Drawdown Notices. (a) Subject to Section 4.3(e), purchases of Shares will take place on dates selected by the Company in its sole discretion (each, a “Drawdown Date”) and shall be made in accordance with the provisions of Section 4.1. (b) The Company shall deliver to the Subscriber, at least ten (10) days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) the amount of the Drawdown (the “Drawdown Amount”); (ii) the portion of the Drawdown Amount to be paid by such Shareholder; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; and (v) the account to which the Drawdown Amount should be wired. (c) The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each Drawdown Notice. (d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the Drawdown Purchase Price or Catch-Up Purchase Amount to the Company by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice. (e) On the Drawdown Date, if, in connection with a per share price adjustment, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company will deliver to the Shareholder an additional notice setting forth the actual number of Shares purchased by such Shareholder. (f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end of the Commitment Period (as defined below), Shareholders will be released from any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to (a) pay Company expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the Company, (d) fund obligations under any Company guarantee, and/or (e) as necessary for the Company to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”). (g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of the Company on any Drawdown Date if, in the reasonable discretion of the Company, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (together, the “Plan Assets Regulation”), or (iii) result in a Subscriber subject to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion Right.
Appears in 1 contract
Drawdown Notices. (a) Subject to Section Sections 4.3(c) and 4.3(e), purchases of Shares will take place on dates selected by the Company in its sole discretion (each, a “Drawdown Date”) and shall be made in accordance with the provisions of Section 4.1.
(b) The Company shall deliver to the Subscriber, at least ten (10) days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) the amount of the Drawdown (the “Drawdown Amount”); (ii) the portion of the Drawdown Amount to be paid by such Shareholder; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; and (v) the account to which the Drawdown Amount should be wired.
(c) The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each Drawdown Notice; provided, however that no Drawdown Notice shall be deemed delivered without satisfaction or waiver by the Subscriber in writing of the following conditions on or prior to the date of such Drawdown Notice:
(i) The Company’s Form 10 shall (A) have become effective in accordance with the Securities Exchange Act of 1934, as amended, and (B) be in substantially the form provided to the Subscriber prior to the Closing Date (other than with respect to revisions requested by the U.S. Securities and Exchange Commission (the “SEC”) that do not materially alter the corresponding disclosure in the Offering Document, the population of blanks and the inclusion of the seed audit for AGL Private Credit Income Fund) (the “Exchange Act”).
(ii) The Company’s Form N-54A election to be treated as a business development company shall have been made with the SEC by the Company.
(iii) The Governing Documents and the investment advisory agreement (the “Investment Management Agreement”) by and between the Company and AGL US DL Management LLC, a Delaware limited liability company (the “Advisor”), shall have become effective with respect to the Company.
(iv) The Advisor has been registered as an investment advisor with the under the Investment Advisers Act of 1940, as amended.
(v) The Company acknowledges, confirms and represents to the Subscriber in writing that (A) it believes in its reasonable judgment, upon advice of outside counsel, that it has completed the SEC comment process regarding the Company’s Form 10 (for the avoidance of doubt, the effectiveness of the Form 10 shall not, alone, mean the comment process has completed), and there are no material comments communicated by the SEC staff to the Company or the Company’s legal counsel regarding the Company’s Form 10 to which the Company or its legal counsel has not responded orally or in writing, and (B) in the event that the SEC has delivered a comment to the Company or its legal counsel orally or in writing requesting the Company not sell Shares, the Company or its legal counsel shall have received oral or written communications from the SEC that the Company believes in its reasonable judgment, upon advice of outside counsel, indicates that it may sell Shares.
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the Drawdown Purchase Price or Catch-Up Purchase Amount to the Company by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On the Drawdown Date, if, in connection with a per share price adjustment, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company will deliver to the Shareholder an additional notice setting forth the actual number of Shares purchased by such Shareholder.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end of the Commitment Period (as defined below), Shareholders will be released from any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to (a) pay Company expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the Company, (d) fund obligations under any Company guarantee, and/or (e) as necessary for the Company to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”).
