LOAN FINANCING AND SERVICING AGREEMENT dated as of August 2, 2024 SCP PRIVATE CREDIT INCOME BDC SPV LLC, as Borrower SCP PRIVATE CREDIT INCOME BDC LLC, as Equityholder and Servicer, THE LENDERS FROM TIME TO TIME PARTIES HERETO, DEUTSCHE BANK AG, NEW...
EXECUTION VERSION
Conformed through Amendment No. 1 dated June 4, 2025
LOAN FINANCING AND SERVICING AGREEMENT
dated as of August 2, 2024
SCP PRIVATE CREDIT INCOME BDC SPV LLC,
as Borrower
SCP PRIVATE CREDIT INCOME BDC LLC,
as Equityholder and Servicer,
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Facility Agent
THE OTHER AGENTS PARTIES HERETO,
and
COMPUTERSHARE TRUST COMPANY, N.A.,
as Collateral Agent and as Collateral Custodian
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TABLE OF CONTENTS
Page
Article I DEFINITIONS 1
Section 1.1 Defined Terms 1
Section 1.2 Other Definitional Provisions 45
Article II THE FACILITY, ADVANCE PROCEDURES AND NOTES 47
Section 2.1 Advance 47
Section 2.2 [Reserved] 48
Section 2.3 Notes 48
Section 2.4 Repayment and Prepayments 48
Section 2.5 [Reserved] 49
Section 2.6 Extension of Facility Termination Date 49
Section 2.7 Calculation of Discount Factor 49
Article III YIELD, ETC 49
Section 3.1 Yield 49
Section 3.2 Yield Distribution Dates 50
Section 3.3 Yield Calculation 50
Section 3.4 Computation of Yield, Fees, Etc 50
Article IV PAYMENTS; TAXES 50
Section 4.1 Making of Payments 50
Section 4.2 Due Date Extension 51
Section 4.3 Taxes 51
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Article V INCREASED COSTS, ETC 55
Section 5.1 Increased Costs, Capital Adequacy 55
Article VI EFFECTIVENESS; CONDITIONS TO ADVANCES 56
Section 6.1 Effectiveness; Conditions to the Advance 56
Section 6.2 [Reserved] 60
Section 6.3 [Reserved] 60
Section 6.4 Transfer of Collateral Obligations and Permitted Investments 60
Article VII ADMINISTRATION AND SERVICING OF COLLATERAL OBLIGATIONS 61
Section 7.1 Retention and Termination of the Servicer 61
Section 7.2 Resignation and Removal of the Servicer; Appointment of Successor Servicer 61
Section 7.3 Duties of the Servicer 62
Section 7.4 Representations and Warranties of the Servicer 63
Section 7.5 Covenants of the Servicer 66
Section 7.6 Servicing Fees; Payment of Certain Expenses by Servicer 69
Section 7.7 Collateral Reporting 69
Section 7.8 Notices 70
Section 7.9 Procedural Review of Collateral Obligations; Access to Servicer and Servicer’s Records 70
Section 7.10 Optional Sales 71
Section 7.11 Repurchase or Substitution of Warranty Collateral Obligations 72
Section 7.12 Servicing of REO Assets 73
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Article VIII ACCOUNTS; PAYMENTS 74
Section 8.1 Accounts 74
Section 8.2 Excluded Amounts 76
Section 8.3 Distributions and Dividends 76
Section 8.4 Fees 80
Section 8.5 Monthly Report 80
Article IX REPRESENTATIONS AND WARRANTIES OF THE BORROWER 81
Section 9.1 Organization and Good Standing 81
Section 9.2 Due Qualification 81
Section 9.3 Power and Authority 81
Section 9.4 Binding Obligations 81
Section 9.5 Security Interest 82
Section 9.6 No Violation 83
Section 9.7 No Proceedings 83
Section 9.8 No Consents 83
Section 9.9 Solvency 83
Section 9.10 Compliance with Laws 83
Section 9.11 Taxes 83
Section 9.12 Monthly Report 84
Section 9.13 No Liens, Etc 84
Section 9.14 Information True and Correct 84
Section 9.15 Bulk Sales 85
Section 9.16 Collateral 85
Section 9.17 Selection Procedures 85
Section 9.18 Indebtedness 85
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Section 9.19 No Injunctions 85
Section 9.20 No Subsidiaries 85
Section 9.21 ERISA Matters 85
Section 9.22 Investment Company Status 86
Section 9.23 Set-Off, Etc 86
Section 9.24 Collections 86
Section 9.25 Value Given 86
Section 9.26 Use of Proceeds 86
Section 9.27 Separate Existence 86
Section 9.28 Transaction Documents 87
Section 9.29 EEA Financial Institution 87
Section 9.30 Anti-Terrorism, Anti-Money Laundering 87
Section 9.31 Anti-Bribery and Corruption 88
Section 9.32 ▇▇▇▇▇▇▇ Rule 88
Section 9.33 AIFMD and UK AIFM Regulation 88
Article X COVENANTS 89
Section 10.1 Protection of Security Interest of the Secured Parties 89
Section 10.2 Other Liens or Interests 90
Section 10.3 Costs and Expenses 90
Section 10.4 Reporting Requirements 90
Section 10.5 Separate Existence 91
Section 10.6 [Reserved] 93
Section 10.7 Tangible Net Worth 93
Section 10.8 Taxes 93
Section 10.9 Merger, Consolidation, Etc 93
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Section 10.10 Deposit of Collections 94
Section 10.11 Indebtedness; Guarantees 94
Section 10.12 Limitation on Purchases from Affiliates 94
Section 10.13 Documents 94
Section 10.14 Preservation of Existence 94
Section 10.15 Limitation on Investments 94
Section 10.16 Distributions 95
Section 10.17 Performance of Borrower Assigned Agreements 95
Section 10.18 Further Assurances; Financing Statements 95
Section 10.19 Obligor Payment Instructions 96
Section 10.20 Delivery of Collateral Obligation Files 96
Section 10.21 ERISA 96
Section 10.22 Risk Retention 97
Section 10.23 Proceedings 99
Section 10.24 Policies and Procedures for Sanctions 99
Section 10.25 Compliance with Sanctions 99
Section 10.26 Compliance with Anti-Money Laundering 99
Section 10.27 Beneficial Ownership Certification 99
Article XI THE COLLATERAL AGENT 100
Section 11.1 Appointment of Collateral Agent 100
Section 11.2 Monthly Reports 100
Section 11.3 Collateral Administration 100
Section 11.4 Removal or Resignation of Collateral Agent 103
Section 11.5 Representations and Warranties 103
Section 11.6 No Adverse Interest of Collateral Agent 104
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Section 11.7 Reliance of Collateral Agent 104
Section 11.8 Limitation of Liability and Collateral Agent Rights 104
Section 11.9 Tax Reports 107
Section 11.10 Merger or Consolidation 107
Section 11.11 Collateral Agent Compensation 107
Section 11.12 Compliance with Applicable Anti-Bribery and Corruption, Anti-Terrorism and Money Laundering Regulations 108
Article XII GRANT OF SECURITY INTEREST 108
Section 12.1 Borrower’s Grant of Security Interest 108
Section 12.2 Borrower Remains Liable 109
Section 12.3 Release of Collateral 110
Article XIII EVENTs OF DEFAULT 110
Section 13.1 Events of Default 110
Section 13.2 Effect of Event of Default 113
Section 13.3 Rights upon Event of Default 113
Section 13.4 Collateral Agent May Enforce Claims Without Possession of Notes 114
Section 13.5 Collective Proceedings 114
Section 13.6 Insolvency Proceedings 114
Section 13.7 Delay or Omission Not Waiver 115
Section 13.8 Waiver of Stay or Extension Laws 115
Section 13.9 Limitation on Duty of Collateral Agent in Respect of Collateral 115
Section 13.10 Power of Attorney 116
Section 13.11 Purchase Right 117
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Article XIV THE FACILITY AGENT 117
Section 14.1 Appointment 117
Section 14.2 Delegation of Duties 117
Section 14.3 Exculpatory Provisions 117
Section 14.4 Reliance by Note Agents 118
Section 14.5 Notices 118
Section 14.6 Non‑Reliance on Note Agents 119
Section 14.7 Indemnification 119
Section 14.8 Successor Note Agent 120
Section 14.9 Note Agents in their Individual Capacity 120
Section 14.10 Borrower Audit 120
Section 14.11 Compliance with Applicable Anti-Bribery and Corruption, Anti-Terrorism and Money Laundering Regulations 120
Article XV ASSIGNMENTS 121
Section 15.1 Restrictions on Assignments by the Borrower and the Servicer 121
Section 15.2 Documentation 121
Section 15.3 Rights of Assignee 121
Section 15.4 Assignment by Lenders 121
Section 15.5 Registration; Registration of Transfer and Exchange 122
Section 15.6 Mutilated, Destroyed, Lost and Stolen Notes 123
Section 15.7 Persons Deemed Owners 124
Section 15.8 Cancellation 124
Section 15.9 Participations; Pledge 124
Section 15.10 Reallocation of Advance 125
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Article XVI INDEMNIFICATION 125
Section 16.1 Borrower Indemnity 125
Section 16.2 Servicer Indemnity 126
Section 16.3 Contribution 126
Section 16.4 After-Tax Basis 127
Article XVII MISCELLANEOUS 127
Section 17.1 No Waiver; Remedies 127
Section 17.2 Amendments, Waivers 127
Section 17.3 Notices, Etc 129
Section 17.4 Costs and Expenses 129
Section 17.5 Binding Effect; Survival 130
Section 17.6 Captions and Cross References 130
Section 17.7 Severability 130
Section 17.8 GOVERNING LAW 130
Section 17.9 Counterparts 130
Section 17.10 WAIVER OF JURY TRIAL 131
Section 17.11 No Proceedings 131
Section 17.12 Limited Recourse 132
Section 17.13 ENTIRE AGREEMENT 133
Section 17.14 Confidentiality 133
Section 17.15 Non-Confidentiality of Tax Treatment 134
Section 17.16 Replacement of Lenders 134
Section 17.17 Consent to Jurisdiction 135
Section 17.18 Option to Acquire Rating 136
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Section 17.19 Acknowledgement and Consent to Bail-In of Affected Financial Institutions 136
Section 17.20 Acknowledgement Regarding Any Supported QFCs 136
Article XVIII COLLATERAL CUSTODIAN 137
Section 18.1 Designation of Collateral Custodian 137
Section 18.2 Duties of the Collateral Custodian 137
Section 18.3 Delivery of Collateral Obligation Files 139
Section 18.4 Collateral Obligation File Certification 140
Section 18.5 Release of Collateral Obligation Files 140
Section 18.6 Examination of Collateral Obligation Files 142
Section 18.7 Lost Note Affidavit 142
Section 18.8 Transmission of Collateral Obligation Files 142
Section 18.9 Merger or Consolidation 143
Section 18.10 Collateral Custodian Compensation 143
Section 18.11 Removal or Resignation of Collateral Custodian 143
Section 18.12 Limitations on Liability 144
Section 18.13 Collateral Custodian as Agent of Collateral Agent 145
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EXHIBIT A Form of Note
EXHIBIT B Audit Standards
EXHIBIT C-1 Form of Advance Request
EXHIBIT C-2 [Reserved]
EXHIBIT C-3 [Reserved]
EXHIBIT C-4 Form of Prepayment Notice
EXHIBIT D Form of Monthly Report
EXHIBIT E [Reserved]
EXHIBIT F‑1 Authorized Representatives of Servicer
EXHIBIT F‑2 Form of Request for Release and Receipt
EXHIBIT F‑3 Form of Request for Release of Request for Release and Receipt
EXHIBIT G-1 U.S. Tax Compliance Certificate (Foreign Lender - non-Partnerships)
EXHIBIT G-2 U.S. Tax Compliance Certificate (Foreign Participant - non-Partnerships)
EXHIBIT G-3 U.S. Tax Compliance Certificate (Foreign Participants - Partnerships)
EXHIBIT G-4 U.S. Tax Compliance Certificate (Foreign Lenders - Partnerships)
EXHIBIT H Schedule of Collateral Obligations Certification
SCHEDULE 1 Diversity Score Calculation
SCHEDULE 2 ▇▇▇▇▇’▇ Industry Classification Group List
SCHEDULE 3 Collateral Obligations
SCHEDULE 4 Responsible Officers
ANNEX A Notice Information
ANNEX B Commitments
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LOAN FINANCING AND SERVICING AGREEMENT
THIS LOAN FINANCING AND SERVICING AGREEMENT is made and entered into as of August 2, 2024, among SCP PRIVATE CREDIT INCOME BDC SPV LLC, a Delaware limited liability company, as the BORROWER (in such capacity, the “Borrower”), SCP PRIVATE CREDIT INCOME BDC LLC, a Delaware limited liability company, as the EQUITYHOLDER (in such capacity, the “Equityholder”), as the SERVICER (as hereinafter defined), each LENDER (as hereinafter defined) FROM TIME TO TIME PARTY HERETO, the AGENTS for each LENDER GROUP (as hereinafter defined) from time to time parties hereto (each such party, in such capacity, together with their respective successors and permitted assigns in such capacity, an “Agent”), COMPUTERSHARE TRUST COMPANY, N.A., as Collateral Agent and Collateral Custodian (each as hereinafter defined), and DEUTSCHE BANK AG, NEW YORK BRANCH, as Facility Agent (in such capacity, together with its successors and permitted assigns in such capacity, the “Facility Agent”).
RECITALS
WHEREAS, the Borrower desires that each Lender extend financing on the terms and conditions set forth herein and also desires to retain the Servicer to perform certain servicing functions related to the Collateral Obligations (as defined herein) on the terms and conditions set forth herein; and
WHEREAS, each Lender desires to extend financing on the terms and conditions set forth herein and the Servicer desires to perform certain servicing functions related to the Collateral Obligations on the terms and conditions set forth herein.
