Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and sell (i) additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 Notes) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: (i) (A) each of the Collateral Manager and the Retention Holder consents to such issuance, (B) if additional Class A-1 Notes are being issued, a Majority of the Class A-1 Notes consent to such issuance and (C) such issuance is approved by a Majority of the Subordinated Notes; provided that no consent pursuant to this clause (i)(B) or (i)(C) shall be required with respect to any additional issuance if (x) such additional issuance is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer or such sponsor’s majority- owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”)
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Sources: Indenture and Security Agreement (Nuveen Churchill Private Capital Income Fund)
Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and sell (i) additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 A Notes are is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 A Notes) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities debt of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager Manager, the EU/UK Retention Holder and the U.S. Retention Holder Sponsor consents to such issuance, (BB)(1) if the Initial Secured Note Investor Condition is satisfied, solely with respect to an additional issuance of Secured Debt, a Majority of the Controlling Class A-1 Notes are being issuedconsents to such issuance or (2) otherwise, solely with respect to an additional issuance of Class A Notes, a Majority of the Class A-1 A Notes consent consents to such issuance and (C) such issuance is approved by a Majority of the Subordinated Notes; provided that no consent pursuant to this clause (i)(BA), (B) or (i)(CC) shall be required with respect to of any additional issuance if (x) such additional issuance is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager Manager, the U.S. Retention Sponsor or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer Issuer, the U.S. Retention Sponsor or such sponsor’s majority- majority-owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”);
(ii) except in connection with a Risk Retention Issuance, the aggregate principal amount of 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;
(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 Secured Debt will accrue from the issue date of such additional Secured Debt and the spread over the Reference Rate and the price of such additional Secured Debt do not have to be identical to those of the initial Secured Debt of that Class; provided that the Interest Rate on such additional Secured Debt must not exceed the Interest Rate applicable to the initial Secured Debt of that Class) and such additional issuance shall not be considered a Refinancing under this Indenture;
(iv) the proceeds of any additional Secured Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds and the proceeds of any additional Subordinated Notes and/or Junior Mezzanine Notes (net of fees and expenses incurred in connection with such issuance and any concurrent Refinancing or Re-Pricing) will be treated as Principal Proceeds, and in each case where so treated, used to purchase additional Collateral Obligations or as otherwise permitted hereunder, or, solely with respect to the proceeds of any Junior Mezzanine Notes or any additional Subordinated Notes, be treated as Interest Proceeds (if so designated by the Collateral Manager as permitted hereunder) or applied in accordance with any other Permitted Use;
(v) except in connection with a Risk Retention Issuance, after giving effect to such issuance, the Overcollateralization Ratio Test with respect to each Class of Debt is maintained or improved;
(vi) written advice from Dechert LLP or Paul Hastings LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that (1) such additional issuance will not cause the Issuer to be subject to U.S. federal income tax on a net basis (including any withholding tax liability under Section 1446 of the Code) nor cause the Issuer 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 Notes and Class B Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the written advice or opinion of tax counsel described in clause (vi)(2) will not be required with respect to any additional Notes that bear a different securities identifier from the Notes of the same Class that are Outstanding at the time of the additional issuance;
(vii) such issuance is accomplished in a manner that allows the Independent accountants of the Issuer to accurately provide the tax information relating to original issue discount required to be provided to the holders of Secured Debt (including the additional Debt that constitutes Secured Debt);
(viii) (A) prior notice of such additional issuance has been provided by the Issuer to the Rating Agencies and (B) except in connection with an additional issuance of Subordinated Notes, the Rating Agency Condition is satisfied;
(ix) the Depositor and the EU/UK Retention Holder (via its 100% ownership of all of the equity interests in the Depositor) commits to acquire such additional Subordinated Notes as may be required to satisfy the Risk Retention Rules following the additional issuance;
(x) except in connection with a Risk Retention Issuance, no Event of Default shall have occurred and be continuing;
(xi) as determined by the Issuer, the U.S. Risk Retention Rules will be satisfied after giving effect to such additional issuance; and
(xii) an Officer’s certificate of the Issuer is delivered to the Trustee stating that the foregoing conditions (i) through (xii) have been satisfied.
(b) Unless such additional issuance is a Risk Retention Issuance, any additional Debt of any 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 their pro rata holdings of Debt of such Class.
(c) Notwithstanding anything set forth herein to the contrary, the Issuer may also issue additional debt in connection with a Refinancing of all Classes of Secured Debt, which issuance will not be subject to the conditions of this Section 2.13 but will be subject only to the requirements described under Section 9.2 hereof.