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company shall have the right (a “Limited Exclusion Right”) to exclude the Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of the Company on any Drawdown Date if, in the reasonable discretion of the Company, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (together, the “Plan Assets Regulation”), or (iii) result in a Subscriber subject to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion Right.
Appears in 1 contract
Sources: Subscription Agreement (AGL Private Credit Income Fund LP)
Drawdown Notices. Except as otherwise provided in Section 5.02(c), each Drawdown Notice for a Drawdown shall specify, to the extent known at the time such Drawdown Notice is delivered:
(aA) Subject the manner in which, and the expected date on which, such Drawdown is to be applied;
(B) if all or any portion of such Drawdown is to be applied to make one or more Investments, with respect to each proposed Investment, (w) a general description of the business of the Person that is, directly or indirectly, the subject of such proposed Investment, (x) the Investment Drawdown Amount in respect of such Investment, (y) whether such proposed Investment is in equity securities or equity-related securities (including preferred equity, convertible debt or similar securities) or debt securities, and (z) whether the Capital Contribution of such Investor in respect of such Investment is to be applied in respect of a Partnership Investment (and if so, whether directly or through a Partnership Investment Vehicle) or a Parallel Investment (and if so, whether directly or through a Parallel Investment Vehicle) or if all or any portion of such Drawdown is to be held as Temporary Cash Funds, the Investment Drawdown Amount related thereto;
(C) if all or any portion of such Drawdown is to be applied in respect of any Expenses, the Expenses Drawdown Amount;
(D) the required Capital Contribution to be made by such Investor (which shall be equal to the sum of such Investor’s share (determined pursuant to Section 4.3(e5.02(b)(ii), purchases ) of Shares will take place on dates selected by each Investment Drawdown Amount or Temporary Cash Funds and such Investor’s share (determined pursuant to Section 5.02(b)(iii)) of the Company in its sole discretion Expenses Drawdown Amount;
(each, a E) the date (the “Drawdown Date”) and shall on which such Capital Contribution is due, which will be made in accordance with the provisions of Section 4.1.
(b) The Company shall deliver to the Subscriber, at least ten (10) 10 calendar days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) from and including the amount date of delivery of the Drawdown Notice; and
(the “Drawdown Amount”); (iiF) the portion of the Drawdown Amount to be paid by such Shareholder; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; Person and (v) the account to which the Drawdown Amount should be wired.
(c) The delivery of a Drawdown Notice to the Subscriber such Capital Contribution shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each Drawdown Noticepaid.
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the Drawdown Purchase Price or Catch-Up Purchase Amount to the Company by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On the Drawdown Date, if, in connection with a per share price adjustment, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company will deliver to the Shareholder an additional notice setting forth the actual number of Shares purchased by such Shareholder.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end of the Commitment Period (as defined below), Shareholders will be released from any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to (a) pay Company expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the Company, (d) fund obligations under any Company guarantee, and/or (e) as necessary for the Company to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”).
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of the Company on any Drawdown Date if, in the reasonable discretion of the Company, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (together, the “Plan Assets Regulation”), or (iii) result in a Subscriber subject to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion Right.
Appears in 1 contract
Drawdown Notices. 2.1 Subject to the terms and conditions contained herein and in the Appendix of each Facility which the Borrower wishes to utilise, at any time and from time to time during the Availability Period of a particular Facility or Facilities, the Borrower may give notice to the Bank that it requires Accommodation to be provided by the Bank under such Facility or Facilities. Such notices shall:
(a) Subject subject to Section 4.3(e)any provision to the contrary in the Appendix of a Facility which the Borrower wishes to utilise on the proposed Accommodation Date be given not later than three Business Days before a proposed Accommodation Date or such shorter period as may be agreed;
(b) specify the proposed Accommodation Date;
(c) specify the proposed form of Accommodation being by way of any one or more Facilities;
(d) specify the Accommodation Particulars required in respect of each Facility which the Borrower wishes to utilise on such Accommodation Date;
(e) specify, purchases of Shares will take place when relevant, the bank account or accounts to which payment is to be made;
(f) be effective on dates selected receipt by the Company in its sole discretion (each, a “Drawdown Date”) Bank and once given shall be made irrevocable; and
(g) subject to any provision to the contrary in accordance with the provisions Appendix of Section 4.1a Facility which the Borrower wishes to utilise on the proposed Accommodation Date, be in writing.