NOW, THEREFORE, based upon the foregoing Recitals, the premises and the mutual agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
DEFINITIONS
“1940 Act” means the Investment Company Act of 1940.
“Account” means the Collection Account, the Principal Collection Account and the Interest Collection Account, together with any sub-accounts deemed appropriate or necessary by the Securities Intermediary, for convenience in administering such accounts.
“Account Collateral” has the meaning set forth in Section 12.1(d).
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“Account Control Agreement” means the Securities Account Control Agreement, dated as of the Closing Date, by and among the Borrower, as pledgor, the Collateral Agent on behalf of the Secured Parties, as secured party, and the Collateral Custodian, as Securities Intermediary.
“Accrual Period” means, with respect to any Distribution Date, the period from and excluding the Determination Date for the immediately preceding Distribution Date (or, in the case of the first Distribution Date, from and including the Closing Date) through and including the Determination Date preceding such Distribution Date.
“Adjusted Aggregate Eligible Collateral Obligation Balance” means, as of any date, the Aggregate Eligible Collateral Obligation Amount minus the Excess Concentration Amount on such date.
“Advance” has the meaning set forth in Section 2.1(a).
“Advance Date” means the date when the Advance is made.
“Advance Rate” means, with respect to any Eligible Collateral Obligation on any date of determination that is (i) not a DB Tranched First Lien Loan, 70.0%, (ii) a DB Tranched First Lien Loan, 42.5%, (iii) a Life Sciences Loan, 50.0%, or (iv) an Asset Based Loan or a Multiple of Recurring Revenue Loan, as determined by the Facility Agent in its sole discretion.
“Advance Request” means a notice substantially in the form of Exhibit C-1 which requests the Advance hereunder and shall include (among other things) the amount of the proposed Advance.
“Adverse Claim” means any claim of ownership or any Lien, title retention, trust or other charge or encumbrance, or other type of preferential arrangement having the effect or purpose of creating a Lien, other than Permitted Liens.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Person” has the meaning set forth in Section 5.1.
“Affiliate” of any Person means any other Person that directly or indirectly Controls, is Controlled by or is under common Control with such Person (excluding any trustee under, or any committee with responsibility for administering, any employee benefit plan). For the purposes of this definition, “Control” shall mean the possession, directly or indirectly (including through affiliated entities), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, provision of management services, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto; provided that with respect to SCP Private Credit Income BDC LLC, a member shall not be deemed to have “control” unless it has the power to vote 50% or more of the voting securities of SCP Private Credit Income BDC LLC.
“Agent” has the meaning set forth in the Preamble.
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“Aggregate Eligible Collateral Obligation Amount” means, as of any date, the sum of the Collateral Obligation Amounts for all Eligible Collateral Obligations.
“Aggregate Funded Spread” means, as of any day, in the case of each Eligible Collateral Obligation (including, for any Deferrable Collateral Obligation, only the required current cash pay interest thereon) that bears interest at a spread over an index, (A) the excess (which excess may be expressed as a negative percentage) for each such Collateral Obligation of (x) the sum of (I) the sum of such spread (inclusive of any credit adjustment spread, if any) for each such Collateral Obligation and such index for each such Collateral Obligation plus (II) for each such Collateral Obligation that provides for a minimum index amount, the excess, if any, of such minimum index amount over such index on such date of determination, over (y) the Base Rate in effect for the Accrual Period that includes such date of determination multiplied by (B) the Collateral Obligation Amount of each such Collateral Obligation.
“Agreement” means this Loan Financing and Servicing Agreement (including each annex, exhibit and schedule hereto), as it may be amended, restated, supplemented or otherwise modified from time to time.
“AIF” has the meaning given to the term under the AIFMD and/or UK AIFM Regulations as relevant.
“AIFM” has the meaning given to the term under the AIFMD and/or UK AIFM Regulations as relevant.
“AIFMD” means (a) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No. 1060/2009 and (EU) No. 1095/2010, as the same may be amended, supplemented, superseded or re-adopted from time to time (whether with or without qualification) and (b) any applicable law of a member state of the European Union implementing the AIFMD.
“Alternate Base Rate” means a fluctuating rate per annum as shall be in effect from time to time, which rate shall be at all times equal to the highest of:
“Amount Available” means, with respect to any Distribution Date, the sum of (a) the amount of Collections in the Collection Account with respect to the related Accrual Period plus (b) any investment income earned on amounts on deposit in the Collection Account since the immediately prior Distribution Date (or since the Closing Date in the case of the first Distribution Date) plus (c) any Repurchase Amounts deposited in the Collection Account and any Equityholder capital contributions with respect to the related Accrual Period.
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“Anti-Bribery and Corruption Laws” has the meaning set forth in Section 9.31(a).
“Anti-Money Laundering Laws” has the meaning set forth in Section 9.30(b).
“Applicable Banking Law” means, for any Person, all existing and future laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to anti-bribery and corruption, the funding of terrorist activities and money laundering, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, other applicable anti-bribery and corruption legislation, and Section 326 of the USA Patriot Act.
“Applicable Law” means, for any Person, all existing and future laws, rules, regulations (including temporary and final income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders, licenses of and interpretations by any Official Body applicable to such Person and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.
“Applicable Margin” means 2.65%; provided that (i) on the two year anniversary of the Closing Date, the Applicable Margin shall be increased by the addition thereto of 0.10% per annum and (ii) during any period while an Event of Default has occurred, the Applicable Margin shall be increased by the addition thereto of 2.00% per annum.
“Appraised Value” means, with respect to any Asset Based Loan, the most recently calculated appraised value of the pro rata portion of the underlying collateral securing such Collateral Obligation as determined by an Approved Valuation Firm.
“Approved Broker Dealer” means, with respect to any Loan, any broker dealer approved in writing by the Facility Agent in its commercially reasonable discretion.
“Approved Valuation Firm” means, with respect to any Collateral Obligation, any valuation firm either (a) specified on the Collateral Obligation Schedule or (b) otherwise approved in writing by the Facility Agent in its commercially reasonable discretion.
“Article 7 Transparency and Reporting Requirements” means the reporting requirements set out in Article 7(1) of the EU Securitization Regulation, together with any relevant technical standards adopted by the European Commission in relation thereto and, in each case, relevant guidance published in relation thereto as may be effective from time to time.
“Asset Based Loan” means any Loan where (i) the underwriting of such Loan was based primarily on the appraised value of the assets securing such Loan and (ii) advances in respect of such Loan are governed by a borrowing base relating to certain of the assets securing such Loan.
“Asset Coverage Ratio” means the ratio, determined on a consolidated basis based on the quarterly financial statements and/or annual financial statements, as applicable, of the Equityholder, without duplication, of (a) the fair market value of the total assets of the Equityholder and its consolidated Subsidiaries as required by, and as determined in accordance with, GAAP and Applicable Law and any orders of the Securities and Exchange Commission
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issued to the Equityholder, to be determined by the board of directors of the Equityholder and reviewed by its auditors on a quarterly basis, less all liabilities (other than Indebtedness, including Indebtedness hereunder) of the Equityholder and its consolidated Subsidiaries, to (b) the aggregate amount of Indebtedness of the Equityholder and its consolidated Subsidiaries, in each case as determined pursuant to the 1940 Act and any orders of the Securities and Exchange Commission issued to or with respect to the Equityholder thereunder, including any exemptive relief granted by the Securities and Exchange Commission with respect to the indebtedness of any Subsidiary for purposes of the calculation of such ratio under the 1940 Act.
“Assigned Participation Interest” means a Participation Interest acquired under the Master Participation Agreement.
“Available Funds” has the meaning set forth in Section 17.12.
“Average Life” means, as of any day with respect to any Collateral Obligation, the quotient obtained by dividing (i) the sum of the products of (a) the number of years (rounded up to the nearest one hundredth thereof) from such day to the respective dates of each successive Scheduled Collateral Obligation Payment of principal on such Collateral Obligation (assuming, for purposes of this definition, the full exercise of any option to extend the maturity date or otherwise lengthen the maturity schedule that is exercisable without the consent of the Borrower) multiplied by (b) the respective amounts of principal of such Scheduled Collateral Obligation Payments by (ii) the sum of all successive Scheduled Collateral Obligation Payments of principal on such Collateral Obligation.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Code” means the United States Bankruptcy Code, 11 U.S.C. § 101, et seq., as amended.
“Base Rate” means a rate per annum equal to Term SOFR for the Advance or portion thereof; provided, that in the case of:
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the “Base Rate” shall be a floating rate per annum equal to the Alternate Base Rate in effect on each day of such period.
“Basel III Regulation” shall mean, with respect to any Affected Person, any rule, regulation or guideline applicable to such Affected Person and arising directly or indirectly from (a) any of the following documents prepared by the Basel Committee on Banking Supervision of the Bank of International Settlements: (i) Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring (December 2010), (ii) Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems (June 2011), (iii) Basel III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring Tools (January 2013), or (iv) any document supplementing, clarifying or otherwise relating to any of the foregoing, or (b) any accord, treaty, statute, law, rule, regulation, guideline or pronouncement (whether or not having the force of law) of any Official Body implementing, furthering or complementing any of the principles set forth in the foregoing documents of strengthening capital and liquidity, in each case as from time to time amended, restated, supplemented or otherwise modified. Without limiting the generality of the foregoing, “Basel III Regulation” shall include Part 6 of the European Union regulation 575/2013 on prudential requirements for credit institutions and investment firms (the “CRR”) and any law, regulation, standard, guideline, directive or other publication supplementing or otherwise modifying the CRR.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published in May 2018 to comply with the Financial Crimes Enforcement Network customer due diligence rules.
“Beneficial Ownership Regulation” means 31 C.F.R. §1010.230.
“Benefit Plan Investor” means (a) any “employee benefit plan” (as defined in Section 3(3) of Title I of ERISA) that is subject to the fiduciary responsibility provisions of Title I of ERISA, (b) any “plan” as defined in Section 4975(e) of the Code that is subject to Section 4975 of the Code, or (c) any governmental or other plan or arrangement that is not subject to ERISA or to Section 4975 of the Code but is subject to any law or restriction substantially similar to Section 406 of ERISA or Section 4975 of the Code or (d) any entity whose underlying assets include “plan assets” of the foregoing employee benefit plans or plans (within the meaning of the DOL Regulations or otherwise).
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Borrower” has the meaning set forth in the Preamble.
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“Borrower Assigned Agreements” has the meaning set forth in Section 12.1(c).
“Borrowing Base” means, as of any date of determination, (i) the product of the lower of (a) the Weighted Average Advance Rate and (b) the Maximum Portfolio Advance Rate multiplied by the Adjusted Aggregate Eligible Collateral Obligation Balance plus (ii) the amount of Principal Collections on deposit in the Principal Collection Account.
“Business Day” means any day (and, solely for the purposes of determining Term SOFR, a day that is also a U.S. Government Securities Business Day) that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, Chicago, Illinois or the city in which the offices of the Collateral Agent or Collateral Custodian are located are authorized or obligated by law, executive order or government decree to remain closed; provided that, when used in connection with Term SOFR, the term “Business Day” shall also exclude any day that is not a U.S. Government Securities Business Day. All references to any “day” or any particular day of any “calendar month” shall mean a calendar day unless otherwise specified.
“Capital Call Line” has the meaning set forth in Section 7.4(q).
“Capped Fees/Expenses” means, at any time, the Collateral Agent Fees and Expenses and the Collateral Custodian Fees and Expenses, in an aggregate amount not to exceed $100,000 in any calendar year.
“Cause” means, with respect to an Independent Manager, (i) acts or omissions by such Independent Manager that constitute willful disregard of such Independent Manager’s duties as set forth in the Borrower’s Constituent Documents, (ii) that such Independent Manager has engaged in or has been charged with, or has been convicted of, fraud or other acts constituting a crime under any law applicable to such Independent Manager, (iii) that such Independent Manager is unable to perform his or her duties as Independent Manager due to death, disability or incapacity, or (iv) that such Independent Manager no longer meets the definition of “Independent Manager”.
“Change of Control” means any of (a) SCP Private Credit Income BDC LLC shall no longer own 100% of the membership interests of the Borrower (free and clear of any liens other than Permitted Liens), (b) SCP Private Credit (BDC) Access LP shall cease to own directly or indirectly at least a majority of the outstanding equity interests of the Servicer, (c) any “assignment” (as defined in Section 202(a)(1) of the Investment Advisors Act of 1940) of either (i) the Investment Management Agreement by the Investment Manager or (ii) the ownership interests of the Investment Manager and (d) the Investment Manager is no longer the investment manager of the Equityholder.
“Charges” means (i) all material federal, state, county, city, municipal, local, foreign or other governmental Taxes (including Taxes owed to the PBGC at the time due and payable); (ii) all material levies, assessments, charges, or claims of any governmental entity or any claims of statutory lienholders, the nonpayment of which could give rise by operation of law to a Lien on the Collateral Obligations or any other property of the Borrower and (iii) any such Taxes, levies, assessment, charges or claims which constitute a Lien or encumbrance on any property of the Borrower.
“Closing Date” means August 2, 2024.
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“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” has the meaning set forth in Section 12.1.
“Collateral Agent” means Computershare Trust Company, N.A., solely in its capacity as collateral agent hereunder, together with its successors and permitted assigns in such capacity.
“Collateral Agent and Collateral Custodian Fee Letter” means that certain fee schedule as accepted and acknowledged by the Borrower and hereby acknowledged by the Servicer and the Facility Agent, as the same may be amended, supplemented or otherwise modified by the parties thereto with the consent of the Facility Agent.
“Collateral Agent Fees and Expenses” has the meaning set forth in Section 11.11.
“Collateral Custodian” means Computershare Trust Company, N.A., solely in its capacity as collateral custodian, together with its successors and permitted assigns in such capacity.