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Additional Issuance. (a) At any time during within the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or or Junior Mezzanine Notes, at any time), the Issuer may may, pursuant to a supplemental indenture in accordance with Section 8.1 hereof, issue and sell or incur, as applicable, (i) additional Additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are not being issued, on a pro rata basis for all Classes that are is subordinate to the Class A-1 NotesDebt, except that a larger proportion of Subordinated Notes may be issued) and/or (ii) additional Subordinated Notes and/or additional debt notes of any one or more new classes of Debt notes that are fully subordinated to the existing Secured Debt Notes (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstandingoutstanding) (such additional notes described in clause (ii)notes, the “"Junior Mezzanine Notes”") and use the proceeds to purchase additional Collateral Obligations or as otherwise permitted under this Indenture (including Permitted Uses); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager and the U.S. Retention Holder consents Provider each consent to such issuanceissuance or incurrence and such issuance or incurrence is consented to by a Supermajority of the Subordinated Notes and, (B) if in the case of an additional Class A-1 Notes are being issued, a Majority issuance of the Class A-1 Notes consent to such issuance and (C) Debt, such issuance is approved by a Majority of the Class A-1 Debt;
(ii) the aggregate principal amount of Additional Debt of any Class issued or incurred in all additional issuances and incurrences shall not exceed 100% of the respective original outstanding principal amount of the Debt of such Class;
(iii) the terms of the Debt issued or incurred must be identical to the respective terms of previously issued Debt of the applicable Class (except that the interest due on additional Secured Debt will accrue from the issue date of such additional Secured Debt and that the interest rate and price of such Debt may be lower (but not higher) than those of the initial Debt of that Class) and such additional issuance or incurrence shall not be considered a Refinancing hereunder;
(iv) unless only additional Subordinated NotesNotes or Junior Mezzanine Notes are being issued, the S&P Rating Condition shall have been satisfied;
(v) the net proceeds of the issuance of any additional Subordinated Notes shall be deposited in the Supplemental Reserve Account and employed in connection with any Permitted Use; provided that no this subclause (v) shall only apply if such additional Subordinated Notes are the only Notes included in such additional issuance;
(vi) the proceeds of any Additional Debt (net of fees and expenses incurred in connection with such issuance) shall be treated as Principal Proceeds, used to purchase additional Collateral Obligations or, solely in the case of (x) additional Subordinated Notes in excess of the amount of additional Subordinated Notes that would be on a pro rata basis with respect to each Class of Debt that is subordinate to the Class A-1 Debt and (y) Junior Mezzanine Notes other than additional Subordinated Notes, as another Permitted Use;
(vii) to the extent such issuance or incurrence would be of additional Secured Debt (other than in connection with a Risk Retention Issuance), the prior written consent pursuant of a Majority of the Controlling Class has been obtained;
(viii) the Overcollateralization Ratio with respect to each Class of Debt shall not be reduced after giving effect to such issuance or incurrence;
(ix) written advice from Dechert LLP or Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Issuer (with a copy to the Collateral Trustee), in form and substance satisfactory to the Collateral Manager, to the effect that (A) such additional issuance or incurrence will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or otherwise subject to U.S. federal income tax on a net basis (including any tax liability under Section 1446 of the Code), and (B) any additional Secured Debt will be characterized as indebtedness for U.S. federal income tax purposes; provided, however, that the advice or opinion described in this clause (i)(BB) or (i)(C) shall will not be required with respect to any additional issuance Secured Debt that bears a different CUSIP number (or equivalent identifier) from the Secured Debt of the same Class that is outstanding at the time of the additional issuance; provided further that if an opinion to the effect that any additional Secured Debt will be characterized as indebtedness for U.S. federal income tax purposes is not delivered, such additional Secured Notes will be subject to tax-related transfer restrictions substantially similar to those applicable to the Subordinated Notes;
(x) such additional issuance or incurrence is effectedaccomplished in a manner that allows the independent accountants of the Issuer to accurately provide the tax information relating to original issue discount that this Indenture requires to be provided to the Holders of Secured Debt (including the Additional Debt); and
(xi) an Officer's certificate of the Issuer shall be delivered to the Collateral Trustee (and, in the sole discretion case of the Collateral Manageradditional incurrence of Class A-1L-1 Loans, in order to permit Class A-1L-2 Loans, Class A-2L Loans or Class B-▇ Loans, the Collateral Manager or Loan Agent) stating that the sponsor conditions of this Section 2.13(a) have been satisfied.
(b) The terms and conditions of the Issuer under Additional Debt of each Class issued or incurred pursuant to this Section 2.13 shall be identical to those of the Risk Retention Rules initial Debt of that Class (except that the interest due on the Additional Debt that is Secured Debt shall accrue from the issue date of such Additional Debt and the interest rate and price of such Additional Debt may be lower (but not higher) than those of the initial Debt of that Class). Interest on the Additional Debt that is Secured Debt shall be payable commencing on the first Payment Date following the issue date of such Additional Debt (if issued or incurred prior to comply the applicable Record Date). The Additional Debt shall rank pari passu in all respects with the Risk Retention Rules and initial Debt of that Class.
(yc) such additional debt is held by the sponsor of the Issuer or such sponsor’s majority- owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, Except with respect to a “Risk Retention Issuance”), any Additional Debt of each Class issued pursuant to this Section 2.13 shall, to the extent reasonably practicable, be offered first to Holders of that Class in such amounts as are necessary to preserve their pro rata holdings of Debt of such Class.
