EXECUTION VERSION
CREDIT AGREEMENT
dated as of December 15, 2006
among
▇▇▇▇▇▇▇▇▇▇ OPPORTUNITIES PARTNERS V, LP,
as Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as Lenders,
WACHOVIA CAPITAL MARKETS, LLC,
as Administrative Agent, Lead Manager and Joint Bookrunner,
and
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Manager and Joint Bookrunner
TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1 Defined Terms...................................................................................1
Section 1.2 Use of Defined Terms............................................................................1
Section 1.3 Interpretation..................................................................................2
Section 1.4 Accounting Matters..............................................................................2
Section 1.5 Collateral Documents............................................................................2
Section 1.6 Conflict Between Credit Documents...............................................................3
Section 1.7 Legal Representation of the Parties.............................................................3
Section 1.8 References to Definitions in the Collateral Valuation Schedules.................................3
ARTICLE II
COMMITMENTS
Section 2.1 Commitments.....................................................................................3
Section 2.1.1 Commitment of Each Lender.....................................................3
Section 2.1.2 Amount of Commitments.........................................................4
Section 2.2 Optional Reductions and Increases of Total Maximum Commitment...................................5
Section 2.3 Extension of Facility...........................................................................7
Section 2.3.1 Notice of Extension...........................................................7
Section 2.3.2 Withdrawing Lenders...........................................................7
Section 2.3.3 Termination of Commitment of Withdrawing Lender...............................8
Section 2.3.4 Assignment by Withdrawing Lender..............................................8
Section 2.3.5 Total Maximum Commitment After Extension......................................8
Section 2.4 Fees............................................................................................8
Section 2.4.1 Commitment Fee................................................................8
Section 2.4.2 Administrative Agent's Fee....................................................9
ARTICLE III
LOANS AND LENDER NOTES
Section 3.1 Borrowing Procedure.............................................................................9
Section 3.1.1 Borrowing Requests............................................................9
Section 3.1.2 Funding of Borrowings........................................................11
Section 3.2 Lender Notes.....................................................................................
Section 3.3 Principal Payments.............................................................................13
Section 3.3.1 Repayments and Prepayments...................................................13
Section 3.3.2 Application..................................................................14
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Section 3.4 Interest.......................................................................................15
Section 3.4.1 Interest Rules and Calculations..............................................15
Section 3.4.2 Interest Periods.............................................................17
Section 3.4.3 [Reserved]...................................................................17
Section 3.4.4 Increased Costs, Illegality, etc.............................................18
Section 3.4.5 Compensation.................................................................20
Section 3.4.6 Change of Lending Office; Limitation on Indemnities..........................20
Section 3.4.7 Replacement of Lenders.......................................................21
Section 3.5 Method and Place of Payment....................................................................22
Section 3.6 Net Payments...................................................................................22
Section 3.7 Other CP Conduit Lenders and Liquidity Providers; Designated CP Conduits and
Designated CP Conduit Committed Lenders........................................................25
Section 3.8 SPC Loans......................................................................................25
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
Section 4.1 Initial Loans..................................................................................26
Section 4.1.1 Evidence of Authority..........................................................
Section 4.1.2 Agreement; Lender Notes......................................................27
Section 4.1.3 Collateral Documents.........................................................27
Section 4.1.4 Initial Borrowing Valuation Statement........................................28
Section 4.1.5 Equity Capital Commitments in Relation to Facility Commitment and
Preferred Interests..........................................................28
Section 4.1.6 Investment Management Agreement, Co-Management Agreement and Borrower
Organization Agreement.......................................................28
Section 4.1.7 No Litigation, etc...........................................................28
Section 4.1.8 Certificate as to Conditions, Warranties, No Default, etc....................28
Section 4.1.9 Insurance Report, etc........................................................28
Section 4.1.10 Opinions of Counsel..........................................................29
Section 4.1.11 Investment Manager Letter....................................................29
Section 4.1.12 Closing Fees, Expenses, etc..................................................29
Section 4.1.13 Federal Reserve Form U-1 or G-3..............................................29
Section 4.1.14 Rating of Loans and Preferred Interests......................................29
Section 4.1.15 Satisfactory Legal Form......................................................29
Section 4.1.16 Key Individuals..............................................................30
Section 4.1.17 Independent Public Accountant................................................30
Section 4.1.18 CP Conduit Ratings; Liquidity Backstop.......................................30
Section 4.1.19 [Reserved]...................................................................30
Section 4.1.20 [Reserved]...................................................................30
Section 4.2 All Loans......................................................................................30
Section 4.2.1 Compliance with Warranties, Total Maximum Commitment, Borrowing Base,
No Default, etc..............................................................30
Section 4.2.2 Borrowing Request, etc.......................................................31
Section 4.2.3 Regulations T, U and X.......................................................31
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Organization, etc..............................................................................32
Section 5.1.1 Organization, Power, Authority, etc..........................................32
Section 5.1.2 Exemption from Registration..................................................32
Section 5.2 Due Authorization, Non-Contravention, etc......................................................32
Section 5.3 Government Approval, Regulation, etc...........................................................32
Section 5.4 Validity, etc..................................................................................33
Section 5.5 Financial Information..........................................................................33
Section 5.6 Litigation, etc................................................................................33
Section 5.7 Regulations T, U and X.........................................................................33
Section 5.8 Pension and Welfare Plans......................................................................33
Section 5.9 Subsidiaries...................................................................................34
Section 5.10 Taxes..........................................................................................34
Section 5.11 Absence of Default.............................................................................34
Section 5.12 Capitalization.................................................................................34
Section 5.13 Ownership of Properties........................................................................34
Section 5.14 Real Property..................................................................................35
Section 5.15 [Reserved].....................................................................................35
Section 5.16 Environmental Warranties.......................................................................35
Section 5.17 Borrower's Business............................................................................35
Section 5.18 Collateral Documents...........................................................................35
Section 5.19 Investment Management Agreement................................................................36
Section 5.20 Use of Proceeds................................................................................36
Section 5.21 Compliance with Margin Requirements............................................................36
Section 5.22 Transaction Documents..........................................................................37
Section 5.23 Restatement and Reaffirmation..................................................................37
ARTICLE VI
COVENANTS
Section 6.1 Affirmative Covenants..........................................................................37
Section 6.1.1 Collateral Valuation Covenant................................................37
Section 6.1.2 Information, etc.............................................................40
Section 6.1.3 Maintenance of Borrower's Existence, etc.....................................41
Section 6.1.4 Foreign Qualification........................................................41
Section 6.1.5 Payment of Taxes and Other Claims............................................41
Section 6.1.6 Insurance....................................................................42
Section 6.1.7 Notice of Default, Litigation, etc...........................................42
Section 6.1.8 Performance of Obligations...................................................42
Section 6.1.9 Audits; Books and Records....................................................43
Section 6.1.10 Compliance with Laws, etc....................................................43
Section 6.1.11 Environmental Matters........................................................43
Section 6.1.12 Maintenance of Property......................................................44
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Section 6.1.13 Delivery; Further Assurances.................................................44
Section 6.1.14 Investment Manager, etc......................................................45
Section 6.1.15 Minimum Net Worth............................................................45
Section 6.1.16 Affirmative Hedging Requirement..............................................45
Section 6.1.17 Use of Proceeds..............................................................46
Section 6.1.18 Compliance with Over-Collateralization Test..................................46
Section 6.1.19 Regulations T, U, and X......................................................47
Section 6.1.20 Plan Assets..................................................................47
Section 6.1.21 Key Individuals..............................................................47
Section 6.1.22 Regulated Investment Company.................................................47
Section 6.1.23 Closed-end Company Status....................................................47
Section 6.2 Negative Covenants.............................................................................48
Section 6.2.1 No Other Business; Subsidiaries..............................................48
Section 6.2.2 Limitations on Debt or Equity Securities.....................................48
Section 6.2.3 Liens........................................................................49
Section 6.2.4 Performance of Obligations...................................................50
Section 6.2.5 Limitations on Restricted Payments...........................................50
Section 6.2.6 Change of Name, etc..........................................................52
Section 6.2.7 Merger, Consolidation, Assignment; Successor Entity Substituted..............52
Section 6.2.8 Investment Dispositions, etc.................................................53
Section 6.2.9 Modification of Certain Instruments, Organic Documents, Agreements,
etc..........................................................................53
Section 6.2.10 Agreements Restricting Liens.................................................54
Section 6.2.11 Inconsistent Agreements......................................................54
Section 6.2.12 Environmental Matters........................................................54
Section 6.2.13 Pension and Welfare Plans....................................................54
Section 6.2.14 Payment of Management or Advisory Fees.......................................55
Section 6.2.15 Limitation on Bank Loans.....................................................55
Section 6.2.16 Commodities; Real Estate.....................................................55
Section 6.2.17 Margin Stock.................................................................55
Section 6.2.18 Limitations on Hedging and Short Sale Transactions...........................55
Section 6.2.19 [Reserved]...................................................................56
Section 6.2.20 Limitations on Transactions with Affiliates..................................56
Section 6.2.21 Limitation on Hedging SPEs' Debt.............................................57
Section 6.2.22 Maintenance of Separate Existence............................................57
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default..............................................................................57
Section 7.1.1 Non-Payment of Obligations...................................................57
Section 7.1.2 Over-Collateralization Test; Limitations on Hedging and Short Sale
Transactions; Leverage.......................................................57
Section 7.1.3 Non Performance of Other Obligations.........................................58
Section 7.1.4 Breach of Warranty...........................................................58
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Section 7.1.5 [Reserved]...................................................................58
Section 7.1.6 Default, Acceleration on Other Debt, etc.....................................58
Section 7.1.7 Secured Hedging Transaction Default..........................................58
Section 7.1.8 Judgments....................................................................58
Section 7.1.9 Bankruptcy, Insolvency, etc..................................................59
Section 7.1.10 Failure of Valid, Perfected, First-Priority Lien.............................59
Section 7.1.11 Investment Company Act.......................................................59
Section 7.1.12 Dissolution or Termination of Borrower.......................................59
Section 7.1.13 Removal of the Investment Manager; Trigger Event.............................60
Section 7.2 Action if Bankruptcy...........................................................................60
Section 7.3 Action if Other Event of Default...............................................................60
Section 7.4 Notice of Default..............................................................................60
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.1 Appointment....................................................................................60
Section 8.2 Nature of Duties...............................................................................61
Section 8.3 Lack of Reliance on the Administrative Agent...................................................61
Section 8.4 Certain Rights of the Administrative Agent.....................................................62
Section 8.5 Reliance.......................................................................................62
Section 8.6 [Reserved].....................................................................................62
Section 8.7 The Administrative Agent in Its Individual Capacity............................................62
Section 8.8 Holders of Lender Notes or Loans...............................................................62
Section 8.9 Resignation by the Administrative Agent........................................................63
Section 8.10 Consultation with Experts......................................................................63
Section 8.11 Administrative Agent's Fees....................................................................63
ARTICLE IX
MISCELLANEOUS
Section 9.1 Payment of Expenses, etc.......................................................................64
Section 9.2 Right of Setoff................................................................................65
Section 9.3 Notices........................................................................................65
Section 9.4 Benefit of Agreement.............................................................................
Section 9.5 No Waiver; Remedies Cumulative.................................................................70
Section 9.6 Payments Pro Rata..............................................................................70
Section 9.7 Calculations; Computations.....................................................................71
Section 9.8 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial.........................71
Section 9.9 Counterparts...................................................................................72
Section 9.10 Effectiveness..................................................................................73
Section 9.11 Headings Descriptive.............................................................................
Section 9.12 Amendment or Waiver............................................................................73
Section 9.13 Survival.......................................................................................75
Section 9.14 Domicile of Loans..............................................................................75
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Section 9.15 Confidentiality................................................................................75
Section 9.16 Register.......................................................................................76
Section 9.17 Lender Affiliate Securities....................................................................77
Section 9.18 Marshalling; Recapture.........................................................................77
Section 9.19 Lender Representations, etc.; Non-Recourse Obligations.........................................77
Section 9.20 No Petition....................................................................................79
Section 9.21 Integration....................................................................................80
Section 9.22 Acknowledgment.................................................................................80
Section 9.23 Judgment Currency; Currency Indemnity..........................................................80
Section 9.24 Collateral Valuation Schedule..................................................................80
Section 9.25 Consequences of Lender Ratings Downgrade.......................................................81
ANNEX X Definitions
EXHIBIT A Form of Borrowing Request
EXHIBIT B-1 Form of Revolving Note
EXHIBIT B-2 Form of Swingline Note
EXHIBIT C [Reserved]
EXHIBIT D Form of Assignment Agreement
EXHIBIT E Form of Tax Certificate
EXHIBIT F Form of Investment Manager Letter
EXHIBIT G Form of Pledge and Intercreditor Agreement
EXHIBIT H Form of Compliance Certificate
EXHIBIT I Form of Custodial Agreement
EXHIBIT J Form of Valuation Statement
SCHEDULE 1 Commitments and Percentages
SCHEDULE 2 Lending Offices and Notice Data
SCHEDULE 3 UCC-1 Filing Jurisdictions
SCHEDULE 4 Approved Dealers
SCHEDULE 5 Approved Investment Banking Firms
SCHEDULE 6 Approved Pricing Services
SCHEDULE 7 Industries
SCHEDULE 8 Approved Counterparties
SCHEDULE 9 ▇▇▇▇▇'▇ Collateral Valuation Schedule
SCHEDULE 10 S&P Collateral Valuation Schedule
SCHEDULE 11 Approved Third Party Appraisers
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 15, 2006 (this
"Agreement"), is entered into by and among ▇▇▇▇▇▇▇▇▇▇ OPPORTUNITIES PARTNERS
V, LP, a limited partnership formed under the laws of the State of Delaware
(the "Borrower"), VARIOUS FINANCIAL INSTITUTIONS which are, or may become,
parties hereto as Lenders, WACHOVIA CAPITAL MARKETS, LLC, as administrative
agent for the Lenders (in such capacity, the "Administrative Agent"), as lead
manager (in such capacity, the "Lead Manager") and as joint bookrunner (in
such capacity, a "Joint Bookrunner"), and BANC OF AMERICA SECURITIES LLC, as
co-lead manager (in such capacity, the "Co-Lead Manager") and as joint
bookrunner (in such capacity, a "Joint Bookrunner").
W I T N E S S E T H:
WHEREAS, the Borrower is a recently formed limited partnership formed
to pursue a strategy of investing on a leveraged basis and actively managing a
diversified pool of Fund Investments;
WHEREAS, the Borrower desires to obtain Commitments from the Lenders,
pursuant to which Loans shall be made, subject to the terms and conditions set
forth herein, in a maximum aggregate principal amount not to exceed at any
time the lesser of (a) the Total Maximum Commitment and (b) the Borrowing Base
minus the aggregate outstanding liquidation preference of the Preferred
Interests at such time; and
WHEREAS, the Lenders are willing, on the terms and conditions
hereinafter set forth, to extend such Commitments;
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.1 Defined Terms. As used in this Agreement, and unless the
context requires a different meaning, capitalized terms used but not defined
herein shall have the respective meanings set forth in Annex X hereto. In the
event of any inconsistency between the definition of any term as set forth
herein and the definition of such term as set forth in Annex X, the definition
of such term as set forth in Annex X shall control.
Section 1.2 Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each Assignment Agreement,
notice and other communication delivered from time to time in connection with
this Agreement or any other Credit Document.
Section 1.3 Interpretation. In this Agreement, unless a clear
contrary intention appears:
(a) the singular number includes the plural number and vice
versa;
(b) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including this Agreement and
the Annex and Exhibits hereto), document or instrument means such agreement,
document or instrument as amended or modified and in effect from time to time
in accordance with the terms thereof and, if applicable, the terms hereof and
reference to any promissory note includes any promissory note which is an
extension or renewal thereof or a substitute or replacement therefor;
(e) reference to any Applicable Law means such Applicable Law
as amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time, including rules and regulations promulgated
thereunder;
(f) unless the context indicates otherwise, reference to any
Article, Section, Schedule, Annex or Exhibit means such Article, Section or
Schedule hereof or Annex or Exhibit hereto;
(g) "hereunder," "hereof," "hereto" and words of similar import
shall be deemed references to this Agreement as a whole and not to any
particular Article, Section or other provision hereof;
(h) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding such
term; and
(i) relative to the determination of any period of time, "from"
means "from and including," "to" means "to but excluding," and "through" means
"through and including."
Section 1.4 Accounting Matters. For purposes of this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP applied in the preparation of the financial
statements of the Borrower referred to in subsection 6.1.2(a).
Section 1.5 Collateral Documents. References in this Agreement to the
Pledge and Intercreditor Agreement or any other Collateral Document, in a case
where such Collateral Document is or would be governed by the laws of any
jurisdiction
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other than the State of New York, shall mean and be a reference to a document
having a purpose and effect under the laws of such other jurisdiction
substantially similar to the purpose and effect of the corresponding
Collateral Document.
Section 1.6 Conflict Between Credit Documents. Except with respect to
matters covered in the Pledge and Intercreditor Agreement (where, in such
case, the provisions of the Pledge and Intercreditor Agreement shall control),
if there is any conflict between this Agreement and any other Credit Document,
this Agreement and such other Credit Document shall be interpreted and
construed, if possible, so as to avoid or minimize such conflict but, to the
extent (and only to the extent) of such conflict, this Agreement shall prevail
and control.
Section 1.7 Legal Representation of the Parties. This Agreement was
negotiated by the parties with the benefit of legal representation and any
rule of construction or interpretation otherwise requiring this Agreement or
any other Credit Document to be construed or interpreted against any party
shall not apply to any construction or interpretation hereof or thereof.
Section 1.8 References to Definitions in the Collateral Valuation
Schedules. References to a term having the meaning set forth in both
Collateral Valuation Schedules shall be applied separately using such term as
defined in each of the Collateral Valuation Schedules; provided, however, that
(i) if at any time none of the Loans or Preferred Interests are then rated by
▇▇▇▇▇'▇ but some or all of the Loans and Preferred Interests are rated by S&P,
the ▇▇▇▇▇'▇ Collateral Valuation Schedule shall not be applicable for any
purpose hereunder and (ii) if at any time none of the Loans or Preferred
Interests are then rated by S&P but some or all of the Loans and Preferred
Interests are rated by ▇▇▇▇▇'▇, the S&P Collateral Valuation Schedule shall
not be applicable for any purpose hereunder.
ARTICLE II
COMMITMENTS
Section 2.1 Commitments. Subject to the terms and conditions of this
Agreement, each Lender severally and for itself alone agrees to provide the
Commitments described in this Section 2.1.
Section 2.1.1 Commitment of Each Lender.
(a) Each Lender shall, from the Closing Date to the Commitment
Termination Date and subject to the terms and conditions hereof, severally,
but not jointly, make revolving loans (each, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower equal to its Revolving
Percentage of the aggregate amount of any Revolving Borrowing requested from
all Lenders. The commitment of each Lender described in this subsection
2.1.1(a) is herein referred to as its "Revolving Commitment" and, together
with its Revolving Percentage, is set forth in Schedule 1 hereto. Each
Revolving Loan shall be denominated in either Dollars or Euros, at the
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election of the Borrower, and, except as provided below, each Loan made by a
Lender other than a CP Conduit shall be incurred and maintained only as a
LIBOR Loan or a EURIBOR Loan, and each Loan made by a CP Conduit shall be
incurred and maintained only as a Cost of Funds Rate Dollar Loan or a Cost of
Funds Rate Euro Loan. A maximum of 22.5% of each Revolving Commitment on a
Dollar Equivalent basis shall be available for the purpose of making EURIBOR
Loans or Cost of Funds Rate Euro Loans, as applicable. Subject to the terms
hereof, the Borrower may from time to time borrow, prepay, repay and reborrow
Revolving Loans pursuant to the Revolving Commitments.
(b) Notwithstanding paragraph (a) of this Section 2.1.1 or any
other provision of this Agreement or the other Transaction Documents, no
Lender that is a Designated CP Conduit shall be required to make, purchase or
maintain any Revolving Loan or purchase or participate in any Swingline Loan;
provided that upon any refusal of a Designated CP Conduit to make or purchase
a Revolving Loan or purchase or participate in any Swingline Loan hereunder,
its corresponding Designated CP Conduit Committed Lender shall purchase or
participate in such Swingline Loan or, subject to Article IV, make or purchase
such Revolving Loan.
(c) Notwithstanding paragraphs (a) and (d) of this Section
2.1.1, Section 3.1.2 or any other provision of this Agreement or the other
Transaction Documents, but without limiting the obligation of any related
Liquidity Provider, each Lender that is an Other CP Conduit shall only be
required to make Loans to the extent it has funds available therefor.
(d) The applicable Swingline Lender shall, from the Closing
Date to the Swingline Expiry Date and subject to the terms and conditions
hereof, make a loan or loans (each, a "Swingline Loan" and, collectively, the
"Swingline Loans"), denominated in Dollars or Euros, as applicable, to the
Borrower in the aggregate amount of any Borrowing of Swingline Loans requested
from the applicable Swingline Lender. Subject to the terms hereof, the
Borrower may from time to time borrow, prepay, repay and reborrow Swingline
Loans.
Section 2.1.2 Amount of Commitments.
(a) No Lender shall be required to make any Revolving Loan
under its Revolving Commitment if, after giving effect thereto and the receipt
and application by the Borrower of the proceeds of such Revolving Loan, the
then aggregate outstanding principal amount of Revolving Loans made by such
Lender (and, in the case of a Designated CP Conduit or Designated CP Conduit
Committed Lender, the Loans made by its corresponding Designated CP Conduit
Committed Lender or Designated CP Conduit, respectively, and, in the case of
an Other CP Conduit, the Loans made by its related Liquidity Provider), when
added to such Lender's Revolving Percentage of the aggregate amount of all
Swingline Loans (exclusive of Swingline Loans which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) would exceed (x) its respective Revolving
Percentage of the Total Revolving Commitments at such time or (y) its
respective Revolving Percentage of the aggregate principal amount of all
Revolving Loans (as if each Lender had funded all of
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its Revolving Loans in accordance with this Agreement), or would cause the
aggregate outstanding principal amount of EURIBOR Loans or Cost of Funds Rate
Euro Loans, as applicable, made by such Lender (and, in the case of a
Designated CP Conduit or Designated CP Conduit Committed Lender, the Loans
made by its corresponding Designated CP Conduit Committed Lender or Designated
CP Conduit, respectively, and, in the case of an Other CP Conduit, the Loans
made by its related Liquidity Provider) to exceed 22.5% of its Revolving
Commitment on a Dollar Equivalent basis.
(b) The applicable Swingline Lender shall not be required to
make, and shall not make, any Swingline Loan if (i) after giving effect
thereto, the then aggregate outstanding principal amount of Swingline Loans
would exceed the Maximum Swingline Amount, (ii) after giving effect thereto
and the receipt and application by the Borrower of the proceeds thereof, (A)
the sum of the then aggregate outstanding principal amount of Revolving Loans
and the then aggregate outstanding principal amount of Swingline Loans would
exceed the Total Revolving Commitments at such time or (B) the sum of the then
aggregate outstanding principal amount of EURIBOR Loans and Cost of Funds Rate
Euro Loans and the then aggregate outstanding principal amount of Swingline
Loans denominated in Euros would exceed 22.5% of the Total Revolving
Commitment on a Dollar Equivalent basis, (iii) a Default has occurred and is
continuing, (iv) to the applicable Swingline Lender's knowledge, any other
condition set forth in Section 4.2 has not been satisfied or (v) the LIBOR
Market Index Rate or the Swingline Base Rate, as applicable, cannot be
determined. A Swingline Lender shall not be permitted to make any Swingline
Loan after it has received a notice from the Borrower or any Lender that a
Default has occurred unless such Default has been cured or waived in
accordance with the terms hereof.
(c) For purposes of any calculations in this Agreement relating
to EURIBOR Loans, Cost of Funds Rate Euro Loans or Swingline Loans denominated
in Euros, the relevant amount shall be calculated in Dollar Equivalents. The
Lenders shall not be required to make any EURIBOR Loans, Cost of Funds Rate
Euro Loans or Swingline Loans denominated in Euros if, after giving effect
hereto, the aggregate Dollar Equivalent of all such Loans would exceed 22.5%
of the Total Maximum Commitment. Nothing in this subsection 2.1.2(c) shall
affect a Lender's calculations with respect to its hedging mechanics for its
internal purposes.
Section 2.2 Optional Reductions and Increases of Total Maximum
Commitment.
(a) The Borrower may, from time to time on any Business Day
(the "Commitment Reduction Date"), voluntarily reduce the amount of the Total
Maximum Commitment; provided, that (i) all such reductions shall (x) require
at least five (5) Business Days' prior notice to the Administrative Agent, (y)
apply proportionately to the Total Revolving Commitments, each Lender's
Revolving Commitment (in accordance with its Revolving Percentage of the Total
Revolving Commitment) and (z) permanently reduce the Total Maximum Commitment
by the amount of such reduction (the "Commitment Reduction Amount") (such
reduction permanently reducing the amount resulting from each calculation of
Total Maximum
5
Commitment thereafter), (ii) any partial reduction of the Total Maximum
Commitment shall be in a minimum amount of $3,000,000 and in an integral
multiple of $1,000,000 for amounts in excess thereof, (iii) no such reduction
shall reduce (A) any Lender's Revolving Commitment to an amount less than the
sum of the aggregate outstanding principal amount of Revolving Loans of such
Lender and such Lender's Revolving Percentage of the aggregate outstanding
principal amount of Swingline Loans or (B) the portion of such Lender's
commitment available for the purpose of making EURIBOR Loans or Cost of Funds
Rate Euro Loans to an amount less than the sum of the aggregate outstanding
principal amount of EURIBOR Loans or Cost of Funds Rate Euro Loans of such
Lender and such Lender's Revolving Percentage of the aggregate outstanding
principal amount of Swingline Loans denominated in Euros, and (iv) if such
reduction occurs on or prior to the second anniversary of the Closing Date,
the Borrower shall have paid the Commitment Reduction Premium to the Lenders,
ratably according to their respective Percentages as of the related Commitment
Reduction Date. With respect to each Designated CP Conduit and its
corresponding Designated CP Conduit Committed Lender, there shall be a single
payment to the Designated CP Conduit Committed Lender.
For the purposes of this Section 2.2, "Commitment Reduction Premium"
shall mean, with respect to any Commitment Reduction Date occurring on or
prior to the second anniversary of the Closing Date, an amount equal to a
percentage of the Commitment Reduction Amount, which percentage shall be
determined by linear interpolation (and rounded to the nearest 0.0001%) during
the period from the Closing Date, as to which the percentage shall be 0.5%,
through the second anniversary of the Closing Date, as to which the percentage
shall be 0.1%. No Commitment Reduction Premium shall be payable with respect
to any Commitment Reduction Date occurring after the second anniversary of the
Closing Date.