“Collateral Custodian Fees and Expenses” has the meaning set forth in Section 18.10.
“Collateral Database” has the meaning set forth in Section 11.3(a)(i).
“Collateral Obligation” means a Loan owned by the Borrower, excluding the Retained Interest thereon.
“Collateral Obligation Amount” means for any Collateral Obligation, as of any date of determination, an amount equal to the product of (i) the Discount Factor of such Collateral Obligation at such time multiplied by (ii) the Principal Balance of such Collateral Obligation at such time; provided, that if the Effective LTV of any Asset Based Loan exceeds (as of such date of determination) the limit for the applicable Loan type set forth below, then the Principal Balance component of “Collateral Obligation Amount” of such Collateral Obligation will be automatically (and without any action by the Facility Agent) reduced by the amount necessary to cause such Collateral Obligation to comply with the applicable limit set forth below:
Asset Based Loan Type (by collateral source) |
Effective LTV Limit |
working capital |
90% |
fixed assets and real property |
65% |
intellectual property |
60% |
The Collateral Obligation Amount of any Collateral Obligation that ceases to be or otherwise is not an Eligible Collateral Obligation shall be zero.
“Collateral Obligation File” means, with respect to each Collateral Obligation as identified on the related Document Checklist, (i)(A) if the Collateral Obligation includes a note, (x) an original, executed copy of the related promissory note, or (y) in the case of a lost promissory note, a copy of the executed underlying promissory note accompanied by an original executed affidavit and indemnity endorsed by the Borrower or the prior holder of record either in blank or to the Collateral Agent, in each case with respect to clause (x) or clause (y) with an unbroken chain of endorsements from each prior holder of such promissory note to the Borrower or to the Collateral
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Agent, or in blank, or (B) in the case of a noteless Collateral Obligation, a copy of each executed document or instrument evidencing the assignment of such Collateral Obligation to the Borrower, (ii) paper or electronic copies of the related loan agreement, and (to the extent received by the Borrower) any guaranty, security agreement, intercreditor agreement or any other material agreement (as determined by the Servicer in its reasonable discretion), (iii) with respect to each Collateral Obligation originated by the Equityholder and with respect to which the Equityholder acts as administrative agent (or in a comparable capacity), paper or electronic copies of the file‑stamped (or the electronic equivalent of) UCC financing statements and continuation statements (including amendments or modifications thereof) authorized by the Obligor thereof or by another Person on the Obligor’s behalf in respect of such Collateral Obligation or evidence that such financing statements have been submitted for filing, in each case only to the extent reasonably available to the Servicer, and (iv) any other document included on the related Document Checklist that is reasonably requested by any Agent and reasonably available to the Servicer.
“Collateral Obligation Schedule” means the list of Collateral Obligations and other information set forth on Schedule 3.
“Collateral Quality Tests” means, collectively or individually as the case may be, the Minimum Diversity Test, the Minimum Weighted Average Spread Test and the Maximum Weighted Average Life Test.
“Collection Account” means a segregated, non-interest bearing securities account (within the meaning of Section 8-501 of the UCC) number 83035200, which is created and maintained on the books and records of the Securities Intermediary entitled “Collection Account” in the name of the Borrower and subject to the Lien of the Collateral Agent for the benefit of the Secured Parties.
“Collections” means the sum of all Interest Collections and Principal Collections received with respect to the Collateral.
“Commercial Paper Rate” for the Advance means, to the extent a Conduit Lender funds the Advance by issuing commercial paper, the sum of (i) the weighted average of the rates at which commercial paper notes of such Conduit Lender issued to fund the Advance (which shall include commissions of placement agents and dealers, incremental carrying costs incurred with respect to its commercial paper maturing on dates other than those on which corresponding funds are received by the Conduit Lender and costs or other borrowings by the Conduit Lender (other than under any related support facility)) may be sold by any placement agent or commercial paper dealer selected by such Conduit Lender, as agreed in good faith between each such agent or dealer and such Conduit Lender; provided, that if the rate (or rates) as agreed between any such agent or dealer and such Conduit Lender for the Advance is a discount rate (or rates), then such rate shall be the rate (or if more than one rate, the weighted average of the rates) resulting from converting such discount rate (or rates) to an interest‑bearing equivalent rate per annum plus, without duplication (ii) any and all reasonable costs and expenses of any issuing and paying agent or other Person responsible for the administration of such Conduit Lender’s commercial paper program in connection with the preparation, completion, issuance, delivery or payment of commercial paper issued to fund the making or maintenance of the Advance. Each Conduit Lender shall notify the Facility Agent of its Commercial Paper Rate applicable to the Advance promptly after the determination thereof.
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“Commitment” means, for each Committed Lender, (a) on or prior to the Closing Date, the commitment of such Committed Lender to make the Advance to the Borrower on the Closing Date in an amount not to exceed the amount set forth opposite such Committed Lender’s name on Annex B or pursuant to the assignment executed by such Committed Lender and its assignee(s) and delivered pursuant to Article XV (as such Commitment may be reduced as set forth in Section 2.5), and (b) on and after the making of the Advance on the Closing Date, such Committed Lender’s pro rata share of the Advance outstanding.
“Committed Lenders” means, for any Lender Group, the Person(s) executing this Agreement in the capacity of a “Committed Lender” for such Lender Group (or an assignment hereof in accordance with Article XV) in accordance with the terms of this Agreement.
“Competitor” means any investment fund or other Person (other than a bank or an insurance company) that is primarily in the business of originating portfolios of non-investment grade middle market loans.
“Conduit Lender” means any Person that shall become a party to this Agreement in the capacity as a “Conduit Lender” and any assignee of any of the foregoing.
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Constituent Documents” means, for any Person, its constituent or organizational documents, including: (a) in the case of any limited partnership, exempted limited partnership, joint venture, trust or other form of business entity, the limited partnership agreement, exempted limited partnership agreement, joint venture agreement, articles of association or other applicable certificate or agreement of registration or formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state or jurisdiction of its formation; (b) in the case of any limited liability company, the certificate or articles of formation, limited liability company agreement and operating agreement (as applicable); (c) in the case of a corporation or an exempted company, the certificate or articles of incorporation or association and the bylaws, or its memorandum and articles of association (as applicable); and (d) in the case of any trust, the trust deed, declaration of trust or equivalent establishing such trust, in each such case as it may be restated, modified, amended or supplemented from time to time.
“Contribution Agreement” means the Contribution Agreement, dated as of the date hereof, by and between the Equityholder, as seller, and the Borrower, as purchaser.
“Corporate Trust Office” means the applicable designated corporate trust office of the Collateral Agent or the Collateral Custodian, as applicable, specified on Annex A hereto, or such other address within the United States as it may designate from time to time by notice to the Facility Agent.
“Cost of Funds Rate” means, for any Accrual Period and any Lender, the rate determined as set forth below:
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“Covered Entity” means any of the following:
“Critical Component” means, in respect of a weapons system referred to in the definition of Prohibited Defense Asset, a component used specifically in the production of the weapon system or plays a direct role in the lethality of the weapon system.
“Cut‑Off Date” means, with respect to each Collateral Obligation, the date such Collateral Obligation becomes part of the Collateral.
“Data Room” means an electronic password protected data room maintained by the Borrower (or by the Servicer on behalf of Borrower) at Intralinks, SyndTrak Online or any other similar electronic distribution system reasonably acceptable to the Facility Agent.
“DB Tranched First Lien Loan” means any portion of an Enterprise Value Loan that is a First Lien Loan and that is deemed “synthetically tranched last out” by the Facility Agent in its sole discretion pursuant to either (i) Schedule 3 or (ii) written notice provided in accordance with Section 2.7.
“DBNY” means Deutsche Bank AG, New York Branch, and its successors.
“DBRS” shall mean DBRS, Inc. or any successor that is a nationally recognized statistical rating organization.
“Debt-to-Cash Equity Ratio” means, with respect to an Obligor, as of any date of determination, the ratio of (i)(A) the sum of the amount that such Obligor has outstanding under
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advances from the Borrower or other debt obligations owed to the Borrower under all Collateral Obligations with such Obligor plus (B) the sum of all other outstanding indebtedness or liabilities of such Obligor for borrowed money that is pari passu with or senior to any advance or other debt obligation owed to the Borrower over (ii) the sum of such ▇▇▇▇▇▇▇’s contributed capital, plus the undrawn committed capital of such Obligor for which there is no contingent obligation to provide funds on such date.
“Debt-to-Enterprise Value Ratio” means, with respect to an Obligor, as of any date of determination, the ratio of (i)(A) the sum of the amount that such Obligor has outstanding under advances from the Borrower or other debt obligations owed to the Borrower under all Collateral Obligations with such Obligor plus (B) the sum of all other outstanding indebtedness or liabilities of such Obligor for borrowed money that is pari passu with or senior to any advance or other debt obligation owed to the Borrower over (ii) such Obligor’s enterprise value on such date (calculated as the sum of (A) the market capitalization of such Obligor on such date plus (B) the net debt of such Obligor on such date).
“Debt-to-Recurring-Revenue Ratio” means, with respect to any Multiple of Recurring Revenue Loan for any period, the meaning of “Debt-to-Recurring Revenue Ratio” or any comparable definition in the Underlying Instruments for each Loan, and in any case that “Debt-to-Recurring Revenue Ratio” or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) Indebtedness of the related Obligor less Unrestricted Cash, to (b) recurring revenue, as calculated by the Servicer in accordance with the Servicing Standard using information from and calculations consistent with the relevant compliance statements and financial reporting packages provided by the relevant Obligor as per the requirements of the related Underlying Instruments, and approved by the Facility Agent as set forth on Schedule 3; provided that, in the event of a lack of any such information necessary to calculate the Debt-to-Recurring Revenue Ratio, a Revaluation Event shall occur as set forth in the definition thereof.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Defaulted Collateral Obligation” means any Collateral Obligation as to which any one of the following events has occurred:
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“Deferrable Collateral Obligation” means a Collateral Obligation that by its terms permits the deferral or capitalization of payment of accrued and unpaid interest.
“Determination Date” means the last calendar day of each month, or if such day is not a Business Day, the next succeeding Business Day.
“Discount Factor” means, with respect to each Collateral Obligation and as of any date of determination, the value (expressed as a percentage of par) of such Collateral Obligation as determined by the Facility Agent in its sole discretion in accordance with Section 2.7.
“Distribution Date” means the 15th calendar day of each month, or if such date is not a Business Day, the next succeeding Business Day, commencing in September 2024.
“Diversity Score” means, as of any day, a single number that indicates collateral concentration in terms of both issuer and industry concentration, calculated as set forth in Schedule 1 hereto, as such diversity scores shall be updated if Moody’s publishes revised criteria and such revised criteria is consistent with the internal methodology of the Facility Agent.
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“Document Checklist” means an electronic or hard copy list delivered by the Borrower (or by the Servicer on behalf of the Borrower) to the Collateral Custodian that identifies each of the documents that have been included in or may be requested by any Agent to be included in each Collateral Obligation File whether such document is an original or a copy and whether a hard copy or electronic copy will be delivered to the Collateral Custodian related to a Collateral Obligation and includes the name of the Obligor with respect to such Collateral Obligation, in each case as of the related Funding Date.
“DOL Regulations” means regulations promulgated by the U.S. Department of Labor at 29 C.F.R. § 2510.3 101, as modified by Section 3(42) of ERISA, and at 29 C.F.R. § 2550.401c-1.
“Dollar(s)” and the sign “$” mean lawful money of the United States of America.
“EBITDA” means, with respect to any period and any Collateral Obligation, the meaning of “EBITDA,” “Adjusted EBITDA” or any comparable definition in the Underlying Instruments for each such Collateral Obligation. In any case that “EBITDA,” “Adjusted EBITDA” or such comparable definition is not defined in such Underlying Instruments, an amount, for the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Collateral Obligation pursuant to its Underlying Instruments (determined on a consolidated basis without duplication in accordance with GAAP) equal to earnings from continuing operations for such period plus interest expense, income taxes, depreciation, amortization and, to the extent approved by the Facility Agent in Schedule 3 or otherwise, any other non-cash charges and organization costs deducted in determining earnings from continuing operations for such period, and, to the extent approved by the Facility Agent in Schedule 3 on a Collateral Obligation by Collateral Obligation basis, costs and expenses reducing earnings and other extraordinary non-recurring costs and expenses for such period (to the extent deducted in determining earnings from continuing operations for such period).
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution to the extent such public administrative authority or person has the authority to exercise Write-Down and Conversion Powers.
“Effective Advance Rate” means, as of any date of determination, (a) the Advance outstanding on such date divided by (b) the sum of (i) the Adjusted Aggregate Eligible Collateral
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Obligation Balance on such date plus (ii) the amount of Principal Collections on deposit in the Principal Collection Account on such date.
“Effective Equity” means, as of any day, the greater of (x) the Aggregate Eligible Collateral Obligation Amount plus the amount of Principal Collections on deposit in the Principal Collection Account minus the outstanding principal amount of the Advance and (y) $0.
“Effective LTV” means, with respect to any Asset Based Loan as of any date of determination, the result, expressed as a percentage, of (i) the Principal Balance of such Collateral Obligation divided by (ii) the Appraised Value of such Collateral Obligation as of such date.
“Eligible Account” means (i) a segregated trust account or (ii) a segregated direct deposit account, in each case, maintained with a securities intermediary or trust company organized under the laws of the United States of America, or any of the States thereof, or the District of Columbia, having a certificate of deposit, short term deposit or commercial paper rating of at least A‑1 by Standard & Poor’s and P‑1 by Moody’s; provided that Computershare Trust Company, N.A. in its capacity as Securities Intermediary shall not be required to satisfy such rating requirement so long as the Collateral credited to each Account are deposited with and held by an institution that does meet such ratings. In either case, such depository institution or trust company shall have been approved by the Facility Agent, acting in its reasonable discretion, by written notice to the Servicer. DBNY and Computershare Trust Company, N.A. are deemed to be acceptable securities intermediaries to the Facility Agent.