(d) In addition, Additional Debt may be issued or incurred in connection with any Refinancing of the Secured Debt in whole without regard to the restrictions in this Section 2.13.
(e) For the avoidance of doubt, at any time the Holders of the Subordinated Notes may make additional capital contributions to the Issuer.
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Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or (i) an issuance solely of additional Subordinated Notes and/or Junior Mezzanine NotesNotes or (ii) the issuance of additional Notes to comply with the U.S. Risk Retention Rules, at any time)) and subject to the conditions set forth in Section 3.2, the Issuer Co-Issuers, with the consent of the Collateral Manager, may issue and sell (i) additional Debt notes of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 Notes) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt notes that are fully subordinated to the existing Secured Debt Notes (or to the most junior class of securities of the Issuer Junior Class (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt Notes and the Subordinated Notes is then Outstandingoutstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”) and/or additional notes of one or more Class of Secured Notes or the Subordinated Notes and use the net proceeds to purchase additional Collateral Obligations or as otherwise permitted under this Indenture (including, with respect to the issuance of Subordinated Notes or Junior Mezzanine Notes, to apply proceeds of such issuance as Principal Proceeds or Interest Proceeds in accordance with clause (vii) below); provided provided, that the following conditions are met: (i) (Ax) each of the Collateral Manager and the Retention Holder consents to such issuance, and (By) unless the Collateral Manager has certified that the aggregate principal amount of each Class of additional notes issued is equal to the minimum amount required to comply with the U.S. Risk Retention Rules, such issuance is consented to by each Hedge Counterparty, if any; (ii) in the case of additional Class A-1 Notes are being issuedA Notes, unless the Collateral Manager has certified that the aggregate principal amount of each Class of additional notes issued is equal to the minimum amount required to comply with the U.S. Risk Retention Rules, a Majority of the Class A-1 A Notes consent consents to such issuance and issuance; (Ciii) in the case of additional notes of any one or more existing Classes (other than Subordinated Notes or Junior Mezzanine Notes), the aggregate principal amount of Notes of such issuance is approved by a Majority Class issued in all additional issuances must not exceed 100% of the Subordinated Notesrespective original Aggregate Outstanding Amount of the Notes of such Class; provided (iv) in the case of additional notes of any one or more existing Classes, the terms of the notes issued must be identical to the respective terms of previously issued Notes of the applicable Class (except that no consent pursuant to this clause (i)(B) or (i)(C) shall be required with respect to any the interest due on additional issuance if (x) notes will accrue from the issue date of such additional issuance is effectednotes and the spread over the Benchmark, in the sole discretion case of additional Floating Rate Notes, or the fixed rate of interest, in the case of additional Fixed Rate Notes, of such notes does not have to be identical to that of the Collateral Managerinitial Notes of that Class; provided, that the spread over the Benchmark, in order to permit the Collateral Manager case of additional Floating Rate Notes, or the sponsor fixed rate of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer or such sponsor’s majority- owned affiliate (as each such term is defined interest, in the U.S. Risk Retention Rulescase of additional Fixed Rate Notes, on such notes must not exceed the spread over the Benchmark or the fixed rate of interest, respectively, applicable to the initial Secured Notes of such Class); (v) (in the case of additional notes of any one or more existing Classes, unless only additional Subordinated Notes or Junior Mezzanine Notes are being issued, additional notes of all Classes must be issued and such issuanceissuance of additional notes must be proportional across all Classes, a “Risk Retention Issuance”)provided that the principal amount of Junior Mezzanine Notes and/or Subordinated Notes issued in any such issuance may exceed the proportion otherwise applicable to the Junior Mezzanine Notes and/or Subordinated Notes;
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Additional Issuance. (a) At any time during within the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or or Junior Mezzanine Notes, at any time), the Issuer may may, pursuant to a supplemental indenture in accordance with Section 8.1 hereof, issue and sell or incur, as applicable, (i) additional Additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are not being issued, on a pro rata basis for all Classes that are is subordinate to the Class A-1 NotesDebt, except that a larger proportion of Subordinated Notes may be issued) and/or (ii) additional Subordinated Notes and/or additional debt notes of any one or more new classes of Debt notes that are fully subordinated to the existing Secured Debt Notes (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstandingoutstanding) (such additional notes described in clause (ii)notes, the “"Junior Mezzanine Notes”") and use the proceeds to purchase additional Collateral Obligations or as otherwise permitted under this Indenture (including Permitted Uses); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager and the U.S. Retention Holder consents Provider each consent to such issuanceissuance or incurrence and such issuance or incurrence is consented to by a Supermajority of the Subordinated Notes and, (B) if in the case of an additional Class A-1 Notes are being issued, a Majority issuance of the Class A-1 Notes consent to such issuance and (C) Debt, such issuance is approved by a Majority of the Class A-1 Debt;
(ii) the aggregate principal amount of Additional Debt of any Class issued or incurred in all additional issuances and incurrences shall not exceed 100% of the respective original outstanding principal amount of the Debt of such Class;
(iii) the terms of the Debt issued or incurred must be identical to the respective terms of previously issued Debt of the applicable Class (except that the interest due on additional Secured Debt will accrue from the issue date of such additional Secured Debt and that the interest rate and price of such Debt may be lower (but not higher) than those of the initial Debt of that Class) and such additional issuance or incurrence shall not be considered a Refinancing hereunder;
(iv) unless only additional Subordinated NotesNotes or Junior Mezzanine Notes are being issued, the S&P Rating Condition shall have been satisfied;
(v) the net proceeds of the issuance of any additional Subordinated Notes shall be deposited in the Supplemental Reserve Account and employed in connection with any Permitted Use; provided that no this subclause (v) shall only apply if such additional Subordinated Notes are the only Notes included in such additional issuance;