(a) The Bank shall not be obliged to provide Accommodation on a particular Accommodation Date if immediately after the provision of such Accommodation the aggregate of the Outstanding Accommodation of all Facilities would exceed the Accommodation Limit.
(b) The Company Bank shall deliver not be obliged to provide any Accommodation on a particular Accommodation Date under a particular Facility if immediately after the Subscriber, at least ten (10) days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) provision of such Accommodation the amount Outstanding Accommodation of that Facility would exceed the Drawdown (the “Drawdown Amount”); (ii) the portion Facility Accommodation Limit of the Drawdown Amount to be paid by such Shareholder; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; and (v) the account to which the Drawdown Amount should be wiredthat particular Facility.
(c) The delivery of a Drawdown Notice to Borrower shall ensure that at all times during the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each Drawdown Notice.Availability Period:
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the Drawdown Purchase Price or Catch-Up Purchase Amount to the Company by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On the Drawdown Date, if, in connection with a per share price adjustment, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company will deliver to the Shareholder an additional notice setting forth the actual number of Shares purchased by such Shareholder.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end of the Commitment Period (as defined below), Shareholders will be released from any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to (a) pay Company expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, the aggregate of the Outstanding Accommodation of all Facilities shall not exceed the Accommodation Limit; and
(b) complete investments the Outstanding Accommodation of each Facility shall not exceed the Facility Accommodation Limit of each particular Facility.
2.3 The Bank shall not be obliged to provide any Accommodation requested in any transactions for a particular Drawdown Notice:
(a) if an Event of Default or an event which there are binding written agreements as with the lapsing of time or the giving of notice would become an Event of Default has occurred;
(b) unless all necessary approvals (and in particular but without limiting the generality thereof the approval in writing of the end Reserve Bank of Australia or such other relevant authority the approval of which may from time to time be required by law), consents, licences, exemptions and filings shall have been obtained or done and certified copies thereof provided to the Bank.
2.4 The obligations of the Commitment Period (including investments that Bank hereunder are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the Company, (d) fund obligations under any Company guarantee, and/or (e) as necessary for the Company to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”).
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of the Company on any Drawdown Date if, in the reasonable discretion of the Company, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (together, the “Plan Assets Regulation”), or (iii) result in a Subscriber subject to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities satisfaction by the Borrower of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion Rightconditions precedent set out in Part 6 of Schedule 1 hereto.
Appears in 1 contract
Drawdown Notices. (a) Subject to Section 4.3(e4.2(f), purchases of Shares will take place on dates selected by the Company Fund in its sole discretion (each, a “Drawdown Date”) and shall be made in accordance with the provisions of Section 4.1.
(b) The Company Fund shall deliver to the Subscriber, at least ten five (105) days Business Days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) the Drawdown Purchase Price to be paid by the Subscriber, which amount of shall not to exceed the Drawdown (the “Drawdown Amount”)Subscriber’s Unfunded Capital Commitment; (ii) the portion of the aggregate Drawdown Amount to be Purchase Prices paid by the Subscriber as of such ShareholderDrawdown Date; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount Purchase Price is due; due and (viv) the bank account to which the Subscriber shall pay the Drawdown Amount should be wiredPurchase Price. For the purposes of this Subscription Agreement, the term “Business Day” shall have the meaning ascribed to it in Rule 14d-1(g)(3) under the Securities Act of 1934, as amended (the “Exchange Act”).
(c) The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each such Drawdown Notice.