“Eligible Collateral Obligation” means, on any Measurement Date, each Collateral Obligation that satisfies the following conditions (unless otherwise waived by the Facility Agent in its sole discretion):
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“Eligible Obligor” means, on any day, any Obligor that (i) is a Person (other than a natural person) that is duly organized and validly existing under the laws of, the United States or any state or territory thereof, (ii) is a legal operating entity or holding company, (iii) is not an Official Body, (iv) is not insolvent, (v) is required to pay all maintenance, repair, insurance and taxes related to the collateral securing the related Collateral Obligation, (vi) is not a Non-Sustainable Obligor and (vii) is not in a Prohibited Industry.
“Enterprise Value Loan” means any Loan that is not an Asset Based Loan, a Multiple of Recurring Revenue Loan or a Life Sciences Loan; provided that, with respect to any Loan that was a Multiple of Recurring Revenue Loan (for which the covenants set forth in the related Underlying Instrument relate to the “Debt-to-Recurring Revenue Ratio” or any comparable definition in the Underlying Instruments for such Loan) as of the Cut-Off Date but subsequently became an Enterprise Value Loan (for which the covenants set forth in the related Underlying Instrument relate to a “Leverage Multiple” or any comparable definition in such Underlying Instrument for such Loan), the Borrower shall provide notice of such transition to the Facility Agent and the Facility Agent may, in its sole discretion and as set forth on Schedule 3, deem such Loan to be an
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Enterprise Value Loan for all purposes hereunder (provided that such Loan shall remain a Multiple of Recurring Revenue Loan pending approval by the Facility Agent as an Enterprise Value Loan).
“Environmental Laws” means any and all foreign, federal, state and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations and orders of courts or any other Official Body, relating to the protection of human health or the environment, including requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials. Environmental Laws include the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. § 331 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. § 300, et seq.), the Environmental Protection Agency’s regulations relating to underground storage tanks (40 C.F.R. Parts 280 and 281), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), and the rules and regulations thereunder, each as amended or supplemented from time to time.
“Equity Cure Notice” means a notice from the Borrower to the Facility Agent which satisfies each of the following conditions:
provided that no Equity Cure Notice may be delivered if, with respect to any prior capital call duly made by the Equityholder in accordance with the terms of its constituent documents, the Equityholder shall have received by the applicable due date (after all applicable grace periods elapsed) less than 90% (measured as a percentage of the aggregate amount of such capital call) of such capital call with no more than three (3) unaffiliated members defaulting on such capital call; provided, further, that the Equityholder shall provide prompt written notice to the Facility Agent of the occurrence of the foregoing; provided, further, that if the Equityholder is unable to raise the required capital to cure any such event, the Equityholder shall not be permitted to deliver any future Equity Cure Notices.
The Borrower (or the Servicer on its behalf) shall forward a copy of each Equity Cure Notice to the Facility Agent (with a copy to the Collateral Agent and each Agent promptly) following receipt of such Equity Cure Notice.
“Equity Interest” has the meaning set forth in Section 10.22(a).
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“Equity Security” means any asset that is not a First Lien Loan, Enterprise Value Loan, Asset Based Loan, Multiple of Recurring Revenue Loan, Life Sciences Loan or Permitted Investment, in each case as included on Schedule 3 hereto.
“Equityholder” has the meaning set forth in the Preamble.
“Equityholder Collateral Obligation” means (i) a Collateral Obligation that the Equityholder itself or through a wholly-owned subsidiary, directly or indirectly, was involved in the Underlying Instrument which created such Collateral Obligation (an “Equityholder Originated Collateral Obligation”); or (ii) a Collateral Obligation that the Equityholder purchased (directly or indirectly) from an Affiliate for its own account and then securitized it (a “Equityholder Acquired Collateral Obligation”).
“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time, including all regulations promulgated thereunder.
“ERISA Affiliate” means any Person that, for purposes of Title IV of ERISA, is a member of the Borrower’s “controlled group” or is under “common control” with the Borrower, within the meaning of Section 414 of the Code.
“ERISA Event” means (a) the occurrence with respect to a Plan of a reportable event, within the meaning of Section 4043 of ERISA, unless the thirty (30)-day notice requirement with respect thereto has been waived by the PBGC; (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such a Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Borrower or any ERISA Affiliate in the circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by the Borrower or any ERISA Affiliate from a Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions set forth in Section 430(k) of the Code or Section 303(k)(1)(A) and (B) of ERISA to the creation of a lien upon property or assets or rights to property or assets of the Borrower or any ERISA Affiliate for failure to make a required payment to a Plan are satisfied; (g) the termination of a Plan by the PBGC pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan; (h) any failure by any Plan to satisfy the minimum funding standards of Sections 412 or 430 of the Code or Section 302 of ERISA, whether or not waived; (i) the determination that any Plan is or is expected to be in “at-risk” status, within the meaning of Section 430 of the Code or Section 303 of ERISA, (j) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of liability with respect to the withdrawal or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or is expected to be, “insolvent” (within the meaning of Section 4245 of ERISA), in “endangered” or “critical” status (within the meaning of Section 432 of the Code or Section 305 of ERISA), or terminated (within the meaning of Section 4041A or Section 4042 of ERISA); (k) the failure of the Borrower or any ERISA Affiliate to pay when due (after expiration of any applicable grace period) any installment payment with respect to withdrawal liability under Section 4201 of ERISA; (l) the Borrower or any ERISA Affiliate incurs any liability under Title
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IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA); or (m) the Borrower or any ERISA Affiliate commits any act (or omission) which could give rise to the imposition of fines, penalties, taxes, or related charges under ERISA or the Code.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EU Risk Retention Requirement” means the risk retention requirement under Article 6(1) of the EU Securitization Regulation.
“EU Securitization Regulation” means Regulation (EU) 2017/2402 (as amended by Regulation (EU) 2021/557) and, except as otherwise stated, as further amended from time to time.
“EU Securitization Rules” means (a) the EU Securitization Regulation; (b) any supplementary regulatory technical standards, implementing technical standards and any official guidance published in relation thereto by the European Supervisory Authorities or the European Commission; and (c) any implementing laws or regulations (all, except as otherwise stated, as amended from time to time).
“European Supervisory Authorities” means, together, the European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority (including any predecessor, successor or replacement organization thereto).
“Event of Default” means any of the events described in Section 13.1.
“Excess Concentration Amount” means, as of the Closing Date, $0.
“Excess Funds” means, as of any date of determination with respect to any Conduit Lender, funds of such Conduit Lender not required, after giving effect to all amounts on deposit in its commercial paper account, to pay or provide for the payment of (i) all of its matured and maturing commercial paper notes on such date of such determination and (ii) the principal of and interest on all of its loans outstanding on such date of such determination.
“Excluded Amounts” means, as of any date of determination, (i) any amount deposited into the Collection Account with respect to any Collateral Obligation, which amount is attributable to the reimbursement of payment by the Borrower of any Tax, fee or other charge imposed by any Official Body on such Collateral Obligation or on any Related Security, (ii) any interest or fees (including origination, agency, structuring, management or other up-front fees) that are for the account of the applicable Person from whom the Borrower purchased such Collateral Obligation, (iii) any reimbursement of insurance premiums, (iv) any escrows relating to Taxes, insurance and other amounts in connection with Collateral Obligations which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under Underlying Instruments, (v) any amount deposited into the Collection Account in error (including any amounts relating to any portion of an asset sold by the Borrower and occurring after the date of such sale) or (vi) payments by the Obligors of indemnification obligations and reimbursements for actually incurred out-of-pocket expenses, in each case that are not received in lieu of principal, interest or fees owed under the related Underlying Instruments.
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“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Obligations pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Obligations (other than pursuant to Section 17.16) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 4.3, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 4.3(f) and (d) any Taxes imposed under FATCA.
“Executive Officer” means, with respect to the Borrower, the Servicer or the Equityholder, the Chief Executive Officer, the Chief Operating Officer of such Person or any other Person included on the incumbency certificate of the Borrower, Servicer or Equityholder, as applicable, delivered pursuant to Section 6.1(g) and, with respect to any other Person, the President, Chief Financial Officer or any Vice President.
“Extension Request” has the meaning set forth in the Section 2.6.
“Facility Agent” has the meaning set forth in the Preamble.
“Facility Amount” means, as of any date of determination after the Closing Date, the outstanding principal amount of the Advance; provided that in no event shall the Facility Amount exceed the Maximum Facility Amount.
“Facility Termination Date” means the earliest to occur of (i) the date that is three (3) years from the Closing Date or, if such date is extended pursuant to Section 2.6, the date mutually agreed upon by the Borrower (or the Servicer on behalf of the Borrower) and the Lenders, (ii) an Event of Dissolution (as defined in the Equityholder’s Constituent Documents), whereupon the Investment Manager or a liquidator or other representative appointed by a majority of the investors shall proceed with the sale or liquidation of all of the assets belonging to the Equityholder and (iii) the effective date on which the facility hereunder is terminated and all of the outstanding principal amount of the Advance and the other Obligations have become due and payable pursuant to Section 13.2.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreement entered into in connection with such sections of the Code and any legislation, law, regulation or practice enacted or promulgated pursuant to such intergovernmental agreement.
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“Federal Funds Rate” means, for any period, the greater of (a) 0.0% and (b) a fluctuating rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Facility Agent from three federal funds brokers of recognized standing selected by it.
“Fee Letter” has the meaning set forth in Section 8.4.
“Fees” has the meaning set forth in Section 8.4.
“First Amendment Closing Date” means June 4, 2025.
“First Lien Loan” means any Loan that (i) is not (and is not permitted by its terms become) subordinate in right of payment to any obligation of the related Obligor in any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, (ii) is secured by a pledge of specified collateral, which security interest is validly perfected and first priority under Applicable Law (subject to liens permitted under the applicable Underlying Instruments, and liens accorded priority by law in favor of any Official Body) and (iii) the Servicer determines in good faith that the value of the collateral or the enterprise value securing the Loan on or about the time of origination or acquisition equals or exceeds the outstanding principal balance of the Loan plus the aggregate outstanding balances of all other loans of equal or higher seniority secured by the same collateral.
“Fitch” means Fitch Ratings, Inc., Fitch Ratings Ltd. and their subsidiaries, including Derivative Fitch Inc. and Derivative Fitch Ltd. and any successor thereto.
“Fixed Rate Collateral Obligation” means any Collateral Obligation that bears a fixed rate of interest.
“Floating Rate Note” means a floating rate note issued pursuant to an indenture or equivalent document by a corporation, partnership, limited liability company, trust or other person that is secured by a first or second priority perfected security interest or lien in or on specified collateral securing the issuer’s obligations under such note.
“Foreign Lender” means a Lender that is not a U.S. Person.
“FRS Board” means the Board of Governors of the Federal Reserve System and, as applicable, the staff thereof.
“Funding Date” means the Advance Date.
“GAAP” means generally accepted accounting principles in the United States, which are applicable to the circumstances as of any day.
“GBSA” means the German Act on the Ring-fencing of Risks and for the Recovery and Resolution Planning for Credit Institutions and Financial Groups (Gesetz zur Abschirmung von
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Risiken und zur Planung der Sanierung und Abwicklung von Kreditinstituten und Finanzgruppen) of 7 August 2013 (commonly referred to as the German Bank Separation Act) (Trennbankengesetz), as amended.
“Hazardous Materials” means all materials subject to any Environmental Law, including materials listed in 49 C.F.R. § 172.101, materials defined as hazardous pursuant to § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, flammable, explosive or radioactive materials, hazardous or toxic wastes or substances, lead‑based materials, petroleum or petroleum distillates or asbestos or material containing asbestos, polychlorinated biphenyls, radon gas, urea formaldehyde and any substances classified as being “in inventory”, “usable work in process” or similar classification that would, if classified as unusable, be included in the foregoing definition.
“IFRS” means international financial reporting standards applicable to private enterprises in the applicable jurisdiction, which are applicable to the circumstances as of any day.
“Increased Costs” means, collectively, any increased cost, loss or liability owing to the Facility Agent and/or any other Affected Person under Article V.
“Indebtedness” means, with respect to any Person, as of any day, without duplication: (i) all obligations of such Person for borrowed money; (ii) all obligations of such Person evidenced by bonds, debentures, notes, deferrable securities or other similar instruments; (iii) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business; (iv) all obligations of such Person as lessee under capital leases; (v) all non-contingent obligations of such Person to reimburse or prepay any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument; (vi) all debt of others secured by a Lien on any asset of such Person, whether or not such debt is assumed by such Person; and (vii) all debt of others guaranteed by such Person and other contingent obligations to purchase, to provide funds for payment, to supply funds to invest in any Person or otherwise to assure a creditor against loss.
“Indemnified Amounts” has the meaning set forth in Section 16.1.
“Indemnified Party” has the meaning set forth in Section 16.1.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Transaction Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Independent Accountants” means a firm of nationally recognized independent certified public accountants.
“Independent Manager” means with respect to any Person, that such Person is an individual who has prior experience as an independent director, independent manager, independent limited partner or independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, ▇▇▇▇▇▇▇ & Associates, National Registered Agents, Inc., Wilmington Trust Company, Lord Securities Corporation, Global Securitization Services, LLC or an Affiliate thereof or, if none of those companies is then
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providing professional independent managers or members, another nationally-recognized company reasonably approved by the Facility Agent, in each case that is not an Affiliate of the Borrower and that provides professional independent directors, managers, limited partners and/or members and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager and is not, and has never been, and will not while serving as Independent Manager be, any of the following:
“Information” has the meaning set forth in Section 17.14(b).