(vi) the proceeds of any Additional Debt (net of fees and expenses incurred in connection with such issuance) shall be treated as Principal Proceeds, used to purchase additional Collateral Obligations or, solely in the case of (x) additional Subordinated Notes in excess of the amount of additional Subordinated Notes that would be on a pro rata basis with respect to each Class of Debt that is subordinate to the Class A-1 Debt and (y) Junior Mezzanine Notes other than additional Subordinated Notes, as another Permitted Use;
(vii) to the extent such issuance or incurrence would be of additional Secured Debt (other than in connection with a Risk Retention Issuance), the prior written consent pursuant of a Majority of the Controlling Class has been obtained;
(viii) the Overcollateralization Ratio with respect to each Class of Debt shall not be reduced after giving effect to such issuance or incurrence;
(ix) written advice from Dechert LLP or Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP or an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Issuer (with a copy to the Collateral Trustee), in form and substance satisfactory to the Collateral Manager, to the effect that (A) such additional issuance or incurrence will not result in the Issuer being treated as a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or otherwise subject to U.S. federal income tax on a net basis (including any tax liability under Section 1446 of the Code), and (B) any additional Secured Debt will be characterized as indebtedness for U.S. federal income tax purposes; provided, however, that the advice or opinion described in this clause (i)(BB) or (i)(C) shall will not be required with respect to any additional issuance Secured Debt that bears a different CUSIP number (or equivalent identifier) from the Secured Debt of the same Class that is outstanding at the time of the additional issuance; provided further that if an opinion to the effect that any additional Secured Debt will be characterized as indebtedness for U.S. federal income tax purposes is not delivered, such additional Secured Notes will be subject to tax-related transfer restrictions substantially similar to those applicable to the Subordinated Notes;
(x) such additional issuance or incurrence is effectedaccomplished in a manner that allows the independent accountants of the Issuer to accurately provide the tax information relating to original issue discount that this Indenture requires to be provided to the Holders of Secured Debt (including the Additional Debt); and
(xi) an Officer's certificate of the Issuer shall be delivered to the Collateral Trustee (and, in the sole discretion case of the Collateral Manageradditional incurrence of Class A-1L-1 Loans, in order to permit Class A-1L-2 Loans, Class A-2L Loans or Class B-▇ Loans, the Collateral Manager or Loan Agent) stating that the sponsor conditions of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (ythis Section 2.13(a) such additional debt is held by the sponsor of the Issuer or such sponsor’s majority- owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”)have been satisfied.
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Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and sell (i) additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 A-1-R Notes are not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 A-1-R Notes) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager Manager, the EU/UK Retention Holder and the U.S. Retention Holder Sponsor consents to such issuance, (BB)(1) if the Initial Secured Note Investor Condition is satisfied, solely with respect to an additional issuance of Secured Debt, a Majority of the Controlling Class A-1 Notes are being issuedconsents to such issuance or (2) otherwise, solely with respect to an additional issuance of Class A-1-R Notes, a Majority of the Class A-1 A-1-R Notes consent consents to such issuance and (C) such issuance is approved by a Majority of the Subordinated Notes; provided that no consent pursuant to this clause (i)(BA), (B) or (i)(CC) shall be required with respect to of any additional issuance if (x) such additional issuance is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager Manager, the U.S. Retention Sponsor or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer Issuer, the U.S. Retention Sponsor or such sponsor’s majority- majority-owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”);
(ii) except in connection with a Risk Retention Issuance, the aggregate principal amount of 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 Refinancing Date;
(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 Secured Debt will accrue from the issue date of such additional Secured Debt and the spread over the Reference Rate and the price of such additional Secured Debt do not have to be identical to those of the initial Secured Debt of that Class; provided that the Interest Rate on such additional Secured Debt must not exceed the Interest Rate applicable to the initial Secured Debt of that Class unless the S&P Rating Condition is satisfied);
(iv) the proceeds of any additional Secured Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds and the proceeds of any additional Subordinated Notes and/or Junior Mezzanine Notes (net of fees and expenses incurred in connection with such issuance and any concurrent Refinancing or Re-Pricing) will be treated as Principal Proceeds, and in each case where so treated, used to purchase additional Collateral Obligations or as otherwise permitted hereunder, or, solely with respect to the proceeds of any Junior Mezzanine Notes or any additional Subordinated Notes, be treated as Interest Proceeds (if so designated by the Collateral Manager as permitted hereunder) or applied in accordance with any other Permitted Use;
(v) except in connection with a Risk Retention Issuance, after giving effect to such issuance, the Overcollateralization Ratio Test with respect to each Class of Debt is maintained or improved;
(vi) written advice from Dechert LLP or Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that (1) such additional issuance will not cause the Issuer to be subject to U.S. federal income tax on a net basis (including any withholding tax liability under Section 1446 of the Code) nor cause the Issuer 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 Notes, Class A-2 Notes and Class B Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the opinion of tax counsel described in clause (vi)(2) will not be required with respect to any additional Notes that bear a different securities identifier from the Notes of the same Class that are Outstanding at the time of the additional issuance;
(vii) such issuance is accomplished in a manner that allows the Independent accountants of the Issuer to accurately provide the tax information relating to original issue discount required to be provided to the holders of Secured Debt (including the additional Debt that constitutes Secured Debt);
(viii) prior notice of such additional issuance has been provided by the Issuer to the Rating Agency;
(ix) the Depositor and the EU/UK Retention Holder (via its 100% ownership of all of the equity interests in the Depositor) commits to acquire such additional Subordinated Notes as may be required to satisfy the Risk Retention Rules following the additional issuance; and
(x) an Officer’s certificate of the Issuer is delivered to the Trustee stating that the foregoing conditions (i) through (ix) have been satisfied.
