** **

**Exhibit 10.56**

 

EXECUTION VERSION

 

 

SENIOR SECURED

REVOLVING CREDIT AGREEMENT

 

dated as of

 

August 9, 2018

 

among

 

CORPORATE CAPITAL TRUST, INC.,

FS INVESTMENT CORPORATION,

FS INVESTMENT CORPORATION II, and

FS INVESTMENT CORPORATION III,

as Borrowers,

 

The LENDERS Party Hereto

 

and

 

JPMORGAN CHASE BANK, N.A.

as Administrative Agent

 

ING CAPITAL LLC,

as Collateral Agent

 

$3,435,000,000

 

 

ING CAPITAL LLC,

as Syndication Agent

 

BANK OF MONTREAL and

SUNTRUST BANK,

as Documentation Agents

 

JPMORGAN CHASE BANK, N.A.,

ING CAPITAL LLC,

BMO CAPITAL MARKETS CORP. and

SUNTRUST ROBINSON HUMPHREY INC.,

as Joint Bookrunners and Joint Lead Arrangers

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SENIOR SECURED REVOLVING CREDIT AGREEMENT datedas of August 9, 2018 (this “Agreement”), among CORPORATE CAPITAL TRUST, INC., FS INVESTMENT CORPORATION, FSINVESTMENT CORPORATION II, FS INVESTMENT CORPORATION III, each other Person designated as a “Borrower” hereunder pursuantto Section 9.19, the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and ING CAPITAL LLC, as CollateralAgent.

 

Each Borrower has requested that the Lenders providethe credit facilities described herein under this Agreement to extend credit to such Borrower in Dollars or an Agreed Foreign Currency(each as defined below) during the Availability Period (as defined below). The Lenders are prepared to extend such credit uponthe terms and conditions hereof, and, accordingly, the parties hereto agree as follows:

 

Article I

 

DEFINITIONS

 

SECTION 1.01.          Defined Terms.As used in this Agreement, the following terms have the meanings specified below:

 

“ABR”, when used in referenceto any Loan or Borrowing, refers to whether such Loan is, or the Loans constituting such Borrowing are, denominated in Dollarsand bearing interest at a rate determined by reference to the Alternate Base Rate.

 

“Additional Debt Amount” means,with respect to a Borrower, as of any date, the greater of (a) $50,000,000 and (b) an amount equal to 5% of Shareholders’Equity of such Borrower.

 

“Adjusted LIBO Rate” means,for the Interest Period for any Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16of 1%) equal to (a) the Eurocurrency Rate for such Interest Period multiplied by (b) the Statutory ReserveRate for such Interest Period.

 

“Administrative Agent” meansJPMCB, in its capacity as administrative agent for the Lenders hereunder.

 

“Administrative Agent’s Account”means, for each Currency and each Borrower, an account in respect of such Currency and such Borrower designated by the AdministrativeAgent in a notice to such Borrower and the Lenders.

 

“Administrative Questionnaire”means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

“Advance Rate” has the meaningassigned to such term in Section 5.13.

 

“Affiliate” means, withrespect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlledby or is under common Control with the Person specified. Anything herein to the contrary notwithstanding, the term “Affiliate”shall not include any Person that constitutes an Investment held by any Obligor or any Designated Subsidiary in the ordinary courseof business. For the avoidance of doubt, in respect of each Borrower, the term “Affiliate” shall include FS/KKR Advisor.

 

 

 

“Affiliate Agreements” means(a) with respect to CCT, (i) the Investment Advisory Agreement dated as of April 9, 2018, by and between CCT and FS/KKR Advisorand (ii) the Administrative Services Agreement dated as of April 9, 2018, by and between CCT and FS/KKR Advisor, (b) with respectto FSIC, (i) the Investment Advisory Agreement dated as of April 9, 2018, by and between FSIC and FS/KKR Advisor and (ii) the AdministrationAgreement dated as of April 9, 2018, by and between FSIC and FS/KKR Advisor, (c) with respect to FSIC II, the Investment Advisoryand Administrative Services Agreement dated as of April 9, 2018, by and between FSIC II and FS/KKR Advisor and (d) with respectto FSIC III, the Investment Advisory and Administrative Services Agreement dated as of April 9, 2018, by and between FSIC III andFS/KKR Advisor.

 

“Agreed Foreign Currency” means,at any time, any of Canadian Dollars, Euros, Pounds Sterling, AUD, NZD and, with the agreement of each Multicurrency Lender, anyother Foreign Currency, so long as, in respect of any such specified Foreign Currency or other Foreign Currency, at such time (a) suchForeign Currency is dealt with in the London interbank deposit market, or, in the case of Canadian Dollars, AUD or NZD, the relevantlocal market for obtaining quotations, (b) such Foreign Currency is freely transferable and convertible into Dollars in the Londonforeign exchange market and (c) no central bank or other governmental authorization in the country of issue of such ForeignCurrency (including, in the case of the Euro, any authorization by the European Central Bank) is required to permit use of suchForeign Currency by any Multicurrency Lender for making any Loan hereunder or to permit any Issuing Bank to issue (or to make paymentunder) any Letter of Credit denominated in such Foreign Currency and/or to permit any Borrower to borrow and repay the principalthereof and to pay the interest thereon (or to repay any LC Disbursement under a Letter of Credit denominated in such Foreign Currency),unless such authorization has been obtained and is in full force and effect.

 

“Alternate Base Rate” means,for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate ineffect on such day plus 1/2 of 1%, and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if suchday is not a Business Day, the immediately preceding Business Day) plus 1%, provided that, the Adjusted LIBO Rate for any day shallbe based on the LIBOR Screen Rate at approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate dueto a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be effective from and including the effective dateof such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, as the case may be. If the Alternate Base Rate determinedin accordance with the above shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“Anti-Corruption Laws” means,with respect to each Borrower, all laws, rules and regulations of any jurisdiction applicable to such Borrower or its Subsidiariesfrom time to time concerning or relating to bribery or corruption.

 

 

 

“Applicable Dollar Percentage”means, with respect to any Dollar Lender and any Borrower, the percentage of the total Dollar Subcommitments with respect to suchBorrower represented by such Dollar Lender’s Dollar Subcommitments with respect to such Borrower. If the Dollar Subcommitmentswith respect to any Borrower have terminated or expired, the Applicable Dollar Percentages shall be determined based upon the DollarSubcommitments with respect to such Borrower most recently in effect, giving effect to any assignments pursuant to Section 9.04(b).

 

“Applicable Margin” means,(a) with respect to any Listed Borrower, for any day, (i) if the Borrowing Base of such Listed Borrower (as of the most recentlydelivered Borrowing Base Certificate of such Listed Borrower) is equal to or greater than 1.85 times the Combined Debt Amount ofsuch Listed Borrower (as of the most recently delivered Borrowing Base Certificate of such Listed Borrower), (x) with respect toany ABR Loan made to such Listed Borrower, 0.75% per annum and (y) in the case of any Eurocurrency Loan made to such Listed Borrower,1.75% per annum, and (ii) if the Borrowing Base of such Listed Borrower (as of the most recently delivered Borrowing Base Certificateof such Listed Borrower) is less than 1.85 times the Combined Debt Amount of such Listed Borrower (as of the most recently deliveredBorrowing Base Certificate of such Listed Borrower), (x) with respect to any ABR Loan made to such Listed Borrower, 1.00% per annum,and (y) in the case of any Eurocurrency Loan made to such Listed Borrower, 2.00% per annum and (b) with respect to any UnlistedBorrower, for any day, (i) if the Borrowing Base of such Unlisted Borrower (as of the most recently delivered Borrowing Base Certificateof such Unlisted Borrower) is equal to or greater than 1.85 times the Combined Debt Amount of such Unlisted Borrower (as of themost recently delivered Borrowing Base Certificate of such Unlisted Borrower), (x) with respect to any ABR Loan made to such UnlistedBorrower, 1.00% per annum and (y) in the case of any Eurocurrency Loan made to such Unlisted Borrower, 2.00% per annum, and (ii)if the Borrowing Base of such Unlisted Borrower (as of the most recently delivered Borrowing Base Certificate of such UnlistedBorrower) is less than 1.85 times the Combined Debt Amount of such Unlisted Borrower (as of the most recently delivered BorrowingBase Certificate of such Unlisted Borrower), (x) with respect to any ABR Loan made to such Unlisted Borrower, 1.25% per annum,and (y) in the case of any Eurocurrency Loan made to such Unlisted Borrower, 2.25% per annum. Any change in the Applicable Margindue to a change in the ratio of the Borrowing Base to the Combined Debt Amount of a Borrower as set forth in any Borrowing BaseCertificate of such Borrower shall be effective from and including the day immediately succeeding the date of delivery of suchBorrowing Base Certificate; provided that if any Borrowing Base Certificate of such Borrower has not been delivered in accordancewith Section 5.01(d), then from and including the day immediately succeeding the date on which such Borrowing Base Certificatewas required to be delivered, the Applicable Margin with respect to such Borrower shall be (1) if such Borrower is a Listed Borrower,the Applicable Margin set forth in clause (a)(ii) above or (2) if such Borrower is an Unlisted Borrower, the Applicable Marginset forth in clause (b)(ii) above, in each case, to and including the date on which the required Borrowing Base Certificate ofsuch Borrower is delivered.

 

“Applicable Multicurrency Percentage”means, with respect to any Multicurrency Lender and any Borrower, the percentage of the total Multicurrency Subcommitments withrespect to such Borrower represented by such Multicurrency Lender’s Multicurrency Subcommitment with respect to such Borrower.If the Multicurrency Subcommitments with respect to any Borrower have terminated or expired, the Applicable Multicurrency Percentagesshall be determined based upon the Multicurrency Subcommitments with respect to such Borrower most recently in effect, giving effectto any assignments pursuant to Section 9.04(b).

 

 

 

“Applicable Percentage” means,with respect to any Lender and any Borrower, the percentage of total Subcommitments with respect to such Borrower represented bysuch Lender’s Subcommitments with respect to such Borrower. If the Subcommitments with respect to such Borrower have terminatedor expired, the Applicable Percentages shall be determined based upon the Subcommitments with respect to such Borrower most recentlyin effect, giving effect to any assignments pursuant to Section 9.04(b).

 

“Approved Dealer” means (a) inthe case of any Portfolio Investment that is not a U.S. Government Security, a bank or a broker-dealer registered under theSecurities Exchange Act of 1934 of nationally recognized standing or an Affiliate thereof, (b) in the case of a U.S. GovernmentSecurity, any primary dealer in U.S. Government Securities, and (c) in the case of any foreign Portfolio Investment,any foreign broker-dealer of internationally recognized standing or an Affiliate thereof, in the case of each of clauses (a),(b) and (c) above, as set forth on Schedule VI or any other bank or broker-dealer acceptable to the AdministrativeAgent in its reasonable determination.

 

“Approved Pricing Service”means a pricing or quotation service as set forth in Schedule VI or any other pricing or quotation service approved by theboard of directors (or appropriate committee thereof with the necessary delegated authority) of the applicable Borrower and designatedin writing by such Borrower to the Administrative Agent (which designation shall be accompanied by a copy of a resolution of theboard of directors (or appropriate committee thereof with the necessary delegated authority) of such Borrower that such pricingor quotation service has been approved by such Borrower).

 

“Approved Third Party Appraiser”means each of Murray, Devine & Co., Houlihan Lokey, Duff & Phelps, Lincoln Advisors, Valuation Research Corporation, Alvarez & Marsal, and any other third party appraiser selected by the applicable Borrower in its reasonable discretion.

 

“Asset Coverage Ratio” means,with respect to a Borrower, on a consolidated basis for such Borrower and its Subsidiaries, the ratio which the value of totalassets, less all liabilities and indebtedness not represented by Senior Securities, bears to the aggregate amount of Senior Securitiesrepresenting indebtedness, in each case, of such Borrower and its Subsidiaries (all as determined pursuant to the Investment CompanyAct in effect on the Effective Date and any orders of the SEC issued to such Borrower). The calculation of the Asset Coverage Ratiowith respect to a Borrower shall be made in accordance with any exemptive order issued by the SEC under Section 6(c) of the InvestmentCompany Act relating to the exclusion of any Indebtedness of any SBIC Subsidiary of such Borrower from the definition of SeniorSecurities of such Borrower only so long as (a) such order is in effect, and (b) no obligations have become due and owing pursuantto the terms of any Permitted SBIC Guarantee to which such Borrower or any other member of its Obligor Group is a party. The outstandingutilized notional amount of any total return swap and the notional amount of any Credit Default Swap where an Obligor is a protectionseller, in each case less the value of the margin posted by such Borrower or any of its Subsidiaries thereunder at such time shallbe treated as a Senior Security of such Borrower for the purposes of calculating the Asset Coverage Ratio with respect to suchBorrower.

 

 

 

“Asset Sale” means a sale,lease or sub lease (as lessor or sublessor), sale and leaseback, assignment, conveyance, transfer or other disposition to, or anyexchange of property with, any Person, in one transaction or a series of transactions, of all or any part of any assets or propertiesof any Borrower or any other member of its Obligor Group of any kind, whether real, personal, or mixed and whether tangible orintangible, whether now owned or hereafter acquired; provided, however, the term “Asset Sale” as used in this Agreementshall not include the disposition of Portfolio Investments originated by any Borrower and promptly transferred to a Subsidiaryof such Borrower pursuant to the terms of Section 6.03(d) hereof.

 

“Assignment and Assumption”means an Assignment and Assumption entered into by a Lender and an assignee (with the consent of any party whose consent is requiredby Section 9.04), and accepted by the Administrative Agent as provided in Section 9.04, in the form of Exhibit A or anyother form reasonably approved by the Administrative Agent.

 

“Assuming Lender” has the meaningassigned to such term in Section 2.07(e).

 

“AUD” and “A$”denote the lawful currency of The Commonwealth of Australia.

 

“AUD Rate” means for any Loansin AUD, the (a) AUD Screen Rate plus (b) 0.20%.

 

“AUD Screen Rate” means, withrespect to any Interest Period, (a) the average bid reference rate administered by the Australian Financial Markets Association(or any other Person that takes over the administration of such rate) for AUD bills of exchange with a tenor equal in length tosuch Interest Period as displayed on page BBSY of the Reuters screen (or, in the event such rate does not appear on such Reuterspage, on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other informationservice that publishes such rate as shall be selected by the Administrative Agent from time to time in its reasonable discretion)at or about 11:00 a.m. (Sydney, Australia time) on the first day of such Interest Period. If the AUD Screen Rate shall be lessthan zero, the AUD Screen Rate shall be deemed to be zero for purposes of this Agreement.

 

“Availability Period” meansthe period from and including the Effective Date to but excluding the earlier of the Commitment Termination Date and the date oftermination of the Commitments.

 

“Average COF Rate” has themeaning assigned to such term in Section 2.12(a).

 

“Bail-In Action” means theexercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAFinancial Institution.

 

 

 

“Bail-In Legislation” means,with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Councilof the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-InLegislation Schedule.

 

“Bank Loans” has the meaningassigned to such term in Section 5.13.

 

“Bankruptcy Code” has the meaningassigned to such term in Section 5.13.

 

“Basel III” means the agreementson capital requirements, leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework formore resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standardsand monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” publishedby the Basel Committee on Banking Supervision on 16 December 2010, each as amended, supplemented or restated.

 

“Benefit Plan” means any of(a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan”as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (forpurposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets ofany such “employee benefit plan” or “plan”.

 

“BMOCM” means BMO Capital MarketsCorp.

 

“Board” means the Board ofGovernors of the Federal Reserve System of the United States of America.

 

“Borrower” means each of CCT,FSIC, FSIC II, FSIC III and each other Person designated as a “Borrower” hereunder pursuant to Section 9.19, otherthan any such Person that has been released as a Borrower as provided herein or is a Non-Surviving Borrower.

 

“Borrower Merger” means anytransaction or a series of related transactions for the direct or indirect acquisition by a Borrower or any other member of itsObligor Group (such Person, the “Surviving Obligor” and, the Borrower that either is the Surviving Obligor (includingthe ultimate Surviving Obligor as a result of a second-step merger) or is the direct or indirect parent of the Surviving Obligor,as applicable, the “Surviving Borrower”) of another Borrower (such other Borrower, a “Non-SurvivingBorrower”, and together with any other member of its Obligor Group that will not survive such transaction, each a “Non-SurvivingObligor”); provided that such transaction or series of related transactions (w) is permitted under Section 6.03,(x) results in substantially all assets of each Non-Surviving Obligor being assumed or acquired by a Surviving Obligor, (y) doesnot result in a Change in Control of the Surviving Borrower and (z) as a matter of law or pursuant to the express terms of theagreement or certificate effectuating such merger or consolidation, the obligations of each Non-Surviving Obligor under this Agreementand each of the other Loan Documents (other than the Security Documents) to which such Non-Surviving Obligor (and, to the extentapplicable, the other members of its Obligor Group) is a party are assumed by the applicable Surviving Obligor (it being the understandingthat in connection with any merger or consolidation effectuated in reliance on Section 6.03(e), the obligations of each Non-SurvivingObligor under this Agreement and each of the other Loan Documents (other than the Security Documents) to which such Non-SurvivingObligor is a party shall be deemed automatically assumed hereunder by the applicable Surviving Obligor pursuant to Section 9.20).A “Borrower Merger” will also include any “cash election” merger, any “second-step” mergerwhereby a Surviving Obligor that is not a Borrower merges or consolidates with and into the Surviving Borrower and any cash paidon account of fractional shares in connection with any such transaction.

 

 

 

“Borrower Sublimit” means,with respect to a Borrower, the aggregate amount of all Lenders’ Subcommitments allocated to such Borrower, as such sublimitmay be reduced or increased from time to time pursuant to Section 2.07, reduced from time to time pursuant to Section 2.09or as otherwise provided in this Agreement. The amount of each Borrower’s Borrower Sublimit is set forth on Schedule I. Asof the Effective Date, the Borrower Sublimit with respect to (i) CCT is $1,450,000,000, (ii) FSIC is $685,000,000, (iii) FSIC IIis $650,000,000 and (iv) FSIC III is $650,000,000.

 

“Borrowing” means, with respectto a Borrower, (a) all ABR Loans of the same Class made to, or converted or continued on behalf of, such Borrower on the samedate and/or (b) all Eurocurrency Loans of the same Class made to such Borrower denominated in the same Currency that havethe same Interest Period, as applicable.

 

“Borrowing Base” has the meaningassigned to such term in Section 5.13.

 

“Borrowing Base Certificate”means a certificate of a Financial Officer of the applicable Borrower, substantially in the form of Exhibit D and appropriatelycompleted.

 

“Borrowing Base Deficiency”means, with respect to a Borrower, at any date on which the same is determined, the amount, if any, that (a) the aggregateCovered Debt Amount of such Borrower as of such date exceeds (b) the Borrowing Base of such Borrower as of such date.

 

“Borrowing Request” means arequest by a Borrower for a Borrowing in accordance with Section 2.03 substantially in the form of Exhibit E or suchother form as is approved by the Administrative Agent.

 

“Business Day” means any daythat is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law toremain closed; and when used in connection with a Eurocurrency Loan for a LIBOR Quoted Currency, the term “Business Day”shall also exclude any day on which banks are not open for dealings in deposits in such LIBOR Quoted Currency; and in addition,with respect to any date for the payment or purchase of, or the fixing of an interest rate in relation to, any Non-LIBOR QuotedCurrency, the term “Business Day” shall also exclude any day on which banks are not open for general business in thePrincipal Financial Center of the country of such Non-LIBOR Quoted Currency and, if the Borrowings or LC Disbursements which arethe subject of a borrowing, drawing, payment, reimbursement or rate selection are denominated in Euros, the term “BusinessDay” shall also exclude any day on which the TARGET2 payment system is not open for the settlement of payments in Euros.

 

“Canadian Dollar” means thelawful money of Canada.

 

 

 

“Canadian Prime Rate” means,on any day, the rate determined by the Administrative Agent to be the higher of (i) the rate equal to the PRIMCAN index rate thatappears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN index is not publishedby Bloomberg, any other information services that publishes such index from time to time, as selected by the Administrative Agentin its reasonable discretion) and (ii) the CDOR Rate for thirty (30) days, plus 1% per annum. Any change in the Canadian PrimeRate due to a change in the PRIMCAN index or the CDOR Rate shall be effective from and including the effective date of such changein the PRIMCAN Index or CDOR Rate, respectively.

 

“Capital Lease Obligations”of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveyingthe right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accountedfor as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalizedamount thereof determined in accordance with GAAP. Notwithstanding any other provision contained herein, any change in GAAP afterthe Effective Date that would require an operating lease to be treated similar to a capital lease shall not be given effect hereunder.

 

“Capital Stock” has the meaningassigned to such term in Section 5.13.

 

“Cash” means any immediatelyavailable funds in Dollars or in any currency other than Dollars (measured in terms of the Dollar Equivalent thereof) which isa freely convertible currency.

 

“Cash Equivalents” means investments(other than Cash) that are one or more of the following obligations:

 

(a)       U.S. GovernmentSecurities, in each case maturing within one year from the date of acquisition thereof;

 

(b)       investmentsin commercial paper or other short-term corporate obligations maturing within 270 days from the date of acquisition thereofand having, at such date of acquisition, a credit rating of at least A-1 from S&P and at least P-1 from Moody’s;

 

(c)       investmentsin certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisitionthereof (i) issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic officeof any commercial bank organized under the laws of the United States of America or any State thereof or under the laws of the jurisdictionor any constituent jurisdiction thereof of any Agreed Foreign Currency, provided that such certificates of deposit, banker’sacceptances and time deposits are held in a securities account (as defined in the Uniform Commercial Code) through which theCollateral Agent can perfect a security interest therein and (ii) having, at such date of acquisition, a credit rating ofat least A-1 from S&P and at least P-1 from Moody’s;

 

 

 

(d)       fullycollateralized repurchase agreements with a term of not more than 30 days from the date of acquisition thereof for U.S. GovernmentSecurities and entered into with (i) a financial institution satisfying the criteria described in clause (c) of thisdefinition or (ii) an Approved Dealer having (or being a member of a consolidated group having) at such date of acquisition,a credit rating of at least A-1 from S&P and at least P-1 from Moody’s;

 

(e)       investmentsin money market funds and mutual funds, which invest substantially all of their assets in Cash or assets of the types describedin clauses (a) through (d) above or have, at all times, credit ratings of “AAAm” or “AAAm-G” by S&Pand “Aaa” and “MR+1” by Moody’s; and

 

(f)       aguaranteed reinvestment agreement from a bank (if treated as a deposit by such bank), insurance company or other corporation orentity, in each case, at the date of such acquisition having a credit rating of at least A-1 from S&P and at least P-1 fromMoody’s; provided that such agreement provides that it may be unwound at the option of the purchaser at any time withoutpenalty;

 

provided, that (i) in no event shall Cash Equivalentsinclude any obligation that provides for the payment of interest alone (for example, interest-only securities or “IOs”);(ii) if any of S&P or Moody’s changes its rating system, then any ratings included in this definition shall be deemedto be an equivalent rating in a successor rating category of S&P or Moody’s, as the case may be; (iii) Cash Equivalents(other than U.S. Government Securities, certificates of deposit or repurchase agreements) shall not include any such investmentrepresenting more than 10% of total assets of the applicable Borrower and the other members of its Obligor Group in any singleissuer; and (iv) in no event shall Cash Equivalents include any obligation that is not denominated in Dollars or an AgreedForeign Currency.

 

“Cash Pay Bank Loans” has themeaning assigned to such term in Section 5.13.

 

“CCT” means Corporate CapitalTrust, Inc., a Maryland corporation.

 

“CCT 2022 Notes” means, withrespect to CCT (or any successor), its 5.00% senior unsecured notes due on June 28, 2022.

 

“CDOR Rate” means, on any dayand for any period, an annual rate of interest equal to the average rate applicable to Canadian Dollar bankers’ acceptancesfor the applicable period that appears on the Reuters Screen CDOR Page (or, in the event such rate does not appear on such pageor screen, on any successor or substitute page or screen that displays such rate, or on the appropriate page of such other informationservice that publishes such rate from time to time, as selected by the Administrative Agent in its reasonable discretion), roundedto the nearest 1/100th of 1% (with .005% being rounded up), at approximately 10:15 a.m. Toronto time on such day, or if such dayis not a Business Day, then on the immediately preceding Business Day (the “CDOR Screen Rate”); provided thatif such CDOR Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

 

“CDOR Screen Rate” has themeaning assigned to such term in the definition of the term “CDOR Rate”.

 

“CDO Securities” has the meaningassigned to such term in Section 5.13.

 

 

 

“Change in Control” means,with respect to any Borrower, (a) except with respect to any Non-Surviving Borrower in a Borrower Merger, the acquisitionof ownership, directly or indirectly, beneficially or of record, by any other Person or group (within the meaning of the SecuritiesExchange Act of 1934 and the rules of the SEC thereunder as in effect on the Effective Date), other than FS/KKR Advisor, ofshares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capitalstock of such Borrower or (b) except with respect to any Non-Surviving Borrower in a Borrower Merger, the occupation of amajority of the seats (other than vacant seats) on the board of directors of such Borrower by other Persons who were neither (i) nominatedby the requisite members of the board of directors of such Borrower nor (ii) appointed by a majority of the directors so nominated;other than, in the case of this clause (b), in connection with an initial public offering.

 

“Change in Law” means (a) theadoption or taking effect of any law, rule, regulation or treaty after the Effective Date, (b) any change in any law, rule,regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authorityafter the Effective Date or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14(b), byany lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request,guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the EffectiveDate; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer ProtectionAct and all requests, rules, guidelines, requirements or directives thereunder or issued in connection therewith or in implementationthereof and (ii) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements,the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,adopted or issued.

 

“Class”, when used in referenceto any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are Dollar Loans or MulticurrencyLoans; when used in reference to any Lender, refers to whether such Lender is a Dollar Lender or a Multicurrency Lender; when usedin reference to any Subcommitment, refers to whether such Subcommitment is a Dollar Subcommitment or a Multicurrency Subcommitmentand, when used in reference to any Commitment, refers to whether such Commitment is a Dollar Commitment or a Multicurrency Commitment.

 

“Code” means the U.S. InternalRevenue Code of 1986, as amended from time to time.

 

“COF Rate” has the meaningassigned to such term in Section 2.12(a).

 

“Collateral” has the meaning,with respect to a Borrower, assigned to such term in the Guarantee and Security Agreement to which such Borrower is a party.

 

“Collateral Agent” means INGin its capacity as Collateral Agent under each Guarantee and Security Agreement, and includes any successor Collateral Agent undersuch Guarantee and Security Agreement.

 

 

 

“Collateral Pool” means, withrespect to a Borrower, at any time, each Portfolio Investment of such Borrower or any other member of its Obligor Group, as applicable,that has been Delivered (as defined in the Guarantee and Security Agreement to which such Borrower is a party) to the CollateralAgent and is subject to the Lien of the Guarantee and Security Agreement to which such Borrower is a party, and then only for solong as such Portfolio Investment of such Borrower or such other Obligor, continues to be Delivered as contemplated therein andin which the Collateral Agent has a first-priority perfected Lien as security for the Secured Obligations (as defined in such Guaranteeand Security Agreement) of such Borrower or such other Obligor (subject to any Lien permitted by Section 6.02 hereof); providedthat in the case of any Portfolio Investment of such Borrower or such other Obligor in which the Collateral Agent has a first-priorityperfected (other than, for a period of up to 7 days (or such longer period up to thirty (30) days as the Administrative Agent andthe Collateral Agent may agree in their respective sole discretion), customary rights of setoff, banker’s lien, securityinterest or other like right upon deposit accounts and securities accounts of such Obligor in which such Portfolio Investmentsare held) security interest pursuant to a valid Uniform Commercial Code filing, such Portfolio Investment may be includedin the Borrowing Base of the applicable Borrower so long as all remaining actions to complete “Delivery” are satisfiedin full within 7 days of such inclusion (or such longer period up to thirty (30) days as the Administrative Agent and the CollateralAgent may agree in their respective sole discretion).

 

“Combined Debt Amount” means,with respect to a Borrower, as of any date, (i) the aggregate amount of Subcommitments with respect to such Borrower as of suchdate (or, if greater the Revolving Credit Exposures of all Lenders with respect to such Borrower as of such date) plus (ii) theaggregate amount of outstanding Designated Indebtedness of such Borrower and, without duplication, the aggregate amount of unusedand available commitments of the holders of Designated Indebtedness of such Borrower to extend credit to such Borrower that willgive rise to Designated Indebtedness under the Guarantee and Security Agreement to which such Borrower is a party.

 

“Commitment” means, collectively,the Dollar Commitments and the Multicurrency Commitments.

 

“Commitment Increase” has themeaning assigned to such term in Section 2.07(e).

 

“Commitment Increase Date”has the meaning assigned to such term in Section 2.07(e).

 

“Commitment Termination Date”means August 9, 2022.

 

“Control” means the possession,directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether throughthe ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”have meanings correlative thereto.

 

 

 

“Controlled Foreign Corporation”means, with respect to any Person, (i) any Subsidiary which is a “controlled foreign corporation” of such Person(within the meaning of Section 957 of the Code) or any direct or indirect subsidiary of such a corporation, (ii) a directlyor indirectly owned subsidiary of such Person substantially all the assets of which consist of equity in Subsidiaries describedin clause (i) of this definition, or (iii) an entity treated as a partnership or as a disregarded entity for U.S. federalincome tax purposes that owns more than 65% of the voting stock of a Subsidiary described in clause (i) or (ii) ofthis definition.

 

“Covered Debt Amount” means,with respect to a Borrower, on any date, (a) all of the Revolving Credit Exposures of all Lenders to such Borrower on such dateplus (b) the aggregate amount of outstanding Other Secured Indebtedness of such Borrower and the other members of its Obligor Groupon such date plus (c) the aggregate amount of any Indebtedness of such Borrower and the other members of its Obligor Group incurredpursuant to Section 6.01(g) plus (d) the aggregate principal amount of (i) solely with respect to CCT (or any successor), the CCT2022 Notes, (ii) solely with respect to FSIC (or any successor), the FSIC Notes and (iii) with respect to each Borrower, all SpecialLonger-Term Unsecured Indebtedness of such Borrower and the other members of its Obligor Group, solely to the extent that suchCCT 2022 Notes, FSIC Notes and Special Longer-Term Unsecured Indebtedness, as applicable, are within 9 months prior to the scheduledmaturity or earlier redemption date of such Indebtedness plus (e) any portion of any Unsecured-Longer Term Indebtedness that issubject to a contractually scheduled amortization payment, other principal payment or redemption (other than any conversion intoPermitted Equity Interests) earlier than the scheduled maturity date of such Indebtedness, but only to the extent of such portionand beginning upon the date that is the later of (i) 9 months prior to such scheduled amortization payment, other principal paymentor redemption and (ii) the date such Borrower becomes aware that such Indebtedness is required to be paid or redeemed, plus (f)Hedging Agreement Obligations (as defined in the Guarantee and Security Agreement to which such Borrower is a party) (other thanHedging Agreement Obligations arising from Hedging Agreements entered into pursuant to Section 6.04(c)) minus (g) the LC Exposureswith respect to such Borrower fully cash collateralized on such date pursuant to Section 2.04(k) and the last paragraph of Section2.08(a) or otherwise backstopped in a manner satisfactory to the relevant Issuing Bank in its sole discretion.

 

“Credit Default Swap” meansany credit default swap entered into as a means to (i) invest in bonds, notes, loans, debentures or securities on a leveraged basisor (ii) hedge the default risk of bonds, notes, loans, debentures or securities.

 

“Currency” means Dollars orany Foreign Currency.

 

“Custodian” means, with respectto each Borrower, State Street Bank and Trust Company, or any other financial institution mutually agreeable to the CollateralAgent and such Borrower, as custodian holding documentation for Portfolio Investments, and accounts of such Borrower and/or anyother member of its Obligor Group holding Portfolio Investments, on behalf of such Borrower and/or such other Obligor or any successorin such capacity pursuant to the Custodian Agreement. The term “Custodian” includes any agent or sub-custodian actingon behalf of the Custodian.

 

 

 

“Custodian Agreement” means,so long as such agreement is in full force and effect, (a) with respect to CCT and the other members of its Obligor Group, theCustodian Agreement dated as of March 24, 2011, by and among CCT, the Custodian, the other members of CCT’s Obligor Groupfrom time to time party thereto and other parties from time to time party thereto, (b) with respect to FSIC and the other membersof its Obligor Group, the Custodian Agreement dated as of November 14, 2011, by and among FSIC, the Custodian, the other membersof FSIC’s Obligor Group from time to time party thereto and other parties from time to time party thereto, (c) with respectto FSIC II and the other members of its Obligor Group, the Custodian Agreement dated as of February 8, 2012, by and among FSICII, the Custodian, the other members of FSIC II’s Obligor Group from time to time party thereto and other parties from timeto time party thereto, (d) with respect to FSIC III and the other members of its Obligor Group, the Custodian Agreement dated asof January 6, 2014, by and among FSIC III, the Custodian, the other members of FSIC III’s Obligor Group from time to timeparty thereto and other parties from time to time party thereto and (e) with respect to any Borrower, any other custodian agreementby and among such Borrower, the Custodian, the other members of such Borrower’s Obligor Group from time to time party theretoand other parties from time to time party thereto in form and substance substantially similar to a Custodian Agreement describedin clauses (a) through (d) or otherwise reasonably acceptable to the Collateral Agent.

 

“Default” means, with respectto a Borrower, any event or condition which constitutes an Event of Default with respect to such Borrower or which upon notice,lapse of time or both would, unless cured or waived, become an Event of Default with respect to such Borrower.

 

“Defaulting Lender” means anyLender that has, as determined by the Administrative Agent, (a) failed to fund any portion of its Loans or participationsin Letters of Credit within two (2) Business Days of the date required to be funded by it hereunder, unless, in the case of anyLoan, such Lender notifies the Administrative Agent and the applicable Borrower in writing that such Lender’s failure isbased on such Lender’s reasonable determination that the conditions precedent to funding such Loan under this Agreement havenot been met, such conditions have not otherwise been waived in accordance with the terms of this Agreement and such Lender hasadvised the Administrative Agent and the applicable Borrower in writing (with reasonable detail of those conditions that have notbeen satisfied) prior to the time at which such funding was to have been made, (b) notified any Borrower, the AdministrativeAgent, the Issuing Bank or any Lender in writing that it does not intend to comply with its funding obligations hereunder, or hasmade a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to funda Loan hereunder and states that such position is based on such Lender’s commercially reasonable determination that one ormore conditions precedent to funding (which conditions precedent, together with any applicable default shall be specifically identifiedin such writing or such public statement) cannot be satisfied), (c) failed, within three (3) Business Days after request bythe Administrative Agent or any Borrower, to confirm in writing to the Administrative Agent and such Borrower that it will complywith the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Lettersof Credit (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of suchwritten confirmation by the Administrative Agent and such Borrower), (d) otherwise failed to pay over to the AdministrativeAgent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due,unless the subject of a good faith dispute, (e) other than via an Undisclosed Administration, (i) become or is insolvent orhas a parent company that has become or is insolvent, (ii) become the subject of a bankruptcy or insolvency proceeding, orhas had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganizationor liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consentto, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of abankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditorsor similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any actionin furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, (f) becomethe subject of a Bail-In Action or has a parent company that has become the subject of a Bail-In Action (unless in the case ofany Lender referred to in this clause (f) the Borrowers, the Administrative Agent and the Issuing Banks shall be satisfied in theexercise of their respective reasonable discretion that such Lender intends, and has all approvals required to enable it, to continueto perform its obligations as a Lender hereunder) or (g) a Lender is a GBSA Lender with respect to which a GBSA Initial Noticehas been given; provided that, for the avoidance of doubt, a Lender shall not be a Defaulting Lender solely by virtue of (i) theownership or acquisition of any equity interest in such Lender or any direct or indirect parent company thereof by a GovernmentalAuthority or (ii) in the case of a solvent Person, the precautionary appointment of an administrator, guardian, custodianor other similar official by a Governmental Authority under or based on the law of the country where such Person is subject tohome jurisdiction supervision if applicable law requires that such appointment not be publicly disclosed, in each case of clauses(i) and (ii), where such action does not result in or provide such Lender with immunity from the jurisdiction of courts withinthe United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such GovernmentalAuthority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.

 

 

 

“Designated Indebtedness” means,with respect to a Borrower, any Other Secured Indebtedness of such Borrower or any other member of its Obligor Group (including,without limitation, any prepayment penalty, premium, make-whole fee or similar amounts owed in connection with such indebtedness)that has been designated by such Borrower at the time of the incurrence thereof as, or is deemed to be by the Surviving Borrowerupon the consummation of a Borrower Merger, “Designated Indebtedness” pursuant to and for purposes of the Guaranteeand Security Agreement to which such Borrower is a party in accordance with the requirements of Section 6.01 thereof (regardlessof whether such Designated Indebtedness shall continue to constitute Other Secured Indebtedness).

 

“Designated Subsidiary” means:

 

(a)          (1) (i)with respect to CCT, CCT Tokyo Funding LLC and CCT New York Funding LLC, (ii) with respect to FSIC, Locust Street Funding LLC,(iii) with respect to FSIC II, Cooper River LLC, Darby Creek LLC, Juniata River LLC and Green Creek LLC and (iv) with respect toFSIC III, Center City Funding LLC, Burholme Funding LLC, Dunlap Funding LLC, Jefferson Square Funding LLC, Germantown Funding LLCand Society Hill Funding LLC and (2) with respect to any Borrower, any other direct or indirect Subsidiary of such Borrower orany other member of its Obligor Group designated by such Borrower as a “Designated Subsidiary”, which, in the caseof any entity in clause (1) or (2), meets the following criteria:

 

 

 

(i)       towhich such Borrower or any other member of its Obligor Group sells, conveys or otherwise transfers (whether directly or indirectly)Cash, Cash Equivalents or one or more Portfolio Investments, and which engages in no material activities other than in connectionwith the holding, purchasing and financing of one or more such assets;

 

(ii)       noportion of the Indebtedness or any other obligations (contingent or otherwise) of such Subsidiary (A) is Guaranteed by suchBorrower or such other Obligor (other than Guarantees in respect of Standard Securitization Undertakings), (B) is recourseto or obligates such Borrower or such other Obligor in any way other than pursuant to Standard Securitization Undertakings or (C) subjectsany property of such Borrower or such other Obligor (other than property that has been contributed or sold, purported to be soldor otherwise transferred to such Subsidiary or any equity of such Subsidiary), directly or indirectly, contingently or otherwise,to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings or any Guarantee thereof,

 

(iii)       withwhich no such Borrower or such other Obligor has any material contract, agreement, arrangement or understanding other than on termsno less favorable to such Borrower or such other Obligor, as applicable, than those that might be obtained at the time from Personsthat are not Affiliates of such Borrower or such other Obligor, other than fees payable in the ordinary course of business in connectionwith servicing receivables or financial assets, and

 

(iv)       towhich no such Borrower or such other Obligor has any obligation to maintain or preserve such entity’s financial conditionor cause such entity to achieve certain levels of operating results, other than pursuant to Standard Securitization Undertakings;

 

(b)          anypassive holding company that is designated by such Borrower (as provided below) as a Designated Subsidiary, so long as:

 

(i)        suchpassive holding company is the direct parent of a Designated Subsidiary referred to in clause (a);

 

(ii)       suchpassive holding company engages in no activities and has no assets (other than in connection with the transfer of assets to andfrom a Designated Subsidiary referred to in clause (a), and its ownership of all of the Equity Interests of a Designated Subsidiaryreferred to in clause (a)) or liabilities;

 

(iii)       allof the Equity Interests of such passive holding company are owned directly by such Borrower or such other Obligor and are pledgedas Collateral for the Secured Obligations (as defined in the Guarantee and Security Agreement to which such Borrower is a party)and the Collateral Agent has a first-priority perfected Lien (subject to no other Liens other than Liens permitted under Section6.02) on such Equity Interests;

 

(iv)       nosuch Borrower or such other Obligor has any contract, agreement, arrangement or understanding with such passive holding company;and

 

 

 

(v)       nosuch Borrower or such other Obligor has any obligation to maintain or preserve such passive holding company’s financial conditionor cause such entity to achieve certain levels of operating results; or

 

(c)          anySBIC Subsidiary of such Borrower or such other Obligor.

 

Any such designation under clause (a)(2) or (b) above by such Borrowershall be effected pursuant to a certificate of a Financial Officer of such Borrower delivered to the Administrative Agent, whichcertificate shall include a statement to the effect that, to the best of such officer’s knowledge, such designation compliedwith the foregoing conditions set forth in clause (a)(2) or (b), as applicable. Each Subsidiary of a Designated Subsidiaryshall be deemed to be a Designated Subsidiary and shall comply with the foregoing requirements of this definition. The partieshereby agree that the Subsidiaries identified as Designated Subsidiaries on Schedule III hereto shall each constitute a DesignatedSubsidiary so long as they comply with the foregoing requirements of this definition. Upon the consummation of a Borrower Merger,any Designated Subsidiary (if any) of a Non-Surviving Borrower shall be automatically deemed a Designated Subsidiary of the SurvivingBorrower without the delivery of a certificate of a Financial Officer of such Surviving Borrower so long as such Designated Subsidiarycontinues to satisfy the criteria of a “Designated Subsidiary”.

 

“Disqualified Equity Interests”means, with respect to a Borrower, stock of such Borrower (including, for the avoidance of doubt, any Permitted Equity Interest)that after its issuance is subject to any agreement between the holder of such stock and such Borrower where such Borrower is requiredto purchase, redeem, retire, acquire, cancel or terminate all such stock, other than (x) as a result of a change of control orasset sale or (y) in connection with any purchase, redemption, retirement, acquisition, cancellation or termination with, or inexchange for, shares of stock.

 

“Disqualified Lender” means(i) those Persons that have been identified by any Borrower in writing to the Administrative Agent on or prior to the EffectiveDate, (ii) any Person that is identified by any Borrower in writing to the Administrative Agent and approved by the AdministrativeAgent (such approval not to be unreasonably withheld or delayed) and (iii) Affiliates of any Person identified in clauses (i) or(ii) above that are either identified in writing to the Administrative Agent by any Borrower from time to time or readily identifiablesolely based on similarity of such Affiliate’s name. The identification of a Disqualified Lender after the Effective Dateshall not apply to retroactively disqualify any Person that has previously acquired an assignment or participation interest inany Loan or Commitment (or any Person that, prior to such identification, has entered into a bona fide and binding trade for eitherof the foregoing and has not yet acquired such assignment or participation); provided, that any designation of a Personas a Disqualified Lender shall not be effective until the Business Day after written notice thereof by the applicable Borrowerto the Administrative Agent in accordance with the next succeeding sentence. Any supplement or other modification to the list ofPersons identified as Disqualified Lenders shall be e-mailed to the Administrative Agent at JPMDQcontact@JPMorgan.com.

 

“Documentation Agent” meanseach of Bank of Montreal and SunTrust Bank.

 

 

 

“Dollar Commitment” means,with respect to each Dollar Lender, the sum of all of such Dollar Lender’s Dollar Subcommitments. The aggregate amount ofeach Lender’s Dollar Commitment is set forth on Schedule I or in the Assignment and Assumption pursuant to which suchLender shall have assumed its Dollar Commitment, as applicable. The aggregate amount of the Lenders’ Dollar Commitments asof the Effective Date is $550,000,000.

 

“Dollar Equivalent” means,for any amount, at the time of determination thereof, (a) if such amount is expressed in dollars, such amount, (b) if such amountis expressed in an Agreed Foreign Currency, the equivalent of such amount in dollars determined by using the rate of exchange forthe purchase of dollars with the Agreed Foreign Currency in the London foreign exchange market at or about 11:00 a.m. London time(or New York time, as applicable) on a particular day as displayed by ICE Data Services as the “ask price”, or as displayedon such other information service which publishes that rate of exchange from time to time in place of ICE Data Services (or ifsuch service ceases to be available, the equivalent of such amount in dollars as determined by the Administrative Agent using anymethod of determination it deems reasonably appropriate in its sole discretion) and (c) if such amount is denominated in any othercurrency, the equivalent of such amount in dollars as determined by the Administrative Agent using any method of determinationit deems reasonably appropriate in its sole discretion.

 

“Dollar Lender” means the Personslisted on Schedule I as having Dollar Subcommitments and any other Person that shall have become a party hereto pursuant toan Assignment and Assumption that provides for it to assume Dollar Subcommitments or to acquire Revolving Dollar Credit Exposure,other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption or otherwise in accordancewith the terms hereof.

 

“Dollar Loan” means, with respectto a Borrower, a Loan denominated in Dollars made to such Borrower by a Dollar Lender.

 

“Dollars” or “$”refers to lawful money of the United States of America.

 

“Dollar Subcommitment” means,with respect to each Dollar Lender and each Borrower, the commitment of such Dollar Lender to make Loans to such Borrower denominatedin Dollars hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving DollarCredit Exposure permitted hereunder with respect to such Borrower, as such commitment may be (a) reduced, increased or reallocatedfrom time to time pursuant to Section 2.07 or reduced from time to time pursuant to Section 2.09 or as otherwise providedin this Agreement and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant toSection 9.04. The aggregate amount of each Lender’s Dollar Subcommitment with respect to each Borrower is set forthon Schedule I.

 

“Domestic Subsidiary” means,with respect to any Person, any Subsidiary of such Person other than a Controlled Foreign Corporation.

 

“EEA Financial Institution”means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority,(b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition,or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or(b) of this definition and is subject to consolidated supervision with its parent.

 

 

 

“EEA Member Country” meansany of the member states of the European Union, Iceland, Liechtenstein, and Norway.

 

“EEA Resolution Authority”means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country(including any delegee) having responsibility for the resolution of any EEA Financial Institution.

 

“Effective Date” means thedate on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

 

“Equity Interests” means sharesof capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust orother equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchaseor acquire any such equity interest. As used in this Agreement, “Equity Interests” shall not include convertible debtunless and until such debt has been converted to capital stock.

 

“ERISA” means the U.S. EmployeeRetirement Income Security Act of 1974, as amended from time to time.

 

“ERISA Affiliate” means, withrespect to a Borrower, any trade or business (whether or not incorporated) that, together with such Borrower, is treated as a singleemployer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412of the Code, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

 

“ERISA Event” means, with respectto a Borrower, (a) any “reportable event,” as defined in Section 4043(c) of ERISA with respect to a Plan(other than an event for which the 30-day notice period is waived); (b) any failure by any Plan to satisfy the minimumfunding standards (set forth in Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA) applicableto such Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) ofERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by suchBorrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan(other than premiums due and not delinquent under Section 4007 of ERISA); (e) the receipt by such Borrower or any of its ERISAAffiliates from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan under Section 4041(c)of ERISA or to appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the incurrence by such Borroweror any of its ERISA Affiliates of any liability with respect to a withdrawal from a Plan subject to Section 4063 of ERISAduring a plan year in which it was a “substantial employer” (as defined in Section 4001(a)(2) of ERISA), a cessationof operations that is treated as such a withdrawal under Section 4062(e) of ERISA or a “complete withdrawal” or “partial withdrawal” (within the meanings of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan;or (g) the receipt by such Borrower or any of its ERISA Affiliates of any notice from any Multiemployer Plan concerning theimposition of Withdrawal Liability on such Borrower or any of its ERISA Affiliates or a determination that a Multiemployer Planis “insolvent” (within the meaning of Section 4245 of ERISA) or in “reorganization” (within the meaningof Section 4241 of ERISA).

 

 

 

“EU Bail-In Legislation Schedule”means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect fromtime to time.

 

“Euro” refers to the lawfulmoney of the Participating Member States.

 

“Eurocurrency”, when used inreference to any Loan or Borrowing, refers to whether such Loan is, or the Loans constituting such Borrowing are, denominated inDollars or an Agreed Foreign Currency and are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

“Eurocurrency Rate” means,with respect to (A) any Eurocurrency Borrowing in any LIBOR Quoted Currency and for any applicable Interest Period, the LIBOR ScreenRate as of the Specified Time on the Quotation Day for such LIBOR Quoted Currency and Interest Period and (B) any EurocurrencyBorrowing in any Non-LIBOR Quoted Currency and for any applicable Interest Period, the applicable Local Rate as of the SpecifiedTime and on the Quotation Day for such Non-LIBOR Quoted Currency and Interest Period; provided that, if the applicable ScreenRate shall not be available for such Interest Period and/or for the applicable Currency with respect to such Eurocurrency Borrowingfor any reason, then the rate determined in accordance with Section 2.12 shall be the Eurocurrency Rate for such Interest Periodfor such Eurocurrency Borrowing, and provided further, that, if the Eurocurrency Rate shall be less than zero, such rateshall be deemed to be zero for purposes of this Agreement.

 

“Event of Default” has themeaning assigned to such term in Article VII.

 

“Excluded Assets” means, withrespect to a Borrower, entities identified as Excluded Assets in Schedule VII hereto, any CDO Securities and finance lease obligations,Designated Subsidiaries, and any similar assets or entities, in each case, in which such Borrower or any other member of its ObligorGroup holds an interest on or after the Effective Date, and, in each case, their respective Subsidiaries, unless, in the case ofany such asset or entity, such Borrower designates in writing to the Collateral Agent that such asset or entity is not to be anExcluded Asset. Upon the consummation of a Borrower Merger, any Excluded Asset (if any) of a Non-Surviving Borrower shall be automaticallydeemed an Excluded Asset of the Surviving Borrower so long as such Excluded Asset continues to satisfy the criteria of an “ExcludedAsset”.

 

 

 

“Excluded Taxes” means, withrespect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on accountof any obligation of any Borrower hereunder, (a) Taxes imposed on (or measured by) its net income, franchise taxes and branchprofits taxes, in each case (i) imposed by the United States of America, or by the jurisdiction (or any political subdivision thereof)under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender,in which its applicable lending office is located, or (ii) that are Other Connection Taxes, (b) in the case of a Lender (otherthan an assignee pursuant to a request by such Borrower under Section 2.19(b)), any U.S. withholding tax that is imposed onamounts payable to such Lender at the time such Lender becomes a party to this Agreement (or designates a new lending office),except to the extent that such Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office(or assignment), to receive additional amounts from such Borrower with respect to such U.S. withholding tax pursuant to Section 2.16(a),(c) any U.S. withholding Taxes imposed under FATCA and (d) any Tax imposed as a result of the Administrative Agent’s,such Lender’s or such Issuing Bank’s failure or inability to comply with Section 2.16(e), (f) or (g).

 

“Existing CCT Revolving Credit Agreement”means that certain Amended and Restated Senior Secured Revolving Credit Agreement, dated as of April 15, 2016, by and among CCT,the lenders party thereto and JPMCB, in its capacity as administrative agent thereunder, as amended, amended and restated, supplementedor otherwise modified from time to time prior to the date hereof.

 

“Existing CCT Term Loan Agreement”means that certain Senior Secured Term Loan Credit Agreement, dated as of May 20, 2014, by and among CCT, the lenders party theretoand JPMCB, in its capacity as administrative agent thereunder, as amended, amended and restated, supplemented or otherwise modifiedfrom time to time prior to the date hereof.

 

“Existing Credit Agreements”means, collectively, the Existing CCT Revolving Credit Agreement, the Existing CCT Term Loan Agreement, the Existing FSIC RevolvingCredit Agreement and the Existing FSIC II Revolving Credit Agreement.

 

“Existing FSIC Revolving Credit Agreement”means that certain Senior Secured Revolving Credit Agreement, dated as of April 3, 2014, by and among FSIC, the lenders party theretoand ING, in its capacity as administrative agent thereunder, as amended, amended and restated, supplemented or otherwise modifiedfrom time to time prior to the date hereof.