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the applicable Drawdown Purchase Price or Catch-Up Purchase Amount to the Company Fund by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On Following the completion of the payment of the Drawdown Date, if, in connection with a per share price adjustmentPurchase Price and the purchase of Shares by the Subscriber, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company Fund will deliver to the Shareholder an additional notice Subscriber a confirmation statement setting forth the actual number of Shares purchased by the Subscriber as of such ShareholderDrawdown Date.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end of the Commitment Period (as defined below), Shareholders the Subscriber will be released from any further obligation under their respective this Subscription Agreements Agreement to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange ListingPeriod, if any, Shareholders will remain the Subscriber remains obligated to fund Drawdowns each Drawdown Purchase Price set forth in a Drawdown Notice to the extent necessary to (a) pay Company Fund expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two three years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the CompanyFund, (d) fund obligations under any Company Fund guarantee, and/or (e) as necessary for the Company Fund to preserve its status as a regulated investment company (a “RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment”). The “Commitment Period” ”, as to the Subscriber, will continue until commence on the five year anniversary later of (i) from the date on which Shareholders are required to fund their initial Drawdown the Fund makes its first investment and (ii) the “Commencement Date”)date on which this Subscription Agreement is accepted by the Fund, and ends on the three-year anniversary thereafter.
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company Fund shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of from the Company Fund on any Drawdown Date if, in the reasonable discretion of the CompanyFund, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the CompanyFund, Overland Advisors, LLC, a Delaware limited liability company Stone Point Credit Income Adviser LLC (the “AdvisorAdviser”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company Fund to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 2510.3-101 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”) (together, the “Plan Assets Regulation”).
(h) Notwithstanding the foregoing, the Fund reserves the right to require the Subscriber or (iii) result in a Subscriber subject any Other Subcriber, including Shareholders making additional capital commitments, to fully fund their capital commitment by wire to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities Fund’s bank account on or before the last business day of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion Rightmonth of its respective Closing.
Appears in 1 contract
Sources: Subscription Agreement (Stone Point Credit Income Fund)
Drawdown Notices. (a) Subject to Section 4.3(e4.2(f), purchases of Shares will take place on dates selected by the Company Fund in its sole discretion (each, a “Drawdown Date”) and shall be made in accordance with the provisions of Section 4.1.
(b) The Company Fund shall deliver to the Subscriber, at least ten five (105) days Business Days (as defined below) prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) the Drawdown Purchase Price to be paid by the Subscriber, which amount of shall not to exceed the Drawdown (the “Drawdown Amount”)Subscriber’s Unfunded Capital Commitment; (ii) the portion of the aggregate Drawdown Amount to be Purchase Prices paid by the Subscriber as of such ShareholderDrawdown Date; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount Purchase Price is due; due and (viv) the bank account to which the Subscriber shall pay the Drawdown Amount should be wiredPurchase Price. For the purposes of this Subscription Agreement, the term “Business Day” shall have the meaning ascribed to it in Rule 14d-1(g)(3) under the Securities Act of 1934, as amended (the “Exchange Act”).
(c) The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each such Drawdown Notice.
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the applicable Drawdown Purchase Price or Catch-Up Purchase Amount to the Company Fund by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On Following the completion of the payment of the Drawdown Date, if, in connection with a per share price adjustmentPurchase Price and the purchase of Shares by the Subscriber, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company Fund will deliver to the Shareholder an additional notice Subscriber a confirmation statement setting forth the actual number of Shares purchased by the Subscriber as of such ShareholderDrawdown Date.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end of the Commitment Period (as defined below), Shareholders the Subscriber will be released from any further obligation under their respective this Subscription Agreements Agreement to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange ListingPeriod, if any, Shareholders will remain the Subscriber remains obligated to fund Drawdowns each Drawdown Purchase Price set forth in a Drawdown Notice to the extent necessary to (a) pay Company Fund expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two three years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the CompanyFund, (d) fund obligations under any Company Fund guarantee, and/or (e) as necessary for the Company Fund to preserve its status as a regulated investment company (a “RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment”). The “Commitment Period” ”, as to the Subscriber, will continue until commence on the five year anniversary later of (i) from the date on which Shareholders are required to fund their initial Drawdown the Fund makes its first investment and (ii) the “Commencement Date”)date on which this Subscription Agreement is accepted by the Fund, and ends on the three-year anniversary thereafter.
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company Fund shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of from the Company Fund on any Drawdown Date if, in the reasonable discretion of the CompanyFund, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the CompanyFund, Overland Advisors, LLC, a Delaware limited liability company Stone Point Credit Income Adviser LLC (the “AdvisorAdviser”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company Fund to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 2510.3-101 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”) (together, the “Plan Assets Regulation”).