“Insolvency Event” means, with respect to any Person, (a) the entry of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under any applicable federal or state bankruptcy, winding-up, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding‑up or liquidation of such Person’s affairs, or the commencement of an involuntary case under the federal bankruptcy laws, as now or hereinafter in effect, or another present or future federal or state bankruptcy, insolvency or similar law and such case is not dismissed within 60 days; (b) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or such Person shall admit in writing its inability to pay its debts as such debts become due, or the taking of action by such Person in furtherance of any of the foregoing or (c) any analogous procedure or step is taken in any jurisdiction to which such Person is subject.
“Interest Collection Account” means a segregated, non-interest bearing securities account (within the meaning of Section 8-501 of the UCC) number 83035202, which is created and
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maintained on the books and records of the Securities Intermediary entitled “Interest Collection Account” in the name of the Borrower and subject to the prior Lien of the Collateral Agent for the benefit of the Secured Parties, which is established and maintained pursuant to Section 8.1(a).
“Interest Collections” means, with respect to the Collateral following the applicable Cut-Off Date, (i) all payments and collections owing to or received by the Borrower in its capacity as lender and attributable to interest on any Collateral Obligation or other Collateral, including scheduled payments of interest and payments of interest relating to principal prepayments, all guaranty payments attributable to interest and proceeds of any liquidations, sales, dispositions or securitizations attributable to interest on such Collateral Obligation or other Collateral, (ii) any commitment, ticking, upfront or amendment fees received in respect of any Collateral Obligation and (iii) the earnings on Interest Collections in the Collection Account that are invested in Permitted Investments, in each case other than Retained Interests; provided that, any amounts received in respect of any Defaulted Collateral Obligation will constitute Principal Collections (and not Interest Collections) until the aggregate of all collections in respect of such Defaulted Collateral Obligation since it became a Defaulted Collateral Obligation equals the outstanding principal balance of such Loan at the time it became a Defaulted Collateral Obligation.
“Interest Rate” means, for any Accrual Period and any Lender, a rate per annum equal to the sum of (a) the Applicable Margin and (b) the Cost of Funds Rate for such Accrual Period and such Lender.
“Investment Management Agreement” means the first amended and restated investment management agreement, dated as of February 20, 2020, between the Equityholder and the Investment Manager.
“Investment Manager” means SLR Capital Partners, LLC, in its capacity as investment advisor of the Equityholder.
“IRS” means the United States Internal Revenue Service.
“Lender” means each Conduit Lender, each Committed Lender and each Uncommitted Lender, as the context may require.
“Lender Group” means each Lender and related Agent from time to time party hereto.
“Leverage Multiple” means, with respect to any Collateral Obligation for the most recent relevant period of time for which the Borrower has received the financial statements of the relevant Obligor, the ratio of (i) Indebtedness of the relevant Obligor (other than Indebtedness of such Obligor that is junior in terms of payment or lien subordination (including unsecured Indebtedness) to Indebtedness of such Obligor held by the Borrower) less unrestricted cash of the relevant Obligor to (ii) EBITDA of such Obligor.
“Lien” means any security interest, security assignment, lien, charge, pledge, preference, equity or encumbrance of any kind, including Tax liens, mechanics’ liens and any liens that attach by operation of law.
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“Life Sciences Loan” means any Collateral Obligation for which the related Obligor provides products and services primarily including, but not limited to, medical devices, biopharmaceuticals, drug discovery and drug delivery.
“Loan” means any commercial loan (or, if applicable, a Participation Interest therein acquired on the Closing Date).
“Loan Register” has the meaning set forth in Section 15.5(a).
“Loan Registrar” has the meaning set forth in Section 15.5(a).
“Margin Stock” means “Margin Stock” as defined under Regulation U issued by the FRS Board.
“Master Participation Agreement” means the Master Participation and Assignment Agreement dated as of the Closing Date between the Borrower, as transferee, and the Equityholder, as transferor.
“Material Action” means an action to institute proceedings to have the Borrower be adjudicated bankrupt or insolvent, to file any insolvency case or proceeding, to institute proceedings under any applicable insolvency law, to seek relief under any law relating to relief from debts or the protection of debtors, or consent to the institution of bankruptcy or insolvency proceedings against the Borrower or file a petition seeking, or consent to, reorganization or relief with respect to the Borrower under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Borrower or a substantial part of its property, or make any assignment for the benefit of creditors of the Borrower, or admit in writing the Borrower’s inability to pay its debts generally as they become due, or take action in furtherance of any such action.
“Material Adverse Effect” means a material adverse effect on: (a) the assets, operations, properties, financial condition, or business of the Borrower or the Servicer; (b) the ability of the Borrower or the Servicer to perform its obligations under this Agreement or any of the other Transaction Documents; (c) the validity or enforceability of this Agreement, any of the other Transaction Documents, or the rights and remedies of the Secured Parties hereunder or thereunder taken as a whole; or (d) the aggregate value of the Collateral or on the assignments and security interests granted by the Borrower in this Agreement.
“Material Modification” means any amendment or waiver of, or modification or supplement to, any Underlying Instrument governing a Collateral Obligation executed or effected on or after the related Cut-Off Date which:
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“Maximum Facility Amount” means the lower of (a) $226,118,408, unless this amount is permanently reduced pursuant to Section 2.5 and (b) the Borrowing Base calculated as of the Closing Date.
“Maximum Portfolio Advance Rate” means 65.0%.
“Maximum Weighted Average Life Test” means a test that will be satisfied on any date of determination if the Weighted Average Life of all Eligible Collateral Obligations included in the Collateral is less than or equal to 3.5 years.
“Measurement Date” means each of the following, as applicable: (i) the Closing Date; (ii) each Determination Date; (iii) the Funding Date; (iv) the date of any repayment or prepayment pursuant to Section 2.4; (v) the date that the Servicer has actual knowledge of the occurrence of any Revaluation Event with respect to any Collateral Obligation; (vi) the date of any optional repurchase or substitution pursuant to Section 7.11; (vii) the date of any Optional Sale and (viii) each date on which there is a change to the Target Loan Amount or the Target Advance Rate in accordance with the respective definitions thereof.
“Minimum Diversity Test” means a test that will be satisfied on any date of determination if the Diversity Score of all Eligible Collateral Obligations included in the Collateral is equal to or greater than 10.
“Minimum Equity Test” means a test that will be satisfied on any date of determination if the Effective Equity is not less than the Required Equity.
“Minimum Weighted Average Spread Test” means a test that will be satisfied on any date of determination if the Weighted Average Spread of all Eligible Collateral Obligations included in the Collateral on such date is equal to or greater than 5.25%.
“Monthly Report” means a monthly report in the form of Exhibit D prepared as of the close of business on each Reporting Date.
“▇▇▇▇▇’▇” means ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“▇▇▇▇▇’▇ Industry Classification” means the industry classifications set forth in Schedule 2, as such industry classifications shall be updated at the option of the Facility Agent in its sole discretion if (i) Moody’s publishes revised industry classifications and (ii) the application of such revised industry classifications to this facility is necessary to avoid an increased regulatory capital charge for the Facility Agent or its Affiliates that are Lenders hereunder.
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“Multiemployer Plan” means a multiemployer plan, as defined in Section 3(37) or Section 4001(a)(3) of ERISA, as applicable, in respect of which the Borrower or any ERISA Affiliate has or could have any obligation or liability, contingent or otherwise.
“Multiple of Recurring Revenue Loans” means any Loan that is structured based on a multiple of the related Obligor’s Revenue.
“Non-Sustainable Obligor” means any Obligor (a) currently engaged (i) in activities within or in close proximity to World Heritage Sites that might impact the outstanding universal values of the site as defined by the United Nationals Educational, Scientific and Cultural Organization, (ii) in activities located in or involving the clearing of primary tropical moist forests, illegal logging or uncontrolled and/or illegal use of fire (iii) as an upstream producer and / or processor of palm oil and palm fruit products that is not a member or certified in accordance with the Roundtable on Sustainable Palm Oil (“RSPO”) or time-bound committed toward RSPO certification, (iv) in expanding an existing or developing a new coal-fired power irrespective of location, (v) in developing greenfield thermal coal mining, or (vi) in using mountain top removal as an extraction method in mining or (b) in relation to which there is evidence of child or forced labor in accordance with international labor conventions or other human rights violations such as slavery, forced or compulsory labor and human trafficking as defined by the Modern Slavery Act 2015.
“Note” means a promissory grid note, in the form of Exhibit A, made payable to an Agent on behalf of the related Lender Group.
“Note Agent” has the meaning set forth in Section 14.1.
“Obligations” means all obligations (monetary or otherwise) of the Borrower to the Lenders, the Agents, the Collateral Agent, the Collateral Custodian, the Facility Agent or any other Affected Person or Indemnified Party arising under or in connection with this Agreement, the Notes and each other Transaction Document.
“Obligor” means any Person that (x) owes payments under any Collateral Obligation and (y) is indicated as a primary obligor on Schedule 3 with respect to such Collateral Obligation, solely for purposes of calculating the Excess Concentration Amount pursuant to clause (b) or (c) of the definition thereof, any Obligor that is an Affiliate of another Obligor shall be treated as the same Obligor; provided that for purposes of this definition, the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common financial sponsor.
“Obligor Information” means, with respect to any Obligor, (i) the legal name and address and, if available to the Servicer using commercially reasonable efforts, tax identification number of such Obligor; (ii) the jurisdiction in which such Obligor is domiciled; (iii) the audited financial statements for the two prior fiscal years of such Obligor (or such shorter period of time for which such audited financial statements have been prepared and are available); (iv) the Servicer’s internal credit memo with respect to the Obligor and the related Collateral Obligation, (v) the annual report for the most recent fiscal year of such Obligor, (vi) a company forecast of such Obligor including plans related to capital expenditures, (vii), the business model, company strategy and names of known peers of such Obligor, (viii) the shareholding pattern and details of the management team
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of such Obligor, (ix) details of any banking facilities and the debt maturity schedule of such Obligor and (x) such other information reasonably available to the Servicer as the Facility Agent may reasonably request; provided that to the extent any of the above information is unavailable, the Servicer will notify the Facility Agent of such missing information, and the Facility Agent may, in its sole discretion, provide a waiver with respect to such information.
“OFAC” has the meaning set forth in Section 9.30(a).
“Officer’s Certificate” means a certificate signed by an Executive Officer.
“Official Body” means any government or political subdivision or any agency, authority, regulatory body, bureau, central bank, commission, department or instrumentality of any such government or political subdivision, or any court, tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
“Opinion of Counsel” means a written opinion of independent counsel reasonably acceptable in form and substance and from counsel reasonably acceptable to the Facility Agent.
“Optional Sale” has the meaning set forth in Section 7.10.
“Original Effective LTV” means, with respect to any Collateral Obligation, the Effective LTV of such Collateral Obligation as calculated by the Servicer and approved by the Facility Agent in accordance with the definition of Effective LTV and the definitions used therein and set forth in the Collateral Obligation Schedule.
“Original Leverage Multiple” means, with respect to any Collateral Obligation, the Leverage Multiple applicable to such Collateral Obligation as calculated by the Servicer (and set forth on Schedule 3) in accordance with the definition of Leverage Multiple and the definitions used therein and set forth in the Collateral Obligation Schedule.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Transaction Document, or sold or assigned an interest in the Obligations or any Transaction Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, mortgage, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Transaction Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment pursuant to Section 17.16).
“Participant” has the meaning set forth in Section 15.9(a).
“Participant Register” has the meaning set forth in Section 15.9(c).
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“Participation Interest” means a participation interest in a loan that would, at the time of acquisition or the relevant Borrower’s commitment to acquire the same, satisfy each of the following criteria: (i) such participation would constitute an Eligible Collateral Obligation were it acquired directly, (ii) the seller of the participation is the lender on the subject loan, (iii) the aggregate participation in the loan does not exceed the principal amount or commitment of such loan, (iv) such participation does not grant, in the aggregate, to the participant in such participation a greater interest than the seller holds in the loan or commitment that is the subject of the participation, (v) the entire purchase price for such participation is paid in full at the time of its acquisition, and (vi) the participation provides the participant all of the economic benefit and risk of the whole or part of the loan or commitment that is the subject of the loan participation.
“PBGC” means the Pension Benefit Guaranty Corporation and its successors and assigns.
“Permitted Gaming Industry” means an industry in respect of which the following conditions must be satisfied:
“Permitted Investment” means, at any time:
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Permitted Investments may be purchased by or through the Collateral Custodian or any of its Affiliates. All Permitted Investments shall be held in the name of the Securities Intermediary. No Permitted Investment shall have an “f”, “r”, “p”, “pi”, “q”, “sf” or “t” subscript affixed to its Standard & Poor’s rating. Any such investment may be made or acquired from or through the Collateral Agent or the Facility Agent or any of their respective affiliates, or any entity for whom the Collateral Agent or the Facility Agent or any of their respective affiliates provides services and receives compensation (so long as such investment otherwise meets the applicable requirements of the foregoing definition of Permitted Investment at the time of acquisition); provided, that notwithstanding the foregoing clauses (a) through (d), unless the Borrower and the Servicer have received the written advice of counsel of national reputation experienced in such matters to the contrary (together with an Officer’s Certificate of the Borrower or the Servicer to the Facility Agent and the Collateral Agent that the advice specified in this definition has been received by the Borrower and the Servicer), Permitted Investments may only include obligations or securities that constitute cash equivalents for purposes of the rights and assets in paragraph (c)(8)(i)(B) of the exclusions from the definition of “covered fund” for purposes of the ▇▇▇▇▇▇▇ Rule.