 

“Existing FSIC II Revolving Credit Agreement”means that certain Senior Secured Revolving Credit Agreement, dated as of February 23, 2016, by and among FSIC II, the lendersparty thereto and ING, in its capacity as administrative agent thereunder, as amended, amended and restated, supplemented or otherwisemodified from time to time prior to the date hereof.

 

“Extraordinary Receipts” means,with respect to a Borrower any cash received by or paid to or for the account of such Borrower or any other member of its ObligorGroup not in the ordinary course of business, including any foreign, United States, state or local tax refunds, pension plan reversions,judgments, proceeds of settlements or other consideration of any kind in connection with any cause of action, condemnation awards(and payments in lieu thereof), indemnity payments and any purchase price adjustment received in connection with any purchase agreementand proceeds of insurance (excluding, however, for the avoidance of doubt, proceeds of any issuance of Equity Interests by suchBorrower or proceeds of any Asset Sale of, Return of Capital received by or issuances of Indebtedness by such Borrower or any suchother Obligor); provided, however*,*that Extraordinary Receipts shall not include any (v) taxes paid or reasonablyestimated to be payable by such Borrower or such other Obligor as a result of such cash receipts (after taking into account anyavailable tax credits or deductions), (w) amounts that such Borrower or such other Obligor receives from the Administrative Agentor any Lender pursuant to Section 2.16(h), (x) cash receipts to the extent received from proceeds of insurance, condemnation awards(or payments in lieu thereof), indemnity payments or payments in respect of judgments or settlements of claims, litigation or proceedingsto the extent that such proceeds, awards or payments are received by any Person in respect of any unaffiliated third party claimagainst or loss by such Person and promptly applied to pay (or to reimburse such Person for its prior payment of) such claim orloss and the costs and expenses of such Person with respect thereto, (y) any costs, fees, commissions, premiums and expenses incurredby such Borrower or such other Obligor directly incidental to such cash receipts, including reasonable legal fees and expensesor (z) proceeds of business interruption insurance to the extent such proceeds constitute compensation for lost earnings.

 

 

 

“Facility Termination Date”means, the date on which (a) the Commitments have expired or been terminated, (b) the principal of and accrued interest on eachLoan and all fees and other amounts payable hereunder (other than Unasserted Contingent Obligations) shall have been paid in full,(c) all Letters of Credit shall have (w) expired, (x) terminated, (y) been cash collateralized or (z) otherwise been backstoppedin a manner satisfactory to the relevant Issuing Bank in its sole discretion and (d) all LC Disbursements then outstanding shallhave been reimbursed.

 

“FATCA” means Sections 1471through 1474 of the Code, as of the Effective Date (or any amended or successor version that is substantively comparable andnot materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreementsentered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adoptedpursuant to any published intergovernmental agreement entered into in connection with the implementation of such sections of theCode.

 

“Federal Funds Effective Rate”means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions,as determined in such manner as the NYFRB shall set forth on its public website from time to time, and published on the next succeedingBusiness Day by the NYFRB as the federal funds effective rate; provided that if the Federal Funds Effective Rate shall beless than zero, the Federal Funds Effective Rate shall be deemed to be zero for purposes of this Agreement.

 

“Financial Officer” means,with respect to a Borrower, the chief executive officer, chief operating officer, president, co-president, chief financial officer,principal accounting officer, chief accounting officer, treasurer, assistant treasurer, controller, assistant controller, chieflegal officer or chief compliance officer of such Borrower.

 

“First Lien Bank Loan” hasthe meaning assigned to such term in Section 5.13.

 

“Foreign Currency” means atany time any Currency other than Dollars.

 

 

 

“Foreign Currency Equivalent”means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable ForeignCurrency as determined by the Administrative Agent or the applicable Issuing Bank, as the case may be, at such time on the basisof the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Foreign Currency with Dollars.

 

“Foreign Lender” means anyLender or Issuing Bank that is not a “United States person” as defined under Section 7701(a)(30) of the Code.

 

“FSIC” means FS InvestmentCorporation, a Maryland corporation.

 

“FSIC 2019 Notes” means, withrespect to FSIC (or any successor), its 4.00% senior unsecured notes due on July 15, 2019.

 

“FSIC 2020 Notes” means, withrespect to FSIC (or any successor), its 4.25% senior unsecured notes due on January 15, 2020.

 

“FSIC 2022 Notes” means, withrespect to FSIC (or any successor), its 4.75% senior unsecured notes due on May 15, 2022.

 

“FSIC II” means FSInvestment Corporation II, a Maryland corporation.

 

“FSIC III” means FS InvestmentCorporation III, a Maryland corporation.

 

“FS/KKR Advisor” means FS/KKRAdvisor, LLC, a Delaware limited liability company, or any of its Affiliates.

 

“FSIC Notes” means, with respectto FSIC (or any successor), collectively, the FSIC 2019 Notes, the FSIC 2020 Notes and the FSIC 2022 Notes.

 

“GAAP” means generally acceptedaccounting principles in the United States of America.

 

“Governmental Authority” meansthe government of the United States of America, or of any other nation, or any political subdivision thereof, whether state orlocal, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-nationalbody exercising such powers or functions, such as the European Union or the European Central Bank).

 

“Guarantee” of or by any Person(the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having theeconomic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchaseor pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or toadvance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securitiesor services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) tomaintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as toenable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letterof credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shallnot include endorsements for collection or deposit in the ordinary course of business or customary indemnification agreements enteredinto in the ordinary course of business in connection with obligations that do not constitute Indebtedness. The amount of any Guaranteeat any time shall be deemed to be an amount equal to the maximum stated or determinable amount of the primary obligation in respectof which such Guarantee is incurred, unless the terms of such Guarantee expressly provide that the maximum amount for which suchPerson may be liable thereunder is a lesser amount (in which case the amount of such Guarantee shall be deemed to be an amountequal to such lesser amount).

 

 

 

“Guarantee and Security Agreement”means, (i) with respect to CCT, that certain Guarantee and Security Agreement dated as of the Effective Date, among CCT, the othermembers of its Obligor Group, the Administrative Agent, each holder (or a representative or trustee therefor) from time to timeof any Designated Indebtedness of CCT, and the Collateral Agent, (ii) with respect to FSIC, that certain Guarantee and SecurityAgreement dated as of the Effective Date, among FSIC, the other members of its Obligor Group, the Administrative Agent, each holder(or a representative or trustee therefor) from time to time of any Designated Indebtedness of FSIC, and the Collateral Agent, (iii)with respect to FSIC II, that certain Guarantee and Security Agreement dated as of the Effective Date, among FSIC II, the othermembers of its Obligor Group, the Administrative Agent, each holder (or a representative or trustee therefor) from time to timeof any Designated Indebtedness of FSIC II, and the Collateral Agent, (iv) with respect to FSIC III, that certain Guarantee andSecurity Agreement dated as of the Effective Date, among FSIC III, the other members of its Obligor Group, the Administrative Agent,each holder (or a representative or trustee therefor) from time to time of any Designated Indebtedness of FSIC III, and the CollateralAgent, in each case, as the same shall be amended, restated, modified and supplemented from time to time and (v) with respect toany “Borrower” designated hereunder pursuant to Section 9.19, a guarantee and security agreement by and among suchBorrower, the other members of its Obligor Group, the Administrative Agent, each holder (or a representative or trustee therefor)from time to time of any Designated Indebtedness of such Borrower, and the Collateral Agent, in form and substance substantiallysimilar to a Guarantee and Security Agreement described in clauses (a) through (d) or otherwise reasonably acceptable to the AdministrativeAgent and the Collateral Agent.

 

“Guarantee Assumption Agreement”means, with respect to a Borrower, a Guarantee Assumption Agreement substantially in the form of Exhibit B to the Guaranteeand Security Agreement (or such other form as is approved by the Collateral Agent) to which such Borrower is a party, between theCollateral Agent and an entity that, pursuant to Section 5.08 is required to become a “Subsidiary Guarantor” undersuch Guarantee and Security Agreement (with such changes as the Collateral Agent shall request, consistent with the requirementsof Section 5.08).

 

“Hedging Agreement” means anyinterest rate protection agreement, Credit Default Swap, total return swap, foreign currency exchange protection agreement, commodityprice protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

 

 

 

“High Yield Securities” hasthe meaning assigned to such term in Section 5.13.

 

“Immaterial Subsidiary” means,with respect to any Borrower, any direct or indirect Subsidiary of such Borrower or any other member of its Obligor Group thatowns (A) legally or beneficially, together with all other Immaterial Subsidiaries of such Borrower, assets, which in the aggregatehave a value not in excess of the lesser of (a) the product of (i) $25,000,000 multiplied by (ii) the sum of one plus the numberof Borrower Mergers effected by such Obligor Group on or after the Effective Date and (b) $50,000,000 and, in each case, theirrespective Subsidiaries, or (B) that primarily owns portfolio investments (other than Portfolio Investments) that are RestrictedEquity Interests, unless, in the case of any such Subsidiary, such Borrower designates in writing to the Collateral Agent thatsuch Subsidiary is not to be an Immaterial Subsidiary and that such Borrower will comply with the requirements of Section 5.08with respect to such Subsidiary. Upon the consummation of a Borrower Merger, any Immaterial Subsidiary (if any) of a Non-SurvivingBorrower shall be automatically deemed an Immaterial Subsidiary of the Surviving Borrower so long as such Immaterial Subsidiarycontinues to satisfy the criteria of an “Immaterial Subsidiary”.

 

“Increasing Lender” has themeaning assigned to such term in Section 2.07(e).

 

“Indebtedness” of any Personmeans, without duplication, (a) (i) all obligations of such Person for borrowed money or (ii) with respect to deposits oradvances of any kind that are required to be accounted for under GAAP as a liability on the financial statements of such Person(other than deposits received in connection with a portfolio investment (including Portfolio Investments) of such Person in theordinary course of such Person’s business (including, but not limited to, any deposits or advances in connection with expensereimbursement, prepaid agency fees, other fees, indemnification, work fees, tax distributions or purchase price adjustments)),(b) all obligations of such Person evidenced by bonds, debentures, notes or similar debt instruments, (c) all obligationsof such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) allobligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable and accruedexpenses incurred in the ordinary course of business), (e) all Indebtedness of others secured by any Lien (other than a Lienpermitted by Section 6.02(c)) on property owned or acquired by such Person, whether or not the Indebtedness secured thereby hasbeen assumed (with the value of such debt being the lower of the outstanding amount of such debt and the fair market value of theproperty subject to such Lien), (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligationsof such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters ofcredit and letters of guaranty, (i) all obligations, contingent or otherwise, of such Person in respect of bankers’acceptances and (j) all Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of anyother entity (including any partnership in which such Person is a general partner) to the extent such Person is liable thereforas a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the termsof such Indebtedness provide that such Person is not liable therefor. Notwithstanding the foregoing, “Indebtedness”shall not include (v) indebtedness of such Person on account of the sale by such Person of the first out tranche of any First LienBank Loan that arises solely as an accounting matter under ASC 860, (w) purchase price holdbacks arising in the ordinary courseof business in respect of a portion of the purchase price of an asset or Investment to satisfy unperformed obligations of the sellerof such asset or Investment, (x) a commitment arising in the ordinary course of business to make a future portfolio investment(including Portfolio Investments) or fund the delayed draw or unfunded portion of any existing portfolio investment (includingPortfolio Investments), (y) any accrued incentive, management or other fees to an investment manager or its affiliates (regardlessof any deferral in payment thereof), or (z) non-recourse liabilities for participations sold by any Person in any Bank Loan.

 

 

 

“Indemnified Taxes” means,with respect to a Borrower, (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or onaccount of any obligation of such Borrower under any Loan Document to which such Borrower or any other member of its Obligor Groupis a party and (b) to the extent not otherwise described in (a), Other Taxes.

 

“Independent Valuation Provider”means an independent third-party valuation firm, including, Murray, Devine & Co., Houlihan Lokey, Duff & Phelps, LincolnAdvisors, Valuation Research Corporation, Alvarez & Marsal and any other independent nationally recognized third-party valuationfirm selected by the Collateral Agent and reasonably acceptable to the applicable Borrower and the Administrative Agent.

 

“Industry Classification Group”means, with respect to a Borrower, (a) any of the Moody’s classification groups set forth in Schedule V hereto,together with any such classification groups that may be subsequently established by Moody’s and provided by any Borrowerto the Lenders and (b) any additional industry group classifications established by any Borrower pursuant to Section 5.12.

 

“ING” means ING Capital LLC.

 

“Interest Election Request”means, with respect to a Borrower, a request by such Borrower to convert or continue a Borrowing by such Borrower in accordancewith Section 2.06 substantially in the form of Exhibit F or such other form as is reasonably acceptable to the AdministrativeAgent.

 

“Interest Payment Date” means,with respect to a Borrower, (a) with respect to any ABR Loan of such Borrower, each Quarterly Date and (b) with respectto any Eurocurrency Loan of such Borrower, the last day of each Interest Period therefor and, in the case of any Interest Periodof more than three months’ duration, each day prior to the last day of such Interest Period that occurs at three-month intervalsafter the first day of such Interest Period.

 

 

 

“Interest Period” means, withrespect to a Borrower, with respect to any Eurocurrency Borrowing made to such Borrower, the period commencing on the date of suchBorrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter,or, with respect to such portion of any Loan or Borrowing made to such Borrower that is scheduled to be repaid on the MaturityDate, a period of less than one month’s duration commencing on the date of such Loan or Borrowing and ending on the MaturityDate, as specified in the applicable Borrowing Request or Interest Election Request, as such Borrower may elect; provided, thatany Interest Period (other than an Interest Period that ends on the Maturity Date that is permitted to be of less than one month’sduration as provided in this definition) (i) that would end on a day other than a Business Day shall be extended to the next succeedingBusiness Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Periodshall end on the next preceding Business Day and (ii) pertaining to a Eurocurrency Borrowing that commences on the last BusinessDay of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such InterestPeriod) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date ofa Borrowing initially shall be the date on which such Loan is made and, thereafter, shall be the effective date of the most recentconversion or continuation of such Loan, and the date of a Borrowing comprising Loans that have been converted or continued shallbe the effective date of the most recent conversion or continuation of such Loans.

 

“Interpolated Rate” means,at any time, for any Interest Period, the rate *per annum* (rounded to the same number of decimal places as the applicableScreen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error)to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Screen Rate for the longestperiod for which the applicable Screen Rate is available for the applicable currency) that is shorter than the Impacted InterestPeriod; and (b) the applicable Screen Rate for the shortest period (for which that applicable Screen Rate is available for theapplicable currency) that exceeds the Impacted Interest Period, in each case, at such time.

 

“Investment” means, for anyPerson: (a) Equity Interests, bonds, notes, debentures or other securities of any other Person or any agreement to acquireany Equity Interests, bonds, notes, debentures or other securities of any other Person (including any “short sale”or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) deposits,advances, loans or other extensions of credit made to any other Person (including purchases of property from another Person subjectto an understanding or agreement, contingent or otherwise, to resell such property to such Person, but excluding any advances toemployees, officers, directors and consultants of such Borrower or any of its Subsidiaries for travel, entertainment, businessand moving expenses and other similar expenses in the ordinary course of business); or (c) Hedging Agreements.

 

“Investment Company Act” meansthe Investment Company Act of 1940, as amended from time to time.

 

“Investment Policies” has themeaning assigned to such term in Section 3.11(c).

 

“Issuing Bank” means, withrespect to a Borrower, the entities set forth on Schedule I (as amended from time to time pursuant to Section 2.07), in their respectivecapacities as issuers of Letters of Credit hereunder on behalf of such Borrower, and their respective successors in such capacityas provided in Section 2.04(j) (including pursuant to a Borrower Merger).

 

 

 

“Joinder Agreement” means ajoinder agreement, substantially in the form of Exhibit H or such other form as is reasonably acceptable to the AdministrativeAgent.

 

“Joint Lead Arrangers” meansJPMCB, ING, BMOCM and STRH.

 

“JPMCB” means JPMorgan ChaseBank, N.A.

 

“LC Disbursement” means, withrespect to a Borrower, a payment made by an Issuing Bank pursuant to a Letter of Credit issued by it on behalf of such Borrower.

 

“LC Exposure” means, with respectto a Borrower, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit issued on behalfof such Borrower at such time (including any Letter of Credit intended to be issued on behalf of such Borrower for which a drafthas been presented to such Borrower but not yet honored by the applicable Issuing Bank) plus (b) the aggregate amountof all LC Disbursements with respect to such Borrower in respect of such Letters of Credit that have not yet been reimbursed byor on behalf of such Borrower at such time. The LC Exposure of any Lender with respect to a Borrower at any time shall be suchLender’s Applicable Multicurrency Percentage of the total LC Exposure with respect to such Borrower at such time. Unlessotherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letterof Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or any document relatedthereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall bedeemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not suchmaximum stated amount is in effect at such time.

 

“Lenders” means, collectively,the Dollar Lenders and the Multicurrency Lenders.

 

“Letter of Credit” means, withrespect to a Borrower, any letter of credit issued on behalf of such Borrower pursuant to this Agreement.

 

“Letter of Credit Collateral Account”has the meaning assigned to such term in Section 2.04(k).

 

“Letter of Credit Documents”means, with respect to any Letter of Credit, collectively, any application therefor and any other agreements, instruments, guaranteesor other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) therights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any collateral securityfor any of such obligations, each as the same may be modified and supplemented and in effect from time to time.

 

“LIBOR” means, for any Currency,the rate at which deposits denominated in such Currency are offered to leading banks in the London interbank market (or, in thecase of Pounds Sterling, in the eurocurrency market).

 

“LIBOR Quoted Currency” meansDollars, Euros and Pounds Sterling, in each case so long as there is a published LIBOR Screen Rate with respect thereto.

 

 

 

“LIBOR Screen Rate” means,for any Interest Period, in the case of any Eurocurrency Borrowing denominated in a LIBOR Quoted Currency, the London interbankoffered rate administered by the ICE Benchmark Administration (or any other Person that takes over the administration of such rate)for such LIBOR Quoted Currency for a period equal in length to such Interest Period as displayed on pages LIBOR01 or LIBOR02 ofthe Reuters screen or, in the event such rate does not appear on either of such Reuters pages, on any successor or substitute pageon such screen that displays such rate, or on the appropriate page of such other information service that publishes such rate asshall be selected by the Administrative Agent from time to time in its reasonable discretion; provided that, if the LIBORScreen Rate so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

 

“Lien” means, with respectto any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, onor of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retentionagreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such assetand (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities(other than on market terms at fair value so long as in the case of any portfolio investment (including Portfolio Investments),the Value used in determining any applicable Borrowing Base is not greater than the call price), except in favor of the issuerthereof (and, for the avoidance of doubt, in the case of Investments that are loans or other debt obligations, customary restrictionson assignments or transfers thereof pursuant to the underlying documentation of such Investment shall not be deemed to be a “Lien”and, in the case of portfolio investments (including Portfolio Investments) that are equity securities, excluding customary drag-along,tag-along, right of first refusal, restrictions on assignments or transfers and other similar rights in favor of other equity holdersof the same issuer).

 

“Listed Borrower” means eachBorrower listed on any nationally recognized securities exchange in the United States. As of the Effective Date, CCT and FSIC arethe only Listed Borrowers.

 

“Loan Documents” means, withrespect to a Borrower, collectively, this Agreement, the Letter of Credit Documents to which such Borrower or any other memberof its Obligor Group is a party and the Security Documents to which such Borrower or any other member of its Obligor Group is aparty.

 

“Loans” means, with respectto a Borrower, the loans made by the Lenders to such Borrower pursuant to Section 2.01.

 

“Local Rate” means (i) forLoans or Letters of Credit in AUD, the AUD Rate, (ii) for Loans or Letters of Credit in Canadian Dollars, the CDOR Screen Rateand (iii) for Loans or Letters of Credit in NZD, the NZD Rate.

 

“Local Screen Rate” means theCDOR Screen Rate, the AUD Screen Rate and the NZD Screen Rate.

 

 

 

“Local Time” means, with respectto any Loan denominated in or any payment to be made in any Currency, the local time in the Principal Financial Center for theCurrency in which such Loan is denominated or such payment is to be made.

 

“Long-Term U.S. Government Securities”has the meaning assigned to such term in Section 5.13.

 

“Margin Stock” means “marginstock” within the meaning of Regulations T, U and X of the Board of Governors of the Federal Reserve System.

 

“Material Adverse Effect” means,with respect to a Borrower, a material adverse effect on (a) the business, Portfolio Investments and other assets, liabilitiesand financial condition, in each case, of such Borrower and its Subsidiaries (taken as a whole) (excluding in any case a declinein the net asset value of such Borrower or such other Subsidiaries or a change in general market conditions or values of the PortfolioInvestments of such Borrower and its Subsidiaries (taken as a whole)), or (b)  as it relates to such Borrower, the validityor enforceability of any of the Loan Documents to which such Borrower and any other member of its Obligor Group is a party or therights or remedies of the Administrative Agent and the Lenders thereunder.

 

“Material Indebtedness” means,with respect to a Borrower, any Indebtedness (other than the Loans and Letters of Credit) and obligations in respect of oneor more Hedging Agreements of any one or more of such Borrower and its Subsidiaries in an aggregate outstanding amount equal tothe product of (a) $50,000,000 multiplied by (b) the sum of one plus the number of Borrower Mergers effected by such Obligor Groupon or after the Effective Date. For purposes of this definition, the outstanding amount of any Indebtedness shall refer to theprincipal amount thereof, the outstanding amount of any Hedging Agreement (other than a total return swap) shall refer to the amountthat would be required to be paid by such Person if such Hedging Agreement were terminated at such time (after giving effect toany netting agreement) and the outstanding amount of a total return swap shall refer to the notional amount thereof less any collateralposted in support thereof.

 

“Maturity Date” means August9, 2023.

 

“Merger Confirmation” means,with respect to a Surviving Borrower, a certificate of such Surviving Borrower, substantially the form attached as Exhibit I.

 

“Mezzanine Investments” hasthe meaning assigned to such term in Section 5.13.

 

“Modification Offer” means,with respect to a Borrower, to the extent required by the definition of Other Secured Indebtedness or Unsecured Longer-Term Indebtedness,an obligation that will be satisfied if at least 10 Business Days (or, such shorter period if 10 Business Days is not practicable)prior to the incurrence of such Other Secured Indebtedness by such Borrower or any other member of its Obligor Group or UnsecuredLonger-Term Indebtedness by such Borrower or such other Obligor, such Borrower shall have provided notice to the AdministrativeAgent of the terms thereof that do not satisfy the requirements for such type of Indebtedness set forth in the respective definitionsherein, which notice shall contain reasonable detail of the terms thereof and an unconditional offer by such Borrower to amendthis Agreement solely with respect to such Borrower to the extent necessary such that the financial covenants and events of default,as applicable, with respect to such Borrower in this Agreement shall be as restrictive to such Borrower as such provisions in suchOther Secured Indebtedness or Unsecured Longer-Term Indebtedness, as applicable. If any such Modification Offer is accepted bythe Required Lenders with respect to such Borrower within 10 Business Days of receipt of such offer, this Agreement shall be deemedautomatically amended solely with respect to such Borrower (and, upon the request of the Administrative Agent or the Required Lenders,such Borrower shall promptly enter into a written amendment evidencing such amendment), mutatis mutandis, solely to reflect allor some of such more restrictive financial covenants or events of default, in each case with respect to such Borrower, as electedby the Required Lenders.

 

 

 

“Moody’s” means Moody’sInvestors Service, Inc. or any successor thereto.

 

“Multicurrency Commitment”means, with respect to each Multicurrency Lender, the sum of all of such Multicurrency Lender’s Multicurrency Subcommitments.The aggregate amount of each Lender’s Multicurrency Commitment is set forth on Schedule I, or in the Assignment andAssumption pursuant to which such Lender shall have assumed its Multicurrency Commitment, as applicable. The aggregate amount ofthe Lenders’ Multicurrency Commitments as of the Effective Date is $2,885,000,000.

 

“Multicurrency Lender” meansthe Persons listed on Schedule I as having Multicurrency Subcommitments and any other Person that shall have become a partyhereto pursuant to an Assignment and Assumption that provides for it to assume a Multicurrency Subcommitment or to acquire RevolvingMulticurrency Credit Exposure, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumptionor otherwise in accordance with the terms hereof.

 

“Multicurrency Loan” means,with respect to a Borrower, a Loan denominated in Dollars or in an Agreed Foreign Currency made to such Borrower under the MulticurrencySubcommitments with respect to such Borrower.

 

“Multicurrency Subcommitment”means, with respect to each Multicurrency Lender and each Borrower, the commitment of such Multicurrency Lender to make Loans tosuch Borrower, and to acquire participations in Letters of Credit issued on behalf of such Borrower denominated in Dollars andin Agreed Foreign Currencies hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’sRevolving Multicurrency Credit Exposure hereunder with respect to such Borrower, as such commitment may be (a) reduced, increasedor reallocated from time to time pursuant to Section 2.07 or reduced from time to time pursuant to Section 2.09 or as otherwiseprovided in this Agreement and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuantto Section 9.04. The aggregate amount of each Lender’s Multicurrency Subcommitment with respect to each Borrower isset forth on Schedule I.

 

“Multiemployer Plan” means,with respect to a Borrower, a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which such Borroweror any of its ERISA Affiliates makes any contributions.

 

 

 

“National Currency” means thecurrency, other than the Euro, of a Participating Member State.

 

“Net Asset Sale Proceeds” means,with respect to a Borrower and with respect to any Asset Sale of such Borrower, an amount equal to (i) the sum of Cash paymentsand Cash Equivalents received by such Borrower and the other members of its Obligor Group from such Asset Sale (including any Cashor Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, butonly as and when so received), minus (ii) (w) payments of unassumed liabilities relating to the assets sold or otherwisedisposed of at the time, or within 30 days after, the date of such Asset Sale, (x) any costs, fees, commissions, premiums and expensesincurred by such Borrower or such other Obligor directly incidental to such Asset Sale, including reasonable legal fees and expenses,(y) all taxes paid or reasonably estimated to be payable by such Borrower or such other Obligor as a result of such Asset Sale(after taking into account any available tax credits or deductions), and (z) reserves for indemnification, purchase price adjustmentsor analogous arrangements reasonably estimated by such Borrower or such other Obligor in connection with such Asset Sale; providedthat, if the amount of any estimated reserves pursuant to this clause (z) exceeds the amount actually required to be paid in cashin respect of indemnification, purchase price adjustments or analogous arrangements for such Asset Sale, the aggregate amount ofsuch excess shall constitute Net Asset Sale Proceeds (as of the date such Borrower determines such excess exists).

 

“Non-Core Investments” hasthe meaning assigned to such term in Section 5.13.

 

“Non-LIBOR Quoted Currency”means Canadian Dollars, AUD and NZD.

 

“Non-Performing Bank Loans”has the meaning assigned to such term in Section 5.13.

 

“Non-Performing Common Equity”has the meaning assigned to such term in Section 5.13.

 

“Non-Performing Fist Lien Bank Loans”has the meaning assigned to such term in Section 5.13.

 

“Non-Performing High Yield Securities”has the meaning assigned to such term in Section 5.13.

 

“Non-Performing Mezzanine Investments”has the meaning assigned to such term in Section 5.13.

 

“Non-Performing Preferred Stock”has the meaning assigned to such term in Section 5.13.

 

“Non-Performing Second Lien Bank Loans”has the meaning assigned to such term in Section 5.13.

 

 

 

“Non-Surviving Borrower” hasthe meaning assigned to such term in the definition of “Borrower Merger”.

 

“Non-Surviving Obligor” hasthe meaning assigned to such term in the definition of “Borrower Merger”.

 

“NYFRB” means the Federal ReserveBank of New York.

 

“NYFRB Rate” means, for anyday, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effecton such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of suchrates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transactionquoted at 11:00 a.m. (New York City time) on such day received by the Administrative Agent from a Federal funds broker of recognizedstanding selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemedto be zero for purposes of this Agreement.

 

“NZD” means the lawful currencyof New Zealand.

 

“NZD Rate” means for any Loansin NZD, the (a) NZD Screen Rate plus (b) 0.20%.

 

“NZD Screen Rate” means, withrespect to any Interest Period, the rate per annum determined by the Administrative Agent which is equal to the average bank billreference rate as administered by the New Zealand Financial Markets Association (or any other Person that takes over the administrationof such rate) for bills of exchange with a tenor equal in length to such Interest Period as displayed on page BKBM of the Reutersscreen (or, in the event such rate does not appear on such page, on any successor or substitute page on such screen that displayssuch rate or on the appropriate page of such other information service that publishes such rate as shall be selected by the AdministrativeAgent from time to time in its reasonable discretion) at or about 11:00 a.m. (Wellington, New Zealand time) on the first day ofsuch Interest Period. If the NZD Screen Rate shall be less than zero, the NZD Screen Rate shall be deemed to be zero for purposesof this Agreement.

 

“Obligor” means, with respectto a Borrower, each individually, such Borrower and each Subsidiary of such Borrower that is a Subsidiary Guarantor.

 

“Obligor Group” means, withrespect to a Borrower, collectively, such Borrower and each Subsidiary of such Borrower that is a Subsidiary Guarantor.

 

“Other Connection Taxes” means,with respect to a Borrower and with respect to any recipient of any payment to be made by or on account of any obligation of suchBorrower hereunder, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposingsuch Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligationsunder, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to orenforced any Loan Document to which such Borrower or any other member of its Obligor Group is a party, or sold or assigned an interestin any Loan made to such Borrower or Loan Document to which such Borrower or any other member of its Obligor Group is a party).

 

 

 

“Other Debt Amount” means,with respect to a Borrower, as of any date, the principal amount of any outstanding secured Indebtedness of such Borrower and itsSubsidiaries and, without duplication, the aggregate amount of available and unused commitments under any such secured Indebtedness,in each case, excluding such Borrower’s and its Subsidiaries’ Indebtedness in respect of prime brokerage and totalreturn swap facilities, this Agreement and any Designated Indebtedness.

 

“Other Permitted Indebtedness”means, with respect to a Borrower, (a)  Indebtedness (other than Indebtedness for borrowed money) arising in connection withtransactions in the ordinary course of such Borrower’s or such other Obligor’s business in connection with its purchasingof securities, derivatives transactions, reverse repurchase agreements or dollar rolls to the extent such transactions are permittedunder the Investment Company Act and the Investment Policies; provided that such Indebtedness does not arise in connectionwith the purchase of Portfolio Investments other than Cash Equivalents and U.S. Government Securities and (b) Indebtednessin respect of judgments or awards so long as such judgments or awards do not constitute an Event of Default with respect to suchBorrower under clause (l) of Article VII.

 

“Other Secured Indebtedness”means, with respect to a Borrower, as at any date, Indebtedness (other than Indebtedness hereunder) of such Borrower or any othermember of its Obligor Group (which may be Guaranteed by one or more other members of such Obligor Group) that (a) is secured pursuantto the Security Documents to which such Borrower or any other member of its Obligor Group is a party as described in clause (d)of this definition, (b) has no amortization prior to (other than for amortization in an amount not greater than 1% of the aggregateinitial principal amount of such Indebtedness per annum, provided that amortization in excess of 1% per annum shall be permittedso long as the amount of such amortization in excess of 1% is permitted to be incurred pursuant to Section 6.01(g) hereof), anda final maturity date not earlier than, six months after the Maturity Date (it being understood that neither the conversion featuresinto Permitted Equity Interests under convertible notes (as well as the triggering of such conversion and/or settlement thereofsolely with Permitted Equity Interests, except in the case of interest or expenses or fractional shares (which may be payable incash)), nor any mandatory prepayment provisions as a result of any borrowing base or collateral base deficiency, in any case shallconstitute “amortization” for the purposes of this definition, provided that if any mandatory prepayment is requiredunder such Other Secured Indebtedness that is not required pursuant to Section 2.09(c) hereof, such Borrower shall offer to repayLoans made to it (and/or provide cover for Letters of Credit issued on its behalf to the extent required under Section 2.04(k))in an amount at least equal to the aggregate Revolving Credit Exposure’s ratable share with respect to such Borrower (suchratable share being determined based on the outstanding principal amount of the Revolving Credit Exposures with respect to suchBorrower as compared to the Other Secured Indebtedness of such Borrower being paid) of the aggregate prepayment and reduction ofsuch Other Secured Indebtedness of such Borrower, (c) is incurred pursuant to documentation that, taken as a whole, is not materiallymore restrictive than market terms for substantially similar debt of other similarly situated borrowers as determined in good faithby such Borrower or, if such transaction is not one in which there are market terms for substantially similar debt of other similarlysituated borrowers, on terms that are negotiated in good faith on an arm’s length basis (except, in each case, other thanfinancial covenants and events of default (other than events of default customary in indentures or similar instruments that haveno analogous provisions in this Agreement or credit agreements generally), which shall be no more restrictive upon such Borrowerand its Subsidiaries, while any Subcommitments or Loans are outstanding with respect to such Borrower, than those set forth inthis Agreement; provided that, such Borrower may incur any Other Secured Indebtedness that otherwise would not meet the requirementsset forth in this parenthetical of this clause (c) if it has duly made a Modification Offer (whether or not it is accepted by theRequired Lenders) (it being understood that put rights or repurchase or redemption obligations arising out of circumstances thatwould constitute a “fundamental change” (as such term is customarily defined in convertible note offerings) or an Eventof Default with respect to such Borrower under this Agreement shall not be deemed to be more restrictive for purposes of this definition)),and (d) is not secured by any assets of such Borrower or such other Obligor other than pursuant to the Security Documents to whichsuch Borrower or such other Obligor is a party and the holders of which, or the agent, trustee or representative of such holdershave agreed to be bound by the provisions of the Security Documents to which such Borrower or such other Obligor is a party either(x) by executing the joinder attached as Exhibit C to the Guarantee and Security Agreement to which such Borrower is a party or(y) otherwise in a manner satisfactory to the Administrative Agent and the Collateral Agent. For the avoidance of doubt, OtherSecured Indebtedness of a Borrower shall also include any refinancing, refunding, renewal or extension of such Other Secured Indebtednessso long as such refinanced, refunded, renewed or extended Indebtedness continues to satisfy the requirements of this definition.

 

 

 

“Other Taxes” means, with respectto a Borrower, any and all present or future stamp, court or documentary, intangible, recording, filing or any other excise orproperty taxes, charges or similar levies arising from any payment made under any Loan Document to which such Borrower or any othermember of its Obligor Group is a party or from the execution, delivery or enforcement of, or otherwise with respect to, any LoanDocument to which such Borrower or any other member of its Obligor Group is a party, except any such Taxes that are Other ConnectionTaxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.19(b)).

 

“Overnight Bank Funding Rate”means, for any day, the rate comprised of both overnight federal funds and overnight Eurodollar transactions by U.S.-managed bankingoffices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public websitefrom time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and aftersuch date as the NYFRB shall commence to publish such composite rate).

 

“Participating Member State”means any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance withthe legislation of the European Union relating to the European Monetary Union.

 

“Participation Interest” means,with respect to a Borrower, a participation interest in an investment that at the time of acquisition by such Borrower or othermember of its Obligor Group satisfies each of the following criteria: (a) the underlying investment would constitute a PortfolioInvestment of such Borrower were it acquired directly by such Borrower or any other member of its Obligor Group, (b) the sellerof the participation is an Excluded Asset of such Borrower, (c) the entire purchase price for such participation is paid in fullat the time of its acquisition and (d) the participation provides the participant all of the economic benefit and risk of the wholeor part of such portfolio investment that is the subject of such participation.

 

 

 

“PBGC” means the U.S. PensionBenefit Guaranty Corporation as referred to and defined in ERISA.

 

“Performing” has the meaningassigned to such term in Section 5.13.

 

“Performing Cash Pay High Yield Securities”has the meaning assigned to such term in Section 5.13.

 

“Performing Cash Pay Mezzanine Investments”has the meaning assigned to such term in Section 5.13.

 

“Performing Common Equity”has the meaning assigned to such term in Section 5.13.

 

“Performing DIP Loans” hasthe meaning assigned to such term in Section 5.13.

 

“Performing First Lien Bank Loans”has the meaning assigned to such term in Section 5.13.

 

“Performing Non-Cash Pay High Yield Securities”has the meaning assigned to such term in Section 5.13.

 

“Performing Non-Cash Pay Mezzanine Investments”has the meaning assigned to such term in Section 5.13.

 

“Performing Preferred Stock”has the meaning assigned to such term in Section 5.13.

 

“Performing Second Lien Bank Loans”has the meaning assigned to such term in Section 5.13.

 

“Permitted Equity Interests”means, with respect to a Borrower, stock of such Borrower that after its issuance is not subject to any agreement between the holderof such stock and such Borrower where such Borrower is required to purchase, redeem, retire, acquire, cancel or terminate any suchstock unless such Permitted Equity Interests satisfies the applicable requirements set forth in the definition of “UnsecuredLonger-Term Indebtedness”.

 

“Permitted Indebtedness” means,with respect to a Borrower, collectively, Other Secured Indebtedness and Unsecured Longer-Term Indebtedness, in each case, of suchBorrower or any other member of its Obligor Group.

 

 

 

“Permitted Liens” means, withrespect to a Borrower: (a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due or thatare being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on thebooks of such Borrower or any other member of its Obligor Group in accordance with GAAP; (b) Liens of clearing agencies, broker-dealersand similar Liens incurred in the ordinary course of business; provided that such Liens (i) attach only to the securities(or proceeds) being purchased or sold and (ii) secure only obligations incurred in connection with such purchase or sale,and not any obligation in connection with margin financing; (c) Liens imposed by law, such as materialmen’s, mechanics’,carriers’, workmens’, landlord, storage and repairmen’s Liens and other similar Liens arising in the ordinarycourse of business and securing obligations (other than Indebtedness for borrowed money); (d) Liens incurred or pledges ordeposits made to secure obligations incurred in the ordinary course of business under workers’ compensation laws, unemploymentinsurance or other similar social security legislation (other than Liens in respect of employee benefit plans arising under ERISAor Section 4975 of the Code) or to secure public or statutory obligations; (e) Liens securing the performance of, or paymentin respect of, bids, insurance premiums, deductibles or co-insured amounts, tenders, government or utility contracts (other thanfor the repayment of borrowed money), surety, stay, customs and appeal bonds and other obligations of a similar nature incurredin the ordinary course of business; provided that all Liens on any Collateral included in the Borrowing Base of such Borrowerthat are permitted pursuant to this clause (e) shall have a priority that is junior to the Liens under the Security Documents;(f) Liens arising out of judgments or awards that have been in force for less than the applicable period for taking an appealso long as such judgments or awards do not constitute an Event of Default with respect to such Borrower under clause (l) ofArticle VII; (g) customary rights of setoff, banker’s lien, security interest or other like right upon (i) depositsof cash in favor of banks or other depository institutions in which such cash is maintained in the ordinary course of business,(ii) cash and financial assets held in securities accounts in favor of banks and other financial institutions with which suchaccounts are maintained in the ordinary course of business and (iii) assets held by a custodian in favor of such custodianin the ordinary course of business securing payment of fees, indemnities, charges for returning items and other similar obligations;provided that, with respect to Collateral included in the Borrowing Base, such rights are subordinated to the Lien of theCollateral Agent, pursuant to the terms of the Custodian Agreement to which such Borrower is a party; (h) Liens arising solelyfrom precautionary filings of financing statements under the Uniform Commercial Code of the applicable jurisdictions in respectof operating leases entered into by such Borrower or any of its Subsidiaries in the ordinary course of business; (i) easements,rights of way, zoning restrictions and similar encumbrances on real property and minor irregularities in the title thereto thatdo not interfere with or affect in any material respect the ordinary course conduct of the business of such Borrower or any ofits Subsidiaries; (j) Liens in favor of any escrow agent solely on and in respect of any cash earnest money deposits madeby such Borrower or any other member of its Obligor Group in connection with any letter of intent or purchase agreement (to theextent that the acquisition or disposition with respect thereto is otherwise permitted hereunder); (k) precautionary Liens,and filings of financing statements under the Uniform Commercial Code, covering assets sold or contributed to any Person notprohibited hereunder; and (l) any restrictions on the sale or disposition of assets arising from a merger agreement between oramong one or more members of an Obligor Group with one or more members of another Obligor Group with respect to a Borrower Merger;provided such restrictions do not adversely affect the enforceability of the Collateral Agent’s first-priority security intereston any Collateral.

 

 

 

“Permitted Prior Working Capital Lien”has the meaning assigned to such term in Section 5.13.

 

“Permitted SBIC Guarantee”means, with respect to a Borrower, a guarantee by such Borrower and/or any other member of its Obligor Group of SBA Indebtednessof an SBIC Subsidiary of such Borrower on the SBA’s then applicable form (or the applicable form at the time such guaranteewas entered into).

 

“Person” means any naturalperson, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authorityor other entity.

 

“Plan” means, with respectto a Borrower, any “employee pension benefit plan” (other than a Multiemployer Plan) subject to the provisions of Title IVof ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which such Borrower or any of its ERISAAffiliates is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer”as defined in Section 3(5) of ERISA.

 

“Plan Asset Regulations” means29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.

 

“Portfolio Investment” means,with respect to a Borrower, any investment (including a Participation Interest) held by such Borrower or any other member of itsObligor Group in their asset portfolio (and solely for purposes of determining the Borrowing Base of such Borrower, and of Sections 6.02(d),6.03(d), 6.04(d) and clause (p) of Article VII, Cash and Cash Equivalents, excluding Cash pledged as cash collateralfor Letters of Credit issued on behalf of such Borrower). Without limiting the generality of the foregoing, it is understood andagreed that any Portfolio Investments that have been contributed or sold, purported to be contributed or sold or otherwise transferredto any Excluded Asset, or held by any Immaterial Subsidiary or Controlled Foreign Corporation that is not a Subsidiary Guarantor,shall not be treated as Portfolio Investments. Notwithstanding the foregoing, nothing herein shall limit the provisions of Section 5.12(b)(i),which provides that, for purposes of this Agreement, all determinations of whether an investment is to be included as a PortfolioInvestment shall be determined on a settlement date basis (meaning that any investment that has been purchased will not be treatedas a Portfolio Investment until such purchase has settled, and any Portfolio Investment which has been sold will not be excludedas a Portfolio Investment until such sale has settled); provided that no such investment shall be included as a PortfolioInvestment to the extent it has not been paid for in full.

 

“Pounds Sterling” means thelawful currency of England.

 

“Preferred Stock” has the meaningassigned to such term in Section 5.13.

 

“Prime Rate” means the rateof interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal office in NewYork City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as beingeffective.

 

 

 

“Principal Financial Center”means, in the case of any Currency, the principal financial center where such Currency is cleared and settled, as determined bythe Administrative Agent.

 

“Pro-Rata Basis” means, withrespect to any fees, costs or expenses for the several accounts of the Borrowers, an allocation as determined by the board of directorsof each applicable Borrower from time to time. As of the Effective Date and as to each Borrower, the initial allocation shall beequal to the percentage of the total Commitments as of the Effective Date represented by such Borrower’s Borrower Sublimitas of the Effective Date.

 

“PTE” means a prohibited transactionclass exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

 

“Quarterly Dates” means thelast Business Day of March, June, September and December in each year, commencing on September 30, 2018.

 

“Quotation Day” means, withrespect to any Eurocurrency Borrowing for any Interest Period, (i) if the Currency is Canadian Dollars, AUD, NZD or Pounds Sterling,the first day of such Interest Period, (ii) if the Currency is Euro, two TARGET Days before the first day of such Interest Period,and (iii) for any other Currency, two Business Days prior to the first day of such Interest Period, unless, in each case, marketpractice differs in the relevant market where the Eurocurrency Rate for such Currency is to be determined, in which case the QuotationDay will be determined by the Administrative Agent in accordance with market practice in such market (and if quotations would normallybe given on more than one day, then the Quotation Day will be the last of those days).

 

“Quoted Investments” has themeaning set forth in Section 5.12(b)(ii)(A).

 

“Register” has themeaning set forth in Section 9.04.

 

“Regulations D, T, U and X”means, respectively, Regulations D, T, U and X of the Board of Governors of the Federal Reserve System (or any successor),as the same may be modified and supplemented and in effect from time to time.

 

“Related Parties” means, withrespect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, trustees, administrators,employees, agents, managers, advisors and representatives of such Person and of such Person’s Affiliates.

 

“Release Date” means, withrespect to a Borrower, the date on which (1) all Subcommitments with respect to such Borrower have expired or been terminated (orotherwise reduced to zero, including in connection with a reallocation in accordance with Section 2.07(g) or (h)), (2) the principalof and accrued interest on each Loan made to such Borrower and all fees and other amounts payable hereunder by such Borrower (otherthan Unasserted Contingent Obligations with respect to such Borrower) shall have been paid in full (or assumed by a Surviving Obligorpursuant to a Borrower Merger), (3) all Letters of Credit issued on behalf of such Borrower shall have (v) expired, (w) terminated,(x) been cash collateralized, (y) otherwise been backstopped in a manner satisfactory to the relevant Issuing Bank in its solediscretion or (z) been assumed by a Surviving Obligor pursuant to a Borrower Merger, and (4) all LC Disbursements with respectto such Borrower then outstanding shall have been reimbursed.

 

 

 

“Required Lenders” means, withrespect to a Borrower, at any time, Lenders having Revolving Credit Exposures with respect to such Borrower and unused Subcommitmentswith respect to such Borrower representing more than 50% of the sum of the total Revolving Credit Exposures with respect tosuch Borrower and unused Subcommitments with respect to such Borrower at such time. The Required Lenders of a Class (whichshall include the terms “Required Dollar Lenders” and “Required Multicurrency Lenders”) means Lenders havingRevolving Credit Exposures with respect to such Borrower and unused Subcommitments of such Class with respect to such Borrowerrepresenting more than 50% of the sum of the total Revolving Credit Exposures with respect to such Borrower and unused Subcommitmentsof such Class with respect to such Borrower at such time; provided that the Revolving Credit Exposures with respect to suchBorrower and unused Subcommitments with respect to such Borrower of any Defaulting Lenders shall be disregarded in the determinationof Required Lenders of a Class to the extent provided for in Section 2.18.

 

“Restricted Equity Interests”means any Equity Interests if the grant of a security interest therein would constitute or result in a breach or termination pursuantto the terms of, or a default under, the terms thereunder or under any contract, property rights, obligation, instrument or agreementrelated thereto.

 

“Restricted Payment” means,with respect to a Borrower, any dividend or other distribution (whether in cash, securities or other property) with respect toany shares of any class of capital stock of such Borrower or any of its Subsidiaries, or any payment (whether in cash, securitiesor other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,cancellation or termination of any such shares of capital stock or any option, warrant or other right to acquire any such sharesof capital stock (other than any equity awards granted to employees, officers, directors and consultants of such Borrower or anyof its Affiliates), provided, for clarity, neither the conversion of convertible debt into capital stock nor the purchase,redemption, retirement, acquisition, cancellation or termination of convertible debt made solely with capital stock (other thaninterest or expenses or fractional shares, which may be payable in cash) shall be a Restricted Payment hereunder.

 

“Return of Capital” means,with respect to a Borrower, any return of capital received by such Borrower or any other member of its Obligor Group in respectof the outstanding principal of any Portfolio Investment owned by such Borrower or such other Obligor (whether at stated maturity,by acceleration or otherwise) and any net cash proceeds received by such Borrower or such other Obligor of the sale of any propertyor assets pledged as collateral in respect of any Portfolio Investment to the extent such Borrower or such other Obligor is permittedto retain all such proceeds (under law or contract) minus all taxes paid or reasonably estimated to be payable by such Borroweror such other Obligor or any of their respective Subsidiaries as a result of such return of capital or receipt of proceeds (aftertaking into account any available tax credits or deductions) minus any costs, fees, commissions, premiums and expenses incurredby such Borrower or such other Obligor directly incidental to such return of capital or receipt of proceeds, including reasonablelegal fees and expenses.

 

 

 

“Revaluation Date” means (a)with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Loan denominated in an Agreed ForeignCurrency, (ii) each date of a continuation of a Eurocurrency Loan denominated in an Agreed Foreign Currency, and (iii) such additionaldates as the Administrative Agent shall reasonably and in good faith determine or the Required Lenders shall reasonably and ingood faith require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letterof Credit denominated in an Agreed Foreign Currency, (ii) each date of an amendment of any such Letter of Credit having the effectof increasing the amount thereof, (iii) each date of any payment by the applicable Issuing Bank under any Letter of Credit denominatedin an Agreed Foreign Currency, and (iv) such additional dates as the Administrative Agent or the applicable Issuing Bank shallreasonably and in good faith determine or the Required Lenders shall reasonably and in good faith require.

 

“Revolving Credit Exposure”means, with respect to any Lender and any Borrower at any time, the sum of the outstanding principal amount of such Lender’sRevolving Dollar Credit Exposure and Revolving Multicurrency Credit Exposure with respect to such Borrower at such time.

 

“Revolving Dollar Credit Exposure”means, with respect to any Lender and any Borrower at any time, the sum of the outstanding principal amount of such Lender’sLoans to such Borrower at such time, made or incurred under such Lender’s Dollar Subcommitments with respect to such Borrower.

 

“Revolving Multicurrency Credit Exposure”means, with respect to any Lender and any Borrower at any time, the sum of the outstanding principal amount of such Lender’sLoans to such Borrower at such time, made or incurred under such Lender’s Multicurrency Subcommitments with respect to suchBorrower, and such Lender’s LC Exposure with respect to such Borrower.

 

“RIC” means a person qualifyingfor treatment as a “regulated investment company” under the Code.

 

“S&P” means S&P GlobalRatings, a division of S&P Global Inc., a New York corporation, or any successor thereto.

 

“Sanctioned Country” means,at any time, a country, region or territory which is itself the subject or target of comprehensive Sanctions (at the time of thisAgreement, Cuba, Iran, North Korea, Syria and Crimea).

 

“Sanctioned Person” means,at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign AssetsControl of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the EuropeanUnion or any European Union member state, (b) any Person organized or resident in a Sanctioned Country or (c) any Person ownedor controlled by any such Person or Persons described in the foregoing clause (a) or (b).

 

 

 

“Sanctions” means, with respectto a Borrower, economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) theU.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury orthe U.S. Department of State, or (b) the United Nations Security Council, the European Union, any European Union member state,Her Majesty’s Treasury of the United Kingdom or any other relevant sanctions authority having jurisdiction over such Borroweror its Subsidiaries or any Lender.

 

“SBA” means the United StatesSmall Business Administration or any Governmental Authority succeeding to any or all of the functions thereof.

 

“SBIC Equity Commitment” means,with respect to a Borrower, a commitment by such Borrower or any other member of its Obligor Group to make one or more capitalcontributions to an SBIC Subsidiary of such Borrower.