The Administrative Agent shall notify the Lenders, ▇▇▇▇▇'▇ and S&P of
receipt of notice of any voluntary reduction of the Total Maximum Commitment
hereunder promptly following receipt of such notice. For the purposes of this
Section 2.2, the Commitment of a Designated CP Conduit and the Commitment of
its corresponding Designated CP Conduit Committed Lender shall be treated as a
single Commitment and shall each be reduced by an equal amount, and the
reduction of any Other CP Conduit's Commitment shall be deemed to effect a
corresponding reduction in the obligations of its related Liquidity Provider.
(b) The Borrower may, on any Business Day on or prior to March
31, 2007, increase the amount of the Total Maximum Commitment up to a maximum
amount of $1,500,000,000; provided, that (i) only one such increase shall be
made; (ii) such increase shall (x) require at least ten (10) Business Days'
prior written notice to the Administrative Agent, the Lead Manager, the
Co-Lead Manager and each Lender, and (y) be consented to in writing by the
Administrative Agent, the Lead Manager and the Co-Lead Manager, which consents
shall not be unreasonably withheld or delayed; (iii) such increase shall be in
a minimum amount of $50,000,000 and in an integral multiple of $1,000,000 for
amounts in excess thereof; (iv) such increase shall be subject to the Borrower
obtaining sufficient additional Revolving Commitments from existing Lenders or
additional lenders meeting the requirements set forth in subsection
6
9.19(a); and (v) at the time of such increase, and after giving effect
thereto, the conditions set forth in Section 4.2.1 shall be satisfied.
Section 2.3 Extension of Facility.
Section 2.3.1 Notice of Extension. Subject to complying with this
Section 2.3.1, so long as no violation of Section 6.1.18 (without giving
effect to the grace periods provided for therein) shall have occurred and be
continuing under this Agreement, the Borrower may request a 364-day extension
of the Commitment Termination Date from the Scheduled Commitment Termination
Date to the date that is 364 days after the Scheduled Commitment Termination
Date (the "Extension Date"); provided, that any Extension Date that would
otherwise be a day that is not a Business Day shall be the preceding Business
Day. The Borrower may, by notice to the Administrative Agent (such notice
being an "Extension Notice") given no more than six (6) months and no less
than three (3) months prior to the Scheduled Commitment Termination Date,
request that the Lenders extend the Commitment Termination Date from the
Scheduled Commitment Termination Date to the Extension Date. The Extension
Notice shall be accompanied by a certificate from the Borrower stating that no
Default has occurred and is continuing. The Administrative Agent shall notify
the Lenders of its receipt of any Extension Notice within five (5) Business
Days after the Administrative Agent's receipt thereof, and each Lender shall
notify the Administrative Agent of its decision regarding such Extension
Notice during the period commencing on the date such notice is received by the
Administrative Agent and terminating on the date which is thirty (30) days
thereafter (the "Consent Period"). Each Lender may, by an irrevocable notice
(a "Consent Notice") to the Administrative Agent at any time during the
Consent Period, consent to such extension, which consent may be given or
withheld by each Lender in its absolute and sole discretion (each Lender
giving a Consent Notice during the Consent Period being called a "Continuing
Lender"). Notwithstanding anything else to the contrary, any such extension
shall be subject to the conditions that (i) all Continuing Lender(s) have an
aggregate amount of Commitments representing more than 50% of the aggregate of
all Commitments (as in effect at the time of the delivery of the Extension
Notice), (ii) no Default shall have occurred and be continuing on the
Scheduled Commitment Termination Date, it being understood that any such
extension of the Scheduled Commitment Termination Date shall be deemed to be a
representation and warranty by the Borrower that the condition set forth above
in this clause (ii) has been satisfied and (iii) all representations and
warranties of the Borrower set forth in Article V shall be true and correct in
all material respects on the Scheduled Commitment Termination Date. The
Administrative Agent shall promptly notify the Borrower, ▇▇▇▇▇'▇, S&P and each
Continuing Lender of the effectiveness of any extension of the Scheduled
Commitment Termination Date pursuant to this Section 2.3.1.
Section 2.3.2 Withdrawing Lenders. No extension pursuant to Section
2.3.1 shall be effective with respect to a Lender that either (i) by a notice
(a "Withdrawal Notice") delivered to the Administrative Agent during the
Consent Period, declines to consent to such extension or (ii) has failed to
respond to the Administrative Agent within the Consent Period (each such
Lender giving a Withdrawal Notice or failing to respond in a timely manner
being called a "Withdrawing Lender").
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Section 2.3.3 Termination of Commitment of Withdrawing Lender.
Unless its Commitment has been assigned pursuant to Section 2.3.4, the
Commitment of each Withdrawing Lender shall terminate on the Scheduled
Commitment Termination Date without giving effect to any extension, and any
Borrowing Request specifying a Business Day for a Borrowing occurring on or
after the Scheduled Commitment Termination Date shall have no effect in
respect of such Withdrawing Lender. The Administrative Agent shall promptly
notify the Borrower (and the Borrower shall promptly notify ▇▇▇▇▇'▇ and S&P)
of the termination of the Commitments of Withdrawing Lenders and the aggregate
Commitments of all Lenders as of the close of business on the Scheduled
Commitment Termination Date.
Section 2.3.4 Assignment by Withdrawing Lender. A Withdrawing
Lender shall be obliged, at the request of the Borrower or the Administrative
Agent (and subject to the Withdrawing Lender receiving payment in full of an
amount equal to the sum of (1) the principal of, and all accrued interest on,
all outstanding Loans of the Withdrawing Lender, plus (2) all accrued, but
theretofore unpaid, fees owing to the Withdrawing Lender pursuant to Section
2.4, plus (3) all other amounts due and owing to the Withdrawing Lender under,
or with respect to, this Agreement and the other Credit Documents, or such
other amount as to which the Withdrawing Lender shall agree), as of the
Scheduled Commitment Termination Date, to assign, without recourse or warranty
(other than a warranty as to unencumbered ownership of the Loans so being
assigned) all of its rights and obligations (including its Commitment)
hereunder to another financial institution chosen by the Borrower; provided,
that such assignment shall be made pursuant to and satisfy all the
requirements of subsection 9.4(b) (it being understood that no Withdrawing
Lender shall be required to pay the assignment fee referred to therein), and
such assignment is otherwise consented to by the Administrative Agent and the
Borrower. Any such financial institution shall, pursuant to the terms of
subsection 9.4(b), thereafter be a Lender for all purposes of this Agreement,
and the Commitment and Loans so assigned shall be extended pursuant to Section
2.3.1.
Section 2.3.5 Total Maximum Commitment After Extension. If the
Commitment Termination Date is extended pursuant to Section 2.3.1, the Total
Maximum Commitment and the Total Revolving Commitments shall be permanently
reduced (such reduction permanently reducing the amount resulting from each
calculation of the Total Maximum Commitment and the Total Revolving
Commitments thereafter) by an amount equal to the sum of the Commitments and
the Revolving Commitments, respectively, of each Withdrawing Lender that has
not assigned its Loans and Commitments in accordance with Section 2.3.4 on or
prior to the Scheduled Commitment Termination Date (without giving effect to
any extension).
Section 2.4 Fees.
Section 2.4.1 Commitment Fee. The Borrower agrees to pay on
each Quarterly Date after the Closing Date and on the Scheduled Commitment
Termination Date (if such Commitment Termination Date has not been extended
pursuant to Section 2.3.1 or if any principal otherwise becomes due in respect
of any Loans on the Scheduled Commitment Termination Date) and on the
Extension Date (if
8
the Commitment Termination Date has been extended pursuant to Section 2.3.1)
(each such date, a "Commitment Fee Payment Date"), to the Administrative Agent
for the account of the Lenders, ratably according to their respective
Percentages for the calendar quarter (or portion thereof) preceding each such
payment, a non-refundable fee equal to the sum of (i) the aggregate amount of,
with respect to each day during the calendar quarter (or portion thereof)
preceding the related Commitment Fee Payment Date on which the aggregate
outstanding amount of Revolving Loans was equal to or greater than the
applicable Minimum Borrowing Amount, the Unutilized Commitment with respect to
such day multiplied by 0.15% per annum (calculated on an actual/360-day basis)
and (ii) the aggregate amount of, with respect to each day during the calendar
quarter (or portion thereof) preceding the related Commitment Fee Payment Date
on which the aggregate outstanding amount of Revolving Loans was less than the
applicable Minimum Borrowing Amount, the Unutilized Commitment with respect to
such day multiplied by 0.20% per annum (calculated on an actual/360-day
basis). With respect to each Designated CP Conduit and its corresponding
Designated CP Conduit Committed Lender, there shall be a single fee paid to
the Designated CP Conduit Committed Lender.
Section 2.4.2 Administrative Agent's Fee. The Borrower shall pay fees to
the Administrative Agent in the amount and manner specified in the Fee Letter.
ARTICLE III
LOANS AND LENDER NOTES
Section 3.1 Borrowing Procedure. Borrowings of Loans shall be made in
accordance with this Section 3.1.
Section 3.1.1 Borrowing Requests.
(a) On any Business Day on or after the Closing Date and prior
to the Commitment Termination Date, the Borrower, on the terms and conditions
provided herein, may from time to time request that Revolving Loans be made by
all Lenders with Revolving Commitments. The aggregate amount of such requested
Loans shall be in a principal amount equal to (A) $5,000,000 or an integral
multiple of $1,000,000 for amounts in excess thereof (or, in the case of
EURIBOR Loans and Cost of Funds Rate Euro Loans, 4,000,000 Euros or an
integral multiple of 1,000,000 Euros for amounts in excess thereof) or (B) if
less than the amount specified in (A), the unused amount of the Commitments.
Revolving Loans shall be requested by the Borrower by delivering, e-mailing or
telecopying to the Administrative Agent a Borrowing Request no later than the
time specified in the next sentence. A written request for a Borrowing shall
be received by the Administrative Agent no later than (x) 9:00 a.m. (Los
Angeles time) not less than two (2) Business Days preceding the date of the
requested Loans, in the case of LIBOR Loans and Cost of Funds Rate Dollar
Loans and (y) 8:00 a.m. (Los Angeles time) not less than four (4) Business
Days preceding the date of the requested Loans, in the case of EURIBOR Loans
and Cost of Funds Rate Euro Loans. Subject to Section 3.4.4, each Borrowing
Request shall be irrevocable and binding upon the Borrower. All Borrowing
Requests for LIBOR Loans or EURIBOR Loans, on the one hand, and Cost of
9
Funds Rate Dollar Loans or Cost of Funds Rate Euro Loans, on the other hand,
hereunder shall be made on a pro rata basis (based on the available amounts of
the Commitments of Lenders other than CP Conduits and of CP Conduits,
respectively).
(b) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give the applicable Swingline Lender, not
later than (x) 10:00 a.m. (Los Angeles time) on the date that a Swingline Loan
denominated in Dollars is to be made and (y) 11:00 a.m. (London time) on the
date that a Swingline Loan denominated in Euros is to be made, written notice
in the form of a Borrowing Request for each Swingline Loan to be made
hereunder and shall simultaneously give written notice to the Administrative
Agent of the related Mandatory Borrowing that will be required pursuant to
subsection 3.1.1 (c) as a result of such Swingline Loan being requested;
provided, that no more than five Swingline Loans may be requested in any
calendar month unless each affected Swingline Lender otherwise consents and no
Borrowing of a Swingline Loan may be made at any time when the LIBOR Market
Index Rate or Swingline Base Rate, as applicable, cannot be determined or when
the Borrowing of a Swingline Loan would result, after giving effect to all
related Mandatory Borrowings, in more than ten (10) separate Interest Periods
with respect to all Revolving Loans. Each such notice shall be irrevocable and
specify in each case (A) the date of Borrowing (which shall be a Business Day)
and (B) the aggregate principal amount of Swingline Loans to be made pursuant
to such Borrowing. Each such Swingline Loan shall be (i) denominated in
Dollars in a principal amount of $5,000,000 or an integral multiple of
$1,000,000 for amounts in excess thereof or denominated in Euros in a
principal amount of 4,000,000 Euros or an integral multiple of 1,000,000 Euros
for amounts in excess thereof and (ii) made as Swingline Loans. Mandatory
Borrowings shall be made in accordance with subsection 3.1.1(c), with the
Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the
making of the Mandatory Borrowings as set forth in subsection 3.1.1(c).
(c) Swingline Loans shall be funded with an automatic Borrowing
of Revolving Loans (each such Borrowing, a "Mandatory Borrowing"), (x) on the
second Business Day following the Borrowing of any Swingline Loan denominated
in Dollars hereunder and (y) on the fourth Business Day following the
Borrowing of any Swingline Loan denominated in Euros hereunder, from all
Revolving Lenders pro rata on the basis of their respective Revolving
Percentages (determined before giving effect to any termination of the
Commitments pursuant to Section 7.3) and the proceeds thereof shall be applied
directly to the applicable Swingline Lender to repay such Swingline Lender for
such outstanding Swingline Loans. Each such Revolving Lender hereby
irrevocably agrees, subject to the limitations on the obligations of CP
Conduits and the limitations with respect to Types of Loans that may be made
by CP Conduits and Lenders other than CP Conduits set forth in Section 2.1.1,
to make Revolving Loans pursuant to each Mandatory Borrowing in the amount and
in the manner specified in the preceding sentence and on the date specified in
writing by the applicable Swingline Lender notwithstanding (i) the amount of
the Mandatory Borrowing may not comply with the minimum amount for Borrowings
otherwise required hereunder, (ii) whether any conditions specified in Article
IV are then satisfied, (iii) whether a Default then exists (provided such
Swingline Loan did not violate the last sentence of subsection 2.1.2(b)
10
when made), (iv) the date of such Mandatory Borrowing, and (v) the amount of
the Total Maximum Commitment at such time (provided, that such Swingline Loan
met the requirements of subsection 2.1.2(b)(ii) when made). In the event that
any Mandatory Borrowing is required to be made and cannot for any reason be
made on the date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding described in Section 7.1.9 with
respect to the Borrower), then each such Revolving Lender hereby agrees,
subject to the limitations on the obligations of CP Conduits and the
limitations with respect to Types of Loans that may be made by CP Conduits and
Lenders other than CP Conduits set forth in Section 2.1.1, that it shall
forthwith purchase (as of the date the Mandatory Borrowing would otherwise
have occurred, but adjusted for any payments received from the Borrower on or
after such date and prior to such purchase) from the applicable Swingline
Lender such participations in the outstanding Swingline Loans as shall be
necessary to cause such Revolving Lender to share in such Swingline Loans
ratably based upon its respective Revolving Percentage (determined before
giving effect to any termination of the Commitments pursuant to Section 7.3);
provided, that (x) all interest payable on the Swingline Loans shall be for
the account of the applicable Swingline Lender until the date as of which the
respective participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the
participant from and after such date and (y) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing
Revolving Lender shall be required to pay the applicable Swingline Lender
interest on the principal amount of the participation purchased for each day
from and including the day upon which the Mandatory Borrowing would otherwise
have occurred to but excluding the date of payment for such participation, at
the applicable Swingline Rate plus the Applicable Margin for each such day.
(d) The Administrative Agent shall notify the Lenders (or any other Person as
previously directed in writing by a Lender to the Administrative Agent) of the
receipt of each Borrowing Request (including with respect to any Swingline
Loan) promptly, and in no event later than the Business Day following receipt
thereof. Such notice shall be given in writing by facsimile or e-mail. Each
request for Loans made pursuant to this Section 3.1.1 shall constitute the
Borrower's representation and warranty made to the Administrative Agent and
the Lenders that all of the applicable conditions contained in Article IV
shall, after giving effect to such Borrowing, be satisfied, and the making
available of such Loans to the Borrower shall be subject to the satisfaction
of the applicable conditions of Article IV.
(e) Any such notice of a Borrowing Request given to a
Designated CP Conduit under this Section 3.1.1 shall be effective with respect
to any Designated CP Conduit Committed Lender that assumes the obligations of
any Designated CP Conduit hereunder on or prior to the date of the Borrowing
specified therein.
Section 3.1.2 Funding of Borrowings.
(a) No later than 10:00 a.m. (Los Angeles time) on the Business
Day specified in each Borrowing Request (or (x) in the case of Swingline
Loans,
11
no later than the close of business on the date specified pursuant to
subsection 3.1.1(b) or (y) in the case of Mandatory Borrowings, not later than
10:00 a.m. (Los Angeles time) on the applicable date specified in subsection
3.1.1(c)), each Lender shall make available its pro rata share (based on such
Lender's Revolving Percentage) of each Borrowing requested to be made on such
date (or, in the case of Swingline Loans, the applicable Swingline Lender
shall make available the full amount thereof) in the manner provided below.
All such amounts shall be made available in Dollars or Euros, as specified in
the relevant Borrowing Request, and immediately available funds at the Payment
Office and (other than in the case of Mandatory Borrowings) the Administrative
Agent promptly shall make available to the Borrower by depositing to the
Custodial Account the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Borrowing or
Borrowings to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative Agent on such
date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so)
make available to the Borrower a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such
Lender and the Administrative Agent has made available such amount to the
Borrower, the Administrative Agent shall be entitled to recover such
corresponding amount from such Lender (or if such Lender is a Designated CP
Conduit, from its Designated CP Conduit Committed Lender). If such Lender does
not pay such corresponding amount forthwith upon the Administrative Agent's
demand therefor, the Administrative Agent shall promptly notify the Borrower,
and the Borrower shall as soon as practicable pay such corresponding amount to
the Administrative Agent. The Administrative Agent shall also be entitled to
recover on demand from such Lender (or the Borrower, as the case may be, if
such Lender fails to pay) interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by the
Administrative Agent to the Borrower to the date such corresponding amount is
recovered by the Administrative Agent, at a rate per annum equal to (x) if
paid by such Lender, the overnight Federal Funds Effective Rate or (y) if paid
by the Borrower, the then applicable rate of interest, calculated in
accordance with Section 3.4, for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
Section 3.2 Lender Notes. Each Loan made by a Lender shall be
evidenced by (i) if a Revolving Loan, a promissory note payable to the order
of such Lender in a maximum principal amount equal to such Lender's Revolving
Percentage of the Total Revolving Commitments and shall be dated the Closing
Date and substantially in the form of Exhibit B-1 (a "Revolving Note") and
(ii) if a Swingline Loan, a promissory note payable to the order of the
applicable Swingline Lender in a maximum principal amount equal to the Maximum
Swingline Amount (on a Dollar Equivalent basis,
12
in the case of the promissory note relating to Swingline Loans denominated in
Euros) and dated the Closing Date and substantially in the form of Exhibit B-2
(a "Swingline Note").
The Borrower hereby irrevocably authorizes each Lender to make (or
cause to be made) appropriate notations on the grid attached to its respective
Lender Note (or on a continuation of such grid attached to such Lender Note
and made a part thereof), which notations shall evidence, inter alia, the date
of, the outstanding principal amount of, and the interest rate applicable to,
the Loans evidenced thereby. The notations on each such grid (and on each such
continuation) indicating the outstanding principal amount of the Loans made by
such Lender shall be prima facie evidence (absent manifest error) of the
principal amount thereof owing and unpaid, but the failure to record any such
amount on such grid (or on such continuation) shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Lender Note to
make payment of the principal of or interest on such Loans when due.
Notwithstanding the foregoing or any other provision of this
Agreement, a Lender may, by written request to the Borrower and the
Administrative Agent, elect not to have its Loans evidenced by a Lender Note,
in which case Loans made by such Lender shall be evidenced solely by the
Register.
Section 3.3 Principal Payments.
Section 3.3.1 Repayments and Prepayments. The Borrower shall make
payment in full of all unpaid principal of (x) each Revolving Loan on the
Commitment Termination Date and (y) each Revolving Loan made by a Withdrawing
Lender (and not assigned pursuant to Section 2.3.4) on the Scheduled
Commitment Termination Date and (z) each Swingline Loan on the Swingline
Expiry Date. Prior thereto, the Borrower:
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Revolving Loans made as part of any particular Borrowing; provided,
that:
(i) no such prepayment of any Borrowing of Revolving
Loans may be made which, after giving effect thereto,
would result in the aggregate outstanding principal amount
of such Revolving Loans being less than $1,000,000, or
Euros having a Dollar Equivalent of not less than
$1,000,000 (in each case unless repaid in full);
(ii) each such voluntary prepayment shall require at
least (x) in the case of Revolving Loans other than
EURIBOR Loans and Cost of Funds Rate Euro Loans, two (2)
Business Days' prior written notice to the Administrative
Agent and (y) in the case of EURIBOR Loans and Cost of
Funds Rate Euro Loans, at least four (4) Business Days'
prior written notice to the Administrative Agent;
(iii) each such voluntary prepayment shall be in a
minimum amount of (x) in the case of Revolving Loans other
than EURIBOR
13
Loans and Cost of Funds Rate Euro Loans, $1,000,000 and an
integral multiple of $1,000,000 and (y) in the case of
EURIBOR Loans and Cost of Funds Rate Euro Loans, 1,000,000
Euros and an integral multiple of 1,000,000 Euros (or in
each case, if less, the outstanding principal amount of
all Loans then outstanding);
(iv) a prepayment on a day other than the last day of
the Interest Period for such Revolving Loan shall in all
cases be subject to the requirements of Section 3.4.5; and
(v) no such prepayment may be made if, after giving
effect thereto, a Swingline Loan would remain outstanding;
(b) shall, on each date when any reduction in the Total Maximum
Commitment shall become effective, make a mandatory prepayment of all Loans
equal to the excess, if any, of the aggregate outstanding principal amount of
all Loans over the Total Maximum Commitment as so reduced;
(c) shall make a prepayment of Loans as may be required by
Section 6.1.18;
(d) shall, immediately upon any acceleration of the maturity of
any Loans pursuant to Sections 7.2 and/or 7.3 as required by the terms of the
Pledge and Intercreditor Agreement, repay all Loans;
(e) shall repay the outstanding amount of any Swingline Loan
not funded by a Mandatory Borrowing in accordance with subsection 3.1.1(c) on
the fifteenth (15th) Business Day following the making of such Swingline Loan;
and
(f) shall, upon four (4) Business Days' prior written notice to
be given on any Business Day on which the Administrative Agent determines that
the aggregate outstanding principal amount of Swingline Loans denominated in
Euros, EURIBOR Loans and Cost of Funds Rate Euro Loans exceeds 103% of 22.5%
of the Total Revolving Commitment on a Dollar Equivalent basis, make a
mandatory repayment of any Swingline Loans denominated in Euros, EURIBOR Loans
and Cost of Funds Rate Euro Loans such that the aggregate outstanding
principal amount of any remaining Swingline Loans denominated in Euros,
EURIBOR Loans and Cost of Funds Rate Euro Loans does not exceed 22.5% of the
Total Revolving Commitment on a Dollar Equivalent basis.
Each repayment and prepayment of any Loans made pursuant to this Section 3.3.1
shall be without premium or penalty, except as may be otherwise required by
this Agreement (including Section 3.4.5).
Section 3.3.2 Application. Prepayments shall be applied to such Loans
as may be specified by the Borrower (so long as any prepayment of Revolving
Loans being maintained as LIBOR Loans or EURIBOR Loans, as applicable, on the
one hand, and Cost of Funds Rate Dollar Loans or Cost of Funds Rate Euro
Loans, as applicable, on the other hand, is made on a pro rata basis among
such Loans); provided,
14
however, that, during the occurrence and continuance of an Event of Default,
or in the event any Lender fails to acquire its pro rata share in any
Swingline Loan from the applicable Swingline Lender, prepayments shall be
applied first to the portion of such Loans being maintained as Swingline Loans
and then on a pro rata basis among all remaining Loans but subject in any
event to Section 9.6. Absent such specification by the Borrower or the
occurrence and continuance of an Event of Default, any prepayment of any Loans
shall be applied first to the portion of such Loans being maintained as
Swingline Loans in the currency of such prepayment, then to the portion of
such Loans being maintained in the currency of such prepayment (on a pro rata
basis among Revolving Loans being maintained as LIBOR Loans and Cost of Funds
Rate Dollar Loans or among such Loans being maintained as EURIBOR Loans and
Cost of Funds Rate Euro Loans, as the case may be) and then on a pro rata
basis among all remaining Loans.
Section 3.4 Interest.
Section 3.4.1 Interest Rules and Calculations.
(a) [Reserved].
(b) (i) The unpaid principal amount of each LIBOR Loan and
EURIBOR Loan shall bear interest from the date of the Borrowing thereof until
maturity (whether by acceleration or otherwise) at a rate per annum which
shall at all times be LIBOR plus the Applicable Margin or EURIBOR plus the
Applicable Margin, as the case may be, and (ii) the unpaid principal amount of
each Cost of Funds Rate Dollar Loan and Cost of Funds Rate Euro Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether
by acceleration or otherwise) at a rate per annum which shall be the higher of
(x) LIBOR plus the Applicable Margin or EURIBOR plus the Applicable Margin, as
applicable, and (y) the applicable Cost of Funds Rate determined in accordance
with Section 3.4.1(i) plus the Applicable Margin.
(c) The unpaid principal amount of each Swingline Loan shall
bear interest from the date of the Borrowing thereof until maturity (whether
by acceleration or otherwise) at a rate per annum which shall at all times be
the applicable Swingline Rate in effect from time to time plus the Applicable
Margin.
(d) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan (regardless of Type) and any other
overdue amount payable hereunder shall bear interest at a rate per annum equal
to LIBOR or EURIBOR, as applicable, plus 3.00%.
(e) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) on each Quarterly Date following the calendar quarter in which
such interest accrued, in the case of LIBOR Loans and Cost of Funds Rate
15
Dollar Loans, and on the Monthly Date at the end of each Interest Period, in
the case of EURIBOR Loans or Cost of Funds Rate Euro Loans, and (ii) at
maturity (whether by acceleration or otherwise) and, after such maturity, on
demand.
(f) The Borrower shall, no later than ten (10) Business Days
prior to each Quarterly Date and Monthly Date, as applicable, review the
potential sources available for the payment of amounts due on such Quarterly
Date or Monthly Date, as applicable, (including, without limitation,
borrowings under this Agreement, cash (including from the sale of Collateral)
and contributions of equity capital to the Borrower, including any
Subordinated Equity Security. The Borrower shall thereupon make cash available
from one or more such sources in order to pay in full all amounts due on such
applicable Quarterly Date or Monthly Date.
(g) All computations of interest hereunder shall be made in
accordance with subsection 9.7(b).
(h) The Administrative Agent, upon determining LIBOR on any
LIBOR Determination Date, or upon determining EURIBOR on any applicable TARGET
Day, shall promptly notify the Borrower and the Lenders thereof.
