Parties, for purposes of perfecting (to the extent not otherwise perfected) the Collateral Agent’s security interest in the Collateral Portfolio and for the purpose of ensuring that such security interest is entitled to first priority status under the UCC.
ARTICLE XIIIACKNOWLEDGMENT AND CONSENT TO BAIL‑IN OF EEA FINANCIAL INSTITUTIONS
Section 13.01 Acknowledgment and Consent to Bail‑In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Transaction Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Transaction Document (other than an EU Excluded Liability), may be subject to the Write‑Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
ARTICLE XIVRECOGNITION OF THE U.S. SPECIAL RESOLUTION REGIMES
Section 14.01 Recognition of the U.S. Special Resolution Regimes.
Contents
Share
More
Download PDF