 

“SBIC Subsidiary” means, withrespect to a Borrower, any Subsidiary of such Borrower or any other member of its Obligor Group (or such Subsidiary’s generalpartner or manager entity) that is (x) either (i) a small business investment company licensed by the SBA (or that has appliedfor such a license and is actively pursuing the granting thereof by appropriate proceedings promptly instituted and diligentlyconducted) pursuant to the Small Business Investment Act of 1958, as amended or (ii) any wholly-owned, directly or indirectly,Subsidiary of an entity referred to in clause (i) of this definition and (y) designated by such Borrower (as provided below) asan SBIC Subsidiary, so long as:

 

(a)       otherthan pursuant to a Permitted SBIC Guarantee or the requirement by the SBA that such Borrower or such other Obligor make an equityor capital contribution to such SBIC Subsidiary in connection with its incurrence of SBA Indebtedness (provided that such contributionis permitted by Section 6.03(d) and is made substantially contemporaneously with such incurrence), no portion of the Indebtednessor any other obligations (contingent or otherwise) of such Person (i) is Guaranteed by such Borrower or any of its Subsidiaries(other than any SBIC Subsidiary), (ii) is recourse to or obligates such Borrower or any of its Subsidiaries (other than anySBIC Subsidiary) in any way, or (iii) subjects any property of such Borrower or any of its Subsidiaries (other than any SBICSubsidiary) to the satisfaction thereof, other than Equity Interests in any SBIC Subsidiary of such Borrower or such other Obligorpledged to secure such Indebtedness;

 

(b)       otherthan pursuant to a Permitted SBIC Guarantee, neither such Borrower nor any of its Subsidiaries has any material contract, agreement,arrangement or understanding with such Person other than on terms no less favorable to such Borrower or such Subsidiary than thosethat might be obtained at the time from Persons that are not Affiliates of such Borrower or such Subsidiary;

 

(c)       neithersuch Borrower nor any of its Subsidiaries (other than any SBIC Subsidiary) has any obligation to such Person to maintain or preserveits financial condition or cause it to achieve certain levels of operating results; and

 

 

 

(d)       suchPerson has not Guaranteed or become a co-borrower under, and has not granted a security interest in any of its properties to secure,and the Equity Interests it has issued are not pledged to secure, in each case, any indebtedness, liabilities or obligations ofany one or more of such Borrower or any other member of its Obligor Group.

 

Any designation by such Borrower under clause(y) above shall be effected pursuant to a certificate of a Financial Officer of such Borrower delivered to the Administrative Agent,which certificate shall include a statement to the effect that, to the best of such Financial Officer’s knowledge, such designationcomplied with the foregoing conditions. Upon the consummation of a Borrower Merger, any direct or indirect SBIC Subsidiary (ifany) of a Non-Surviving Borrower shall be automatically deemed an SBIC Subsidiary of the Surviving Borrower without the deliveryof a certificate of a Financial Officer of such Surviving Borrower so long as such SBIC Subsidiary continues to satisfy the criteriaof an “SBIC Subsidiary”.

 

“Screen Rate” means the LIBORScreen Rate and the Local Screen Rates collectively and individually as the context may require.

 

“SEC” means the United StatesSecurities and Exchange Commission or any Governmental Authority succeeding to any or all of the functions thereof.

 

“Second Lien Bank Loan” hasthe meaning assigned to such term in Section 5.13.

 

“Secured Party”, with respectto a Borrower, has the meaning set forth in the Guarantee and Security Agreement to which such Borrower is a party.

 

“Securities” has the meaningassigned to such term in Section 5.13.

 

“Securities Act” has the meaningassigned to such term in Section 5.13.

 

“Security Documents” means,with respect to a Borrower, collectively, the Guarantee and Security Agreement to which such Borrower is a party and all otherassignments, pledge agreements, security agreements, intercreditor agreements, control agreements and other instruments, in eachcase, executed and delivered at any time by such Borrower or any other member of its Obligor Group pursuant to the Guarantee andSecurity Agreement to which such Borrower is a party or otherwise providing or relating to any collateral security for any of theSecured Obligations of such Borrower or such other Obligor under and as defined in the Guarantee and Security Agreement to whichsuch Borrower is a party.

 

“Senior Securities” means,with respect to a Borrower, senior securities (as such term is defined and determined pursuant to the Investment Company Act andany orders of the SEC issued to such Borrower thereunder).

 

“Shareholders’ Equity”means, with respect to a Borrower, at any date, the amount determined on a consolidated basis, without duplication, in accordancewith GAAP, of shareholders’ equity for such Borrower and its Subsidiaries at such date.

 

“Short-Term U.S. Government Securities”has the meaning assigned to such term in Section 5.13.

 

 

 

“Significant Subsidiary” means,with respect to a Borrower, at any time of determination, (a) any member of such Borrower’s Obligor Group or (b) anyother Subsidiary of such Borrower that, on a consolidated basis with such Subsidiary’s Subsidiaries, has aggregate assetsor aggregate revenues greater than 10% of the aggregate assets or aggregate revenues of such Borrower and its Subsidiaries,taken as a whole, at such time.

 

“Special Equity Interest” means,with respect to a Borrower, any Equity Interest held by such Borrower or any other member of its Obligor Group that is subjectto a Lien in favor of creditors of the issuer or such issuer’s affiliates of such Equity Interest; provided that (a) suchLien was created to secure Indebtedness owing by such issuer to such creditors, (b) such Indebtedness was (i) in existenceat the time such Borrower or such other Obligor acquired such Equity Interest, (ii) incurred or assumed by such issuer substantiallycontemporaneously with such acquisition or (iii) already subject to a Lien granted to such creditors and (c) unless suchEquity Interest is not intended to be included in the Collateral, the documentation creating or governing such Lien does not prohibitthe inclusion of such Equity Interest in the Collateral.

 

“Special Longer-Term Unsecured Indebtedness”means, with respect to a Borrower, indebtedness of such Borrower or any other member of its Obligor Group incurred after the EffectiveDate that is Indebtedness that satisfies all of the criteria specified in the definition of “Unsecured Longer-Term Indebtedness”other than clause (a) thereof so long as such Indebtedness has a maturity date of at least five years from the date of the initialissuance of such Indebtedness.

 

“Specified Time” means (i)in relation to a Loan in Canadian Dollars, as of 10:00 a.m., Toronto, Ontario time, (ii) in relation to a Loan in a LIBOR QuotedCurrency, as of 11:00 a.m., London time, (iii) in relation to a Loan in AUD, as of 11:00 a.m., Sydney, Australia time, and (iv)in relation to a Loan in NZD, as of 11:00 a.m., Wellington, New Zealand time.

 

“Spot Rate” for a currencymeans the rate determined by the Administrative Agent or the applicable Issuing Bank, as applicable, to be the rate quoted by thePerson acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency throughits principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as ofwhich the foreign exchange computation is made; provided that the Administrative Agent or the applicable Issuing Bank may obtainsuch spot rate from another financial institution designated by the Administrative Agent or such Issuing Bank if the Person actingin such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further thatsuch Issuing Bank may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case ofany Letter of Credit denominated in an Agreed Foreign Currency.

 

“Standard Securitization Undertakings”means, collectively, (a) customary arms-length servicing obligations (together with any related performance guarantees), (b) obligations(together with any related performance guarantees) to refund the purchase price or grant purchase price credits for dilutive eventsor misrepresentations (in each case unrelated to the collectability of the assets sold or the creditworthiness of the associatedaccount debtors) and (c) representations, warranties, covenants and indemnities (together with any related performance guarantees)of a type that are reasonably customary in commercial loan securitizations.

 

 

 

“Statutory Reserve Rate” means,for the Interest Period for any Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of which is the numberone and the denominator of which is the number one minus the arithmetic mean, taken over each day in such Interest Period,of the aggregate of the applicable maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currentlyreferred to as “Eurocurrency liabilities” in Regulation D). Such reserve percentages shall include those imposedpursuant to Regulation D. Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to suchreserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to timeto any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automaticallyon and as of the effective date of any change in any reserve percentage.

 

“STRH” means SunTrust RobinsonHumphrey Inc.

 

“Subcommitment” means, withrespect to each Lender and any Borrower, collectively, the Dollar Subcommitments of such Lender with respect to such Borrower andthe Multicurrency Subcommitments of such Lender with respect to such Borrower.

 

“Subsidiary” means, with respectto any Person (the “parent”) at any date, any corporation, limited liability company, partnership, associationor other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financialstatements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation,limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representingmore than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50%of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwiseControlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.Anything herein to the contrary notwithstanding, with respect to an Obligor, the term “Subsidiary” shall not includeany Person that constitutes an Investment held by such Obligor in the ordinary course of business and that is not, under GAAP,consolidated on the financial statements of such Obligor. Unless otherwise specified, “Subsidiary” means a Subsidiaryof the applicable Borrower.

 

“Subsidiary Guarantor” means,with respect to a Borrower, any Domestic Subsidiary of such Borrower that is a Guarantor under the Guarantee and Security Agreementto which such Borrower is a party. It is understood and agreed that Excluded Assets, Immaterial Subsidiaries and Controlled ForeignCorporations of such Borrower shall not be required to be Subsidiary Guarantors.

 

“Surviving Borrower” has themeaning assigned to such term in the definition of “Borrower Merger”.

 

 

 

“Surviving Obligor” has themeaning assigned to such term in the definition of “Borrower Merger”.

 

“Syndication Agent” means ING,in its capacity as syndication agent hereunder.

 

“TARGET Day” means anyday on which the TARGET2 is open.

 

“TARGET2” means the Trans-EuropeanAutomated Real-time Gross Settlement Express Transfer (TARGET2) payment system (or, if such payment system ceases to be operative,such other payment system reasonably determined by the Administrative Agent to be a suitable replacement) for the settlement ofpayments in Euros.

 

“Taxes” means any and all presentor future taxes, levies, imposts, duties, deductions, charges or withholdings (including backup withholding), assessments or feesimposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

 

“Tender Offer” means, withrespect to an Unlisted Borrower, an all-cash tender offer by such Unlisted Borrower for its shares of common stock that may beproposed to be commenced in connection with the initial listing of such Unlisted Borrower’s shares of common stock.

 

“Transactions” means, withrespect to a Borrower, the execution, delivery and performance by such Borrower of this Agreement and the other Loan Documentsto which such Borrower or any other member of its Obligor Group is a party, the borrowing of Loans by such Borrower, the use ofthe proceeds thereof by such Borrower and the issuance of Letters of Credit on behalf of such Borrower hereunder.

 

“Type”, when used in referenceto any Loan or Borrowing made to a Borrower, refers to whether the rate of interest on such Loan, or on the Loans constitutingsuch Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

 

“Unasserted Contingent Obligations”means, with respect to a Borrower, all (i) unasserted contingent indemnification obligations with respect to such Borrower notthen due and payable by such Borrower and (ii) unasserted expense reimbursement obligations with respect to such Borrower not thendue and payable by such Borrower. For the avoidance of doubt, “Unasserted Contingent Obligations” shall not includeany reimbursement obligations in respect of any Letter of Credit issued on behalf of such Borrower.

 

“Undisclosed Administration”means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator,conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based onthe law in the country where such Lender or such parent company is subject to home jurisdiction supervision, if applicable lawrequires that such appointment not be publicly disclosed and such appointment has not been publicly disclosed.

 

“Uniform Commercial Code”means the Uniform Commercial Code as in effect from time to time in the State of New York.

 

 

 

“Unlisted Borrower” means eachBorrower that is not a Listed Borrower. As of the Effective Date, FSIC II and FSIC III are the only Unlisted Borrowers.

 

“Unquoted Investments” hasthe meaning set forth in Section 5.12(b)(ii)(B).

 

“Unsecured Longer-Term Indebtedness”means, with respect to a Borrower, any Indebtedness of such Borrower or any other member of its Obligor Group (which may be Guaranteedby one or more other members of such Obligor Group) that:

 

(a)       hasno amortization prior to, and a final maturity date not earlier than, six months after the Maturity Date (it being understood that(i) the conversion features into Permitted Equity Interests under convertible notes (as well as the triggering of such conversionand/or settlement thereof solely with Permitted Equity Interests, except in the case of interest or expenses or fractional shares(which may be payable in cash)) shall not constitute “amortization” for the purposes of this definition and (ii) anymandatory amortization that is contingent upon the happening of an event that is not certain to occur (including, without limitation,a change of control or bankruptcy) shall not in and of itself be deemed to disqualify such Indebtedness under this clause (a);provided, with respect to this clause (ii), such Borrower acknowledges that any payment prior to the earlier to occur of the ReleaseDate with respect to such Borrower and the Facility Termination Date in respect of any such obligation or right shall only be madeto the extent permitted by Section 6.12 and immediately upon such contingent event occurring the amount of such mandatory amortizationshall be included in the Covered Debt Amount of such Borrower);

 

(b)       isincurred pursuant to terms that are substantially comparable to (or more favorable than) market terms for substantially similardebt of other similarly situated borrowers as reasonably determined in good faith by such Borrower or, if such transaction is notone in which there are market terms for substantially similar debt of other similarly situated borrowers, on terms that are negotiatedin good faith on an arm’s length basis (except, in each case, other than financial covenants and events of default (otherthan events of default customary in indentures or similar instruments that have no analogous provisions in this Agreement or creditagreements generally), which shall be no more restrictive upon such Borrower and its Subsidiaries, while any Subcommitments orLoans are outstanding with respect to such Borrower, than those set forth in this Agreement with respect to such Borrower and itsSubsidiaries; provided that, such Borrower or such other Obligor may incur any Unsecured Longer-Term Indebtedness that otherwisewould not meet the requirements set forth in this parenthetical of this clause (b) if it has duly made a Modification Offer (whetheror not it is accepted by the Required Lenders) (it being understood that put rights or repurchase or redemption obligations arisingout of circumstances that would constitute a “fundamental change” (as such term is customarily defined in convertiblenote offerings) or be Events of Default with respect to such Borrower under this Agreement shall not be deemed to be more restrictivefor purposes of this definition)); and

 

(c)       isnot secured by any assets of such Borrower or such other Obligor.

 

 

 

For the avoidance of doubt, Unsecured Longer-TermIndebtedness shall also include any refinancing, refunding, renewal or extension of any Unsecured Longer-Term Indebtedness so longas such refinanced, refunded, renewed or extended Indebtedness continues to satisfy the requirements of this definition. Notwithstandingthe foregoing, the term Unsecured Longer-Term Indebtedness shall include any Disqualified Equity Interests so long as the applicableBorrower is not permitted or required to purchase, redeem, retire, acquire, cancel or terminate any such Equity Interest (otherthan (x) as a result of a change of control or asset sale or (y) in connection with any purchase, redemption, retirement, acquisition,cancellation or termination with, or in exchange for, Equity Interest) prior to the date that is six months after the MaturityDate.

 

“U.S. Government Securities”means securities that are direct obligations of, and obligations the timely payment of principal and interest on which is fullyguaranteed by, the United States or any agency or instrumentality of the United States the obligations of which are backed by thefull faith and credit of the United States and in the form of conventional bills, bonds, and notes.

 

“Valuation Policy”, with respectto a Borrower, has the meaning assigned to such term in Section 5.12(b)(ii)(B).

 

“Value” has the meaning assignedto such term in Section 5.13.

 

“Withdrawal Liability” means,with respect to a Borrower, liability to a Multiemployer Plan as a result of a “complete withdrawal” or “partialwithdrawal” from such Multiemployer Plan by such Borrower, as such terms are defined in Sections 4203 and 4205of ERISA.

 

“Write-Down and Conversion Powers”means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority fromtime to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are describedin the EU Bail-In Legislation Schedule.

 

SECTION 1.02.         	Classification of Loans andBorrowings.

 

For purposes of this Agreement, Loans may be classifiedand referred to by Class (*e.g.*, a “Dollar Loan” or a “Multicurrency Loan”), by Type (*e.g.*,an “ABR Loan” or a “Eurocurrency Loan”) or by Class and Type (*e.g.*, a “Multicurrency EurocurrencyLoan”). Borrowings also may be classified and referred to by Class (*e.g.*, a “Dollar Borrowing” ora “Multicurrency Borrowing”), by Type (*e.g.*, an “ABR Borrowing” or a “Eurocurrency Borrowing”)or by Class and Type (*e.g.*, a “Multicurrency Eurocurrency Borrowing”). Loans and Borrowings may also be identifiedby Currency.

 

 

 

SECTION 1.03.         Terms Generally.

 

The definitions of terms herein shall apply equallyto the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the correspondingmasculine, feminine and neuter forms. The words “include”, “includes” and “including” shallbe deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to havethe same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of orreference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument orother document as from time to time amended, restated, amended and restated, supplemented, renewed or otherwise modified (subjectto any restrictions on such amendments, supplements, renewals or modifications set forth herein or therein), (b) any referenceherein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement inits entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedulesshall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset”and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangibleassets and properties, including cash, securities, accounts and contract rights. For the avoidance of doubt, any cash payment (otherthan any cash payment on account of interest) made by any Borrower in respect of any conversion features in any convertible securitiesthat may be issued by such Borrower shall constitute a “regularly scheduled payment, prepayment or redemption of principaland interest” within the meaning of clause (a) of Section 6.12. Solely for purposes of this Agreement, any references to “obligations” owed by any Person under any Hedging Agreement shall refer to the amount that would be required to bepaid by such Person if such Hedging Agreement were terminated at such time (after giving effect to any netting agreement).

 

SECTION 1.04.         Accounting Terms; GAAP.

 

Except as otherwise expressly provided herein,all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; providedthat, if a Borrower notifies the Administrative Agent that such Borrower requests an amendment to any provision hereof with respectto such Borrower to eliminate the effect of any change occurring after the Effective Date in GAAP or in the application thereofon the operation of such provision (or if the Administrative Agent notifies a Borrower that the Required Lenders request an amendmentto any provision hereof with respect to such Borrower for such purpose), regardless of whether any such notice is given beforeor after such change in GAAP or in the application thereof, then such Borrower, Administrative Agent and Lenders agree to enterinto negotiations in good faith in order to amend such provisions of this Agreement with respect to such Borrower so as to equitablyreflect such change to comply with GAAP with the desired result that the criteria for evaluating such Borrower’s financialcondition shall be the same after such change to comply with GAAP as if such change had not been made; provided, however, untilsuch amendments to equitably reflect such changes are effective and agreed to by such Borrower, the Administrative Agent and theRequired Lenders, such Borrower’s compliance with such financial covenants shall be determined on the basis of GAAP as ineffect and applied immediately before such change in GAAP becomes effective. Notwithstanding the foregoing or anything herein tothe contrary, each Borrower covenants and agrees with the Lenders that whether or not such Borrower may at any time adopt FinancialAccounting Standard Board Accounting Standards Codification 820 (or any other Financial Accounting Standard having a similar resultor effect), Financial Accounting Standard No. 159 (or successor standard solely as it relates to fair value liabilities) or accountsfor liabilities acquired in an acquisition on a fair value basis pursuant to Financial Accounting Standard No. 141(R) (or successorstandard solely as it relates to fair value liabilities), all determinations of compliance with the terms and conditions of thisAgreement shall be made on the basis that such Borrower has not adopted Financial Accounting Standard Board Accounting StandardsCodification 820 (or any other Financial Accounting Standard having a similar result or effect), Financial Accounting StandardNo. 159 (or such successor standard solely as it relates to fair value liabilities) or, in the case of liabilities acquired inan acquisition, Financial Accounting Standard No. 141(R) (or such successor standard solely as it relates to fair value liabilities).

 

 

 

SECTION 1.05.        	Currencies; Currency Equivalents

 

(a)       CurrenciesGenerally. At any time, any reference in the definition of the term “Agreed Foreign Currency” or in any other provisionof this Agreement to the Currency of any particular nation means the lawful currency of such nation at such time whether or notthe name of such Currency is the same as it was on the Effective Date. Except as provided in Section 2.09(b) and the lastsentence of Section 2.17(a), for purposes of determining (i) whether the amount of any Borrowing made to any Borroweror Letter of Credit issued on behalf of such Borrower under its Multicurrency Subcommitments, together with all other Borrowingsmade to such Borrower and Letters of Credit issued on behalf of such Borrower under its Multicurrency Subcommitments then outstandingor to be borrowed at the same time as such Borrowing, would exceed the aggregate amount of such Multicurrency Subcommitments, (ii) theaggregate unutilized amount of the Multicurrency Subcommitments with respect to any Borrower, (iii) the Revolving MulticurrencyCredit Exposure with respect to any Borrower, (iv) the LC Exposure with respect to any Borrower, (v) the Covered DebtAmount with respect to any Borrower and (vi) the Borrowing Base with respect to any Borrower or the Value of any PortfolioInvestment, the outstanding principal amount of any Borrowing or Letter of Credit that is denominated in any Foreign Currency orthe Value of any Portfolio Investment that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent ofthe amount of the Foreign Currency of such Borrowing, Letter of Credit or Portfolio Investment, as the case may be, determinedas of the date of such Borrowing or Letter of Credit (determined in accordance with the last sentence of the definition of theterm “Interest Period”) or the date of valuation of such Portfolio Investment, as the case may be; provided that inconnection with the delivery of any Borrowing Base Certificate pursuant to Section 5.01(d) or (e), such amounts shall be determinedas of the date of delivery of such Borrowing Base Certificate. Wherever in this Agreement in connection with a Borrowing or Loanan amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Loan is denominated ina Foreign Currency, such amount shall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest 1,000units of such Foreign Currency). Without limiting the generality of the foregoing, for purposes of determining compliance withany basket in this Agreement, in no event shall any Obligor be deemed to not be in compliance with any such basket solely as aresult of a change in exchange rates.

 

(b)       SpecialProvisions Relating to Euro. Each obligation hereunder of any party hereto that is denominated in the National Currency ofa state that is not a Participating Member State on the Effective Date shall, effective from the date on which such state becomesa Participating Member State, be redenominated in Euro in accordance with the legislation of the European Union applicable to theEuropean Monetary Union; provided that, if and to the extent that any such legislation provides that any such obligationof any such party payable within such Participating Member State by crediting an account of the creditor can be paid by the debtoreither in Euros or such National Currency, such party shall be entitled to pay or repay such amount either in Euros or in suchNational Currency. If the basis of accrual of interest or fees expressed in this Agreement with respect to an Agreed Foreign Currencyof any country that becomes a Participating Member State after the date on which such currency becomes an Agreed Foreign Currencyshall be inconsistent with any convention or practice in the interbank market for the basis of accrual of interest or fees in respectof the Euro, such convention or practice shall replace such expressed basis effective as of and from the date on which such statebecomes a Participating Member State; provided that, with respect to any Borrowing denominated in such currency that is outstandingimmediately prior to such date, such replacement shall take effect at the end of the Interest Period therefor.

 

 

 

Without prejudice to the respective liabilitiesof any Borrower to the Lenders and the Lenders to such Borrower under or pursuant to this Agreement, each provision of this Agreementwith respect to such Borrower shall be subject to such reasonable changes of construction as the Administrative Agent may fromtime to time, in consultation with such Borrower, reasonably specify to be necessary or appropriate to reflect the introductionor changeover to the Euro in any country that becomes a Participating Member State after the Effective Date; provided thatthe Administrative Agent shall provide such Borrower and the Lenders with prior notice of the proposed change with an explanationof such change in sufficient time to permit such Borrower and the Lenders an opportunity to respond to such proposed change.

 

(c)       ExchangeRates; Currency Equivalents. The Administrative Agent or the applicable Issuing Bank, as applicable, shall determine the SpotRates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Loans, Letters of Credit and RevolvingCredit Exposure denominated in Agreed Foreign Currencies. Such Spot Rates shall become effective as of such Revaluation Date andshall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date tooccur. Except for purposes of financial statements delivered pursuant to Section 5.01 or calculating financial covenants hereunderor except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documentsshall be such Dollar Equivalent amount as so determined by the Administrative Agent or the applicable Issuing Bank, as applicable.Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Eurocurrency Loan or theissuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressedin Dollars, but such Borrowing, Eurocurrency Loan or Letter of Credit is denominated in an Agreed Foreign Currency, such amountshall be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Agreed Foreign Currency,with 0.5 of a unit being rounded upward).

 

 

 

Article II

 

THE CREDITS

 

SECTION 2.01.         The Commitments

 

Subject to the terms and conditions set forthherein:

 

(a)       eachDollar Lender severally agrees to make Dollar Loans to each Borrower from time to time during the Availability Period in an aggregateprincipal amount that will not result in (i) such Lender’s Revolving Dollar Credit Exposure with respect to such Borrowerexceeding such Lender’s Dollar Subcommitment with respect to such Borrower, (ii) the aggregate Revolving Dollar Credit Exposureof all of the Lenders exceeding the Dollar Commitments or (iii) the total Covered Debt Amount of such Borrower exceeding theBorrowing Base then in effect for such Borrower; and

 

(b)       eachMulticurrency Lender severally agrees to make Multicurrency Loans to each Borrower from time to time during the Availability Periodin an aggregate principal amount that will not result in (i) such Lender’s Revolving Multicurrency Credit Exposure withrespect to such Borrower exceeding such Lender’s Multicurrency Subcommitment with respect to such Borrower, (ii) the aggregateRevolving Multicurrency Credit Exposure of all of the Lenders exceeding the Multicurrency Commitments, (iii) the total CoveredDebt Amount of such Borrower exceeding the Borrowing Base then in effect for such Borrower, (iv) the aggregate amount of the RevolvingMulticurrency Credit Exposure of all of the Lenders denominated in a Foreign Currency exceeding 50% of the total Commitments hereunderor (v) the aggregate amount of the Revolving Multicurrency Credit Exposure of all of the Lenders denominated in AUD and NZD exceeding20% of the total Commitments hereunder.

 

Within the foregoing limits and subject to theterms and conditions set forth herein, each Borrower may borrow, prepay and reborrow Loans made to such Borrower.

 

SECTION 2.02.         Loans and Borrowings.

 

(a)       Obligationsof Lenders. Each Loan made to a Borrower shall be made as part of a Borrowing consisting of Loans of the same Class, Currencyand Type made by the applicable Lenders ratably in accordance with their respective Subcommitments of the same Class with respectto such Borrower. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of itsobligations hereunder; provided that the Subcommitments of the Lenders are several and no Lender shall be responsible forany other Lender’s failure to make Loans as required.

 

(b)       Typeof Loans. Subject to Section 2.12, (i) each Borrowing of a Class shall be constituted entirely of ABR Loans or ofEurocurrency Loans of such Class denominated in a single Currency as any Borrower may request in accordance herewith. Each Borrowingdenominated in an Agreed Foreign Currency shall be constituted entirely of Eurocurrency Loans. Each Lender at its option may makeany Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; providedthat (i) any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan in accordancewith the terms of this Agreement and (ii) in exercising such option, such Lender shall use reasonable efforts to minimize any increasedcosts to any Borrower resulting therefrom (which obligation of the Lender shall not require it to take, or refrain from taking,actions that it determines would result in increased costs for which it will not be compensated hereunder or that it determineswould be otherwise disadvantageous to it and in the event of such request for costs for which compensation is provided under thisAgreement, the provisions of Section 2.14 shall apply).

 

 

 

(c)       MinimumAmounts. Each Borrowing (whether Eurocurrency or ABR) shall be in an aggregate amount of $1,000,000 or a whole multiple of$100,000 in excess thereof or, with respect to any Agreed Foreign Currency, such smaller minimum amount as may be agreed to bythe Administrative Agent; provided that a Borrowing of a Class made to a Borrower may be in an aggregate amount thatis equal to the entire unutilized balance of the total Subcommitments of such Class with respect to such Borrower or that is requiredto finance the reimbursement of an LC Disbursement of such Class with respect to such Borrower as contemplated by Section 2.04(f).Borrowings of more than one Class, Currency and Type may be outstanding at the same time.

 

(d)       Limitationson Interest Periods. Notwithstanding any other provision of this Agreement, no Borrower shall be entitled to request (or toelect to convert to or continue as a Eurocurrency Borrowing) any Borrowing if the Interest Period requested therefor would endafter the Maturity Date.

 

SECTION 2.03.          Requests for Borrowings.

 

(a)       Noticeby the Applicable Borrower. To request a Borrowing, the applicable Borrower shall notify the Administrative Agent of such requestby delivery of a signed Borrowing Request or by e-mail (i) in the case of a Eurocurrency Borrowing denominated in Dollars,not later than 12:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing, (ii) inthe case of a Eurocurrency Borrowing denominated in a Foreign Currency (other than AUD or NZD), not later than 12:00 p.m.,London time, three Business Days before the date of the proposed Borrowing, (iii) in the case of an ABR Borrowing, not laterthan 12:00 p.m., New York City time, on the date of the proposed Borrowing or (iv) in the case of a Eurocurrency Borrowingdenominated in AUD or NZD, not later than 12:00 p.m., London time, four Business Days before the date of the proposed Borrowing.Each such e-mail Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery, telecopy or e-mail tothe Administrative Agent of a written Borrowing Request, signed by the applicable Borrower.

 

(b)       Contentof Borrowing Requests. Each request for a Borrowing (whether a written Borrowing Request or an e-mail request) shall specifythe following information in compliance with Section 2.02:

 

(i)         thename of the applicable Borrower;

 

(ii)        whethersuch Borrowing is to be made under the Dollar Subcommitments with respect to such Borrower or the Multicurrency Subcommitmentswith respect to such Borrower;

 

(iii)       theaggregate amount and Currency of such Borrowing;

 

(iv)       thedate of such Borrowing, which shall be a Business Day;

 

 

 

(v)       inthe case of a Borrowing denominated in Dollars, whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;

 

(vi)       inthe case of a Eurocurrency Borrowing, the Interest Period therefor, which shall be a period contemplated by the definition of theterm “Interest Period” and permitted under Section 2.02(d); and

 

(vii)      thelocation and number of the applicable Borrower’s account (or such other account(s) as such Borrower may designate in a writtenBorrowing Request accompanied by information reasonably satisfactory to the Administrative Agent as to the identity and purposeof such other account(s)) to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.

 

(c)       Noticeby the Administrative Agent to the Lenders. Promptly following receipt of a Borrowing Request in accordance with this Section,the Administrative Agent shall advise each applicable Lender of the details thereof and of the amounts of such Lender’s Loanto be made as part of the requested Borrowing.

 

(d)       Failureto Elect. If no election as to the Class of a Borrowing is specified in a Borrowing Request, then the requested Borrowing shallbe denominated in Dollars and shall be a Multicurrency Borrowing (or, to the extent such requested Borrowing exceeds the availableMulticurrency Subcommitments of the applicable Borrower at such time, a Dollar Borrowing in an amount equal to such excess to theextent there is availability under the Dollar Subcommitments of such Borrower). If no election as to the Currency of a Borrowingis specified in a Borrowing Request, then the requested Borrowing shall be denominated in Dollars. If no election as to the Typeof a Borrowing is specified in a Borrowing Request, then the requested Borrowing shall be a Eurocurrency Borrowing having an InterestPeriod of one month and if an Agreed Foreign Currency has been specified, the requested Borrowing shall be a Eurocurrency Borrowingdenominated in such Agreed Foreign Currency having an Interest Period of one month. If a Eurocurrency Borrowing is requested butno Interest Period is specified, (i) if the Currency specified for such Borrowing is Dollars (or if no Currency has been so specified),the requested Borrowing shall be a Eurocurrency Borrowing denominated in Dollars having an Interest Period of one month’sduration, and (ii) if the Currency specified for such Borrowing is an Agreed Foreign Currency, the applicable Borrower shall bedeemed to have selected an Interest Period of one month’s duration.

 

(e)       Waiverof Notice of Initial Borrowing. Notwithstanding anything to the contrary herein, the Administrative Agent and each Lender herebywaive the notice requirements set forth in Section 2.03(a) in respect of any Borrowing to be made to any Borrower on the EffectiveDate. For the avoidance of doubt, such waiver shall not affect any future obligations of any Borrower to comply with the obligationsof Section 2.03(a) in connection with any Borrowing Request.

 

 

 

SECTION 2.04.          Letters of Credit.

 

(a)       General.Subject to the terms and conditions set forth herein, in addition to the Loans made to each Borrower provided for in Section 2.01,each Borrower may request the Issuing Bank of such Borrower to issue, at any time and from time to time during the AvailabilityPeriod and under the Multicurrency Subcommitments with respect to such Borrower, Letters of Credit denominated in Dollars or inany Agreed Foreign Currency for such Borrower’s own account or the account of its designee (provided such Borrower and theother members of its Obligor Group shall remain primarily liable to the Lenders hereunder for payment and reimbursement of allamounts payable in respect of such Letter of Credit hereunder) in such form as is acceptable to the Issuing Bank in its reasonabledetermination and for the benefit of such named beneficiary or beneficiaries as are specified by such Borrower. Letters of Creditissued hereunder shall constitute utilization of the Multicurrency Subcommitments of the applicable Borrower up to the aggregateamount then available to be drawn thereunder by such Borrower.

 

(b)       Noticeof Issuance, Amendment, Renewal or Extension. To request the issuance of a Letter of Credit (or the amendment, renewal or extensionof an outstanding Letter of Credit), the applicable Borrower shall hand deliver or telecopy (or transmit by e-mail, if arrangementsfor doing so have been approved by the Issuing Bank of such Borrower) to the Issuing Bank of such Borrower and the AdministrativeAgent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuanceof a Letter of Credit on behalf of such Borrower, or identifying the Letter of Credit issued on behalf of such Borrower to be amended,renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), thedate on which such Letter of Credit is to expire (which shall comply with paragraph (d) of this Section), the amount and Currencyof such Letter of Credit, stating that such Letter of Credit is to be issued under the Multicurrency Subcommitments with respectto such Borrower, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare,amend, renew or extend such Letter of Credit. The Administrative Agent will promptly notify the Multicurrency Lenders followingthe issuance of any Letter of Credit. If requested by the Issuing Bank of such Borrower, the applicable Borrower also shall submita letter of credit application on its Issuing Bank’s standard form in connection with any request for a Letter of Creditto be issued on the behalf of such Borrower. In the event of any inconsistency between the terms and conditions of this Agreementand the terms and conditions of any form of letter of credit application or other agreement submitted by the applicable Borrowerto, or entered into by such Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of thisAgreement shall control.

 

(c)       Limitationson Amounts. A Letter of Credit shall be issued, amended, renewed or extended on behalf of a Borrower only if (and upon issuance,amendment, renewal or extension of each Letter of Credit such Borrower shall be deemed to represent and warrant that), after givingeffect to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure at such time of the applicable IssuingBank (determined for these purposes without giving effect to the participations therein of the Lenders pursuant to paragraph (e)of this Section) shall not exceed $25,000,000 (or such greater amount as may be agreed between such Borrower and such Issuing Bankfrom time to time), (ii) the total Revolving Multicurrency Credit Exposures with respect to such Borrower shall not exceedthe aggregate Multicurrency Subcommitments with respect to such Borrower, (iii) the total Covered Debt Amount of such Borrowershall not exceed the Borrowing Base then in effect for such Borrower and (iv) the aggregate amount of the Revolving MulticurrencyCredit Exposure of all of the Lenders denominated in a Foreign Currency shall not exceed 50% of the total Commitments hereunder.A Letter of Credit denominated in AUD or NZD shall be issued, amended, renewed or extended on behalf of a Borrower only if (andupon issuance, amendment, renewal or extension of each Letter of Credit such Borrower shall be deemed to represent and warrantthat), after giving effect to such issuance, amendment, renewal or extension, the aggregate amount of the Revolving MulticurrencyCredit Exposure of all of the Lenders denominated in AUD and NZD shall not exceed 20% of the total Commitments hereunder.

 

 

 

(d)       ExpirationDate. Each Letter of Credit shall expire at or prior to the close of business on the date twelve months after the date of theissuance of such Letter of Credit (or, in the case of any renewal or extension thereof, twelve months after the then-current expirationdate of such Letter of Credit, so long as such renewal or extension occurs within six months of such then-current expiration date);provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods;provided further, that (x) in no event shall a Letter of Credit expire after the Commitment Termination Date unlessthe applicable Borrower (1) deposits, on or prior to the Commitment Termination Date, into the Letter of Credit CollateralAccount Cash with respect to such Borrower, an amount equal to 102% of the undrawn face amount of all Letters of Credit issuedon behalf of such Borrower that remain outstanding as of the close of business on the Commitment Termination Date and (2) paysin full, on or prior to the Commitment Termination Date, all commissions required to be paid with respect to any such Letter ofCredit through the then-current expiration date of such Letter of Credit issued on behalf of such Borrower and (y) no Letterof Credit shall have an expiry date after the Maturity Date.

 

(e)       Participations.By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) by the applicable IssuingBank, and without any further action on the part of such Issuing Bank or the Lenders, such Issuing Bank hereby grants to each MulticurrencyLender, and each Multicurrency Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal tosuch Lender’s Applicable Multicurrency Percentage of the aggregate amount available to be drawn under such Letter of Credit.Each Multicurrency Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respectof Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment,renewal or extension of any Letter of Credit issued on behalf of a Borrower or the occurrence and continuance of a Default withrespect to such Borrower or termination (including in connection with a reallocation in accordance with Section 2.07(g)) of theSubcommitments with respect to such Borrower; provided that no Multicurrency Lender shall be required to purchase a participationin a Letter of Credit issued on behalf of a Borrower pursuant to this Section 2.04(e) if (x) the conditions set forthin Section 4.02 would not be satisfied in respect of a Borrowing by such Borrower at the time such Letter of Credit was issuedon behalf of such Borrower and (y) the Required Multicurrency Lenders shall have so notified the Issuing Bank in writing andshall not have subsequently determined that the circumstances giving rise to such conditions not being satisfied no longer exist.

 

 

 

In consideration and in furtherance of the foregoing,each Multicurrency Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of eachIssuing Bank, such Lender’s Applicable Multicurrency Percentage of each LC Disbursement made by such Issuing Bank in respectof Letters of Credit issued on behalf of a Borrower by such Issuing Bank promptly upon the request of such Issuing Bank (whichsuch request shall be made by the Issuing Bank in accordance with the notice requirements applicable to each Borrower with respectto a request for Loans in Section 2.05) at any time from the time of such LC Disbursement until such LC Disbursement is reimbursedby such Borrower or at any time after any reimbursement payment is required to be refunded to such Borrower for any reason. Suchpayment shall be made without any offset, abatement, withholding or reduction whatsoever. Each such payment shall be made in thesame manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatismutandis, to the payment obligations of the Multicurrency Lenders), and the Administrative Agent shall promptly pay to theapplicable Issuing Bank the amounts so received by it from the Multicurrency Lenders. Promptly following receipt by the AdministrativeAgent of any payment from the applicable Borrower pursuant to Section 2.04(f), the Administrative Agent shall distribute such paymentto the applicable Issuing Bank or, to the extent that the Multicurrency Lenders have made payments pursuant to this paragraph toreimburse such Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any payment made by a MulticurrencyLender pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement with respect to a Borrower shall not constitutea Loan to such Borrower and shall not relieve such Borrower of its obligation to reimburse such LC Disbursement.

 

(f)       Reimbursement.If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit issued by it, the applicable Borrower shallreimburse such Issuing Bank in respect of such LC Disbursement by paying to the Administrative Agent an amount equal to such LCDisbursement not later than 12:00 noon, New York City time, on (i) the Business Day that such Borrower receives noticeof such LC Disbursement, if such notice is received prior to 10:00 a.m., New York City time, or (ii) the Business Dayimmediately following the day that such Borrower receives such notice, if such notice is not received prior to such time; providedthat, if such LC Disbursement is not less than $1,000,000, such Borrower may, subject to the conditions to borrowing set forthherein, request in accordance with Section 2.03 that such payment be financed with a Eurocurrency Borrowing having an InterestPeriod of one month’s duration of either Class in an equivalent amount and, to the extent so financed, such Borrower’sobligation to make such payment shall be discharged and replaced by the resulting Eurocurrency Borrowing having an Interest Periodof one month’s duration.

 

If the applicable Borrower fails to make suchpayment when due, the Administrative Agent shall notify each applicable Lender of the applicable LC Disbursement, the payment thendue from such Borrower in respect thereof and such Lender’s Applicable Multicurrency Percentage thereof.

 

(g)       ObligationsAbsolute. Each Borrower’s obligation to reimburse LC Disbursements made with respect to Letters of Credit issued on behalfof such Borrower as provided in paragraph (f) of this Section shall be absolute, unconditional and irrevocable, and shallbe performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespectiveof (i) any lack of validity or enforceability of any Letter of Credit issued on behalf of such Borrower, or any term or provisiontherein, (ii) any draft or other document presented under a Letter of Credit issued on behalf of such Borrower proving tobe forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) paymentby the applicable Issuing Bank under a Letter of Credit issued on behalf of such Borrower against presentation of a draft or otherdocument that does not comply strictly with the terms of such Letter of Credit, and (iv) any other event or circumstance whatsoever,whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitabledischarge of such Borrower’s obligations hereunder.

 

 

 

None of the Administrative Agent, the Lenders,the Issuing Banks, or any of their respective Related Parties, shall have any liability or responsibility by reason of or in connectionwith the issuance or transfer of any Letter of Credit by any Issuing Bank or any payment or failure to make any payment thereunder(irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss ordelay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (includingany document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arisingfrom causes beyond the control of the applicable Issuing Bank; provided that the foregoing shall not be construed to excusethe applicable Issuing Bank from liability to the applicable Borrower to the extent of any direct damages (as opposed to consequentialdamages, claims in respect of which are hereby waived by such Borrower to the extent permitted by applicable law) suffered by suchBorrower that are caused by such Issuing Bank’s gross negligence or willful misconduct when determining whether drafts andother documents presented under a Letter of Credit issued by such Issuing Bank on behalf of such Borrower comply with the termsthereof. The parties hereto expressly agree that:

 

(i)       eachIssuing Bank may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Creditissued by such Issuing Bank without responsibility for further investigation, regardless of any notice or information to the contrary,and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms ofsuch Letter of Credit;

 

(ii)       eachIssuing Bank shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if suchdocuments are not in strict compliance with the terms of a Letter of Credit issued by such Issuing Bank; and

 

(iii)       thissentence shall establish the standard of care to be exercised by each Issuing Bank when determining whether drafts and other documentspresented under a Letter of Credit issued by such Issuing Bank comply with the terms thereof (and the parties hereto hereby waive,to the extent permitted by applicable law, any standard of care inconsistent with the foregoing).

 

(h)       DisbursementProcedures. Each Issuing Bank shall, within a reasonable time following its receipt thereof, examine all documents purportingto represent a demand for payment under a Letter of Credit issued by such Issuing Bank. Such Issuing Bank shall promptly aftersuch examination notify the Administrative Agent and the applicable Borrower by telecopy or e-mail of such demand for payment andwhether such Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delayin giving such notice shall not relieve such Borrower of its obligation to reimburse such Issuing Bank and the applicable Lenderswith respect to any such LC Disbursement.

 

 

 

(i)       InterimInterest. If an Issuing Bank shall make any LC Disbursement with respect to a Letter of Credit issued by such Issuing Bank,then, unless the applicable Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, theunpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excludingthe date that such Borrower reimburses such LC Disbursement, at the rate per annum then applicable to Eurocurrency Loans havingan Interest Period of one month’s duration; provided that, if such Borrower fails to reimburse such LC Disbursementwithin two Business Days following the date when due pursuant to paragraph (f) of this Section, then the provisions of Section 2.11(c)shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interestaccrued on and after the date of payment by any Lender pursuant to paragraph (f) of this Section to reimburse such IssuingBank shall be for the account of such Lender to the extent of such payment.

 

(j)       Replacementof the Issuing Bank. Any Issuing Bank may be replaced at any time by written agreement among the applicable Borrower, the AdministrativeAgent, the replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the applicable Lenders ofany such replacement of any Issuing Bank. At the time any such replacement shall become effective, the applicable Borrower shallpay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.10(b). From and after the effectivedate of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced IssuingBank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor andall previous Issuing Banks, as the context shall require. After the replacement of any Issuing Bank hereunder, the replaced IssuingBank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreementwith respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Lettersof Credit.

 

(k)       CashCollateralization. If the applicable Borrower shall be required to provide cover for its LC Exposure pursuant to Section 2.08(a),Section 2.09(c) Section 2.09(d) or the last paragraph of Article VII, such Borrower shall immediately deposit intoa segregated collateral account or accounts (herein, with respect to each Borrower, collectively, the “Letter of CreditCollateral Account”; for the avoidance of doubt, each Borrower’s Letter of Credit Collateral Account shall be segregatedfrom each other Borrower’s Letter of Credit Collateral Account) in the name and under the dominion and control of the AdministrativeAgent, Cash denominated in the Currency of the Letter of Credit under which such LC Exposure arises in an amount equal to the amountrequired under Section 2.08(a), Section 2.09(c), Section 2.09(d) or the last paragraph of Article VII, as applicable.Such deposit shall be held by the Administrative Agent as collateral in the first instance for its LC Exposure under this Agreementand thereafter for the payment of the “Secured Obligations” of such Borrower under and as defined in the Guaranteeand Security Agreement to which such Borrower is a party, and for these purposes such Borrower hereby grants a security interestto the Administrative Agent for the benefit of the applicable Lenders of such Borrower in the Letter of Credit Collateral Accountwith respect to such Borrower and in any financial assets (as defined in the Uniform Commercial Code) or other property heldtherein.

 

 

 

SECTION 2.05.          Funding of Borrowings.

 

(a)       Fundingby Lenders. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediatelyavailable funds by 1:00 p.m., Local Time, to the account of the Administrative Agent most recently designated by it for suchpurpose by notice to the Lenders. The Administrative Agent will make such Loans available to the applicable Borrower by promptlycrediting the amounts so received, in like funds, to the account(s) of such Borrower designated by such Borrower in the applicableBorrowing Request; provided that Borrowings made to such Borrower to finance the reimbursement of an LC Disbursement withrespect to such Borrower as provided in Section 2.04(f) shall be remitted by the Administrative Agent to the applicable IssuingBank.

 

(b)       Presumptionby the Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposeddate of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing,the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a)of this Section and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. Insuch event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, thenthe applicable Lender and the applicable Borrower severally agree to pay to the Administrative Agent forthwith on demand such correspondingamount in the corresponding Currency with interest thereon, for each day from and including the date such amount is made availableto such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, theNYFRB Rate or (ii) in the case of such Borrower, the interest rate applicable at the time to Eurocurrency Loans having anInterest Period of one month’s duration made to such Borrower. If such Lender pays such amount to the Administrative Agent,then such amount shall constitute such Lender’s Loan included in such Borrowing. Nothing in this paragraph shall relieveany Lender of its obligation to fulfill its commitments hereunder, and shall be without prejudice to any claim any Borrower mayhave against a Lender that shall have failed to make such payment to the Administrative Agent.

 

SECTION 2.06.          Interest Elections.

 

(a)       Electionsby the Applicable Borrower for Borrowings. Subject to Section 2.03(d), the Loans constituting each Borrowing initiallyshall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have theInterest Period specified in such Borrowing Request. Thereafter the applicable Borrower may elect to convert such Borrowing toa Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a EurocurrencyBorrowing, may elect the Interest Period therefor, all as provided in this Section; provided, however, that (i) aBorrowing of a Class may only be continued or converted into a Borrowing of the same Class, (ii) a Borrowing denominated inone Currency may not be continued as, or converted into, a Borrowing in a different Currency, (iii) no Eurocurrency Borrowingdenominated in a Foreign Currency may be continued if, after giving effect thereto, (x) the aggregate Revolving Multicurrency CreditExposures with respect to the applicable Borrower would exceed the aggregate Multicurrency Subcommitments with respect to suchBorrower or (y) the aggregate amount of the Revolving Multicurrency Credit Exposure of all of the Lenders denominated in a ForeignCurrency would exceed 50% of the total Commitments hereunder, (iv) no Eurocurrency Borrowing denominated in AUD or NZD may be continuedif, after giving effect thereto, the aggregate amount of the Revolving Multicurrency Credit Exposure of all of the Lenders denominatedin AUD and NZD would exceed 20% of the total Commitments hereunder and (v) a Eurocurrency Borrowing denominated in a ForeignCurrency may not be converted into a Borrowing of a different Type. The applicable Borrower may elect different options with respectto different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders ofthe respective Class holding the Loans constituting such Borrowing, and the Loans constituting each such portion shall thereafterbe considered a separate Borrowing.

 

 

 

(b)       Noticeof Elections. To make an election pursuant to this Section, the applicable Borrower shall notify the Administrative Agent ofsuch election by delivery of a signed Interest Election Request or by e-mail by the time that a Borrowing Request would be requiredunder Section 2.03 if such Borrower were requesting a Borrowing of the Type resulting from such election to be made on theeffective date of such election. Each such e-mail Interest Election Request shall be irrevocable and shall be confirmed promptlyby hand delivery, telecopy or e-mail to the Administrative Agent of a written Interest Election Request signed by the applicableBorrower.

 

(c)       Contentof Interest Election Requests. Each Interest Election Request (whether a written Interest Election Request or an e-mail request)shall specify the following information in compliance with Section 2.02:

 

(i)         thename of the applicable Borrower;

 

(ii)        theBorrowing (including the Class) to which such Interest Election Request applies and, if different options are being elected withrespect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the informationto be specified pursuant to clauses (iv) and (v) of this paragraph shall be specified for each resulting Borrowing);

 

(iii)       theeffective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iv)       inthe case of a Borrowing denominated in Dollars, whether the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;and

 

(v)        ifthe resulting Borrowing is a Eurocurrency Borrowing, the Interest Period therefor after giving effect to such election, which shallbe a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d).

 

(d)       Noticeby the Administrative Agent to the Lenders. Promptly following receipt of an Interest Election Request, the AdministrativeAgent shall advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

 

 

(e)       Failureto Elect; Events of Default. If the applicable Borrower fails to deliver a timely and complete Interest Election Request withrespect to a Eurocurrency Borrowing prior to the end of the Interest Period therefor, then, unless such Borrowing is repaid asprovided herein, (i) if such Borrowing is denominated in Dollars, at the end of such Interest Period such Borrowing shallbe converted to a Eurocurrency Borrowing of the same Class having an Interest Period of one month’s duration, and (ii) ifsuch Borrowing is denominated in a Foreign Currency, such Borrower shall be deemed to have selected an Interest Period of one month’sduration. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing with respect toa Borrower and the Administrative Agent, at the request of the Required Lenders, so notifies such Borrower, then, so long as suchEvent of Default is continuing with respect to such Borrower no outstanding Eurocurrency Borrowing made to such Borrower may havean Interest Period of more than one month’s duration.

 

SECTION 2.07.          Termination, Reduction, Increaseor Reallocation of the Commitments and the Subcommitments.

 

(a)       ScheduledTermination. Unless previously terminated in accordance with the terms of this Agreement, the Commitments of each Class shallterminate on the Commitment Termination Date.

 

(b)       VoluntaryTermination or Reduction. In addition to the right to reallocate pursuant to paragraph (g) of this Section, any Borrower mayat any time without premium or penalty terminate, or from time to time reduce, its Subcommitments ratably among each Class; providedthat (i) each reduction of any Subcommitments pursuant to this sentence shall be in an amount that is $5,000,000 or a larger multipleof $1,000,000 in excess thereof (or, in each case, if less, the entire remaining amount of the Subcommitments of any Class withrespect to such Borrower) and (ii) such Borrower shall not terminate or reduce the Subcommitments if, after giving effect to anyconcurrent prepayment of the Loans of any Class made to such Borrower in accordance with Section 2.09, the total Revolving CreditExposures of such Class with respect to such Borrower would exceed the total Subcommitments of such Class with respect to suchBorrower.

 

(c)       Noticeof Voluntary Termination or Reduction. The applicable Borrower shall notify the Administrative Agent of any election to terminateor reduce its Subcommitments under paragraph (b) of this Section at least three Business Days prior to the effective dateof such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice,the Administrative Agent shall advise the applicable Lenders of the contents thereof. Each notice delivered by a Borrower pursuantto this Section shall be irrevocable; provided that any such notice of termination or reduction of the Subcommitments ofa Class may state that such notice is conditioned upon the effectiveness of other events (including the reallocation of such Subcommitmentspursuant to paragraph (g) of this Section), in which case such notice may be revoked by such Borrower (by notice to the AdministrativeAgent on or prior to the specified effective date) if such condition is not satisfied.

 

(d)       Effectof Termination or Reduction. Each termination or reduction of Subcommitments of a Class with respect to a Borrower made pursuantto paragraph (b) of this Section shall (i) be made ratably among the Lenders in accordance with their respective Subcommitmentsof such Class with respect to such Borrower and (ii) result in a permanent termination of Commitments in an amount equal to theSubcommitments so terminated or reduced. Each Lender authorizes and instructs the Administrative Agent to, concurrently with andimmediately after the effectiveness of any termination or reduction of Subcommitments pursuant to paragraph (b) of this Section,amend Schedule I to reflect the aggregate amount of each Lender’s aggregate Commitments and such Lender’s Subcommitmentswith respect to each Borrower.