(i) Each Lender making Cost of Funds Rate Dollar Loans or Cost
of Funds Rate Euro Loans hereunder shall, no later than the fifth Business Day
following the end of each calendar quarter or calendar month, as applicable
(or, if this Agreement shall terminate prior to the end of any calendar
quarter or calendar month, as applicable, at least five Business Days prior to
the termination of this Agreement), furnish to the Administrative Agent such
Lender's written determination, in excel format, of its Cost of Funds Rate
(subject to the cap set forth in the definition thereof) plus the Applicable
Margin, and the resulting amount of interest due to such Lender, for such
preceding calendar quarter or calendar month, as applicable (or, if this
Agreement is being terminated prior to the end of a calendar quarter or
calendar month, as applicable, for such period from the beginning of a
calendar quarter or calendar month, as applicable through the termination of
this Agreement), provided, that such Lender need only furnish such written
determination of such Cost of Funds Rate plus the Applicable Margin and
resulting amount of interest due if the amount of interest due such Lender
would exceed the amount of interest due such Lender if such interest were
calculated using LIBOR or EURIBOR, as applicable, plus the Applicable Margin.
The Administrative Agent shall compile any such determinations timely received
from the Lenders and furnish them to the Borrower no later than the 10th
Business Day following the end of each calendar quarter or calendar month, as
applicable (or, if this Agreement shall terminate prior to the end of any
calendar quarter or calendar month, as applicable, no later than the
termination of this Agreement). If any such written determination of interest
due based on the Cost of Funds Rate is not received by the Borrower from the
Administrative Agent in a timely manner, interest payable on the affected Cost
of Funds Rate Dollar Loan or Cost of Funds Rate Euro Loan shall be calculated
on the basis of LIBOR or EURIBOR, as applicable, plus the Applicable Margin.
Each Lender furnishing any such determination of its Cost of Funds Rate shall
represent to the Borrower that such determination constitutes such Lender's
good faith calculation of its actual cost of funding with respect to the
applicable Cost of Funds Rate Dollar Loan or Cost of Funds Rate Euro Loan, and
such
16
representation shall, absent demonstrable error, be final and conclusive
and binding on all parties (subject to timely receipt thereof by the Borrower
in accordance with the foregoing sentence). In the case of Cost of Funds Rate
Euro Loans, any additional amounts payable as a result of the operation of
this subsection shall be payable on the fifth Business Day following the
delivery of the relevant determination by the Administrative Agent to the
Borrower.
Section 3.4.2 Interest Periods. By delivering a Borrowing Request in
respect of the making of LIBOR Loans, Cost of Funds Rate Dollar Loans, EURIBOR
Loans or Cost of Funds Rate Euro Loans, the Borrower shall be deemed to have
elected an initial Interest Period commencing on the date of the related
Borrowing and ending on the last calendar day of the month of such Borrowing
(unless otherwise agreed in writing by the Borrower and the Administrative
Agent, on behalf of the Lenders). If the Borrower does not prepay or repay a
Revolving Loan by the end of an Interest Period, the Borrower shall be deemed
to have elected to continue such Revolving Loan for an additional Interest
Period of one month (unless otherwise agreed in writing by the Borrower and
the Administrative Agent, on behalf of the Lenders). Notwithstanding anything
to the contrary contained above:
(i) the initial Interest Period for any Borrowing of
LIBOR Loans, Cost of Funds Rate Dollar Loans, EURIBOR
Loans or Cost of Funds Rate Euro Loans shall commence on
the date of such Borrowing and any Interest Period
occurring thereafter in respect of such Borrowing shall
commence on the day on which the preceding Interest Period
expires;
(ii) there shall be no more than ten (10) separate
Interest Periods permitted with respect to all Revolving
Loans;
(iii) if any Interest Period begins on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such
Interest Period shall end on the last Business Day of such
calendar month;
(iv) if any Interest Period would otherwise expire on
a day which is not a Business Day, such Interest Period
shall expire on the succeeding Business Day; provided,
that if any Interest Period would otherwise expire on a
day which is not a Business Day but is a day of the month
after which no further Business Day occurs in such month,
such Interest Period shall expire on the preceding
Business Day; and
(v) no Interest Period shall extend beyond the
Commitment Termination Date (and, if the Commitment
Termination Date shall be the Extension Date, no Interest
Period with respect to a Loan made by a Withdrawing Lender
that has not assigned such Loan pursuant to Section 2.3.4
shall extend beyond the Scheduled Commitment Termination
Date).
Section 3.4.3 [Reserved]
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Section 3.4.4 Increased Costs, Illegality, etc.
(a) In the event that (x) in the case of subsection 3.4.4(a)(i)
below, the Administrative Agent or (y) in the case of subsections 3.4.4(a)(ii)
and (iii) below, any Lender, shall have determined (which determination shall,
absent manifest error, be final and conclusive and binding upon all parties
hereto):
(i) on any date for determining LIBOR or EURIBOR, as
applicable, that, by reason of any changes arising after
the date of this Agreement affecting the London interbank
market or European interbank market, as applicable,
adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the
definition of LIBOR or EURIBOR, as applicable; or
(ii) at any time, that such Lender or SPC shall incur
increased costs or reductions in the amounts received or
receivable hereunder with respect to any LIBOR Loans,
EURIBOR Loans, Cost of Funds Rate Dollar Loans or Cost of
Funds Rate Euro Loans, as applicable (other than any
increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in
the rate of taxes or similar charges), because of (x) any
change since the Closing Date in any applicable law,
governmental rule, regulation, guideline, order, directive
or request (or in the interpretation or administration
thereof and including the introduction of any new law or
governmental rule, regulation, guideline, order, directive
or request) (such as, for example, but not limited to, a
change in official reserve requirements or the
implementation of the Basel II Framework by national
authorities) and/or (y) other circumstances occurring
after the Closing Date materially affecting the London
interbank market or European interbank market, as
applicable, or the position of such Lender in such market,
in the case of LIBOR Loans or EURIBOR Loans, or the
commercial paper market generally, in the case of Cost of
Funds Rate Dollar Loans or Cost of Funds Rate Euro Loans;
or
(iii) at any time, that the making or continuance of
any LIBOR Loan or EURIBOR Loan, as applicable, has become
unlawful by compliance by such Lender in good faith with
any law, governmental rule, regulation, guideline, order
or directive (or would conflict with any such governmental
rule, regulation, guideline, order or directive not having
the force of law but with which such Lender customarily
complies even though the failure to comply therewith would
not be unlawful);
then, and in any such event, such Lender (or the Administrative Agent in the
case of subsection 3.4.4(a)(i) above) shall, (x) on or after such date and (y)
within ten (10) Business Days of the date on which such event no longer
exists, give written notice to the Borrower and to the Administrative Agent of
such determination (which notice the Administrative Agent shall promptly
transmit to each of the other Lenders). Thereafter (A) in the case of
subsection 3.4.4(a)(i) above, LIBOR Loans or EURIBOR Loans, as applicable,
shall no longer be available until such time as the Administrative Agent
18
notifies the Borrower and the Lenders that the circumstances giving rise to
such notice by the Administrative Agent no longer exist, and any Borrowing
Request given by the Borrower with respect to LIBOR Loans or EURIBOR Loans, as
applicable, which have not yet been incurred shall be deemed rescinded by the
Borrower, (B) in the case of subsection 3.4.4(a)(ii) above, the Borrower shall
pay to such Lender, upon written demand therefor, such additional amounts (in
the form of an increased rate of, or a different method of calculating,
interest or otherwise as such Lender in its reasonable discretion shall
determine) as shall be required to compensate such Lender for such increased
costs or reductions in amounts receivable hereunder (a written notice as to
the additional amounts owed to such Lender, showing the basis for the
calculation thereof, submitted to the Borrower by such Lender shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
and (C) in the case of subsection 3.4.4(a)(iii) above, the Borrower shall take
one of the actions specified in subsection 3.4.4(b) as promptly as possible
and, in any event, within the time period required by law.
(b) At any time that any LIBOR Loan, EURIBOR Loan, Cost of
Funds Rate Dollar Loan or Cost of Funds Rate Euro Loan is affected by the
circumstances described in subsection 3.4.4(a)(ii) or (iii), the Borrower may
(and in the case of a LIBOR Loan or EURIBOR Loan affected pursuant to
subsection 3.4.4(a)(iii), upon receipt of the notice referred to in subsection
(a) above, the Borrower shall) either (i) if the affected LIBOR Loan, EURIBOR
Loan, Cost of Funds Rate Dollar Loan or Cost of Funds Rate Euro Loan is then
being made pursuant to a Borrowing, cancel said Borrowing by giving the
Administrative Agent written notice thereof on the same date that the Borrower
was notified by a Lender pursuant to subsection 3.4.4(a)(ii) or (iii), or (ii)
if the affected LIBOR Loan, EURIBOR Loan, Cost of Funds Rate Dollar Loan or
Cost of Funds Rate Euro Loan is then outstanding, upon at least two (2)
Business Days' notice, in the case of LIBOR Loans and Cost of Funds Rate
Dollar Loans, and four (4) Business Days' notice, in the case of EURIBOR Loans
and Cost of Funds Rate Euro Loans, to the Administrative Agent, require the
affected Lender to convert each such LIBOR Loan or Cost of Funds Rate Dollar
Loan into a Loan bearing interest at the Base Rate and each such EURIBOR Loan
or Cost of Funds Rate Euro Loan into a Loan bearing interest at the Euro Base
Rate; provided, that if more than one Lender is affected at any time, then all
affected Lenders must be treated the same pursuant to this subsection
3.4.4(b).
(c) If any Lender shall have determined that after the Closing
Date, the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy (including any regulation that implements the Basel
II Framework), or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority (including any central
bank or comparable agency charged with the interpretation or administration
thereof), or compliance by such Lender (or any corporation controlling such
Lender) with any request or directive regarding capital adequacy (whether or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender's (or such controlling corporation's) capital or assets as a
consequence of its Commitments or obligations hereunder to a level below that
which such Lender (or such controlling corporation) would have achieved but
for such adoption, effectiveness,
19
change or compliance (taking into consideration such Lender's (or such
controlling corporation's) policies with respect to capital adequacy), then
from time to time, within fifteen (15) days after demand by such Lender (with
a copy to the Administrative Agent), the Borrower shall pay to such Lender
such additional amount or amounts as shall compensate such Lender (or such
controlling corporation) for such reduction. Each Lender, upon determining in
good faith and using averaging and attribution methods which are reasonable
that any additional amounts shall be payable pursuant to this subsection
3.4.4(c), shall give prompt written notice thereof to the Borrower, which
notice shall set forth the basis in reasonable detail of the calculation of
such additional amounts, although, subject to subsection 3.4.6(b), the failure
to give any such notice shall not release or diminish any of the Borrower's
obligations to pay additional amounts pursuant to this subsection 3.4.4(c)
upon the subsequent receipt of such notice.
Section 3.4.5 Compensation. The Borrower shall compensate each
Lender, upon written request by the Administrative Agent on behalf of any such
Lender (which request shall set forth the basis for requesting such
compensation), for all costs, losses, expenses and liabilities (including,
without limitation, any cost, loss, expense or liability incurred by reason of
the liquidation or reemployment of deposits or other funds required by such
Lender to fund its LIBOR Loans, EURIBOR Loans, Cost of Funds Rate Dollar Loans
or Cost of Funds Rate Euro Loans and any termination costs associated with a
Lender's hedging arrangements with respect to EURIBOR Loans or Cost of Funds
Rate Euro Loans) which such Lender may reasonably sustain: (i) if for any
reason (other than a default by such Lender or the Administrative Agent) a
Borrowing of LIBOR Loans, EURIBOR Loans, Cost of Funds Rate Dollar Loans or
Cost of Funds Rate Euro Loans does not occur on a date specified therefor in a
Borrowing Request (whether or not withdrawn or cancelled by the Borrower or
deemed withdrawn pursuant to subsection 3.4.4(a)); (ii) if any prepayment or
repayment of any of its LIBOR Loans, EURIBOR Loans, Cost of Funds Rate Dollar
Loans or Cost of Funds Rate Euro Loans occurs on a date which is not the last
day of an Interest Period; (iii) if any prepayment of any of its LIBOR Loans,
EURIBOR Loans, Cost of Funds Rate Dollar Loans or Cost of Funds Rate Euro
Loans is not made on any date specified in a notice of prepayment given by the
Borrower; or (iv) as a consequence of (x) any other default by the Borrower to
repay its LIBOR Loans, EURIBOR Loans, Cost of Funds Rate Dollar Loans or Cost
of Funds Rate Euro Loans when required by the terms of this Agreement
(including a default resulting in acceleration of the due date of the Loans
hereunder) or (y) an election made pursuant to subsection 3.4.4(b). A Lender's
basis for requesting compensation pursuant to this Section 3.4.5 and a
Lender's calculation of the amount thereof, shall, absent demonstrable error,
be final and conclusive and binding on all parties hereto. Compensation
pursuant to this Section 3.4.5 shall be payable within ten (10) Business Days
of any request therefor made in accordance with this subsection.
Section 3.4.6 Change of Lending Office; Limitation on Indemnities.
(a) Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of subsection 3.4.4(a)(ii) or (iii), 3.4.4(c) or
3.6 with respect to such Lender, it shall, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender)
to designate another lending office for any
20
Loans affected by such event; provided, that such designation is made on such
terms that such Lender and its lending office suffer no economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section; and provided, further,
that such designation shall be made only if it would otherwise be permitted as
a participation under Section 9.4. Nothing in this Section 3.4.6 shall affect
or postpone any of the obligations of the Borrower or the right of any Lender
provided in Section 3.4.4 or 3.6.
(b) Notwithstanding anything in this Agreement to the contrary,
to the extent any notice required by Section 3.4.4 or 3.6 is given by any
Lender more than one hundred eighty (180) days after such Lender obtained, or
reasonably should have obtained, knowledge of the occurrence of the event
giving rise to the additional costs of the type described in such Sections,
such Lender shall not be entitled to compensation under Section 3.4.4 or 3.6
for any amounts incurred or accruing prior to the one hundred eightieth
(180th) day prior to the giving of such notice to the Borrower; provided that,
if the change in law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
Section 3.4.7 Replacement of Lenders. (x) Upon the occurrence of any
event giving rise to the operation of subsection 3.4.4(a)(ii) or (iii),
subsection 3.4.4(c) or Section 3.6 with respect to any Lender which results in
such Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders or becoming incapable of making LIBOR
Loans, EURIBOR Loans, Cost of Funds Rate Dollar Loans or Cost of Funds Rate
Euro Loans, (y) if a Lender becomes a Defaulting Lender, and/or (z) in the
case of a refusal by a Lender to consent to a proposed change, waiver,
discharge or termination with respect to this Agreement which has been
approved by the Required Lenders as provided in subsection 9.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists,
to replace such Lender (the "Replaced Lender") with one or more other Eligible
Transferee or Transferees reasonably acceptable to the Administrative Agent,
none of whom shall constitute a Defaulting Lender at the time of such
replacement (collectively, the "Replacement Lender"); provided, that (i) at
the time of any replacement pursuant to this Section 3.4.7, the Replacement
Lender shall enter into one or more Assignment Agreements pursuant to
subsection 9.4(b) (and with all fees payable pursuant to said subsection
9.4(b) to be paid by the Replacement Lender) pursuant to which the Replacement
Lender shall acquire all of the Commitments and outstanding Loans of the
Replaced Lender and, in connection therewith, shall pay to the Replaced Lender
in respect thereof an amount equal to the sum of (1) an amount equal to the
principal of, and all accrued interest on, all outstanding Loans of the
Replaced Lender, and (2) an amount equal to all accrued, but theretofore
unpaid, fees owing to the Replaced Lender pursuant to Section 2.4, and shall
pay to the applicable Swingline Lender an amount equal to the Replaced
Lender's Percentage of any Mandatory Borrowing to the extent that such amount
was not theretofore funded by such Replaced Lender, and (ii) all obligations
of the Borrower owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase
price has been, or is concurrently being, paid) shall be paid in full by the
Borrower to such Replaced Lender concurrently with such replacement. Upon the
21
execution of the respective Assignment Agreements, the payment of amounts
referred to in clauses (i) and (ii) above, the recordation of the assignment
on the Register by the Administrative Agent pursuant to Section 9.16 and, if
so requested by the Replacement Lender, delivery to the Replacement Lender of
the appropriate Lender Note or Lender Notes executed by the Borrower, the
Replacement Lender shall become a Lender hereunder and the Replaced Lender
shall cease to constitute a Lender hereunder, except with respect to
indemnification provisions applicable to the Replaced Lender under this
Agreement, which shall survive as to such Replaced Lender.
Section 3.5 Method and Place of Payment. All payments by the Borrower
of (x) principal and interest and any compensation under Section 3.4.5 payable
in connection therewith in respect of Loans hereunder shall be made in the
same currency as that of the Loans with respect to which such obligations
relate, and (y) except as may be otherwise provided elsewhere in this
Agreement, all fees and all other Obligations hereunder shall be made in
Dollars. Except as otherwise specifically provided herein (or agreed among the
Borrower, the Administrative Agent and any Lender with respect to payments to
such Lender), all payments under this Agreement shall be made to the
Administrative Agent for the ratable (based on their applicable Percentages)
account of the Lenders entitled thereto (which funds the Administrative Agent
shall promptly forward to such Lenders), not later than 8:00 a.m. (Los Angeles
time) on the date when due and shall be made in immediately available funds
and in Dollars or Euros, as applicable, at the Payment Office, it being
understood that written notice by the Borrower to the Administrative Agent to
make a payment from the funds in the Borrower's account at the Payment Office
shall constitute the making of such payment to the extent of such funds held
in such account. Any payments under this Agreement which are made later than
8:00 a.m. (Los Angeles time) shall be deemed to have been made on the
succeeding Business Day. Except as otherwise provided in Section 3.4.2(iv),
whenever any payment to be made hereunder shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the
succeeding Business Day and, with respect to payments of principal, interest
shall be payable during such extension at the applicable rate in effect
immediately prior to such extension.
Section 3.6 Net Payments.
(a) All payments made by the Borrower hereunder or under any
Lender Note or Loan shall be made without setoff, counterclaim or other
defense. Except as provided in subsection 3.6(b), all such payments shall be
made free and clear of, and without deduction or withholding for, any present
or future taxes, levies, imposts, duties, fees, assessments or other charges
of whatever nature now or hereafter imposed by any jurisdiction or by any
political subdivision or taxing authority thereof or therein with respect to
such payments (but excluding, except as provided in the second succeeding
sentence, any tax imposed on or measured by the net income or net profits of
and any franchise tax imposed on or in lieu of taxes on net income of a Lender
or the Administrative Agent pursuant to the laws of the jurisdiction in which
such Lender or the Administrative Agent, as the case may be (each, a "Lending
Party"), is organized or managed and controlled or the jurisdiction in which
the principal office or applicable lending office of such Lending Party is
located, managed or controlled or any subdivision
22
or taxing authority thereof or therein) and all interest, penalties or similar
liabilities with respect thereto (all such non-excluded taxes, levies,
imposts, duties, fees, assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed, the Borrower
agrees to pay the full amount of such Taxes, and such additional amounts, if
any, as may be necessary so that every payment of all amounts due under this
Agreement or under any Lender Note or Loan, after withholding or deduction for
or on account of any Taxes, shall not be less than the amount provided for
herein or in such Lender Note or Loan. If any amounts are payable in respect
of Taxes pursuant to the preceding sentence, the Borrower agrees to reimburse
each Lending Party, upon the written request of such Lender, for taxes imposed
on or measured by the net income or net profits of and any franchise tax
imposed on or in lieu of taxes on net income of such Lender pursuant to the
laws of the jurisdiction in which it is organized or managed and controlled or
the jurisdiction in which the principal office or applicable lending office of
such Lender is located or under the laws of any political subdivision or
taxing authority of any such jurisdiction in which it is organized or the
jurisdiction in which the principal office is organized or managed and
controlled or the jurisdiction in which the principal office or applicable
lending office of such Lender is located, managed or controlled, and for any
withholding of taxes as such Lending Party shall determine are payable by, or
withheld from, such Lender, in respect of such amounts so paid to or on behalf
of such Lender pursuant to the preceding sentence and in respect of any
amounts paid to or on behalf of such Lending Party pursuant to this sentence.
The Borrower shall furnish to the Administrative Agent within thirty (30) days
after the date the payment of any Taxes is due pursuant to applicable law
certified copies of tax receipts evidencing such payment by the Borrower. The
Borrower agrees to indemnify and hold harmless each Lending Party, and
reimburse such Lending Party upon its written request, for the amount of any
Taxes so levied or imposed and paid by such Lending Party. Such
indemnification shall be made within thirty (30) days after the date any
Lender makes written demand therefor.
(b) Each Lender that is not a United States person (as such
term is defined in Section 7701(a)(30) of the Code) agrees to deliver to the
Borrower and the Administrative Agent (A) on or prior to the Closing Date, or
(B) in the case of such a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to Sections 3.4.7 or 9.4 (unless the
respective Lender was already a Lender hereunder immediately prior to such
assignment or transfer), on the date of such assignment or transfer to such
Lender, (i) two accurate and complete original signed copies of IRS Form W-8
ECI or W-8 BEN (or successor forms) certifying to such Lender's entitlement to
a complete exemption from United States withholding tax with respect to
payments to be made under this Agreement and under any Lender Note or Loan, or
(ii) if the Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code and cannot deliver either IRS Form W-8 ECI or W-8 BEN pursuant to
clause (i) above, (x) a certificate substantially in the form of Exhibit E
(any such certificate, a "Tax Certificate") and (y) two accurate and complete
original signed copies of IRS Form W-8 BEN (or successor form) certifying to
such Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments of interest to be made under this
Agreement and under any Lender Note or Loan. In addition, each Lender agrees
that from time to time after the Closing Date, when a lapse in time or change
in circumstances renders the previous certification obsolete or inaccurate in
any material respect, it shall deliver to the
23
Borrower and the Administrative Agent two new accurate and complete original
signed copies of IRS Form W-8 ECI or W-8 BEN (or successor forms), or Form W-8
BEN (or successor form) and a Tax Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments under this Agreement
and any Lender Note or Loan, or it shall immediately notify the Borrower and
the Administrative Agent of its inability to deliver any such form or Tax
Certificate, in which case such Lender shall not be obliged to deliver any
such form or Tax Certificate. Notwithstanding anything to the contrary
contained in subsection 3.6(a), but subject to subsection 9.4(b) and the
immediately succeeding sentence, (x) the Borrower shall be entitled, to the
extent it is required to do so by law, to deduct or withhold income or similar
taxes imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United States person
(as defined above) for U.S. Federal income tax purposes to the extent that
such Lender has not provided to the Borrower U.S. IRS Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower
shall not be obligated pursuant to subsection 3.6(a) to gross-up payments to
be made to a Lender in respect of income or similar taxes imposed by the
United States if (I) such Lender is not a United States person (as defined
above) and has not provided to the Borrower the IRS Forms required to be
provided to the Borrower pursuant to this subsection 3.6(b) or (II) in the
case of a payment (other than interest if and only if such Lender complies
with clauses (ii)(x) and (y) above) to a Lender described in clause (ii)
above, to the extent that such IRS Forms do not establish a complete exemption
from withholding of such taxes. Notwithstanding anything to the contrary
contained in the preceding sentence or elsewhere in this Section 3.6 and
except as set forth in Section 9.4, the Borrower agrees to pay additional
amounts and to indemnify each Lender in the manner set forth in subsection
3.6(a) (without regard to the identity of the jurisdiction requiring the
deduction or withholding) in respect of any amounts deducted or withheld by it
as described in the immediately preceding sentence as a result of any changes
after the Closing Date in any applicable law, treaty, governmental rule,
regulation, guideline or order, or in the interpretation thereof, relating to
the deducting or withholding of such Taxes; provided, such Lender shall
provide to the Borrower and the Administrative Agent, upon the request of the
Borrower, any reasonably available applicable IRS tax form (reasonably similar
in its simplicity and degree of detail to IRS Form W-8 ECI or W-8 BEN or a Tax
Certificate) necessary or appropriate for the exemption or reduction in the
rate of such U.S. Federal withholding tax.
(c) If the Borrower pays any additional amount under this
Section 3.6 to a Lender and such Lender determines in its sole discretion that
it has actually received any refund in respect of such additional amount paid
by the Borrower, such Lender shall repay such refund to the Borrower, net of
all out-of-pocket expenses of such Lender and without interest (except to the
extent such refund includes interest); provided that, the Borrower, upon the
request of such Lender, agrees to return such refund (plus penalties, interest
or other charges) to such Lender in the event such Lender is required to repay
such refund. Whether or not a Lender claims any refund or credit or files any
amended tax return shall be in the sole discretion of such Lender. Nothing in
24
this Section 3.6 shall require a Lender to (i) disclose or detail the basis of
its calculation of the amount of any tax benefit or refund to the Borrower or
any other party or (ii) disclose such Lender's tax returns.
Section 3.7 Other CP Conduit Lenders and Liquidity Providers;
Designated CP Conduits and Designated CP Conduit Committed Lenders. In the
event that any Lender that is a CP Conduit shall become obligated to make any
payment of or make a claim for any payment of the types referred to in Section
3.4.4, 3.4.5 or 3.6 to any Liquidity Provider for such Other CP Conduit or any
Designated CP Conduit Committed Lender for such Designated CP Conduit, as the
case may be, or such Liquidity Provider or Designated CP Conduit Committed
Lender is entitled to receive payments of such types, the Borrower agrees that
it will pay to such Lender the amounts that the Lender is so obligated to pay
to such Liquidity Provider or such Designated CP Conduit Committed Lender or
that such Liquidity Provider or Designated CP Conduit Committed Lender is
entitled to receive, but in each case solely to the extent that the Borrower
would have been obligated to make such payments to such Liquidity Provider or
such Designated CP Conduit Committed Lender pursuant to this Agreement had
such Liquidity Provider or such Designated CP Conduit Committed Lender been a
Lender under this Agreement in lieu of such Other CP Conduit or such
Designated CP Conduit and complied with the provisions of this Agreement. In
the event that the Liquidity Agreement or other support agreement with respect
to any Other CP Conduit does not specify any particular payment of the types
referred to in Section 3.4.4, 3.4.5 or 3.6, or does so only by reference to
the payments such Other CP Conduit is entitled to received hereunder, the
Borrower agrees that it will pay to such Other CP Conduit (for payment to the
related Liquidity Provider or other support provider, as applicable) the
amounts that the Borrower would have been obligated to pay to such Liquidity
Provider or other support provider pursuant to Section 3.4.4, 3.4.5 or 3.6 had
such Liquidity Provider or other support provider been a Lender under this
Agreement in lieu of such Other CP Conduit and complied with the provisions of
this Agreement.