“Permitted Lien” means (i) the Lien in favor of the Collateral Agent for the benefit of the Secured Parties, (ii) as to Related Security, Liens for Taxes and mechanics’ or suppliers’ liens for services or materials supplied, in either case, not yet due and payable and for which adequate reserves have been established in accordance with GAAP, (iii) as to Related Security (1) the Lien in favor of the Borrower pursuant to the Contribution Agreement and (2) any Liens on the Related Security permitted pursuant to the applicable Underlying Instruments and (iv) as to agented Loans, Liens in favor of the agent on behalf of all the lenders of the related Obligor.
“Permitted RIC Distribution” means distributions on any Distribution Date to the Equityholder to the extent required to allow the Equityholder to qualify as a regulated investment company, and to otherwise eliminate federal or state income or excise taxes payable by the Equityholder in or with respect to any taxable year of the Equityholder (or any calendar year, as relevant) and as expressly permitted pursuant to Section 8.3(a)(i); provided that the amount of any such payments made in or with respect to any such taxable year (or calendar year, as relevant) of the Equityholder shall not exceed 115% of the amounts that the Borrower would have been required to distribute to the Equityholder to: (i) allow the Borrower to satisfy the minimum distribution requirements that would be imposed by Section 852(a) of the Code (or any successor thereto) to maintain its eligibility to be taxed as a regulated investment company for any such taxable year, (ii) reduce to zero for any such taxable year the Borrower’s liability for federal income taxes imposed on (x) its investment company taxable income pursuant to Section 852(b)(1) of the Code (or any successor thereto), or (y) its net capital gain pursuant to Section 852(b)(3) of the Code (or any successor thereto), and (iii) reduce to zero the Borrower’s liability for federal excise taxes for any such calendar year imposed pursuant to Section 4982 of the Code (or any successor thereto), in the case of each of clauses (i), (ii) or (iii), calculated assuming that the Borrower had qualified to be taxed as a regulated investment company under the Code.
“Person” means an individual, partnership, exempted limited partnership, corporation (including a business trust), joint stock company, limited liability company, exempted company, trust, unincorporated association, joint venture, government or any agency or political subdivision thereof or any other entity.
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“Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA that is subject to Title IV of ERISA, Section 412 and 430 of the Code, or Section 302 of ERISA and in respect of which the Borrower or any ERISA Affiliate (x) is (or, if such Plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA, or (y) has or could have any obligation or liability.
“Prepayment Fee” has the meaning set forth in the Fee Letter.
“Prepayment Notice” has the meaning set forth in Section 2.4(b)(i).
“Principal Balance” means with respect to any Collateral Obligation as of any date, the lower of (A) the Purchase Price paid by the Borrower for such Collateral Obligation and (B) the outstanding principal balance of such Collateral Obligation, exclusive of any deferred or capitalized interest on such Collateral Obligation. The “Principal Balance” of any Equity Security shall be zero; provided that for purposes of calculating the “Principal Balance” of any Deferrable Collateral Obligation, principal payments received on such Collateral Obligation shall first be applied to reducing or eliminating any outstanding deferred or capitalized interest.
“Principal Collection Account” means a segregated, non-interest bearing securities account (within the meaning of Section 8-501 of the UCC) number 83035201, which is created and maintained on the books and records of the Securities Intermediary entitled “Principal Collection Account” in the name of the Borrower and subject to the Lien of the Collateral Agent for the benefit of the Secured Parties, which is established and maintained pursuant to Section 8.1(a).
“Principal Collections” means any and all amounts of collections received with respect to the Collateral other than Interest Collections, including (but not limited to) (i) all collections attributable to principal on such Collateral (including any proceeds received by the Borrower as a result of exercising any Warrant Asset at any time), (ii) the earnings on Principal Collections in the Collection Account that are invested in Permitted Investments, and (iii) all Repurchase Amounts, in each case other than Retained Interests.
“Principal Repayment Percentage” means, on any date of determination, the percentage corresponding to the applicable Diversity Score as set forth in the table below:
Diversity Score |
Principal Repayment Percentage |
Greater than or equal to 12 |
0.0% |
Less than 12 and greater than or equal to 10 |
33.0% |
Less than 10 and greater than or equal to 7 |
50.0% |
Less than 7 |
100.0% |
“Pro Rata Percentage” means, with respect to any Lender on any date, such ▇▇▇▇▇▇’s Commitment as of such date divided by the aggregate Commitments as of such date.
“Proceeding” means any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of a Person.
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“Prohibited Defense Asset” means a Collateral Obligation in respect of which the related Obligor’s primary direct business is the production or distribution of antipersonnel landmines, cluster munitions, biological and chemical, radiological and nuclear weapons or their Critical Components.
“Prohibited Industry” means with respect to any Obligor, its primary business is (a) a business described in the definition of Prohibited Defense Asset, (b) the manufacture of fully completed and operational assault weapons or firearms, (c) in pornography or adult entertainment or (d) in the gaming industry (other than (i) a Permitted Gaming Industry or (ii) hospitality and/or resorts development or the management thereof).
“Purchase Price” means, with respect to any Collateral Obligation, the greater of (a) zero and (b) the actual price in Dollars paid by the Borrower for such Collateral Obligation minus all collections attributable to principal on such Collateral Obligation; provided, that any Collateral Obligation acquired by the Borrower with a “Purchase Price” equal to or greater than 97% (including, for the avoidance of doubt, in excess of 100%) shall be deemed to have a “Purchase Price” equal to 100%.
“Qualified Affiliate” means any Affiliate thereof that (a) that has the ability and experience to professionally and competently perform duties similar to those imposed upon the Servicer pursuant to this Agreement, (b) that is legally qualified and has the capacity and applicable licenses or other regulatory qualifications to act as the Servicer, (c) for which the principal personnel who would perform its duties hereunder as the Servicer are substantially the same individuals who perform such duties immediately prior to such assignment, (d) for which the Facility Agent and the Collateral Agent have received all “know your customer” documentation and information requested in its sole discretion or required by regulatory authorities and (e) that shall assume the obligations of the Servicer.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning set forth in Section 17.20.
“Rating Agency” means each of Standard & Poor’s, ▇▇▇▇▇’▇ and ▇▇▇▇▇; provided that the foregoing shall include Fitch and DBRS in connection with the shadow rating of any Collateral Obligation.
“Recipient” means (a) the Facility Agent, (b) any Agent, (c) any Lender and (d) any other recipient of a payment hereunder.
“Records” means a copy of the Collateral Obligation File for any Collateral Obligation and all other documents, books, records and other information prepared and maintained by or on behalf of the Borrower with respect to any Collateral Obligation and the Obligors thereunder, including all documents, books, records and other information prepared and maintained by the Borrower or the Servicer with respect to such Collateral Obligation or Obligors.
“Regulatory Authority” has the meaning set forth in Section 17.14(c).
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“Related Committed Lender” means, with respect to any Uncommitted Lender, each Committed Lender in its Lender Group.
“Related Property” means, with respect to a Collateral Obligation, any property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Collateral Obligation, including, without limitation, any pledge of the stock, membership or other ownership interests in the related Obligor or its subsidiaries, all Warrant Assets with respect to such Collateral Obligation and all proceeds from any sale or other disposition of such property or other assets.
“Related Security” means, with respect to each Collateral Obligation:
“REO Asset” means, with respect to any Collateral Obligation, any real property that is Related Property that has been foreclosed on or repossessed from the current Obligor by the Servicer, and is being managed by the Servicer on behalf of, and in the name of, any REO Asset Owner, for the benefit of the Secured Parties and any other equity holder of such REO Asset Owner.
“REO Asset Owner” has the meaning set forth in Section 7.12(a).
“REO Servicing Standard” has the meaning set forth in Section 7.12(a).
“Reporting Date” means, with respect to any Distribution Date, the third Business Day prior to such Distribution Date.
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“Repurchase Amount” means, for any Warranty Collateral Obligation for which a payment or substitution is being made pursuant to Section 7.11 as of any time of determination, the sum of (i) the greater of (a) an amount equal to the purchase price paid by the Borrower for such Collateral Obligation (excluding purchased accrued interest and original issue discount) less all payments of principal received in connection with such Collateral Obligation since the date it was added to the Collateral and (b) the Collateral Obligation Amount of such Collateral Obligation and (ii) any accrued and unpaid interest thereon since the last Distribution Date.
“Repurchased Collateral Obligation” means, with respect to any Accrual Period, any Collateral Obligation as to which the Repurchase Amount has been deposited in the Collection Account by or on behalf of the Borrower or the Servicer, as applicable, on or before the immediately prior Reporting Date and any Collateral Obligation purchased by the Equityholder pursuant to the Contribution Agreement as to which the Repurchase Amount has been deposited in the Collection Account by or on behalf of the Equityholder.
“Request for Release and Receipt” means a form substantially in the form of Exhibit F-2 completed and signed by the Servicer.
“Required Equity” means, as of any day, the greatest of (a) the sum of the Collateral Obligation Amounts of the five Obligors of Collateral Obligations constituting the highest aggregate Collateral Obligation Amounts, (b) the sum of the Collateral Obligation Amounts of the Obligors of Collateral Obligations in any two S&P Industries in excess of all other S&P Industries and (c) $25,000,000. For purposes of calculating the Required Equity, the Collateral Obligation Amount with respect to any Obligor shall be the sum of all Collateral Obligation Amounts with respect to such Obligor.
“Required Lenders” means, at any time, (a) Lenders holding greater than 50% of the outstanding principal amount of Advance or if no Advance is outstanding, Lenders holding Commitments aggregating greater than 50% of all Commitments or (b) the Facility Agent and Lenders holding equal to 50% of the outstanding principal amount of Advance or if no Advance is outstanding, Lenders holding aggregate Commitments equal to 50% of all Commitments.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means, with respect to (a) the Servicer, the Equityholder or the Borrower, each of the persons listed on Schedule 4, as such list may be updated by notice of the Facility Agent from time to time, (b) the Collateral Agent or Collateral Custodian, any officer within the Corporate Trust Office, including any director, vice president, assistant vice president or associate having direct responsibility for the administration of this Agreement, who at the time shall be such officers, respectively, or to whom any matter is referred because of his or her knowledge of and familiarity with the particular subject, or (c) any other Person, the President, any Vice‑President or Assistant Vice‑President, Corporate Trust Officer or the Controller of such Person, or any other officer or employee having similar functions.
“Restricted Information” has the meaning set forth in Section 10.22(b).
“Retained Economic Interest” has the meaning set forth in Section 10.22(a).
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“Retained Interest” means, with respect to any Collateral Obligation included in the Collateral, (a) such obligations to provide additional funding with respect to such Collateral Obligation that have been retained by the other lender(s) of such Collateral Obligation, (b) all of the rights and obligations, if any, of the agent(s) under the Underlying Instruments, (c) any unused commitment fees associated with the additional funding obligations that are being retained in accordance with clause (a) above, (d) any arranger or underwriting fee and (e) any agency or similar fees associated with the rights and obligations of the agent(s) that are being retained in accordance with clause (b) above.
“Revaluation Diversion Event” means an event that shall occur (and be deemed continuing at all times thereafter) if, at any time (a) the sum of all decreases in the Collateral Obligation Amount (solely as a result of (x) decreases in the related Discount Factor pursuant to Section 2.7(b) or (y) any such Collateral Obligation becoming a Defaulted Collateral Obligation) first equals or exceeds the product of (A) 10.0% multiplied by (B) the Adjusted Aggregate Eligible Collateral Obligation Balance as of the Closing Date and (b) a Revaluation Event shall occur with respect to two (2) or more Collateral Obligations.
“Revaluation Event” means each occurrence of any of the following with respect to any Collateral Obligation during the time such Collateral Obligation is Collateral:
(a) with respect to any Life Science Loan, the Debt-to-Enterprise Value Ratio of the related Obligor with respect to such Collateral Obligation increases by more than an amount equal to 15% of the Debt-to-Enterprise Value Ratio of such Obligor as of the Closing Date;
(b) [reserved];
(c) [reserved];
(d) [reserved];
(e) the occurrence of a Material Modification with respect to such Collateral Obligation that is not approved by the Facility Agent (in its sole discretion);
(f) the related Obligor fails to deliver to the Borrower or the Servicer any financial reporting information (i) as required by the Underlying Instruments of such Collateral Obligation (without giving effect to any applicable grace period thereunder) and (ii) no less frequently than quarterly;
(g) with respect to any Enterprise Value Loan, (i) the Obligor with respect to such Collateral Obligation has a trailing 4-quarter EBITDA with respect thereto of less than $10,000,000 or (ii) the Leverage Multiple with respect to such Collateral Obligation increases by 1.0x or more over the Original Leverage Multiple with respect to such Collateral Obligation;
(h) with respect to any Asset Based Loan, (A) the Borrower fails to (or fails to cause the Obligor to) retain an Approved Valuation Firm to re-calculate the Appraised Value of (x) with respect to any such Asset Based Loan that has intellectual property, equipment or real property, as the case may be, in its borrowing base, the collateral securing such Asset Based Loan at least once every twelve (12) months that such Loan is included in the Collateral (subject to a 30 day grace
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period with respect to any such review) and (y) with respect to all other Asset Based Loans included in the Collateral, the collateral securing such Loan at least once every six (6) months that such Loan is included in the Collateral (subject to a 30 day grace period with respect to any such review) or (B) the Borrower (or the related Obligor, as applicable) changes the Approved Valuation Firm with respect to any Asset Based Loan or the related Approved Valuation Firm changes the metric for valuing the collateral of such Loan, each without the written approval of the Facility Agent;
(i) with respect to any Asset Based Loan, the Effective LTV of such Collateral Obligation is greater than 100.0% or increases by more than an amount equal to 15% of the Original Effective LTV of such Collateral Obligation;
(j) if such Collateral Obligation has a public rating as of the related Cut-Off Date, such Collateral Obligation ceases to have either (x) a public rating by Standard & Poor’s of “CCC” or above or (y) a ▇▇▇▇▇’▇ probability of default rating (as published by ▇▇▇▇▇’▇) of “Caa2” or above;
(k) with respect to any Multiple of Recurring Revenue Loan, (i) a 20% increase in the Debt-to-Recurring-Revenue Ratio from the time of acquisition thereof, (ii) the amount of liquidity falls below the greater of (A) the minimum liquidity threshold (both as defined and specified in the Underlying Instruments) and (B) $15,000,000 or (iii) the related Obligor’s last quarter annualized Revenue is less than $30,000,000 calculated using the most recent financial information of such Obligor received by the Borrower (or otherwise available to the Borrower with respect to such Obligor);
(l) the occurrence of any breach with respect to any financial covenant under the Underlying Instrument that results in an event of default under the Underlying Instruments, regardless of any waiver, modification or amendment of such Underlying Instrument;
(m) the related Obligor undergoes a merger, acquisition or other restructuring or such Collateral Obligation becomes the subject of an offer, exchange or tender by the related Obligor; or
(n) the Borrower sells or otherwise disposes of a portion of such Collateral Obligation at a price (as a percentage of par) less than the lower of (i) the Purchase Price thereof and (ii) the currently assigned Discount Factor;
provided that the Facility Agent may, with the reasonable consent of the Borrower, include custom revaluation events other than those included in the definition of “Revaluation Event” as noted on Schedule 3.