 

 

 

(e)       Increaseof the Commitments.

 

(i)       Requestsfor Increase. Each Borrower shall have the right, at any time after the Effective Date but prior to the Commitment TerminationDate, to propose that the Commitments of a Class hereunder be increased (each such proposed increase being a “CommitmentIncrease”) by notice to the Administrative Agent, specifying each existing Lender (each an “Increasing Lender”)and/or each additional lender (each an “Assuming Lender”) that shall have agreed to an additional Commitmentand the date on which such increase is to be effective (the “Commitment Increase Date”), which shall be a BusinessDay at least three Business Days (or such lesser period as the Administrative Agent may reasonably agree) after delivery of suchnotice and at least 30 days prior to the Commitment Termination Date; provided that no Lender shall be obligatedto provide any increased Commitment; provided, further that:

 

(A)       eachincrease shall be in a minimum amount of at least $25,000,000 or a larger multiple of $5,000,000 in excess thereof (or, in eachcase, in such other amounts as the Administrative Agent may reasonably agree);

 

(B)       theaggregate amount of all Commitments outstanding, at any given time, shall not exceed $5,152,500,000;

 

(C)       eachAssuming Lender shall be consented to by the Administrative Agent and the Issuing Banks (in each case, which consent shall notbe unreasonably withheld or delayed);

 

(D)       noDefault or Event of Default shall have occurred and be continuing on such Commitment Increase Date or shall result from the proposedCommitment Increase with respect to any Borrower; and

 

(E)       therepresentations and warranties made by such Borrower and the other members of its Obligor Group contained in this Agreement shallbe true and correct in all material respects (unless the relevant representation and warranty already contains a materiality qualifieror, in the case of the representations and warranties in Sections 3.01, 3.02, 3.04, 3.11 and 3.15 of this Agreement,and in Sections 2.01, 2.02 and 2.04 through 2.08 of the Guarantee and Security Agreement such Borrower is partyto, in each such case, such representation and warranty shall be true and correct in all respects) on and as of the CommitmentIncrease Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been madeas of a specific date, as of such specific date).

 

 

 

(ii)       Effectivenessof Commitment Increase. On the Commitment Increase Date for any Commitment Increase, (A) each Assuming Lender, if any, shallbecome a Lender hereunder as of such Commitment Increase Date with the Commitment in the amount set forth in the agreement referredto in Section 2.07(e)(ii)(y), (B) the Commitment of the respective Class of each Increasing Lender part of such Commitment Increase,if any, shall be increased as of such Commitment Increase Date to the amount set forth in the agreement referred to in Section2.07(e)(ii)(y), (C) the Borrower Sublimit with respect to the Borrower requesting such Commitment Increase shall be increased asof such Commitment Increase Date in an amount equal to such total Commitment Increase, and (D) each Lender’s Subcommitmentswith respect to each Borrower shall be reallocated as of such Commitment Increase Date in the manner set forth in clause (iv) below;provided that:

 

(x)       theAdministrative Agent shall have received on or prior to 12:00 p.m., New York City time, on such Commitment Increase Date a certificatesigned by (1) a duly authorized officer of such Borrower stating that each of the applicable conditions to such Commitment Increaseset forth in the foregoing paragraph (i) has been satisfied with respect to such Borrower and (2) a duly authorized officer ofeach other Borrower stating that the condition set forth in the foregoing subparagraph (i)(D) has been satisfied with respect tosuch other Borrower; and

 

(y)       eachAssuming Lender or Increasing Lender shall have delivered to the Administrative Agent, on or prior to 12:00 p.m., New YorkCity time, on such Commitment Increase Date, an agreement, in form and substance reasonably satisfactory to the Borrowers and theAdministrative Agent, pursuant to which such Lender shall, effective as of such Commitment Increase Date, undertake a Commitmentor an increase of Commitment in each case of the respective Class, duly executed by such Assuming Lender or such Increasing Lender,as applicable, and the Borrowers, and acknowledged by the Administrative Agent.

 

(iii)       Recordationinto Register. Upon its receipt of (1) an agreement referred to in clause (ii)(y) above executed by each Assuming Lenderand each Increasing Lender part of such Commitment Increase, as applicable, together with the certificate referred to in clause (ii)(x)above and (2) an amended Schedule I pursuant to clause (iv) below, the Administrative Agent shall, (x) if such agreement referredto in clause (ii)(y) has been completed, accept such agreement, (y) record the information contained in the amended ScheduleI in the Register and (z) give prompt notice thereof to the Borrowers.

 

(iv)       Adjustmentof Subcommitments upon Effectiveness of Increase. On the Commitment Increase Date for any Commitment Increase, the Subcommitmentsof each Lender (including each Assuming Lender and Increasing Lender, as applicable) shall be reallocated and adjusted among eachof the Borrowers such that each Lender’s Subcommitment with respect to each Borrower is equal to such Lender’s prorata share of the total Commitments as in effect immediately after giving effect to such Commitment Increase. Notwithstanding anythingto the contrary contained herein, no Lender’s consent shall be required in connection with the reallocation of Subcommitmentspursuant to this clause (iv) and each Lender authorizes and instructs the Administrative Agent to, concurrently with and immediatelyafter the effectiveness of any such reallocation, amend Schedule I to reflect the aggregate amount of each Lender’s (includingIncreasing Lenders and Assuming Lenders part of any Commitment Increase and giving pro forma effect to such Commitment Increaseand the reallocations made pursuant to this clause (iv)) aggregate Commitments and such Lender’s Subcommitments with respectto each Borrower. Each reference to Schedule I in this Agreement shall be to Schedule I as amended from time to time.

 

 

 

(f)       Adjustmentsof Borrowings upon Effectiveness of Subcommitment Increase or Reallocations. On each date the Subcommitments are increasedor reallocated pursuant to paragraph (e) of this Section, immediately after giving effect to such increase or reallocation, eachBorrower shall (A) prepay the outstanding Loans made to such Borrower (if any) of the affected Class in full, (B) simultaneouslyborrow new Loans of such Class hereunder in an amount equal to such prepayment (in the case of Eurocurrency Loans, (1) to any Borrowerwhose aggregate Subcommitments are increasing at such time, with Eurocurrency Rates equal to the outstanding Eurocurrency Rateand with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s) and (2) to any Borrower whose aggregateSubcommitments are not changing at such time, with Eurocurrency Rates having Interest Periods (the duration of which may be lessthan one month) that are the same as the Eurocurrency Rates and Interest Periods applicable to outstanding Loans made to such Borrowerat such time); provided that, with respect to subclauses (A) and (B), (x) the prepayment to, and borrowing from,any existing Lender by such Borrower shall be effected by book entry to the extent that any portion of the amount prepaid to suchLender by such Borrower will be subsequently borrowed from such Lender by such Borrower and (y) the existing Lenders, theIncreasing Lenders and the Assuming Lenders shall make and receive payments among themselves, in a manner acceptable to the AdministrativeAgent, so that, after giving effect thereto, the Loans of such Class made to such Borrower are held ratably by the Lenders of suchClass in accordance with their respective Subcommitments of such Class with respect to such Borrower (and after giving effect tosuch Commitment Increase) and (C) pay to the Lenders of such Class with respect to such Borrower the amounts, if any, payableunder Section 2.15 as a result of any such prepayment (it being understood that any payments required pursuant to Section2.15 by any Borrower that is not increasing the aggregate amount of its Subcommitments shall be payable by the Borrowers increasingthe aggregate amount of their respective Subcommitments (which amount shall be payable ratably among the increasing Borrowers basedon the amount of increased Subcommitments received by each such Borrower as a result of such Commitment Increase)). Concurrentlytherewith, immediately after giving effect to the reallocations pursuant to paragraph (e) of this Section or otherwise pursuantto this Agreement, the Lenders of such Class shall be deemed to have adjusted their participation interests in any outstandingLetters of Credit of such Class issued on behalf of each Borrower so that such interests are held ratably in accordance with theirSubcommitments of such Class with respect to such Borrower as so increased.

 

(g)       VoluntaryReallocation of Subcommitments.

 

 

 

(i)       VoluntaryReallocation. The Borrowers may at any time without premium or penalty, or from time to time, elect to reallocate all or anyportion of the Subcommitments from one or more of the Borrowers to one or more of the other Borrowers, in each case ratably amongthe applicable Lenders (each such proposed reallocation being a “Voluntary Reallocation”): (A) at the optionof any two or more Borrowers and/or (B) in connection with the designation of a “Borrower” hereunder pursuant to Section9.19; provided that, (v) since the Effective Date, there has not been any event, development or circumstance that has hador could reasonably be expected to have a Material Adverse Effect with respect to the Increasing Borrower, (w) as of the date ofsuch election, no Default shall have occurred and be continuing with respect to any Borrower (other than any Reducing Borrower(as defined below) part of such Voluntary Reallocation that is reducing its Subcommitments; provided that (1) such ReducingBorrower does not have any outstanding Designated Indebtedness, or (2) if such Reducing Borrower has outstanding Designated Indebtedness,its Subcommitments are being reduced in full), (x) each Reducing Borrower and each Increasing Borrower part of such Voluntary Reallocation,as applicable shall have taken all necessary corporate action, (y) no Reducing Borrower shall reduce the Subcommitments of suchReducing Borrower if, after giving effect to any concurrent prepayment of Loans of any Class made by such Reducing Borrower, thetotal Revolving Credit Exposures of such Class with respect to such Reducing Borrower would exceed the total Subcommitments ofsuch Class with respect to such Reducing Borrower and (z) unless otherwise agreed by the Administrative Agent, after the EffectiveDate, the Borrowers may make no more than four (4) reallocations in the aggregate pursuant to paragraph (g)(i)(A), in any rollingtwelve-month period (for the avoidance of doubt, any one or more transactions described in this clause (z) occurring on the samedate shall be deemed to be a single reallocation). Notwithstanding the foregoing, no Voluntary Reallocation may be effected ifsuch Voluntary Reallocation would result in an increase of the aggregate Subcommitments with respect to any Borrower of more than$100,000,000 in the aggregate in any rolling twelve-month period (after giving effect to each Voluntary Reallocation during suchperiod).

 

(ii)       Noticeof Voluntary Reallocation. The Reallocating Borrowers (as defined below) shall jointly notify the Administrative Agent of anyelection to reallocate the Subcommitments with respect to such Borrowers under paragraph (a) of this Section at least ten (10)Business Days (or such lesser period as the Administrative Agent may reasonably agree) prior to the effective date of such reallocation,specifying (A) each Borrower that shall have agreed to reduce its Subcommitments (each a “Reducing Borrower”),(B) each Borrower that shall have agreed to increase its Subcommitments (each an “Increasing Borrower” and togetherwith the Reducing Borrowers, the “Reallocating Borrowers”), (C) the amounts of the reduction being made by eachReducing Borrower, (D) the amounts of the increase being made by each Increasing Borrower and (E) the date on which such reallocationis to be effective (the “Reallocation Date”). Promptly following receipt of any election, the AdministrativeAgent shall advise the applicable Lenders of the contents thereof. Each notice delivered by the Reallocating Borrowers pursuantto this Section shall be irrevocable; provided that a notice of Voluntary Reallocation may state that such notice is conditionedupon the effectiveness of other events, in which case such notice may be revoked by any Reallocating Borrower (by notice to theAdministrative Agent on or prior to the specified effective date) if such condition is not satisfied.

 

 

 

(iii)       Effectivenessof Voluntary Reallocation. On the Reallocation Date for any Voluntary Reallocation and in each case in the amounts set forthin the notice referred to in paragraph (g)(ii) of this Section, (A) the Subcommitments, Loans and LC Exposure of the respectiveClass with respect to each Reducing Borrower part of such Voluntary Reallocation shall be reduced ratably among the Lenders inaccordance with their respective aggregate Commitments of such Class, (B) the Borrower Sublimit with respect to each Reducing Borrowerpart of such Voluntary Reallocation shall be reduced as of such Reallocation Date, (C) the Subcommitments, Loans and LC Exposureof the respective Class with respect to each Increasing Borrower part of the Voluntary Reallocation shall be increased ratablyamong the Lenders in accordance with their respective aggregate Commitments of such Class and (D) the Borrower Sublimit with respectto each Increasing Borrower part of such Voluntary Reallocation shall be increased as of such Reallocation Date. Each Lender authorizesand instructs the Administrative Agent to, concurrently with and immediately after the effectiveness of any Voluntary Reallocation,amend Schedule I to reflect the aggregate amount of each Lender’s aggregate Commitments and such Lender’s Subcommitmentswith respect to each Borrower. Neither FSIC II nor FSIC III may at any time as a result of a reallocation under this clause (iii)hold Subcommitments in excess of 65% of the total Commitments hereunder unless such Borrower is the Surviving Borrower in a BorrowerMerger.

 

(h)       Reallocationof Subcommitments Upon Merger of Borrowers. In connection with and concurrently with the effectiveness of a Borrower Merger,all of the Subcommitments, Loans and LC Exposures (if any) of the Non-Surviving Obligors will be reallocated to the Surviving Borrower,in each case ratably among the applicable Lenders. For the avoidance of doubt, the Surviving Borrower shall immediately, as ofthe date of consummation of such merger or consolidation, receive credit in its Collateral Pool and its Borrowing Base for allPortfolio Investments of each Non-Surviving Obligor that were included in each Non-Surviving Obligor’s Collateral Pool andBorrowing Base, respectively, immediately prior to such Borrower Merger to the extent such Portfolio Investments are included inthe Collateral Pool of the Surviving Borrower upon the consummation of such Borrower Merger and the Surviving Borrower will assumeall of the Non-Surviving Borrower’s obligations hereunder as provided herein. As of the date of the consummation of suchBorrower Merger, each Issuing Bank (if any) of each Non-Surviving Borrower shall immediately become one of the Issuing Banks forthe Surviving Borrower and each Issuing Bank authorizes, and instructs the Administrative Agent to amend Schedule I accordingly.Each Lender authorizes and instructs the Administrative Agent to, concurrently with and immediately after the effectiveness ofany Borrower Merger, amend Schedule I to reflect the aggregate amount of each Lender’s aggregate Commitments and such Lender’sSubcommitments with respect to each Borrower.

 

SECTION 2.08.          Repayment of Loans; Evidenceof Debt.

 

(a)       Repayment.Each Borrower (severally and not jointly, and solely with respect to itself) hereby unconditionally promises to pay to the AdministrativeAgent for the account of the applicable Lenders the outstanding principal amount of each Class of its Loans and all other amountsdue and owing by such Borrower hereunder and under the other Loan Documents to which such Borrower or any other member of its ObligorGroup is a party on the Maturity Date.

 

 

 

In addition, on the Maturity Date, to the extentany Letter of Credit issued on behalf of such Borrower is outstanding (notwithstanding the requirements of Section 2.04(d)),such Borrower shall deposit into the Letter of Credit Collateral Account Cash of such Borrower an amount equal to 102% ofthe undrawn face amount of all Letters of Credit issued on behalf of such Borrower outstanding on the close of business on theMaturity Date, such deposit to be held by the Administrative Agent as collateral security for the LC Exposure with respect to suchBorrower under this Agreement in respect of the undrawn portion of such Letters of Credit issued on behalf of such Borrower.

 

(b)       Mannerof Payment. Subject to Section 2.09(d), prior to any repayment or prepayment of any Borrowings hereunder, the applicable Borrowershall select the Borrowing or Borrowings to be paid and shall notify the Administrative Agent by telecopy or e-mail of such selectionnot later than 12:00 p.m., New York City time, three Business Days before the scheduled date of such repayment. If the repaymentor prepayment is denominated in Dollars and the Class to be repaid or prepaid is specified (or if no Class is specified and thereis only one Class of Loans with Borrowings in Dollars outstanding), such Borrower shall repay or prepay any outstanding ABR Borrowingsof such Class made to such Borrower pro rata and thereafter repay or prepay the remaining Borrowings within such Class made tosuch Borrower in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remainingInterest Period to be repaid or prepaid first). If the repayment or prepayment is denominated in Dollars and the Class to be repaidor prepaid is not specified, such Borrower shall repay or prepay pro rata between any outstanding ABR Borrowings made to such Borrowerof the Dollar Lenders and the Multicurrency Lenders, and thereafter repay or prepay the remaining Borrowings made to such Borrowerdenominated in Dollars in the order of the remaining duration of their respective Interest Periods (the Borrowings with the shortestremaining Interest Period to be repaid or prepaid first). If the repayment or prepayment is denominated in an Agreed Foreign Currency(including as a result of such Borrower’s receipt of proceeds from a prepayment event in such Agreed Foreign Currency), suchBorrower may, at its option, repay or prepay any outstanding Borrowings made to such Borrower in such Currency ratably among justthe Multicurrency Lenders in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortestremaining Interest Period to be repaid or prepaid first), and, if after such payment, the balance of the Borrowings made to suchBorrower denominated in such Currency is zero, then if there are any remaining proceeds, such Borrower shall repay or prepay theLoans made to such Borrower (or provide cover for outstanding Letters of Credit issued on behalf of such Borrower as contemplatedby Section 2.04(k)) on a pro-rata basis between each outstanding Class of Revolving Credit Exposure with respect to such Borrowerin the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining InterestPeriod to be repaid or prepaid first). Each payment of a Borrowing of a Class shall be applied ratably to the Loans of such Classincluded in such Borrowing.

 

(c)       Maintenanceof Records by Lenders. Each Lender shall maintain in accordance with its usual practice records evidencing the indebtednessof each Borrower to such Lender resulting from each Loan made by such Lender to such Borrower, including the amounts and Currencyof principal and interest payable and paid to such Lender from time to time hereunder.

 

 

 

(d)       Maintenanceof Records by the Administrative Agent. The Administrative Agent shall maintain records in which it shall record (i) the Borrowerto which each Loan hereunder is made, (ii) the amount and Currency of each Loan made hereunder, the Class and Type thereof andeach Interest Period therefor, (iii) the amount and Currency of any principal or interest due and payable or to become dueand payable from the applicable Borrower to each Lender of such Class hereunder and (iv) the amount and Currency of any sumreceived by the Administrative Agent hereunder for the account of the Lenders with respect to each Loan and each Lender’sshare thereof.

 

(e)       Effectof Entries. The entries made in the records maintained pursuant to paragraph (c) or (d) of this Section shall beprima facie evidence, absent obvious error, of the existence and amounts of the obligations recorded therein; providedthat the failure of any Lender or the Administrative Agent to maintain such records or any error therein shall not in any manneraffect the obligation of any Borrower to repay the Loans made to such Borrower in accordance with the terms of this Agreement.In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records maintainedby the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in theabsence of obvious error. In the event of any conflict between the Register and any other accounts and records maintained by theAdministrative Agent, the Register shall control in the absence of obvious error.

 

(f)       PromissoryNotes. Any Lender may request that Loans made by it be evidenced by a promissory note. In such event, the applicable Borrowershall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, tosuch Lender and its permitted registered assigns) in substantially the form attached hereto as Exhibit G or in such other formas shall be reasonably satisfactory to the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interestthereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissorynotes in such form payable to the payee named therein (or, if such promissory note is a registered note, to such payee and itspermitted registered assigns). Upon the consummation of a Borrower Merger, at the request of the Surviving Borrower, each Lendershall promptly return each promissory note (if any) of each Non-Surviving Obligor in its possession to the Surviving Borrower (orprovide a certification to the Surviving Borrower that such promissory note has been lost or destroyed).

 

SECTION 2.09.          Prepayment of Loans.

 

(a)       OptionalPrepayments. Each Borrower shall have the right at any time and from time to time (but subject to Sections 2.09(e) and (f))to prepay any Borrowing made to such Borrower in whole or in part, without premium or penalty except for payments under Section 2.15,subject to the requirements of this Section.

 

(b)       MandatoryPrepayments Due to Changes in Exchange Rates.

 

 

 

(i)       Determinationof Amount Outstanding. On each Quarterly Date and, in addition, promptly upon the receipt by the Administrative Agent of aCurrency Valuation Notice (as defined below), the Administrative Agent shall determine the aggregate Revolving Multicurrency CreditExposure with respect to the applicable Borrower. For the purpose of this determination, the outstanding principal amount of anyLoan or LC Exposure that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent of the amount in theForeign Currency of such Loan or LC Exposure, determined as of such Quarterly Date or, in the case of a Currency Valuation Noticereceived by the Administrative Agent prior to 11:00 a.m., New York City time, on a Business Day, on such Business Day or,in the case of a Currency Valuation Notice otherwise received, on the first Business Day after such Currency Valuation Notice isreceived. Upon making such determination, the Administrative Agent shall promptly notify the Multicurrency Lenders and the applicableBorrower thereof.

 

(ii)       Prepayment.If, on the date of such determination, the aggregate Revolving Multicurrency Credit Exposure with respect to the applicable Borrowerminus the LC Exposure with respect to such Borrower fully cash collateralized pursuant to Section 2.04(k) on such date exceeds 105%of the aggregate amount of the Multicurrency Subcommitments as then in effect with respect to such Borrower, such Borrower shallprepay the Multicurrency Loans made to such Borrower (and/or provide cover for LC Exposure with respect to such Borrower as specifiedin Section 2.04(k)) within 15 Business Days following such date of determination in such aggregate amounts as shall benecessary so that after giving effect thereto the aggregate Revolving Multicurrency Credit Exposure with respect to such Borrowerdoes not exceed the Multicurrency Subcommitments with respect to such Borrower.

 

For purposes hereof, “Currency Valuation Notice”means a notice given by the Required Multicurrency Lenders to the Administrative Agent stating that such notice is a “CurrencyValuation Notice” and requesting that the Administrative Agent determine the aggregate Revolving Multicurrency Credit Exposurewith respect to one or more specified Borrowers. The Administrative Agent shall not be required to make more than one valuationdetermination pursuant to Currency Valuation Notices within any rolling three month period.

 

Any prepayment made by a Borrower pursuant tothis paragraph shall be applied, first, to its Multicurrency Loans outstanding and second, as cover for its LC Exposure.

 

(c)       MandatoryPrepayments due to Borrowing Base Deficiency. In the event that at any time any Borrowing Base Deficiency shall exist withrespect to a Borrower, such Borrower shall (x) prepay (subject to Sections 2.09(e) and (f)) its Loans (and/or provide cover forthe Letters of Credit issued on such Borrower’s behalf as contemplated by Section 2.04(k)), or (y) reduce its otherIndebtedness that is included in the Covered Debt Amount of such Borrower, in such amounts as shall be necessary so that such BorrowingBase Deficiency is promptly cured and; provided that (i) the aggregate amount of such prepayment of Loans made to such Borrower(and cover for Letters of Credit issued on behalf of such Borrower) shall be at least equal to such Borrower’s RevolvingCredit Exposure’s ratable share (such ratable share being determined based on the outstanding principal amount of the RevolvingCredit Exposures with respect to such Borrower as compared to its other Indebtedness that is included in the Covered Debt Amountof such Borrower) of the aggregate prepayment and reduction of its other Indebtedness that is included in the Covered Debt Amountof such Borrower and (ii) if, within five Business Days after delivery of a Borrowing Base Certificate demonstrating suchBorrowing Base Deficiency (and/or at such other times as such Borrower has knowledge of such Borrowing Base Deficiency), such Borrowershall present the Administrative Agent with a reasonably feasible plan to enable such Borrowing Base Deficiency to be cured within 30Business Days (which 30-Business Day period shall include the five Business Days permitted for delivery of such plan), thensuch prepayment or reduction shall not be required to be effected immediately but may be effected in accordance with such plan(with such modifications as such Borrower may reasonably determine), so long as such Borrowing Base Deficiency is cured withinsuch 30-Business Day period.

 

 

 

(d)       MandatoryPrepayments due to Certain Events Following the Commitment Termination Date. Subject to Sections 2.09(d)(vi), (d)(vii), (e)and (f):

 

(i)       AssetSales. In the event that a Borrower or any other member of its Obligor Group shall receive any Net Asset Sale Proceeds at anytime after the Commitment Termination Date, such Borrower shall, no later than the third Business Day following the receipt ofsuch Net Asset Sale Proceeds, prepay the Loans made to such Borrower (and/or provide cover for the Letters of Credit issued onbehalf of such Borrower as contemplated by Section 2.04(k)) in an amount equal to such Net Asset Sale Proceeds; providedthat such Borrower shall only be required to apply such Net Asset Sale Proceeds to prepay the Loans made to such Borrower (and/orprovide cover for the Letters of Credit issued on behalf of such Borrower as contemplated by Section 2.04(k)) in respect ofnon-Portfolio Investments if and to the extent the cumulative aggregate amount of all Net Asset Sale Proceeds relating to non-PortfolioInvestments, from time to time, exceeds $5,000,000; provided, further that such Borrower shall not be required tomake any prepayment under this clause (i) to the extent such Net Asset Sale Proceeds were received in connection with a BorrowerMerger in which the assets or properties that were the subject of such Asset Sale were transferred to the Surviving Borrower.

 

(ii)       ExtraordinaryReceipts. In the event that a Borrower or any other member of its Obligor Group shall receive any Extraordinary Receipts atany time after the Commitment Termination Date, such Borrower shall, no later than the third Business Day following the receiptof such Extraordinary Receipts, prepay the Loans made to such Borrower (and/or provide cover for the Letters of Credit issued onbehalf of such Borrower as contemplated by Section 2.04(k)) in an amount equal to such Extraordinary Receipts; providedthat such Borrower shall only be required to apply such Extraordinary Receipts to prepay the Loans made to such Borrower (and/orprovide cover for the Letters of Credit issued on behalf of such Borrower as contemplated by Section 2.04(k)) if and to theextent the cumulative aggregate amount of such Extraordinary Receipts, from time to time, exceeds $5,000,000.

 

(iii)       Returnsof Capital. In the event that a Borrower or any other member of its Obligor Group shall receive any Return of Capital at anytime after the Commitment Termination Date, the applicable Borrower shall, no later than the third Business Day following the receiptof such Return of Capital, prepay the Loans made to such Borrower (and/or provide cover for the Letters of Credit issued on behalfof such Borrower as contemplated by Section 2.04(k)) in an amount equal to such Return of Capital.

 

 

 

(iv)       EquityIssuances. In the event that a Borrower shall receive any Cash proceeds from the issuance of Equity Interests of such Borrower(other than pursuant to any distribution reinvestment plan of such Borrower) at any time after the Commitment Termination Date,such Borrower shall, no later than the third Business Day following the receipt of such Cash proceeds, prepay the Loans made tosuch Borrower (and/or provide cover for the Letters of Credit issued on behalf of such Borrower as contemplated by Section 2.04(k))in an amount equal to seventy-five percent (75%) of such Cash proceeds, net of (1) underwriting discounts and commissionsor similar payments and other costs, fees, commissions, premiums and expenses incurred by such Borrower or any other member ofits Obligor Group directly incidental to such Cash receipts, including reasonable legal fees and expenses and (2) all taxes paidor reasonably estimated to be payable by such Borrower or such other Obligor as a result of such Cash receipts (after taking intoaccount any available tax credits or deductions).

 

(v)       Indebtedness.In the event that a Borrower or any other member of its Obligor Group shall receive any Cash proceeds from the issuance of Indebtedness(excluding Hedging Agreements and other Indebtedness permitted by Sections 6.01(a), (d), (e), (f), (i) and (j)) by such Borroweror such other Obligor, as applicable, at any time after the Commitment Termination Date, such Borrower shall, no later than thethird Business Day following the receipt of such Cash proceeds, prepay the Loans made to such Borrower (and/or provide cover forthe Letters of Credit issued on behalf of such Borrower as contemplated by Section 2.04(k)) in an amount equal to such Cashproceeds, net of (1) underwriting discounts and commissions or other similar payments and other costs, fees, commissions, premiumsand expenses incurred by such Borrower or any other member of its Obligor Group directly incidental to such Cash receipts, includingreasonable legal fees and expenses and (2) all taxes paid or reasonably estimated to be payable by such Borrower or such otherObligor as a result of such Cash receipts (after taking into account any available tax credits or deductions).

 

(vi)       Prepaymentof Eurocurrency Loans. To the extent the Loans to be prepaid from proceeds from any of the events described in subsections (i)through (v) above are Eurocurrency Loans, the applicable Borrower may defer such prepayment until the last day of the InterestPeriod applicable to such Loans, so long as such Borrower deposits an amount equal to the amount of such prepayment, no later thanthe third Business Day following the receipt of such proceeds, into a segregated collateral account (including, for the avoidanceof doubt, segregated from the account of each other Borrower) in the name and under the dominion and control of the AdministrativeAgent pending application of such amount to the prepayment of such Loans on the last day of such Interest Period.

 

(vii)       RICTax Distributions. Notwithstanding anything herein to the contrary, any Net Asset Sale Proceeds, Extraordinary Receipts, Returnof Capital or other Cash receipts required to be applied to the prepayment of the Loans pursuant to this Section 2.09(d) shallexclude the amounts estimated in good faith by the applicable Borrower to be necessary for such Borrower to make distributionssufficient in amount to achieve the objectives set forth in clauses (i), (ii) and (iii) of Section 6.05(b) hereof to the extentsuch Borrower recognizes any income or gains in connection with the receipt of such Net Asset Sale Proceeds, Extraordinary Receipts,Return of Capital or other Cash receipts and the recognition of such income or gains results in an increase in the amounts requiredto be distributed by such Borrower to achieve such objectives.

 

 

 

(e)       PaymentsFollowing the Commitment Termination Date or During an Event of Default. Notwithstanding any provision to the contrary in Section 2.08or this Section 2.09, following the Commitment Termination Date:

 

(i)       Nooptional prepayment of the Loans made of any Class shall be permitted unless at such time, the applicable Borrower also prepaysits Loans of the other Class or, to the extent no Loans of the other Class are outstanding, provides cash collateral as contemplatedby Section 2.04(k) for the outstanding Letters of Credit issued on behalf of such Borrower of such Class, which prepayment(and cash collateral) shall be made on a pro-rata basis (based on the outstanding principal amounts of such Indebtedness) betweeneach outstanding Class of Revolving Credit Exposure with respect to such Borrower;

 

(ii)       Anyprepayment of Loans in Dollars required to be made in connection with any of the events specified in Section 2.09(d) shall be appliedratably (based on the outstanding principal amounts of such Indebtedness) between the Dollar Lenders and the Multicurrency Lendersbased on the then outstanding Loans made to the applicable Borrower and Letters of Credit issued on behalf of such Borrower denominatedin Dollars; and

 

(iii)       Notwithstandingany other provision to the contrary in this Agreement, if an Event of Default has occurred and is continuing with respect to aBorrower, then any payment or repayment by such Borrower of the Loans made to such Borrower shall be made and applied ratably (basedon the aggregate Dollar Equivalents of the outstanding principal amounts of such Loans) between Dollar Loans made to such Borrower,Multicurrency Loans made to such Borrower and Letters of Credit issued on behalf of such Borrower.

 

(f)       Notices,Etc.

 

(i)       Theapplicable Borrower shall notify the Administrative Agent in writing by telecopy or e-mail of any prepayment hereunder by suchBorrower (A) in the case of prepayment of a Eurocurrency Borrowing denominated in Dollars under Section 2.09(a), not laterthan 12:00 p.m., New York City time (or, in the case of a prepayment of a Eurocurrency Borrowing denominated in a ForeignCurrency under Section 2.09(a), 12:00 p.m., London time), three Business Days before the date of prepayment, (B) in the caseof prepayment of an ABR Borrowing under Section 2.09(a) or any prepayment under Section 2.09(b), (c) or (d), not later than 12:00p.m., New York City time, on the Business Day of prepayment, or (C) in each case of the notice periods described in clauses (A)and (B), such lesser period as the Administrative Agent may reasonably agree with respect to notices given in connection with anyof the events specified in Section 2.09(d)(ii) or (iii). Each such notice shall be irrevocable and shall specify the prepaymentdate, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonablydetailed calculation of the amount of such prepayment; provided that, if a notice of prepayment is given in connection witha conditional notice of termination or reduction of the Subcommitments of a Class with respect to a Borrower as contemplated bySection 2.07, then such notice of prepayment may be revoked if such notice of termination or reduction is revoked in accordancewith Section 2.07 and any such notices given in connection with any of the events specified in Section 2.09(d) may be conditionedupon (x) the consummation of the Asset Sale or the issuance of Equity Interests or Indebtedness (as applicable) or (y) the receiptof net cash proceeds from Asset Sales, Net Extraordinary Receipts or Net Return of Capital. Promptly following receipt of any suchnotice relating to a Borrowing, the Administrative Agent shall advise the affected Lenders of the contents thereof. Prepaymentsshall be accompanied by accrued interest to the extent required by Section 2.11 and shall be made in the manner specifiedin Section 2.08(b).

 

 

 

(ii)       Inthe event a Borrower is required to make any concurrent prepayments under both paragraph (c) and also another paragraph of thisSection 2.09, the prepayment pursuant to such other paragraph of this Section 2.09 shall be made prior to any prepayment requiredto be made pursuant to paragraph (c) and the amount of the payment required pursuant to paragraph (c) (if any) shall be determinedimmediately after giving effect to the prepayment made (or to be made) under such other paragraph of this Section 2.09.

 

SECTION 2.10.          Fees.

 

(a)       CommitmentFee. Each Borrower severally, and not jointly, and solely with respect to the Subcommitments allocated to it, agrees to payto the Administrative Agent for the account of each Lender a commitment fee, which shall accrue for the period beginning on theEffective Date to but excluding the earlier of the date such Subcommitment terminates (including in connection with a reallocationin accordance with Section 2.07(g) or (h)) and the Commitment Termination Date, at a rate equal to (w) from the Effective Dateuntil the first Quarterly Date thereafter, 0.375% per annum on the daily unused amount of the Dollar Subcommitment and MulticurrencySubcommitment, as applicable, of such Lender with respect to such Borrower, (x) on and after the first Quarterly Date describedin clause (w), (i) 0.50% per annum on the daily unused amount of the Dollar Subcommitment and Multicurrency Subcommitment, as applicable,of such Lender with respect to such Borrower if such Lender’s average daily Revolving Credit Exposure with respect to suchBorrower for the immediately preceding quarter (or the period from the Effective Date until the first Quarterly Date thereafter,as applicable) is less than one-third (33 1/3%) of such Lender’s Dollar Subcommitment and Multicurrency Subcommitment, asapplicable, with respect to such Borrower and (ii) 0.375% per annum on the daily unused amount of the Dollar Subcommitment or MulticurrencySubcommitment, as applicable, of such Lender with respect to such Borrower if such Lender’s average daily Revolving CreditExposure with respect to such Borrower for the immediately preceding quarter (or the period from the Effective Date until the firstQuarterly Date thereafter, as applicable) is greater than or equal to one-third (33 1/3%) of such Lender’s Dollar Subcommitmentor Multicurrency Subcommitment, as applicable, with respect to such Borrower. Accrued commitment fees shall be payable by a Borrowerin arrears on the third Business Day after each Quarterly Date and on the earlier of the date the Subcommitments of the respectiveClass with respect to such Borrower terminate (including in connection with a reallocation in accordance with Section 2.07(g) or(h)) and the Commitment Termination Date, commencing on the first such date to occur after the Effective Date. All commitment feesshall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including thefirst day but excluding the last day). For purposes of computing commitment fees, the Subcommitment of any Class of a Lender withrespect to a Borrower shall be deemed to be used to the extent of the outstanding Loans of such Class of such Lender made to suchBorrower and LC Exposure of such Class of such Lender with respect to such Borrower.

 

 

 

(b)       Letterof Credit Fees. Each Borrower severally, and not jointly, and solely with respect to the Subcommitments allocated to it, agreesto pay (i) to the Administrative Agent for the account of each Multicurrency Lender a participation fee with respect to itsparticipations in Letters of Credit issued on behalf of such Borrower, which shall accrue at a rate per annum equal to the ApplicableMargin applicable to interest on Eurocurrency Loans made to such Borrower on the daily amount of such Lender’s LC Exposurewith respect to such Borrower (excluding any portion thereof attributable to unreimbursed LC Disbursements with respect to suchBorrower) during the period from and including the Effective Date to but excluding the later of the date on which such Lender’sMulticurrency Subcommitment terminates (including in connection with a reallocation in accordance with Section 2.07(g)) with respectto such Borrower and the date on which such Lender ceases to have any LC Exposure with respect to such Borrower, and (ii) to theIssuing Bank of such Borrower a fronting fee, which shall accrue at the rate of 0.25% per annum on the daily amount of theLC Exposure with respect to such Borrower (excluding any portion thereof attributable to unreimbursed LC Disbursements with respectto such Borrower) during the period from and including the Effective Date to but excluding the later of the date of termination(including in connection with a reallocation in accordance with Section 2.07(g)) of the Multicurrency Subcommitments with respectto such Borrower and the date on which there ceases to be any LC Exposure with respect to such Borrower, as well as such IssuingBank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit on behalf of suchBorrower or processing of drawings thereunder. Participation fees and fronting fees accrued through and including each QuarterlyDate shall be payable on the third Business Day following such Quarterly Date, commencing on the first such date to occur afterthe Effective Date; provided that, all such fees with respect to the Letters of Credit issued on behalf of such Borrowershall be payable on the date on which all Multicurrency Subcommitments terminate with respect to such Borrower (with respect toa Borrower, the “termination date”), such Borrower shall pay any such fees that have accrued and that are unpaidon the termination date and, in the event any Letters of Credit issued on behalf of such Borrower shall be outstanding that haveexpiration dates after the termination date, such Borrower shall prepay on the termination date the full amount of the participationand fronting fees that will accrue on such Letters of Credit subsequent to the termination date through but not including the datesuch outstanding Letters of Credit are scheduled to expire (and in that connection, the Multicurrency Lenders agree not later thanthe date two Business Days after the date upon which the last such Letter of Credit shall expire or be terminated to rebate tosuch Borrower the excess, if any, of the aggregate participation and fronting fees that have been prepaid by such Borrower overthe amount of such fees that ultimately accrue through the date of such expiration or termination). Any other fees payable to anIssuing Bank pursuant to this paragraph shall be payable within ten Business Days after demand. All participation fees andfronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of dayselapsed (including the first day but excluding the last day).

 

 

 

(c)       AdministrativeAgent Fees. Each Borrower severally, and not jointly, agrees to pay to the Administrative Agent, for its own account, feespayable in the amounts and at the times separately agreed upon between such Borrower and the Administrative Agent.

 

(d)       Paymentof Fees. All fees payable by a Borrower hereunder shall be paid by such Borrower on the dates due, in Dollars and immediatelyavailable funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees payable to it) for distribution,in the case of facility fees and participation fees, to the Lenders entitled thereto. Fees paid shall not be refundable under anycircumstances absent obvious error. Any fees representing a Borrower’s reimbursement obligations of expenses, to the extentthe requirements of an invoice are not otherwise specified in this Agreement, shall be due (subject to the other terms and conditionscontained herein) within ten Business Days of the date that such Borrower receives from the Administrative Agent a reasonably detailedinvoice for such reimbursement obligations. For the avoidance of doubt, the obligation of each Borrower to pay fees hereunder shallbe a several and not joint obligation.

 

SECTION 2.11.          Interest.

 

(a)       ABRLoans. The Loans made to a Borrower constituting each ABR Borrowing made to such Borrower shall bear interest at a rate perannum equal to the Alternate Base Rate plus the Applicable Margin with respect to such Borrower.

 

(b)       EurocurrencyLoans. The Loans made to a Borrower constituting each Eurocurrency Borrowing made to such Borrower shall bear interest at arate per annum equal to the Adjusted LIBO Rate for the related Interest Period for such Borrowing plus the Applicable Marginwith respect to such Borrower.

 

(c)       DefaultInterest. Notwithstanding the foregoing clauses (a) and (b), if any principal of or interest on any Loan made to a Borroweror any fee or other amount payable by such Borrower hereunder is not paid when due (after giving effect to any grace period), whetherat stated maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue amount shall bear interest, after aswell as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus therate otherwise applicable to such Loan as provided above or (ii) in the case of any other amount, 2% plus (x) if suchother amount is denominated in Dollars, the rate applicable to ABR Loans as provided in paragraph (a) of this Section or (y)if such other amount is denominated in a Foreign Currency, the rate applicable to Eurocurrency Loans as provided in paragraph (b)of this Section.

 

(d)       Paymentof Interest. Accrued interest on each Loan made to a Borrower shall be payable, severally and not jointly, by such Borrowerin arrears on each Interest Payment Date for such Loan in the Currency in which such Loan is denominated and upon the MaturityDate; provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable by the applicableBorrower on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan priorto the Maturity Date), accrued interest on the principal amount repaid or prepaid shall be payable by the applicable Borrower onthe date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Borrowing denominatedin Dollars prior to the end of the Interest Period therefor, accrued interest on such Borrowing shall be payable by the applicableBorrower on the effective date of such conversion.

 

 

 

SECTION 2.12.          Market Disruption and AlternateRate of Interest.

 

(a)       If,at the time that the Administrative Agent shall seek to determine the relevant Screen Rate on the Quotation Day for any InterestPeriod for a Eurocurrency Borrowing, the applicable Screen Rate shall not be available for such Interest Period and/or for theapplicable Currency with respect to such Eurocurrency Borrowing for any reason and the Administrative Agent shall determine thatit is not possible to determine the Interpolated Rate (which conclusion shall be conclusive and binding absent manifest error),then for purposes of determining the Eurocurrency Rate for such Eurocurrency Borrowing, (i) if such Borrowing shall be requestedin Dollars, then such Borrowing shall be made as an ABR Borrowing at the Alternate Base Rate, (ii) if such Borrowing shall be requestedin any Agreed Foreign Currency (other than Canadian Dollars) then either, at the applicable Borrower’s election, (A) anyBorrowing Request that requests a Eurocurrency Borrowing denominated in the affected Currency shall be deemed ineffective or (B)the Eurocurrency Rate shall be equal to the weighted average of the cost to each Lender to fund its pro rata share of such EurocurrencyBorrowing (from whatever source and using whatever methodologies as such Lender may select in its reasonable discretion) (withrespect to a Lender, the “COF Rate” and with respect to the weighted average of the COF Rate applicable to eachLender for any Borrowing, the “Average COF Rate” ) and (iii) if such Borrowing shall be requested in CanadianDollars, then the Eurocurrency Rate shall be equal to the Canadian Prime Rate.

 

(b)       Ifprior to the commencement of any Interest Period for a Eurocurrency Borrowing:

 

(i)       theAdministrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonablemeans do not exist for ascertaining the Adjusted LIBO Rate or the Eurocurrency Rate, as applicable, for a Loan in the applicableCurrency or for the applicable Interest Period; or

 

(ii)       theAdministrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the Eurocurrency Rate, as applicable, fora Loan in the applicable Currency or for the applicable Interest Period will not adequately and fairly reflect the cost to suchLenders of making or maintaining their Loans included in such Borrowing for such Interest Period,

 

then the Administrative Agent shall give noticethereof to the applicable Borrower and the affected Lenders in writing by e-mail as promptly as practicable thereafter settingforth in reasonable detail the basis for such determination and, until the Administrative Agent notifies such Borrower and suchLenders that the circumstances giving rise to such notice no longer exist, (A) any Interest Election Request made by suchBorrower that requests the conversion of any Borrowing to, or the continuation of any Borrowing made to such Borrower in the applicableCurrency or for the applicable Interest Period, as the case may be, shall be ineffective, (B) if such Borrowing is requested inDollars, such Borrowing shall be made as an ABR Borrowing and (C) if such Borrowing is requested in any Agreed Foreign Currency,then either, at the applicable Borrower’s election, (1) any Borrowing Request that requests a Eurocurrency Borrowing denominatedin the applicable Currency shall be ineffective, (2) the Eurocurrency Rate for such Eurocurrency Borrowing (other than for anysuch Eurocurrency Borrowing denominated in Canadian Dollars) shall be at the Average COF Rate or (3) the Eurocurrency Rate forany such Eurocurrency Borrowing denominated in Canadian Dollars shall be at the Canadian Prime Rate; provided that, if thecircumstances giving rise to such notice affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted;provided further that, in connection with any ABR Borrowing made pursuant to the terms of this Section 2.12(b), the determinationof the Alternate Base Rate shall disregard clause (c) of the definition thereof.

 

 

 

(c)       Ifat any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstancesset forth in clause (b)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forthin clause (b)(i) have not arisen but the supervisor for the administrator of the LIBOR Screen Rate or a Governmental Authorityhaving jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBORScreen Rate shall no longer be used for determining interest rates for loans, then the Administrative Agent and the Borrowers shallendeavor to agree upon an alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing marketconvention for determining a rate of interest for syndicated loans in the United States at such time, and, if an alternate rateis agreed, shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changesto this Agreement as may be applicable (but for the avoidance of doubt, such related changes shall not include a reduction of theApplicable Margin with respect to any Borrower). Notwithstanding anything to the contrary in Section 9.02, such amendment shallbecome effective without any further action or consent of any other party to this Agreement so long as the Administrative Agentshall not have received, within five Business Days of the date notice of such alternate rate of interest is provided to the Lenders,a written notice from the Required Lenders of each Class stating that such Required Lenders object to such amendment. Until analternate rate of interest shall be implemented in accordance with this clause (c) (but, in the case of the circumstances describedin clause (ii) of the first sentence of this Section 2.12(c), only to the extent the LIBOR Screen Rate for the applicable Currencyand such Interest Period is not available or published at such time on a current basis), (x) any Interest Election Request thatrequests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffectiveand (y) if any Borrowing Request requests a Eurocurrency Borrowing, such Borrowing shall be made as an ABR Borrowing; providedthat, if such alternate rate of interest shall be less than zero, such rate shall be deemed to be zero for the purposes of thisAgreement.

 

SECTION 2.13.          Computation of Interest.

 

All interest hereunder shall be computed on the basis of a year of 360 days, except that (a) Eurocurrency Borrowings in CanadianDollars, AUD or NZD shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and shall be payable forthe actual number of days elapsed (including the first day but excluding the last day) and (b) Eurocurrency Borrowings inPounds Sterling and ABR Borrowings, at times when the Alternate Base Rate is based on the Prime Rate, shall be computed on thebasis of a year of 365 days (or 366 days in a leap year) and shall be payable for the actual number of days elapsed (includingthe first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or Eurocurrency Rate shall bedetermined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

 

 

SECTION 2.14.          Increased Costs.

 

(a)       Ifany Change in Law shall:

 

(i)       impose,modify or deem applicable any reserve, compulsory loan, insurance charge, special deposit or similar requirement against assetsof, deposits with or for the account of, or credit extended or participated in by, any Lender (except any such reserve requirementreflected in the Adjusted LIBO Rate) or any Issuing Bank; or

 

(ii)       imposeon any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense, affecting this Agreementor Eurocurrency Loans made by such Lender or any Letter of Credit issued by such Issuing Bank or participation by such Lender therein;

 

and the result of any of the foregoing shall be to increase thecost (other than costs which are Indemnified Taxes or Excluded Taxes) to such Lender of making, continuing, converting into ormaintaining any Eurocurrency Loan of a Borrower (or of maintaining its obligation to make any such Loan to such Borrower) or toincrease the cost (other than costs which are Taxes) to such Lender or such Issuing Bank of participating in, issuing or maintainingany Letter of Credit issued on behalf of such Borrower or to reduce the amount of any sum received or receivable by such Lenderor such Issuing Bank hereunder (whether of principal, interest or otherwise) from such Borrower, then, upon the request of suchLender or such Issuing Bank, such Borrower will pay to such Lender or such Issuing Bank, as the case may be, in Dollars, such additionalamount or amounts as will compensate such Lender or such Issuing Bank, as the case may be, for such additional costs incurred orreduction suffered on behalf of such Borrower; provided that no Lender will claim from any Borrower the payment of any ofthe amounts referred to in this paragraph (a) if not generally claiming similar compensation from its other similar customers insimilar circumstances.

 

(b)       CapitalRequirements. If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity requirementshas or would have the effect of reducing the rate of return on such Lender’s or such Issuing Bank’s capital or on thecapital of such Lender’s or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or theLoans made to a Borrower by, or participations in Letters of Credit issued on behalf of such Borrower held by, such Lender, orthe Letters of Credit issued on behalf of such Borrower by such Issuing Bank, to a level below that which such Lender or such IssuingBank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (takinginto consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or such IssuingBank’s holding company with respect to capital adequacy or liquidity requirements), by an amount deemed to be material bysuch Lender or such Issuing Bank, then, upon the request of such Lender or such Issuing Bank, such Borrower will pay to such Lenderor such Issuing Bank, as the case may be, in Dollars, such additional amount or amounts as will compensate such Lender or suchIssuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered on behalf of suchBorrower.

 

 

 

(c)       Certificatesfrom Lenders. A certificate of a Lender or an Issuing Bank setting forth in reasonable detail the basis for and the calculationof the amount or amounts, in Dollars, necessary to compensate such Lender or such Issuing Bank or its holding company, as the casemay be, as specified in paragraph (a) or (b) of this Section shall be promptly delivered to applicable Borrower and shallbe conclusive absent manifest error; provided, however that no Lender shall be requested to disclose confidential or pricesensitive information or any other information, to the extent prohibited by applicable law. Such Borrower shall pay such Lenderor such Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 Business Days afterreceipt thereof.

 

(d)       Delayin Requests. Failure or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Sectionshall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; providedthat no Borrower shall be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs orreductions incurred more than three months prior to the date that such Lender or such Issuing Bank, as the case may be, notifiessuch Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such IssuingBank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increasedcosts or reductions is retroactive, then the three-month period referred to above shall be extended to include the period of retroactiveeffect thereof.

 

(e)       SeveralObligations. The obligation of any Borrower to pay any compensation pursuant to this Section shall be a several and not jointobligation, and solely on the Loans made to, the Letters of Credit issued on behalf of and the Subcommitments allocated to suchBorrower.

 

SECTION 2.15.          Break Funding Payments.

 

In the event of (a) the payment by a Borrowerof any principal of any Eurocurrency Loan other than on the last day of an Interest Period therefor (including as a result of theoccurrence of any Commitment Increase Date or an Event of Default with respect to any Borrower), (b) the conversion of anyEurocurrency Loan made to a Borrower other than on the last day of an Interest Period therefor, (c) the failure to borrow,convert, continue or prepay any Eurocurrency Loan made to a Borrower on the date specified in any notice delivered pursuant hereto(including, in connection with any Commitment Increase Date, and regardless of whether such notice is permitted to be revocableunder Section 2.09(f) and is revoked in accordance herewith) or (d) the assignment as a result of a request by a Borrowerpursuant to Section 2.19(b) of any Eurocurrency Loan made to such Borrower other than on the last day of an Interest Periodtherefor, then, in any such event, such Borrower shall compensate each affected Lender for the loss, cost and expense attributableto such event (excluding loss of anticipated profits). In the case of a Eurocurrency Loan made to a Borrower, the loss to any Lenderattributable to any such event shall be deemed to include an amount determined by such Lender to be equal to the excess, if any,of:

 

 

 

(i)       theamount of interest that such Lender would pay for a deposit equal to the principal amount of such Loan referred to in clauses (a)through (d) of this Section 2.15 denominated in the Currency of such Loan for the period from the date of such payment, conversion,failure or assignment to the last day of the then current Interest Period for such Eurocurrency Loan (or, in the case of a failureto borrow, convert or continue, the duration of the Interest Period that would have resulted from such borrowing, conversion orcontinuation) if the interest rate payable on such deposit were equal to the Adjusted LIBO Rate for such Currency for such InterestPeriod, over

 

(ii)       theamount of interest that such Lender would earn on such principal amount for such period if such Lender were to invest such principalamount for such period at the interest rate that would be bid by such Lender (or an Affiliate of such Lender) for deposits denominatedin such Currency from other banks in the Eurocurrency market or in the case of any Non-LIBOR Quoted Currency, in the relevant marketfor such Non-LIBOR Quoted Currency, in each case, at the commencement of such period.