Section 3.8 SPC Loans. Notwithstanding anything to the contrary
contained herein, any Lender may grant to a special purpose funding vehicle
(an "SPC") sponsored by such Lender, identified as such in writing from time
to time by such Lender to the Administrative Agent and the Borrower, the
option to provide to the Borrower all or any part of any Loan that the Lender
would otherwise be obligated to make to the Borrower pursuant to the terms
hereof; provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC, and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Lender shall be
obligated to make such Loan pursuant to the terms hereof. The making of a Loan
by an SPC hereunder shall utilize the Commitment of such Lender to the same
extent, and as if, such Loan were made by the Lender. Any SPC that makes a
Loan shall (i) have in regard to such Loan all of the rights (exercisable,
however, only through the Lender as its agent) that the Lender would have had
if it had made such Loan directly (including but not limited to the rights
under Sections 3.4.4, 3.4.5, 3.6 and 9.1) and (ii) be deemed to have made the
representations made herein by each Lender and comply with this Agreement in
regard to such Loan as if the SPC were a party hereto; provided that all
monetary obligations of a lender under this Agreement shall remain solely with
the Lender.
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Notwithstanding any Loans that may be provided by an SPC hereunder, (i) the
Administrative Agent, the Swingline Lenders and the Borrower shall be entitled
to continue to deal solely and directly with the Lender in connection with
this Agreement, (ii) the Lender shall remain fully liable to the
Administrative Agent, to the Swingline Lenders and to the Borrower for the
timely performance of all obligations of the Lender under this Agreement and
(iii) none of the Administrative Agent or the Borrower shall be obligated at
any time to pay to any SPC or to the Lender any greater amounts pursuant to
the terms hereof than it would have been required to pay had the Lender made
such Loans directly (except to the extent that the interest payable on a Cost
of Funds Rate Dollar Loan or Cost of Funds Rate Euro Loan may exceed the
interest payable on a LIBOR Loan or EURIBOR Loan, as applicable, and except as
specified in the preceding sentence). Each SPC that provides a Loan hereunder
shall simultaneously provide the Administrative Agent and the Borrower with a
written undertaking to comply with the confidentiality provisions specified in
Section 9.15. The Borrower, all the Lenders and the Administrative Agent each
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one (1) year and one (1) day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under the laws of the
United States or any State thereof. In addition, notwithstanding anything to
the contrary contained in this Section 3.8 or Section 9.4, any SPC may (i)
with notice to, but without the prior written consent of, the Borrower or the
Administrative Agent, without the payment of the processing fee therefor,
assign all or a portion of its interests in any Loans to the Lender or to any
financial institutions consented to by the Borrower and the Administrative
Agent providing liquidity and/or credit facilities to or for the account of
such SPC to support the funding or maintenance of Loans, and (ii) disclose on
a confidential basis any non-public information relating to its Loans to any
rating agency. Nothing in this Section that would affect the rights or
obligations of an SPC may be amended without the written consent of any SPC
that has Loans outstanding at the time of the amendment.
ARTICLE IV
CONDITIONS TO CREDIT EXTENSIONS
Section 4.1 Initial Loans. Notwithstanding any other provision of
this Agreement, the obligations of the Lenders to fund the initial Borrowing
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 4.1.
Section 4.1.1 Evidence of Authority. The Administrative Agent shall
have received:
(a) a certificate of the Borrower, dated the Closing Date, as
to:
(i) the authority of the Borrower to execute, deliver
and perform this Agreement, the Lender Notes, the
Preferred Interests, the Pledge
26
and Intercreditor Agreement, each other Credit Document to
be executed by it and each other instrument, agreement or
other document to be executed in connection with the
transactions contemplated in connection herewith and
therewith, and
(ii) the authority and signatures of those Persons
authorized to execute and deliver this Agreement, the
Lender Notes and the other Credit Documents and to act
with respect to this Agreement and each other Credit
Document to be executed by the Borrower, upon which
certificate each Lender, including each assignee (whether
or not it shall have then become a party hereto), may
conclusively rely until it shall have received a further
certificate of the Borrower canceling or amending such
prior certificates;
(b) a copy of the Organic Documents and the Preferred Interests
of the Borrower, each certified in a manner satisfactory to the Administrative
Agent, and the provisions of which shall be satisfactory to the Administrative
Agent, and a certificate of legal existence for the Borrower issued by the
Secretary of State of Delaware; and
(c) such other instruments, agreements or other documents
(certified if requested) as the Administrative Agent or the Lenders may
reasonably request.
Section 4.1.2 Agreement; Lender Notes. The Administrative Agent shall
have received executed counterparts of this Agreement from all of the parties
hereto and each Lender shall have received its respective Lender Note, each
duly executed and delivered.
Section 4.1.3 Collateral Documents. The Administrative Agent shall
have received:
(a) the Pledge and Intercreditor Agreement substantially in the
form of Exhibit G, dated as of the Closing Date, duly executed and delivered
by the Borrower and the other parties thereto, together with:
(i) executed copies of Uniform Commercial Code
Financing Statements (Form UCC-1), dated a date reasonably
near to the Closing Date as may be acceptable to the
Administrative Agent, naming the Borrower as the debtor
and the Secured Parties Representative as the secured
party or other similar instruments or documents in a form
suitable for filing in all jurisdictions identified in
Schedule 3; and
(ii) copies of search reports certified by a party
reasonably acceptable to the Administrative Agent, dated a
date reasonably near to the Closing Date, listing all
effective financing statements that name the Borrower as
the debtor and which are on file in the jurisdictions
identified in Schedule 3, showing that no financing
statements (other than those filed pursuant to this
Agreement) cover any Collateral, except with respect to
Liens permitted by Section 6.2.3);
27
(b) evidence that all other actions that, in the reasonable
opinion of the Administrative Agent, are advisable to perfect and protect the
Liens in the Collateral created or purported to be created by the Collateral
Documents have been taken; and
(c) a copy of the Custodial Agreement substantially in the form
of Exhibit I, dated as of the Closing Date, as executed and delivered by the
Borrower and the other parties thereto.
Section 4.1.4 Initial Borrowing Valuation Statement. The
Administrative Agent and each Lender shall have received a Valuation Statement
certified by the Borrower.
Section 4.1.5 Equity Capital Commitments in Relation to Facility
Commitment and Preferred Interests. The Equity Capital Commitments of the
Borrower shall equal or exceed the sum of the original Facility Commitment and
the aggregate stated liquidation preference of the Preferred Interests.
Section 4.1.6 Investment Management Agreement, Co-Management
Agreement and Borrower Organization Agreement. The Administrative Agent shall
have received a copy, certified by the Borrower, of the Investment Management
Agreement, the Co-Management Agreement and the Borrower Organization
Agreement, each duly executed and delivered by the Borrower and/or the
Investment Manager or the Co-Manager. The Administrative Agent shall forward
each such copy of the Investment Management Agreement, the Co-Management
Agreement and the Borrower Organization Agreement to the Rating Agencies.
Section 4.1.7 No Litigation, etc. No litigation, arbitration,
governmental investigation, proceeding or inquiry shall, on the date of the
initial Loans, be pending or, to the knowledge of the Borrower, threatened
with respect to any of the transactions contemplated hereby which would, in
the reasonable opinion of the Required Lenders, be adverse to, or be
detrimental to the interests of, any of the parties hereto.
Section 4.1.8 Certificate as to Conditions, Warranties, No Default,
etc. The Administrative Agent shall have received a certificate of the
Borrower, dated the date of the initial Loans, in form and substance
satisfactory to the Administrative Agent, to the effect that, as of such date:
(a) all conditions set forth in this Article IV have been
fulfilled;
(b) all representations and warranties of the Borrower set
forth in Article V are true and correct in all material respects; and
(c) no Default has occurred and is continuing.
Section 4.1.9 Insurance Report, etc. The Administrative Agent shall
have received evidence that all insurance policies, coverages and riders
required pursuant to Section 6.1.6 are in effect on the Closing Date.
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Section 4.1.10 Opinions of Counsel. The Administrative Agent shall
have received and delivered to each Lender the following opinion letters, each
dated the Closing Date and in form satisfactory to the Administrative Agent,
and addressed to the Administrative Agent, all Lenders, ▇▇▇▇▇'▇ and S&P:
(a) Opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel to the Borrower;
(b) Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
special counsel to the Investment Manager; and
(c) Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special
counsel to the Custodian.
Section 4.1.11 Investment Manager Letter. The Administrative Agent
shall have received from the Investment Manager a letter addressed to the
Administrative Agent and the Lenders, substantially in the form of Exhibit F
consenting to the provisions of Section 6.2.14.
Section 4.1.12 Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender and
the Lead Manager and the Co-Lead Manager, as the case may be, all fees, costs
and expenses then due and payable under this Agreement (including Section 9.1
and the Fee Letter).
Section 4.1.13 Federal Reserve Form U-1 or G-3. The Administrative
Agent shall have received on behalf of each Lender that is subject to such
regulations a Federal Reserve Form U-1 or Form G-3, as the case may be, duly
completed and executed by the Borrower and such Lender.
Section 4.1.14 Rating of Loans and Preferred Interests. The
Administrative Agent shall have received, and delivered a copy thereof to each
Lender so requesting, (i) a letter from ▇▇▇▇▇'▇ addressed to the Borrower and
the Administrative Agent, confirming that the Loans hereunder have received
ratings of "Aaa" by ▇▇▇▇▇'▇ and that the Preferred Interests have received
ratings of at least "Aa3" by ▇▇▇▇▇'▇ and (ii) a letter from S&P addressed to
the Borrower and the Administrative Agent, confirming that the Loans hereunder
have received ratings of "AAA" by S&P and that the Preferred Interests have
received ratings of at least "AA-" by S&P.
Section 4.1.15 Satisfactory Legal Form. All limited partnership and
other actions or proceedings taken or required to be taken in connection with
the transactions contemplated hereby and all agreements, instruments and
documents executed or submitted pursuant to this Section 4.1 by or on behalf
of the Borrower shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel; all certificates and opinions delivered
pursuant to this Article IV shall be addressed to the Administrative Agent and
each Lender, or the Administrative Agent and each Lender shall be expressly
entitled to rely thereon; the Administrative Agent and its
29
counsel shall have received all information, and such number of counterpart
originals or such certified or other copies of such information, as the
Administrative Agent or its counsel may reasonably request; and all legal
matters incident to the transactions contemplated by this Agreement shall be
satisfactory to counsel to the Administrative Agent.
Section 4.1.16 Key Individuals. The Administrative Agent shall have
received a list of the Key Individuals as of the Closing Date.
Section 4.1.17 Independent Public Accountant. The Administrative
Agent shall have received a copy of an engagement letter between the Borrower
and the Independent Public Accountant pursuant to which the Independent Public
Accountant agrees for the period specified therein to prepare the reports
required to be prepared by it pursuant to subsections 6.1.1(f) and 6.1.2(d).
Section 4.1.18 CP Conduit Ratings; Liquidity Backstop. Each Lender
that is a CP Conduit:
(a) to the extent required of such CP Conduit, shall have
received copies of letters from each of Fitch (if applicable), ▇▇▇▇▇'▇ and S&P
confirming the ratings assigned by each such rating agency to such CP
Conduit's commercial paper notes;
(b) solely in the case of each Designated CP Conduit, shall
have represented and warranted in writing to the Borrower, the Swingline
Lenders and the Administrative Agent that it has entered into a valid and
binding Loan Purchase Agreement with one or more Designated CP Conduit
Committed Lenders and any other parties thereto, which Loan Purchase Agreement
shall provide for commitments by the Designated CP Conduit Committed Lenders
parties thereto to purchase, or acquire participations in, the Loans of the
Designated CP Conduit party thereto; and
(c) to the extent required, shall have received an executed
program administration and fee letter or similar document.
Section 4.1.19 [Reserved]
Section 4.1.20 [Reserved]
Section 4.2 All Loans. Notwithstanding any other provision of this
Agreement, without duplication of any conditions precedent required to be
satisfied pursuant to Section 4.1, the obligations of the Lenders to make any
Loan shall be subject to the satisfaction of each of the conditions precedent
set forth in this Section 4.2.
Section 4.2.1 Compliance with Warranties, Total Maximum Commitment,
Borrowing Base, No Default, etc. Both immediately before and after giving
effect to each Loan:
(a) the representations and warranties set forth in Article V
shall be true and correct in all material respects with the same effect as if
then made
30
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date);
(b) all representations and warranties set forth in each of the
Collateral Documents shall be true and correct in all material respects with
the same effect as if then made (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date);
(c) no Default shall have occurred and be continuing;
(d) (i) the aggregate amount of all Loans outstanding and Loans
requested to be made shall not exceed the lesser of (A) the Total Maximum
Commitment at such time and (B) the Borrowing Base at such time and (ii) the
aggregate Dollar Equivalent amount of all Loans outstanding and Loans
requested to be made that are denominated in Euros shall not exceed 22.5% of
the Total Maximum Commitment (in each case determined after giving effect to
the receipt by the Borrower of the proceeds of the requested Loan(s) and the
use by the Borrower on such date of such proceeds); and
(e) the Uniform Commercial Code Financing Statements (or other
similar instruments or documents) referred to in subsection 4.1.3(a)(i) shall
have been filed in all jurisdictions identified in Schedule 3.
For purposes of this Section 4.2.1, the Dollar Equivalent with
respect to Loans denominated in Euros shall be determined at the time of any
Borrowing.
Section 4.2.2 Borrowing Request, etc. The Administrative Agent shall
have received a Borrowing Request. Each of the delivery of any such Borrowing
Request and the acceptance by the Borrower of the proceeds or other benefits
of any Loan shall constitute a representation and warranty by the Borrower
that on the date of such request for a Loan, and immediately before and after
giving effect to the application of any proceeds of any Loans requested
thereby, all statements set forth in Section 4.2.1 are true and correct in all
material respects.
Section 4.2.3 Regulations T, U and X. Immediately after such
Borrowing, the Borrower shall be in compliance with Regulations T, U and X of
the FRS Board.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce each Lender, the Administrative Agent, the Lead
Manager and the Co-Lead Manager to enter into this Agreement, to engage in the
transactions contemplated herein and in the other Credit Documents and, in the
case of the Lenders, to make the Loans hereunder, the Borrower represents and
warrants to each Lender, the Administrative Agent, the Lead Manager and the
Co-Lead Manager as set forth in this Article V.
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Section 5.1 Organization, etc.
Section 5.1.1 Organization, Power, Authority, etc. The Borrower is a
limited partnership duly formed, validly existing and in good standing under
the laws of the State of Delaware, is duly qualified to do business and is in
good standing in each jurisdiction where the nature of its business requires
such qualification to the extent required pursuant to Sections 6.1.3 and 6.1.4
(except for any failures to be so qualified, which, in the aggregate would not
have a Material Adverse Effect), and has full power and authority and holds
all requisite governmental licenses, permits and other approvals to enter into
and perform its Obligations under this Agreement, the Lender Notes and each
other Credit Document and each Transaction Document to which it is a party and
to own and hold under lease its property and to conduct its business
substantially as currently conducted by it (except for any failure to hold any
such licenses, permits and/or other approvals, which, in the aggregate would
not have a Material Adverse Effect).
Section 5.1.2 Exemption from Registration. Assuming compliance by the
Lenders with the restrictions and the accuracy of the representations and
warranties set forth in Section 9.19, all transactions contemplated by this
Agreement are exempt from registration under the Securities Act or the "Blue
Sky" laws of any state.
Section 5.2 Due Authorization, Non-Contravention, etc. The execution
and delivery by the Borrower of this Agreement, the Lender Notes, each other
Credit Document and each Transaction Document to which it is a party, the
performance by the Borrower of its obligations hereunder and thereunder, all
Loans obtained hereunder by the Borrower, the granting of the Liens provided
for in the Collateral Documents and the consummation of all other actions
incidental to any thereof have been duly authorized by all necessary action,
do not and shall not conflict with, result in any violation of, or constitute
any default under, any provision of any Organic Document or Contractual
Obligation of the Borrower (assuming the truth and accuracy of the
representations and warranties of the Lenders set forth herein and compliance
by them with their covenants hereunder) or any law or governmental regulation
or court decree or order (including, without limiting the foregoing, Section
18 of the Investment Company Act, or any successor provision thereto, and any
applicable "asset coverage" maintenance requirements set forth therein) and
shall not result in or require the creation or imposition of any Lien on any
of the Borrower's properties pursuant to the provisions of any Contractual
Obligation (other than the Liens provided for in the Collateral Documents and
the Liens permitted by Section 6.2.3).
Section 5.3 Government Approval, Regulation, etc. On or prior to the
time of the first Borrowing hereunder, the Borrower shall have been registered
as an investment company under the Investment Company Act and as a Closed-end
Company for purposes of the Investment Company Act. No other Approval is
required for the due execution, delivery or performance by the Borrower of
this Agreement, the Lender Notes, or any other Credit Document or any
Transaction Document or the consummation of any transactions contemplated
hereby or thereby, except for authorizations, approvals, actions, notices or
filings which have been duly obtained or made and are in full force and
effect.
32
Section 5.4 Validity, etc. This Agreement has been duly executed and
delivered by the Borrower and constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms; and the
Lender Notes and each of the other Credit Documents and each Transaction
Document to which the Borrower is a party shall, on the due execution and
delivery thereof, constitute the legal, valid and binding obligation of the
Borrower, enforceable in accordance with their respective terms, in each case,
except as enforceability may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally or by general equitable
principles relating to enforceability.
Section 5.5 Financial Information. With respect to any representation
and warranty which is deemed to be made after the date hereof by the Borrower,
the balance sheet and statements of operations, of Company Equity, earnings
and of cash flow, which as of such date shall most recently have been
furnished by or on behalf of the Borrower to each Lender and the
Administrative Agent for the purposes of or in connection with this Agreement
or any transaction contemplated hereby, shall have been prepared in accordance
with GAAP consistently applied (except as disclosed therein), and shall
present fairly the consolidated financial condition of the Borrower as at the
dates thereof for the periods then ended, subject, in the case of quarterly
financial statements, to normal year-end audit adjustments, purchase
accounting adjustments and such other exceptions specifically noted in the
notes thereto.
Section 5.6 Litigation, etc. There is no pending or, to the best
knowledge of the Borrower, threatened, litigation, action, proceeding, order,
investigation or claim, at law or in equity or before or by any Governmental
Authority affecting the Borrower or the Investment Manager or any of their
respective properties, assets or revenues which could reasonably be expected
to result in or constitute a Material Adverse Effect.
Section 5.7 Regulations T, U and X. The proceeds of any Loans made
hereunder have not been, and will not be, used for a purpose which violates or
would cause any Lender to violate, or would be inconsistent with, Regulation
T, U or X of the FRS Board.
Section 5.8 Pension and Welfare Plans.
(a) Neither the Borrower nor any ERISA Affiliate maintains,
contributes to (or is obligated to contribute to) or has any liability to any
Pension Plan or Welfare Plan (other than with respect to a fully-insured
Welfare Plan), unless such maintenance, contribution or liability, in the
aggregate, would not have a Material Adverse Effect. Neither the Borrower nor
any ERISA Affiliate has at any time maintained or contributed to (or has been
obligated to contribute to) any Pension Plan or Welfare Plan (other than a
fully-insured Welfare Plan), unless such maintenance or contribution would not
have a Material Adverse Effect.
(b) None of the assets of the Borrower constitute Plan Assets.
33
(c) The formation of the Borrower, and the Fund Investments
from time to time effected or contemplated by the Borrower, do not and will
not constitute a nonexempt prohibited transaction (as such term is defined in
Section 4975 of the Code and/or Section 406 of ERISA) that could subject the
Administrative Agent and/or any Lender to any tax or penalty on prohibited
transactions imposed under Section 4975 of the Code and/or Section 502(i) of
ERISA.
(d) There are no material collective bargaining agreements
covering any employees of any of the Borrower's ERISA Affiliates (other than
those entities which have become an ERISA Affiliate of the Borrower as a
result of the Borrower's investment in such entities) or with respect to which
the Borrower or any of its ERISA Affiliates (other than those entities which
have become an ERISA Affiliate of the Borrower as a result of the Borrower's
investment in such entities) has or could have any material liability or
responsibility.
(e) The Borrower has no employees.
Section 5.9 Subsidiaries. Except for any Hedging SPEs or Investment
Holding Subsidiaries, the Borrower has no Subsidiaries.
Section 5.10 Taxes. The Borrower has filed all tax returns required
by law to have been filed by it (except for such tax returns with respect to
which the failure to file timely would not have a Material Adverse Effect); to
the best of the Borrower's knowledge, all such tax returns are true and
correct in all material respects; and the Borrower has paid or withheld (as
applicable) all taxes and governmental charges thereby shown to be owing or
required to be withheld, except any such taxes or charges which are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books.
Section 5.11 Absence of Default. No Default or Event of Default
exists or would result from the incurrence of any Obligations by the Borrower
or from the grant or perfection of the Liens on the Collateral pursuant to the
Pledge and Intercreditor Agreement. As of the Closing Date, the Borrower is
not in default under or with respect to (a) any Contractual Obligation in any
respect that, individually or together with all such defaults, could
reasonably be expected to have a Material Adverse Effect, or that would, if
such default had occurred after the Closing Date, create an Event of Default
under Section 7.1 or (b) any governmental regulation or court decree or order
or under any law, which default would be reasonably likely to have a Material
Adverse Effect.
Section 5.12 Capitalization. On or prior to the time of the first
Borrowing hereunder, the Equity Capital Commitments of the Borrower shall
equal or exceed the sum of the original Facility Commitment and the aggregate
stated liquidation preference of the Preferred Interests.
Section 5.13 Ownership of Properties. The Borrower owns all of its
properties and assets, of any nature whatsoever, free and clear of all Liens,
except (i) as
34
permitted pursuant to Section 6.2.3 and (ii) Liens on properties and assets
not included in the Collateral.
Section 5.14 Real Property. The Borrower owns no real property,
except for such real property as the Borrower may have acquired or received as
a distribution in connection with a workout, bankruptcy, foreclosure,
restructuring or other similar process or proceeding (whether or not under the
supervision of a court or other regulatory authority) in respect of a Fund
Investment, which acquisition shall be promptly disclosed to the
Administrative Agent at the time of such acquisition.
Section 5.15 [Reserved]
Section 5.16 Environmental Warranties. The Borrower neither owns nor
leases, nor has it ever owned or leased, any facilities or property the
ownership of or leasehold interest in which, with the passage of time, or the
giving of notice or both, would give rise to liability (including any
contingent liability) under any Environmental Law except such liability, if
any, as would not reasonably be likely to result in or constitute a Material
Adverse Effect.
Section 5.17 Borrower's Business. The Borrower does not engage in any
business or activity other than (a) issuing the Lender Notes and incurring
Loans pursuant to this Agreement, issuing and selling the Preferred Interests
pursuant to the Borrower Organization Agreement (including any permitted
refinancings thereof), issuing Common Interests, issuing Subordinated Equity
Securities, acquiring, owning, holding, selling, exchanging, redeeming,
pledging, structuring, negotiating, originating, syndicating, contracting for
the management of (including entering into the Investment Management Agreement
and the Co-Management Agreement) and otherwise dealing with Fund Investments
and other instruments and property in connection therewith and in accordance
with the terms hereof (including acquiring majority or controlling interests
in operating companies as a result of such activities) and entering into
Hedging and Short Sale Transactions in accordance with the provisions of this
Agreement, (b) issuing or incurring obligations permitted by Section 6.2.2,
(c) owning the Capital Stock of any Hedging SPEs or Investment Holding
Subsidiaries, (d) engaging in other activities permitted by the Borrower
Organization Agreement, including establishing investment committees and
investment policies, earning origination, management, funding, break-up and
similar fees with respect to Fund Investments, obtaining governance power with
respect to Fund Investments and co-investing with related parties and other
Persons and (e) engaging in any other activities which are necessary, suitable
or appropriate to accomplish the foregoing or are incidental thereto,
connected therewith or ancillary thereto.
Section 5.18 Collateral Documents. The provisions of the Collateral
Documents executed or to be executed by the Borrower shall, upon the due
execution and delivery thereof in accordance herewith, together with the
making of all filings and recordings in locations referred to in Schedule 3
and the taking of possession of the Collateral in accordance with the
provisions of the Collateral Documents, be effective to create a valid and
perfected first priority Lien in all right, title and interest of the
35
Borrower in the Collateral in accordance with the terms of the Pledge and
Intercreditor Agreement.
Section 5.19 Investment Management Agreement. The Investment
Management Agreement is in full force and effect and no default (other than
that which may arise as a result of the Borrower's compliance with Section
6.2.14) exists thereunder. The Investment Manager is authorized to act on
behalf of the Borrower in connection with the presentation of Borrowing
Requests and payment instructions, the making of the prepayment specifications
referred to in Section 3.3.2 and as otherwise authorized under the terms of
the Investment Management Agreement; provided, that the Borrower shall provide
a certificate of the Persons so authorized as provided in subsection
4.1.1(a)(ii).
Section 5.20 Use of Proceeds. The proceeds of the Borrowings
hereunder shall be used by the Borrower for the purpose of making investments
in Fund Investments, entering into Secured Hedging Transactions, Defensive
Hedge Transactions and other Hedging and Short Sale Transactions permitted
hereunder, paying dividends on, redeeming, repurchasing and paying any
liquidation preference with respect to, Preferred Interests and Common
Interests to the extent such payments are permitted hereunder, capitalizing
Hedging SPEs and Investment Holding Subsidiaries, paying principal, interest,
commitment fees and other amounts on Debt and paying, or reimbursing others of
the payment of, fees and expenses incurred in connection with the formation
and operation of the Borrower, the Hedging SPEs and the Investment Holding
Subsidiaries, the arranging of the Loans and the execution, delivery and
performance of this Agreement and the other Transaction Documents including,
but not limited to, the payment of fees payable to, and reimbursement of
expenses of, the Investment Manager pursuant to the Investment Management
Agreement and the Co-Manager pursuant to the Co-Management Agreement and the
payment of premiums to any insurer, and the payment of other ongoing
professional and administrative fees and expenses associated with the business
and operation of the Borrower, the Hedging SPEs and Investment Holding
Subsidiaries incurred in the ordinary course of business, or as otherwise
determined to be incurred by the Borrower; provided that the Borrower shall
apply substantially all of the proceeds of each Loan denominated in Euros to
the purchase or funding of Fund Investments denominated in Euros (or to the
payment of principal, interest or other amounts payable hereunder in Euros or
the repayment of Swingline Loans denominated in Euros).