“Revenue” means, with respect to any Collateral Obligations that are Multiple of Recurring Revenue Loans, the definition of annualized recurring revenue used in the Underlying Instruments for each such Collateral Obligation, or any comparable definition for “Revenue” or “Adjusted Revenue” in the Underlying Instruments for each such Collateral Obligation; provided that if there is no such definition in the Underlying Instruments, revenue for the related Obligor and any of its parents or Subsidiaries that are obligated with respect to such Collateral Obligation pursuant to its Underlying Instruments (determined on a consolidated basis without duplication in accordance
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with GAAP) for the most recent four fiscal quarter period for which financial statements have been delivered.
“Sanction Target” has the meaning set forth in Section 9.30.
“Sanctioned Countries” has the meaning set forth in Section 9.30.
“Sanctions” has the meaning set forth in Section 9.30.
“Scheduled Collateral Obligation Payment” means each periodic installment payable by an Obligor under a Collateral Obligation for principal, interest and/or contractually obligated unutilized/commitment fees (as applicable) in accordance with the terms of the related Underlying Instrument.
“Second Lien Loan” means any Loan that (i) is not (and that by its terms is not permitted to become) subordinate in right of payment to any other obligation of the related Obligor other than a First Lien Loan with respect to the liquidation of such Obligor or the collateral for such Loan and (ii) is secured by a valid second priority perfected Lien to or on specified collateral securing the related Obligor’s obligations under the Loan, which Lien is not subordinate to the Lien securing any other debt for borrowed money other than a First Lien Loan on such specified collateral and any Permitted Liens.
“Secured Parties” means, collectively, the Collateral Agent, the Collateral Custodian, the Securities Intermediary, each Lender, the Facility Agent, each Agent, each other Affected Person and Indemnified Party and their respective permitted successors and assigns.
“Securities Intermediary” means the Collateral Custodian in its capacity as securities intermediary under the Account Control Agreement, or any subsequent institution acceptable to the Facility Agent at which the Accounts are kept.
“Selling Institution” means the entity obligated to make payments to any Borrower under the terms of a Participation Interest.
“Servicer” means initially SCP Private Credit Income BDC LLC or any successor servicer appointed pursuant to this Agreement.
“Servicer Default” means the occurrence of one of the following events:
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“Servicer Expenses” means any accrued and unpaid expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower to the Servicer (other than the Servicing Fee) under the Transaction Documents.
“Servicing Fee” means with respect to any Distribution Date, the senior fee payable to the Servicer or successor servicer (as applicable) for services rendered during the related Accrual Period, which shall be equal to one-twelfth of the product of (i) the Servicing Fee Percentage multiplied by (ii) the average of the values of the Aggregate Eligible Collateral Obligation Amount on the first day and the last day of the related Accrual Period; provided that for so long as the Servicer is SCP Private Credit Income BDC LLC or an Affiliate thereof appointed in accordance with this Agreement (and, in the case of an Affiliate, solely to the extent such Affiliate is receiving a management fee from the Equityholder), the Servicer shall be deemed to have waived its Servicing Fee (and no additional Servicing Fee shall be payable hereunder on any Distribution Date).
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“Servicing Fee Percentage” means 0.25%.
“Servicing Standard” means, with respect to any Collateral Obligations, to service and administer such Collateral Obligations on behalf of the Borrower for the benefit of the Secured Parties in accordance with the Underlying Instruments and all customary and usual servicing practices which are consistent with the higher of: (i) the customary and usual servicing practices that a prudent loan investor or lender would use in servicing loans like the Collateral Obligations for its own account, and (ii) the same care, skill, prudence and diligence with which the Servicer services and administers loans for its own account or for the account of others.
“SR Lender” means each Lender that is subject to the EU Securitization Rules.
“Standard & Poor’s” or “S&P” means S&P Global Ratings and any successor thereto.
“Structured Finance Obligation” means any obligation secured directly by, referenced to, or representing ownership of, a pool of receivables or other financial assets of any obligor, including collateralized debt obligations and mortgage-backed securities, including (but not limited to) collateral debt obligations, collateral loan obligations, asset backed securities and commercial mortgage backed securities or any resecuritization thereof.
“Subsidiary” means, with respect to any Person, a corporation, partnership or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or interests as have more than 50% of the ordinary voting power for the election of directors, managers or general partners, as applicable.
“Substituted Collateral Obligation” means, with respect to any Accrual Period, any Warranty Collateral Obligation with respect to which the Equityholder has substituted in a replacement Eligible Collateral Obligation pursuant to Section 7.11 and the Contribution Agreement.
“Supported QFC” has the meaning set forth in Section 17.20.
“Tangible Net Worth” means, with respect to any Person, the consolidated assets minus the consolidated liabilities of such Person and its consolidated Subsidiaries calculated in accordance with GAAP after subtracting therefrom the aggregate amount of the intangible assets of such Person and its consolidated Subsidiaries, including, without limitation, goodwill, franchises, licenses, patents, trademarks, tradenames, copyrights and service marks.
“Target Advance Rate” means, on any date of determination, the percentage corresponding to the applicable Diversity Score as set forth in the table below:
Diversity Score |
Target Advance Rate |
Greater than 14 |
65.0% |
Less than or equal to 14 and greater than 12 |
60.0% |
Less than or equal to 12 and greater than 10 |
57.5% |
Less than or equal to 10 and greater than 9 |
55.0% |
Less than or equal to 9 and greater than 8 |
50.0% |
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Diversity Score |
Target Advance Rate |
Less than or equal to 8 and greater than 6 |
45.0% |
Less than or equal to 6 |
40.0% |
“Target Loan Amount” means, on any date of determination, the amount corresponding to the applicable period as set forth in the table below:
Period |
Target Loan Amount |
On and after the 12-month anniversary of the Closing Date and prior to the 18-month anniversary of the Closing Date |
80% of Advance ($180,894,727) |
On and after the 18-month anniversary of the Closing Date and prior to the 24-month anniversary of the Closing Date |
65% of Advance ($146,976,966) |
On and after the 24-month anniversary of the Closing Date and prior to the 30-month anniversary of the Closing Date |
50% of Advance ($113,059,204) |
On and after the 30-month anniversary of the Closing Date and prior to the Facility Termination Date |
25% of Advance ($56,529,602) |
On and after the Facility Termination Date |
$0 |
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Official Body, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR” means, for any calculation with respect to an Advance (other than an Advance bearing interest at the Alternate Base Rate), the greater of (i) 0.25% and (ii) the Term SOFR Reference Rate for a tenor of three (3) months on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of the relevant Accrual Period, as such rate is published by the Term SOFR Administrator.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Facility Agent in its reasonable discretion).
“Term SOFR Determination Day” has the meaning set forth in the definition of “Term SOFR” in this Section 1.1.
“Term SOFR Reference Rate” means the forward-looking term rate per annum based on SOFR as published by the Term SOFR Administrator.
“Transaction Documents” means this Agreement, the Notes, the Contribution Agreement, the Collateral Agent and Collateral Custodian Fee Letter, each Fee Letter, the Account Control Agreement, the Master Participation Agreement and the other documents to be executed and delivered in connection with this Agreement, specifically excluding from the foregoing, however, Underlying Instruments delivered in connection with this Agreement.
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“UCC” means the Uniform Commercial Code as from time to time in effect in the applicable jurisdiction or jurisdictions.
“UK AIFM Regulations” means the UK Alternative Investment Fund Managers Regulations 2013.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Uncommitted Lender” means any Conduit Lender designated as an “Uncommitted Lender” for any Lender Group and any of its assignees.
“Underlying Instrument” means the loan agreement, credit agreement or other customary agreement pursuant to which a Collateral Obligation has been created or issued and each other agreement that governs the terms of or secures the obligations represented by such Collateral Obligation or of which the holders of such Collateral Obligation are the beneficiaries.
“Unmatured Event of Default” means any event that, if it continues uncured, will, with lapse of time or notice or lapse of time and notice, constitute an Event of Default.
“Unmatured Servicer Default” means any event that, if it continues uncured, will, with lapse of time or notice or lapse of time and notice, constitute a Servicer Default.
“U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning set forth in Section 4.3(f).
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107 56.
“▇▇▇▇▇▇▇ Rule” means Section 13 of the U.S. Bank Holding Company Act of 1956, as amended, and the applicable rules and regulations thereunder.
“Warrant Asset” means any equity purchase warrants or similar rights convertible into or exchangeable or exercisable for any equity interests received by the Borrower as an “equity kicker” from the Obligor in connection with a Collateral Obligation.
“Warranty Collateral Obligation” has the meaning set forth in Section 7.11.
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“Weighted Average Advance Rate” means, as of any date of determination with respect to all Eligible Collateral Obligations included in the Adjusted Aggregate Eligible Collateral Obligation Balance, the number obtained by dividing (i) the amount obtained by summing the products obtained by multiplying (a) the Advance Rate of each such Eligible Collateral Obligation by (b) such Eligible Collateral Obligation’s contribution to the Adjusted Aggregate Eligible Collateral Obligation Balance by (ii) the Adjusted Aggregate Eligible Collateral Obligation Balance, in each case, as of such date.
“Weighted Average Life” means, as of any day with respect to all Eligible Collateral Obligations included in the Collateral, the number of years following such date obtained by dividing (i) the amount obtained by summing the products obtained by multiplying (a) the Average Life at such time of each such Eligible Collateral Obligation by (b) the Collateral Obligation Amount of such Collateral Obligation by (ii) the Aggregate Eligible Collateral Obligation Amount.
“Weighted Average Spread” means, as of any day, the number expressed as a percentage equal to (i) the Aggregate Funded Spread divided by (ii) the Aggregate Eligible Collateral Obligation Amount.
“Withholding Agent” means the Borrower, the Facility Agent, the Collateral Agent and the Servicer.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under the Bail-In Legislation that are related to or ancillary to any of those powers.
“written” or “in writing” (and other variations thereof) means any form of written communication or a communication by means of email, telex, telecopier device, telegraph or cable.
“Yield” means, with respect to any period, the daily interest accrued on the Advance during such period as provided for in Article III.
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THE FACILITY, ADVANCE PROCEDURES AND NOTES
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YIELD, ETC.
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PAYMENTS; TAXES
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(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Transaction Document, properly completed and executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form of each), as applicable, establishing an
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exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Transaction Document, properly completed and executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form of each), as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(II) properly completed and executed copies of IRS Form W-8ECI (or successor form);
(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit G-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Borrower described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) properly completed and executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form of each), as applicable; or
(IV) to the extent a Foreign Lender is not the beneficial owner, properly completed and executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E (or successor form of each), as applicable, a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-2 or Exhibit G-3, IRS Form W-9, and/or other certification documents from each beneficial owner (or successor form of each of the following certifications), as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit G-4 on behalf of each such direct and indirect partner;
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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Facility Agent in writing of its legal inability to do so.
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INCREASED COSTS, ETC.
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EFFECTIVENESS; CONDITIONS TO ADVANCES
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ADMINISTRATION AND SERVICING OF COLLATERAL OBLIGATIONS
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ACCOUNTS; PAYMENTS
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Subject to the other provisions hereof, the Collateral Agent shall have sole Control (within the meaning of the UCC) over each Account and each such investment and the income thereon, and any certificate or other instrument evidencing any such investment, if any, shall be delivered to the Collateral Agent or its agent, together with each document of transfer, if any, necessary to transfer title to such investment to the Collateral Agent in a manner that complies with this Section 8.1. All interest, dividends, gains upon sale and other income from, or earnings on, investments of funds in the Accounts shall be deposited or transferred to the Collection Account and distributed pursuant to Section 8.3(a).
For all U.S. federal income tax reporting purposes, all income earned on the funds invested and allocable to the Accounts is legally owned by the Borrower (and beneficially owned by the Borrower). The Borrower is required to provide to Computershare Trust Company, N.A. in its capacity as Securities Intermediary (i) an IRS Form W-9 no later than the Closing Date and (ii) any additional IRS forms (or updated versions of any previously submitted IRS forms) or other documentation at such time or times required by Applicable Law or upon the reasonable request of the Securities Intermediary as may be necessary (a) to reduce or eliminate the imposition of U.S. withholding taxes and (b) to permit the Securities Intermediary to fulfill its tax reporting obligations under Applicable Law with respect to the Accounts or any amounts paid to the Borrower. The Borrower is further required to report to the Securities Intermediary any change in the legal or beneficial ownership of the income allocable to the Accounts. Computershare Trust Company, N.A., both in its individual capacity and in its capacity as Securities Intermediary, shall
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have no liability to the Borrower or any other person in connection with any tax withholding amounts paid, or retained for payment, to a governmental authority from the Accounts arising from the Borrower’s failure to timely provide an accurate, correct and complete IRS Form W-9 or such other documentation contemplated under this paragraph. For the avoidance of doubt, no funds shall be invested with respect to such Accounts absent the Securities Intermediary having first received (x) instructions with respect to the investment of such funds and (y) the forms and other documentation required by this paragraph.