 

Payments under this Section shall be made upon written request ofa Lender delivered to the applicable Borrower not later than 10 Business Days following a payment, conversion, or failure to borrow,convert, continue or prepay that gives rise to a claim under this Section accompanied by a written certificate of such Lender settingforth in reasonable detail the amount or amounts that such Lender is entitled to receive pursuant to this Section, which certificateshall be conclusive absent manifest error. The applicable Borrower shall pay such Lender the amount shown as due on any such certificatewithin 10 Business Days after receipt thereof.

 

SECTION 2.16.          Taxes.

 

(a)       PaymentsFree of Taxes. Any and all payments by or on account of any obligation of any Borrower hereunder or under any other Loan Documentto which such Borrower or any other member of its Obligor Group is a party shall be made free and clear of and without deductionfor any Taxes, except as required by applicable law. If any applicable law requires the deduction or withholding of any Tax fromany such payment, then (i) the applicable Borrower shall make such deductions or withholding, (ii) the applicable Borrower shallpay the full amount deducted to the relevant Governmental Authority in accordance with applicable law and (iii) if such Tax isan Indemnified Tax, the sum payable shall be increased as necessary so that after making all required deductions (including deductionsapplicable to additional sums payable under this Section), the Administrative Agent, the applicable Lender or the applicable IssuingBank (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made.

 

(b)       Paymentof Other Taxes by the Borrowers. In addition, each Borrower shall pay any Other Taxes with respect to such Borrower to therelevant Governmental Authority in accordance with applicable law.

 

(c)       Indemnificationby the Borrowers. Each Borrower shall severally, but not jointly, indemnify the Administrative Agent, any applicable Lenderand any applicable Issuing Bank for, and within 30 Business Days after written demand therefor, pay the full amount of anyIndemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) paidby the Administrative Agent, such Lender or such Issuing Bank, as the case may be, with respect to such Borrower and any penalties,interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctlyor legally imposed or asserted by the relevant Governmental Authority, except for any Indemnified Taxes or Other Taxes imposedas a result of the gross negligence or willful misconduct of the Administrative Agent, such Lender or such Issuing Bank. A writtencertificate setting forth in reasonable detail the amount of such payment or liability delivered to the applicable Borrower bya Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shallbe conclusive absent manifest error.

 

 

 

(d)       Evidenceof Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by a Borrower to a Governmental Authority,such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such GovernmentalAuthority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactoryto the Administrative Agent.

 

(e)       ForeignLenders. Any applicable Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the lawof the jurisdiction in which a Borrower is located, or any treaty to which such jurisdiction is a party, with respect to paymentsunder this Agreement shall deliver to such Borrower (with a copy to the Administrative Agent), at the time or times prescribedby applicable law or reasonably requested by such Borrower, such properly completed and executed documentation prescribed by applicablelaw as will permit such payments to be made without withholding or at a reduced rate.

 

In addition, any applicable Foreign Lender, ifrequested by a Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonablyrequested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whetheror not such Foreign Lender is subject to backup withholding or information reporting requirements.

 

Without limiting the generality of the foregoing,if a Borrower is resident for tax purposes in the United States, any Foreign Lender shall, to the extent it is legally entitledto do so, deliver to such Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient)on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter uponthe reasonable request of such Borrower or the Administrative Agent) whichever of the following is applicable:

 

(i)       dulycompleted copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E (as applicable) or anysuccessor form claiming eligibility for benefits of an income tax treaty to which the United States is a party,

 

(ii)       dulycompleted copies of Internal Revenue Service Form W-8ECI or any successor form certifying that the income receivable pursuantto this Agreement is effectively connected with the conduct of a trade or business in the United States,

 

(iii)       inthe case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code,(A) a certificate to the effect that such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A)of the Code, (2) a “10 percent shareholder” of such Borrower within the meaning of section 881(c)(3)(B)of the Code, or (3) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and(B) duly completed copies of Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E (as applicable)(or any successor form) certifying that the Foreign Lender is not a United States Person, or

 

 

 

(iv)       anyother form including Internal Revenue Service Form W-8IMY as applicable prescribed by applicable law as a basis for claimingexemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentationas may be prescribed by applicable law to permit such Borrower to determine the withholding or deduction required to be made.

 

(f)       UnitedStates Lenders. Each applicable Lender and each applicable Issuing Bank that is not a Foreign Lender shall deliver to eachBorrower (with a copy to the Administrative Agent), prior to the date on which such Issuing Bank or such Lender becomes a partyto this Agreement, and at times reasonably requested by any Borrower, duly completed copies of Internal Revenue Service Form W-9or any successor form, certificate or documentation.

 

(g)       FATCA.If a payment made by a Borrower to a Lender under any Loan Document to which such Borrower or any other member of its Obligor Groupis a party would be subject to United States federal withholding Tax imposed by FATCA if such Lender were to fail to comply withthe applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable),such Lender shall deliver to such Borrower and the Administrative Agent at the time or times prescribed by Law and at such timeor times reasonably requested by such Borrower or the Administrative Agent such documentation prescribed by applicable law (includingas prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borroweror the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligationsunder FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine theamount to deduct and withhold from such payment. Solely for purposes of this clause (g), “FATCA” shall include anyamendments made to FATCA after the date of this Agreement.

 

In addition, each Lender agrees that if anycertificate or documentation previously delivered under this Section 2.16 by such Lender expires or becomes obsolete or inaccuratein any respect it shall update such certificate or documentation, provided it is legally able to do so at the time. Each Lendershall promptly notify each Borrower and the Administrative Agent at any time the chief tax officer of such Lender becomes awarethat it no longer satisfies the legal requirements to provide any previously delivered form, certificate or documentation to anyBorrower (or any other form, certificate or documentation adopted by the U.S. or other taxing authorities for such purpose).

 

 

 

(h)       Treatmentof Certain Refunds. If the Administrative Agent, any Lender or any Issuing Bank determines, in its sole discretion exercisedin good faith, that it has received a refund or credit (in lieu of such refund) of any Taxes as to which it has been indemnifiedby a Borrower or with respect to which a Borrower has paid additional amounts pursuant to this Section, it shall pay to such Borroweran amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrowerunder this Section with respect to the Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of the AdministrativeAgent, such Lender or such Issuing Bank, as the case may be, and without interest (other than any interest paid by the relevantGovernmental Authority with respect to such refund), provided that such Borrower, upon the request of the Administrative Agent,any Lender or an Issuing Bank, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other chargesimposed by the relevant Governmental Authority) to the Administrative Agent, such Lender or such Issuing Bank in the event theAdministrative Agent, such Lender or such Issuing Bank is required to repay such refund to such Governmental Authority. Notwithstandinganything to the contrary in this paragraph (h), in no event will the Administrative Agent, such Lender or such Issuing Bankbe required to pay any amount to a Borrower pursuant to this paragraph (h) the payment of which would place the AdministrativeAgent, such Lender or such Issuing Bank in a less favorable net after-Tax position than the Administrative Agent, such Lender orsuch Issuing Bank would have been in if the indemnification payments or additional amounts giving rise to such refund had neverbeen paid. This subsection shall not be construed to require the Administrative Agent, any Lender or any Issuing Bank to make availableits tax returns or its books or records (or any other information relating to its taxes that it deems confidential) to any Borroweror any other Person.

 

(i)       Survival.Each party’s obligations under this Section 2.16 shall survive the resignation or replacement of the Administrative Agentor any assignment of rights by, or the replacement of, any Lender or any Issuing Bank, the termination of the Commitments and therepayment, satisfaction or discharge of all obligations under any Loan Document to which the applicable Borrower or any other memberof its Obligor Group is a party.

 

(j)       DefinedTerms. For purposes of this Section 2.16, the term “applicable law” includes FATCA.

 

 

 

SECTION 2.17.          PaymentsGenerally; Pro Rata Treatment; Sharing of Set-offs.

 

(a)          Paymentsby the Borrowers. Each Borrower shall, severally and not jointly, make each payment required to be made by such Borrower hereunder(whether of principal, interest, fees or reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or otherwise)or under any other Loan Document to which such Borrower is a party (except to the extent otherwise provided therein) prior to 2:00p.m., Local Time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received aftersuch time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeedingBusiness Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at the AdministrativeAgent’s Account, except as otherwise expressly provided in the relevant Loan Document to which such Borrower is a party andexcept payments to be made directly to an Issuing Bank as expressly provided herein and payments pursuant to Sections 2.14,2.15, 2.16 and 9.03, which shall be made directly to the Persons entitled thereto. The Administrative Agent shall distributeany such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeedingBusiness Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.All amounts owing under this Agreement (including commitment fees, payments required under Section 2.14, and payments requiredunder Section 2.15 relating to any Loan denominated in Dollars, but not including principal of, and interest on, any Loandenominated in any Foreign Currency or payments relating to any such Loan required under Section 2.15 or any reimbursementor cash collateralization of any LC Exposure denominated in any Foreign Currency, which are payable in such Foreign Currency) orunder any other Loan Document (except to the extent otherwise provided therein) are payable in Dollars. Notwithstanding the foregoing,if a Borrower shall fail to pay any principal of any Loan made to such Borrower or LC Disbursement with respect to such Borrowerwhen due (whether at stated maturity, by acceleration, by mandatory prepayment or otherwise), the unpaid portion of such Loan orsuch LC Disbursement shall, if such Loan or such LC Disbursement is not denominated in Dollars, automatically be redenominatedin Dollars on the due date thereof (or, if such due date is a day other than the last day of the Interest Period therefor, on thelast day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of such redenomination and suchprincipal shall be payable on demand; and if a Borrower shall fail to pay any interest on any Loan made to such Borrower or LCDisbursement with respect to such Borrower that is not denominated in Dollars, such interest shall automatically be redenominatedin Dollars on the due date therefor (or, if such due date is a day other than the last day of the Interest Period therefor, onthe last day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of such redenomination andsuch interest shall be payable on demand.

 

(b)          Applicationof Insufficient Payments. If at any time insufficient funds are received by and available to the Administrative Agent froma Borrower to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees of a Class, in each case, withrespect to such Borrower then due hereunder, such funds shall be applied (i) first, to pay interest and fees of such Class withrespect to such Borrower then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interestand fees of such Class then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements with respectto such Borrower of such Class then due hereunder, ratably among the parties entitled thereto in accordance with the amounts ofprincipal and unreimbursed LC Disbursements with respect to such Borrower of such Class then due to such parties.

 

(c)          ProRata Treatment. Except to the extent otherwise provided herein: (i) each Borrowing of a Class shall be made from the Lendersof such Class, and each termination or reduction of the amount of the Subcommitments of a Class under Section 2.07 shall be appliedto the respective Subcommitments of the Lenders of such Class, pro rata according to the amounts of their respective Subcommitmentsof such Class; (ii) each Borrowing of a Class shall be allocated pro rata among the Lenders of such Class according to the amountsof their respective Subcommitments of such Class (in the case of the making of Loans) or their respective Loans of such Class thatare to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment of commitmentfees under Section 2.10 shall be made by the applicable Borrower for the account of the Lenders pro rata according to the averagedaily unutilized amounts of their respective Subcommitments with respect to such Borrower; (iv) each payment or prepayment by theapplicable Borrower of principal of Loans of a Class made to such Borrower shall be made for the account of the Lenders of suchClass pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them; and (v) eachpayment of interest by the applicable Borrower on Loans of a Class made to such Borrower shall be made for the account of the Lendersof such Class pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.

 

 

 

(d)          Sharingof Payments by Lenders. If any Lender of a Class shall, by exercising any right of set-off or counterclaim or otherwise, obtainpayment in respect of any principal of or interest on any of its Loans made to a Borrower or participations in LC Disbursementswith respect to a Borrower within its Class resulting in such Lender receiving payment of a greater proportion of the aggregateamount of its Loans made to such Borrower and participations in LC Disbursements with respect to such Borrower and accrued interestthereon of such Class then due than the proportion received by any other Lender of such Class, then the Lender receiving such greaterproportion shall purchase (for cash at face value) participations in the Loans made to such Borrower and participations in LC Disbursementswith respect to such Borrower of other Lenders of such Class to the extent necessary so that the benefit of all such payments shallbe shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest ontheir respective Loans made to such Borrower and participations in LC Disbursements with respect to such Borrower of such Class;provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered,such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii)the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordancewith the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale ofa participation in any of its Loans made to such Borrower or participations in LC Disbursements with respect to such Borrower toany assignee or participant, other than to a Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of thisparagraph shall apply). Each Borrower consents to the foregoing, solely as it applies to such Borrower, and agrees, to the extentit may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangementsmay exercise against such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lenderwere a direct creditor of such Borrower in the amount of such participation. For the avoidance of doubt, any Borrower may makea Borrowing under the Dollar Subcommitments or Multicurrency Subcommitments with respect to such Borrower (if otherwise permittedhereunder) and may use the proceeds of such Borrowing (x) with Dollar Subcommitments to prepay the Multicurrency Loans (withoutmaking a ratable prepayment of the Dollar Loans) made to such Borrower or (y) with Multicurrency Subcommitments to prepay the DollarLoans (without making a ratable payment to the Multicurrency Loans) made to such Borrower.

 

(e)          Presumptionsof Payment. Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any paymentis due to the Administrative Agent for the account of the Lenders or the Issuing Banks hereunder that such Borrower will not makesuch payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewithand may, in reliance upon such assumption, distribute to the Lenders or the Issuing Banks, as the case may be, the amount due.In such event, if such Borrower has not in fact made such payment, then each of the Lenders or the Issuing Banks, as the case maybe, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or suchIssuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excludingthe date of payment to the Administrative Agent, at the Federal Funds Effective Rate.

 

 

 

(f)          CertainDeductions by the Administrative Agent. If any Lender shall fail to make any payment required to be made by it pursuant toSection 2.04(e), 2.05(b) or 2.17(e), then the Administrative Agent may, in its discretion (notwithstanding any contraryprovision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfysuch Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

SECTION 2.18.          DefaultingLenders.

 

Notwithstanding any provision of this Agreementto the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lenderis a Defaulting Lender:

 

(a)          commitmentfees pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Subcommitments of such Defaulting Lenderto the extent and during the period such Lender is a Defaulting Lender;

 

(b)          theSubcommitment and Revolving Credit Exposure with respect to each Borrower of such Defaulting Lender shall not be included in determiningwhether two-thirds of the Lenders, two-thirds of the Lenders of a Class, the Required Lenders or the Required Lenders of a Classhave taken or may take any action hereunder or under any other Loan Documents to which such Borrower or any other member of itsObligor Group is a party (including any consent to any amendment or waiver pursuant to Section 9.02); provided that,for the avoidance of doubt, any waiver, amendment or modification requiring the consent of all Lenders (or all Lenders of a Class)or each affected Lender (if applicable to such Defaulting Lender), including as set forth in Section 9.02(b)(i), (ii), (iii),(iv) or (v), shall require the consent of such Defaulting Lender;

 

(c)          ifany LC Exposure with respect to a Borrower exists at the time a Multicurrency Lender becomes a Defaulting Lender then:

 

(i)          allor any part of such LC Exposure shall be reallocated among the non-Defaulting Multicurrency Lenders in accordance with their respectiveApplicable Multicurrency Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ MulticurrencyRevolving Credit Exposures with respect to such Borrower plus such Defaulting Lender’s LC Exposure with respect to such Borrowerdoes not exceed the total of all non-Defaulting Lenders’ Multicurrency Subcommitments to such Borrower and (y) no non-DefaultingLender’s Multicurrency Revolving Credit Exposure with respect to such Borrower will exceed such Lender’s MulticurrencySubcommitment to such Borrower;

 

 

 

(ii)         ifthe reallocation described in clause (i) above cannot, or can only partially, be effected, such Borrower shall, without prejudiceto any right or remedy available to it hereunder or under law, within three Business Days following notice by the AdministrativeAgent cash collateralize such Defaulting Lender’s LC Exposure with respect to such Borrower (after giving effect to any partialreallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so longas such LC Exposure is outstanding;

 

(iii)        ifsuch Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure with respect to such Borrower pursuantto clause (ii) above, such Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b)with respect to such LC Exposure during the period such LC Exposure is cash collateralized;

 

(iv)        ifthe LC Exposure with respect to such Borrower of the non-Defaulting Multicurrency Lenders is reallocated pursuant to clause (i)above, then the fees payable by such Borrower to the Lenders pursuant to Section 2.10(a) and Section 2.10(b) shall beadjusted in accordance with such non-Defaulting Multicurrency Lenders’ Applicable Multicurrency Percentages in effect immediatelyafter giving effect to such reallocation;

 

(v)         ifany Defaulting Lender’s LC Exposure with respect to such Borrower is neither cash collateralized nor reallocated pursuantto this Section 2.18(c), then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Lender hereunder,all commitment fees that otherwise would have been payable by such Borrower to such Defaulting Lender (solely with respect to theportion of such Defaulting Lender’s Subcommitment that was utilized by such LC Exposure) and letter of credit fees payableby such Borrower under Section 2.10(b) with respect to such LC Exposure shall be payable to the applicable Issuing Bank untilsuch LC Exposure is cash collateralized and/or reallocated; and

 

(vi)        noreallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arisingfrom that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-DefaultingLender’s increased exposure following such reallocation; and

 

(d)          solong as any Multicurrency Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letterof Credit issued on behalf of any Borrower, unless it is satisfied that the related exposure will be 100% covered by the MulticurrencySubcommitments with respect to such Borrower of the non-Defaulting Lenders and/or cash collateral will be provided by such Borrowerin accordance with Section 2.18(c), and participating interests in any such newly issued or increased Letter of Credit issuedon behalf of such Borrower shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.18(c)(i)(and Defaulting Lenders shall not participate therein).

 

 

 

In the event that the Administrative Agent andthe Borrowers agree in writing that a Defaulting Lender that is a Dollar Lender has adequately remedied all matters that causedsuch Lender to be a Defaulting Lender, then, on the date of such agreement, such Lender shall purchase at par such of the Loansmade to each Borrower of the other Lenders as the Administrative Agent shall determine may be necessary in order for the Lendersto hold such Loans in accordance with their Applicable Dollar Percentage in effect immediately after giving effect to such agreement.In the event that the Administrative Agent, the Borrowers and the Issuing Banks each agrees in writing that a Defaulting Lenderthat is a Multicurrency Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then, onthe date of such agreement, such Lender shall no longer be deemed a Defaulting Lender, each applicable Borrower shall no longerbe required to cash collateralize any portion of such Lender’s LC Exposure with respect to such Borrower cash collateralizedpursuant to Section 2.18(c)(ii) above and the LC Exposure with respect to such Borrower of the Multicurrency Lenders shallbe readjusted to reflect the inclusion of such Lender’s Multicurrency Subcommitment with respect to each Borrower and onsuch date such Lender shall purchase at par the portion of the Loans made to each Borrower of the other Multicurrency Lenders asthe Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its ApplicableMulticurrency Percentage in effect immediately after giving effect to such agreement.

 

SECTION 2.19.          MitigationObligations; Replacement of Lenders.

 

(a)          Designationof a Different Lending Office. If any Lender requests compensation under Section 2.14, or if any Borrower is requiredto pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16,then such Lender (at the request of such Borrower) shall use reasonable efforts to designate a different lending office for fundingor booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates,if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payablepursuant to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not subject such Lender to anycost or expense not required to be reimbursed by a Borrower and would not otherwise be disadvantageous to such Lender. Each Borrowerhereby severally, but not jointly, agrees to pay its portion, determined on a Pro-Rata Basis, of all reasonable costs and expensesincurred by any Lender in connection with any such designation or assignment.

 

(b)          Replacementof Lenders. If any Lender requests compensation under Section 2.14, or if any Borrower is required to pay any additionalamount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, and, in each case,such Lender has declined or is unable to designate a different lending office in accordance with clause (a) above, or if any Lenderbecomes a Defaulting Lender or is a non-consenting Lender (that the Borrowers are permitted to replace as provided in Section 9.02(d)),then the Borrowers may, at their sole expense and effort, upon notice to such Lender and the Administrative Agent, require suchLender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04),all its interests, rights (other than its existing rights to payments pursuant to Section 2.14 and Section 2.16) and obligationsunder this Agreement and the other Loan Documents to an assignee that shall assume such obligations (which assignee may be anotherLender, if a Lender accepts such assignment); provided that (i) the Borrowers shall have received the prior writtenconsent of the Administrative Agent (and, if Subcommitments are being assigned, the Issuing Banks), which consent shall not unreasonablybe withheld, conditioned or delayed, (ii) such Lender shall have received payment from each Borrower of an amount equal tothe outstanding principal of its Loans made to such Borrower and participations in LC Disbursements with respect to such Borrower,accrued interest thereon, accrued fees and all other amounts payable by such Borrower to it hereunder, from the assignee (to theextent of such outstanding principal and accrued interest and fees) or such Borrower (in the case of all other amounts then dueand owed by or with respect to such Borrower, including, without limitation, any amounts under Section 2.15), (iii) in thecase of any such assignment resulting from a claim for compensation under Section 2.14 or payments required to be made pursuantto Section 2.16, such assignment will result in a reduction in such compensation or payments and (iv) in the case ofany assignment as a result of a non-consenting Lender (that the Borrowers are permitted to replace as provided in Section 9.02(d)),the applicable assignee shall have consented to the applicable amendment, waiver or consent. A Lender shall not be required tomake any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstancesentitling the Borrowers to require such assignment and delegation cease to apply.

 

 

 

(c)          DefaultingLender. If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(e), 2.05 or 9.03(c),then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amountsthereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent or anyIssuing Bank to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid,and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligationsof such Lender under such Sections; in the case of each of clauses (i) and (ii) above, in any order as determined bythe Administrative Agent in its discretion.

 

SECTION 2.20.          MaximumRate.

 

Notwithstanding anything herein to the contrary,if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated asinterest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan,the rate of interest payable in respect of such Loan hereunder, together with all related Charges, shall be limited to the MaximumRate. To the extent lawful, the interest and Charges that would have been payable in respect of a Loan made to a Borrower, butwere not payable as a result of the operation of this Section, shall be cumulated and the interest and Charges payable to suchLender by such Borrower in respect of other Loans made to such Borrower or periods shall be increased (but not above the MaximumRate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment,shall have been received by such Lender.

 

 

 

SECTION 2.21.          GermanBank Separation Act.

 

Solely for so long as Deutsche Bank AG New YorkBranch, or any Affiliate thereof, is a Lender, if any such Lender is subject to the GBSA (as defined below) (any such Lender, a “GBSA Lender”) and such GBSA Lender shall have determined in good faith (based on reasonable advice and a writtenopinion of counsel), which determination shall be made in consultation with the Borrower subject to the terms hereof) that, dueto the implementation of the German Act on the Ring-fencing of Risks and for the Recovery and Resolution Planning for Credit Institutionsand Financial Groups (Gesetz zur Abschirmung von Risiken und zur Planung der Sanierung und Abwicklung von Kreditinstituten undFinanzgruppen) of 7 August 2013 (commonly referred to as the German Bank Separation Act (Trennbankengesetz) (the “GBSA”),whether before or after the date hereof, or any corresponding European legislation (such as the proposed regulation on structuralmeasures improving the resilience of European Union credit institutions) that may amend or replace the GBSA in the future or anyregulation thereunder, or due to the promulgation of, or any change in the interpretation by, any court, tribunal or regulatoryauthority with competent jurisdiction of the GBSA or any corresponding future European legislation that may amend or replace theGBSA in the future or any regulation thereunder, the arrangements contemplated by this Agreement or the Loans have, or will, becomeillegal, prohibited or otherwise unlawful (regardless of whether such illegality, prohibition or unlawfulness could be preventedby transferring such arrangements, Commitments and/or Loans to an Affiliate or other third party), then, and in any such event,such GBSA Lender shall give written notice to the Borrower and the Administrative Agent of such determination (which written noticeshall include a reasonably detailed explanation of such illegality, prohibition or unlawfulness, including, without limitation,evidence and calculations used in the determination thereof, a “GBSA Initial Notice”), whereupon until the tenthBusiness Day after the date of such GBSA Initial Notice, such GBSA Lender shall use best efforts to transfer to the extent permittedunder applicable law such arrangements, Commitments and/or Loans to an Affiliate or other third party in accordance with Section9.04. If no such transfer is effected in accordance with the preceding sentence, such GBSA Lender shall give written notice thereofto the Borrower and the Administrative Agent a (“GBSA Final Notice”), whereupon (i) all of the obligations ofsuch GBSA Lender shall become due and payable, and the Borrower shall repay the outstanding principal of such obligations togetherwith accrued interest thereon and all other amounts due and payable to the GBSA Lender, on the tenth Business Day immediately afterthe date of such GBSA Final Notice (the “Initial GBSA Termination Date”) and, for the avoidance of doubt, suchrepayment shall not be subject to the terms and conditions of Section 2.08 or 2.15 and (ii) the Commitment of such GBSA Lendershall terminate on the Initial GBSA Termination Date; provided that, notwithstanding the foregoing, if, prior to such Initial GBSATermination Date, the Borrower and/or the Administrative Agent in good faith reasonably believes that there is a mistake, erroror omission in the grounds used to determine such illegality, prohibition or unlawfulness under the GBSA or any corresponding futureEuropean legislation that may amend or replace the GBSA in the future or any regulation thereunder, then the Borrower and/or theAdministrative Agent, as applicable, may provide written notice (which written notice shall include a reasonably detailed explanationof the basis of such good faith belief, including, without limitation, evidence and calculations used in the determination thereof,a “GBSA Consultation Notice”) to that effect, at which point the obligations owed to such GBSA Lender hereunderand under the Loans shall not become due and payable, and the Commitments of such GBSA Lender shall not terminate, until the BusinessDay immediately following the tenth Business Day immediately after the Initial GBSA Termination Date (the period from, and including,the date of the GBSA Consultation Notice until the tenth Business Day immediately thereafter being the “GBSA ConsultationPeriod”). In the event that the Borrower and/or the Administrative Agent, as applicable, and such GBSA Lender cannotin good faith reasonably agree during the GBSA Consultation Period whether the arrangements contemplated by this Agreement or theLoans have, or will, become illegal, prohibited or otherwise unlawful under the GBSA or any corresponding future European legislationthat may amend or replace the GBSA in the future or any regulation thereunder, then all of the obligations owed to such GBSA Lenderhereunder and under the Loans shall become due and payable, and the Commitments of such GBSA Lender shall terminate, on the BusinessDay immediately following the last day of such GBSA Consultation Period. Notwithstanding anything to the contrary contained herein,no part of the proceeds of any extension of credit hereunder will be used to pay any GBSA Lender or otherwise satisfy any obligationunder this Section. To the extent that any LC Exposure exists at the time a GBSA Lender’s Commitments are cancelled and itsobligations under the Loan Documents are repaid in full, such LC Exposure shall be reallocated as set forth in Sections 2.19(c)(i)through (v) treating for purposes hereof each Lender (other than any GBSA Lender) as a non-Defaulting Lender for purposes of suchreallocation and treating the GBSA Lender as a Defaulting Lender solely for such purposes.

 

 

 

Article III

 

REPRESENTATIONSAND WARRANTIES

 

Each Borrower severally, and not jointly, representsand warrants to the Lenders solely with respect to such Borrower and, as applicable, the other members of its Obligor Group, that:

 

SECTION3.01.         Organization; Powers. Such Borrower and each of itsSubsidiaries is duly organized or incorporated, as applicable, validly existing and in good standing under the laws of thejurisdiction of its organization or incorporation, as applicable, has all requisite power and authority to carry on itsbusiness as now conducted; and, except where the failure to do so, individually or in the aggregate, could not reasonably beexpected to result in a Material Adverse Effect with respect to such Borrower, is qualified to do business in, and is in goodstanding in, every jurisdiction where such qualification is required of such Borrower or such Subsidiary, as applicable.

 

SECTION3.02.         Authorization; Enforceability. The Transactions withrespect to such Borrower are within such Borrower’s and each other member’s of its Obligor Group, as applicable,corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary stockholderaction of such Borrower or such other Obligor, as applicable. This Agreement has been duly executed and delivered by suchBorrower and constitutes, and each of the other Loan Documents to which such Borrower or such other Obligor is a party whenexecuted and delivered will constitute, a legal, valid and binding obligation of such Borrower and such other Obligor, asapplicable, enforceable with respect to such Borrower or such other Obligor, as applicable, in accordance with its terms,except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws ofgeneral applicability affecting the enforcement of creditors’ rights and (b) the application of general principlesof equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

 

 

SECTION3.03.         Governmental Approvals; No Conflicts. The Transactions withrespect to such Borrower (a) do not require any consent or approval of, registration or filing with, or any other action by,any Governmental Authority, except for (i) such as have been obtained or made and are or will be in full force and effect and(ii) filings and recordings in respect of the Liens created pursuant to the Security Documents to which such Obligor is aparty, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents ofsuch Borrower or such other Obligor, as applicable, or any order of any Governmental Authority, (c) will not violate orresult in a default in any material respect under any indenture, agreement or other instrument binding upon such Borroweror such other Obligor, as applicable, or its assets, or give rise to a right thereunder to require any payment to be made byany such Person, and (d) except for the Liens created pursuant to the Security Documents to which such Borrower or such otherObligor is a party, will not result in the creation or imposition of any Lien on any asset of such Borrower or such otherObligor.

 

SECTION 3.04.         FinancialCondition; No Material Adverse Change.

 

(a)          FinancialStatements. The financial statements delivered to the Administrative Agent and the Lenders by such Borrower pursuant to Sections4.01(d), 5.01(a) and 5.01(b) present fairly, in all material respects, the consolidated financial position and results of operationsand cash flows of such Borrower and its consolidated Subsidiaries as of the end of and for the applicable period in accordancewith GAAP applied on a consistent basis, subject, in the case of unaudited financial statements, to year-end audit adjustmentsand the absence of footnotes. None of such Borrower or any of its Subsidiaries has on the Effective Date any material contingentliabilities, material liabilities for taxes, material unusual forward or material long-term commitments or material unrealizedor material anticipated losses from any unfavorable commitments not reflected in the financial statements referred to above.

 

(b)          NoMaterial Adverse Change. Since December 31, 2017, there has not been any event, development or circumstance that has hador could reasonably be expected to have a Material Adverse Effect with respect to such Borrower.

 

SECTION3.05.         Litigation; Actions, Suits and Proceedings. There are noactions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority now pending against or,to the knowledge of any Financial Officer of such Borrower, threatened in writing against or affecting such Borrower or anyof its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adverselydetermined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect of suchBorrower or (ii) that directly involve this Agreement or the Transactions with respect to such Borrower.

 

SECTION3.06.         Compliance with Laws and Agreements. Such Borrower and itsSubsidiaries are in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or itsproperty and all indentures, agreements and other instruments binding upon it or its property, except where the failure to doso, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect with respect tosuch Borrower. Neither such Borrower nor any other member of its Obligor Group is subject to any contract or otherarrangement, the performance of which by such Borrower or such other Obligor could reasonably be expected to result in aMaterial Adverse Effect with respect to such Borrower.

 

 

 

SECTION3.07.         Anti-Corruption Laws and Sanctions. Such Borrower hasimplemented and maintains in effect policies and procedures designed to ensure compliance by such Borrower, its Subsidiariesand their respective directors, officers, employees and agents with Anti-Corruption Laws and Sanctions applicable to suchBorrower or its Subsidiaries, and (a) such Borrower, its Subsidiaries and their respective officers and employees and (b) tothe knowledge of such Borrower, their respective directors and agents, are in compliance in all material respects withAnti-Corruption Laws and Sanctions applicable to such Borrower or its Subsidiaries and are not knowingly engaged in anyactivity that would reasonably be expected to result in such Borrower being designated as a Sanctioned Person. None of (x)such Borrower, any of its Subsidiaries or any of their respective directors, officers or employees, or (y) to theknowledge of such Borrower, any agent of such Borrower or any of its Subsidiaries, in each case, that will act in anycapacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Transaction towhich such Borrower is a party or any of its Subsidiaries is subject will violate any Anti-Corruption Law or Sanctionsapplicable to such Borrower or its Subsidiaries.

 

SECTION3.08.         Taxes. Such Borrower and its Subsidiaries have timely filedor caused to be filed all material Tax returns and reports required to have been filed by such Borrower and such Subsidiaryand has paid or caused to be paid all material Taxes required to have been paid by such Borrower or such Subsidiary, except(a) Taxes that are being contested in good faith by appropriate proceedings and for which such Borrower or suchSubsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do socould not reasonably be expected to result in a Material Adverse Effect with respect to such Borrower.

 

SECTION3.09.         ERISA. No ERISA Event has occurred with respect to suchBorrower that, when taken together with all other such ERISA Events with respect to such Borrower, would reasonably beexpected to result in a Material Adverse Effect with respect to such Borrower.

 

SECTION3.10.         Disclosure. Such Borrower has disclosed to theAdministrative Agent (or filed with the SEC) all agreements and instruments to which it or any of its Subsidiaries issubject, that if terminated prior to its term, and all other matters known to it that have occurred, that, individually or inthe aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the written reports, financialstatements, certificates or other written information (other than projections, other forward looking information,information of a general economic or industry specific nature or information relating to third parties) furnished by or onbehalf of such Borrower to the Lenders in connection with the negotiation of this Agreement and the other Loan Documents towhich such Borrower or any other member of its Obligor Group is a party or delivered hereunder or thereunder (as modified orsupplemented by other information so furnished), when taken as a whole, contains any material misstatement of fact or omitsto state any material fact necessary in order to make the statements therein, in the light of the circumstances under whichthey were made, not misleading at the time made; provided that, with respect to projected financial information, suchBorrower represents only that such information was prepared in good faith based upon assumptions believed in good faith to bereasonable at the time of the preparation thereof (it being understood that projections are subject to significant andinherent uncertainties and contingencies which may be outside of such Borrower’s control and that no assurance can begiven that projections will be realized, and are therefore not to be viewed as fact, and that actual results for the periodscovered by projections may differ from the projected results set forth in such projections and that such differences may bematerial).

 

 

 

SECTION 3.11.         InvestmentCompany Act; Margin Regulations.

 

(a)          Statusas Business Development Company. Such Borrower is a “closed-end fund” that has elected to be regulated as a “businessdevelopment company” within the meaning of the Investment Company Act and qualifies as a RIC.

 

(b)          Compliancewith Investment Company Act. The business and other activities of such Borrower and its Subsidiaries, including the makingof the Loans to such Borrower hereunder, the application of the proceeds and repayment thereof by such Borrower and the consummationof the Transactions with respect to such Borrower or any of its Subsidiaries contemplated by the Loan Documents to which such Borroweror any other member of its Obligor Group is a party do not result in a material violation or breach in any respect of the applicableprovisions of the Investment Company Act or any rules, regulations or orders issued by the SEC thereunder, in each case, that areapplicable to such Borrower and its Subsidiaries.

 

(c)          InvestmentPolicies. Such Borrower is in compliance with all written investment policies, restrictions and limitations for such Borrowerdelivered (to the extent not otherwise publicly filed with the SEC) to the Lenders prior to the Effective Date (as such investmentpolicies have been amended, modified or supplemented in a manner not prohibited by clause (r) of Article VII, the “InvestmentPolicies”), except to the extent that the failure to so comply could not reasonably be expected to result in a MaterialAdverse Effect with respect to such Borrower.

 

(d)          Useof Credit. Neither such Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities,in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock,and no part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock (provided that solong as no violation of Regulation U would result therefrom (x) any Borrower may use proceeds of the Loans made to such Borrowerto purchase its common stock in connection with the redemption (or buyback) of its shares or, in the case of an Unlisted Borrower,in connection with a Tender Offer, and (y) any Borrower may use proceeds of the Loans made to such Borrower for any (i) cash considerationpaid or payable and (ii) cash paid on account of fractional shares, in each case of this clause (y), in connection with a BorrowerMerger).

 

 

 

SECTION 3.12.         MaterialAgreements and Liens.

 

(a)          MaterialAgreements. Part A of Schedule II is a complete and correct list of each credit agreement, loan agreement, indenture,note purchase agreement, guarantee, letter of credit or other arrangement providing for or otherwise relating to any Indebtednessfor borrowed money or any extension of credit (or commitment for any extension of credit) to, or guarantee for borrowed money by,such Borrower or any other member of its Obligor Group outstanding on the Effective Date (in each case, other than any such agreementor arrangement that is between or among such Borrower and any other member of its Obligor Group), and the aggregate principal orface amount outstanding or that is or may become outstanding under each such arrangement, in each case as of the Effective Date,is correctly described in Part A of Schedule II.

 

(b)          Liens.Part B of Schedule II is a complete and correct list of each Lien securing Indebtedness of any Person outstanding on the EffectiveDate (other than Indebtedness hereunder or under any other Loan Document) covering any property of such Borrower or any other memberof its Obligor Group, and the aggregate principal amount of such Indebtedness secured (or that may be secured) by each such Lienand the property covered by each such Lien as of the Effective Date is correctly described in Part B of Schedule II.

 

SECTION 3.13.         Subsidiariesand Investments.

 

(a)          Subsidiaries.Set forth in Part A of Schedule III is a complete and correct list of all of the Subsidiaries of such Borrower on the EffectiveDate together with, for each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Personholding ownership interests in such Subsidiary, (iii) the nature of the ownership interests held by each such Person and thepercentage of ownership of such Subsidiary represented by such ownership interests and (iv) whether such Subsidiary is a DesignatedSubsidiary, an Immaterial Subsidiary or an Excluded Asset (other than a Designated Subsidiary). Except as disclosed in Part A ofSchedule III, as of the Effective Date, (x) such Borrower owns, free and clear of Liens (other than any lien permittedby Section 6.02 hereof), and has the unencumbered right to vote, all outstanding ownership interests in each Subsidiary shownto be held by it in Part A of Schedule III, (y) all of the issued and outstanding capital stock of each such Subsidiaryorganized as a corporation is validly issued, fully paid and nonassessable (to the extent such concepts are applicable) and (z) thereare no outstanding Equity Interests with respect to such Subsidiary. Each Subsidiary identified on said Part A of Schedule IIIas a “Designated Subsidiary” qualifies as such under the definition of “Designated Subsidiary” set forthin Section 1.01.

 

(b)          Investments.Set forth in Part B of Schedule III is a complete and correct list of all Investments (other than Investments of the typesreferred to in clauses (b), (c) and (d) of Section 6.04) held by any of such Borrower and the other membersof its Obligor Group in any Person on the Effective Date and, for each such Investment, (x) the identity of the Person orPersons holding such Investment and (y) the nature of such Investment. Except as disclosed in Part B of Schedule III,as of the Effective Date, such Borrower or, as applicable, such other Obligor, owns, free and clear of all Liens (other than Lienscreated pursuant to the Security Documents such Borrower and/or such other Obligor are party to and other Liens permitted hereunder),all such Investments.

 

 

 

SECTION 3.14.         Properties.

 

(a)          Title Generally.Such Borrower and each of the other members of its Obligor Group have good title to, or valid leasehold interests in, all theirrespective real and personal property material to its business, except for minor defects in title that do not interfere with theirrespective ability to conduct their respective business as currently conducted or to utilize such properties for their intendedpurposes.

 

(b)          IntellectualProperty. Such Borrower and each of the other members of its Obligor Group own, or are licensed to use, all trademarks, tradenames,copyrights, patents and other intellectual property material to their respective business, and the use thereof by such Borrowerand such other Obligor do not infringe upon the rights of any other Person, except for any such infringements that, individuallyor in the aggregate, could not reasonably be expected to result in a Material Adverse Effect with respect to such Borrower.

 

SECTION3.15.         Affiliate Agreements. As of the Effective Date, suchBorrower has heretofore delivered (to the extent not otherwise publicly filed with the SEC) to each of the Lenders true andcomplete copies of each of the Affiliate Agreements to which such Borrower is a party as in effect as of the Effective Date(including any amendments, supplements or waivers executed and delivered thereunder and any schedules and exhibits thereto).As of the Effective Date, each of the Affiliate Agreements to which such Borrower is a party is in full force and effect.

 

SECTION3.16.         Security Documents.	The provisions of the SecurityDocuments that such Borrower and/or the other members of its Obligor Group are party to are effective to create in favor ofthe Collateral Agent for the benefit of the Secured Parties with respect to such Borrower and each such other Obligor alegal, valid and enforceable first priority Lien (subject to Liens permitted by Section 6.02) on all right, title andinterest of such Borrower and each such other Obligor in the Collateral of such Borrower and each such other Obligordescribed therein to secure the Secured Obligations (as defined in the Guarantee and Security Agreement to which suchBorrower is a party) of such Borrower and the other members of its Obligor Group, except for any failure that would notconstitute an Event of Default under clause (p) of Article VII with respect to such Borrower. Except for (a) filing of UCCfinancing statements and filings as may be required under applicable law or otherwise contemplated hereby and by the SecurityDocuments to which such Borrower and/or such other Obligors are a party, and (b) the taking of possession or control by theCollateral Agent of the Collateral with respect to which a security interest may be perfected by possession or control, nofiling or other action will be necessary to perfect such Liens to the extent required thereunder, except for any filing oraction, the absence of which, would not constitute an Event of Default under clause (p) of Article VII with respect to suchBorrower.

 

SECTION3.17.         EEA Financial Institutions. Neither such Borrower nor anyother member of its Obligor Group is an EEA Financial Institution.

 

 

 

Article IV

 

CONDITIONS

 

SECTION 4.01.         EffectiveDate. This Agreement shall become effective on the date on which the followingconditions precedent have been completed (or such condition shall have been waived in accordance with Section 9.02) by eachBorrower, in each case, for such Borrower and the other members in its Obligor Group, delivered on behalf of and solely with respectto such Borrower and such other Obligors and not on behalf of or with respect to any other Borrower or the other members in itsrespective Obligor Group:

 

(a)          Documents.Administrative Agent shall have received each of the following documents with respect to each Obligor Group, each of which shallbe reasonably satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance:

 

(i)          ExecutedCounterparts. From each party hereto either (1) a counterpart of this Agreement signed on behalf of such party or (2) writtenevidence satisfactory to the Administrative Agent (which may include telecopy or electronic transmission of a signed signaturepage to this Agreement) that such party has signed a counterpart of this Agreement.

 

(ii)         Guaranteeand Security Agreements. The Guarantee and Security Agreement to which such Obligor Group is a party, duly executed and deliveredby each of the parties to such Guarantee and Security Agreement.

 

(iii)        Opinionof Counsel to Such Obligor Group. A favorable written opinion (addressed to the Administrative Agent and the Lenders and datedthe Effective Date) of Dechert LLP, New York and Maryland counsel for the members of such Obligor Group, in substantially the formof Exhibit B, and in each case covering such other matters relating to such Obligor Group, this Agreement or the Transactionsto which such Obligor Group is a party as the Administrative Agent may reasonably request.

 

(iv)        Opinionof Special New York Counsel to JPMCB. An opinion, dated the Effective Date, of Milbank, Tweed, Hadley & McCloy, LLP, specialNew York counsel to JPMCB in substantially the form of Exhibit C (and JPMCB hereby instructs such counsel to deliver suchopinion to the Lenders).

 

(v)         CorporateDocuments. Such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to theorganization, existence and good standing of the members of such Obligor Group, the authorization of the Transactions to whichthe members of such Obligor Group are a party and any other legal matters relating to the members of such Obligor Group, this Agreementor the Transactions to which the members of such Obligor Group are a party as each relates to such Obligor Group.

 

 

 

(vi)        Officer’sCertificate. A certificate from the Borrower of such Obligor Group, dated the Effective Date and signed by the President, aVice President, the Chief Executive Officer or any other Financial Officer of such Borrower, confirming compliance with the conditionsset forth in the lettered clauses of the first sentence of Section 4.02.

 

(vii)       ControlAgreements. A control agreement with respect to each of the Deposit Accounts and Securities Accounts (other than (1) ExcludedAccounts (as defined in the Guarantee and Security Agreement to which such Borrower is a party), (2) Deposit Accounts and SecuritiesAccounts described in the first proviso of Section 7.04 of the Guarantee and Security Agreement to which such Obligor Group isa party and (3) Deposit Accounts and Securities Accounts held by Dunning Creek, LLC, Wissahickon Creek LLC and Hamilton StreetFunding LLC) of the members of such Obligor Group required to be delivered by the Guarantee and Security Agreement to which suchObligor Group is a party, duly executed and delivered by each of the parties thereto.

 

(viii)      BorrowingBase Certificate. A Borrowing Base Certificate for the Borrower of such Obligor Group.

 

(b)          Feesand Expenses. The Administrative Agent shall have received evidence of the payment by each Borrower of all fees due and payableto the Lenders and the Joint Lead Arrangers on the Effective Date that such Borrower has agreed to pay in connection with thisAgreement (including any fee letter or commitment letter entered into between such Borrower and the Administrative Agent and theCollateral Agent). Such Borrower shall have paid all reasonable expenses (including the legal fees of Milbank, Tweed, Hadley &McCloy LLP) for which invoices have been presented prior to the Effective Date and such Borrower has agreed to pay in connectionwith this Agreement.

 

(c)          Liens.The Administrative Agent shall have received results of a recent lien search in each relevant jurisdiction with respect to eachBorrower and each other member of its Obligor Group and such search shall reveal no liens on any of the assets of such Borroweror such other Obligor except for liens permitted under Section 6.02 or liens to be discharged on or prior to the EffectiveDate pursuant to documentation reasonably satisfactory to the Administrative Agent.

 

(d)          FinancialStatements. The Administrative Agent and the Lenders shall have received prior to the execution of this Agreement the auditedconsolidated balance sheets, statements of operations, statement of changes in net assets, statements of cash flows and schedulesof investments of each Borrower and its respective Subsidiaries for the fiscal years ended December 31, 2015, December 31, 2016and December 31, 2017, and the unaudited consolidated balance sheets, statements of operations, statement of changes in net assets,statements of cash flows and schedules of investments of each Borrower and its respective Subsidiaries for the fiscal quarter endedMarch 31, 2018. The Administrative Agent and Lenders acknowledge having received the financial statements referred to above.

 

 

 

(e)          Terminationof Existing Credit Agreements. The Administrative Agent shall have received evidence, in form and substance reasonably satisfactoryto it, that the Existing Credit Agreements shall have, as of the Effective Date, been paid in full (other than customary survivalof contingent indemnification and expenses reimbursement obligations) and all Liens and guarantees granted by any Borrower or anyof its Subsidiaries thereunder shall have been released.

 

(f)          ValuationPolicy. A copy of each Borrower’s Valuation Policy.

 

(g)          KnowYour Customer Documentation. Upon the reasonable request of the Administrative Agent or any Lender at least ten (10) days priorto the Effective Date, documentation and other information required by bank regulatory authorities under applicable “knowyour customer” and anti-money laundering rules and regulations.

 

(h)          OtherDocuments. The Administrative Agent shall have received from such Obligor Group such other documents as the AdministrativeAgent or any Lender or special New York counsel to JPMCB may reasonably request from the members of such Obligor Group.

 

The Administrative Agent shall notify the Borrowers and the Lendersof the Effective Date, and such notice shall be conclusive and binding.

 

SECTION 4.02.         EachCredit Event. With respect to a Borrower, the obligation of each Lender to makeany Loan to such Borrower, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit on behalf of such Borrower,is additionally subject to the satisfaction of the following conditions:

 

(a)          therepresentations and warranties of such Borrower set forth in this Agreement and in the other Loan Documents shall be true and correctin all material respects (unless the relevant representation and warranty already contains a materiality qualifier or, in the caseof the representations and warranties in Sections 3.01, 3.02, 3.04, 3.11 and 3.15 of this Agreement, and in Sections 2.01,2.02 and 2.04 through 2.08 of the Guarantee and Security Agreement such Borrower is party to, in each such case, suchrepresentation and warranty shall be true and correct in all respects) on and as of the date of such Loan or the date of issuance,amendment, renewal or extension of such Letter of Credit, as applicable, or, as to any such representation or warranty that refersto a specific date, as of such specific date;

 

(b)          atthe time of and immediately after giving effect to such Loan or the date of issuance, amendment, renewal or extension of such Letterof Credit, as applicable, no Default or Event of Default shall have occurred and be continuing with respect to such Borrower; and

 

 

 

(c)          noBorrowing Base Deficiency with respect to such Borrower shall exist at the time of and immediately after giving effect to suchextension of credit.

 

Each Borrowing and each issuance, amendment, renewal or extensionof a Letter of Credit shall be deemed to constitute a representation and warranty by the applicable Borrower on the date thereofas to the matters specified in the preceding sentence. For the avoidance of doubt, none of the assumption by a Surviving Borrowerof the obligations of a Non-Surviving Borrower in a Borrower Merger, any reallocation of Subcommitments (including any VoluntaryReallocation or other reallocation pursuant to Section 2.07) or the conversion or continuation of a Borrowing as the same or adifferent Type (without increase in the principal amount thereof) shall be considered to be the making of a Loan or an issuance,extension or renewal of a Letter of Credit.