Section 5.21 Compliance with Margin Requirements. The Borrower is not
in violation of any provision of Section 7 of the Exchange Act, and no part of
the proceeds of any Loans will be used, directly or indirectly, either (i) for
the purpose, whether immediate, incidental or ultimate, of "buying" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U as now and from time to time hereafter in
effect or (ii) for any purpose if, in the case of either clause (i) or (ii),
as a result the provisions of the regulations of the FRS Board are violated.
If requested by any Lender or the Administrative Agent, the Borrower will
furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of Federal Reserve Form
G-3 or Federal Reserve Form U-1, as applicable, referred to in Regulation U.\
36
Section 5.22 Transaction Documents. Each of the Transaction Documents
to which it is a party has been duly authorized, executed and delivered by
each of the Borrower and the Investment Manager, as the case may be, and is
its valid and binding agreement. The Borrower has delivered to the
Administrative Agent a true, correct and complete copy of each Transaction
Document. Each Transaction Document is in full force and effect in the form so
delivered to the Administrative Agent except as amended pursuant to Section
6.2.9.
Section 5.23 Restatement and Reaffirmation. The Borrower hereby
restates and reaffirms the representations and warranties set forth in the
Collateral Documents. Such representations and warranties shall be
incorporated by reference herein with the same effect as if fully set forth
herein.
ARTICLE VI
COVENANTS
Section 6.1 Affirmative Covenants. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have been
terminated and all principal and interest on the Loans and all other
Obligations then due and payable have been paid and performed in full, the
Borrower shall perform the Obligations set forth in this Section 6.1.
Section 6.1.1 Collateral Valuation Covenant.
(a) On each Business Day (as of the close of business on such
day), the Borrower shall in good faith (i) calculate the Advance Amount using
the ▇▇▇▇▇'▇ Valuation Procedures using the most recent Market Value for each
Fund Investment as determined in accordance with the ▇▇▇▇▇'▇ Collateral
Valuation Schedule and (ii) calculate the Advance Amount using the S&P
Valuation Procedures using the most recent Market Value for each Fund
Investment in accordance with the terms of the S&P Collateral Valuation
Schedule; provided that for the purposes of this Agreement, the Advance Amount
shall at all times be the lesser of the Advance Amounts calculated in
accordance with clauses (i) and (ii) above. The Market Value of each Fund
Investment shall be calculated by the Borrower (i) for purposes of the ▇▇▇▇▇'▇
Valuation Procedures, as set forth in the ▇▇▇▇▇'▇ Collateral Valuation
Schedule and (ii) for purposes of the S&P Valuation Procedures, as set forth
in the S&P Collateral Valuation Schedule.
(b) Within ten (10) Business Days of each Reporting Date, the
Borrower shall furnish to ▇▇▇▇▇'▇, S&P, the Administrative Agent and each
Lender a written statement (in excel format) substantially in the form of
Exhibit J hereto (a "Valuation Statement") certified by the Borrower as of
such Reporting Date, which shall include, in addition to other matters
specified in such Exhibit J:
(i) a schedule of all Fund Investments by issue and
by Asset Category included in the determination of the
Advance Amount, setting forth:
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(1) the current Market Value of each such Fund
Investment and the original cost of each such Fund
Investment;
(2) the written quotations from Approved
Dealers, closing price or closing bid price on an
Approved Exchange, and any Approved Third-Party
Appraisal or quotation from an Approved Investment
Banking Firm or other means used for calculating the
Market Value of each such Fund Investment;
(3) to the extent applicable, information as to
rating, maturity, the Yield-to-Worst, and whether
each such Fund Investment was Performing; and
(4) the percentages applied to each such Fund
Investment to derive the portion of the Advance
Amount attributable to each such Fund Investment;
(ii) a schedule of all Unquoted Investments owned by
the Borrower, setting forth the Market Value of each such
Unquoted Investment and the date of the determination of
such Market Value, its Asset Category, its cost and, when
applicable, the value provided by an Approved Third-Party
Appraisal or Approved Investment Banking Firm and the date
of determination of such value;
(iii) the aggregate Market Value of all Eligible
Investments, setting forth a list of Excluded Investments
and calculations of applicable Portfolio Limitations;
(iv) the calculation of the Advance Amount under the
▇▇▇▇▇'▇ Collateral Valuation Schedule and the S&P
Collateral Valuation Schedule and the Borrowing Base as of
such date;
(v) a schedule of the Secured Hedging Net Exposure of
each Secured Hedging Transaction then outstanding;
(vi) a schedule of the aggregate amount of Debt of
the Borrower incurred as permitted under Section 6.2.2 and
outstanding;
(vii) a schedule of all of the assets sold with their
respective purchase and sale prices and the date of such
purchase and sale of such assets sold; and
(viii) a statement certifying that, except as
otherwise indicated on the Valuation Statement, the
Borrower had determined the current Market Value of all
Fund Investments using quotations provided since the date
of the immediately prior Valuation Statement.
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It is expressly understood by the Administrative Agent and the
Lenders that the information provided hereunder identifying the Fund
Investments, and Market Values and/or Market Value Prices therefor is intended
solely for the purpose of credit analysis by the Lenders. The Administrative
Agent and the Lenders agree that they shall not use any such information for
trading purposes or furnish such information to trading personnel or to any
other Person for any purpose which is inconsistent with the foregoing
restrictions or this Agreement.
(c) Notwithstanding the provisions of subsection 6.1.1(b), in
the event that the Borrower in good faith determines that a market disruption
makes it impracticable to deliver a Valuation Statement to be provided
hereunder on its due date, the Borrower may deliver such Valuation Statement
within four (4) Business Days after its due date set forth herein and no
Default in respect of this Section 6.1.1 shall occur or be deemed to occur for
such four (4) Business Days; provided that on such due date the Borrower shall
have furnished to ▇▇▇▇▇'▇, S&P, the Administrative Agent and each Lender a
written statement, certified by the Borrower as of each such date, that the
Borrower reasonably believes that it is in compliance with the
Over-Collateralization Test.
(d) Not later than the Business Day following any Excess Date,
the Borrower will deliver to the Administrative Agent, each Lender, ▇▇▇▇▇'▇
and S&P a supplement to the most recent Valuation Statement (in excel format)
setting forth each of the items included in the Valuation Statement as of such
Excess Date.
(e) The Borrower's determination of the Advance Amount, the
Market Value Price and the Market Value of Fund Investments pursuant to
subsection 6.1.1(a) and (b), respectively, in good faith shall be deemed
correct for purposes of this Agreement, unless, within thirty (30) days after
receiving the applicable Valuation Statement, the Administrative Agent shall
object in writing that such determination was made in a manner inconsistent
with the provisions of this Agreement and disadvantageous to the Lenders or as
having been calculated in error. In the event of any such dispute as to the
calculation of the Advance Amount or Market Value, as the case may be, the
good faith, reasonable and mutually agreeable determination of the Required
Lenders shall be conclusive.
(f) (i) Concurrently with the delivery of the consolidated
financial statements of the Borrower as of each fiscal year-end of the
Borrower and for the fiscal year then ended (beginning with the fiscal year
ended December 31, 2006), pursuant to Section 6.1.2 and (ii) within twenty
(20) Business Days of a date mutually selected by the Required Lenders that is
reasonably satisfactory to the Independent Public Accountant (or within such
other period of such date as may be reasonably required by the Independent
Public Accountant for the preparation thereof), the Borrower shall cause the
Independent Public Accountant to provide a report as of such fiscal year-end
or such selected date, as the case may be, containing information and
calculations with respect to the Borrowing Base and the aggregate outstanding
liquidation preference of the Preferred Interests as of such fiscal year-end
or such selected date, as the case may be, in a form acceptable to the
Administrative Agent and the Required Lenders (an "Agreed-Upon
39
Procedures Report") to the Administrative Agent, the Lenders, ▇▇▇▇▇'▇ and S&P.
The Borrower shall be responsible for the fees and expenses of the Independent
Public Accountant for each Agreed-Upon Procedures Report as of each fiscal
year-end of the Borrower and as of any one date selected by the Required
Lenders during any fiscal year of the Borrower, and the Lenders shall be
responsible for such fees and expenses for each Agreed-Upon Procedures Report
as of any additional date selected by the Required Lenders during any such
fiscal year.
(g) The Borrower shall furnish in writing to the Administrative
Agent and each Lender from time to time such additional information regarding
the determination of the Eligible Investments, Market Value, the Advance
Amount or regarding Fund Investments or the financial position or business of
the Borrower as the Administrative Agent or such Lender may reasonably
request.
Section 6.1.2 Information, etc. The Borrower shall promptly furnish
to ▇▇▇▇▇'▇, S&P, the Custodian, the Administrative Agent, and the Lenders
copies of the following financial statements, reports and information:
(a) as soon as available and in any event within ninety (90)
days after the end of each fiscal year of the Borrower (beginning with the
year ended December 31, 2006) a consolidated balance sheet of the Borrower as
of the end of such fiscal year and the related consolidated statements of
operations, members' equity and cash flows for such fiscal year (including a
schedule setting forth all investments of the Borrower and the Market Value of
each such investment at year end (regardless of whether such investments are
then required under GAAP to be set forth)), setting forth in comparative form
the figures for the previous fiscal year, if any, reported on without material
qualification by Independent Public Accountant, it being understood that a
qualification relating only to valuation methodology shall not be deemed a
material qualification if the Borrower has otherwise complied with Sections
6.1.1 and 6.1.18;
(b) as soon as available and in any event within sixty (60)
days after the end of each of the first three (3) fiscal quarters of each
fiscal year of the Borrower (beginning with the quarter ended March 31, 2007)
a consolidated balance sheet of the Borrower as of the end of such fiscal
quarter and the related consolidated statements of operations, members' equity
and cash flows for such fiscal quarter and for the portion of the fiscal year
ended at the end of such fiscal quarter (including a schedule setting forth
all investments of the Borrower and the Market Value of each such investment
at quarter end (regardless of whether such investments are then required under
GAAP to be set forth)), setting forth in the case of each fiscal quarter
ending on or after March 31, 2008 in comparative form the figures for the
corresponding fiscal quarter and the corresponding portion of the previous
fiscal year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by an Authorized Officer of the
Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, (A) a certificate of an
Authorized Officer of the Borrower in the form of Exhibit H hereto (x) setting
forth (i) Company
40
Equity as of the last day of the fiscal quarter of the Borrower most recently
ended; (ii) the aggregate amount of Restricted Payments made during such
fiscal quarter; (iii) the aggregate principal amount of Debt of the Borrower
described in clauses (ii), (iii) and (iv) of Section 6.2.2 in each case as of
the last day of such fiscal year or quarter; and (v) the computations relating
to the Borrower's compliance with Section 6.1.15; and (y) stating whether any
Default exists on the date of such certificate and, if any Default then
exists, setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the Independent
Public Accountant which reported on such statements as to whether anything has
come to their attention to cause them to believe that any Default existed on
the date of such statements and, if such a Default has come to their
attention, a statement as to the nature thereof;
(e) promptly upon the execution thereof, copies of any
amendment to any Transaction Document;
(f) from time to time, such other information or documents
(financial or otherwise) as the Administrative Agent, ▇▇▇▇▇'▇, S&P or the
Required Lenders may reasonably request; and
(g) promptly upon obtaining actual knowledge thereof, any
material correction, revision or restatement with respect to the information
referred to above.
Section 6.1.3 Maintenance of Borrower's Existence, etc. The Borrower
shall cause to be done at all times all things necessary to maintain and
preserve its existence and the rights (statutory and other) and franchises
(including licenses, authorizations and permits necessary to the operation of
its businesses) used in the conduct of its business, including preservation of
its status as a limited partnership in good standing under the laws of the
State of Delaware.
Section 6.1.4 Foreign Qualification. The Borrower shall cause to be
done at all times all things necessary to be duly qualified to do business and
be in good standing in each jurisdiction where the failure so to qualify would
have a Material Adverse Effect.
Section 6.1.5 Payment of Taxes and Other Claims. The Borrower shall
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, all taxes, assessments and other governmental charges
levied or imposed upon the Borrower or upon any of its income, profits or
property; provided, that the Borrower shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment or
charge, (i) the amount, applicability or validity of which is being contested
in good faith by appropriate proceedings and for which disputed amounts
adequate reserves in accordance with GAAP have been made or (ii) the failure
of which
41
to pay or discharge could not have a Material Adverse Effect or a material
adverse effect on the Collateral.
Section 6.1.6 Insurance. The Borrower shall maintain, directly or
through an Affiliate, with reputable, financially sound insurance companies,
insurance with respect to its properties and business against such liabilities
and contingencies and of such types and in such amounts as is customary in
accordance with prudent business practice in the case of similar businesses
engaged in the activities described in Section 5.17, including fidelity bond
coverage and director and officer (and manager) liability insurance and shall
furnish to the Administrative Agent and each Lender on the Closing Date, and
no later than January 31 of each year (commencing January 31, 2007), a
certificate of an Authorized Officer of the Borrower setting forth the nature
and extent of all insurance maintained by the Borrower (or such Affiliate) in
accordance with this Section 6.1.6. The Borrower, directly or through an
Affiliate, shall retain all the incidents of ownership of the insurance
maintained pursuant to this Section 6.1.6 and shall not borrow upon or
otherwise impair its right to receive the proceeds of such insurance.
Section 6.1.7 Notice of Default, Litigation, etc. The Borrower shall
give prompt notice (with a description in reasonable detail of the nature and
period of existence thereof and of the actions which the Borrower has taken
and proposes to take with respect thereto) to ▇▇▇▇▇'▇, S&P, the Administrative
Agent, and the Lenders of:
(a) the occurrence of (i) any known Default and (ii) any known
event of default (however denominated) or default which, with notice, the
passage of time or both, would constitute such an event of default, under any
Collateral Document;
(b) the receipt of any notice of any default which, with
notice, the passage of time or both, would constitute an event of default
under any Collateral Document;
(c) any litigation, arbitration or governmental investigation
or proceeding not previously disclosed by the Borrower to the Administrative
Agent or the Lenders which has been instituted or, to the knowledge of the
Borrower, is threatened against the Borrower or to which any of its
properties, assets or revenues is subject which (i) would be reasonably likely
to have a Material Adverse Effect or (ii) relates to this Agreement, any
Collateral Document, any other Credit Document or any transactions
contemplated hereunder or thereunder;
(d) the occurrence of any other circumstance which has
resulted, or will with the passage of time result, in a Trigger Event; and
(e) any material adverse development which shall occur in any
litigation, arbitration or governmental investigation or proceeding previously
disclosed by the Borrower to the Administrative Agent or the Lenders.
Section 6.1.8 Performance of Obligations. The Borrower shall (a)
perform promptly and faithfully all of its Obligations under this Agreement,
each Collateral Document and each Credit Document executed by it and (b)
comply with the
42
provisions of all other contracts or agreements to which it is a party or by
which it is bound and pay all obligations which it has incurred or may incur
pursuant to any such contract or agreement as such obligations become due
except to the extent the failure to comply with such contracts and agreements
could not reasonably be expected to result in a Material Adverse Effect.
Section 6.1.9 Audits; Books and Records. The Administrative Agent may
(and, at the request of the Required Lenders, shall) conduct physical audits,
using the Administrative Agent's own personnel and/or agents employed on the
Administrative Agent's behalf, of the assets of the Borrower as often as the
Administrative Agent may reasonably deem necessary or desirable, the results
of which, in any case where such audit has been conducted by a third-party
agent, the Administrative Agent shall (subject to the last proviso of this
sentence) promptly report to the Lenders; provided, that, at any time prior to
the occurrence of a Default, the Administrative Agent shall conduct not more
than one physical audit in any one fiscal year of the Borrower; and provided,
further, that upon the occurrence and during the continuance of a Default, the
Administrative Agent may engage in any number of physical audits which the
Administrative Agent or the Required Lenders deem necessary or desirable; and
provided, further, that any of the CP Conduits, if an annual audit described
above has not been conducted or if such audit does not satisfy the
requirements of its internal guidelines with respect thereto (as so certified
by such CP Conduit), may, at its own cost and expense if such audit is as a
result of an audit not satisfying the requirements of its internal guidelines,
request and conduct an audit satisfying such requirements. The Borrower shall
keep proper books and records reflecting all of its business affairs and
transactions in accordance with GAAP and permit the Administrative Agent and
the Lenders, on reasonable notice and at reasonable times and intervals during
ordinary business hours, to visit all of its offices and to discuss its
financial matters with officers of the Borrower and its independent public
accountants. The Borrower shall permit the Administrative Agent on reasonable
notice and at reasonable times and intervals during ordinary business hours,
to examine and make copies of any of the books or other records of the
Borrower. The Borrower shall pay any reasonable fees of such independent
public accountants or otherwise incurred in connection with the exercise by
the Administrative Agent of its rights pursuant to this Section 6.1.9.
Section 6.1.10 Compliance with Laws, etc. The Borrower shall comply
with all applicable statutes, rules, regulations, orders and restrictions of
any governmental authority, department, commission, board, regulatory
authority, bureau, agency and instrumentality, in respect of the conduct of
its business and the ownership of its properties, except such as are being
contested in good faith and by appropriate proceedings in such manner as not
to cause any Material Adverse Effect, and except for such non-compliance as
shall not, individually or in the aggregate, have a Material Adverse Effect.
Without limiting the foregoing, the Borrower shall comply with Section 18 of
the Investment Company Act or any successor provision thereto, and any
applicable "asset coverage" maintenance requirements set forth therein.
Section 6.1.11 Environmental Matters. The Borrower shall use and
operate all of the Borrower's real properties, if any, in compliance with all
Environmental
43
Laws, except for such non-compliance as shall not, individually or in the
aggregate, have a Material Adverse Effect.
Section 6.1.12 Maintenance of Property. The Borrower shall, at its
expense:
(a) acquire and maintain the Fund Investments included or to be
included in the Collateral in a manner that shall enable the Borrower to cause
such property to be subject to the Liens of the Collateral Documents;
(b) obtain the consent or approval of any Person whose consent
or approval is required in connection with the grant of Liens by the Borrower
in any such property to or for the benefit of the Lenders; and
(c) maintain and keep its properties that are used or useful to
its business in good repair, working order and condition, and from time to
time make all necessary or desirable repairs, renewals and replacements, so
that its businesses may be properly and advantageously conducted at all times.
Section 6.1.13 Delivery; Further Assurances. The Borrower shall, at
its expense:
(a) execute and deliver any and all instruments necessary or as
the Administrative Agent may reasonably request to grant and perfect a first
priority Lien on all of the Collateral, except for Permitted Liens and Liens
on Fund Investments the Market Value of which if excluded from the Collateral
would not cause a violation of the Over-Collateralization Test or as otherwise
permitted hereunder or under the Collateral Documents, and, without any
request by the Administrative Agent or any Person, deliver or cause to be
delivered promptly to the Custodian, or any designee thereof, in due form for
transfer (duly endorsed in blank or, if appropriate, accompanied by duly
executed blank stock or bond powers or any instrument or certificate
accompanying or previously delivered to the Custodian permitting the Custodian
to exercise the Borrower's rights of transfer when permitted hereunder or
under the Pledge and Intercreditor Agreement) or issued in the name of the
Custodian or its nominee or agent (or any designee of the Custodian), all
certificated securities, chattel paper, instruments and documents of title, if
any, at any time representing all or any of the Collateral, it being
acknowledged by the parties hereto that such certificated securities, chattel
paper, instruments and documents of title may be subject to restrictions on
transfer either imposed by law or contained in their governing documents or
any related documents;
(b) upon request of the Administrative Agent, forthwith execute
and deliver or cause to be executed by the Borrower and delivered to the
Administrative Agent, in due form for filing or recording (and pay the cost of
filing or recording the same in all public offices deemed necessary by the
Administrative Agent), such assignments, security agreements, pledge
agreements, consents, waivers, financing statements, stock or bond powers, and
other documents, and do such other acts and things, all as the Administrative
Agent may from time to time reasonably request, to establish
44
and maintain to the reasonable satisfaction of the Administrative Agent valid
perfected Liens of the first priority in all the Collateral in accordance with
the Pledge and Intercreditor Agreement (free of all other Liens, claims, and
rights of third parties whatsoever, except for Permitted Liens and Liens on
Fund Investments the Market Value of which if excluded from the Collateral
would not cause a violation of the Over-Collateralization Test or as otherwise
permitted hereunder or under the Collateral Documents); and
(c) give prompt notice to the Administrative Agent of any Fund
Investment included in the Collateral as to which the Borrower has actual
knowledge or has received notice that the Secured Parties Representative does
not have a valid perfected Lien of the first priority therein.
Section 6.1.14 Investment Manager, etc.
(a) The Administrative Agent shall at all times be entitled to
accept and act upon Borrowing Requests and payment instructions received from
an Authorized Officer of the Borrower or the Investment Manager designated in
a certificate of the Borrower to that effect provided from time to time to the
Administrative Agent (in the form provided in subsection 4.1.1(a)(ii)).
(b) The Borrower shall at all times maintain TCP as its primary
investment manager, except as otherwise provided under the Investment
Management Agreement.
(c) The Custodian shall at all times be the custodian of all of
the Fund Investments and the Collateral, except as provided under the
Custodial Agreement.
(d) The Borrower's auditors shall be a nationally recognized
firm of independent public auditors that is reasonably acceptable to the
Administrative Agent and the Required Lenders.
Section 6.1.15 Minimum Net Worth. The Company Equity shall, at the
end of each fiscal quarter (determined on the date the related quarterly or
annual financial statements are required to be delivered hereunder by
reference to such related quarterly or annual financial statements), equal or
exceed the greater of 60% of (x) Contributed Company Capital minus the sum of
all Commitment Reduction Amounts and permanent reductions of the aggregate
stated liquidation preference of the Preferred Interests and (y) $350,000,000.
For purposes of this Section 6.1.15, prior to the earlier of June 15, 2009 and
the date on which the Equity Capital Commitments have been fully drawn,
Company Equity shall be deemed to include undrawn Equity Capital Commitments.
Section 6.1.16 Affirmative Hedging Requirement. The Borrower shall,
and/or shall cause the Hedging SPEs to, maintain at all times any interest
rate or currency rate protection arrangements which, in the Borrower's good
faith judgment, are
45
advisable and permitted hereunder to reduce the Borrower's exposure to
material interest rate or currency rate risk.
Section 6.1.17 Use of Proceeds. The proceeds of the Loans made
hereunder will be used by the Borrower for the purpose of making investments
in Fund Investments, entering into Secured Hedging Transactions, Defensive
Hedge Transactions and other Hedging and Short Sale Transactions permitted
hereunder, paying dividends on, redeeming, repurchasing and paying any
liquidation preference with respect to, Preferred Interests and Common
Interests to the extent such payments are permitted hereunder, capitalizing
Hedging SPEs and Investment Holding Subsidiaries, paying principal, interest,
commitment fees and other amounts on Debt and paying, or reimbursing others
for the payment of, fees and expenses incurred in connection with the
formation and operation of the Borrower, the Hedging SPEs and the Investment
Holding Subsidiaries, the arranging of the Loans and the execution, delivery
and performance of this Agreement and the other Transaction Documents
including, but not limited to, the payment of the fees payable to, and
reimbursement of expenses of, the Investment Manager pursuant to the
Investment Management Agreement and the Co-Manager pursuant to the
Co-Management Agreement and the payment of premiums due to any insurer and the
payment of other ongoing professional and administrative fees and expenses
associated with the business and operation of the Borrower, incurred in the
ordinary course of business, or as otherwise determined to be incurred by the
Borrower, the Hedging SPEs and Investment Holding Subsidiaries; provided that
the Borrower shall apply substantially all of the proceeds of each Loan
denominated in Euros to the purchase or funding of Fund Investments
denominated in Euros (or to the payment of principal, interest or other
amounts payable hereunder in Euros or the repayment of Swingline Loans
denominated in Euros). None of such proceeds will be used in violation of
applicable law or, directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any Margin Stock for purposes of
the regulations of the FRS Board.
Section 6.1.18 Compliance with Over-Collateralization Test. Upon the
occurrence of an Excess Date, the Borrower shall promptly notify the
Administrative Agent, each Lender, ▇▇▇▇▇'▇ and S&P thereof and, at its option
(provided, that it is required to take the actions described in clause (i) or
clause (ii) below), within ten (10) Business Days of such Excess Date, either:
(i) prepay the Debt under this Agreement (as provided
herein) in such amount or take such other actions as shall
be necessary so that the sum of the aggregate outstanding
principal amount of Senior Indebtedness shall be equal to
or less than the Advance Amount then in effect; or
(ii) provide a written statement to the
Administrative Agent and each Lender as of any date (a
"Statement Date") showing projected compliance with the
Over-Collateralization Test as of any subsequent date
within twenty (20) Business Days of such Excess Date (and
continuing compliance with the Over-Collateralization Test
during the remainder of such twenty (20) Business Day
period) based upon reasonably expected settlements of all
46
committed purchases and sales of Fund Investments pledged
as Collateral, all anticipated additions to, and removals
from, the Collateral of Cash and of Fund Investments that
are not pledged as Collateral and all anticipated
prepayments of its Debt (including sources of funds
therefor) to be completed within twenty (20) Business Days
of such Excess Date, calculated by reference to the Market
Value, Market Value Prices, Over-Collateralization Test
and Debt in effect or outstanding, as the case may be, as
of such Statement Date.
The calculation of the Excess Amount, if any, is referred to herein
as the "Over-Collateralization Test," and the Borrower will be deemed to be in
compliance with such test so long as there is no positive Excess Amount. In
the event that the Borrower fails to complete the transactions described in a
statement delivered pursuant to clause (ii) above or otherwise come into
compliance with the Over-Collateralization Test (including as a result of
changes in the value of the Collateral) within the twenty (20) Business Day
period specified therein, the Borrower shall make the prepayments required
pursuant to clause (i) above not later than the last day of such twenty (20)
Business Day period.
Section 6.1.19 Regulations T, U, and X. The Borrower shall provide a
duly completed and executed Federal Reserve Form U-1 or Form G-3, as
applicable, to each Person becoming a Lender after the Closing Date pursuant
to the terms of this Agreement. If at any time the Borrower acquires any
Margin Stock, the Borrower will take any and all actions as may be necessary,
or as may be reasonably requested by the Administrative Agent, to establish
compliance with Regulations T, U, and X of the FRS Board, including, without
limitation, furnishing such information relating to such Margin Stock acquired
as is required to register and file periodic reports with the FRS Board.
Section 6.1.20 Plan Assets. The Borrower and its ERISA Affiliates
will do, or cause to be done, all things necessary to ensure that the Borrower
will not be deemed to hold Plan Assets at any time.
Section 6.1.21 Key Individuals. The Borrower shall provide the
Administrative Agent with an updated list of Key Individuals whenever the
previously delivered list is no longer complete or accurate.