(h) Notwithstanding the foregoing, the Fund reserves the right to require the Subscriber or (iii) result in a Subscriber subject any Other Subscriber, including Shareholders making additional capital commitments, to fully fund their capital commitment by wire to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities Fund’s bank account on or before the last business day of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion Rightmonth of its respective Closing.
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Sources: Subscription Agreement (Stone Point Credit Income Fund - Select)
Drawdown Notices. (a) Subject to Section 4.3(e4.2(f), purchases of Shares will take place on dates selected by the Company Fund in its sole discretion (each, a “Drawdown Date”) and shall be made in accordance with the provisions of Section 4.1.
(b) The Company Fund shall deliver to the Subscriber, at least ten (10) days Business Days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) the amount of the Drawdown (the “Drawdown Amount”); (ii) the portion of the Drawdown Amount to be paid by such Shareholder; and (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; and . For the purposes of this Subscription Agreement, the term “Business Day” shall have the meaning ascribed to it in Rule 14d-1(g)(3) under the Securities Exchange Act of 1934, as amended (v) the account to which the Drawdown Amount should be wired“Exchange Act”).
(c) The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase AmountPrice, as applicable, identified in each Drawdown Notice.
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the applicable Drawdown Purchase Price or Catch-Up Purchase Amount to the Company Fund by bank wire transfer Fedwire in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On Following the completion of the Drawdown Date, if, in connection with and purchase of Shares by a per share price adjustmentSubscriber, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company Fund will deliver to the Shareholder an additional notice Subscriber a confirmation statement setting forth the actual number of Shares purchased by such Shareholderthe Subscriber.
(f) Except as provided below, at the earlier occurrence of (i) an Exchange Listing (as defined in the Declaration of Trust) and (ii) the end any listing of the Commitment Period Shares on a national securities exchange (as defined below“Exchange Listing”), Shareholders will be released from any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to (a) pay Company Fund expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases)agreements, (c) fund follow-on investments made in existing portfolio companies within two years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the CompanyFund, (d) fund obligations under any Company Fund guarantee, and/or (e) as necessary for the Company Fund to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”).
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company Fund shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of from the Company Fund on any Drawdown Date if, in the reasonable discretion of the CompanyFund, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Fund, the Management Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company Fund to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 2510.3-101 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended 1974 (“ERISA”) (together, the “Plan Assets Regulation”).
(h) Notwithstanding the foregoing, or (iii) result the Fund reserves the right to permit Shareholders to fund Drawdowns on a non-pro rata basis up to such Shareholder’s Capital Commitment in a Subscriber subject to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities Fund’s sole discretion upon the request of the Company. In the event that any Limited Exclusion Right is exercised, the Company will be authorized to issue an additional Drawdown Notice to the non-Excused Subscribers to make up any applicable shortfall caused by such Limited Exclusion RightShareholder.
Appears in 1 contract
Sources: Subscription Agreement (Comvest Credit Partners BDC Fund, L.P.)
Drawdown Notices. 2.01 Subject to the terms and conditions contained herein and in the Appendix of each Facility which the Borrower wishes to utilise, at any time and from time to time during the Availability Period of a particular Facility or Facilities, the Borrower may give notice to the Bank that it requires Accommodation to be provided by the Bank under such Facility or Facilities. Such notices shall:-
(a) Subject subject to Section 4.3(e)any provision to the contrary in the Appendix of a Facility which the Borrower wishes to utilise on the proposed Accommodation Date, purchases be given not later than three Business Days before a proposed Accommodation Date or such shorter period as may be agreed;
(b) specify the proposed Accommodation Date;
(c) specify the proposed form of Shares will take place Accommodation being by way of any one or more Facilities;
(d) specify the Accommodation Particulars required in respect of each Facility which the Borrower wishes to utilise on dates selected such Accommodation Date;
(e) specify, when relevant, the bank account or accounts to which payment is to be made;
(f) be effective on receipt by the Company in its sole discretion (each, a “Drawdown Date”) Bank and once given shall be made irrevocable; and
(g) subject to any provision to the contrary in accordance with the provisions Appendix of Section 4.1a Facility which the Borrower wishes to utilise on the proposed Accommodation Date, be in writing.