 

Article V

 

AFFIRMATIVE COVENANTS

 

With respect to a Borrower, until the earlierto occur of the Release Date with respect to such Borrower and the Facility Termination Date, such Borrower covenants and agrees(solely on behalf of such Borrower and not on behalf of or with respect to any other Borrower) with the Lenders that:

 

SECTION 5.01.         FinancialStatements and Other Information. Such Borrower will furnish to the AdministrativeAgent for distribution to each Lender:

 

(a)          within 90 daysafter the end of each fiscal year of such Borrower, the audited consolidated balance sheet and related statements of operations,assets and liabilities, changes in net assets, cash flows and schedule of investments of such Borrower and its consolidated Subsidiariesas of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, allreported on by Deloitte & Touche LLP, RSM US LLP or any other independent public accountants of recognized national standingto the effect that such consolidated financial statements present fairly in all material respects the financial condition and resultsof operations of such Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;

 

(b)          within 45 daysafter the end of each of the first three fiscal quarters of each fiscal year of such Borrower, the consolidated balance sheet andrelated statements of operations, assets and liabilities, changes in net assets, cash flows and schedule of investments of suchBorrower and its consolidated Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscalyear, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) thecorresponding period or periods of the previous fiscal year, all certified by a Financial Officer of such Borrower as presentingfairly in all material respects the financial condition and results of operations of such Borrower and its consolidated Subsidiarieson a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absenceof footnotes;

 

 

 

(c)          concurrentlywith any delivery of financial statements under paragraph (a) or (b) of this Section, a certificate of a Financial Officerof such Borrower (i) certifying as to whether such Borrower has knowledge that a Default has occurred and is continuing withrespect to such Borrower during the applicable period and, if a Default has occurred and is continuing with respect to such Borrowerduring the most recent period covered by such financial statements (or has occurred and is continuing from a prior period), specifyingthe details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailedcalculations demonstrating compliance by such Borrower with Sections 6.01(b) and (g), 6.02(d), 6.05(b) and 6.07 and (iii) tothe extent not previously disclosed on a Form 10-K or Form 10-Q previously filed by such Borrower with the SEC, stating whetherany change in GAAP as applied by (or in the application of GAAP by) such Borrower has occurred since the Effective Date (but onlyif such Borrower has not previously reported such change to the Administrative Agent and if such change has had a material effecton the financial statements) and, if any such change has occurred, specifying the effect (unless such effect has been previouslyreported) as determined by such Borrower of such change on the financial statements accompanying such certificate;

 

(d)          assoon as available and in any event not later than the last Business Day of the calendar month following each monthly accountingperiod (ending on the last day of each calendar month) of such Borrower, a Borrowing Base Certificate with respect to such Borroweras at the last day of such accounting period presenting such Borrower’s computation (and including the rationale for anyindustry reclassification and a comparison to show changes from the Borrowing Base Certificate of such Borrower from the immediatelyprior period), a list of each Portfolio Investment included in such computation (and identifying the Obligor holding such PortfolioInvestment), a list of each Portfolio Investment included in the Borrowing Base that is a Participation Interest (identifying theObligor holding such Participation Interest, the Excluded Asset that sold the Participation Interest to such Obligor and the underlyingportfolio investment) and a certification of a Financial Officer of such Borrower as to compliance with Sections 6.03(d) and 6.04(d)by such Borrower during the period covered by such Borrowing Base Certificate;

 

(e)          promptlybut no later than five Business Days after any Financial Officer of such Borrower shall at any time have knowledge that there isa Borrowing Base Deficiency with respect to such Borrower, a Borrowing Base Certificate with respect to such Borrower as at thedate such Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of such Borrowing Base Deficiency as atthe date such Borrower obtained knowledge of such deficiency and the amount of such Borrowing Base Deficiency as of the date notearlier than three Business Days prior to the date such Borrowing Base Certificate is delivered pursuant to this paragraph;

 

 

 

(f)          promptlyupon receipt thereof, copies of (x) all significant and non-routine written reports and (y) written reports stating that materialdeficiencies exist in such Borrower’s internal controls or procedures or any other matter that could reasonably be expectedto result in a Material Adverse Effect with respect to such Borrower submitted to management or the board of directors of suchBorrower by such Borrower’s independent public accountants in connection with each annual, interim or special audit or reviewof any type of the financial statements or related internal control systems of such Borrower or any of its Subsidiaries deliveredby such accountants to the management or board of directors of such Borrower;

 

(g)          promptlyafter the same become publicly available, copies of all periodic and other reports, proxy statements and other materials sent toall stockholders filed by any of such Borrower or any of the other members of its Obligor Group with the SEC, or any GovernmentalAuthority succeeding to any or all of the functions of the SEC, or with any national securities exchange, as the case may be;

 

(h)          promptlyfollowing any request therefor, such other information regarding the operations, business affairs and financial condition of suchBorrower or any of its Subsidiaries, or compliance by such Borrower with the terms of this Agreement and the other Loan Documentsto which such Borrower, is a party, as the Administrative Agent or any Lender may reasonably request;

 

(i)          within45 days after the end of each fiscal quarter of such Borrower, all external valuation reports relating to the Portfolio Investmentsdelivered to such Borrower by the Approved Third-Party Appraiser in connection with the quarterly appraisals of Unquoted Investmentsof such Borrower (provided that any recipient of such reports executes and delivers any non-reliance letter, release, confidentialityagreement or similar agreements required by such Approved Third-Party Appraiser);

 

(j)          within45 days after the end of each fiscal quarter of such Borrower, any report that such Borrower receives from the Custodian listingthe Portfolio Investments of such Borrower, as of the end of such fiscal quarter, held in the Collateral Account; provided thatsuch Borrower shall use its commercially reasonable efforts to cause the Custodian to provide such report;

 

(k)          withinforty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year of such Borrower and ninety (90)days after the end of each fiscal year of such Borrower, a schedule setting forth in reasonable detail with respect to each PortfolioInvestment of such Borrower where there has been a realized gain or loss in the most recently completed fiscal quarter, (i) thecost basis of such Portfolio Investment, (ii) the proceeds received in respect of such Portfolio Investment representing repaymentsof principal during the most recently ended fiscal quarter, and (iii) any other amounts received in respect of such Portfolio Investmentrepresenting exit fees or prepayment penalties during the most recently ended fiscal quarter;

 

(l)          withinforty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year of such Borrower and ninety (90)days after the end of each fiscal year of such Borrower, a schedule setting forth in reasonable detail with respect to each PortfolioInvestment of such Borrower, (i) the aggregate amount of all capitalized paid-in-kind interest in respect of such Portfolio Investmentduring the most recently ended fiscal quarter and (ii) the aggregate amount of all paid-in-kind interest collected in respect ofsuch Portfolio Investment during the most recently ended fiscal quarter;

 

 

 

(m)          withinforty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year of such Borrower and ninety (90)days after the end of each fiscal year of such Borrower, a schedule setting forth in reasonable detail with respect to each PortfolioInvestment held by such Borrower, (i) the amortized cost of such Portfolio Investment as of the end of such fiscal quarter, (ii)the fair market value of such Portfolio Investment as of the end of such fiscal quarter, and (iii) the unrealized gains or lossesof such Borrower as of the end of such fiscal quarter;

 

(n)          withinforty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year of such Borrower and ninety (90)days after the end of each fiscal year of such Borrower, a schedule setting forth in reasonable detail with respect to each PortfolioInvestment held by such Borrower, the change in unrealized gains and losses for such quarter. Such schedule will report the changein unrealized gains and losses by Portfolio Investment held by such Borrower or such other Obligor by showing the unrealized gainor loss for each such Portfolio Investment as of the last day of the preceding fiscal quarter compared to the unrealized gain orloss for such Portfolio Investment as of the last day of the most recently ended fiscal quarter; and

 

(o)          withinforty-five (45) days after the end of the first three (3) fiscal quarters of each fiscal year of such Borrower and ninety (90)days after the end of each fiscal year of such Borrower, an updated Schedule VII.

 

Notwithstanding anything in this Section 5.01 to the contrary,such Borrower shall be deemed to have satisfied its requirements of this Section 5.01 (other than Sections 5.01(c), (d) and(e)) if its reports, documents and other information of the type otherwise so required are publicly available when requiredto be filed on EDGAR at the www.sec.gov website or any successor service provided by the SEC; provided that, with respectto Sections 5.01(f) and (g), notice of such availability is provided to the Administrative Agent at or prior to the time periodrequired by such Sections.

 

SECTION 5.02.         Noticesof Material Events. Upon such Borrower becoming aware of any of the following, such Borrower will (solely with respect tosuch Borrower) furnish to the Administrative Agent for distribution to each Lender prompt written notice of the following:

 

(a)          theoccurrence of any Default with respect to such Borrower (unless such Borrower first became aware of such Default from a noticedelivered by the Administrative Agent);

 

(b)          thefiling or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affectingsuch Borrower or any of its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect with respectto such Borrower;

 

 

 

(c)          theoccurrence of any ERISA Event with respect to such Borrower that, alone or together with any other ERISA Events that have occurredwith respect to such Borrower, could reasonably be expected to result in a Material Adverse Effect with respect to such Borrower;and

 

(d)          anyother development (excluding matters of a general economic, financial or political nature to the extent that they could not reasonablybe expected to have a disproportionate effect on such Borrower) that results in, or could reasonably be expected to result in,a Material Adverse Effect with respect to such Borrower.

 

Each notice delivered under this Section shall be accompanied bya statement of a Financial Officer or other executive officer of such Borrower setting forth the details of the event or developmentrequiring such notice and any action taken or proposed to be taken with respect thereto.

 

SECTION 5.03.         Existence;Conduct of Business. Such Borrower will, and will cause each of its Subsidiaries (other than Immaterial Subsidiaries) to,do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights,licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shallnot prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.

 

SECTION 5.04.         Paymentof Obligations. Such Borrower will, and will cause each of its Subsidiaries to, pay its obligations, including tax liabilitiesand material contractual obligations, that, if not paid, could reasonably be expected to result in a Material Adverse Effect withrespect to such Borrower before the same shall become delinquent or in default, except where (a) the validity or amount thereofis being contested in good faith by appropriate proceedings, (b) such Borrower or any of its Subsidiaries has set aside onits books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending suchcontest could not reasonably be expected to result in a Material Adverse Effect with respect to such Borrower.

 

SECTION 5.05.         Maintenanceof Properties; Insurance. Such Borrower will, and will cause each of its Subsidiaries (other than Immaterial Subsidiaries)to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinarywear and tear excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amountsand against such risks as are customarily maintained by companies engaged in the same or similar business operating in the sameor similar locations.

 

 

 

SECTION 5.06.         Booksand Records; Inspection Rights. Such Borrower will, and will cause each of itsSubsidiaries to, keep books of record and account in accordance with GAAP. Such Borrower will, and will cause each other memberof its Obligor Group to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable priornotice to such Borrower, to visit and inspect its properties during normal business hours, to examine and make extracts from itsbooks and records (including books and records maintained by it in its capacity as a “servicer” in respect of anyDesignated Subsidiary of such Borrower or other Excluded Assets of such Borrower, or in a similar capacity with respect to anyof its other Designated Subsidiaries, but only to the extent such Borrower is not prohibited from disclosing such informationor providing access to such information, and any books, records and documents held by the Custodian), and to discuss its affairs,finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonablyrequested, in each case, to the extent such inspection or requests for such information are reasonable and such information canbe provided or discussed without violation of law, rule, regulation or contract; provided that such Borrower shall be entitledto have its representatives and advisors present during any inspection of its books and records and during any discussion withits independent accountants or independent auditors; provided further that such Borrower shall not be responsible for thecosts and expenses of the Administrative Agent and the Lenders for more than one visit and inspection in any calendar year underthis Section 5.06 and Section 7.01(b) of the Guarantee and Security Agreement to which such Borrower is a party unless an Eventof Default shall have occurred and be continuing with respect to such Borrower.

 

SECTION 5.07.         Compliancewith Laws. Such Borrower will, and will cause each of its Subsidiaries to, complywith all laws, rules, regulations, including the Investment Company Act, any applicable rules, regulations or orders issued bythe SEC thereunder (in each case, if applicable to such Person) and orders of any other Governmental Authority applicable to itor its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to resultin a Material Adverse Effect with respect to such Borrower.

 

SECTION 5.08.         CertainObligations Respecting Subsidiaries; Further Assurances.

 

(a)          SubsidiaryGuarantors. In the event that (1) a Borrower or any other member of its Obligor Group shall form or acquire any new DomesticSubsidiary (other than an Excluded Asset or Immaterial Subsidiary) or (2) any Excluded Asset or Immaterial Subsidiary held by suchBorrower or other members of its Obligor Group that is a Domestic Subsidiary shall no longer constitute an “Excluded Asset”or “Immaterial Subsidiary”, as applicable, pursuant to the definition thereof (in which case such Person shall be deemedto be a “new” Domestic Subsidiary for purposes of this Section 5.08), such Borrower will cause, within 30 days (orsuch longer period as shall be reasonably agreed by the Administrative Agent) following such Person becoming a new Domestic Subsidiaryof such Borrower, such new Domestic Subsidiary to become a “Subsidiary Guarantor” of such Borrower (and thereby an “Obligor” in such Borrower’s Obligor Group) under a Guarantee Assumption Agreement and to deliver such proofof corporate or other action, incumbency of officers, opinions of counsel (if reasonably requested by the Administrative Agent),and other documents as is consistent with those delivered by such Borrower pursuant to Section 4.01 upon the Effective Date oras the Administrative Agent shall have reasonably requested; provided that, any new Domestic Subsidiary acquired in connectionwith a Borrower Merger that was, immediately prior to such Borrower Merger, a Subsidiary Guarantor shall only be required to executeand deliver a Guarantee Assumption Agreement with respect to the obligations of the Surviving Borrower and no other deliverableswill be required by such new Domestic Subsidiary to satisfy this Section 5.08(a). For the avoidance of doubt, any Borrower mayelect to cause any of its Excluded Assets or Immaterial Subsidiaries to become a member of its Obligor Group by causing such Personto become a Subsidiary Guarantor under the Guarantee and Security Agreement to which such Borrower is a party and shall only berequired to execute and deliver a Guarantee Assumption Agreement with respect to the obligations of such Borrower and no otherdeliverables will be required by such Excluded Asset or Immaterial Subsidiary, as applicable, to satisfy this Section 5.08(a) (atwhich point such Person shall be a Subsidiary Guarantor and shall no longer be an Excluded Asset or an Immaterial Subsidiary).

 

 

 

(b)          Ownershipof Subsidiaries. Such Borrower will, and will cause each of its Subsidiaries to, take such action from time to time as shallbe necessary to ensure that each of its Subsidiaries is a wholly owned Subsidiary, provided that the foregoing shall notprohibit any transaction permitted under Section 6.03 or 6.04, so long as after giving effect to such permitted transaction eachof the remaining Subsidiaries of such Borrower is a wholly owned Subsidiary.

 

(c)          FurtherAssurances. Such Borrower will, and will cause each other member of its Obligor Group to, take such action from time to time(including filing appropriate Uniform Commercial Code financing statements and executing and delivering such assignments,security agreements and other instruments) as shall reasonably be requested by the Administrative Agent to effectuate the purposesand objectives of this Agreement, including:

 

(i)          tocreate, in favor of the Collateral Agent for the benefit of the Lenders (and any Affiliate thereof that is a party to any HedgingAgreement entered into with such Borrower and/or such other Obligor) and the holders of any Other Secured Indebtedness of suchBorrower, perfected security interests and Liens in the Collateral owned by such Borrower and such other Obligor; providedthat any such security interest or Lien shall be subject to the relevant requirements of the Security Documents to which such Borroweror such other Obligor is a party; provided further, that in the case of any Collateral consisting of voting stock of anyControlled Foreign Corporation of such Borrower, such security interest shall be limited to 65% of the issued and outstandingvoting stock of such Controlled Foreign Corporation that is directly held by such Borrower or such other Obligor,

 

(ii)         subjectto Sections 7.01 and 7.04 of the Guarantee and Security Agreement to which such Borrower is a party, to cause any bank orsecurities intermediary (within the meaning of the Uniform Commercial Code) to enter into such arrangements with the CollateralAgent as shall be appropriate in order that the Collateral Agent has “control” over each deposit account or securitiesaccount of such Borrower and such other Obligor (other than Excluded Accounts (as defined in the Guarantee and Security Agreementto which such Borrower is a party)) and in that connection, such Borrower agrees to cause all cash and other proceeds of PortfolioInvestments received by such Borrower and such other Obligor to be promptly deposited into such an account (or otherwise deliveredto, or registered in the name of, the Collateral Agent) and, until such deposit, delivery or registration such cash and other proceedsin the possession of such Borrower shall be held in trust by such Borrower for the benefit of the Collateral Agent and shall notbe commingled with any other funds or property of such Borrower, such other Obligor, its Designated Subsidiaries or any other Person(including with any money or financial assets of such Borrower or such other Obligor in its capacity as “servicer”for any such Designated Subsidiary or any of its other Excluded Assets, or any money or financial assets of any Excluded Asset),

 

 

 

(iii)        inthe case of any portfolio investment held by an Excluded Asset or an Immaterial Subsidiary of such Borrower, including any cashcollection related thereto, ensure that such portfolio investment shall not be held in the account of such Borrower or such otherObligor subject to a control agreement among such Borrower or such other Obligor, the Collateral Agent and the Custodian deliveredin connection with this Agreement or any other Loan Document,

 

(iv)        inthe case of any Portfolio Investment consisting of a Bank Loan that does not constitute all of the credit extended to the underlyingborrower under the relevant underlying loan documents and an Excluded Asset or an Immaterial Subsidiary of such Borrower holdsany interest in the loans or other extensions of credit under such loan documents, (x) cause such Excluded Asset or such ImmaterialSubsidiary to be party to such underlying loan documents as a “lender” having a direct interest (or a participationnot acquired from such Borrower or such other Obligor) in such underlying loan documents and the extensions of credit thereunderand (y) ensure that, subject to Section 5.08(c)(v) below, all amounts owing to such Borrower, such other Obligor or such ExcludedAsset or Immaterial Subsidiary of such Borrower by the underlying borrower or other obligated party are remitted by such borroweror obligated party (or the applicable administrative agents, collateral agents or equivalent Person) directly to the accounts ofsuch Borrower, such other Obligor, such Excluded Asset and such Immaterial Subsidiary, respectively,

 

(v)         inthe event that such Borrower or such other Obligor is acting as an agent or administrative agent (or analogous capacity) underany loan documents with respect to any Bank Loan and such Borrower or such other Obligor does not hold all of the credit extendedto the underlying borrower under the relevant underlying loan documents, ensure that all funds held by such Borrower or such otherObligor in such capacity as agent or administrative agent are segregated from all other funds of such Borrower or such other Obligorand are clearly identified as being held in an agency capacity, and

 

(vi)        causeall credit or loan agreements, any notes and all assignment and assumption agreements relating to any Portfolio Investment of suchBorrower or such other Obligor constituting part of the Collateral to be held by (x) the Collateral Agent, (y) the Custodianpursuant to the terms of the applicable Custodian Agreement (or another custodian reasonably satisfactory to the AdministrativeAgent), or (z) pursuant to an appropriate intercreditor agreement, so long as the Custodian (or custodian) has agreed to grantaccess to such loan and other documents to the Administrative Agent pursuant to an access or similar agreement between such Borrowerand the Custodian (or custodian) in form and substance reasonably satisfactory to the Administrative Agent; provided thatsuch Borrower’s obligation to deliver underlying documentation may be satisfied by delivery of copies of such agreements.

 

 

 

Notwithstanding anything to the contrary contained herein, (1) nothingcontained herein shall prevent a Borrower from having a Participation Interest in a portfolio investment held by an Excluded Assetand (2)if any instrument, promissory note, agreement, document or certificate held by the Custodian is destroyed or lost not asa result of any action of such Borrower, then any original of such instrument, promissory note, agreement, document or certificateshall be deemed held by the Custodian for all purposes hereunder; provided that, when such Borrower has actual knowledgeof any such destroyed or lost instrument, promissory note, agreement, document or certificate, it uses all commercially reasonableefforts to obtain from the underlying borrower, and deliver to the Custodian, a replacement instrument, promissory note, agreement,document or certificate.

 

SECTION 5.09.         Useof Proceeds. Such Borrower will use the proceeds of its Loans and the issuancesof Letters of Credit issued on behalf of such Borrower for general corporate purposes of such Borrower and its Subsidiaries inthe ordinary course of business, including, (a) purchasing shares of its common stock in connection with the redemption (or buyback)of its shares or, in the case of an Unlisted Borrower, in connection with a Tender Offer, (b) for (x) cash consideration paidor payable or (y) cash paid on account of fractional shares, in each case of this clause (b), in connection with a Borrower Merger,and (c) making other distributions, contributions and investments not prohibited by the Loan Documents to which such Borroweror any other member of its Obligor Group is a party, and the acquisition and funding (either directly or through one or more ofits wholly-owned Subsidiaries) of leveraged loans, mezzanine loans, high-yield securities, convertible securities, preferred stock,common stock, Hedging Agreements and other Portfolio Investments of such Borrower, in each case to the extent otherwise permittedhereunder; provided that neither the Administrative Agent nor any Lender shall have any responsibility as to the use of any ofsuch proceeds. No part of the proceeds of any Loan made to such Borrower will be used in violation of applicable law or, directlyor indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any Margin Stock (except as setforth in Section 3.11(d)). Upon the request of any Lender, the applicable Borrower shall furnish to such Lender a statement inconformity with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to in Regulation U. Such Borrower willnot request any Borrowing or Letter of Credit, and such Borrower shall not use, and shall procure that its Subsidiaries and itsor their respective directors, officers, employees and agents shall not use, the proceeds of any Borrowing made to such Borroweror Letter of Credit issued on behalf of such Borrower (A) in furtherance of an offer, payment, promise to pay, or authorizationof the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws applicableto such Borrower, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or withany Sanctioned Person, in violation of any Sanctions applicable to such Borrower, or in any Sanctioned Country, to the extentsuch activities, businesses or transactions would be prohibited by Sanctions if conducted by a corporation incorporated in theUnited States, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

** **

SECTION 5.10.         Statusof RIC and BDC. Such Borrower shall at all times maintain its status as a RIC underthe Code, and as a “business development company” under the Investment Company Act.

 

 

 

SECTION5.11.         Investment and Valuation Policies. Such Borrower shallpromptly advise the Administrative Agent and the Lenders of any material change in either its Investment Policies orValuation Policy.

 

SECTION 5.12.         PortfolioValuation and Diversification, Etc.

 

(a)          IndustryClassification Groups. For purposes of this Agreement, such Borrower, in its reasonable determination, shall assign (includingin connection with a Borrower Merger) each Portfolio Investment owned by it or any other member of its Obligor Group to an IndustryClassification Group. To the extent that such Borrower reasonably determines that any such Portfolio Investment is not adequatelycorrelated with the risks of other Portfolio Investments assigned to an Industry Classification Group, such Borrower may assignsuch Portfolio Investment to an Industry Classification Group that is more closely correlated to such Portfolio Investment. Inthe absence of adequate correlation, such Borrower shall be permitted to, upon notice to the Collateral Agent for distributionto each Lender, create up to three additional industry classification groups for purposes of this Agreement; provided thatonce any Borrower has created an additional industry classification group, such industry classification group may be used by anyother Borrower as an Industry Classification Group; provided further that no more than three different additional industryclassification groups may be created by all of the Borrowers in the aggregate pursuant to this paragraph (a).

 

(b)          PortfolioValuation Etc.

 

(i)          SettlementDate Basis. For purposes of this Agreement, all determinations of whether an investment is to be included as a Portfolio Investmentshall be determined on a settlement date basis (meaning that any investment that has been purchased will not be treated as a PortfolioInvestment until such purchase has settled, and any Portfolio Investment which has been sold will not be excluded as a PortfolioInvestment until such sale has settled); provided that no such investment shall be included as a Portfolio Investment to the extentit has not been paid for in full.

 

(ii)         Determinationof Values. Such Borrower will conduct reviews of the value to be assigned to each of its Portfolio Investments included inthe Borrowing Base of such Borrower as follows:

 

(A)         QuotedInvestments—External Review. With respect to Portfolio Investments (including Cash Equivalents) held by such Borrowerfor which market quotations are readily available (“Quoted Investments”), such Borrower shall, not less frequentlythan once each calendar week, determine the market value of such Quoted Investments owned by it or any other member of its ObligorGroup which shall, in each case, be determined in accordance with one of the following methodologies (as selected by such Borrower):

 

(w)          inthe case of public and 144A securities, the average of the bid prices as determined by at least two Approved Dealers selectedby such Borrower,

 

(x)          inthe case of Bank Loans, the average of the bid prices as determined by at least two Approved Dealers selected by such Borroweror an Approved Pricing Service which makes reference to at least two Approved Dealers with respect to such Bank Loans,

 

 

 

(y)          inthe case of any Quoted Investment traded on an exchange, the closing price for such Portfolio Investment most recently posted onsuch exchange, and

 

(z)          inthe case of any other Quoted Investment, the fair market value thereof as determined by an Approved Pricing Service; and

 

(B)         UnquotedInvestments—External Review. With respect to Portfolio Investments owned by such Borrower or any other member of itsObligor Group for which market quotations are not readily available (“Unquoted Investments”), such Borrowershall value such Unquoted Investments quarterly in a manner consistent with its valuation policy, as the same may be amended, supplemented,waived or otherwise modified from time to time consistent with industry practice for business development companies and in a mannernot prohibited by this Agreement (the “Valuation Policy”), including valuation of at least 35% by valueof all Unquoted Investments included in the Borrowing Base of such Borrower using the assistance of an Approved Third Party Appraiser.

 

(C)         InternalReview. Such Borrower shall conduct an internal review of the aggregate value of the Portfolio Investments owned by such Borroweror any other member of its Obligor Group included in the Collateral Pool of such Borrower or the Borrowing Base of such Borrower,at least once each calendar week, which shall take into account any event of which such Borrower has knowledge that materiallyadversely affects the aggregate value of such Portfolio Investments included in the Collateral Pool of such Borrower or the BorrowingBase of such Borrower. If, based upon such weekly internal review, such Borrower determines that a Borrowing Base Deficiency withrespect to such Borrower exists, then such Borrower shall, within five Business Days as provided in Section 5.01(e), delivera Borrowing Base Certificate reflecting the new amount of the Borrowing Base of such Borrower and shall take the actions, and makethe payments and prepayments on the Loans made to such Borrower (and/or provide cover for Letters of Credit issued on behalf ofsuch Borrower), all as more specifically set forth in Section 2.09(c).

 

(D)         Failureto Determine Values. If such Borrower shall fail to determine the value of any Portfolio Investment owned by such Borroweror any other member of its Obligor Group as at any date pursuant to the requirements (but subject to the exclusions) of the foregoingsubclauses (A) through (C), the “Value” of such Portfolio Investment as at such date shall be deemed to be zerofor purposes of the Borrowing Base of such Borrower.

 

provided that, each Borrower shall value substantially all PortfolioInvestments held by such Borrower or any other member of its Obligor Group pursuant to the foregoing requirements no less frequentlythan once in any rolling twelve-month period.

 

 

 

(E)         InitialValue of Assets. Notwithstanding anything to the contrary contained herein, from the Effective Date until the date when thevaluation reports are required to be delivered under Section 5.01(i) for the quarter ending September 30, 2018, the Value of anyPortfolio Investment included in the Borrowing Base with respect to each Borrower shall be the Value as determined in a mannerconsistent with this Section 5.12 and as delivered to the Collateral Agent on or prior to the Effective Date.

 

(iii)        ScheduledTesting of Values.

 

(A)         EachApril 30, July 31, October 31 and February 28 of each calendar year, commencing on October 31, 2018 (or such other dates as areagreed to by such Borrower and the Collateral Agent, but in no event less frequently than once per calendar quarter, with respectto such Borrower, each a “Valuation Testing Date”), the Collateral Agent through an Independent Valuation Providerwill test the values determined pursuant to Section 5.12(b)(ii) above of those Unquoted Investments owned by such Borrower or anyother member of its Obligor Group included in the Borrowing Base of such Borrower selected by the Collateral Agent; provided,that the aggregate fair value of such Unquoted Investments tested on any Valuation Testing Date will be equal to the Tested Amount(as defined below) (or as near thereto as reasonably practical); provided further that, if more than one Borrower holdsan Investment in the same Unquoted Investment, in no event shall more than one Independent Valuation Provider value such UnquotedInvestment on the applicable Valuation Testing Date without the written consent of each applicable Borrower. For the avoidanceof doubt, Unquoted Investments that are part of the Collateral but not included in the Borrowing Base of such Borrower as of aValuation Testing Date (the “Applicable Valuation Testing Date”) shall not be subject to testing under thisSection 5.12(b)(iii); provided that such Unquoted Investment shall continue to be excluded from the Borrowing Base untilsuch time as the applicable Borrower determines to include it in the Borrowing Base and it was eligible to be included in the BorrowingBase as part of the Tested Amount as of the most recent Valuation Testing Date prior to such time.

 

(B)         Forpurposes of this Agreement, the “Tested Amount” with respect to a Borrower shall be equal to the greater of: (i) anamount equal to (y) 125% of the Covered Debt Amount of such Borrower (as of the applicable Valuation Testing Date) minus (z) thesum of the values of all Cash and all Quoted Investments included in the Borrowing Base of such Borrower (as of the applicableValuation Testing Date) and (ii) 10% of the aggregate value of all Unquoted Investments included in the Borrowing Base of suchBorrower (as of the applicable Valuation Testing Date); provided, however, in no event shall more than 25% (or, ifclause (ii) applies, 10%, or as near thereto as reasonably practicable) of the aggregate value of the Unquoted Investments includedin the Borrowing Base of such Borrower be tested by the Independent Valuation Provider in respect of any applicable Valuation TestingDate. If the Value of the Unquoted Investments included in the Borrowing Base is less than the “Tested Amount” as calculatedin the immediately preceding sentence, then the “Tested Amount” shall equal the Value of such Unquoted Investments.If more than one Borrower holds an investment in the same Unquoted Investment, and an Independent Valuation Provider values suchUnquoted Investment, then such Unquoted Investment shall be deemed valued by the Independent Valuation Provider for the purposesof determining the “Tested Amount” for each Borrower that holds such investment.

 

 

 

(C)         Withrespect to any Unquoted Investment of any Borrower, if the value of such Unquoted Investment determined pursuant to Section 5.12(b)(ii)by such Borrower is not more than the lesser of (1) five (5) points more than the midpoint of the valuation range (expressed asa percentage of par) provided by the Independent Valuation Provider (provided that the value of such Unquoted Investment is customarilyquoted as a percentage of par) and (2) 110% of the midpoint of the valuation range provided by the Independent Valuation Provider,then the value for such Unquoted Investment determined in accordance with Section 5.12(b)(ii) by such Borrower shall continue tobe used as the “Value” for purposes of this Agreement. If the value of any Unquoted Investment determined pursuantto Section 5.12(b)(ii) by such Borrower is more than the lesser of the values set forth in clause (C)(1) and (2) (to the extentapplicable), then for such Unquoted Investment, the “Value” for purposes of this Agreement shall become the lesserof (x) the highest value of the valuation range provided by the Independent Valuation Provider, (y) five (5) points more than themidpoint of the valuation range (expressed as a percentage of par) provided by the Independent Valuation Provider (provided thatthe value of such Unquoted Investment is customarily quoted as a percentage of par) and (z) 110% of the midpoint of the valuationrange provided by the Independent Valuation Provider; provided that, if a Portfolio Investment (including, for the avoidanceof doubt, a Participation Interest) is acquired (other than in connection with a Borrower Merger) during a fiscal quarter and untilsuch time as the Value is obtained with respect to such Portfolio Investment pursuant to Section 5.12(b)(ii)(A), 5.12(b)(ii)(B)or 5.12(b)(iii), the “Value” of such Portfolio Investment shall be deemed to be equal to the lower of (x) the valueof such Portfolio Investment determined pursuant to Section 5.12(b)(ii)(C) and (y) the cost of such Unquoted Investment; providedfurther that, if a Portfolio Investment is acquired in connection with a Borrower Merger during a fiscal quarter and untilsuch time as the Value is obtained with respect to such Portfolio Investment pursuant to Section 5.12(b)(ii)(A), 5.12(b)(ii)(B)or 5.12(b)(iii), the “Value” of such Portfolio Investment shall be the Value as most recently determined pursuant toSection 5.12 with respect to such Non-Surviving Obligor (it being the understanding that the Value determined by an Approved Third-PartyAppraiser or an Independent Valuation Provider of the Portfolio Investments of the Non-Surviving Obligors as of the most recentlyended quarterly period or Valuation Testing Date shall carry over to the Surviving Obligor until a new value is obtained underSection 5.12(b)(ii)).

 

 

 

(iv)        SupplementalTesting of Values.

 

(A)         Notwithstandingthe foregoing, the Administrative Agent, the Collateral Agent, each individually or at the request of the Required Lenders, shall,with respect to any Borrower, at any time have the right, solely for purposes of the Borrowing Base of such Borrower, to request,in its reasonable discretion, any Portfolio Investment included in the Borrowing Base of such Borrower with a value determinedpursuant to Section 5.12(b)(ii) to be independently tested by the Independent Valuation Provider. There shall be no limiton the number of such tests that may be requested by the Administrative Agent or the Collateral Agent in its reasonable discretion.If (x) the value determined by such Borrower pursuant to Section 5.12(b)(ii) is less than the value determined by theIndependent Valuation Provider pursuant to this clause, then the value determined by such Borrower pursuant to Section 5.12(b)(ii)shall continue to be used as the “Value” for purposes of this Agreement and (y) if the value determined by suchBorrower pursuant to Section 5.12(b)(ii) is greater than the value determined by the Independent Valuation Provider pursuantto this clause and the difference between such values is: (1) less than or equal to 5% of the value determined by suchBorrower pursuant to Section 5.12(b)(ii), then the value determined by such Borrower pursuant to Section 5.12(b)(ii)shall continue to be used as the “Value” of such Portfolio Investment for purposes of this Agreement; (2) greaterthan 5% and less than or equal to 20% of the value determined by such Borrower pursuant to Section 5.12(b)(ii),then the “Value” of such Portfolio Investment for purposes of this Agreement shall become the average of the valuedetermined by such Borrower pursuant to Section 5.12(b)(ii) and the value determined by the Independent Valuation Providerpursuant to this clause; and (3) greater than 20% of the value determined by such Borrower pursuant to Section 5.12(b)(ii),then such Borrower and the Administrative Agent or the Collateral Agent, as applicable, shall retain an additional third-partyappraiser and, upon the completion of such appraisal, the “Value” of such Portfolio Investment for purposes of thisAgreement shall become the average of the three valuations (with the value of the Independent Valuation Provider determined pursuantto this clause to be used as the “Value” of such Portfolio Investment until the third value is obtained). For the avoidanceof doubt, Portfolio Investments that are part of the Collateral but not included in the Borrowing Base of such Borrower as of theApplicable Valuation Testing Date shall not be subject to testing under this Section 5.12(b)(iv); provided that suchPortfolio Investment shall continue to be excluded from the Borrowing Base until such time as the applicable Borrower determinesto include it in the Borrowing Base and it was eligible to be included in the Borrowing Base as part of the Tested Amount as ofthe most recent Valuation Testing Date prior to such time.

 

(B)         Exceptas otherwise provided herein, the Value of any Portfolio Investment for which the Independent Valuation Provider’s valueis used shall be the midpoint of the range (if any) determined by the Independent Valuation Provider. The Independent ValuationProvider shall apply a recognized valuation methodology that is commonly accepted by the business development company industryfor valuing Portfolio Investments of the type being valued and held by such Borrower and any other member of its Obligor Group.

 

(C)         Forthe avoidance of doubt, the Value of any Portfolio Investment determined in accordance with this Section 5.12 shall be theValue of such Portfolio Investment for purposes of this Agreement until a new Value for such Portfolio Investment is subsequentlydetermined in accordance with this Section 5.12.

 

 

 

(D)         Thereasonable and documented out-of-pocket costs of any valuation reasonably incurred by the Administrative Agent or the CollateralAgent, as applicable, under this Section 5.12 shall be at the expense of the applicable Borrower; provided that theaggregate of all Borrowers’ obligations to reimburse valuation costs incurred by the Administrative Agent and the CollateralAgent, collectively, pursuant to this Section 5.12(b)(iv) shall be limited to an aggregate annual amount equal to the greaterof (x) $200,000 and (y) 0.05% of the total Commitments (provided, in the case of any Borrower, such Borrower’s annualreimbursement obligation shall in no event be greater than 0.05% of the total Subcommitments allocated to such Borrower).

 

(E)         Inaddition, the values determined by the Independent Valuation Provider shall be deemed to be “Information” hereunderand subject to Section 9.13 hereof.

 

(F)         TheAdministrative Agent or the Collateral Agent, as applicable, shall provide a copy of the final results of any valuation performedby the Independent Valuation Provider or an Approved Third-Party Appraiser to any Lender promptly upon such Lender’s request,except to the extent that such recipient has not executed and delivered a customary and reasonable non-reliance letter, confidentialityagreement or similar agreement requested or required by such Independent Valuation Provider or Approved Third-Party Appraiser,as applicable.

 

(v)         Forthe avoidance of doubt, any Values determined by the Independent Valuation Provider pursuant to Sections 5.12(b)(iii) and (iv)shall only be required to be used for purposes of calculating the Borrowing Base of such Borrower and shall not be required tobe utilized by any Borrower for any other purpose, including, without limitation, the delivery of financial statements or valuationsrequired under ASC 820 or the Investment Company Act.

 

(vi)        TheIndependent Valuation Provider shall be instructed to conduct its tests in a manner not disruptive in any material respect to thebusiness of any Borrower. The Collateral Agent shall notify the applicable Borrower of its receipt of the final results of anyvaluation performed by the Independent Valuation Provider promptly upon its receipt thereof and shall provide a copy of such resultsand the related report to such Borrower promptly upon such Borrower’s request.

 

(c)          InvestmentCompany Diversification Requirements. Such Borrower will, and will cause its Subsidiaries (other than Subsidiaries that areexempt from the Investment Company Act) at all times to comply in all material respects with the portfolio diversification andsimilar requirements set forth in the Investment Company Act applicable to business development companies. Such Borrower will atall times, subject to applicable grace periods set forth in the Code, comply with the portfolio diversification and similar requirementsset forth in the Code applicable to RICs.

 

 

 

(d)          ParticipationInterests. The Value attributable to any Participation Interest shall be the Value determined with respect to its underlyingportfolio investment in accordance with this Section 5.12, provided any participation interest that does not satisfy thedefinition of Participation Interest shall have a Value of zero for purposes of this Agreement.

 

SECTION 5.13.         Calculationof Borrowing Base.

 

For purposes of this Agreement, the “BorrowingBase” with respect to a Borrower shall be determined, as at any date of determination, as the sum of the products obtainedby multiplying (x) the Value of each Portfolio Investment of such Borrower in the Collateral Pool of such Borrower by (y) theapplicable Advance Rate by (z) solely with respect to an Unlisted Borrower, 0.9091, provided that:

 

(a)          theAdvance Rate applicable to that portion of the aggregate Value of such Portfolio Investments of such Borrower of all issuers ina consolidated group of corporations or other entities in accordance with GAAP exceeding 6% of the aggregate Value of allsuch Portfolio Investments in the Collateral Pool of such Borrower, shall be 50% of the otherwise applicable Advance Rate;

 

(b)          theAdvance Rate applicable to that portion of the aggregate Value of such Portfolio Investments of such Borrower of all issuers ina consolidated group of corporations or other entities in accordance with GAAP exceeding 12% of the aggregate Value of allsuch Portfolio Investments in the Collateral Pool of such Borrower shall be 0%;

 

(c)          theAdvance Rate applicable to that portion of the aggregate Value of such Portfolio Investments of such Borrower in any single IndustryClassification Group that exceeds 25% of the aggregate Value of all such Portfolio Investments in the Collateral Pool of suchBorrower shall be 0%; provided that, with respect to the Portfolio Investments of such Borrower in a single IndustryClassification Group from time to time designated by such Borrower to the Collateral Agent, such 25% figure shall be increasedto 30% and, accordingly, only to the extent that the aggregate Value of such Portfolio Investments of such Borrower in such singleIndustry Classification Group that exceeds 30% of the aggregate Value of all such Portfolio Investments in the CollateralPool of such Borrower shall be 0%;

 

(d)          theAdvance Rate applicable to that portion of the aggregate Value of investments of such Borrower and such other Obligors in Non-CoreInvestments that exceeds 20% of the aggregate value of all such Portfolio Investments in the Collateral Pool of such Borrower shallbe 0%;

 

(e)          theAdvance Rate applicable to such Borrower’s investments in any Excluded Asset shall be 0%;

 

(f)          theaggregate Value of investments of such Borrower and such other Obligors in Cash, Cash Equivalents, Short-Term U.S. GovernmentSecurities, Performing First Lien Bank Loans and Performing Second Lien Bank Loans of such Borrower and such other Obligors maynot be less than 50% of the aggregate Value of all Portfolio Investments in the Collateral Pool of such Borrower; providedthat this paragraph (f) shall not apply to a Borrower and the other members in its Obligor Group at any time the sum of the CombinedDebt Amount of such Borrower exceeds 67% of the Other Debt Amount of such Borrower;

 

 

 

(g)          theaggregate Value of investments of such Borrower and such other Obligors in Cash, Cash Equivalents, Short-Term U.S. GovernmentSecurities and Performing First Lien Bank Loans of such Borrower and such other Obligors may not be less than 20% of the aggregateValue of all Portfolio Investments in the Collateral Pool of such Borrower; provided that this paragraph (g) shall not applyto a Borrower and the other members in its Obligor Group at any time the sum of the Combined Debt Amount of such Borrower exceeds67% of the Other Debt Amount of such Borrower;

 

(h)          noPortfolio Investment of such Borrower may be included in the Borrowing Base of such Borrower until such time as such PortfolioInvestment has been Delivered (as defined in the Guarantee and Security Agreement to which such Borrower is a party) to the CollateralAgent, and then only for so long as such Portfolio Investment continues to be Delivered as contemplated therein; providedthat in the case of any Portfolio Investment of such Borrower in which the Collateral Agent has a first-priority perfected securityinterest pursuant to a valid Uniform Commercial Code filing, such Portfolio Investment may be included in the Borrowing Baseof such Borrower so long as all remaining actions to complete “Delivery” are satisfied within 7 days of suchinclusion (or such longer period up to thirty (30) days as the Administrative Agent and the Collateral Agent may agree in theirrespective sole discretion); provided further that voting stock of any Controlled Foreign Corporation of such Borrower orsuch other Obligor in excess of 65% of the issued and outstanding voting stock of such Controlled Foreign Corporation shallnot be included as a Portfolio Investment for purposes of calculating the Borrowing Base of such Borrower; and

 

(i)          noParticipation Interest may be included in the Borrowing Base of such Borrower for more than 90 days.

 

For the avoidance of doubt, (a) to avoid double-countingof excess concentrations, any Advance Rate reductions set forth under this Section 5.13 shall be without duplication of any othersuch Advance Rate reductions and (b) to the extent the Borrowing Base of a Borrower is required to be reduced to comply with thisSection 5.13, such Borrower shall be permitted to choose the Portfolio Investments of such Borrower to be excluded from the BorrowingBase to effect such reduction.

 

As used herein, with respect to any Borrower orany other member of its Obligor Group, the following terms have the following meanings:

 

“Advance Rate” means, as toany Portfolio Investment of a Borrower and subject to adjustment as provided in Section 5.13(a) through (i), as applicable,the following percentages with respect to such Portfolio Investment:

 

 

 

 

“Bank Loans” means debt obligations(including, without limitation, term loans, revolving loans, debtor-in-possession financings, the funded and unfunded portion ofrevolving credit lines and letter of credit facilities and other similar loans and investments including interim loans, bridgeloans and senior subordinated loans) which are generally documented under documentation substantially similar to documents usedunder a syndicated loan or credit facility or pursuant to any loan agreement, note purchase agreement or other similar financingarrangement facility, whether or not syndicated.

 

“Bankruptcy Code” means theUnited States Bankruptcy Code, 11 U.S.C. Section 101 et seq.

 

“Capital Stock” of any Personmeans any and all shares of corporate stock (however designated) of, and any and all other equity interests and participationsrepresenting ownership interests (including membership interests and limited liability company interests) in, such Person.

 

“Cash” has the meaning assignedto such term in Section 1.01 of this Agreement.

 

“Cash Equivalents” has themeaning assigned to such term in Section 1.01 of this Agreement.

 

1For the avoidance of doubt, the above categories are intended to be indicative of the traditional investment types.  All determinationsof whether a particular Portfolio Investment belongs to one category or another shall be made by the applicable Borrower on a consistentbasis with the foregoing.   For example, a secured bank loan at a holding company, the only assets of which are the sharesof an operating company, may constitute Mezzanine Investments, but would not ordinarily constitute a Bank Loan.

 

 

 

“Cash Pay Bank Loans” meansFirst Lien Bank Loans and Second Lien Bank Loans as to which, at the time of determination, (x) for which not less than 2/3rdsof the interest (including accretions and “pay-in-kind” interest) for the current period is payable in cash at leastquarterly or (y)(i) if such Bank Loan is a floating rate obligation, cash interest in an amount greater than or equal to 4.5% aboveLIBOR is payable at least quarterly or (ii) if such Bank Loan is a fixed rate obligation, cash interest in an amount greater thanor equal to 8% per annum is payable at least quarterly.

 

“CDO Securities” means debtsecurities, equity securities or composite or combination securities (i.e. securities consisting of a combination of debt and equitysecurities that are issued in effect as a unit), including synthetic securities that provide synthetic credit exposure to debtsecurities, equity securities or composite or combination securities (or other investments that similarly represent an investmentin underlying levered portfolios), that, in each case, entitle the holders thereof to receive payments that (i) depend onthe cash flow from a portfolio consisting primarily of ownership interests in debt securities, corporate loans or asset-backedsecurities or (ii) are subject to losses owing to credit events (howsoever defined) under credit derivative transactions withrespect to debt securities, corporate loans or asset-backed securities.

 

“First Lien Bank Loan” meansa Bank Loan that is entitled to the benefit of a first lien and first priority perfected security interest (subject to any PermittedPrior Working Capital Lien and other customary encumbrances) on a substantial portion of the assets of the respective borrowerand guarantors obligated in respect thereof. For the avoidance of doubt, the “last out” portion of any “lastout” Bank Loan shall not constitute a First Lien Bank Loan.

 

“High Yield Securities” meansdebt Securities (a) issued by public or private issuers, (b) issued pursuant to an effective registration statement orpursuant to Rule 144A under the Securities Act (or any successor provision thereunder) and (c) that are not Cash Equivalents,Mezzanine Investments (described under clause (i) of the definition thereof) or Bank Loans.

 

“Long-Term U.S. Government Securities”means U.S. Government Securities maturing more than one month from the applicable date of determination.

 

“Mezzanine Investments” means(i) debt Securities (including convertible debt Securities (other than the “in-the-money” equity component thereof))(a) issued by public or private issuers, (b) issued without registration under the Securities Act, (c) not issuedpursuant to Rule 144A under the Securities Act (or any successor provision thereunder), (d) that are not Cash Equivalentsand (e) contractually subordinated in right of payment to other debt of the same issuer and (ii) a Bank Loan that is not aFirst Lien Bank Loan, Second Lien Bank Loan or a High Yield Security.

 

“Non-Core Investments” means,collectively, Portfolio Investments in common equity, warrants, Non-Performing Bank Loans, Non-Performing High Yield Securities,Non-Performing Mezzanine Investments, Performing Non-Cash Pay High Yield Securities, and Performing Non-Cash Pay Mezzanine Investments.

 

 

 

“Non-Performing Bank Loans”means, collectively, Non-Performing First Lien Bank Loans and Non-Performing Second Lien Bank Loans.

 

“Non-Performing Common Equity”means Capital Stock (other than Preferred Stock) and warrants of an issuer having any debt outstanding that is non-Performing.

 

“Non-Performing First Lien Bank Loans”means First Lien Bank Loans other than Performing First Lien Bank Loans.

 

“Non-Performing High Yield Securities”means High Yield Securities other than Performing High Yield Securities.

 

“Non-Performing Mezzanine Investments”means Mezzanine Investments other than Performing Mezzanine Investments.

 

“Non-Performing Preferred Stock”means Preferred Stock other than Performing Preferred Stock.

 

“Non-Performing Second Lien Bank Loans”means Second Lien Bank Loans other than Performing Second Lien Bank Loans.

 

“Performing” means (a) withrespect to any Portfolio Investment of a Borrower that is debt, the issuer of such Portfolio Investment is (i) not then in defaultof any payment obligations outstanding with respect to accrued and unpaid interest or principal in respect thereof, after the expirationof any applicable grace period and (ii) not placed on non-accrual status as disclosed on a Form 10-K or Form 10-Q as filed by suchBorrower with the SEC, and (b) with respect to any Portfolio Investment that is Preferred Stock, the issuer of such PortfolioInvestment has not failed to meet any scheduled redemption obligations or to pay its latest declared cash dividend, after the expirationof any applicable grace period.

 

“Performing Cash Pay High Yield Securities”means High Yield Securities (a) as to which, at the time of determination, (x) not less than 2/3rds of the interest (includingaccretions and “pay-in-kind” interest) for the current period is payable in cash at least semi-annually or (y)(i) ifsuch High Yield Security is a floating rate obligation, cash interest in an amount greater than or equal to 4.5% above LIBOR ispayable at least semi-annually or (ii) if such High Yield Security is a fixed rate obligation, cash interest in an amount greaterthan or equal to 8% per annum is payable at least semi-annually, and (b) which are Performing.

 

“Performing Cash Pay Mezzanine Investments”means Mezzanine Investments (a) as to which, at the time of determination, (x) not less than 2/3rds of the interest (includingaccretions and “pay-in-kind” interest) for the current period is payable in cash at least semi-annually or (y)(i) ifsuch Mezzanine Investment is a floating rate obligation, cash interest in an amount greater than or equal to 4.5% above LIBOR ispayable at least semi-annually or (ii) if such Mezzanine Investment is a fixed rate obligation, cash interest in an amount greaterthan or equal to 8% per annum is payable at least semi-annually, and (b) which are Performing.

 

“Performing Common Equity”means Capital Stock (other than Preferred Stock) and warrants of an issuer all of whose outstanding debt is Performing.

 

 

 

“Performing DIP Loans” meansa loan made to a debtor-in-possession pursuant to Section 364 of the Bankruptcy Code having the priority allowed by eitherSection 364(c) or 364(d) of the Bankruptcy Code that is Performing.

 

“Performing First Lien Bank Loans”means First Lien Bank Loans (which are not Performing DIP Loans) which are Cash Pay Bank Loans and are Performing.

 

“Performing Non-Cash Pay High Yield Securities”means Performing High Yield Securities other than Performing Cash Pay High Yield Securities.

 

“Performing Non-Cash Pay Mezzanine Investments”means Performing Mezzanine Investments other than Performing Cash Pay Mezzanine Investments.

 

“Performing Preferred Stock”means Preferred Stock that is Performing.

 

“Performing Second Lien Bank Loans”means Second Lien Bank Loans (which are not Performing DIP Loans) which are Cash Pay Bank Loans and are Performing.

 

“Permitted Prior Working Capital Lien”means, with respect to a portfolio company that is a borrower under a Bank Loan, a security interest in the accounts receivableand inventory (and, to the extent applicable, all related property and proceeds thereof) of such portfolio company to secure arevolving facility for such portfolio company and any of its parents and/or subsidiaries; provided that (i) such Bank Loanhas a second priority lien on such accounts receivable and inventory (and, to the extent applicable, all related property and proceedsthereof) that is subject to the first priority lien of such revolving facility (or a *pari passu* lien on such accounts receivableand inventory (and, to the extent applicable, all related property and proceeds thereof), (ii) such revolving facility is not securedby any other assets (other than a *pari passu* lien or a second priority lien, subject to the *pari passu* lien or thefirst priority lien of the Bank Loan) and does not benefit from any standstill rights or other agreements (other than customaryrights) with respect to any other assets and (iii) the maximum principal amount of such revolving facility is not greater than15% of the aggregate enterprise value of such portfolio company (as determined at the time of closing of the transaction, and thereafteran enterprise value for the applicable portfolio company determined in a manner consistent with the valuation methodology appliedin the valuation for such portfolio company as determined by such Borrower’s board of directors in a commercially reasonablemanner, including the use of an Approved Third-Party Appraiser in the case of Unquoted Investments).

 

“Preferred Stock” as appliedto the Capital Stock of any Person, means Capital Stock of such Person of any class or classes (however designated) that ranksprior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolutionor winding up of such Person, to any shares (or other interests) of other Capital Stock of such Person, and shall include, withoutlimitation, cumulative preferred, non-cumulative preferred, participating preferred and convertible preferred Capital Stock.

 

“Second Lien Bank Loan” meansa Bank Loan (other than a First Lien Bank Loan) that is entitled to the benefit of a first and/or second lien and first and/orsecond priority perfected security interest (subject to customary encumbrances) on a substantial portion of the assets of the respectiveborrower and guarantors obligated in respect thereof.

 

 

 

“Securities” means common andpreferred stock, units and participations, member interests in limited liability companies, partnership interests in partnerships,notes, bonds, debentures, trust receipts and other obligations, instruments or evidences of indebtedness, including debt instrumentsof public and private issuers and tax-exempt securities (including warrants, rights, put and call options and other options relatingthereto, representing rights, or any combination thereof) and other property or interests commonly regarded as securities or anyform of interest or participation therein, but not including Bank Loans.

 

“Securities Act” means theUnited States Securities Act of 1933, as amended.

 

“Short-Term U.S. Government Securities”means U.S. Government Securities maturing within one month of the applicable date of determination.

 

“U.S. Government Securities”has the meaning assigned to such term in Section 1.01 of this Agreement.

 

“Value” means with respectto any Portfolio Investment, the most recent value as determined pursuant to Section 5.12.

 

SECTION5.14.         Status of Listed Borrower. If such Borrower is or becomes aListed Borrower hereunder, such Borrower shall at all times from and after the first day it qualifies as a Listed Borrowerhereunder maintain its status as a Listed Borrower.