Section 6.1.22 Regulated Investment Company. If the Borrower does not
intend to qualify as a partnership for U.S. federal income tax purposes, the
Borrower shall promptly notify the Administrative Agent, each Lender, ▇▇▇▇▇'▇
and S&P if the Borrower elects not to be treated as, or becomes ineligible to
be treated as, a regulated investment company for U.S. federal income tax
purposes.
Section 6.1.23 Closed-end Company Status. The Borrower shall use
commercially reasonable efforts to at all times subsequent to its registration
as an investment company and prior to its termination in accordance with the
provisions of Section 6.2.7 maintain its classification as a Closed-end
Company for purposes of the Investment Company Act and shall promptly notify
the Administrative Agent and each Lender when it at any time fails to maintain
its classification as a Closed-end Company.
47
Section 6.2 Negative Covenants. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have been
terminated and all principal and interest on the Loans and all other
Obligations then due and payable have been paid and performed in full, the
Borrower shall perform the Obligations set forth in this Section 6.2.
Section 6.2.1 No Other Business; Subsidiaries. The Borrower shall not
engage in any business or activity other than (a) issuing the Lender Notes and
incurring Loans pursuant to this Agreement, issuing, selling, redeeming and
repurchasing Preferred Interests (including any permitted refinancings
thereof), issuing and selling Common Interests, issuing and selling
Subordinated Equity Securities, acquiring, owning, holding, selling,
exchanging, redeeming, pledging, structuring, negotiating, originating,
syndicating, contracting for the management of (including entering into the
Investment Management Agreement and the Co-Management Agreement) and otherwise
dealing with Fund Investments and other instruments and property in connection
therewith and in accordance with the terms hereof (including acquiring
majority or controlling interests in operating companies as a result of such
activities) and entering into Secured Hedging Transactions and Structured
Product Transactions, (b) issuing or incurring any other obligations permitted
by Section 6.2.2, (c) owning the Capital Stock of any Hedging SPEs or
Investment Holding Subsidiaries, (d) engaging in other activities permitted by
the Borrower Organization Agreement, including establishing investment
committees and investment policies, earning origination, management, funding,
break-up and similar fees with respect to Fund Investments, obtaining
governance power with respect to certain Fund Investments and co-investing
with related parties and other Persons and (e) engaging in any other
activities which are necessary, suitable or appropriate to accomplish the
foregoing or are incidental thereto, connected therewith or ancillary thereto.
Notwithstanding anything to the contrary contained in this Section 6.2.1 or
elsewhere in this Agreement, the Borrower shall have no Subsidiaries other
than any Hedging SPEs or Investment Holding Subsidiaries.
Section 6.2.2 Limitations on Debt or Equity Securities. The Borrower
shall not, and shall not permit any Subsidiary (other than a Hedging SPE) to,
create, incur, assume or suffer to exist or otherwise directly or indirectly
become or be liable (collectively, "Incur" and, with correlative meanings,
"Incurred" and "Incurrence") in respect of any Debt or issue any equity
securities, other than:
(i) Debt in respect of the Loans and other
Obligations in an aggregate principal amount not to exceed
the Total Maximum Commitment (including refinancings,
refundings or replacements thereof);
(ii) the Preferred Interests and the Common
Interests;
(iii) any other equity securities which (1) are fully
subordinated and junior in right of payment (including
upon liquidation) to the Senior Indebtedness and the
Preferred Interests; (2) contain a Non-Petition Covenant
by the holder thereof; and (3) expressly provide that each
holder thereof
48
does not have recourse to any Collateral pledged under the
Pledge and Intercreditor Agreement for amounts payable to
such holder in respect of such equity securities until all
of the Obligations hereunder and the Preferred Interests
have been paid in full (a "Subordinated Equity Security");
(iv) Debt arising from the honoring by a bank or
other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the
ordinary course of business; provided, that such Debt is
extinguished within five Business Days of its incurrence;
(v) with respect to any Fund Investment, any funding
obligation of the Borrower to the issuer of such Fund
Investment; and
(vi) in the case of Investment Holding Subsidiaries,
equity securities issued to and held by the Borrower.
Section 6.2.3 Liens. The Borrower shall not, and shall not permit any
Subsidiary (other than a Hedging SPE) to, Incur any Lien upon any property or
assets included in the Collateral, whether now owned or hereafter acquired,
except the following (collectively, the "Permitted Liens"):
(i) Liens in favor, or for the benefit, of the
Administrative Agent or the Lenders granted pursuant to
this Agreement or any Collateral Document, including the
Lien in favor of the Secured Parties Representative
created by the Pledge and Intercreditor Agreement;
(ii) any Lien or other encumbrance for taxes,
assessments or other governmental charges or levies not
yet subject to penalties for non-payment or the validity,
applicability or amount of which is being contested in
good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been
established by the Borrower;
(iii) Liens of broker-dealers and clearing
corporations Incurred in the ordinary course of business,
but excluding Liens created in connection with the
purchase of securities on margin, the short sale of
securities on margin or Securities Lending Transactions
(other than Securities Lending Transactions involving U.S.
Government Securities incurred as Interest Rate Hedging
Transactions); provided, that in the case of broker-dealer
Liens relating to trades not settled in the ordinary
course of business, such Liens shall be Permitted Liens
under this clause (iii) only if such Liens are discharged
within five (5) Business Days of the Borrower's obtaining
actual knowledge thereof;
(iv) judgment Liens in existence less than thirty
(30) days after the entry thereof or with respect to which
execution has been stayed, in each case, so long as the
aggregate amount of all such judgment Liens at any time
does not exceed 1.5% of the Net Asset Value, or judgment
Liens the payment of which is covered in full (subject to
a customary deductible) by insurance; and
49
(v) any other Lien granted in favor of the Secured
Parties Representative for its benefit and the benefit of
the Lenders, the Custodian (and any subcustodian appointed
by or on behalf of the Custodian), the Administrative
Agent or the Hedging Representative and Secured Hedging
Creditors (each as defined in the Pledge and Intercreditor
Agreement) granted under the Pledge and Intercreditor
Agreement, the Custodial Agreement or any Secured Hedging
Agreement (as defined in the Pledge and Intercreditor
Agreement).
Section 6.2.4 Performance of Obligations. The Borrower is hereby
authorized to contract with other Persons, including the Investment Manager
and the Co-Manager, for the performance of actions and obligations to be
performed by the Borrower hereunder by such Persons and the performance of the
actions and other obligations with respect to the Collateral by the Investment
Manager of the nature set forth in the Investment Management Agreement. In
such event, the performance of such actions and obligations by such Persons
shall be deemed to be performance of such actions and obligations by the
Borrower, except that, to the extent an officer's certificate is required to
be delivered by or on behalf of the Borrower, an Authorized Officer of the
Borrower must execute such officer's certificates on behalf of the Borrower.
Section 6.2.5 Limitations on Restricted Payments. The Borrower shall
not make any Restricted Payment; provided, that the Borrower may, at any time,
(i) make distributions (including dividends) to the Common Interest Holders or
repurchase, or make payments or distributions on account of the purchase,
redemption, retirement or acquisition of, the Common Interests in the Borrower
pursuant to and in accordance with the Borrower Organization Agreement or (ii)
make distributions to the Preferred Interest Holders or repurchase, or make
payments or distributions on account of the purchase, redemption, retirement
or acquisition of the Preferred Interests or make similar payments or
distributions of their stated liquidation preference pursuant to and in
accordance with the Borrower Organization Agreement, in each case, so long as,
immediately after such payments, distributions or repurchases:
(x) no Default, Event of Default or violation of
Section 6.1.18 (without giving effect to the grace periods
provided for therein) shall have occurred and be
continuing under this Agreement,
(y) all representations and warranties in Article V
hereof are true and correct in all material respects, and
(z) (1) Company Equity (after giving effect to any
Subordinated Equity Security and, prior to the earlier of
June 15, 2009 and the date on which the Equity Capital
Commitments have been fully drawn, including in Company
Equity for purposes of this clause (z) the amount of
undrawn Equity Capital Commitments) shall be equal to or
exceed the greater of (A) Adjusted Contributed Company
Capital minus the sum of all Commitment Reduction Amounts
and permanent reductions of the aggregate stated
liquidation preference of the Preferred Interests and (B)
$350,000,000, or (2) in the case of Company Tax
50
Distributions, the Advance Amount exceeds 105% of the sum
of the aggregate outstanding principal amount of Senior
Indebtedness and the aggregate outstanding liquidation
preference of the Preferred Interests (such excess amount,
at any date of determination, the "Advance Amount
Cushion"); provided that if, within 30 days from the date
of any such Company Tax Distribution, the Advance Amount
Cushion becomes less than zero following the acquisition
by the Borrower of any loan, bond or other investment that
is of the same tranche as any loan, bond or other
investment sold by the Borrower within 30 days prior to
such Company Tax Distribution, the Borrower shall not make
any Company Tax Distribution under this Section 6.2.5 for
a period of 180 days commencing from the date of such
Company Tax Distribution;
provided, further that the Borrower may, in connection with the issuance of
any Subordinated Equity Securities, make distributions to its Common Interest
Holders and the holders of Subordinated Equity Securities in an amount which
does not exceed the net proceeds to the Borrower of such issuance of
Subordinated Equity Securities. Distributions (including dividends) or other
payments or distributions on account of the purchase, redemption, retirement
or acquisition of any Subordinated Equity Security may be made pursuant to and
in accordance with the Borrower Organization Agreement at any time only so
long as (x) all representations and warranties in Article V hereof are true
and correct in all material respects and (y) immediately after giving effect
thereto, no Default, Event of Default or violation of Section 6.1.18 (without
giving effect to the grace periods provided for therein) shall have occurred
or be continuing under this Agreement. For the avoidance of doubt, dividends
on the Preferred Interests shall not be treated as Restricted Payments and may
be paid by the Borrower at any time in accordance with the terms of the
Borrower Organization Agreement.
Notwithstanding the foregoing, in the event that any payment or other
distribution (including, without limitation, any dividend) in respect of the
Borrower's Common Interests would be required to be made in order to preserve
the U.S. federal income tax status of the Borrower as a regulated investment
company or to avoid the imposition of the excise tax under Section 4882 of the
Code (e.g., because the requisite consents from the Common Interest Holders
for a "consent dividend" (as defined in Section 565 of the Code) for U.S.
federal income tax purposes have not been obtained by the Borrower in
accordance with the terms of the Borrower Organization Agreement), such
payment or distribution (a "RIC Distribution") may be distributed for the
benefit of the Common Interest Holders and deposited into the Common Interest
Holders' Escrow Account established pursuant to the Custodial Agreement. Funds
deposited in the Common Interest Holders' Escrow Account shall not be released
to the Common Interest Holders unless and until the Borrower shall have
provided to the Administrative Agent a certificate stating that (x) such
violation of the Over-Collateralization Test, occurrence of Default or Event
of Default or breach of representation or warranty in Article V hereof, as
applicable, has been cured and is no longer continuing and (y) Company Equity
(including, for this purpose, any Subordinated Equity Security) is equal to or
greater than Adjusted Contributed Company Capital. If the requisite consents
from the Common Interest Holders for a "consent dividend" have been obtained,
the Borrower shall be
51
permitted to pay any U.S. withholding taxes ("RIC Withholding Taxes") arising
in respect of such "consent dividend".
Section 6.2.6 Change of Name, etc. The Borrower shall not change (a)
the location of its principal place of business, chief executive office, major
executive office, chief place of business or its records concerning its
business and financial affairs, (b) without the prior consent of the Required
Lenders, its name or the name under or by which it conducts its business or
(c) its jurisdiction of organization, in each case without first giving
▇▇▇▇▇'▇, S&P, the Administrative Agent, each Lender and the Secured Parties
Representative thirty (30) days' prior written notice thereof and taking any
and all actions that may be necessary, or which the Administrative Agent may
reasonably request, to maintain and preserve all Liens granted pursuant to the
Collateral Documents.
Section 6.2.7 Merger, Consolidation, Assignment; Successor Entity
Substituted. The Borrower shall not consolidate or merge with or into any
other Person or sell, lease or otherwise transfer its respective properties
and assets substantially as an entirety to any Person, including ▇▇▇▇▇▇▇▇▇▇
Opportunities Fund V, LLC, unless the Borrower provides ten (10) days' prior
written notice thereof to the Administrative Agent (which shall provide a copy
of such notice to each Lender), ▇▇▇▇▇'▇ and S&P (or such shorter notice period
acceptable to such Persons) and unless:
(i) the Borrower shall be the surviving entity, or
the Person (if other than the Borrower) formed by such
consolidation or into which the Borrower is merged or to
which the properties and assets of the Borrower are
transferred substantially as an entirety shall be a Person
organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia,
and shall expressly assume, by an amendment or supplement,
executed and delivered to the Administrative Agent and
each Lender (with a copy to ▇▇▇▇▇'▇ and S&P), in the case
of a Person succeeding the Borrower, the due and punctual
payment of the principal of and premium and interest on
all Loans and other Obligations and the performance of
every covenant and every other obligation or liability of
this Agreement and the other Credit Documents on the part
of the Borrower to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing;
(iii) the Borrower shall have delivered to the
Administrative Agent an officer's certificate stating that
such consolidation, merger, conveyance or transfer and
such amendment or supplement to this Agreement comply with
this Section 6.2.7;
(iv) the Required Lenders shall have consented to
such merger, consolidation, sale, lease or transfer (which
consents shall not be unreasonably withheld or delayed, it
being expressly acknowledged that under certain
circumstances the Borrower currently intends to merge with
and into
52
▇▇▇▇▇▇▇▇▇▇ Opportunities Fund V, LLC, a Delaware limited
liability company, which shall thereupon become the
Borrower hereunder);
(v) the Borrower shall have taken all steps necessary
to preserve the effectiveness, perfection and priority of
the Liens created under the Pledge and Intercreditor
Agreement;
(vi) the Borrower shall have delivered to the
Administrative Agent evidence satisfactory to the
Administrative Agent that the Rating Agency Condition
shall be met; and
(vii) the Borrower shall have delivered to the
Administrative Agent and each Lender an opinion of counsel
concerning such of the foregoing matters described in
clauses (i) and (v) and such other matters as the
Administrative Agent may reasonably require.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Borrower in accordance with this Section 6.2.7, the successor
entity formed by such consolidation or into which the Borrower is merged or
into which such sale, transfer, lease, conveyance or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Borrower under this Agreement with the same effect as if such
successor entity had been named as the Borrower herein.
Section 6.2.8 Investment Dispositions, etc. The Borrower shall not
sell, transfer, lease or otherwise dispose of, or grant options, warrants or
other rights with respect to, any of its assets to any Person, other than in
compliance with the provisions of this Agreement, the other Transaction
Documents and all Applicable Laws. The Borrower shall not transfer any Fund
Investment or other asset from the Custodial Account to any Hedging SPE or
Investment Holding Subsidiary, to any counterparty under a Structured Product
Transaction or to any other account of the Borrower unless (i) after giving
effect to such transfer, (x) the sum of the aggregate Outstanding Principal
Amount of the Loans and the aggregate outstanding liquidation preference of
the Preferred Interests would not exceed (y) the Advance Amount (calculated on
a pro forma basis giving effect to such transfer) and (ii) the Borrower shall
have delivered to the Administrative Agent a certificate evidencing its
compliance with the foregoing clause (i).
Section 6.2.9 Modification of Certain Instruments, Organic Documents,
Agreements, etc. The Borrower shall not:
(a) consent to any amendment, supplement, waiver, termination
or other modification of any of the terms or provisions of the Collateral
Documents or the Preferred Interests that would (x) change the scheduled
mandatory redemption date of any Preferred Interests to a date earlier than
December 15, 2016, increase the amount of dividend or any other sum payable in
respect of any Preferred Interests after issuance or (y) adversely affect the
Lenders, in each case, other than any amendment, supplement or other
modification which (i) extends the date or reduces the
53
amount of any required payment, repurchase or redemption in respect of any
Preferred Interests, (ii) is consented to or approved by the Lenders (which
consent or approval shall not be unreasonably withheld or delayed), and as to
which the Rating Agency Condition is met, or (iii) with the consent of the
Administrative Agent serves to correct manifest error or inconsistencies that
are otherwise not material; the Borrower will give ▇▇▇▇▇'▇, S&P and the
Administrative Agent (which shall provide a copy of such notice to each
Lender) ten (10) Business Days' prior written notice (or if ten (10) Business
Days' prior written notice is not reasonably practicable, the maximum amount
of prior written notice that is reasonably practicable) of any such
modification, supplement, waiver or termination; or
(b) to the extent permitted by the Investment Company Act,
without the prior written consent of the Administrative Agent and Lenders
having, in the aggregate, and without duplication in the case of Designated CP
Conduits and their respective Designated CP Conduit Committed Lenders, a
Voting Percentage of at least 66?% of the total Voting Percentages of all
Lenders at such time (which consents shall not be unreasonably withheld or
delayed) and unless the Rating Agency Condition is met, (i) terminate the
Investment Manager, appoint a replacement Investment Manager or consent to an
assignment of the Investment Management Agreement (except in connection with
(x) an assignment that results from a change in control (within the meaning of
the Investment Advisers Act of 1940, as amended) or (y) an assignment to the
Co-Manager or an Affiliate of the Investment Manager or the Co-Manager
pursuant to the Investment Management Agreement) or (ii) consent to any
material amendment, supplement or other modification of any of the terms or
provisions of (A) its Organic Documents if such change would have a Material
Adverse Effect, or (B) the Investment Management Agreement (except in
connection with a change of Investment Manager that otherwise complies with
clause (i) above) if such change would have a Material Adverse Effect.
Section 6.2.10 Agreements Restricting Liens. The Borrower shall not
enter into any agreement which prohibits the creation or assumption of any
Lien upon its properties, revenues or assets (other than Liens upon specific
properties or assets that are not included in the Collateral), whether now
owned or hereafter acquired, other than the Collateral Documents.
Section 6.2.11 Inconsistent Agreements. The Borrower shall not enter
into any agreement containing any provision which would be violated or
breached by the performance by the Borrower of its obligations under this
Agreement or under any other Credit Document.
Section 6.2.12 Environmental Matters. Except with respect to
violations which could not reasonably be expected to have a Material Adverse
Effect, the Borrower shall not violate any Environmental Law. In any case, the
Borrower shall not intentionally violate any Environmental Law.
Section 6.2.13 Pension and Welfare Plans. The Borrower shall not
Incur any liability or obligation with respect to any Pension Plan or any
Welfare Plan
54
(other than with respect to a fully-insured Welfare Plan). The Borrower shall
not have any employees and shall not maintain or contribute to (or become
obligated to contribute to) any Pension Plan or Welfare Plan (other than a
fully-insured Welfare Plan).
Section 6.2.14 Payment of Management or Advisory Fees. At any time
after an Acceleration Notice, a Final Maturity Payment Default Notice or the
occurrence of a Liquidation Acceleration under the Pledge and Intercreditor
Agreement, the Borrower shall not pay, or cause or permit to be paid, any
management or advisory fees (excluding expense reimbursements) of any type to
the Investment Manager unless otherwise consented to by the Required Lenders
pursuant to the terms of the Pledge and Intercreditor Agreement.
Section 6.2.15 Limitation on Bank Loans. The Borrower shall not hold
Bank Loans that obligate the Borrower, whether currently or upon the happening
of any contingency, to make any revolving extensions of credit to a borrower,
unless the Borrower has at all times available to it, within the notification
period specified by the documentation governing such Bank Loans for the making
of any extensions of credit thereunder, any combination of (i) Cash, (ii) Cash
Equivalents and (iii) availability under this Agreement such that the
Borrower, upon "regular way" settlement, will have funds that are sufficient
to cover the amount of any such extensions of credit.
Section 6.2.16 Commodities; Real Estate. The Borrower shall not
purchase or otherwise acquire or receive as a distribution any commodities or
any fee interest in real property, except for such commodities or fee interest
in real property as the Borrower shall have acquired or received as a
distribution in connection with a workout, bankruptcy, foreclosure,
restructuring or similar process or proceeding (whether or not under the
supervision of a court or other regulatory authority) in respect of a Fund
Investment; provided, that (i) the Borrower shall disclose such acquisition or
receipt of any such commodities or fee interest in real property to the
Administrative Agent promptly following the acquisition or receipt thereof and
(ii) the Borrower shall dispose of such commodities or fee interest in real
property as soon as practicable in a commercially reasonable manner.
Section 6.2.17 Margin Stock. The Borrower shall not use any of the
proceeds of the Borrowings (i) to extend "purpose credit" within the meaning
given to such term in Regulation U or (ii) directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of purchasing, otherwise
acquiring or carrying any Margin Stock.
Section 6.2.18 Limitations on Hedging and Short Sale Transactions.
(a) The Borrower will not, and will not permit any Hedging SPE to,
enter into or otherwise effect or permit to remain outstanding any Hedging and
Short Sale Transaction except as follows: (i) Secured Hedging Transactions
entered into, in the judgment of the Borrower, to hedge or mitigate interest
rate or currency rate risks to which the Borrower is exposed in the conduct of
its business or management of its liabilities; (ii) Structured Product
Transactions entered into by the Borrower; (iii)
55
Defensive Hedge Transactions entered into by the Borrower, intended to protect
the Borrower against fluctuations in the market value of a Fund Investment;
and (iv) other Hedging and Short Sale Transactions entered into by any Hedging
SPE or, so long as the Borrower has no ongoing payment obligations thereunder,
the Borrower.
(b) The Borrower will not, and will not permit any Hedging SPE to,
enter into any Hedging and Short Sale Transaction with any Person unless (i)
the documentation for such Hedging and Short Sale Transaction contains a
Non-Petition Covenant from such Person and (ii) (x) in the case of the
Borrower, such Hedging and Short Sale Transaction is a Secured Hedging
Transaction, a Defensive Hedge Transaction or a Hedging and Short Sale
Transaction under which the Borrower has no ongoing payment obligations, and
the counterparty is an Eligible Counterparty and (y) in the case of any
Hedging SPE, the documentation for such Hedging and Short Sale Transaction
provides that the counterparty thereto does not have recourse to the Borrower
or the assets of the Borrower for amounts owing to such counterparty
thereunder.
(c) The Borrower will not enter into any Interest Rate Hedging
Transaction if, as a result of entering into such transaction, the notional
amount of all Interest Rate Hedging Transactions would be greater than the
aggregate Market Value of all Eligible Investments.
Section 6.2.19 [Reserved]
Section 6.2.20 Limitations on Transactions with Affiliates. Except as
expressly contemplated by the Transaction Documents (including the Borrower
entering into and performing its obligations under the Investment Management
Agreement and the Co-Management Agreement and establishing and capitalizing
Hedging SPEs and Investment Holding Subsidiaries) and except for the
transactions contemplated by the Asset Assignment Agreement, dated as of the
Closing Date, between the Borrower and ▇▇▇▇▇▇▇▇▇▇ Opportunities Fund V, LLC,
the Borrower shall not, directly or indirectly: (i) make an investment in any
of its Affiliates; (ii) sell, lease or otherwise transfer any assets to any of
its Affiliates; (iii) purchase or acquire assets from any of its Affiliates;
or (iv) enter into any other transaction directly or indirectly with or for
the benefit of any of its Affiliates (including, without limitation,
guarantees and assumptions of obligations of any of its Affiliates); provided,
that the Borrower may, in compliance with the Investment Company Act, enter
into any such transaction with any of its Affiliates or for the benefit of any
of its Affiliates in the ordinary course of its business if (x) the monetary
or business consideration arising therefrom are likely to be substantially as
advantageous to the Borrower as the monetary or business consideration which
it could obtain in a comparable arm's length transaction with a Person not an
Affiliate of the Borrower and (y) written notice of such transaction is
provided to the Administrative Agent. Unless otherwise consented to by the
Required Lenders, the Borrower shall not purchase, directly or indirectly, any
securities issued by Special Value Bond Fund, LLC, Special Value Bond Fund,
II, LLC, Special Value Absolute Return Fund, LLC, Special Value Opportunities
Fund, LLC, Special Value Expansion Fund, LLC, Special Value Continuation
Partners, LP or any other collateralized debt obligation
56
vehicle managed by the Investment Manager or any of its Affiliates or by the
Co-Manager.
Section 6.2.21 Limitation on Hedging SPEs' Debt. In addition to the
limitations specified in Section 6.2.18, the Borrower shall not permit any
Hedging SPE to incur any Debt unless (a) such Debt is issued to an Eligible
Counterparty that is party to a Hedging and Sale Transaction with such Hedging
SPE and (b) the documentation for such Debt (i) contains a Non-Petition
Covenant by each such Eligible Counterparty that is a creditor of such Hedging
SPE and (ii) provides that each such creditor does not have recourse to the
Borrower or the Collateral for amounts owing to such creditor thereunder.
Section 6.2.22 Maintenance of Separate Existence. The Borrower shall
not (a) fail to correct any misunderstanding regarding its separate existence
of which it has notice or actual knowledge, (b) commingle its funds and other
assets with those of any Affiliate or (c) take any action or conduct its
affairs in a manner that it has reason to believe would result in its separate
existence being ignored or in its assets and liabilities being substantively
consolidated with any other Person in a bankruptcy, reorganization, insolvency
or other similar proceeding.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.1 Events of Default. The term "Event of Default" shall mean
any of the events set forth in this Section 7.1.
Section 7.1.1 Non-Payment of Obligations. The Borrower shall default
in (i) the payment when due (whether at stated maturity or by acceleration,
mandatory prepayment or otherwise) of any principal hereunder, (ii) the
payment when due of interest or fees in respect of any Loan and such default
shall continue unremedied for a period of three (3) Business Days or more and
(iii) the payment of any other Obligation and such default shall continue
unremedied for three (3) Business Days or more after the Borrower's receipt of
notice of such default from the Administrative Agent or any Lender.
Section 7.1.2 Over-Collateralization Test; Limitations on Hedging and
Short Sale Transactions; Leverage.
(a) The Borrower shall fail to comply with its obligations
under Section 6.1.18.
(b) The Borrower shall fail to comply with its obligations
under Section 6.2.18 and such failure to comply shall continue unremedied for
ten (10) Business Days or more after the earlier of (x) notice thereof having
been given to the Borrower by the Administrative Agent or any Lender or (y)
the first date on which a portfolio manager, senior accounting officer or
controller of the Borrower or the Investment Manager had actual knowledge of
such default.
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Section 7.1.3 Non Performance of Other Obligations. The Borrower
shall default in the due performance and observance of any covenant,
obligation, warranty or other agreement contained herein or in any other
Credit Document executed by it, and, if any such default does not otherwise
constitute an Event of Default under this Article VII, such default shall
continue unremedied for a period of thirty (30) days (or, in the case of any
violation of Section 18 of the Investment Company Act, or any successor
provision thereto, and any applicable "asset coverage" maintenance
requirements set forth therein, a period of ninety (90) days) or more after
the earlier of (x) notice thereof having been given to the Borrower by the
Administrative Agent or any Lender or (y) the first date on which a portfolio
manager, senior accounting officer or controller of the Borrower or the
Investment Manager had actual knowledge of such default.