(a) The Bank shall not be obliged to provide Accommodation on a particular Accommodation Date if immediately after the provision of such Accommodation the aggregate of the Outstanding Accommodation of all Facilities would exceed the Accommodation Limit.
(b) The Company Bank shall deliver not be obliged to provide any Accommodation on a particular Accommodation Date under a particular Facility if immediately after the Subscriber, at least ten (10) days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) provision of such Accommodation the amount Outstanding Accommodation of that Facility would exceed the Drawdown (the “Drawdown Amount”); (ii) the portion Facility Accommodation Limit of the Drawdown Amount to be paid by such Shareholder; (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; and (v) the account to which the Drawdown Amount should be wiredthat particular Facility.
(c) The delivery of a Drawdown Notice to Borrower shall ensure that at all times during the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase Amount, as applicable, identified in each Drawdown Notice.Availability Period:-
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the Drawdown Purchase Price or Catch-Up Purchase Amount to the Company by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On the Drawdown Date, if, in connection with a per share price adjustment, the number of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown Notice, the Company will deliver to the Shareholder an additional notice setting forth the actual number of Shares purchased by such Shareholder.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration aggregate of Trust) and the Outstanding Accommodation of all Facilities shall not exceed the Accommodation Limit; and
(ii) the end Outstanding Accommodation of each Facility shall not exceed the Commitment Period (as defined below), Shareholders will Facility Accommodation Limit of each particular Facility.
2.03 The Bank shall not be released from obliged to provide any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to Accommodation requested in a particular Drawdown Notice:-
(a) pay Company expenses, including management fees, amounts that may if an Event of Default or an event which with the lapsing of time or the giving of notice would become due under any borrowings or other financings or similar obligations, or indemnity obligations, an Event of Default has occurred;
(b) complete investments unless all necessary approvals (and in any transactions for which there are binding written agreements as particular but without limiting the generality thereof the approval in writing of the end Reserve Bank of Australia or such other relevant authority the approval of which may from time to time be required by law), consents, licences, exemptions and filings shall have been obtained or done and certified copies thereof provided to the Bank.
2.04 The obligations of the Commitment Period (including investments that Bank hereunder are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the Company, (d) fund obligations under any Company guarantee, and/or (e) as necessary for the Company to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”).
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of the Company on any Drawdown Date if, in the reasonable discretion of the Company, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”), any Other Subscriber or a portfolio company would be subject or (ii) cause the assets of the Company to constitute or become at a material risk of becoming “plan assets” by reason of 29 CFR 2510.3 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (together, the “Plan Assets Regulation”), or (iii) result in a Subscriber subject to the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities satisfaction by the Borrower of the Company. In conditions precedent set out in Part 6 of the event that any Limited Exclusion Right is exercisedSchedule hereto, the Company will be authorized to issue an additional Drawdown Notice prior to the non-Excused Subscribers to make up any applicable shortfall caused receipt by such Limited Exclusion Rightthe Bank of the first Drawdown Notice.
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Drawdown Notices. (a) Subject to Section 4.3(e4.2(f), purchases of Shares will take place on dates selected by the Company in its sole discretion (each, a “Drawdown Date”) and shall be made in accordance with the provisions of Section 4.1.
(b) The Company shall deliver to the Subscriber, at least ten (10) days Business Days prior to each Drawdown Date or Catch-Up Date, a notice (each, a “Drawdown Notice”) setting forth (i) the amount of the Drawdown (the “Drawdown Amount”); (ii) the portion of the Drawdown Amount to be paid by such Shareholder; and (iii) the estimated number of Shares to be purchased by such Shareholder; (iv) the Drawdown Date on which such Drawdown Amount is due; and . For the avoidance of doubt, the terms of each Drawdown Notice will depend on several factors, including but not limited to the Shareholder’s status as an institutional investor, a retail investor, a Common Shareholder, and/or Institutional Shareholder, as set forth in Section 4.1. For the purposes of this Subscription Agreement, the term “Business Day” shall have the meaning ascribed to it in Rule 14d-1(g)(3) under the Securities Act of 1934, as amended (v) the account to which the Drawdown Amount should be wired“Exchange Act”).