 

SECTION5.15.         Borrower Mergers. In connection with a Borrower Merger, theSurviving Borrower will deliver to the Administrative Agent (a) on or prior to the consummation of such Borrower Merger, aMerger Confirmation and (b) within five (5) Business Days of its receipt of a reasonable request from the AdministrativeAgent: (i) final copies of the definitive agreements governing such Borrower Merger (but only to the extent not publiclyavailable), (ii) to the extent the applicable Surviving Borrower has a copy, a file-stamped copy of each certificate ofmerger evidencing such Borrower Merger and (iii) an updated Borrowing Base Certificate for the Surviving Borrower.

 

Article VI

 

NEGATIVE COVENANTS

 

With respect to a Borrower, until the earlierto occur of the Release Date with respect to such Borrower and the Facility Termination Date, such Borrower covenants and agrees(solely on behalf of such Borrower and not on behalf of or with respect to any other Borrower) with the Lenders that:

 

 

 

SECTION 6.01.         Indebtedness.Such Borrower will not, nor will it permit any other member of its Obligor Group to, create, incur, assume or permit to existany Indebtedness, except:

 

(a)          Indebtednesscreated hereunder or under any other Loan Document;

 

(b)          PermittedIndebtedness and Special Longer-Term Unsecured Indebtedness in an aggregate amount that, in each case, taken together with otherIndebtedness of such Borrower, (1) does not exceed, at the time it is incurred, the amount required to comply with the provisionsof Section 6.07(b) and (2) will not result in the Covered Debt Amount of such Borrower, at the time it is incurred, exceedingthe Borrowing Base of such Borrower, so long as no Default or Event of Default shall have occurred or be continuing with respectto such Borrower after giving effect to the incurrence of such Permitted Indebtedness or Special Longer-Term Unsecured Indebtedness;provided that in no event shall the aggregate amount of all such Special Longer-Term Unsecured Indebtedness of such Borrowerexceed an amount equal to $750,000,000 on or after the Effective Date at any one time outstanding;

 

(c)          OtherPermitted Indebtedness;

 

(d)          Indebtednessof such Borrower and/or such other member of its Obligor Group to or from any other member of such Borrower’s Obligor Group;

 

(e)          repurchaseobligations arising in the ordinary course of business with respect to U.S. Government Securities;

 

(f)          obligationspayable to clearing agencies, brokers or dealers in connection with the purchase or sale of securities in the ordinary course ofbusiness;

 

(g)          otherIndebtedness (including the amortizing portion of any Other Secured Indebtedness in excess of 1% per annum described in clause(b) of the definition thereof) in an aggregate amount not exceeding the Additional Debt Amount with respect to such Borrower atany one time outstanding and that, taken together with other Indebtedness of such Borrower, (1) does not exceed, at the timeit is incurred, the amount required to comply with the provisions of Section 6.07(b) and (2) will not result in the CoveredDebt Amount of such Borrower, at the time it is incurred, exceeding the Borrowing Base of such Borrower, so long as no Defaultor Event of Default with respect to such Borrower shall have occurred or be continuing after giving effect to the incurrence ofsuch other Indebtedness;

 

(h)          obligations(including Guarantees) in respect of Standard Securitization Undertakings;

 

(i)            obligationsof such Borrower and/or such other Obligor under a Permitted SBIC Guarantee, any SBIC Equity Commitment and analogous commitmentsby such Borrower and/or such other Obligor with respect to any of its SBIC Subsidiaries;

 

 

 

(j)          obligationsarising with respect to Hedging Agreements (other than Credit Default Swaps) and Credit Default Swaps entered into pursuant toSection 6.04(c) or (i); and

 

(k)          (i) with respect to CCT (or any successor), the CCT 2022 Notes, and (ii) with respect to FSIC (or any successor), the FSIC Notes,so long as in each case, the CCT 2022 Notes and the FSIC Notes, as applicable, continue to satisfy all of the criteria specifiedin the definition of “Unsecured Longer-Term Indebtedness” other than clause (a) thereof.

 

SECTION 6.02.         Liens.Such Borrower will not, nor will it permit any other member of its Obligor Group to, create, incur, assume or permit to existany Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accountsreceivable) or rights in respect of any thereof, except:

 

(a)          anyLien on any property or asset of such Borrower or such other Obligors existing on the Effective Date and set forth in Part B ofSchedule II; provided that (i) no such Lien shall extend to any other property or asset of such Borrower or suchother Obligors and (ii) any such Lien shall secure only those obligations which it secures on the Effective Date and extensions,renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

(b)          Lienscreated pursuant to the Security Documents to which such Borrower and/or such other Obligors are a party;

 

(c)          Lienson Special Equity Interests included in the Portfolio Investments of such Borrower but only to the extent securing obligationsin the manner provided in the definition of “Special Equity Interests” in Section 1.01;

 

(d)          Lienssecuring Indebtedness or other obligations in an aggregate principal amount not exceeding the Additional Debt Amount with respectto such Borrower at any one time outstanding (which may cover Portfolio Investments of such Borrower, but only to the extent releasedfrom the Lien in favor of the Collateral Agent in accordance with the requirements of Section 10.03 of the Guarantee and SecurityAgreement to which such Borrower is a party), so long as at the time of the granting of such Lien, (i) the aggregate amount ofIndebtedness of such Borrower does not exceed the amount required to comply with the provisions of Section 6.07(b) and (ii) theCovered Debt Amount of such Borrower does not exceed the Borrowing Base of such Borrower;

 

(e)          PermittedLiens;

 

(f)          Lienson the direct ownership interest of such Borrower or such other Obligor in an Excluded Asset to secure obligations owed to a creditorof such Excluded Asset;

 

(g)          Lienssecuring Indebtedness permitted under Section 6.01(e) and (f); and

 

 

 

(h)          Lienscreated by posting of cash collateral in connection with Hedging Agreements permitted under Section 6.04(c).

 

SECTION 6.03.         FundamentalChanges and Dispositions of Assets. Such Borrower will not, nor will it permit any other member of its Obligor Group to, enterinto any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidationor dissolution). Such Borrower will not reorganize under the laws of a jurisdiction other than any jurisdiction in the UnitedStates. Such Borrower will not, nor will it permit any other member of its Obligor Group to, acquire any business or propertyfrom, or capital stock of, or be a party to any acquisition of, any other Person, except for purchases or acquisitions of PortfolioInvestments and other assets in the normal course of the day-to-day business activities of such Borrower and its Subsidiariesand not in violation of the terms and conditions of this Agreement or any other Loan Document to which such Borrower or any othermember of its Obligor Group is a party. Such Borrower will not, nor will it permit any other member of its Obligor Group to, convey,sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whethernow owned or hereafter acquired, but excluding (w) any transaction permitted under Section 6.05 or 6.12, (x) assets soldor disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-daybusiness activities of such Borrower and its Subsidiaries and the use of Cash and Cash Equivalents in the ordinary course of business)(other than the transfer of Portfolio Investments to Excluded Assets or Immaterial Subsidiaries), (y) subject to the provisionsof clause (d) below, the transfer or sale of Portfolio Investments to Excluded Assets or Immaterial Subsidiaries and (z) subjectto the provisions of clauses (c), (e) and (k) below, the ownership interest of such Borrower or any other member of its ObligorGroup in any Excluded Asset or any Immaterial Subsidiary.

 

Notwithstanding the foregoing provisions of thisSection:

 

(a)          anySubsidiary of such Borrower may be merged or consolidated with or into any Borrower or any other member of its Obligor Group inconnection with a merger or consolidation so long as (i) the surviving entity of such merger or consolidation is an Obligor, (ii)in the case of a merger or consolidation of a Subsidiary and a Borrower, the surviving entity is a Borrower or (iii) such mergeror consolidation is effected as a Borrower Merger;

 

(b)          suchBorrower and such other Obligors may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidationor otherwise) to such Borrower or any other member of its Obligor Group;

 

(c)          thecapital stock of any Subsidiary of such Borrower may be sold, transferred or otherwise disposed of (including by way of consolidationor merger) (i) to such Borrower or any other member of its Obligor Group or (ii) so long as such transaction results in such Borroweror such other Obligor receiving the proceeds of such disposition, to any other Person, provided that in the case of this clause(ii) if such Subsidiary is a Subsidiary Guarantor of such Borrower or holds any Portfolio Investments of such Borrower, (A) suchBorrower would have been permitted to designate such Subsidiary as a “Designated Subsidiary” of such Borrower hereunder,and (B) either (1) the amount of any excess availability under the Borrowing Base of such Borrower immediately prior to suchdisposition is not diminished as a result of such disposition to such other Person or (2) the Borrowing Base of such Borrowerimmediately after giving effect to such disposition is at least 110% of the Covered Debt Amount of such Borrower;

 

 

 

(d)          suchBorrower and such other Obligors may sell, transfer or otherwise dispose of Portfolio Investments to its Excluded Assets or ImmaterialSubsidiaries so long as (i) after giving effect to such sale, transfer or disposition (and any concurrent acquisitions ofPortfolio Investments by such Borrower or payment of outstanding Loans made to such Borrower), the Covered Debt Amount of suchBorrower does not exceed the Borrowing Base of such Borrower and (ii) either (x) the amount of any excess availabilityunder the Borrowing Base of such Borrower immediately prior to such sale, transfer or disposition is not diminished as a resultof such sale, transfer or disposition or (y) the Borrowing Base of such Borrower immediately after giving effect to such sale,transfer or disposition is at least 110% of the Covered Debt Amount of such Borrower;

 

(e)          suchBorrower may merge or consolidate with, or acquire, any other Person so long as (i) if such other Person is not a Borrower,(A) such Borrower is the continuing or surviving entity in such transaction and (B) at the time thereof and after giving effectthereto (and any concurrent acquisitions of Portfolio Investments by such surviving Borrower or payment of outstanding Loans madeto such surviving Borrower), no Default shall have occurred or be continuing with respect to such Borrower and the Covered DebtAmount of such Borrower does not exceed the Borrowing Base of such Borrower, (ii) if such other Person is another Borroweror a member of such other Borrower’s Obligor Group, (A) such other Borrower or a member of such other Borrower’s ObligorGroup is the continuing or surviving entity in such transaction and (B) as of the date of entering into the applicable agreementgoverning such merger, consolidation or acquisition, (x) no Default or Event of Default shall have occurred or be continuing withrespect to the surviving Borrower and (y) immediately after giving pro forma effect thereto, no Borrowing Base Deficiency withrespect to the surviving Borrower shall exist, and (iii) if such Borrower or such other Person is a Listed Borrower, a Listed Borroweror any other member of its Obligor Group is the continuing or surviving entity in such transaction;

 

(f)          suchBorrower may dissolve or liquidate (i) any Immaterial Subsidiary of such Borrower or (ii) any Subsidiary of such Borrower so longas (a) in connection with such dissolution or liquidation, any and all of the assets of such Subsidiary shall be distributed orotherwise transferred to such Borrower or any other member of its Obligor Group and (b) such dissolution or liquidation is notmaterially adverse to the Lenders and the Borrower determines in good faith that such dissolution or liquidation is in the bestinterests of such Borrower;

 

(g)          suchBorrower and such other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that donot consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions doesnot exceed $25,000,000 in any fiscal year;

 

 

 

(h)          suchBorrower and such other Obligors may transfer assets that such Borrower or such other Obligor, as applicable, would otherwise bepermitted to own to an Excluded Asset for the sole purpose of facilitating the transfer of assets from one Excluded Asset of suchBorrower (or a Subsidiary of such Borrower that was an Excluded Asset immediately prior to such disposition) to another ExcludedAsset of such Borrower, directly or indirectly through such Borrower or such other Obligor, as applicable (such assets, the “TransferredAssets”); provided that (i) no Default exists or is continuing at such time with respect to such Borrower or suchother Obligor or would result from any such transfer to or by such Borrower or such other Obligor, as applicable, (ii) the CoveredDebt Amount of such Borrower shall not exceed the Borrowing Base of such Borrower at such time, (iii) the Transferred Assets aretransferred to such Borrower or such other Obligor, as applicable, by the transferor Excluded Asset on the same Business Day thatsuch assets are transferred by such Borrower or such other Obligor, as applicable, to the transferee Excluded Asset, and (iv) followingsuch Transfer such Borrower or such other Obligor, as applicable, has no liability, actual or contingent, with respect to the TransferredAssets other than Standard Securitization Undertakings;

 

(i)          ifsuch Borrower is an Unlisted Borrower, such Unlisted Borrower may deposit and use cash to purchase shares of common stock of suchUnlisted Borrower in connection with a Tender Offer;

 

(j)          suchBorrower and such other Obligors may dispose of all or substantially all of their respective assets to any Surviving Obligor inconnection with a Borrower Merger; and

 

(k)          thecapital stock of any Subsidiary of such Borrower (other than Excluded Assets covered in clause (c) above) may be sold, transferredor otherwise disposed of (including by way of consolidation or merger) so long as such transaction results in such Borrower orsuch other Obligor receiving the proceeds of such disposition, to any other Person (other than such Borrower or any of its Affiliates),provided that in the case of this clause (k) if such Subsidiary is a Subsidiary Guarantor of such Borrower or holds any PortfolioInvestments of such Borrower, (1) the amount of any excess availability under the Borrowing Base of such Borrower immediately priorto such disposition is not diminished as a result of such disposition to such other Person or (2) the Borrowing Base of such Borrowerimmediately after giving effect to such disposition is at least 110% of the Covered Debt Amount of such Borrower.

 

SECTION 6.04.         Investments.Such Borrower will not, nor will it permit any other member of its Obligor Group to, acquire, make or enter into, or hold, anyInvestments except:

 

(a)          operatingdeposit accounts with banks;

 

 

 

(b)          Investmentsby such Borrower and such other Obligors in any other member of such Borrower’s Obligor Group;

 

(c)          HedgingAgreements entered into in the ordinary course of such Borrower’s or such other Obligor’s business for financial planningand not for speculative purposes;

 

(d)          PortfolioInvestments, and Investments in Excluded Assets, to the extent such Portfolio Investments and/or Excluded Assets are permittedunder the Investment Company Act and such Borrower’s Investment Policies; provided that, if such Portfolio Investment isnot included in the Collateral Pool of such Borrower and with respect to Investments in Excluded Assets, then (i) after givingeffect to such Investment (and any concurrent acquisitions of Investments in the Collateral Pool of such Borrower or payment ofoutstanding Loans of such Borrower), the Covered Debt Amount of such Borrower does not exceed the Borrowing Base of such Borrowerand (ii) if cash or other assets are being contributed or invested (x) in such Portfolio Investment or used to acquire any interestin such Portfolio Investment that is not included in the Collateral Pool of such Borrower or (y) in such Excluded Asset, either(1) the amount of any excess availability under the Borrowing Base of such Borrower immediately prior to such Investment is notdiminished as a result of such Investment or (2) the Borrowing Base of such Borrower immediately after giving effect to such Investmentis at least 110% of the Covered Debt Amount of such Borrower;

 

(e)          Investmentsin (or capital contribution to) Excluded Assets to the extent permitted by Section 6.03(d) or (h);

 

(f)          Investmentsdescribed on Schedule III hereto;

 

(g)          Investmentsin Controlled Foreign Corporations; provided that, if cash or other assets are being contributed or invested in such ControlledForeign Corporation, at the time of such Investment, either (x) the amount of any excess availability under the BorrowingBase of such Borrower immediately prior to such Investment is not diminished as a result of such Investment or (y) the BorrowingBase of such Borrower immediately after giving effect to such Investment is at least 110% of the Covered Debt Amount of suchBorrower;

 

(h)          Investmentsin Immaterial Subsidiaries; provided that, if cash or other assets are being contributed or invested in such ImmaterialSubsidiary, at the time of such Investment, either (x) the amount of any excess availability under the Borrowing Base of such Borrowerimmediately prior to such Investment is not diminished as a result of such Investment or (y) the Borrowing Base of such Borrowerimmediately after giving effect to such Investment is at least 110% of the Covered Debt Amount of such Borrower;

 

(i)          Investmentsconstituting Credit Default Swaps in an aggregate amount not to exceed $25,000,000;

 

(j)          Investmentsconstituting Borrower Mergers; and

 

 

 

(k)          additionalInvestments up to but not exceeding $50,000,000 in the aggregate at any time outstanding.

 

For purposes of this Section, the aggregate amount of an Investmentat any time shall be deemed to be equal to (A) the aggregate amount of cash, together with the aggregate fair market valueof property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to such Investment (calculated atthe time such Investment is made) minus (B) the aggregate amount of dividends, distributions or other payments receivedin cash in respect of such Investment; provided that in no event shall the aggregate amount of such Investment be deemedto be less than zero; and provided further that the amount of an Investment shall not in any event be reduced by reasonof any write-off of such Investment nor increased by any increase in the amount of earnings retained in the Person in which suchInvestment or as a result of any other matter (other than any cash or assets contributed by or invested in such Investment).

 

SECTION6.05.         Restricted Payments. Such Borrower will not, nor will itpermit any other member of its Obligor Group to, declare or make, or agree to pay or make, directly or indirectly, anyRestricted Payment, except that such Borrower or such other Obligor may declare and pay:

 

(a)          dividendswith respect to the capital stock of such Borrower to the extent payable in additional shares of such Borrower’s common stock;

 

(b)          dividendsand distributions in either case in cash or other property (excluding for this purpose such Borrower’s common stock) in orwith respect to any taxable year of such Borrower (or any calendar year of such Borrower, as relevant) in amounts not to exceed110% of the minimum amounts required to be distributed to allow such Borrower to (i) satisfy the minimum distribution requirementsimposed by Section 852(a) of the Code (or any successor thereto) to maintain such Borrower’s eligibility to be taxed as aRIC for any such taxable year, (ii) reduce to zero for any such taxable year such Borrower’s liability for federal incometaxes imposed on (x) such Borrower’s investment company taxable income pursuant to Section 852(b)(1) of the Code (or anysuccessor thereto), and (y) such Borrower’s net capital gain pursuant to Section 852(b)(3) of the Code (or any successorthereto), and (iii) reduce to zero such Borrower’s liability for federal excise taxes for any such calendar year imposedpursuant to Section 4982 of the Code (or any successor thereto);

 

(c)          anysettlement in respect of a conversion feature in any convertible security that may be issued by such Borrower to the extent madethrough the delivery of common stock (except in the case of interest (which may be payable in cash));

 

(d)          RestrictedPayments to repurchase Equity Interests of such Borrower from managers, partners, members, directors, officers, employees or consultantsof FS/KKR Advisor, such Borrower or such other Obligor or their respective authorized representatives upon the death, disabilityor termination of employment of such employees or termination of their seat on the board of directors of FS/KKR Advisor, such Borroweror such other Obligor, in an aggregate amount not to exceed $2,500,000 in any calendar year with unused amounts in any calendaryear being carried over to succeeding calendar years subject to a maximum of $5,000,000 in any calendar year;

 

 

 

(e)          otherRestricted Payments so long as (i) on the date of such other Restricted Payment and after giving effect thereto (x) theCovered Debt Amount of such Borrower does not exceed 90% of the Borrowing Base of such Borrower and (y) no Default shallhave occurred and be continuing with respect to such Borrower and (ii) on the date of such other Restricted Payment such Borrowerdelivers to the Administrative Agent and each Lender a Borrowing Base Certificate with respect to such Borrower as at such datedemonstrating compliance with subclause (x) after giving effect to such Restricted Payment. For purposes of preparing suchBorrowing Base Certificate, (A) the Value of any Quoted Investment shall be the most recent quotation available for such PortfolioInvestment and (B) the Value of any Unquoted Investment shall be the Value set forth in the Borrowing Base Certificate withrespect to such Borrower most recently delivered by such Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01(d);provided that such Borrower shall reduce the Value of any Portfolio Investment referred to in this subclause (B) tothe extent necessary to take into account any events of which such Borrower has knowledge that adversely affect the value of suchPortfolio Investment;

 

(f)          ifsuch Borrower is an Unlisted Borrower, Restricted Payments in connection with a Tender Offer, so long as no Event of Default hasoccurred and is continuing and such Unlisted Borrower is in compliance on a pro forma basis with (i) Section 6.07(a) as of thelast day of such Borrower’s most recent fiscal quarter for which financial statements have been delivered to the AdministrativeAgent and (ii) Section 6.07(b) after giving effect to such Restricted Payments; and

 

(g)          RestrictedPayments (i) on account of fractional shares, (ii) as part of the purchase price or (iii) in the form of a Tax Dividend (as definedin the Agreement and Plan of Merger, dated as of July 22, 2018, by and among FSIC, IC Acquisition, Inc., CCT and FS/KKR Advisor)or distribution that serves a similar purpose in any other agreement governing a Borrower Merger, in each case in connection witha Borrower Merger or other payments incidental thereto.

 

In addition to the foregoing, such Borrower shallensure that payments or distributions of the type described in this Section 6.05 made by an Excluded Asset of such Borrower aremade ratably in accordance with the Equity Interests in such Excluded Asset.

 

In calculating the amount of Restricted Paymentsmade by such Borrower during any period referred to in paragraph (b) above, any Restricted Payments made by such Borrower’sDesignated Subsidiaries or any of its other Excluded Assets that is a Subsidiary during such period (other than any such RestrictedPayments that are made directly or indirectly to such Borrower and/or such other Obligor or ratably to such Borrower and/or suchother Obligor and any other direct shareholder in any such Designated Subsidiary or Excluded Asset) shall be treated as RestrictedPayments made by such Borrower during such period.

 

 

 

Nothing herein shall be deemed to prohibit thepayment of Restricted Payments by any member of a Borrower’s Obligor Group to any other member of such Obligor Group.

 

For the avoidance of doubt, (1) such Borrowershall not declare any dividend to the extent such declaration violates the provisions of the Investment Company Act applicableto it and (2) the determination of the amounts referred to in paragraph (b) above shall be made separately for the taxableyear of such Borrower and the calendar year of such Borrower and the limitation on dividends or distributions imposed by such paragraphsshall apply separately to the amounts so determined.

 

SECTION 6.06.         CertainRestrictions on Subsidiaries. Such Borrower will not permit any of its Subsidiaries (other than any Excluded Asset with respectto its assets) to enter into or suffer to exist any indenture, agreement, instrument or other arrangement (other than (i) theLoan Documents to which such Borrower and/or its Subsidiaries are a party, (ii) any indenture, agreement, instrument or otherarrangement pertaining to other Indebtedness of such Borrower or any of its Subsidiaries permitted hereby to the extent any suchindenture, agreement, instrument or other arrangement does not prohibit, in each case in any material respect, or impose materiallyadverse conditions upon, the requirements applicable to such Borrower and its Subsidiaries under the Loan Documents or (iii) anyagreement, instrument or other arrangement pertaining to any lease, sale or other disposition of any asset permitted by this Agreementso long as the applicable restrictions (x) only apply to such assets and (y) do not restrict prior to the consummation of suchsale or disposition the creation or existence of the Liens in favor of the Collateral Agent pursuant to the Security Documentsor otherwise required by this Agreement, or the incurrence of payment of Indebtedness under this Agreement or the ability of suchBorrower and its Subsidiaries to perform any other obligation under any of the Loan Documents) that prohibits, in each case inany material respect, or imposes materially adverse conditions upon, the incurrence or payment of Indebtedness of such Borrower,the granting of Liens by such Borrower, the declaration or payment of dividends by such Borrower, the making of loans, advances,guarantees or Investments or the sale, assignment, transfer or other disposition of property, in each case of such Borrower.

 

SECTION 6.07.         CertainFinancial Covenants.

 

(a)          MinimumShareholders’ Equity. Such Borrower will not permit its Shareholders’ Equity at the last day of any fiscal quarterof such Borrower to be less than the greater of (1) 40% of the total assets of such Borrower and its Subsidiaries as at the lastday of such fiscal quarter (determined on a consolidated basis in accordance with GAAP) and (2) the sum of (A) 65% of (x) the Shareholders’Equity of such Borrower as of the Effective Date less (y) in case the case of any Unlisted Borrower, the lesser of (i) theamount paid or distributed by such Unlisted Borrower to purchase its shares of common stock in connection with a Tender Offer consummatedafter the Effective Date and (ii) the product of (I) $250,000,000 multiplied by (II) the sum of one plus the number of BorrowerMergers effected by such Obligor Group on or after the Effective Date plus (B) 65% of (x) the Shareholders’ Equity as ofthe Effective Date of any other Borrower merged or consolidated into such Borrower by way of a Borrower Merger less (y) in thecase of any Unlisted Borrower that is a Non-Surviving Borrower of such Borrower Merger, the lesser of (i) the amount paid or distributedby such Unlisted Borrower to purchase its shares of common stock in connection with a Tender Offer consummated after the EffectiveDate and (ii) the product of (I) $250,000,000 multiplied by (II) the sum of one plus the number of Borrower Mergers effected bysuch Obligor Group on or after the Effective Date, plus (C) 37.5% of the net cash proceeds of the sale of Equity Interestsby such Borrower after the Effective Date (other than proceeds of any distribution or dividend reinvestment plan), plus(D) 37.5% of the net cash proceeds of the sale of Equity Interests received after the Effective Date by any Non-Surviving Obligorthat was a Borrower and was a party to a Borrower Merger with such Borrower (other than proceeds of any distribution or dividendreinvestment plan).

 

 

 

(b)          AssetCoverage Ratio. Such Borrower will not permit its Asset Coverage Ratio to be less than 2.00 to 1.00 at any time.

 

SECTION 6.08.         Transactionswith Affiliates. Such Borrower will not, and will not permit any other member of its Obligor Group to enter into any transactionswith any of its Affiliates, even if otherwise permitted under this Agreement, except (a) transactions in the ordinary courseof business at prices and on terms and conditions not less favorable to such Borrower or such other Obligor, as applicable, thancould be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among such Borrowerand any other member of its Obligor Group not involving any other Affiliate of such Obligor Group, (c) transactions and documentsgoverning transactions permitted under Section 6.03 (including, for the avoidance of doubt, any Borrower Merger or any othermerger or consolidation of one or more Borrowers and/or other Obligors), 6.04(e) and 6.05, (d) the Affiliate Agreements andthe transactions provided in the Affiliate Agreements (in each case, as such agreements are amended, modified or supplementedfrom time to time in a manner not materially adverse to the Lenders), (e) transactions described or referenced on Schedule IV,(f) any Investment that results in the creation of an Affiliate, (g) transactions with one or more Affiliates (includingco-investments) as permitted by any SEC exemptive order (as may be amended from time to time), any no-action letter or as otherwisepermitted by applicable law, rule or regulation and SEC staff interpretations thereof, (h) the payment of compensation and reimbursementof expenses and indemnification to officers and directors in the ordinary course of business, (i) this Agreement and the otherLoan Documents, and the transactions contemplated herein and therein or (j) agreements among the Borrowers, the other Obligorsand/or their respective Affiliates entered into in connection with the administration of this Agreement and/or the other LoanDocuments, and the transactions contemplated therein.

 

SECTION 6.09.         Linesof Business. Such Borrower will not, nor will it permit any other member of its Obligor Group to, engage in any business ina manner that would violate its Investment Policies in any material respect.

 

 

 

SECTION 6.10.         NoFurther Negative Pledge. Such Borrower will not, and will not permit any other member of its Obligor Group to, enter intoany agreement, instrument, deed or lease which prohibits or limits in any material respect the ability of such Borrower or anyother member of its Obligor Group to create, incur, assume or suffer to exist any Lien upon any of its properties, assets or revenues,whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is grantedfor another obligation, except the following: (a) this Agreement and the other Loan Documents to which such Obligor is a party;(b) covenants in documents creating Liens permitted by Section 6.02 (including covenants with respect to Designated IndebtednessObligations or Designated Indebtedness Holders under (and in each case, as defined in) the Guarantee and Security Agreement towhich such Obligor is a party) prohibiting further Liens on the assets encumbered thereby; (c) customary restrictions containedin leases not subject to a waiver; (d) any agreement that imposes such restrictions only on Equity Interests in Excluded Assetsof such Borrower; and (e) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuantto the Loan Documents to which such Obligor is a party on any Collateral securing the “Secured Obligations” underand as defined in the Guarantee and Security Agreement to which such Obligor is a party and does not require (other than pursuantto a grant of a Lien under the Loan Documents to which such Obligor is a party) the direct or indirect granting of any Lien securingany Indebtedness or other obligation by virtue of the granting of Liens on or pledge of property of such Borrower or such otherObligor to secure the Loans made to such Borrower, or any Hedging Agreement of such Borrower or such other Obligor.

 

SECTION 6.11.         Modificationsof Certain Documents. Such Borrower will not consent to any modification, supplement or waiver of (a) any of the provisionsof any agreement, instrument or other document evidencing or relating to any Permitted Indebtedness, any Special Longer-Term UnsecuredIndebtedness, CCT 2022 Notes or the FSIC Notes that would result in such Permitted Indebtedness not meeting the requirements ofthe definition of “Permitted Indebtedness”, such Special Longer-Term Unsecured Indebtedness not meeting the requirementsof the definition of “Special Longer-Term Unsecured Indebtedness”, or the CCT 2022 Notes or the FSIC Notes, as applicable,not meeting the requirements of the definition of “Unsecured Longer-Term Indebtedness” (other than clause (a) thereof),set forth in Section 1.01 of this Agreement, unless following such amendment, modification or waiver, such Permitted Indebtedness,such Special Longer-Term Unsecured Indebtedness, the CCT 2022 Notes or the FSIC Notes would otherwise be permitted under Section6.01, or (b) any of the Affiliate Agreements to which such Borrower is a party (i) other than in connection with a Borrower Mergeror (ii) unless such modification, supplement or waiver is not materially less favorable to such Borrower than could be obtainedon an arm’s-length basis from unrelated third parties, in each case, without the prior consent of the Administrative Agent(with the approval of the Required Lenders).

 

Without limiting the foregoing, such Borrowermay, at any time and from time to time, without the consent of the Administrative Agent or the Required Lenders, freely amend,restate, terminate, or otherwise modify any documents, instruments and agreements evidencing, securing or relating to Indebtednessof such Borrower permitted pursuant to Section 6.01(d), including increases in the principal amount thereof, modifications to theadvance rates and/or modifications to the interest rate, fees or other pricing terms so long as following any such action suchIndebtedness continues to be permitted under Section 6.01(d).

 

 

 

SECTION 6.12.         Paymentsof Other Indebtedness. Such Borrower will not, nor will it permit any other member of its Obligor Group to, purchase, redeem,retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for the purchase,redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on,or any other amount owing in respect of, any Permitted Indebtedness or any Indebtedness of such Borrower that is not then includedin the Covered Debt Amount of such Borrower (other than the refinancing of such Indebtedness with Indebtedness permitted underSection 6.01 or with the proceeds of any issuance of Equity Interests), except for:

 

(a)          regularlyscheduled payments, prepayments or redemptions of principal and interest in respect thereof required pursuant to the instrumentsevidencing such Indebtedness and the payment when due of the types of fees and expenses that are customarily paid in connectionwith such Indebtedness (it being understood that: (w) the conversion features into Permitted Equity Interests under convertiblenotes; (x) the triggering of such conversion and/or settlement thereof solely with Permitted Equity Interests; and (y) any cashpayment on account of interest or expenses or fractional shares on such convertible notes made by such Borrower in respect of suchtriggering and/or settlement thereof, shall be permitted under this clause (a));

 

(b)          paymentsand prepayments thereof required to comply with requirements of Section 2.09(c); and

 

(c)          otherpayments and prepayments (including, without limitation, with respect to CCT (or any successor), prepayments of the CCT 2022 Notes,and with respect to FSIC (or any successor), prepayments of the FSIC Notes) so long as at the time of and immediately after givingeffect to such payment, (i)  no Default or Event of Default shall have occurred and be continuing with respect to such Borrowerand (ii) if such payment were treated as a “Restricted Payment” for the purposes of determining compliance withSection 6.05(e), such payment would be permitted to be made under Section 6.05(e);

 

provided that, in the case of clauses (a) through (c) above,in no event shall such Borrower or any other member of its Obligor Group be permitted to prepay or settle (whether as a resultof a mandatory redemption, conversion or otherwise) any such Indebtedness, if after giving effect thereto, the Covered Debt Amountof such Borrower would exceed the Borrowing Base of such Borrower; provided further that, no Borrower shall be permittedto give any notice of prepayment or redemption to any holders of Indebtedness not included in the Covered Debt Amount of such Borrower,if, at the time of the giving of such notice, the inclusion of such Indebtedness in the Covered Debt Amount of such Borrower wouldresult in a Borrowing Base Deficiency with respect to such Borrower.

 

 

 

Article VII

 

EVENTS OF DEFAULT

 

With respect to a Borrower, until the earlierto occur of the Release Date with respect to such Borrower and the Facility Termination Date, if any of the following events (“Eventsof Default”) shall occur and be continuing with respect to such Borrower (but only with respect to such Borrower andnot with respect to any other Borrower):

 

(a)          suchBorrower shall (i) fail to pay any principal of any Loan made to such Borrower or any reimbursement obligation in respectof any LC Disbursement with respect to such Borrower when and as the same shall become due and payable, whether at the due datethereof or at a date fixed for prepayment thereof or otherwise or (ii) fail to deposit any amount into the Letter of CreditCollateral Account of such Borrower as required by Section 2.08(a) on the Commitment Termination Date;

 

(b)          suchBorrower shall fail to pay any interest on any Loan made to such Borrower or any fee or any other amount (other than an amountreferred to in clause (a) of this Article) payable by such Borrower under this Agreement or under any other Loan Documentto which such Borrower or any other member of its Obligor Group is a party, when and as the same shall become due and payable,and such failure shall continue unremedied for a period of five or more Business Days;

 

(c)          anyrepresentation or warranty made (or deemed made pursuant to Section 4.02) by or on behalf of such Borrower or any of its Subsidiariesin or in connection with this Agreement or any other Loan Document to which such Borrower or any other member of its Obligor Groupis a party or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other documentfurnished by or on behalf of such Borrower or any of its Subsidiaries pursuant to or in connection with this Agreement or any otherLoan Document to which such Borrower or any other member of its Obligor Group is a party or any amendment or modification hereofor thereof, shall prove to have been incorrect when made or deemed made in any material respect;

 

(d)          suchBorrower shall fail to observe or perform any covenant, condition or agreement contained in (i) Section 5.03 (with respectto such Borrower’s existence), Sections 5.08(a) and (b), Section 5.09 (solely with respect to a violation of applicableSanctions), or in Article VI or such Borrower or any other member of its Obligor Group shall default in the performanceof any of its obligations contained in Section 7 of the Guarantee and Security Agreement to which such Borrower is a party,or (ii) Sections 5.01(d) and (e), or Section 5.02 and such failure, in the case of this clause (ii), shallcontinue unremedied for a period of five or more Business Days after notice thereof by the Administrative Agent (given at the requestof any Lender) to such Borrower;

 

 

 

(e)          aBorrowing Base Deficiency with respect to such Borrower shall occur and continue unremedied for a period of five or more BusinessDays after delivery of a Borrowing Base Certificate demonstrating such Borrowing Base Deficiency pursuant to Section 5.01(e);provided that it shall not be an Event of Default hereunder if such Borrower shall present the Administrative Agent witha reasonably feasible plan to enable such Borrowing Base Deficiency to be cured within 30 Business Days (which 30-BusinessDay period shall include the five Business Days permitted for delivery of such plan), so long as such Borrowing Base Deficiencyis cured within such 30-Business Day period;

 

(f)          suchBorrower or any other member of its Obligor Group, as applicable, shall fail to observe or perform any covenant, condition or agreementwith respect to such Borrower or such other Obligor contained in this Agreement (other than those specified in clause (a),(b), (d), or (e) of this Article) or any other Loan Document to which such Borrower or such other Obligor is a party and such failureshall continue unremedied for a period of 30 or more days after notice thereof from the Administrative Agent (given at therequest of any Lender) to such Borrower;

 

(g)          suchBorrower or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount)in respect of any Material Indebtedness of such Borrower, when and as the same shall become due and payable, taking into account(other than with respect to payments of principal) any applicable grace period;

 

(h)          anyevent or condition occurs that results in any Material Indebtedness of such Borrower or any of its Subsidiaries (i) becoming dueprior to its scheduled maturity or (ii) that shall continue unremedied for any applicable period of time sufficient to enable orpermit the holder or holders of any Material Indebtedness of such Borrower or such Subsidiary or any trustee or agent on its ortheir behalf to, as a result of an event of default under such Material Indebtedness, cause any Material Indebtedness of such Borroweror such Subsidiary to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduledmaturity (for the avoidance of doubt, after giving effect to any applicable grace period), unless, in the case of this clause (ii),so long as all Subcommitments have not been terminated with respect to such Borrower and the Loans made to such Borrower declareddue and payable in whole, such event or condition is no longer continuing or has been waived in accordance with the terms of suchMaterial Indebtedness such that the holder or holders thereof or any trustee or agent on its or their behalf are no longer enabledor permitted to cause such Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasancethereof, prior to its scheduled maturity; provided that this clause (h) shall not apply (1) to secured Indebtedness that becomesdue as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness, (2) to convertible debtthat becomes due as a result of a conversion or redemption event, other than as a result of an “event of default” (asdefined in the documents governing such convertible Material Indebtedness) or (3) in the case of clause (h)(ii), to any Indebtednessof a Designated Subsidiary to the extent the event or condition giving rise to the circumstances in clause (h)(ii) was not a paymentor insolvency default;

 

 

 

(i)          aninvoluntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganizationor other relief in respect of such Borrower or any of its Significant Subsidiaries (or group of Subsidiaries of such Borrower thatif consolidated would constitute a Significant Subsidiary of such Borrower) or its debts, or of a substantial part of its assets,under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) theappointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Borrower or any of its SignificantSubsidiaries (or group of Subsidiaries of such Borrower that if consolidated would constitute a Significant Subsidiary of suchBorrower) or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissedand unstayed for a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be entered;

 

(j)          suchBorrower or any of its Significant Subsidiaries (or group of Subsidiaries of such Borrower that if consolidated would constitutea Significant Subsidiary of such Borrower) shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafterin effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petitiondescribed in clause (i) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian,sequestrator, conservator or similar official for such Borrower or any of its Significant Subsidiaries (or group of Subsidiariesof such Borrower that if consolidated would constitute a Significant Subsidiary of such Borrower) or for a substantial part ofits assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding,(v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any ofthe foregoing;

 

(k)          suchBorrower or any of its Significant Subsidiaries (or group of Subsidiaries of such Borrower that if consolidated would constitutea Significant Subsidiary of such Borrower) shall become unable, admit in writing its inability or fail generally to pay its debtsas they become due;

 

(l)          oneor more judgments for the payment of money in an aggregate amount in excess of an amount equal to the product of (i) $25,000,000multiplied by (ii) the sum of one plus the number of Borrower Mergers effected by the applicable Obligor Group on or after theEffective Date shall be rendered against such Borrower or any of its Subsidiaries or any combination thereof and (i) the sameshall remain undischarged for a period of 30 consecutive days following the entry of such judgment during which 30 dayperiod such judgment shall not have been vacated, stayed, discharged or bonded pending appeal, or liability for such judgment amountshall not have been admitted by an insurer of reputable standing, or (ii) any action shall be legally taken by a judgmentcreditor to attach or levy upon any assets of such Borrower or any of its Subsidiaries to enforce any such judgment;

 

(m)          anERISA Event with respect to such Borrower shall have occurred that, when taken together with all other ERISA Events with respectto such Borrower that have occurred, could reasonably be expected to result in a Material Adverse Effect with respect to such Borrower;

 

 

 

(n)          aChange in Control with respect to such Borrower shall occur;

 

(o)          neitherFS/KKR Advisor (so long as it is a joint venture entity between (i) KKR Credit Advisors (US) LLC and/or one or more of its Affiliatesand (ii) Franklin Square Holdings, L.P. and/or one or more of its Affiliates, and pursuant to which joint venture (x) KKR CreditAdvisors (US) LLC and/or one or more of its Affiliates owns at least 50% of the voting equity interests of all classes and (y)of the members of the investment committee with the sole authority to make investment-related decisions for the joint venture,at least 50% are employees, partners, managers and/or members of KKR Credit Advisors (US) LLC and/or one or more of its Affiliates(and, for the avoidance of doubt, no such investment-related decision will be made without the consent of such employees, partners,managers and/or members, except if one or more of such employees, partners, managers and/or members recuses himself or herselfin connection with an actual or perceived conflict of interest or any other determination by such person, is incapacitated or isotherwise unable to provide consent)) nor any Subsidiary of FS/KKR Advisor that is organized under the laws of a jurisdiction locatedin the United States of America and in the business of managing or advising clients shall be the investment advisor for such Borrower;

 

(p)          theLiens created by the Security Documents to which such Borrower or any other member of its Obligor Group is a party shall, at anytime with respect to Portfolio Investments included in the Collateral Pool of such Borrower having an aggregate Value in excessof 5% of the aggregate Value of all Portfolio Investments included in the Collateral Pool of such Borrower, not be valid andperfected (to the extent perfection by filing, registration, recordation, possession or control is required herein or therein)in favor of the Collateral Agent, free and clear of all other Liens (other than Liens permitted under Section 6.02 or underthe respective Security Documents to which such Borrower or any other member of its Obligor Group is a party); providedthat if such default is as a result of any action of the Administrative Agent or the Collateral Agent or a failure of the AdministrativeAgent or the Collateral Agent to take any action within its control, then there shall be no Default or Event of Default hereunderunless such default shall continue unremedied for a period of ten (10) consecutive Business Days after such Borrower receives writtennotice of such default thereof from the Administrative Agent unless the continuance thereof is a result of a failure of the AdministrativeAgent or the Collateral Agent to take an action within their control;

 

(q)          exceptfor expiration or termination in accordance with its terms, any of the Security Documents to which such Borrower or any other memberof its Obligor Group is a party shall for whatever reason be terminated or cease to be in full force and effect in any materialrespect, or the enforceability thereof shall be contested by such Borrower or any other member of its Obligor Group;

 

 

 

(r)          suchBorrower or any other member of its Obligor Group shall at any time, without the consent of the Required Lenders, (i) modify,supplement or waive in any material respect its Investment Policies (other than any modification, supplement or waiver requiredby any applicable law, rule or regulation or Governmental Authority); provided that a modification, supplement or waivershall not be deemed a modification in any material respect of its Investment Policies if the effect of such modification, supplementor waiver is that the permitted investment size of the Portfolio Investments proportionately increases as the size of such Borrower’scapital base changes; (ii) modify, supplement or waive in any material respect its Valuation Policy (other than any modification,supplement or waiver (w) required under GAAP, (x) required by any applicable law, rule or regulation or Governmental Authority,or (y) when taken as a whole is not adverse to the Lenders when compared to its Valuation Policy in effect as of the EffectiveDate), (iii) fail to comply with its Valuation Policy in any material respect, or (iv) fail to comply with its InvestmentPolicies if such failure could reasonably be expected to result in a Material Adverse Effect with respect to such Borrower, andin the case of clauses (iii) and (iv) of this paragraph (r), such failure shall continue unremedied for a periodof 30 or more days after the earlier of notice thereof by the Administrative Agent (given at the request of any Lender) tosuch Borrower or knowledge thereof by a Financial Officer of such Borrower;

 

then, and in every such event (other than an event described inclause (i) or (j) of this Article), and at any time thereafter during the continuance of such event, the AdministrativeAgent may, and at the request of the Required Lenders shall, by notice to such Borrower, take either or both of the following actions,at the same or different times: (i) terminate all Subcommitments to such Borrower, and thereupon such Subcommitments shallbe permanently terminated, and (ii) declare the Loans made to such Borrower then outstanding to be due and payable in whole(or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable),and thereupon the principal of such Loans so declared to be due and payable, together with accrued interest thereon and all feesand other obligations of such Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand,protest or other notice of any kind, all of which are hereby waived by such Borrower; and in case of any event with respect tosuch Borrower described in clause (i) or (j) of this Article, all Subcommitments to such Borrower shall automaticallyterminate and the principal of the Loans made to such Borrower then outstanding, together with accrued interest thereon and allfees and other obligations of such Borrower accrued hereunder, shall automatically become due and payable, without presentment,demand, protest or other notice of any kind, all of which are hereby waived by such Borrower.

 

In the event that the Loans made to a Borrowershall be declared, or shall become, due and payable pursuant to the immediately preceding paragraph then, upon notice from theAdministrative Agent or Lenders with LC Exposure representing more than 50% of the total LC Exposure with respect to suchBorrower demanding the deposit of cash collateral pursuant to this paragraph, such Borrower shall immediately deposit into theLetter of Credit Collateral Account of such Borrower cash in an amount equal to 102% of the LC Exposure with respect to suchBorrower as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit suchcash shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other noticeof any kind, upon the occurrence of any Event of Default with respect to such Borrower described in clause (i) or (j) ofthis Article.

 

 

 

Article VIII

 

THE ADMINISTRATIVEAGENT

 

Each of the Lenders and the Issuing Banks herebyirrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the AdministrativeAgent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the termshereof or thereof, together with such actions and powers as are reasonably incidental thereto.

 

Each of the Lenders and the Issuing Banks herebyirrevocably appoints the Collateral Agent as the collateral agent hereunder and under the other Loan Documents and authorizes theCollateral Agent to have all the rights and benefits hereunder and thereunder (including Section 9 of the Guarantee and SecurityAgreement), and to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by theterms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.

 

The Person serving as the Administrative Agenthereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as thoughit were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to, make investmentsin and generally engage in any kind of business trust or other business with any Borrower or any Subsidiary or other Affiliatethereof as if it were not the Administrative Agent hereunder and such Person and its Affiliates may accept fees and other considerationfrom any Borrower or any Subsidiary or other Affiliate thereof for services in connection with this Agreement or otherwise withouthaving to account for the same to the other Lenders.

 

The Administrative Agent shall not have any dutiesor obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of theforegoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whethera Default has occurred and is continuing with respect to any Borrower, (b) the Administrative Agent shall not have any dutyto take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplatedhereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders,and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have anyduty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower or any of its Subsidiariesthat is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. TheAdministrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the RequiredLenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents)or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledgeof any Default with respect to a Borrower unless and until written notice thereof is given to the Administrative Agent by suchBorrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) anystatement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contentsof any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) theperformance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) thevalidity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrumentor document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or therein, other thanto confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

 

 

The Administrative Agent shall be entitled torely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument,document or other writing (including any e-mail, Internet or intranet website posting or other distribution) believed by it tobe genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement madeto it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relyingthereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrowers), independent accountantsand other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the adviceof any such counsel, accountants or experts.

 

The Administrative Agent may perform any and allits duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. TheAdministrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through theirrespective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to theRelated Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connectionwith the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

The Administrative Agent may resign at any timeby notifying the Lenders, the Issuing Banks and the Borrowers. Upon any such resignation, the Required Lenders shall have the right,with the consent of the Borrowers not to be unreasonably withheld (or, if an Event of Default has occurred and is continuing withrespect to a Borrower, in consultation with such Borrower), to appoint a successor, which is a Lender. If no successor shall havebeen so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiringAdministrative Agent gives notice of its resignation, then the retiring Administrative Agent’s resignation shall nonethelessbecome effective except that in the case of any collateral security held by the Administrative Agent on behalf of the Lenders orthe Issuing Banks under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateralsecurity until such time as a successor Administrative Agent is appointed and (1) the retiring Administrative Agent shallbe discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the AdministrativeAgent (and all payments and communications provided to be made by, to or through the Administrative Agent shall instead be madeby or to each Lender directly) until such time as the Required Lenders appoint a successor agent as provided for above in thisparagraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeedto and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent and theretiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefromas provided above in this paragraph). The fees payable by each Borrower to a successor Administrative Agent shall be the same asthose payable to its predecessor unless otherwise agreed between such Borrower and such successor. After the Administrative Agent’sresignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for its benefit in respectof any actions taken or omitted to be taken by it while it was acting as Administrative Agent.

 

 

 

Each Lender acknowledges that it has, independentlyand without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemedappropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will,independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and informationas it shall from time to time deem appropriate, continue to make its own analysis and decisions in taking or not taking actionunder or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

Except as otherwise provided in Section 9.02(b)with respect to this Agreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise),consent to any modification, supplement or waiver under any of the Loan Documents; provided that, without the prior consentof each Lender, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantiallyall of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateralsecurity, agree to additional obligations being secured by all or substantially all of such collateral security, or alter the relativepriorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all orsubstantially all of the Collateral of any Borrower, except that no such consent shall be required, and the Administrative Agentis hereby authorized, to (1) release (which such release shall be automatic and require no further action from any party)any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to whichthe Required Lenders have consented, (2) release from any Guarantee and Security Agreement any “Subsidiary Guarantor”(and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” by the applicable Borroweror becomes an Excluded Asset or an Immaterial Subsidiary with respect to a Borrower in accordance with this Agreement or whichis no longer required to be a “Subsidiary Guarantor”, so long as in the case of this clause (2): (A) immediatelyafter giving effect to any such release (and any concurrent acquisitions of Portfolio Investments by the applicable Borrower orpayment of outstanding Indebtedness of such Borrower), the Covered Debt Amount of such Borrower does not exceed the Borrowing Baseof such Borrower and such Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent, (B) either(I) the amount of any excess availability under the Borrowing Base of such Borrower immediately prior to such release is notdiminished as a result of such release or (II) the Borrowing Base of such Borrower immediately after giving effect to suchrelease is at least 110% of the Covered Debt Amount of such Borrower and (C) no Default or Event of Default has occurred andis continuing with respect to such Borrower, (3) spread Liens to any Designated Indebtedness of a Borrower or Hedging AgreementObligations (as such terms are defined in the Guarantee and Security Agreement to which such Borrower is a party) in accordancewith the Guarantee and Security Agreement to which such Borrower is a party and (4) release from any Guarantee and Security Agreementany Obligor (and any property of such Obligor) that is concurrently being joined as an Obligor under any other Guarantee and SecurityAgreement in connection with a transaction permitted hereunder.

 

 

 

None of the Syndication Agent, any DocumentationAgent or any Joint Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any otherLoan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefitof the indemnities provided for hereunder.

 

Article IX

 

MISCELLANEOUS

 

SECTION 9.01.         Notices;Electronic Communications

 

(a)          NoticesGenerally. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnightcourier service, mailed by certified or registered mail or sent by telecopy or (to the extent permitted by Section 9.01(b)), asfollows:

 

(i)          ifto a Borrower, to such Borrower at 201 Rouse Boulevard, Philadelphia, Pennsylvania 19112, Attention: William Goebel (telecopy:(215) 339-1931), e-mail: Credit.notices@fsinvestments.com, if to FSIC, with a copy to FSIC_Team@fsinvestments.com, if to FSIC II,FSICII_Team@fsinvestments.com, if to FSIC III, with a copy to FSICIII_Team@fsinvestments.com, if to CCT, with a copy to kkrcreditlegal@kkr.com,and in each case with a copy (which shall not constitute notice) to Dechert LLP, 1095 Avenue of the Americas, New York, New York10036, Attention: Jay R. Alicandri (telecopy: (212) 698-3599);

 

(ii)         ifto the Administrative Agent, to JPMorgan Loan Services, 500 Stanton Christiana Road, Ops 2, 3rd Floor Newark, Delaware 19713,Attention of Loan and Agency Services Group (telecopy: 1 (302) 634-4733), e-mail: michelle.keesee@chase.com;

 

(iii)        ifto the Collateral Agent, to ING Capital LLC, 1133 Avenue of the Americas, New York, New York 10036, Attention: Dominik Breuer,e-mail: Dominik.Breuer@ing.com; and

 

(iv)        ifto any Issuing Bank or other Lender, to it at its address (or telecopy number or e-mail) set forth in its Administrative Questionnaire.