(b) Unless such additional issuance is a Risk Retention Issuance, any additional Debt of any 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 their pro rata holdings of Debt of such Class.
(c) Notwithstanding anything set forth herein to the contrary, the Issuer may also issue additional debt in connection with a Refinancing of all Classes of Secured Debt, which issuance will not be subject to the conditions of this Section 2.13 but will be subject only to the requirements described under Section 9.2 hereof.
Appears in 1 contract
Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and issue, sell or incur, as applicable, (i) additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are A Debt is not being issuedissued or incurred, as applicable, on a pro rata basis for all Classes that are subordinate to the Class A-1 NotesA Debt) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities debt issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager Manager, the EU/UK Retention Holder and the U.S. Retention Holder Sponsor consents to such issuanceissuance or incurrence, as applicable, (BB)(1) if the Initial Secured Note Investor Condition is satisfied, solely with respect to an additional issuance or incurrence, as applicable, of Secured Debt, a Majority of the Controlling Class A-1 Notes are being issuedconsents to such issuance or incurrence, as applicable, or (2) otherwise, solely with respect to an additional issuance or incurrence, as applicable of Class A Debt, a Majority of the Class A-1 Notes consent A Debt consents to such issuance or incurrence, as applicable and (C) such issuance or incurrence, as applicable, is approved by a Majority of the Subordinated Notes; provided that no consent pursuant to this clause (i)(BA), (B) or (i)(CC) shall be required with respect to of any additional issuance or incurrence, as applicable, if (x) such additional issuance or incurrence, as applicable, is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager Manager, the U.S. Retention Sponsor or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer Issuer, the U.S. Retention Sponsor or such sponsor’s majority- majority-owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”);
(ii) except in connection with a Risk Retention Issuance, the aggregate principal amount of Debt of any Class issued in all additional issuances or incurrences, as applicable, shall not exceed 100% of the Aggregate Outstanding Amount of the Debt of such Class on the Closing Date;
(iii) the terms of the Debt issued or incurred, as applicable, must be identical to the respective terms of previously issued Debt of the applicable Class (except that the interest due on additional Secured Debt will accrue from the issue date or incurrence date, as applicable, of such additional Secured Debt and the spread over the Reference Rate and the price of such additional Secured Debt do not have to be identical to those of the initial Secured Debt of that Class; provided that the Interest Rate on such additional Secured Debt must not exceed the Interest Rate applicable to the initial Secured Debt of that Class unless the S&P Rating Condition is satisfied);
(iv) the proceeds of any additional Secured Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds and the proceeds of any additional Subordinated Notes and/or Junior Mezzanine Notes (net of fees and expenses incurred in connection with such issuance or incurrence, as applicable, and any concurrent Refinancing or Re-Pricing) will be treated as Principal Proceeds, and in each case where so treated, used to purchase additional Collateral Obligations or as otherwise permitted hereunder, or, solely with respect to the proceeds of any Junior Mezzanine Notes or any additional Subordinated Notes, be treated as Interest Proceeds (if so designated by the Collateral Manager as permitted hereunder) or applied in accordance with any other Permitted Use;
(v) except in connection with a Risk Retention Issuance, after giving effect to such issuance or incurrence, as applicable, the Overcollateralization Ratio Test with respect to each Class of Debt is maintained or improved;
(vi) written advice from Dechert LLP or Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Collateral Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that (1) such additional issuance will not cause the Issuer to be subject to U.S. federal income tax on a net basis (including any withholding tax liability under Section 1446 of the Code) nor cause the Issuer 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 Debt and Class B Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the opinion of tax counsel described in clause (vi)(2) will not be required with respect to any additional Notes that bear a different securities identifier from the Notes of the same Class that are Outstanding at the time of the additional issuance;
(vii) such issuance or incurrence, as applicable is accomplished in a manner that allows the Independent accountants of the Issuer to accurately provide the tax information relating to original issue discount required to be provided to the holders of Secured Debt (including the additional Debt that constitutes Secured Debt);
(viii) prior notice of such additional issuance or incurrence, as applicable, has been provided by the Issuer to the Rating Agency;
(ix) the Depositor and the EU/UK Retention Holder (via its 100% ownership of all of the equity interests in the Depositor) commits to acquire such additional Subordinated Notes as may be required to satisfy the Risk Retention Rules following the additional issuance; and
(x) an Officer’s certificate of the Issuer is delivered to the Collateral Trustee (and, to the extent such additional Debt includes Class A Loans, the Loan Agent) stating that the foregoing conditions (i) through (ix) have been satisfied.
