Common use of Additional Issuance/Incurrence Clause in Contracts

Additional Issuance/Incurrence. (a) At any time during the Reinvestment Period, the Co-Issuers or the Issuer, as applicable, may incur additional loans, issue and sell additional Debt of each Class (on a pro rata basis with respect to each Class or, if additional Class A-1 Debt is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 Debt) and/or additional Subordinated Notes and use the proceeds to purchase additional Collateral Obligations or as otherwise permitted under this Indenture; provided that additional Class A-1 Debt may consist of additional Class A-1 Loans and/or additional Class A-1 Notes; provided, further, that the following conditions are met: (i) the Collateral Manager and a Majority of the Subordinated Notes consents to such issuance; (ii) the aggregate principal amount of Secured Debt of any Class issued in all additional issuances shall not exceed 100% of the Aggregate Outstanding Amount of the Debt of such Class on the Closing Date (for which purpose Pari Passu Classes shall constitute a single Class); (iii) the terms of the Debt issued must be identical to the respective terms of previously issued Debt of the applicable Class (except that the interest due on additional Debt will accrue from the issue date of such additional Debt and the spread over the Benchmark, in the case of Floating Rate Debt, or the stated rate of interest, in the case of Fixed Rate Debt), as applicable, and price of such additional Debt does not have to be identical to those of the initial Debt of such Class; provided that the Interest Rate of any such additional Debt must not exceed the Interest Rate applicable to the initial Debt of that Class); (iv) the proceeds of any additional Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds, used to purchase additional Collateral Obligations, or as otherwise permitted hereunder; (v) the Overcollateralization Ratio with respect to each Class is not reduced after giving effect to such issuance; (vi) an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters shall be delivered to the Issuer to the effect that (1) such additional issuance will not cause the Issuer (A) to be subject to U.S. federal income tax with respect to its net income or subject to tax liability under Section 1446 of the Code, or (B) to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (2) any additional Class A-1 Loans, Class A-1 Notes, Class A-2 Notes, Class B Notes and Class C Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the opinion described in this clause (vi)(2) will not be required with respect to any additional Debt that bear a different securities identifier from the Debt of the same Class and are outstanding at the time of the additional issuance; (vii) prior notice of such additional issuance has been provided to the Rating Agency; and (viii) an officer’s certificate of the Issuer is delivered to the Collateral Agent (and, in respect of an additional incurrence of Class A-1 Loans, the Loan Agent) stating that the foregoing conditions (i) through (vii) have been satisfied. (b) Except in the case of a Risk Retention Issuance, (i) any additional Class A-1 Debt issued or incurred as described above will be offered to the existing holders of Class A-1 Debt in the form of Class A-1 Loans and/or Class A-1 Notes held by each such existing holder (x) first, in such amounts as are necessary to preserve each such holder’s pro rata ownership interest in the Class A-1 Debt and (y) second, in the case of any unsold additional Class A-1 Debt, without regard to each holder’s pro rata ownership interest in the Class A-1 Debt, it being understood that additional Class A-1 Debt offered to an existing holder pursuant to this subclause (y) may be subscribed for by such holder in the form of additional Class A-1 Loans or additional Class A-1 Notes, without regard to the form of such holder’s existing holdings and (ii) any additional Debt of any other Class issued as described above will, to the extent reasonably practicable, be offered first to holders of that Class in such amounts as are necessary to preserve each such holder’s ownership interest in such Class.

Additional Issuance/Incurrence. (a) At any time during the Reinvestment Period, the Co-Issuers or the Issuer, as applicable, may incur additional loans, issue and sell additional Debt of each Class (on a pro rata basis with respect to each Class or, if additional Class A-1 Debt is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 Debt) and/or additional Subordinated Notes and use the proceeds to purchase additional Collateral Obligations or as otherwise permitted under this Indenture; provided that additional Class A-1 Debt may consist of additional Class A-1 Loans and/or additional Class A-1 Notes; provided, further, that the following conditions are met: (i) the Collateral Manager and a Majority of the Subordinated Notes consents to such issuance; (ii) the aggregate principal amount amountAggregate Principal Balance of Secured Debt of any Class issued in all additional issuances shall not exceed 100% of the Aggregate Outstanding Amount of the Debt of such Class on the Closing ClosingRefinancing Date (for which purpose Pari Passu Classes shall constitute a single Class); (iii) the terms of the Debt issued must be identical to the respective terms of previously issued Debt of the applicable Class (except that the interest due on additional Debt will accrue from the issue date of such additional Debt and the spread over the Benchmark, in the case of Floating Rate Debt, or the stated rate of interest, in the case of Fixed Rate Debt), as applicable, and price of such additional Debt does not have to be identical to those of the initial Debt of such Class; provided that the Interest Rate of any such additional Debt must not exceed the Interest Rate applicable to the initial Debt of that Class); (iv) the proceeds of any additional Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds, used to purchase additional Collateral Obligations, or as otherwise permitted hereunder; (v) the Overcollateralization Ratio with respect to each Class is not reduced after giving effect to such issuance; (vi) an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters shall be delivered to the Issuer to the effect that (1) such additional issuance will not cause the Issuer (A) to be subject to U.S. federal income tax with respect to its net income or subject to tax liability under Section 1446 of the Code, or (B) to be treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (2) any additional Class A-1 Loans, Class A-1 Notes, Class A-2 Notes, Class B Notes and Class C Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the opinion described in this clause (vi)(2) will not be required with respect to any additional Debt that bear a different securities identifier from the Debt of the same Class and are outstanding at the time of the additional issuance; (vii) prior notice of such additional issuance has been provided to the Rating Agency; and (viii) an officer’s certificate of the Issuer is delivered to the Collateral Agent (and, in respect of an additional incurrence of Class A-1 Loans, the Loan Agent) stating that the foregoing conditions (i) through (vii) have been satisfied. (b) Except in the case of a Risk Retention Issuance, (i) any additional Class A-1 Debt issued or incurred as described above will be offered to the existing holders of Class A-1 Debt in the form of Class A-1 Loans and/or Class A-1 Notes held by each such existing holder (x) first, in such amounts as are necessary to preserve each such holder’s pro rata ownership interest in the Class A-1 Debt and (y) second, in the case of any unsold additional Class A-1 Debt, without regard to each holder’s pro rata ownership interest in the Class A-1 Debt, it being understood that additional Class A-1 Debt offered to an existing holder pursuant to this subclause (y) may be subscribed for by such holder in the form of additional Class A-1 Loans or additional Class A-1 Notes, without regard to the form of such holder’s existing holdings and (ii) any additional Debt of any other Class issued as described above will, to the extent reasonably practicable, be offered first to holders of that Class in such amounts as are necessary to preserve each such holder’s ownership interest in such Class.