 

Any party hereto may change its address or telecopy number or e-mailaddress for notices and other communications hereunder by notice to the other parties hereto. All notices and other communicationsgiven to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date ofreceipt. Notices delivered through electronic communications to the extent provided in paragraph (b) below, shall be effectiveas provided in said paragraph (b).

 

 

 

(b)          ElectronicCommunications. Notices and other communications to the Lenders and the Issuing Banks hereunder may be delivered or furnishedby electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the AdministrativeAgent; provided that the foregoing shall not apply to notices to any Lender or any Issuing Bank pursuant to Article IIif such Lender or such Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving noticesunder such Article by electronic communication. The Administrative Agent or any Borrower may, in its discretion, agree to acceptnotices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; providedthat approval of such procedures may be limited to particular notices or communications. Unless otherwise notified by the AdministrativeAgent to the Borrowers, the Borrowers may satisfy their respective obligations to deliver documents or notices to the AdministrativeAgent or the Lenders under Sections 5.01 and 5.02 by delivering an electronic copy to:  michelle.keesee@chase.com,or such other e-mail address(es) as provided to the Borrowers in a notice from the Administrative Agent, (and the AdministrativeAgent shall promptly provide notice thereof to the Lenders).

 

Unless the Administrative Agent otherwise prescribes,(i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt ofan acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, returne-mail or other written acknowledgement); provided that if such notice or other communication is not sent during the normalbusiness hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on thenext business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall bedeemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i)of notification that such notice or communication is available and identifying the website address therefor.

 

In no event shall the Administrative Agent orany Lender have any liability to the Borrowers or any other Person for damages of any kind (whether in tort contract or otherwise)arising out of any transmission of communications through the internet, except in the case of direct damages, to the extent suchdamages are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the willfulmisconduct or gross negligence of such relevant Person.

 

(c)          Documentsto be Delivered under Sections 5.01 and 5.02. For so long as an IntralinksTM or equivalent website is availableto each of the Lenders hereunder, each Borrower may satisfy its obligation to deliver documents to the Administrative Agent orthe Lenders under Sections 5.01 and 5.02 by delivering either an electronic copy in the manner specified in Section 9.01(b)or a notice identifying the website where such information is located for posting by the Administrative Agent on IntralinksTMor such equivalent website; provided that the Administrative Agent shall have no responsibility to maintain access to IntralinksTMor an equivalent website.

 

 

 

SECTION 9.02.         Waivers;Amendments.

 

(a)          NoDeemed Waivers; Remedies Cumulative. No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercisingany right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereofor the exercise of any other right or power. The rights and remedies of the Administrative Agent, the Issuing Banks and the Lendershereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provisionof this Agreement or consent to any departure by any Borrower therefrom shall in any event be effective unless the same shall bepermitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instanceand for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letterof Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or anyIssuing Bank may have had notice or knowledge of such Default at the time.

 

(b)          Amendmentsto this Agreement. Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to anagreement or agreements in writing entered into by the applicable Borrowers and the Required Lenders or by the applicable Borrowersand the Administrative Agent with the consent of the Required Lenders (it being understood that in no event will any waiver, amendmentor modification apply to any Borrower without the prior written consent of such Borrower); provided that, no such agreementshall:

 

(i)          increasethe Commitment of any Lender without the written consent of such Lender,

 

(ii)         reducethe principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder,without the written consent of each Lender directly affected thereby,

 

(iii)        postponethe scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payablehereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,without the written consent of each Lender directly affected thereby,

 

(iv)        changeSection 2.17(b), (c) or (d) in a manner that would alter the pro rata sharing of payments required thereby without thewritten consent of each Lender directly adversely affected thereby,

 

(v)         changeany of the provisions of this Section or the definition of the term “Required Lenders” or any other provision hereofspecifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determinationor grant any consent hereunder, without the written consent of each Lender,

 

(vi)        otherthan as permitted by this Agreement, the applicable Guarantee and Security Agreement or any other applicable Loan Document, releaseall or substantially all of the Collateral from the Lien created under such Guarantee and Security Agreement or release all orsubstantially all of the Obligors from their obligations as Subsidiary Guarantors thereunder, without the written consent of eachLender, or

 

 

 

(vii)       amendthe definition of “Applicable Percentage”, “Applicable Dollar Percentage” or “Applicable MulticurrencyPercentage”, without the written consent of each Lender directly affected thereby;

 

provided further that (x) no such agreement shall amend,modify or otherwise affect the rights or duties of the Administrative Agent or any Issuing Bank hereunder without the prior writtenconsent of the Administrative Agent or such Issuing Bank, as the case may be and (y) the consent of Lenders holding not lessthan two-thirds of the holders of the total Revolving Credit Exposures with respect to the applicable Borrower and unused Subcommitmentswith respect to such Borrower will be required for any adverse change (from the Lenders’ perspective) affecting the provisionsof this Agreement solely relating to the calculation of the Borrowing Base of such Borrower (excluding changes to the provisionsof Section 5.12(b)(iii) or (iv), but including changes to the provisions of Section 5.12(c)(ii) and the definitions setforth in Section 5.13) unless otherwise expressly provided herein.

 

For purposes of this Section, the “scheduleddate of payment” of any amount shall refer to the date of payment of such amount specified in this Agreement, and shall notrefer to a date or other event specified for the mandatory or optional prepayment of such amount. In addition, whenever a waiver,amendment or modification requires the consent of a Lender “affected” thereby, such waiver, amendment or modificationshall, upon consent of such Lender, become effective as to such Lender whether or not it becomes effective as to any other Lender,so long as the Required Lenders consent to such waiver, amendment or modification as provided above.

 

Anything in this Agreement to the contrary notwithstanding,no waiver or modification of any provision of this Agreement or any other Loan Document that could reasonably be expected to adverselyaffect the Lenders of any Class in a manner that does not affect all Classes equally shall be effective against the Lenders ofsuch Class unless the Required Lenders of such Class shall have concurred with such waiver, amendment or modification as providedabove; provided, however, in no other circumstances shall the concurrence of the Required Lenders of a particularClass be required for any waiver, amendment or modification of any provision of this Agreement or any other Loan Document.

 

 

 

(c)          Amendmentsto Security Documents. Except to the extent otherwise expressly set forth in the applicable Guarantee and Security Agreementor the other Loan Documents, no Security Document nor any provision thereof may be waived, amended or modified, nor may the Liensgranted under such Guarantee and Security Agreement be spread to secure any additional obligations (excluding (x) any increasein the Loans made to any Borrower and Letters of Credit issued on behalf of any Borrower hereunder pursuant to a Commitment Increaseunder Section 2.07(e), (y) any increase in any Other Secured Indebtedness permitted hereunder and (z) the spreading of suchLiens to any Designated Indebtedness or Hedging Agreement Obligations (as such terms are defined in the applicable Guarantee andSecurity Agreement) as provided for in the applicable Guarantee and Security Agreement) except pursuant to an agreement or agreementsin writing entered into by the applicable Borrower and the Collateral Agent with the consent of the Required Lenders; providedthat, except as otherwise expressly permitted by the Loan Documents to which the applicable Borrower is a party, (i) withoutthe written consent of each Lender, no such agreement shall release all or substantially all of the members of any Borrower’sObligor Group from their respective obligations under the Security Documents to which such Borrower or any other member of itsObligor Group is a party and (ii) without the written consent of each Lender, no such agreement shall release all or substantiallyall of the collateral security or otherwise terminate all or substantially all of the Liens under the Security Documents to whichsuch Borrower or any other member of its Obligor Group is a party, alter the relative priorities of the obligations entitled tothe Liens created under the Security Documents to which such Borrower or any other member of its Obligor Group is a party (exceptin connection with securing additional obligations equally and ratably with the Loans made to such Borrower and other obligationsof such Borrower hereunder) with respect to all or substantially all of the collateral security provided thereby, or release allor substantially all of the guarantors under the Guarantee and Security Agreement to which such Borrower is a party from theirguarantee obligations thereunder, except that, in each case described in clause (i) or (ii), no such consent shall be required,and the Administrative Agent is hereby authorized (and so agrees with each Borrower) to direct the Collateral Agent under the Guaranteeand Security Agreement to which such Borrower is a party (in addition to the rights of such parties under the Guarantee and SecurityAgreement to which such Borrower is a party), to (1) release any Lien covering property (and to release any such guarantor)that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders or therequired number or percentage of Lenders have consented (and such Lien shall be released automatically to the extent provided inSection 10.03 of the Guarantee and Security Agreement to which such Borrower is a party), (2) release from any Guarantee andSecurity Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated asa “Designated Subsidiary” by the applicable Borrower, becomes an Excluded Asset or an Immaterial Subsidiary of theapplicable Borrower in accordance with this Agreement or is otherwise no longer required to be a “Subsidiary Guarantor”of such Borrower (including, without limitation, because it ceases to be consolidated on the applicable Borrower’s financialstatements) and, so long as (A) after giving effect to any such release under this clause (2) (and any concurrent acquisitionof Portfolio Investments by such Borrower or payment of outstanding Loans made to such Borrower), the Covered Debt Amount of suchBorrower does not exceed the Borrowing Base of such Borrower and such Borrower delivers a certificate of a Financial Officer ofsuch Borrower to such effect to the Administrative Agent, (B) either (I) the amount of any excess availability underthe Borrowing Base of such Borrower immediately prior to such release is not diminished as a result of such release or (II) theBorrowing Base of such Borrower immediately after giving effect to such release is at least 110% of the Covered Debt Amountof such Borrower and (C) no Event of Default has occurred and is continuing with respect to such Borrower and (3) releasefrom any Guarantee and Security Agreement any Obligor (and any property of such Obligor) that is concurrently being joined as anObligor under any other Guarantee and Security Agreement in connection with a transaction permitted hereunder.

 

 

 

(d)          Replacementof Non-Consenting Lender. If, in connection with any proposed change, waiver, amendment, consent, discharge or terminationto any of the provisions of this Agreement requiring (i) the consent of “each Lender” or “each Lender affectedthereby” or (ii) the consent of “two-thirds of the holders of the total Revolving Credit Exposures with respect tothe applicable Borrower and unused Subcommitments with respect to such Borrower” that has been approved by the Required Lenders,the consent of one or more Lenders whose consent is required for such proposed change, waiver, amendment, consent, discharge ortermination is not obtained, or if any Lender shall decline to consent to the addition of a “Borrower” pursuant toSection 9.19, then (so long as no Event of Default has occurred and is continuing with respect to any Borrower) the Borrowers shallhave the right, at their sole cost and expense, to replace each such non-consenting Lender or Lenders with one or more replacementLenders pursuant to Section 2.19(b) so long as at the time of such replacement, each such replacement Lender consents to theproposed change, waiver, discharge, termination or addition.

 

SECTION 9.03.         Expenses;Indemnity; Damage Waiver.

 

(a)          Costsand Expenses. Each Borrower shall, severally and not jointly, pay (solely with respect to obligations owed by such Borrowerand on behalf of such Borrower, and not with respect to obligations owed by or on behalf of any other Borrower) (i) all reasonableand documented out-of-pocket expenses incurred with respect to such Borrower by the Administrative Agent and its Affiliates (withrespect to legal fees, limited to the reasonable and documented out-of-pocket fees, charges and disbursements of one outside counselfor the Administrative Agent and its Affiliates collectively) (whether or not the transactions contemplated hereby or thereby shallbe consummated), subject to any limitation previously agreed in writing, (ii) all reasonable and documented out-of-pocketexpenses incurred by the applicable Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letterof Credit on behalf of such Borrower or any demand for payment by such Borrower thereunder, (iii) all reasonable and documentedout-of-pocket expenses incurred with respect to such Borrower by the Administrative Agent, the applicable Issuing Bank or any Lender(with respect to legal fees, limited to the documented fees, charges and disbursements of one outside counsel (and, in the caseof an actual conflict of interest where the Administrative Agent, the applicable Issuing Bank or any Lender affected by such conflictinforms such Borrower of such conflict and thereafter retains its own counsel, another firm of counsel for any such affected Person)for the Administrative Agent, the applicable Issuing Bank and any Lender collectively), in connection with the enforcement or protectionof such Person’s respective rights in connection with this Agreement and the other Loan Documents to which such Borroweror any other member of its Obligor Group is a party, including its rights under this Section, or in connection with the Loans madeto such Borrower or Letters of Credit issued on behalf of such Borrower hereunder, including all such documented out-of-pocketexpenses incurred during any workout, restructuring or negotiations in respect thereof and (iv) and all reasonable and documentedout-of-pocket costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recordingor perfection of any security interest in such Borrower’s assets contemplated by any Security Document to which such Borroweror any other member of its Obligor Group is a party or any other document referred to therein. All amounts payable under this paragraph(a) that are not attributable solely to a specific Borrower (as a result of such payment obligations arising out of Borrowingsof such Borrower or breaches or violation by such Borrower of the terms hereof or of applicable law) shall be the several obligationsof all Borrowers, allocated on a Pro-Rata Basis or otherwise as equitably allocated among the Borrowers and notified to the AdministrativeAgent by each of the Borrowers.

 

 

 

(b)          Indemnificationby the Borrowers. Each Borrower shall, severally and not jointly (solely with respect to and on behalf of such Borrower, andnot with respect to or on behalf of any other Borrower), indemnify the Administrative Agent, the applicable Issuing Bank, eachJoint Lead Arranger and each Lender, and each Related Party of any of the foregoing Persons (with respect to a Borrower, each suchPerson being called an “Indemnitee”) against, and hold each Indemnitee of such Borrower harmless from, any andall losses, claims, damages, liabilities and related expenses (with respect to legal fees, limited to the reasonable and documentedout-of-pocket fees, charges and disbursements of one outside counsel (and, in the case of an actual conflict of interest wherethe Indemnitee affected by such conflict informs such Borrower of such conflict and thereafter retains its own counsel, anotherfirm of counsel for any such affected Indemnitee) for the Indemnitees collectively (other than the allocated costs of internalcounsel)), incurred by or asserted against any Indemnitee of such Borrower arising out of, in connection with, or as a result of(i) the execution or delivery by such Borrower of this Agreement or any agreement or instrument contemplated hereby to whichsuch Borrower or any other member of its Obligor Group is a party, the performance by the parties hereto of their respective obligationshereunder owed by or to or otherwise arising with respect to such Borrower or the consummation of the Transactions to which suchBorrower or any other member of its Obligor Group is a party or any other transactions contemplated hereby to which such Borroweror any other member of its Obligor Group is a party, (ii) any Loan made to such Borrower or Letter of Credit issued on behalfof such Borrower or the use by such Borrower of the proceeds received by such Borrower therefrom (including any refusal by theapplicable Issuing Bank to honor a demand for payment under a Letter of Credit issued on behalf of such Borrower if the documentspresented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any actualor prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tortor any other theory and regardless of whether any Indemnitee of such Borrower is a party thereto, in each case of this paragraph(b), solely to the extent directly related to such Borrower or, if relating to more than one Borrower (or to no specific Borrower),each relevant Borrower shall be responsible for its proportionate share of any such amounts determined in accordance with the respectiveallocations of the Subcommitments hereunder or as the relevant Borrowers may otherwise agree; provided that such indemnityshall not, as to any Indemnitee of such Borrower, be available to the extent that such losses, claims, damages, liabilities orrelated expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from(A) the bad faith, willful misconduct or gross negligence of such Indemnitee, (B) a claim brought by such Borrower orsuch other Obligor against such Indemnitee for material breach of such Indemnitee’s obligations under this Agreement or theother Loan Documents to which such Borrower or any other member of its Obligor Group is a party, if there has been a final andnonappealable judgment against such Indemnitee on such claim as determined by a court of competent jurisdiction or (C) a claimarising as a result of a dispute between Indemnitees of such Borrower (other than (x) any dispute involving claims against theAdministrative Agent, the applicable Issuing Bank, any Joint Lead Arranger or any Lender, in each case in their respective capacitiesas such, and (y) claims arising out of any act or omission by such Borrower or its Affiliates). This Section 9.03(b) shall notapply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

 

 

 

No Borrower shall be liable to any Indemniteefor any special, indirect, consequential or punitive damages arising out of, in connection with, or as a result of the Transactionsto which such Borrower is a party asserted by any Indemnitee against any Borrower or any other member of its Obligor Group, providedthat the foregoing limitation shall not be deemed to impair or affect the obligations of any Borrower under the preceding provisionsof this subsection.

 

(c)          Reimbursementby Lenders. To the extent that any Borrower fails to pay any amount required to be paid by it to the Administrative Agent orthe applicable Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the AdministrativeAgent or the applicable Issuing Bank, as the case may be, such Lender’s Applicable Percentage or Applicable MulticurrencyPercentage, as applicable, with respect to such Borrower (determined as of the time that the applicable unreimbursed expense orindemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage,liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent or the applicableIssuing Bank in its capacity as such.

 

(d)          Waiverof Consequential Damages, Etc. To the extent permitted by applicable law, no party hereto shall assert, and each party heretohereby waives, any claim against any other party (or any Related Party to such party), on any theory of liability, for special,indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or asa result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactions, anyLoan or Letter of Credit or the use of the proceeds thereof, provided that nothing contained in this sentence shall limitany Borrower’s indemnification obligations under Section 9.03 to the extent such special, indirect consequential or punitivedamages are included in any third party claim in connection with which any Indemnittee is entitled to indemnification thereunder.

 

(e)          Payments.All amounts due under this Section shall be payable promptly after written demand therefor.

 

SECTION 9.04.         Successorsand Assigns.

 

(a)          AssignmentsGenerally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of Credit),except that (i) no Borrower may assign or otherwise transfer any of its rights or obligations hereunder (which, for the avoidanceof doubt, shall not include the reallocation of any Subcommitments between Borrowers hereunder) without the prior written consentof each Lender (and any attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) noLender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section (and any attemptedassignment or transfer by any Lender which is not in accordance with this Section shall be treated as provided in the last sentenceof Section 9.04(b)(iii)). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (otherthan the parties hereto, their respective successors and assigns permitted hereby (including any Affiliate of any Issuing Bankthat issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the AdministrativeAgent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

 

 

(b)          Assignmentsby Lenders.

 

(i)          AssignmentsGenerally. Subject to the conditions set forth in clause (ii) below, any Lender may assign to one or more assignees allor a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans andLC Exposure at the time owing to it), provided that, following any such assignment, the Lenders shall hold the same percentageof Subcommitments, Loans and LC Exposure across all Borrowers (and the same percentage of Commitments as Subcommitments).

 

Notwithstanding anything to thecontrary contained herein, each Borrower’s consent shall be required with respect to an assignment to any Disqualified Lenderunless an Event of Default under clause (a), (b), (i), (j) or (k) of Article VII has occurred and is continuing with respect tosuch Borrower, provided that the foregoing shall not limit the consent rights with respect to an assignment to any DisqualifiedLender of any Borrower for which an Event of Default under clause (a), (b), (i), (j) or (k) of Article VII has not occurred oris not continuing.

 

(ii)          CertainConditions to Assignments. Assignments shall be subject to the following additional conditions:

 

(A)         priorwritten consent (such consent not to be unreasonably withheld or delayed) of:

 

(1)         eachBorrower; provided, that no consent of a Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender,or, if an Event of Default under clause (a), (b), (i), (j) or (k) of Article VII has occurred and is continuing with respect tosuch Borrower, any other assignee; provided further, that a Borrower shall be deemed to have consented to any such assignmentunless it shall object thereto by written notice to the Administrative Agent within 5 Business Days after having received writtennotice thereof; and

 

(2)         theAdministrative Agent and the Issuing Banks; provided no consent of the Administrative Agent or the Issuing Banks shall be requiredfor an assignment by a Lender to a Lender or an Affiliate of a Lender with prior written notice by such assigning Lender to theAdministrative Agent and the Issuing Banks;

 

(B)         exceptin the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigningLender’s Commitment or Loans to all Borrowers and LC Exposure with respect to all Borrowers of a Class, the amount of theCommitment of such Class of the assigning Lender subject to each such assignment (determined as of the date the Assignment andAssumption in substantially the form of Exhibit A hereto with respect to such assignment is delivered to the AdministrativeAgent) shall not be less than U.S. $5,000,000 unless the Borrowers and the Administrative Agent otherwise consent; providedthat no such consent of a Borrower shall be required if an Event of Default under clause (a), (b), (i), (j) or (k) of Article VIIhas occurred and is continuing with respect to such Borrower;

 

 

 

(C)         eachpartial assignment of any Class of Commitments (or any related Revolving Credit Exposure) shall be made as an assignment of a proportionatepart of all the assigning Lender’s rights and obligations under this Agreement in respect of such Class of Commitments, includinga ratable portion of the Loans, the applicable LC Exposure and the Subcommitments with respect to each Borrower;

 

(D)         theparties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with aprocessing and recordation fee of U.S. $3,500 (which fee shall not be payable in connection with an assignment to a Lenderor to an Affiliate of a Lender) (for which no Obligor shall be obligated); and

 

(E)         theassignee, if it shall not already be a Lender of the applicable Class, shall deliver to the Administrative Agent an AdministrativeQuestionnaire.

 

(iii)        Effectivenessof Assignments. Subject to acceptance and recording thereof pursuant to paragraph (c) of this Section, from and afterthe effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extentof the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, andthe assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released fromits obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’srights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled tothe benefits of Sections 2.14, 2.15, 2.16 and 9.03 with respect to facts and circumstances occurring prior to the effectivedate of such assignment). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not complywith this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in suchrights and obligations in accordance with paragraph (e) of this Section.

 

(c)          Maintenanceof Register by Administrative Agent. The Administrative Agent, acting for this purpose as an agent of each Borrower, shallmaintain at one of its offices in New York City a copy of each Assignment and Assumption delivered to it and a register for therecordation of the names and addresses of the Lenders, and the Commitments of, and the Subcommitments of, principal amount (andstated interest) of the Loans of and LC Disbursements owing to, each Lender with respect to such Borrower pursuant to the termshereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error,and each Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in theRegister pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.The Register shall be available for inspection by any Borrower, any Issuing Bank and any Lender, at any reasonable time and fromtime to time upon reasonable prior notice. The Administrative Agent agrees to provide any Borrower with official copies of theRegister upon reasonable request.

 

 

 

(d)          Acceptanceof Assignments by Administrative Agent. Upon its receipt of a duly completed Assignment and Assumption executed by an assigningLender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lenderhereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to suchassignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumptionand record the information contained therein in the Register. No assignment shall be effective for purposes of this Agreement unlessit has been recorded in the Register as provided in this paragraph.

 

(e)          Participations.Any Lender may, with the consent of the Borrowers (such consent not to be unreasonably withheld or delayed), sell participationsto one or more banks or other entities other than a Disqualified Lender (a “Participant”) in all or a portionof such Lender’s rights and obligations under this Agreement and the other Loan Documents (including all or a portion ofits Commitments and the Loans and LC Disbursements owing to it); provided that, following any such sale of participations,the Participants shall hold the same percentage of Subcommitments, Loans and LC Exposure across all Borrowers (and the same percentageof Commitments as Subcommitments); provided further, that a Borrower shall be deemed to have consented to any such saleunless it shall object thereto by written notice to such Lender (with copy to the Administrative Agent) within 5 Business Daysafter having received notice thereof; and (i) such Lender’s obligations under this Agreement and the other Loan Documentsshall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance ofsuch obligations, (iii) each Borrower, the Administrative Agent, each Issuing Bank and the other Lenders shall continue todeal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement andthe other Loan Documents and (iv) consent of a Borrower shall not be required for (A) a participation to a Lender, an Affiliateof a Lender, or if an Event of Default has occurred and is continuing with respect to such Borrower or (B) if such Participantdoes not have the right to receive any non-public information that may be provided pursuant to this Agreement and the Lender sellingsuch participation agrees with the Borrowers at the time of the sale of such participation that it will not deliver any non-publicinformation to such Participant. Any agreement or instrument pursuant to which a Lender sells such a participation shall providethat such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment,modification or waiver of any provision of this Agreement or any other Loan Document; provided that such agreement or instrumentmay provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver describedin the first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this Section, eachBorrower agrees that each Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extentas if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section (subject to therequirements and limitations therein, including the requirements under Sections 2.16(e), (f) and (g) (it being understood thatthe documentation required under these paragraphs shall be delivered to the participating Lender)). Each Lender that sells a participationagrees, at the applicable Borrower’s request and expense, to use reasonable efforts to cooperate with such Borrower to effectuatethe provisions of Section 2.19 with respect to any Participant. To the extent permitted by law, each Participant also shall beentitled to the benefits of Section 9.08 as though it were a Lender; provided such Participant agrees to be subjectto Section 2.17(d) as though it were a Lender hereunder. Each Lender that sells a participation shall, acting solely for thispurpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participantand the principal amounts (and stated interest) of each Participant’s interest in the Commitments, Subcommitments, Loans,Letters of Credit or other obligations under the Loan Documents (the “Participant Register”) and shall not haveany obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any informationrelating to a Participant’s interest in any Commitments, Subcommitments, Loans, Letters of Credit or its other obligationsunder any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment,Subcommitments, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United StatesTreasury Regulations or Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in the Participant Registershall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Registeras the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.

 

 

 

(f)          Limitationson Rights of Participants. A Participant shall not be entitled to receive any greater payment under Section 2.14, 2.15or 2.16 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant,unless the sale of the participation to such Participant is made with the Borrowers’ prior written consent. A Participantthat would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrowersare notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to complywith Section 2.16 as though it were a Lender and in the case of a Participant claiming exemption for portfolio interest underSection 871(h) or 881(c) of the Code, the applicable Lender shall provide the Borrowers with satisfactory evidence thatthe participation is in registered form and shall permit the Borrowers to review such register as reasonably needed for the Borrowersto comply with their respective obligations under applicable laws and regulations. Each Participant agrees to be subject to theprovisions of Section 2.19 as if it were an assignee under paragraph (b) of this Section.

 

(g)          CertainPledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreementto secure obligations of such Lender, including any such pledge or assignment to a Federal Reserve Bank or any other central bankhaving jurisdiction over such Lender, and this Section shall not apply to any such pledge or assignment of a security interest;provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunderor substitute any such assignee for such Lender as a party hereto.

 

 

 

(h)          NoAssignments or Participations to Natural Persons, the Borrowers or Affiliates or Certain Other Persons. Anything in this Sectionto the contrary notwithstanding, no Lender may (i) assign or participate any interest in any Loan made to any Borrower or LC Exposurewith respect to any Borrower held by it hereunder to any natural person (or a holding company, investment vehicle or trust for,or owned and operated for the primary benefit of, a natural person) or to any Borrower or any of their respective Affiliates orSubsidiaries (including, without limitation, their respective Designated Subsidiaries) without the prior consent of each Lenderor (ii) assign any interest in any Subcommitment, Loan or LC Exposure held by it hereunder to any Person known by such Lender atthe time of such assignment to be a Defaulting Lender, a Subsidiary of a Defaulting Lender or a Person who, upon consummation ofsuch assignment would be a Defaulting Lender.

 

(i)          MulticurrencyLenders. Any assignment by a Multicurrency Lender, so long as no Event of Default has occurred and is continuing with respectto any Borrower, must be to a Person that is able to fund and receive payments on account of each outstanding Agreed Foreign Currencyat such time without the need to obtain any authorization referred to in clause (c) of the definition of “Agreed ForeignCurrency”.

 

(j)          CertainMatters Relating to Disqualified Lenders. The Administrative Agent shall not be responsible or have liability for, or haveany duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Lenders.Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor orinquire as to whether any Lender is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignmentor participation of Loans, or disclosure of confidential information, to any Disqualified Lender. The list of Disqualified Lenderswill be made available by the Administrative Agent to any Lender, participant or potential Lender or participant upon request.

 

SECTION 9.05.         Survival.All covenants, agreements, representations and warranties made by each Borrower herein and in the certificates or other instrumentsdelivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties heretoand shall survive the execution and delivery of this Agreement and the making of any Loans to such Borrower and issuance of anyLetters of Credit on behalf of such Borrower, regardless of any investigation made by any such other party or on its behalf andnotwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Defaultwith respect to such Borrower or incorrect representation or warranty made by such Borrower at the time any credit is extendedhereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan made tosuch Borrower or any fee or any other amount payable by such Borrower under this Agreement is outstanding and unpaid or any Letterof Credit issued on behalf of such Borrower is outstanding and so long as the Subcommitments of such Borrower have not expiredor terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain infull force and effect regardless of the consummation of the transactions contemplated hereby to which such Borrower or any othermember of its Obligor Group is a party, the repayment of the Loans made to such Borrower, the expiration or termination of theLetters of Credit issued on behalf of such Borrower and the Subcommitments of such Borrower or the termination of this Agreementor any provision hereof with respect to such Borrower.

 

 

 

SECTION 9.06.         Counterparts;Integration; Effectiveness; Electronic Execution.

 

(a)          Counterparts;Integration; Effectiveness; Electronic Execution. This Agreement may be executed in counterparts (and by different partieshereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitutea single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable tothe Administrative Agent constitute the entire contract between and among the parties relating to the subject matter hereof andsupersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except asprovided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agentand when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of eachof the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respectivesuccessors and assigns. Delivery of an executed counterpart of a signature page to this Agreement by telecopy or e-mail shall beeffective as delivery of a manually executed counterpart of this Agreement.

 

(b)          ElectronicExecution of Assignments. The words “execution,” “signed,” “signature,” and words of likeimport in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronicform, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use ofa paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including theFederal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, orany other similar state laws based on the Uniform Electronic Transactions Act.

 

SECTION 9.07.         Severability.Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction,be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceabilityof the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidatesuch provision in any other jurisdiction.

 

SECTION 9.08.         Rightof Setoff. If an Event of Default shall have occurred and be continuing with respectto a Borrower, each Lender, each Issuing Bank and each of their respective Affiliates is hereby authorized at any time and fromtime to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand,provisional or final, in whatever Currency) at any time held and other obligations at any time owing by such Lender, such IssuingBank or any such Affiliate to or for the credit or the account of such Borrower against any of and all the obligations of suchBorrower now or hereafter existing under this Agreement or any other Loan Document held by such Lender, such Issuing Bank or theirrespective Affiliates, irrespective of whether or not such Lender shall have made any demand under this Agreement and althoughsuch obligations may be contingent or unmatured, or are owed to a branch, office or Affiliate of such Lender different from thebranch, office or Affiliate holding such deposit or obligated on such Indebtedness of such Borrower. The rights of each Lender,each Issuing Bank and their respective Affiliates under this Section are in addition to other rights and remedies (including otherrights of setoff) which such Lender, such Issuing Bank or such Affiliate may have; provided that in the event that anyDefaulting Lender exercises any such right of setoff, (a) all amounts so set off will be paid over immediately to the AdministrativeAgent for further application in accordance with the provisions of Section 2.18 and, pending such payment, will be segregatedby such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the IssuingBanks and the Lenders and (b) the Defaulting Lender will provide promptly to the Administrative Agent a statement describing inreasonable detail the obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agreespromptly to notify the applicable Borrower after any such set-off and application made by such Lender; provided further,that the failure to give such notice shall not affect the validity of such set-off and application.

 

 

 

SECTION 9.09.         GoverningLaw; Jurisdiction; Etc.

 

(a)          GoverningLaw. This Agreement and the other Loan Documents shall be construed in accordance with and governed by the law of the Stateof New York.

 

(b)          Submissionto Jurisdiction. Each party to this Agreement hereby irrevocably and unconditionally submits, for itself and its property,to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United StatesDistrict Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arisingout of or relating to this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each ofthe parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding maybe heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties heretoagrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions bysuit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the AdministrativeAgent, any Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against anyBorrower or its properties in the courts of any jurisdiction.

 

(c)          Waiverof Venue. Each party to this Agreement hereby irrevocably and unconditionally waives, to the fullest extent it may legallyand effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceedingarising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the partieshereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenanceof such action or proceeding in any such court.

 

(d)          Serviceof Process. Each party to this Agreement (i) irrevocably consents to service of process in the manner provided for noticesin Section 9.01 and (ii) agrees to the extent permitted by applicable law that service as provided in the manner provided for noticesin Section 9.01 is sufficient to confer personal jurisdiction over such party in any proceeding in any court and otherwise constituteseffective and binding service in every respect. Nothing in this Agreement will affect the right of any party to this Agreementto serve process in any other manner permitted by law.

 

 

 

SECTION 9.10.         WAIVEROF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTEDBY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATINGTO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THATSUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT ITAND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONSIN THIS SECTION.

 

SECTION 9.11.         JudgmentCurrency. This is an international loan transaction in which the specificationof Dollars or any Foreign Currency, as the case may be (the “Specified Currency”), and payment in New YorkCity or the country of the Specified Currency, as the case may be (the “Specified Place”), is of the essence,and the Specified Currency shall be the currency of account in all events relating to Loans denominated in the Specified Currency.The payment obligations of any Borrower under this Agreement shall not be discharged or satisfied by an amount paid in anothercurrency or in another place, whether pursuant to a judgment or otherwise, to the extent that the amount so paid on conversionto the Specified Currency and transfer to the Specified Place under normal banking procedures does not yield the amount of theSpecified Currency at the Specified Place due hereunder. If for the purpose of obtaining judgment in any court it is necessaryto convert a sum due hereunder in the Specified Currency into another currency (the “Second Currency”), therate of exchange that shall be applied shall be the rate at which in accordance with normal banking procedures the AdministrativeAgent could purchase the Specified Currency with the Second Currency on the Business Day next preceding the day on which suchjudgment is rendered. The obligation of each Borrower, severally and not jointly, in respect of any such sum due from such Borrowerto the Administrative Agent or any Lender hereunder or under any other Loan Document to which such Borrower or any other memberof its Obligor Group is a party (in this Section called an “Entitled Person”) shall, notwithstanding the rateof exchange actually applied in rendering such judgment, be discharged only to the extent that on the Business Day following receiptby such Entitled Person of any sum adjudged to be due from such Borrower hereunder in the Second Currency such Entitled Personmay in accordance with normal banking procedures purchase and transfer to the Specified Place the Specified Currency with theamount of the Second Currency so adjudged to be due; and such Borrower hereby, severally and not jointly with any other Borrower,and as a separate obligation and notwithstanding any such judgment, agrees to indemnify such Entitled Person against, and to paysuch Entitled Person on demand, in the Specified Currency, the amount (if any) by which the sum originally due from such Borrowerto such Entitled Person in the Specified Currency hereunder exceeds the amount of the Specified Currency so purchased and transferred.

 

SECTION 9.12.         Headings.Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of thisAgreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement. None of theJoint Lead Arrangers or Syndication Agent shall have any responsibility under this Agreement.

 

 

 

SECTION 9.13.         Treatmentof Certain Information; Confidentiality.

 

(a)          Treatmentof Certain Information. Each Borrower acknowledges that from time to time financial advisory, investment banking and otherservices may be offered or provided to such Borrower or one or more of its Subsidiaries (in connection with this Agreement or otherwise)by any Lender or by one or more subsidiaries or affiliates of such Lender and such Borrower hereby authorizes each Lender to shareany information delivered to such Lender by such Borrower and its Subsidiaries pursuant to this Agreement, or in connection withthe decision of such Lender to enter into this Agreement, to any such subsidiary or affiliate, it being understood that any suchsubsidiary or affiliate receiving such information shall be bound by the provisions of paragraph (b) of this Section as ifit were a Lender hereunder. Such authorization shall survive the repayment of the Loans, the expiration or termination of the Lettersof Credit and the Commitments or the Subcommitments or the termination of this Agreement or any provision hereof.

 

(b)          Confidentiality.Each of the Administrative Agent, the Collateral Agent, the Lenders, the Joint Lead Arrangers and the Issuing Banks agrees to maintainthe confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliatesand to its Related Parties (it being understood (A) that the Persons to whom such disclosure is made will be informed of the confidentialnature of such Information and instructed to keep such Information confidential to the same extent as provided in this paragraph(b) and (B) it will be responsible for any breach of the terms of this paragraph by the Persons to whom it disclosed any Informationpursuant to this clause (i) other than any Person who has agreed in writing with the applicable Borrower to separately maintainthe confidentiality of such Information) on a confidential and need-to-know basis, (ii) to the extent requested by any regulatoryauthority with competent jurisdiction over it or its Affiliates (including any self-regulatory authority), (iii) to the extentrequired by applicable laws or regulations or by any subpoena or similar legal process (provided that, except in the case of anyordinary course examination by a regulatory, self-regulatory or governmental agency, it will use its commercially reasonable effortsto notify the applicable Borrower of any such disclosure prior to making such disclosure to the extent permitted by applicablelaw, rule or regulation), (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunderor under any other Loan Document to which the applicable Borrower or any other member of its Obligor Group is a party or any actionor proceeding relating to this Agreement or any other Loan Document to which the applicable Borrower or any other member of itsObligor Group is a party or the enforcement of rights against the applicable Borrower hereunder or thereunder, (vi) subjectto an agreement containing provisions substantially the same as those of this Section, to (w) any assignee of or Participantin, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement; provided that,such Person would be permitted to be an assignee or participant pursuant to the terms hereof and such Person is not a DisqualifiedLender, (x) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to theapplicable Borrower and their respective obligations, (y) any rating agency in connection with rating the applicable Borroweror its Subsidiaries or the Loans made to such Borrower or credit insurance provider with respect to such Borrower or (z) theCUSIP Service Bureau or any similar organization, (vii) with the consent of the Borrowers or (viii) to the extent suchInformation (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes availableto the Administrative Agent, any Lender, any Issuing Bank or any of their respective Affiliates on a nonconfidential basis froma source other than any Borrower or their respective Affiliates and is not actually known by it to be in breach of any other Person’sconfidentiality obligations to the applicable Borrower.

 

 

 

For purposes of this Section, “Information”means, with respect to a Borrower, all information provided by FS/KKR Advisor (or any new or successor investment advisor, investmentco-advisor and/or investment sub-advisor not otherwise prohibited under this Agreement), such Borrower or any of its Subsidiariesrelating to FS/KKR Advisor (or any new or successor investment advisor, investment co-advisor and/or investment sub-advisor nototherwise prohibited under this Agreement), such Borrower or any of its Subsidiaries or any of their respective businesses or anyportfolio investment (including Portfolio Investments and including the Value of such Portfolio Investments), other than any suchinformation that is available to the Administrative Agent, the Collateral Agent any Lender or any Issuing Bank on a nonconfidentialbasis prior to disclosure by FS/KKR Advisor (or any new or successor investment advisor, investment co-advisor and/or investmentsub-advisor not otherwise prohibited under this Agreement), such Borrower or any of its Subsidiaries, and is not actually knownby it to be in breach of any other Person’s confidentiality obligations to such Borrower; provided that, in the caseof information received from FS/KKR Advisor (or any new or successor investment advisor, investment co-advisor and/or investmentsub-advisor not otherwise prohibited under this Agreement), such Borrower or any of its Subsidiaries after the Effective Date,such information shall be deemed confidential at the time of delivery unless clearly identified therein as nonconfidential untilthe first date that any Lender provides notice to the Administrative Agent and the Borrowers that such Lender does not have theright to receive any non-public information that may be provided pursuant to this Agreement, after which date such informationshall be clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Informationas provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised thesame degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

(c)          Confidentialityof COF Rates. The Administrative Agent and each Borrower agree to keep each COF Rate confidential and not to disclose it toanyone, and each Borrower further agrees to cause its Subsidiaries to not disclose any COF Rate, in each case, except for the following:(i) the Administrative Agent may disclose any COF Rate to each applicable Borrower pursuant to Section 2.12(a), (ii) the AdministrativeAgent or any Borrower may disclose any COF Rate to any of its Affiliates and any of its or their officers, directors, employees,professional advisers and auditors, if any person to whom that COF Rate is to be disclosed is informed in writing of its confidentialnature and that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinionof the disclosing party, it is not practicable to do so in the circumstances, (iii) to any person to whom information is requiredto be disclosed in connection with, and for the purposes of, any litigation, arbitration, administrative or other investigations,proceedings or disputes if the person to whom that COF Rate is to be disclosed is informed in writing of its confidential natureand that it may be price-sensitive information except that there shall be no requirement to so inform if, in the opinion of thedisclosing party, it is not practicable to do so in the circumstance, or (iv) to the extent required by applicable laws or regulationsor by any subpoena or similar legal process. The Administrative Agent and each Borrower agree to, and each Borrower shall causeeach of its Subsidiaries to, (to the extent permitted by law and regulation) (x) inform each relevant Lender of the circumstancesof any disclosure made pursuant to this Section 9.13(c) and (y) notify each relevant Lender upon becoming aware that any informationhas been disclosed in breach of this Section 9.13(c). No Default or Event of Default shall arise under Article VII(f) by reasononly of the failure of any Borrower or any of its Subsidiaries to comply with this Section 9.13(c).

 

 

 

SECTION 9.14.         USAPATRIOT Act. Each Lender hereby notifies each Borrower that pursuant to the requirementsof the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), it is required to obtain, verifyand record information that identifies such Borrower, which information includes the name and address of such Borrower and otherinformation that will allow such Lender to identify such Borrower in accordance with said Act.

 

SECTION 9.15.         Acknowledgmentand Consent to Bail-In of EEA Financial Institutions. Notwithstanding anythingto the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each partyhereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document may be subject to thewrite-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to bebound by:

 

(a) the applicationof any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payableto it by any party hereto that is an EEA Financial Institution; and

 

(b) the effectsof any Bail-In Action on any such liability, including, if applicable:

 

(i)a reduction in full or in part or cancellation of any such liability;

 

(ii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA FinancialInstitution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such sharesor other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreementor any other Loan Document; or

 

(iii)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers ofany EEA Resolution Authority.

 

 

 

SECTION 9.16.         NoFiduciary Duty. Each Lender and their Affiliates (collectively, solely for purposesof this paragraph, the “Lenders”), may have economic interests that conflict with those of each Borrower andthe other members of such Borrower’s Obligor Group, their respective stockholders and/or their respective affiliates. EachBorrower and each such other Obligor agree that nothing in this Agreement or the Loan Documents to which such Borrower or suchother Obligor is a party or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or otherimplied duty between any Lender, on the one hand, and such Borrower or such other Obligor, their respective stockholders or theirrespective affiliates, on the other. Each Borrower and each such other Obligor acknowledges and agrees that (i) the transactionscontemplated by the Loan Documents to which such Borrower or any other member of its Obligor Group is a party (including the exerciseof rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the onehand, and such Borrower and such other Obligors, on the other, and (ii) solely in connection therewith and solely with theprocess leading thereto, (x)  no Lender has assumed an advisory or fiduciary responsibility in favor of such Borrower, suchother Obligor, their respective stockholders or their respective affiliates with respect to the transactions contemplated herebyto which such Borrower or any other member of its Obligor Group is a party (or the exercise of rights or remedies with respectthereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advisesuch Borrower, such other Obligor, their respective stockholders or their respective affiliates on other matters) or any otherobligation to such Borrower or such other Obligor except the obligations expressly set forth in the Loan Documents to which suchBorrower or any other member of its Obligor Group is a party and (y) each Lender is acting hereunder solely as principaland not as the agent or fiduciary of such Borrower or such other Obligor, their respective management, stockholders or creditors,or any other Person. Each Borrower and each such other Obligor acknowledges and agrees that it has consulted its own legal andfinancial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment withrespect to the transactions contemplated by the Loan Documents to which such Borrower or any other member of its Obligor Groupis a party and the process leading thereto. Each Borrower and each such other Obligor agrees that it will not claim that any Lenderhas rendered advisory services hereunder of any nature or respect, or owes a fiduciary or similar duty to such Borrower or suchother Obligor, solely in connection with the transactions contemplated by the Loan Documents to which such Borrower or any othermember of its Obligor Group is a party or the process leading thereto.

 

SECTION 9.17.         Termination.With respect to each Borrower, promptly upon the earlier to occur of the Release Date with respect to a Borrower and the FacilityTermination Date, the Administrative Agent shall direct the Collateral Agent to, on behalf of the Administrative Agent, the CollateralAgent and the Lenders, deliver to such Borrower such termination statements and releases and other documents necessary or appropriateto evidence the release of such Borrower from this Agreement, the Loan Documents to which such Borrower or any other member ofits Obligor Group is a party, and each of the documents securing the obligations of such Borrower (and, in the case of the FacilityTermination Date, with respect to each of the foregoing, the termination thereof) hereunder as such Borrower may reasonably request,all at the sole cost and expense of such Borrower.

 

SECTION 9.18.         LimitedRecourse. The Administrative Agent, the Collateral Agent, each Issuing Bank andeach Lender hereby acknowledge and agree that any obligations of any Borrower and the other members of its Obligor Group arisingin connection herewith shall be limited in all cases to such Borrower (or its successor in a Borrower Merger), such other Obligorsand their respective assets, and none of the Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender shallseek satisfaction of any such obligation from the shareholders of such Borrower, from any other Borrower or any of its respectiveSubsidiaries (except with respect to a Borrower Merger in which such other Borrower or its Subsidiaries are the Surviving Obligors),or from the shareholders of any other Borrower or from any other Person, nor shall the Administrative Agent, the Collateral Agent,any Issuing Bank or any Lender seek satisfaction of any such obligation from any trustee, officer or director of any Borroweror any of its respective Subsidiaries. Notwithstanding anything to the contrary contained herein, the parties hereto acknowledgeand agree that the fees, expenses and charges incurred by any Borrower hereunder may be reallocated from time to time among theBorrowers on a reasonable basis (unless another basis is required by applicable law) as agreed by the applicable Borrowers andnotified to the Administrative Agent in writing (but, for clarity, no such reallocation shall relieve any applicable Borrowerfrom its obligations hereunder in respect of such fees, expenses and charges hereunder until they have been fully paid as a consequenceof such reallocation).

 

 

 

SECTION 9.19.         Designationof Additional Borrowers. Any closed-end fund that has elected to be regulated asa “business development company” within the meaning of the Investment Company Act and qualifies as a RIC, for whichFS/KKR Advisor is the investment advisor and that is not already a party under this Agreement may from time to time become a Borrowerhereunder with the consent of the existing Borrowers, the Administrative Agent, each Issuing Bank and each Lender, by executingand delivering to the Administrative Agent a Joinder Agreement, and such new Borrower shall concurrently deliver such proof ofcorporate or other action, incumbency of officers, opinions of counsel, and other documents, in each case, as is consistent withthose delivered by a Borrower pursuant to Section 4.01 upon the Effective Date or as the Administrative Agent shall have reasonablyrequested. Upon the designation of any additional Borrower, the allocations of the Subcommitments, Loans and LC Exposure amongeach of the Borrowers shall be reallocated subject to and in accordance with the terms and conditions set forth in Section 2.07(g).

 

SECTION 9.20.         BorrowerMerger. Notwithstanding that the consummation of a Borrower Merger may be undertakenin discrete steps, the order of such events shall not result in any Default or Event of Default hereunder so long as the SurvivingObligors are otherwise in compliance with the terms of this Agreement and the other Loan Documents immediately after the consummationof such Borrower Merger. Upon the consummation of a Borrower Merger,

 

(a)          theobligations of each Non-Surviving Obligor in respect of any Subcommitments, Loans, Letters of Credit, indemnities and fees andexpenses owed by it shall be deemed assumed by the Surviving Obligors in such Borrower Merger,

 

(b)          eachSubsidiary of a Non-Surviving Borrower that becomes a Subsidiary of the Surviving Borrower shall be deemed a Subsidiary Guarantorof the Surviving Borrower to the extent such Subsidiary was a Subsidiary Guarantor of the Non-Surviving Obligor immediately priorto the consummation of such Borrower Merger (and shall enter into such document, certificate and agreement, and take such actionsas required by Section 5.08(a)), and

 

(c)          each Non-Surviving Obligor shall be releasedfrom all representations, warranties and covenants made by it hereunder or under any other Loan Document and such Non-SurvivingObligor shall no longer be deemed a “Borrower”, a “Subsidiary Guarantor or an “Obligor”, as applicable,for any purpose hereunder or under the other Loan Documents and, to the extent any provision of this Agreement (other than Sections6.03(e)) or any other Loan Document would be violated or breached by such Non-Surviving Obligor (or any non-compliance by suchNon-Surviving Obligor with any such provision would result in a Default or Event of Default) as a result of the consummation ofsuch Borrower Merger, such provision shall be deemed modified with respect to such Non-Surviving Obligor to the extent necessaryto give effect to such Borrower Merger.

 

 

 

SECTION 9.21.         CertainERISA Matters. (a) Each Lender (x) represents and warrants, as of the date suchPerson became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the datesuch Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent, and each Joint Lead Arranger andtheir respective Affiliates, that at least one of the following is and will be true:

 

(i)          suchLender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans inconnection with the Loans, the Letters of Credit, the Subcommitments or the Commitments,

 

(ii)         thetransaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined byindependent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance companygeneral accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts),PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemptionfor certain transactions determined by in-house asset managers), is applicable with respect to, and covers, such Lender’sentrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Subcommitments, theCommitments and this Agreement, and the conditions for exemptive relief thereunder are and will continue to be satisfied in connectiontherewith,

 

(iii)        (A)such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VIof PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,participate in, administer and perform the Loans, the Letters of Credit, the Subcommitments, the Commitments and this Agreement,(C) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Subcommitments,the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) tothe best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to suchLender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Subcommitments,the Commitments and this Agreement, or

 

(iv)        suchother representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion,and such Lender.

 

(b)          Inaddition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has notprovided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a),such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants,from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefitof, the Administrative Agent and each Joint Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt,to or for the benefit of the Borrower or any other Loan Party, that:

 

 

 

(i)          noneof the Administrative Agent, or any Joint Lead Arranger or any of their respective Affiliates is a fiduciary with respect to theassets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent underthis Agreement, any Loan Document or any documents related to hereto or thereto),

 

(ii)         thePerson making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administrationof and performance of the Loans, the Letters of Credit, the Subcommitments, the Commitments and this Agreement is independent (withinthe meaning of 29 CFR § 2510.3-21, as amended from time to time) and is a bank, an insurance carrier, an investment adviser,a broker-dealer or other person that holds, or has under management or control, total assets of at least $50,000,000, in each caseas described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

 

(iii)        thePerson making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administrationof and performance of the Loans, the Letters of Credit, the Subcommitments, the Commitments and this Agreement is capable of evaluatinginvestment risks independently, both in general and with regard to particular transactions and investment strategies (includingin respect of the obligations),

 

(iv)        thePerson making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administrationof and performance of the Loans, the Letters of Credit, the Subcommitments, the Commitments and this Agreement is a fiduciary underERISA or the Code, or both, with respect to the Loans, the Letters of Credit, the Subcommitments, the Commitments and this Agreementand is responsible for exercising independent judgment in evaluating the transactions hereunder, and

 

(v)         nofee or other compensation is being paid directly to the Administrative Agent, or any Joint Lead Arranger or any their respectiveAffiliates for investment advice (as opposed to other services) in connection with the Loans, the Letters of Credit, the Subcommitments,the Commitments or this Agreement.

 

(c)          TheAdministrative Agent, and each Joint Lead Arranger hereby informs the Lenders that each such Person is not undertaking to provideimpartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby,and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof(i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Subcommitments, the Commitmentsand this Agreement, (ii) may recognize a gain if it extended the Loans, the Letters of Credit, the Subcommitments or the Commitmentsfor an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Commitments by such Lenderor (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise,including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agencyfees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees,deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakageor other early termination fees or fees similar to the foregoing.

 

[*Signature pages follow*]

 

 

 

IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

[Senior Secured Revolving Credit Agreement]

 

 

 

  

 

[Senior Secured Revolving Credit Agreement]

 

 

 

 

 

[Senior Secured Revolving Credit Agreement]

 

 

 

  

 

[Senior Secured Revolving Credit Agreement]

 

 

 

  

 

[Senior Secured Revolving Credit Agreement]

 

 

 

 

 

[Senior Secured Revolving Credit Agreement]