(b) Unless such additional issuance or incurrence is a Risk Retention Issuance, any additional Debt of any 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 their pro rata holdings of Debt of such Class.
(c) Notwithstanding anything set forth herein to the contrary, the Issuer may also issue additional debt in connection with a Refinancing of all Classes of Secured Debt, which issuance will not be subject to the conditions of this Section 2.13 but will be subject only to the requirements described under Section 9.2 hereof.
(d) In connection with an issuance of additional Debt, additional Class A Loans may be incurred (in loan form only) and will be borrowed pursuant to the terms of the Credit Agreement.
Appears in 1 contract
Sources: Indenture and Security Agreement (HPS Corporate Lending Fund)
Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and sell (i) additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 A Notes are is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 A Notes) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager Manager, the EU/UK Retention Holder and the U.S. Retention Holder Sponsor consents to such issuance, (B) if solely with respect to an additional issuance of Class A-1 Notes are being issuedA Notes, a Majority of the Class A-1 A Notes consent consents to such issuance and (C) such issuance is approved by a Majority of the Subordinated Notes; provided that no consent pursuant to this clause (i)(BA), (B) or (i)(CC) shall be required with respect to of any additional issuance if (x) such additional issuance is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager Manager, the U.S. Retention Sponsor or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer Issuer, the U.S. Retention Sponsor or such sponsor’s majority- majority-owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”)
(ii) except in connection with a Risk Retention Issuance, the aggregate principal amount of 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;
(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 Secured Debt will accrue from the issue date of such additional Secured Debt and the spread over the Reference Rate and the price of such additional Secured Debt do not have to be identical to those of the initial Secured Debt of that Class; provided that the Interest Rate on such additional Secured Debt must not exceed the Interest Rate applicable to the initial Secured Debt of that Class unless the S&P Rating Condition is satisfied);
(iv) the proceeds of any additional Secured Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds and the proceeds of any additional Subordinated Notes and/or Junior Mezzanine Notes (net of fees and expenses incurred in connection with such issuance and any concurrent Refinancing or Re-Pricing) will be treated as Principal Proceeds, and in each case where so treated, used to purchase additional Collateral Obligations or as otherwise permitted hereunder, or, solely with respect to the proceeds of any Junior Mezzanine Notes or any additional Subordinated Notes, be treated as Interest Proceeds (if so designated by the Collateral Manager as permitted hereunder) or applied in accordance with any other Permitted Use;
(v) except in connection with a Risk Retention Issuance, after giving effect to such issuance, the Overcollateralization Ratio Test with respect to each Class of Debt is maintained or improved;
(vi) written advice from Dechert LLP or Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that (1) such additional issuance will not cause the Issuer to be subject to U.S. federal income tax on a net basis (including any withholding tax liability under Section 1446 of the Code) nor cause the Issuer 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 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 of tax counsel described in clause (vi)(2) will not be required with respect to any additional Notes that bear a different securities identifier from the Notes of the same Class that are Outstanding at the time of the additional issuance;
(vii) such issuance is accomplished in a manner that allows the Independent accountants of the Issuer to accurately provide the tax information relating to original issue discount required to be provided to the holders of Secured Debt (including the additional Debt that constitutes Secured Debt);
(viii) prior notice of such additional issuance has been provided by the Issuer to the Rating Agency;
(ix) the Depositor and the EU/UK Retention Holder (via its 100% ownership of all of the equity interests in the Depositor) commits to acquire such additional Subordinated Notes as may be required to satisfy the Risk Retention Rules following the additional issuance; and
(x) an Officer’s certificate of the Issuer is delivered to the Trustee stating that the foregoing conditions (i) through (ix) have been satisfied.
(b) Unless such additional issuance is a Risk Retention Issuance, any additional Debt of any 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 their pro rata holdings of Debt of such Class.
(c) Notwithstanding anything set forth herein to the contrary, the Issuer may also issue additional debt in connection with a Refinancing of all Classes of Secured Debt, which issuance will not be subject to the conditions of this Section 2.13 but will be subject only to the requirements described under Section 9.2 hereof.