Section 7.1.4 Breach of Warranty. Any representation or warranty of
the Borrower hereunder (other than the representation and warranty relating to
any violation of Section 18 of the Investment Company Act, or any successor
provision thereto, and any applicable "asset coverage" maintenance
requirements set forth therein) or of the Borrower in any other Credit
Document or in any certificate delivered pursuant hereto or thereto is or
shall be incorrect in any material respect when made or deemed made.
Section 7.1.5 [Reserved]
Section 7.1.6 Default, Acceleration on Other Debt, etc. An aggregate
principal amount of Debt of the Borrower or any Subsidiary of the Borrower
equal to or exceeding 0.80% of the Net Asset Value shall become due and
payable (whether at maturity, by acceleration or otherwise) and not be paid or
satisfied in full, or the holder of such Debt shall be entitled to require the
Borrower or any such Subsidiary to repay, repurchase, redeem, defease or
otherwise retire for value such Debt, in whole or in part, prior to its
scheduled payment date (in each case, after giving effect to any grace periods
applicable thereto).
Section 7.1.7 Secured Hedging Transaction Default. The Borrower shall
default in the payment when due (whether at stated maturity or by
acceleration, mandatory prepayment or otherwise) of any amount in excess of
3.0% of the Net Asset Value (after giving effect to any grace periods
applicable thereto) required to be paid by it under any Secured Hedging
Transaction (other than any such amount that is being contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on the Borrower's books), and such default
shall continue unremedied for a period of fifteen (15) Business Days or more.
Section 7.1.8 Judgments. Any final judgments or orders (not subject
to appeal) by one or more courts of competent jurisdiction for the payment of
money in an aggregate amount in excess of 1.5% of the Net Asset Value (after
giving effect to insurance, if any, available with respect thereto) shall be
rendered against the Borrower, and the same shall remain unsatisfied,
unvacated, unbonded or unstayed for a period of thirty (30) days after the
date on which the right to appeal has expired.
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Section 7.1.9 Bankruptcy, Insolvency, etc. The Borrower or the
Investment Manager shall:
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, Debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for the Borrower or the
Investment Manager, as the case may be, or any property of the Borrower or the
Investment Manager, as the case may be, in any bankruptcy, reorganization,
Debt arrangement or other case or proceeding under any bankruptcy or
insolvency law, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or the Investment
Manager, as the case may be, or for a substantial part of the property of the
Borrower or the Investment Manager, as the case may be, in any bankruptcy,
reorganization, Debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, and such trustee, receiver, sequestrator or
other custodian shall not be discharged within sixty (60) days;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, Debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution, winding up or
liquidation proceeding, in respect of the Borrower or the Investment Manager,
as the case may be, and, if such case or proceeding is not commenced by the
Borrower or the Investment Manager, as the case may be, such case or
proceeding shall be consented to or acquiesced in by the Borrower or the
Investment Manager, as the case may be, or shall result in the entry of an
order for relief or shall remain for sixty (60) days undismissed; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
Section 7.1.10 Failure of Valid, Perfected, First-Priority Lien. Any
Lien on any Collateral granted shall, at any time after delivery of the
respective Collateral Documents, cease to be fully valid and perfected as a
first-priority Lien, except (i) for Permitted Liens, (ii) Liens on Fund
Investments the Market Value of which if excluded from the Collateral would
not cause a violation of the Over-Collateralization Test (without giving
effect to any applicable grace period) or (iii) as otherwise expressly
permitted hereunder or under such Collateral Documents.
Section 7.1.11 Investment Company Act. The Borrower ceases to be a
registered "investment company" under the Investment Company Act for more than
ninety (90) days.
Section 7.1.12 Dissolution or Termination of Borrower. The Borrower
shall be dissolved or terminated, and not reconstituted substantially
simultaneously therewith (and in no event later than the same day) in
accordance with the
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Borrower Organization Agreement and in compliance with the provisions of
Section 6.2.7.
Section 7.1.13 Removal of the Investment Manager; Trigger Event. The
Investment Manager is removed or terminated pursuant to the Investment
Management Agreement and the Required Lenders have not approved the new
Investment Manager within thirty (30) days, or a Trigger Event shall have
occurred and the Required Lenders shall not have approved a "Replacement
Principal" appointed in accordance with the Investment Management Agreement.
Section 7.2 Action if Bankruptcy. If any Event of Default described
in Section 7.1.9 shall occur with respect to the Borrower, then the
outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable, and
all the Commitments shall be automatically terminated, without further notice,
demand or presentment, all of which are expressly waived.
Section 7.3 Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in Section 7.1.9) shall occur for
any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent shall, upon the direction of the Required Lenders (or,
solely in the case of an Event of Default under Section 7.1.3 relating to a
default in the observance of the covenant set forth in Section 6.1.15 or a
violation of Section 18 of the Investment Company Act, or any successor
provision thereto, and any applicable "asset coverage" maintenance
requirements set forth therein, any Lender), by notice or demand to the
Borrower, declare a Commitment Termination Event, declare the outstanding
principal amount of the Loans and all other Obligations to be due and payable
and terminate all Commitments, whereupon the full unpaid amount of such Loans
and any and all other Obligations shall be and become immediately due and
payable, without further notice, demand, or presentment, all of which are
expressly waived.
Section 7.4 Notice of Default. If a Default occurs and is continuing,
the Administrative Agent shall provide to the Lenders, ▇▇▇▇▇'▇ and S&P written
notice of the uncured Default promptly (and, in any event, within two (2)
Business Days) after the Administrative Agent becomes aware of such Default.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Section 8.1 Appointment. The Lenders hereby designate Wachovia
Capital Markets, LLC as Administrative Agent to act as specified herein and in
the other Credit Documents. Each Lender hereby irrevocably authorizes, and
each Holder of any Lender Note by the acceptance of such Lender Note or any
assignee or transferee of an interest under this Agreement pursuant to
Sections 3.4.7 or 9.4 shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Credit Documents and any other instruments
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and agreements referred to herein or therein and to exercise such powers and
to perform such duties hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof and
such other powers as are reasonably incidental thereto. The Administrative
Agent may perform any of its duties hereunder or under the other Credit
Documents by or through its respective officers, directors, agents, employees
or affiliates.
Section 8.2 Nature of Duties. The Administrative Agent shall not have
any duties or responsibilities except those expressly set forth in this
Agreement and the Collateral Documents. Neither the Administrative Agent nor
any of its officers, directors, agents, employees or affiliates shall be
liable for any action taken or omitted by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, unless caused by
its or their gross negligence or willful misconduct. The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Credit Document a fiduciary relationship in respect of any Lender or the
Holder of any Lender Note or Loan; and nothing in this Agreement or any other
Credit Document, expressed or implied, is intended to or shall be so construed
as to impose upon the Administrative Agent any obligations in respect of this
Agreement or any other Credit Document except as expressly set forth herein or
therein.
Section 8.3 Lack of Reliance on the Administrative Agent.
Independently and without reliance upon the Administrative Agent, each Lender
and the Holder of each Lender Note or Loan, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of the Borrower in
connection with the making and the continuance of the Loans and the taking or
not taking of any action in connection herewith and (ii) its own appraisal of
the creditworthiness of the Borrower and, except as expressly provided in this
Agreement, the Administrative Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the Holder
of any Lender Note or Loan with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or
at any time or times thereafter. Neither the Administrative Agent nor any of
its Affiliates, directors, officers, agents, or employees shall be responsible
to or have any duty to ascertain, inquire into or verify for any Lender, or
the Holder of any Lender Note or Loan, any recitals, statements, information,
representations or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution, effectiveness,
genuineness, validity, enforceability, perfection, collectibility, priority or
sufficiency of this Agreement or any other Credit Document or the financial
condition of the Borrower or be required to make any inquiry concerning either
the performance or observance of any of the terms, provisions or conditions of
this Agreement or any other Credit Document, or the satisfaction of any of the
conditions precedent set forth in Article IV or the financial condition of the
Borrower or the existence or possible existence of any Default or Event of
Default.
Without limiting the generality of the foregoing, the Administrative
Agent shall not be responsible to any of the Lenders or the Holders of each
Lender Note or Loan
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for any mistake, omission or error of judgment with respect to the value or
valuation, genuineness, enforceability, existence, perfection or priority of
any of the Collateral.
Section 8.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders,
with respect to any act or action (including failure to act) in connection
with this Agreement or any other Credit Document, the Administrative Agent
shall be entitled to refrain from such act or taking such action unless and
until the Administrative Agent shall have received instructions from the
Required Lenders or all Lenders, as applicable, and the Administrative Agent
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, none of any Lender or the Holder of any Lender Note or
Loan shall have any right of action whatsoever against the Administrative
Agent as a result of the Administrative Agent acting or refraining from acting
hereunder or under any other Credit Document in accordance with the
instructions of the Required Lenders.
Section 8.5 Reliance. The Administrative Agent (and each Lender)
shall be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, e-mail, cablegram, radiogram, order or other document or
telephone message signed, sent or made by any Person that the Administrative
Agent (or Lender, as applicable) believed to be the proper Person, and, with
respect to all legal matters pertaining to this Agreement and any other Credit
Document and its duties hereunder and thereunder, upon advice of counsel
selected by the Administrative Agent (which may be counsel for the Borrower).
Section 8.6 [Reserved]
Section 8.7 The Administrative Agent in Its Individual Capacity. With
respect to its obligation to make Loans under this Agreement, the
Administrative Agent shall have the rights and powers specified herein for a
"Lender" and may exercise the same rights and powers as though it were not
performing the duties specified herein; and the term "Lenders," "Majority
Lenders," "Required Lenders," "Holders of Lender Notes" or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The Administrative Agent and
its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of banking, trust or other business customary and usual for the
Administrative Agent or its Affiliates with the Borrower or any Affiliate as
if it were not performing the duties specified herein, and may accept fees and
other consideration from the Borrower for services in connection with this
Agreement and otherwise without having to account for the same to the Lenders.
Section 8.8 Holders of Lender Notes or Loans. The Administrative
Agent may deem and treat the payee of any Lender Note or Loan as the owner
thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have
been filed with the Administrative Agent. Any request, authority or consent of
any Person who, at the time of making such request or giving such authority or
consent, is the Holder of any Lender Note or Loan shall be conclusive and
binding on any subsequent holder, transferee, assignee or
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indorsee, as the case may be, of such Lender Note or Loan or of any Lender
Note or Lender Notes issued in exchange therefor.
Section 8.9 Resignation by the Administrative Agent.
(a) The Administrative Agent may resign from the performance of
all its functions and duties hereunder and/or under the other Credit Documents
at any time by giving thirty (30) Business Days' prior written notice to the
Borrower, ▇▇▇▇▇'▇, S&P and the Lenders. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to
subsection 8.9(b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Lenders
shall appoint a successor Administrative Agent hereunder or thereunder (with
notice of such appointment provided to ▇▇▇▇▇'▇ and S&P), who shall be a
commercial bank, investment bank, financial institution or trust company that
is, unless an Event of Default has occurred and is continuing, reasonably
acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such thirty (30) Business Day period, the Administrative
Agent, with (unless an Event of Default has occurred and is continuing) the
consent of the Borrower (which consent shall not be unreasonably withheld),
shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed
pursuant to subsection 8.9(b) or (c) above by the thirtieth (30th) Business
Day after the date such notice of resignation was given by the Administrative
Agent, the Administrative Agent's resignation shall become effective and the
Required Lenders shall thereafter perform all the duties of the Administrative
Agent hereunder and/or under any other Credit Document until such time, if
any, as the Required Lenders appoint a successor Administrative Agent as
provided above.
Section 8.10 Consultation with Experts. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
public accountants and other experts, in each case of nationally recognized
standing, selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts and this Agreement.
Section 8.11 Administrative Agent's Fees. The Borrower shall pay to
the Administrative Agent for the Administrative Agent's own account fees for
its services (or those of its Affiliates) in administering this Agreement in
the amounts and at the times heretofore mutually agreed by the Borrower and
the Administrative Agent.
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ARTICLE IX
MISCELLANEOUS
Section 9.1 Payment of Expenses, etc. The Borrower agrees to: (i)
whether or not the transactions herein contemplated are consummated, pay all
reasonable out-of-pocket costs and expenses (A) of the Administrative Agent,
the Lead Manager, and the Co-Lead Manager in connection with the negotiation,
preparation, execution and delivery of the Credit Documents and the documents
and instruments referred to therein and any amendment, waiver or consent
relating thereto (including the reasonable fees and disbursements of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP), (B) of the Administrative Agent in
connection with third party contractors hired by the Administrative Agent to
deliver reports, notices and other documents to the Lenders and (C) of the
Administrative Agent, the Lead Manager, and the Co-Lead Manager and each of
the Lenders (and, in the case of a Lender that is a Designated CP Conduit, its
Designated CP Conduit Committed Lenders and, in each case of a Lender that is
an Other CP Conduit, its Liquidity Providers) in connection with any Default
under or the enforcement of the Credit Documents and the documents and
instruments referred to therein (including the reasonable fees and
disbursements of (1) one counsel for the Administrative Agent, the Lead
Manager, and the Co-Lead Manager (which counsel shall be selected by the
Administrative Agent) and (2) upon prior written notice to the Borrower, one
counsel for all of the other Lenders); (ii) pay and hold each of the Lenders
(and, in the case of a Lender that is a Designated CP Conduit, its Designated
CP Conduit Committed Lenders and, in each case of a Lender that is an Other CP
Conduit, its Liquidity Providers) and the Administrative Agent harmless from
and against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and hold each of the Lenders harmless from
and against any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such Lender) to
pay such taxes; and (iii) indemnify each Lender and the Administrative Agent,
their respective officers, directors, employees, representatives and agents
(and, in the case of a Lender that is a Designated CP Conduit, its Designated
CP Conduit Committed Lenders and, in each case of a Lender that is an Other CP
Conduit, its Liquidity Providers) from and hold each of them harmless against
any and all losses, liabilities, obligations, penalties, actions, judgments,
claims, damages, costs or expenses incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Lender (or,
in the case of a Lender that is a Designated CP Conduit, its Designated CP
Conduit Committed Lenders and, in each case of a Lender that is an Other CP
Conduit, its Liquidity Providers) is a party thereto) related to the entering
into and/or performance by the Borrower of any Credit Document or the use by
the Borrower of the proceeds of any Loans hereunder or the consummation of any
transactions contemplated in any Credit Document or Loan Purchase Agreement,
including the reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other proceeding (but
excluding any such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful misconduct of the
Person to be indemnified) or (b) the actual or alleged presence of Hazardous
Materials in the air, surface water, groundwater, surface or subsurface of any
real property owned or at any time operated by the Borrower, the
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generation, storage, transportation or disposal of Hazardous Materials at any
location whether or not owned or operated by the Borrower, the noncompliance
of any real property owned or at any time operated by the Borrower with
Federal, state and local laws, regulations, and ordinances (including
applicable permits hereunder) applicable to any such real property, or any
Environmental Claim asserted against the Borrower, or any such real property,
including, in each case, the reasonable disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding in all cases any losses, liabilities, claims,
damages or expenses to the extent incurred by reason of the gross negligence
or willful misconduct of the Person to be indemnified). To the extent that the
undertaking to indemnify, pay or hold harmless the Administrative Agent, the
Lead Manager, the Co-Lead Manager or any Lender (or, in the case of a Lender
that is a Designated CP Conduit, its Designated CP Conduit Committed Lenders
and, in each case of a Lender that is an Other CP Conduit , its Liquidity
Providers) set forth in the preceding sentence may be unenforceable because it
violates any law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the indemnified
liabilities which is permissible under applicable law. Neither the Borrower
nor any indemnified Person shall be liable for any indirect or consequential
damages in connection with its activities related to this Agreement or any
other Credit Documents. The agreements in this Section 9.1 shall survive
repayment of the Loans and all other amounts payable hereunder.
Section 9.2 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, if an Event of Default then exists, each Lender
is hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
Debt at any time held or owing by such Lender (including by branches and
agencies of such Lender wherever located) to or for the credit or the account
of the Borrower against and on account of the Obligations and liabilities of
the Borrower to such Lender under this Agreement or under any of the other
Credit Documents, including all interests in Obligations of the Borrower
purchased by such Lender pursuant to subsection 9.6(b), and all other claims
of any nature or description arising out of or connected with this Agreement
or any other Credit Document, irrespective of whether or not such Lender shall
have made any demand hereunder and although said Obligations, liabilities or
claims, or any of them, shall be contingent or unmatured.
Section 9.3 Notices. Except as otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in
writing (including telecopier or e-mail) and mailed, e-mailed, telecopied or
delivered, if to the Borrower, ▇▇▇▇▇'▇, S&P, the Administrative Agent, and/or
any Lender, at its address specified on Schedule 2 hereto (provided, that any
notice provided for hereunder to a Person that is not in the United States
shall be by facsimile or e-mail transmission if such Person has provided
current facsimile or e-mail contact information) or, in the case of any Lender
becoming party hereto after the Closing Date, the related Assignment Agreement
(provided, that in the case of the Borrower's obligation to deliver any notice
or other communication to an assignee Lender, the Administrative Agent shall
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have furnished the Assignment Agreement including such address to the
Borrower); or, at such other address as shall be designated by any party in a
written notice to the other parties hereto. Any such notice or communication
shall be deemed to have been given or made as of: the date so delivered, if
delivered personally or by overnight courier; when receipt is acknowledged, if
telecopied or e-mailed; and five (5) calendar days after mailing if sent by
registered or certified mail (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
The Borrower and the Administrative Agent hereby acknowledge that each CP
Conduit has appointed a Funding Agent to act as its agent under this Agreement
and, if applicable, the Loan Purchase Agreement or the Liquidity Agreement to
which it is a party. Unless otherwise instructed by a CP Conduit, copies of
all notices, requests, demands and other documents to be delivered to such CP
Conduit pursuant to the terms hereof shall be delivered to the Funding Agent
with respect to such CP Conduit at such address as has been notified in
writing by such CP Conduit to the Borrower and the Administrative Agent.
Section 9.4 Benefit of Agreement.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors and assigns of the parties hereto to the extent permitted under
this Section 9.4 and (to the extent explicitly set forth herein) the Liquidity
Providers for each Lender that is an Other CP Conduit and Designated CP
Conduit Committed Lenders for each Lender that is a Designated CP Conduit;
provided, that, except as provided in Section 6.2.7, the Borrower may not
assign or transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and the Administrative Agent. Each Lender
may at any time grant participations in any of its rights hereunder or under
any of the Lender Notes or Loans to another financial institution or other
Person (including any CP Conduit); provided, that (x) unless such grant is to
a Lender or a special purpose corporation administered by a Lender, such
Lender shall give notice to the Borrower of the identity of such participant
and (y) in the case of any such participation (other than a participation to a
Designated CP Conduit Committed Lender), the participant shall not have any
rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Lender in respect of such participation to
be those set forth in the agreement executed by such Lender in favor of the
participant relating thereto) and all amounts payable by the Borrower
hereunder shall be determined as if such Lender had not sold such
participation, except that the participant shall be entitled to the benefits
of Sections 3.4.4 and 3.6 to the extent that such Lender would be entitled to
such benefits if the participation had not been entered into or sold; and
provided, further, no Lender shall transfer, grant or assign any participation
(other than to a Lender or a special purpose corporation administered by a
Lender) under which the participant shall have rights to approve any amendment
to or waiver of this Agreement or any other Credit Documents except to the
extent such amendment or waiver would (x) extend the final scheduled maturity
of any Loan or Lender Note in which such participant is participating or waive
any mandatory prepayment thereof, or reduce the rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of the
applicability of any post-default increase in interest rates), or reduce the
principal amount thereof, or increase such participant's participating
interest in any Commitment over the amount thereof then
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in effect (it being
understood that a waiver of any Default or Event of Default or a mandatory
prepayment, shall not constitute a change in the terms of any Commitment), (y)
release all or substantially all of the Collateral (in each case except as
expressly provided in the Credit Documents), or (z) consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement (except as provided in Section 6.2.7).
(b) Notwithstanding the foregoing, with the consent of the
Administrative Agent and, so long as no payment Default or Event of Default is
then in existence, the consent of the Borrower (which consents shall not be
unreasonably withheld or delayed in the case of assignments to commercial
banks, savings and loan associations, insurance companies and limited
liability companies or finance companies administered by the foregoing types
of financial institutions or their Affiliates, but which may otherwise be
withheld in the sole discretion of the Borrower), any Lender may assign all or
a portion of its rights and obligations under this Agreement (including, such
Lender's Commitment, Loans, Lender Note and other Obligations) to one or more
commercial banks, savings and loan associations, insurance companies,
investment companies, business development companies, other financial
institutions or other corporations, business trusts, partnerships or funds not
formed for the specific purpose of acquiring the Loans (including one or more
Lenders); provided that, (i) in the event of an assignment by a Lender to an
Affiliate of such Lender, by a Designated CP Conduit to its Designated CP
Conduit Committed Lender or by an Other CP Conduit to its Liquidity Provider,
no such consents shall be required, and (ii) in the event of an assignment by
any Lender to a CP Conduit, such CP Conduit shall be an Approved Lender. No
assignment pursuant to the immediately preceding sentence shall be in an
aggregate amount less than (unless the entire Commitment and outstanding Loans
of the assigning Lender are so assigned) (x) if to (I) an Affiliate of such
Lender or (II) another Lender (or, in the case of a Lender that is a
Designated CP Conduit, its Designated CP Conduit Committed Lenders or, in the
case of a Lender that is an Other CP Conduit, its Liquidity Provider),
$1,000,000 or (y) if to an institution other than (I) an Affiliate of such
Lender or (II) another Lender, $25,000,000. If any Lender so sells or assigns
all or a part of its rights hereunder or under the Lender Notes or Loans, any
reference in this Agreement or the Lender Notes or Loans to such assigning
Lender shall thereafter refer to such Lender and to the respective assignee to
the extent of their respective interests and the respective assignee shall
have, to the extent of such assignment (unless otherwise provided therein),
the same rights and benefits as it would if it were such assigning Lender.
Each assignment pursuant to this subsection 9.4(b) shall be effected (other
than in the case of an assignment by a Lender that is a Designated CP Conduit
to its Designated CP Conduit Committed Lenders or in the case of an assignment
by a Lender that is an Other CP Conduit to its Liquidity Providers) by the
assigning Lender and the assignee Lender executing an Assignment Agreement
(the "Assignment Agreement") substantially in the form of Exhibit D
(appropriately completed); provided, that in the case of any assignment to a
CP Conduit that is not already a Lender, the effectiveness of such assignment
shall be conditioned upon the execution and delivery of either (I) in the case
of an Other CP Conduit, a Liquidity Agreement supporting such Other CP Conduit
or (II) in the case of a Designated CP Conduit, a Loan Purchase Agreement or a
similar agreement pursuant to which the counterparty thereof will be obligated
to purchase such Designated CP
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Conduit's rights and obligations under this Agreement in accordance with the
terms therein. In the event of (and at the time of) any such assignment,
either the assigning Lender or the assignee Lender shall pay to the
Administrative Agent a nonrefundable assignment fee of $3,500 (other than (i)
in the case of an assignment by a Lender that is a Designated CP Conduit to
its Designated CP Conduit Committed Lenders or in the case of an assignment by
a Lender that is an Other CP Conduit to its Liquidity Providers and (ii) in
the case of an assignment to an Affiliate of a Lender), and at the time of any
assignment pursuant to this subsection 9.4(b), (i) this Agreement shall be
deemed to be amended to reflect the Commitment of the respective assignee
(which shall result in a direct reduction to the Commitment of the assigning
Lender) and of the other Lenders, and (ii) the Borrower shall, upon request,
issue new Lender Notes to the respective assignee and to the assigning Lender
in conformity with the requirements of Sections 3.2 and 9.16 and the
Administrative Agent shall reflect such assignment in the Register. No
transfer or assignment under this subsection 9.4(b) (other than in the case of
an assignment by a Lender that is a Designated CP Conduit to its Designated CP
Conduit Committed Lenders or an assignment by a Lender that is an Other CP
Conduit to its Liquidity Providers) shall be effective until recorded by the
Administrative Agent on the Register pursuant to Section 9.16. To the extent
of any assignment pursuant to this subsection 9.4(b), the assigning Lender
shall be relieved of its obligations hereunder with respect to its assigned
Commitments. At the time of each assignment pursuant to this subsection 9.4(b)
to a Person which is not already a Lender hereunder and which is not a United
States person (as defined in subsection 3.6(b)) for Federal income tax
purposes, the respective assignee Lender shall provide to the Borrower and the
Administrative Agent the appropriate IRS Forms (and, if applicable, a Tax
Certificate) described in Section 3.6. To the extent that an assignment of all
or any portion of a Lender's Commitments and related outstanding Obligations
pursuant to Section 3.4.7 or this subsection 9.4(b) (other than an assignment
by a Designated CP Conduit to its Designated CP Conduit Committed Lender)
would, at the time of such assignment, result in increased costs under
Sections 3.4.4, 3.4.5 or 3.6 which exceed those being charged, if any, by the
respective assigning Lender prior to such assignment, then the Borrower shall
not be obligated to pay such excess increased costs (although the Borrower
shall be obligated to pay any other increased costs of the type described
above resulting from changes giving rise to such increased costs after the
date of the respective assignment). Each Lender and the Borrower agree to
execute such documents (including amendments to this Agreement and the other
Credit Documents) as shall be reasonably necessary to effect the foregoing.