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The Servicer shall cooperate with the Collateral Agent in connection with the preparation of the Monthly Reports and any supplement thereto. Without limiting the generality of the foregoing, the Servicer shall supply any information maintained by it that the Collateral Agent may from time to time reasonably request with respect to the Collateral and reasonably needs to complete the reports, calculations and certificates required to be prepared by the Collateral Agent hereunder or required to permit the Collateral Agent to perform its obligations hereunder. Without limiting the generality of the foregoing, in connection with the preparation of a Monthly Report, (i) the Servicer shall be responsible for providing the Collateral Agent the information required for parts (a) through (c) of Exhibit D for such Monthly Report and (ii) the Facility Agent and the Lenders shall be responsible for providing to the Collateral Agent the information required by Section 3.4 for part (d) of Exhibit D for such Monthly Report on which the Collateral Agent may conclusively rely. The Servicer shall review and verify the contents of the aforesaid reports (including the Monthly Report), instructions, statements and certificates. Upon receipt of approval from the Servicer, the Collateral Agent shall send such reports, instructions, statements and certificates to the Borrower and the Servicer for execution.
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REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the other parties hereto to enter into this Agreement and, in the case of the Lenders, to make the Advance hereunder, the Borrower hereby represents and warrants to the Facility Agent, the Agents and the Lenders as to itself, as of the Closing Date and each Funding Date, as follows:
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There is not now, nor will there be at any time in the future, any agreement or understanding between the Borrower and the Equityholder (other than as expressly set forth herein and the other Transaction Documents) providing for the allocation or sharing of obligations to make payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges.
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COVENANTS
From the date hereof until the first day following the Facility Termination Date on which all Obligations shall have been finally and fully paid and performed (other than contingent
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indemnification obligations and as expressly survive the termination of this Agreement), the Borrower hereby covenants and agrees with the Lenders, the Agents and the Facility Agent that:
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(b) The Borrower shall deliver the following: (i) Monthly Reports delivered in connection with Section 8.5 to ▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇.▇▇▇▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇.▇▇▇, ▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇ and ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇, (ii) requests or notices delivered in accordance with Sections 2.4 or 8.3(b), to ▇▇▇.▇▇▇▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇.▇▇▇, ▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇, and ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇ and (iii) obligor reports delivered in connection with Section 7.5(l) to ▇▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇.▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇.▇▇▇.
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1 Sidley Note: For sake of clarity, DB is relying on the information provided by SLR Capital Partners (including the accuracy of the information) in relation to its own regulatory analysis, and it is relying on the representations and undertakings given in this Section 10.22. We wanted to ensure that the drafting of this provision does not cut across that (notwithstanding the fact that DB is not relying on the other parties for regulatory advice).
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THE COLLATERAL AGENT
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GRANT OF SECURITY INTEREST
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In connection with the release of a Lien on any Collateral permitted pursuant to this Section 12.3 as requested by the Servicer, the Collateral Agent, on behalf of the Secured Parties, will, at the sole expense of the Servicer, execute and deliver to the Servicer or its designee any assignments, bills of sale, termination statements and any other releases and instruments as the Servicer may reasonably request in order to effect the release and transfer of such Collateral; provided, that the Collateral Agent, on behalf of the Secured Parties, will make no representation or warranty, express or implied, with respect to any such Collateral in connection with such sale or transfer and assignment.
EVENTs OF DEFAULT
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and any trustee, receiver, liquidator, collateral agent or trustee or other similar official in any such proceeding is hereby authorized by each of such Secured Parties to make payments to the Collateral Agent and, in the event that the Collateral Agent shall consent (at the direction of the Facility Agent) to the making of payments directly to such Secured Parties, to pay to the Collateral Agent such amounts as shall be sufficient to cover all reasonable and documented out-of-pocket expenses and liabilities incurred, and all advances made, by the Collateral Agent and each predecessor Collateral Agent except as determined to have been caused by its own gross negligence or willful misconduct.
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THE FACILITY AGENT
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In no event shall any Note Agent be liable for any indirect, special, punitive or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, even if such Note Agent has been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall any Note Agent be liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, fire, riot, embargo, government action, including any laws, ordinances, regulations, governmental action or the like which delay, restrict or prohibit the providing of the services contemplated by this Agreement.
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ASSIGNMENTS
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provided, that each Lender shall first offer to sell such interest(s) to (i) the Lender affiliated with the Facility Agent and, if such Lender does not accept such offer within 10 Business Day, then (ii) to each remaining Lender (pro rata) for a period of 10 Business Days prior to offering to any Person that is not an existing Lender.
Each Lender shall endorse the Notes to reflect any assignments made pursuant to this Article XV or otherwise. The assigning Lender shall provide prompt notice of any assignment to the Facility Agent, the Collateral Agent, the Borrower and the Servicer.
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INDEMNIFICATION
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Indemnification under this Section 16.1 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and out-of-pocket expenses of counsel and reasonable and documented out-of-pocket expenses of litigation. For the avoidance of doubt, notwithstanding anything to the contrary contained herein, the Borrower will be obligated to pay any Indemnified Amount on any given day only to the extent there are amounts available therefor pursuant to Section 8.3(a).
Any amounts subject to the indemnification provisions of this Section 16.1 shall be paid by the Borrower to the applicable Indemnified Party (subject to Section 8.3) on the Distribution Date following such Person’s demand therefor, accompanied by a reasonably detailed description in writing of the related damage, loss, claim, liability and related costs and expenses. In no event shall the Borrower be liable for special, indirect, or punitive loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Borrower has been advised of the likelihood of such loss or damage and regardless of the form of action; provided that this sentence shall in no way limit or vitiate any obligations of the Borrower to indemnify an Indemnified Party hereunder with respect to any claims brought by third parties for special, indirect, consequential, remote, speculative or punitive damages whatsoever.
Indemnification under this Section 16.2 shall survive the termination of this Agreement and the resignation or removal of any Indemnified Party and shall include reasonable and documented fees and out-of-pocket expenses of counsel and reasonable and documented out-of-pocket expenses of litigation.
The parties hereto agree that this Section 16.2 shall not be interpreted to provide recourse to the Servicer against loss by reason of uncollectible or uncollected Collateral Obligations. In no event shall the Servicer be liable for special, indirect, or punitive loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Servicer has been advised of the likelihood of such loss or damage and regardless of the form of action.
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MISCELLANEOUS
The Borrower, the Servicer and the Facility Agent may, from time to time enter into written amendments, supplements, waivers or modifications hereto for the purpose of adding any
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provisions to this Agreement or changing in any manner the rights of any party hereto or waiving, on such terms and conditions as may be specified in such instrument, any of the requirements of this Agreement; provided, that no such amendment, supplement, waiver or modification shall (i) reduce the amount of or extend the maturity of any payment with respect to the Advance or reduce the rate or extend the time of payment of Yield thereon, or reduce or alter the timing of any other amount payable to any Lender hereunder, in each case without the consent of each Lender affected thereby, (ii) amend, modify or waive any provision of this Section 17.2 or Section 17.11, or reduce the percentage specified in the definition of Required Lenders, in each case without the written consent of all Lenders, (iii) amend, modify or waive any provision adversely affecting the obligations or duties of the Collateral Agent, in each case without the prior written consent of the Collateral Agent and (iv) amend, modify or waive any provision adversely affecting the obligations or duties of the Collateral Custodian, in each case without the prior written consent of the Collateral Custodian. Upon execution of any amendments by the Borrower, the Servicer and the Facility Agent as provided herein, the Servicer shall deliver a copy of such amendment to the Collateral Agent. Any waiver of any provision of this Agreement shall be limited to the provisions specifically set forth therein for the period of time set forth therein and shall not be construed to be a waiver of any other provision of this Agreement.
Notwithstanding the foregoing, upon the reasonable determination by any Lender that its ownership of any of its rights or obligations hereunder is prohibited by Applicable Law (including, without limitation, the ▇▇▇▇▇▇▇ Rule and/or GBSA), each of the Borrower, the Servicer, each Lender, each Agent, the Collateral Agent, the Collateral Custodian and the Facility Agent hereby agree to work in good faith to amend or amend and restate the commercial terms of this Agreement (including, if necessary, to re-document under a note purchase agreement or indenture) to ensure future compliance with such Applicable Law.
The Borrower and the Servicer each acknowledges that the Facility Agent may be communicating with other Lenders, Agents or potential lenders in connection with an amendment or syndication of this Agreement.
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No recourse under any obligation, covenant or agreement of the Servicer, the Equityholder or the Borrower contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of the Servicer, the Equityholder or the Borrower or any of their respective Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise, other than the limited recourse against those assets pledged by the Borrower pursuant to this Agreement; it being expressly agreed and understood that this Agreement is solely a corporate obligation of the Servicer, the Equityholder and the Borrower, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any the Servicer, the Equityholder or the Borrower or any of their respective Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of the obligations, covenants or agreements of the Servicer, the Equityholder or the Borrower contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by the Servicer or the Borrower of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.
Notwithstanding anything to the contrary in this Agreement or in any of the Transaction Documents, the parties hereto acknowledge that the obligations of any Conduit Lender arising hereunder are limited recourse obligations payable solely from the unsecured assets of such
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Conduit Lender (the “Available Funds”) and, following the application of such Available Funds or the proceeds thereof, any claims of the parties hereto (and the obligations of such Conduit Lender) shall be extinguished. No recourse shall be had for the payment of any amount owing under this Agreement against any officer, member, director, employee, security holder or incorporator of any Conduit Lender or its successors or assigns, and no action may be brought against any officer, member, director, employee, security holder or incorporator of any Conduit ▇▇▇▇▇▇ personally. The parties hereto agree that they will not petition a court, or take any action or commence any proceedings, for the liquidation or the winding-up of, or the appointment of an examiner to, any Conduit Lender or any other bankruptcy or insolvency proceedings with respect to such Conduit Lender; provided that nothing in this sentence shall limit the right of any party hereto to file any claim or otherwise take any action with respect to any proceeding of the type described in this sentence that was instituted against any Conduit Lender by any Person other than such party. The provisions of this paragraph shall survive the termination of this Agreement.
Each Conduit Lender shall only be required to pay (a) any fees or liabilities that it may incur under this Agreement only to the extent such Conduit Lender has Excess Funds on the date of such determination and (b) any expenses, indemnities or other liabilities that it may incur under this Agreement or any fees, expenses, indemnities or other liabilities under any other Transaction Document only to the extent such Conduit Lender receives funds designated for such purposes or to the extent it has Excess Funds not required, after giving effect to all amounts on deposit in its commercial paper account, to pay or provide for the payment of all of its outstanding commercial paper notes as of the date of such determination. In addition, no amount owing by any Conduit Lender hereunder in excess of the liabilities that such Conduit Lender is required to pay in accordance with the preceding sentence shall constitute a “claim” (as defined in Section 101(5) of the Bankruptcy Code) against such Conduit Lender.
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In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and this Agreement were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a defaulting lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
COLLATERAL CUSTODIAN
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Acting as custodian of the Collateral Obligation Files pursuant to this Section 18.5, the Servicer agrees that it does not and will not have or assert any beneficial ownership interest in the Collateral Obligations or the Collateral Obligation Files.
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[Signature pages begin on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written.
SCP PRIVATE CREDIT INCOME BDC SPV LLC, as Borrower
By:
Name:
Title:
DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 [Signature Page to LFSA (SCP PCI BDC (static pool))]
SCP PRIVATE CREDIT INCOME BDC LLC, as Equityholder and as Servicer
By:
Name:
Title:
DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 [Signature Page to LFSA (SCP PCI BDC (static pool))]
COMPUTERSHARE TRUST COMPANY, N.A.,
as Collateral Agent and as Collateral Custodian
By:
Name:
Title:
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DEUTSCHE BANK AG, NEW YORK BRANCH, as Facility Agent
By:
Name:
Title:
By:
Name:
Title:
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DEUTSCHE BANK AG, NEW YORK BRANCH, as an Agent and as a Committed Lender |
|
By: |
|
By:
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DOCPROPERTY DocID \* MERGEFORMAT USActive 61774393.5 [Signature Page to LFSA (SCP PCI BDC (static pool))]
ANNEX A
SCP PRIVATE CREDIT INCOME BDC SPV LLC,
as Borrower
c/o SLR Capital Partners
▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇.▇▇▇
SCP PRIVATE CREDIT INCOME BDC LLC,
as Equityholder and Servicer
c/o SLR Credit Solutions
▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇@▇▇▇▇▇.▇▇▇
COMPUTERSHARE TRUST COMPANY, N.A.,
as Collateral Agent and Collateral Custodian
For all communications and for delivery of
Collateral Obligation files
Computershare Trust Company, N.A.
Corporate Trust Services Division
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇.
Columbia, MD 21045
Attention: CLO Trust Services- SCP Private Credit Income BDC SPV LLC
Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Deutsche Bank AG, New York Branch,
as Facility Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Finance Department
Email: ▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇ and ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇
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Deutsche Bank AG, New York Branch,
as an Agent and as a Committed Lender
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Finance Department
Email: ▇▇▇▇.▇▇▇▇▇@▇▇.▇▇▇, ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇ and ▇▇▇▇▇.▇▇▇▇@▇▇.▇▇▇
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Annex B
Lender |
Commitment |
Deutsche Bank AG, New York Branch |
$226,118,408 |
|
|
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