Appears in 1 contract
Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and sell (i) additional Debt of each Class other than the Class X Notes (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are A Debt is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 NotesA Debt) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: (i) (A) each of the Collateral Manager and the Retention Holder consents to such issuance, (B) if additional Class A-1 Notes are being issued, a Majority of the Class A-1 Notes consent to such issuance and (C) such issuance is approved by a Majority of the Subordinated NotesNotes and (C) a Majority of the Class A-1 Notes consents to such issuance; provided that no consent pursuant to this clause (i)(BA) or (i)(CB) shall be required with respect to ofto any additional issuance if (x) such additional issuance is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer or such sponsor’s majority- majority-owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”)
(b) Unless such additional issuance is a Risk Retention Issuance, any additional DebtNotes of any 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 their pro rata holdings of Debt of such Class.
(d) Additional Debt in the form of Class A-L LoanLoans will be incurred under the Class A-L Loan Agreement and not issued under this Indenture.
Appears in 1 contract
Sources: Supplemental Indenture (Nuveen Churchill Direct Lending Corp.)
Additional Issuance. (a) At any time during the Reinvestment Period (or, in the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any time), the Issuer may issue and sell (i) additional Debt of each Class (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 A Notes are is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 A Notes) and/or (ii) additional Subordinated Notes and/or additional debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Notes) issued pursuant to this Indenture, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii), the “Junior Mezzanine Notes”); provided that the following conditions are met: :
(i) (A) each of the Collateral Manager Manager, the EU/UK Retention Holder and the U.S. Retention Holder Sponsor consents to such issuance, (BB)(1) if the Initial Secured Note Investor Condition is satisfied, solely with respect to an additional issuance of Secured Debt, a Majority of the Controlling Class A-1 Notes are being issuedconsents to such issuance or (2) otherwise, solely with respect to an additional issuance of Class A Notes, a Majority of the Class A-1 A Notes consent consents to such issuance and (C) such issuance is approved by a Majority of the Subordinated Notes; provided that no consent pursuant to this clause (i)(BA), (B) or (i)(CC) shall be required with respect to of any additional issuance if (x) such additional issuance is effected, in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager Manager, the U.S. Retention Sponsor or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules and (y) such additional debt is held by the sponsor of the Issuer Issuer, the U.S. Retention Sponsor or such sponsor’s majority- majority-owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”);
(ii) except in connection with a Risk Retention Issuance, the aggregate principal amount of 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;
(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 Secured Debt will accrue from the issue date of such additional Secured Debt and the spread over the Reference Rate and the price of such additional Secured Debt do not have to be identical to those of the initial Secured Debt of that Class; provided that the Interest Rate on such additional Secured Debt must not exceed the Interest Rate applicable to the initial Secured Debt of that Class unless the S&P Rating Condition is satisfied);
(iv) the proceeds of any additional Secured Debt (net of fees and expenses incurred in connection with such issuance) will be treated as Principal Proceeds and the proceeds of any additional Subordinated Notes and/or Junior Mezzanine Notes (net of fees and expenses incurred in connection with such issuance and any concurrent Refinancing or Re-Pricing) will be treated as Principal Proceeds, and in each case where so treated, used to purchase additional Collateral Obligations or as otherwise permitted hereunder, or, solely with respect to the proceeds of any Junior Mezzanine Notes or any additional Subordinated Notes, be treated as Interest Proceeds (if so designated by the Collateral Manager as permitted hereunder) or applied in accordance with any other Permitted Use;
(v) except in connection with a Risk Retention Issuance, after giving effect to such issuance, the Overcollateralization Ratio Test with respect to each Class of Debt is maintained or improved;
(vi) written advice from Dechert LLP or an opinion of other tax counsel of nationally recognized standing in the United States experienced in such matters will be delivered to the Trustee, in form and substance satisfactory to the Collateral Manager, to the effect that (1) such additional issuance will not cause the Issuer to be subject to U.S. federal income tax on a net basis (including any withholding tax liability under Section 1446 of the Code) nor cause the Issuer 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 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 of tax counsel described in clause (vi)(2) will not be required with respect to any additional Notes that bear a different securities identifier from the Notes of the same Class that are Outstanding at the time of the additional issuance;
(vii) such issuance is accomplished in a manner that allows the Independent accountants of the Issuer to accurately provide the tax information relating to original issue discount required to be provided to the holders of Secured Debt (including the additional Debt that constitutes Secured Debt);
(viii) prior notice of such additional issuance has been provided by the Issuer to the Rating Agency;
(ix) the Depositor and the EU/UK Retention Holder (via its 100% ownership of all of the equity interests in the Depositor) commits to acquire such additional Subordinated Notes as may be required to satisfy the Risk Retention Rules following the additional issuance; and
(x) an Officer’s certificate of the Issuer is delivered to the Trustee stating that the foregoing conditions (i) through (ix) have been satisfied.
(b) Unless such additional issuance is a Risk Retention Issuance, any additional Debt of any 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 their pro rata holdings of Debt of such Class.