(c) The delivery of a Drawdown Notice to the Subscriber shall be the sole and exclusive condition to the Subscriber’s obligation to pay the Drawdown Purchase Price or Catch-Up Purchase AmountPrice, as applicable, identified in each Drawdown Notice.
(d) On each Drawdown Date or Catch-Up Date, as applicable, the Subscriber shall pay the applicable Drawdown Purchase Price or Catch-Up Purchase Amount to the Company by bank wire transfer in immediately available funds in U.S. dollars to the account specified in the Drawdown Notice.
(e) On Following the completion of the Drawdown Date, if, in connection with a per share price adjustment, the number and purchase of Shares to be purchased by a Shareholder differs from the amount set forth in the Drawdown NoticeSubscriber, the Company will deliver to the Shareholder an additional notice Subscriber a confirmation statement setting forth the actual number of Shares purchased by such Shareholderthe Subscriber.
(f) Except as provided below, at the earlier of (i) an Exchange Listing (as defined in the Declaration of TrustSection 6) and (ii) the end of the Commitment Period (as defined below), Shareholders will be released from any further obligation under their respective Subscription Agreements to fund Drawdowns and purchase additional Shares, provided, however that for two years following the end of the Commitment Period and prior to an Exchange Listing, if any, Shareholders will remain obligated to fund Drawdowns to the extent necessary to (a) pay Company expenses, including management fees, amounts that may become due under any borrowings or other financings or similar obligations, or indemnity obligations, (b) complete investments in any transactions for which there are binding written agreements as of the end of the Commitment Period (including investments that are funded in phases), (c) fund follow-on investments made in existing portfolio companies within two three years from the end of the Commitment Period that, in the aggregate, do not exceed 5% of total capital commitments to the Company, (d) fund obligations under any Company guarantee, and/or (e) as necessary for the Company to preserve its status as a RIC; provided, that no investor shall be required to subscribe for Shares in excess of its Capital Commitment. The “Commitment Period” will continue until the five year anniversary of the date on which Shareholders are required to fund their initial Drawdown (the “Commencement Date”) on which the Company first issues Shares to investors not affiliated with the Company or Stone Point Credit Adviser (the “Adviser”); provided, however, that the Commitment Period for any Shareholder that makes its Capital Commitment after the two year anniversary of the Commencement Date will extend until the three year anniversary of such Shareholder’s initial Capital Commitment.
(g) Notwithstanding anything to the contrary contained in this Subscription Agreement, the Company shall have the right (a “Limited Exclusion Right”) to exclude Subscriber or any Other Subscriber (such Subscriber or Other Subscriber, an “Excused Subscriber”) from purchasing or continuing to hold Shares of from the Company on any Drawdown Date if, in the reasonable discretion of the Company, there is a substantial likelihood that such Excused Subscriber’s purchase or continued holding of Shares at such time would (i) result in a violation of, or noncompliance with, any law or regulation to which such Excused Subscriber, the Company, Overland Advisors, LLC, a Delaware limited liability company (the “Advisor”)Adviser, any Other Subscriber or a portfolio company would be subject or (ii) cause the assets investments of “Benefit Plan Investors” (within the Company to constitute or become at a material risk meaning of becoming “plan assets” by reason of 29 CFR 2510.3 as modified by Section 3(42) of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and certain Department of Labor regulations) to be significant and the assets of the Company to be considered “plan assets” under ERISA or Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (together, the “Plan Assets RegulationCode”), or .
(iiih) result in a Subscriber subject to Notwithstanding the U.S. Bank Holding Company Act of 1956, as amended, owning in excess of 4.99% of any class of voting securities of the Company. In the event that any Limited Exclusion Right is exercisedforegoing, the Company will be authorized reserves the right to issue an additional Drawdown Notice permit Existing Shareholders to the fund Drawdowns on a non-Excused Subscribers pro rata basis up to make up any applicable shortfall caused by such Limited Exclusion RightExisting Shareholder’s Capital Commitment in the Company’s sole discretion upon the request of the Existing Shareholder.
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