(c) Notwithstanding anything set forth herein to the contrary, the Issuer may also issue additional debt in connection with a Refinancing of all Classes of Secured Debt, which issuance will not be subject to the conditions of this Section 2.13 but will be subject only to the requirements described under Section 9.2 hereof.
Appears in 1 contract
Additional Issuance. (a) At any time during the Reinvestment Period (orand, in solely with respect to additional Preferred Shares, after the case of a Risk Retention Issuance or an issuance solely of additional Subordinated Notes and/or Junior Mezzanine Notes, at any timeReinvestment Period), the Issuer Co-Issuers or the Issuer, as applicable, may incur additional loans, issue and sell (i) additional Secured Debt of each Class and/or issue and sell additional Preferred Shares (on a pro rata basis with respect to each Class of Debt or, if additional Class A-1 Notes are Debt is not being issued, on a pro rata basis for all Classes that are subordinate to the Class A-1 NotesDebt) and/or (iiexcept a greater proportion of Preferred Shares may be issued) and use the proceeds to purchase additional Subordinated Notes 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 debt of any one or more new classes of Debt that are fully subordinated to the existing Secured Debt (or to the most junior class of securities of the Issuer (other than the Subordinated Class A-1 Notes) issued pursuant to this Indenture; provided, if any class of securities issued pursuant to this Indenture other than the Secured Debt and the Subordinated Notes is then Outstanding) (such additional notes described in clause (ii)further, the “Junior Mezzanine Notes”); provided that the following conditions are met: :
(i) (A) each the Collateral Manager, the Depositor and a Majority of the Collateral Manager and the Retention Holder Preferred Shares consents to such issuance;
(ii) unless such issuance is being made in order for the Depositor, the Collateral Manager or an Affiliate thereof to comply with the U.S. Risk Retention Rules (Bbased on written advice of nationally recognized counsel to the Depositor or the Collateral Manager, as applicable, experienced in such matters) (a “Risk Retention Issuance”), if additional Class A-1 Notes are being issuedLoans will be incurred, a Majority of the Class A-1 Notes consent to such issuance and Lenders consents thereto;
(Ciii) such issuance is approved by a Majority the aggregate principal amount of Secured Debt of any Class issued in all additional issuances shall not exceed 100% of the Subordinated Aggregate Outstanding Amount of such Class on the Closing Date;
(iv) the terms of the Secured Debt issued must be identical to the respective terms of previously issued Secured Debt of the applicable Class (except that the interest due on additional Secured Debt will accrue from the issue or incurrence date of such additional Secured Debt and the spread over LIBOR (or stated interest rate, in the case of Fixed Rate Notes) and price of such additional Secured Debt do not have to be identical to those of the initial Secured Debt of such Class; provided that no consent pursuant the Interest Rate of any such additional Secured Debt must not exceed the Interest Rate applicable to the initial Secured Debt of that Class);
(v) the proceeds of any additional Secured Debt or additional Preferred Shares (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;
(vi) the Overcollateralization Ratio with respect to each Class is maintained or improved after giving effect to such issuance;
(vii) an opinion of tax counsel of nationally recognized standing in the United States experienced in such matters shall be delivered to the Trustee 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 Debt, Class A-2 Notes, Class B Notes, Class C Notes or Class D Notes will be treated as indebtedness for U.S. federal income tax purposes; provided, however, that the opinion described in this clause (i)(Bvii)(2) or (i)(C) shall will not be required with respect to any additional Secured Debt that bear a different securities identifier from the Secured Debt of the same Class that were issued on the Closing Date and are outstanding at the time of the additional issuance;
(viii) such issuance if is accomplished in a manner that allows the Independent accountants of the Issuer to accurately provide the tax information relating to original issue discount required to be provided to the holders of Secured Debt (including the additional Secured Debt); and
(ix) an officer’s certificate of the Issuer is delivered to the Trustee stating that the foregoing conditions (i) through (viii) have been satisfied.
(b) Except in the case of a Risk Retention Issuance, (i) any additional Class A-1 Debt issued 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) such additional issuance is effectedfirst, in such amounts as are necessary to preserve each such holder’s pro rata ownership interest in the sole discretion of the Collateral Manager, in order to permit the Collateral Manager or the sponsor of the Issuer under the Risk Retention Rules to comply with the Risk Retention Rules 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 debt is held by Class A-1 Loans or additional Class A-1 Notes, without regard to the sponsor form of such holder’s existing holdings, (ii) any additional Secured 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 pro rata ownership interest in such Class and (iii) any additional Preferred Shares issued as described above will, to the extent reasonably practicable, be offered first to holders of Preferred Shares in such amounts as are necessary to preserve each such holder’s pro rata ownership interest in the Preferred Shares. The Collateral Agent shall provide written notice to S&P of the Issuer issuance of any additional Secured Debt or such sponsor’s majority- owned affiliate (as each such term is defined in the U.S. Risk Retention Rules) (such issuance, a “Risk Retention Issuance”)Preferred Shares pursuant to this Section 2.13.
Appears in 1 contract