Nothing in this Agreement shall prevent or prohibit any Lender from pledging
its Lender Notes or Loans to a Federal Reserve Bank in support of borrowings
made by such Lender from such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this Section 9.4,
any transfer or assignment of the interests or obligations of any Lender
hereunder (other than any assignment by a Withdrawing Lender pursuant to
Section 2.3.4) or any grant of participation therein shall not be permitted
and be absolutely null and void and shall vest no rights in the purported
transferee,
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assignee or participant (such purported transferee, assignee or participant, a
"Disqualified Transferee"), if such transfer, assignment or grant (i) is
consummated or attempted to be consummated in compliance with the provisions
of this Section 9.4 on the basis of incorrect or false certifications by the
purported transferee, assignee or participant or (ii) would require the
Borrower to (x) file a registration statement with the Securities and Exchange
Commission or (y) qualify the Loans under the "Blue Sky" laws of any State. If
any Disqualified Transferee shall become a Lender or participant in violation
of the provisions of this Section 9.4, then, upon the discovery by or due
notification of the Administrative Agent that such transfer, assignment or
participation was not in fact permitted by this Section 9.4, the last
preceding Lender (that owned the interest purported to be owned by such
Disqualified Transferee) that would not be a Disqualified Transferee shall be
restored to all rights in such interest retroactively to the date of
registration of transfer, assignment or participation. Any action or
non-action of a Disqualified Transferee taken while such Disqualified
Transferee was the holder of such interest shall be without effect hereunder,
but shall be deemed ratified by such last preceding Lender unless such last
preceding Lender objects, by a superseding notice to the Administrative Agent
delivered within five (5) Business Days of the later of (x) it being restored
to its rights in such interest as described in the preceding sentence or (y)
its receipt of notice of such action or non-action by the Disqualified
Transferee. The Administrative Agent shall be under no liability for any
transfer, assignment or participation that is not in fact permitted by this
Section 9.4 or for making any payments in respect of the interest the subject
thereof or taking any other action with respect to such transfer, assignment
or participation, unless the Administrative Agent had actual knowledge of the
inaccuracy or insufficiency of any certification or representation upon which
such transfer, assignment or participation was based. The Administrative Agent
shall be entitled to recover from any Disqualified Transferee all payments
made to it in respect of the interest in the obligations it acquired. Any such
payments so recovered by the Administrative Agent shall be paid and delivered
by the Administrative Agent to the last preceding Lender that would not be a
Disqualified Transferee as aforesaid. Without limiting the foregoing, any
Lender that made a purported transfer, assignment or participation to a
Disqualified Transferee shall be required to cause the retransfer of such of
the interest so transferred within three (3) Business Days after first
becoming aware that such transfer, assignment or participation was to a
Disqualified Transferee.
(d) Each Lender initially party to this Agreement hereby
represents, and each Person that becomes a Lender pursuant to an assignment
permitted by this Section 9.4 shall, upon its becoming party to this
Agreement, represent that it is an Eligible Transferee (and, in the case of a
CP Conduit, it is also an Eligible Transferee) which makes loans in the
ordinary course of its business and that it shall make or acquire Loans for
its own account in the ordinary course of such business; provided, that
subject to the preceding subsections 9.4(a), (b) and (c), the disposition of
any promissory notes or other evidences of or interests in Debt under this
Agreement held by such Lender shall at all times be within its exclusive
control.
(e) Each of the parties hereto acknowledges that each Lender
which is a Designated CP Conduit may from time to time grant, or agree to
grant, an assignment of its interests in its Loans, this Agreement and all of
the other Transaction Documents, by way of collateral assignment or
conveyance, to its respective Designated CP Conduit Committed Lenders, subject
to the applicable requirements of this Section 9.4.
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(f) Each of the parties hereto acknowledges that each Lender
which is an Other CP Conduit and each SPC may from time to time grant, or
agree to grant, an assignment of its interests in its Loans, this Agreement
and all of the other Transaction Documents, by way of collateral assignment or
conveyance, to its respective Liquidity Providers, subject to the requirement
that any assignee thereof must be an Approved Lender.
(g) Each Designated CP Conduit hereby agrees that in the event
such Designated CP Conduit or its Designated CP Conduit Committed Lender shall
cease to be an Approved Lender, it will transfer pursuant to subsection 9.4(b)
all of its rights and obligations under this Agreement (and the applicable
Loan Purchase Agreement) to an Approved Lender (which is also an Eligible
Transferee) within 60 days after the date on which it first obtains knowledge
that such Designated CP Conduit or its Designated CP Conduit Committed Lender,
as the case may be, is not an Approved Lender, provided that no Designated CP
Conduit or Designated CP Conduit Committed Lender shall be required to so
transfer its rights and obligations unless its corresponding Designated CP
Conduit Committed Lender or Designated CP Conduit is permitted to transfer
simultaneously its rights and obligations hereunder.
(h) Each Other CP Conduit hereby agrees that in the event such
Other CP Conduit shall cease to be an Approved Lender, it will transfer
pursuant to subsection 9.4(b) all of its rights and obligations under this
Agreement to an Approved Lender (which is also an Eligible Transferee) within
60 days after the date on which it first obtains knowledge that such Other CP
Conduits is not an Approved Lender.
Section 9.5 No Waiver; Remedies Cumulative. No failure or delay on
the part of the Administrative Agent or any Lender in exercising any right,
power or privilege hereunder or under any other Credit Document and no course
of dealing between the Borrower and the Administrative Agent or any Lender
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Credit Document
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies
herein expressly provided are cumulative and not exclusive of any rights or
remedies which the Administrative Agent or any Lender would otherwise have. No
notice to or demand on the Borrower in any case shall entitle the Borrower or
any other Person to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Administrative Agent
or the Lenders to any other or further action in any circumstances without
notice or demand.
Section 9.6 Payments Pro Rata.
(a) The Administrative Agent agrees that promptly after its
receipt of each payment from or on behalf of the Borrower in respect of any
Obligations hereunder, it shall distribute such payment to the Lenders (other
than (x) any Lender that has expressly waived its right to receive its pro
rata share thereof or (y) solely with respect to payments to be made to
withdrawing Lenders, any Lender that has agreed to
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the extension contemplated by Section 2.3) pro rata based upon their
respective shares, if any, of the Obligations with respect to which such
payment was received.
(b) Each of the Lenders agrees that, if it should receive any
amount hereunder (whether by voluntary payment, by realization upon security,
by the exercise of the right of setoff or banker's lien, by counterclaim or
cross action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans or fees, of a sum which with respect to the related sum or sums
received by other Lenders is in a greater proportion than the total of such
Obligation then owed and due to such Lender bears to the total of such
Obligation then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall purchase for
cash without recourse or warranty from the other Lenders an interest in the
Obligations to such other Lenders in such amount as shall result in a
proportional participation by all of the Lenders in such disproportionate sum
received; provided, that if all or any portion of such excess amount is
thereafter recovered from such Lender, such purchase shall be rescinded and
the purchase price restored to the extent of such recovery, but without
interest.
(c) Notwithstanding anything to the contrary contained herein,
the provisions of the preceding subsections 9.6(a) and (b) shall be subject to
the express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Lenders as opposed to Defaulting
Lenders.
Section 9.7 Calculations; Computations.
(a) The financial statements to be furnished to the Lenders
pursuant hereto shall be made and prepared in accordance with GAAP
consistently applied throughout the periods involved (except as set forth in
the notes thereto or as otherwise disclosed in writing by the Borrower to the
Lenders).
(b) All computations of interest hereunder shall be made based
on the actual number of days elapsed over a year of 360 days (or, in the case
of any Loan bearing interest at the Base Rate, the Euro Base Rate, or the
Swingline Base Rate, 365/366 days).
Section 9.8 Governing Law; Submission to Jurisdiction; Venue; Waiver
of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF NEW
YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO IRREVOCABLY ACCEPTS
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FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION
OVER IT, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF
THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER IT. EACH OF
THE PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, OR
BY HAND DELIVERY, AT ITS ADDRESS FOR NOTICES PURSUANT TO SECTION 9.3, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR
PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE
OF PROCESS WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY PARTY HERETO OR ANY LENDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE BORROWER IN ANY OTHER JURISDICTION.
(b) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF
THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
SUBSECTION 9.8(a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT
TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(d) This Section 9.8 shall survive the termination of this Agreement
and the payment of all obligations.
Section 9.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall
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together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
Section 9.10 Effectiveness. This Agreement shall become effective on
the Closing Date provided that the Borrower and each of the Lenders shall have
signed a copy hereof (whether the same or different copies) and shall have
delivered the same to the Administrative Agent or, in the case of the Lenders,
shall have given to the Administrative Agent facsimile or e-mail transmission
notice (actually received) at such office that the same has been signed and
mailed to it.
Section 9.11 Headings Descriptive. The headings of the several
sections and subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of any provision
of this Agreement.
Section 9.12 Amendment or Waiver.
(a) Neither this Agreement or any other Credit Document nor any
terms hereof or thereof may be changed, waived, discharged or terminated
unless such change, waiver, discharge or termination is in writing signed by
the Borrower and the Majority Lenders; and unless, if such change, waiver,
discharge or termination would have a Material Adverse Effect (as determined
by the Borrower and the Administrative Agent), the Rating Agency Condition is
met; provided, that no such change, waiver, discharge or termination shall,
without the consent of each Lender (other than a Defaulting Lender) (with
Obligations being directly affected thereby in the case of the following
clause (i)), (i) extend any time fixed for the payment of any principal of the
Loans (other than as provided in Section 2.3), or reduce the rate or extend
the time of payment of interest (other than as a result of waiving the
applicability of any post-default increase in interest rates) or fees thereon,
or reduce the principal amount thereof, or change the currency of payment
thereof, (ii) release all or a substantial portion of the Collateral (in each
case except as expressly provided in the Credit Documents), (iii) amend,
modify
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or waive any provision of Section 9.6 or this subsection 9.12(a), (iv)
reduce the percentage specified in the definition of Required Lenders (it
being understood that, with the consent of the Required Lenders, additional
extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the
extensions of Commitments are included on the Closing Date), (v) consent to
the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement (except as permitted by Section 6.2.7), (vi)
waive any mandatory prepayment of Loans required pursuant to subsection
3.3.1(b) or (vii) amend, modify or waive any provision of Section 9.20;
provided, further, that no such change, waiver, discharge or termination shall
(x) increase the Commitments or (except as permitted hereunder) change the
ratable share of the Commitments of any Lender over the amount thereof then in
effect without the consent of such Lender (it being understood that waivers or
modifications (otherwise permitted hereunder) of conditions precedent,
covenants, Defaults or Events of Default shall not constitute an increase of
the Commitment of any Lender, and that an increase in the available portion of
any Commitment of any Lender shall not constitute an increase in the
Commitment of such Lender), (y) without the consent of the applicable
Swingline Lender, amend, modify or waive any provision of this Agreement which
relates to the rights or obligations of such Swingline Lender in its capacity
as Swingline Lender or (z) without the consent of the Administrative Agent
amend, modify or waive any provision of Article VIII as the same applies to
the Administrative Agent, or any other provision as it relates to the rights
or obligations of the Administrative Agent. In addition, any proposed change,
waiver, discharge or termination of any provisions of this Agreement or any
other Credit Document that would materially adversely affect any CP Conduit
shall, to the extent the program documents of such CP Conduit so require (as
notified to the Borrower and the Administrative Agent by such CP Conduit), be
subject to rating confirmation of such CP Conduit's commercial paper notes by
each of Fitch, ▇▇▇▇▇'▇ and S&P to the extent it is then rating such commercial
paper notes; provided, that to the extent any such rating confirmation that is
so required is not obtained, such CP Conduit shall be deemed to be a
non-consenting Lender for purposes of subsection 9.12(b) and (c). Any such
waiver and any such amendment, supplement or modification shall apply equally
to each of the Lenders and shall be binding upon the Borrower, the Lenders,
the Administrative Agent and all future holders of the Loans and the Lender
Notes. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former positions and rights
hereunder and under the other Credit Documents, and any Default waived shall
be deemed to be cured and not continuing, to the extent so provided herein;
but no such waiver shall extend to any subsequent or other Default, or impair
any right consequent thereon.
(b) If, in connection with any proposed change, waiver,
discharge or termination to any of the provisions of this Agreement or the
Lender Notes as contemplated by clauses (i) through (vi), inclusive, of the
first proviso of Section 9.12, the consent of the Required Lenders is obtained
but the consent of one or more of the other Lenders whose consent is required
is not obtained, then the Borrower shall have the right, subject to clause (d)
below, to replace each such non-consenting Lender or Lenders (so long as all
non-consenting Lenders are so replaced) with one or more Replacement Lenders
pursuant to Section 3.4.7 so long as at the time of such replacement, each
such Replacement Lender consents to the proposed change, waiver, discharge or
termination; provided, that the Borrower shall not have the right to replace a
Lender solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to the second or
third proviso of subsection 9.12(a).
(c) If, in connection with any proposed amendment,
modification, termination or waiver to any of the provisions of this Agreement
or the Lender Notes as contemplated by clauses (i) through (vi), inclusive, of
the first proviso of subsection 9.12(a), the consent of the Required Lenders
is obtained but the consent of one or more of such other Lenders whose consent
is required is not obtained, then the Borrower shall have the right to
terminate such non-consenting Lender's Commitment and repay in full its
outstanding Loans and satisfy all other Obligations to such non-consenting
Lender; provided, that the Borrower shall not have the right to terminate such
non-consenting Lender's Commitment and repay in full its outstanding Loans
pursuant to this subsection 9.12(c) if, immediately after the termination of
such Lender's Commitment, the Loans of all Lenders would exceed the Total
Maximum Commitment. Any reduction in Commitments made pursuant to this
subsection 9.12(c) shall
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permanently reduce the amount resulting from each calculation of Total Maximum
Commitment thereafter.
Section 9.13 Survival. All indemnities set forth herein including in
Sections 3.4.4, 3.4.5, 3.6 and 9.1 shall survive the termination of this
Agreement and the making and repayment of the Loans.
Section 9.14 Domicile of Loans. Subject to the limitations of Section
9.4, each Lender may transfer and carry its Loans at, to or for the account of
any branch office, Subsidiary or Affiliate of such Lender; provided, that the
Borrower shall not be responsible for costs arising under Sections 3.4.4 and
3.6 resulting from any such transfer (other than a transfer pursuant to
Section 3.4.6) to the extent not otherwise applicable to such Lender prior to
such transfer.
Section 9.15 Confidentiality.
(a) Subject to Section 9.4, each Lender shall (and shall cause
its employees, directors, agents, attorneys, accountants and other
professional advisors to) hold all non-public information obtained pursuant to
the requirements of this Agreement, in accordance with its customary procedure
for handling confidential information of this nature and in accordance with
safe and sound banking practices, and in any event may make disclosure (i)
reasonably required by any bona fide actual or potential transferee or
participant in connection with this contemplated transfer of any Loans or
participation therein or an Affiliate, Designated CP Conduit Committed Lender
or Liquidity Provider of such Lender (including attorneys, legal advisors,
accountants and consultants of such Lender, Affiliate, Liquidity Provider or
Designated CP Conduit Committed Lender or any rating agency then rating the
commercial paper notes of such Lender if it is a CP Conduit) (so long as such
transferee, participant or Affiliate, Liquidity Provider or Designated CP
Conduit Committed Lender agrees to be bound by the provisions of this Section
9.15), (ii) to such Lender's employees who have a need to know such
information, directors, agents, attorneys, accountants and other professional
advisors; provided that the confidential information shall be used solely for
the purpose of administrating this Agreement, including the evaluation of the
Borrower and its Affiliates, and such confidential information shall be used
in compliance with the legal and internal control requirements of such Lender,
(iii) which has been publicly disclosed other than in breach of this
Agreement, (iv) as required or requested by any governmental agency or
representative thereof or pursuant to any law, rule, regulation, direction,
request or order of any judicial, administrative, or regulatory authority;
provided that unless prohibited by applicable law or court order, such Lender
shall make reasonable efforts to inform the Borrower reasonably in advance of
any such disclosure, (v) pursuant to legal process or in any suit, action,
proceeding or investigation (whether in law or in equity or pursuant to
arbitration) involving any of the Credit Documents for the purpose of
defending itself, reducing its liability, or protecting or exercising any of
its claims, rights, remedies, or interests under or in connection with any of
the Credit Documents; provided that unless prohibited by applicable law or
court order, such Lender shall make reasonable efforts to inform the Borrower
reasonably in advance of any such disclosure, (vi) in connection with the
exercise of any remedy hereunder or (vii) of the existence of this Agreement;
provided,
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that, in no event shall any Lender, any Affiliate thereof or any Liquidity
Provider be obligated or required to return any materials furnished by the
Borrower. A Person that ceases to be a Lender shall continue to be bound by
the provisions of this Section 9.15.
(b) Anything herein to the contrary notwithstanding, the
Borrower hereby consents to the disclosure of any nonpublic information with
respect to it to any rating agency, commercial paper dealer, administrator or
provider of a surety, guaranty or credit or liquidity enhancement to a Lender
and to any officers, directors, employees, outside accountants, advisors, and
attorneys of any of the foregoing; provided each such Person has a reasonable
need to know such information, uses such information solely for purposes of
providing the aforementioned services or functions to such Lender and is
informed of the confidential nature of such information.
Section 9.16 Register. The Borrower hereby designates the
Administrative Agent to serve as the Borrower's agent, solely for purposes of
this Section 9.16, to maintain a register (the "Register") on which it shall
record the Commitments from time to time of each of the Lenders, the Loans
made by each of the Lenders and each repayment in respect of the principal
amount of the Loans of each Lender. A Lender may also request that its Voting
Percentage be divided on a pro rata basis into two (or more) portions by
written notice delivered to the Administrative Agent, in which case the
Administrative Agent shall record the respective portions of such Lender's
Voting Percentage in the Register; provided, however, that in the event that a
Lender votes any portion of its Voting Percentage against any proposal
requiring the Lenders' consent hereunder, the Borrower shall be entitled to
treat such Lender as a non-consenting Lender for all purposes hereunder,
including Section 9.12 hereof, for so long as any portion of such Lender's
Voting Percentage remains in opposition to such proposal. Failure to make any
such recordation, or any error in such recordation, shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Lender,
the transfer of the Commitments of such Lender and the rights to the principal
of, and interest on, any Loan made pursuant to such Commitments (other than in
the case of any transfer by a Lender that is a CP Conduit to its Designated CP
Conduit Committed Lenders or Liquidity Provider) shall not be effective until
such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitments and Loans and prior to
such recordation all amounts owing to the transferor with respect to such
Commitments and Loans shall remain owing to the transferor. The registration
of assignment or transfer of all or part of any Commitments and Loans (other
than in the case of any transfer by a Lender that is a CP Conduit to its
Designated CP Conduit Committed Lenders or Liquidity Provider) shall be
recorded by the Administrative Agent on the Register only upon the receipt and
acceptance by the Administrative Agent of (i) a properly executed and
delivered Assignment Agreement pursuant to subsection 9.4(b) and (ii) the
assigning or transferor Lender's Lender Notes (if any) whereupon one or more
new Lender Notes (upon request) in the same aggregate principal amount shall
be issued to the assigning or transferor Lender and/or the new Lender and the
old Lender Notes shall be returned to the Borrower marked "canceled". Subject
to the third sentence of this Section 9.16, the entries in the Register shall
be conclusive in the absence of manifest error and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a
76
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
Section 9.17 Lender Affiliate Securities.
(a) The Administrative Agent may from time to time give notice
to the Borrower listing by name each person who is an affiliate of any Lender
for purposes of Section 23A.
(b) The Borrower agrees that it shall not transfer any
Affiliate Security as Collateral pursuant to the Pledge and Intercreditor
Agreement. Promptly following the time it shall have learned that an Affiliate
Security that should not have been transferred in accordance with the first
sentence of this subsection 9.17(b) has been transferred, the Borrower shall
cause the Custodian to transfer such Affiliate Security to an account
established by the Borrower pursuant to the Custodial Agreement that does not
hold Collateral. Nothing in this subsection 9.17(b) or in this Agreement shall
be construed to designate as an Excluded Investment ineligible as Collateral
under the Pledge and Intercreditor Agreement any investment that was not an
Affiliate Security at the time it was delivered to the Administrative Agent
pursuant to the Pledge and Intercreditor Agreement.
Section 9.18 Marshalling; Recapture. None of the Administrative Agent
or any Lender shall be under any obligation to marshal any assets in favor of
the Borrower or any other party or against or in payment of any or all of the
Obligations. To the extent any Lender receives any payment by or on behalf of
the Borrower, which payment or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid
to the Borrower or its estate, trustee, receiver, custodian or any other party
under any bankruptcy law, state or Federal law, common law or equitable cause,
then to the extent of such payment or repayment, the obligation or part
thereof which has been paid, reduced or satisfied by the amount so repaid
shall be reinstated by the amount so repaid and shall be included within the
liabilities of the Borrower to such Lender as of the date such initial
payment, reduction or satisfaction occurred.
Section 9.19 Lender Representations, etc.; Non-Recourse Obligations.
(a) By executing this Agreement or an Assignment Agreement,
each Lender represents, warrants and covenants as of the Closing Date, with
respect to Lenders party hereto on such date, or as of the date of the
effectiveness of any assignment to such Lender, in the case of all other
Lenders (either such date, the "Relevant Date"), as follows:
(i) neither it nor any of its representatives or
agents has offered or shall offer any interest in this
Agreement by means of a general solicitation or general
advertising, including advertisements, articles, notices
or
77
other communications published in any newspaper, magazine
or similar medium or broadcast over television or radio or
publicized through the Internet, or any seminar or meeting
whose attendees have been invited by any general
solicitation or general advertising;
(ii) as of the Relevant Date with respect to such
Lender, it has not granted or transferred or agreed to
grant or transfer, any participation or other interest in
this Agreement to any person except in accordance with
Section 9.4; and
(iii) its unsupported long-term senior debt
obligations are rated, or its claims paying or financial
strength rating is, at least (x)(1) "A2" by ▇▇▇▇▇'▇ or (2)
"A3" by ▇▇▇▇▇'▇ and is placed on a credit watch with
positive implications by ▇▇▇▇▇'▇, and (y)(1) "A" by S&P or
(2) "A-" by S&P and is placed on a credit watch with
positive implications by S&P (or its obligations are
guaranteed by entities with such ratings), except in the
case of an CP Conduit, in which case its commercial paper
notes have short-term ratings of at least "P-1" by ▇▇▇▇▇'▇
and "A-1" by S&P.
(b) The Administrative Agent and the Lenders acknowledge and
understand that in respect of the Obligations of the Borrower (including
indemnification Obligations), such Persons shall have recourse only to the
assets of the Borrower (subject to the provisions of the Pledge and
Intercreditor Agreement, including any priority of payment provision that may
be applicable thereunder) and that they shall have no recourse to the assets
of any incorporator, director, officer, employee, agent, stockholder, manager
or member of any holder of Preferred Interests, any Common Interest Holder, or
any past, present or future manager or member of the Borrower, any past,
present or future stockholder, manager, member or partner of any such member
or any of their respective past, present or future incorporators, directors,
officers, employees, agents, stockholders, managers, members or partners
(including, without limitation, the Investment Manager or the Co-Manager or
any of their respective Affiliates (other than the Borrower)), other than
interests (or investments) in the Borrower and its assets, and in no event
shall any such Person be held liable, personally or otherwise, with respect to
the indebtedness evidenced by the Lender Notes, the Loans or for any other
obligations under this Agreement, whether by virtue of any statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise, all such
liability being expressly waived and released by the Administrative Agent and
each Lender; provided that nothing set forth herein shall limit any liability
that the Investment Manager may have pursuant to the Investment Management
Agreement.
(c) No recourse under or with respect to any obligation,
covenant or agreement (including, without limitation, the payment of any fee
or any other obligations) of any Lender as contained in this Agreement or any
other agreement, instrument or document entered into by it pursuant hereto or
in connection herewith shall be had against any administrator of such Lender
or any incorporator, affiliate, stockholder, officer, employee or director of
such Lender or of any such administrator, as such, by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any
78
statute or otherwise; it being expressly agreed and understood that the
agreements of such Lender contained in this Agreement and all of the other
agreements, instruments and documents entered into by it pursuant hereto or in
connection herewith are, in each case, solely the corporate obligations of
such Lender, and that no personal liability whatsoever shall attach to or be
incurred by any administrator of such Lender or any incorporator, stockholder,
affiliate, officer, employee or director of such Lender or of any such
administrator, as such, or any other of them, under or by reason of any of the
obligations, covenants or agreements of such Lender contained in this
Agreement or in any other such instruments, documents or agreements, or that
are implied therefrom, and that any and all personal liability of every such
administrator of such Lender and each incorporator, stockholder, affiliate,
officer, employee or director of such Lender or of any such administrator, or
any of them, for breaches by such Lender of any such obligations, covenants or
agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement.
(d) Notwithstanding anything in this Agreement to the contrary,
any Lender that is a CP Conduit shall not have any obligation to pay any
amount required to be paid by it hereunder in excess of any amount available
to such CP Conduit after paying or making provision for the payment of its
commercial paper notes. All payment obligations of any such CP Conduit
hereunder are contingent on the availability of funds in excess of the amounts
necessary to pay its commercial paper notes; and each of the other parties
hereto agrees that it will not have a claim under Section 101(5) of the
Bankruptcy Code if and to the extent that any such payment obligation owed to
it by such CP Conduit exceeds the amount available to such CP Conduit to pay
such amount after paying or making provision for the payment of its commercial
paper notes.
(e) The provisions of this Section 9.19 shall survive the
termination of this Agreement.
Section 9.20 No Petition.
(a) Each of the parties hereto hereby covenants and agrees
that, prior to the date which is one year and one day after the payment in
full of all outstanding commercial paper notes and other indebtedness for
borrowed money of any CP Conduit or SPC, including a Swingline Lender if it is
a CP Conduit or SPC, such Person shall not institute against, or join any
other Person in instituting against, such CP Conduit or SPC, including a
Swingline Lender if it is a CP Conduit or SPC, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar
proceedings. This provision shall survive the termination of this Agreement
and the making and repayment of the Loans.
(b) Each of the parties hereto (other than the Borrower)
covenants and agrees that, prior to the date that is one year and one day
after the payment in full of all Senior Indebtedness and Preferred Interests,
no party hereto shall institute against the Borrower any bankruptcy,
reorganization, arrangement, insolvency or
79
liquidation proceedings or other similar proceedings. This provision shall
survive the termination of this Agreement.
Section 9.21 Integration. This Agreement and the other Credit
Documents represent the entire agreement of the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof and thereof,
and there are no promises, undertakings, representations or warranties by the
Administrative Agent or any Lender relative to the subject matter hereof or
thereof not expressly set forth or referred to herein or in the other Credit
Documents.
Section 9.22 Acknowledgment. The Borrower hereby acknowledges that
none of the parties hereto has any fiduciary relationship with or fiduciary
duty to the Borrower pursuant to the terms of this Agreement, and the
relationship between the Lenders and the Administrative Agent, on the one
hand, and the Borrower, on the other hand, in connection herewith is solely
that of debtor and creditor.
Section 9.23 Judgment Currency; Currency Indemnity.
(a) If, for the purposes of obtaining judgment in any court, it
is necessary to convert a sum due hereunder in any currency (the "Original
Currency") into another currency (the "Other Currency"), the parties hereto
agree, to the fullest extent permitted by law, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent or a Lender could purchase the Original Currency with
such Other Currency in New York, New York on the Business Day immediately
preceding the day on which any such judgment, or any relevant part thereof, is
given.
(b) The obligations of the Borrower in respect of any sum due
from it to the Administrative Agent or any Lender hereunder shall,
notwithstanding any judgment in such Other Currency, be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent
or any Lender of any sum adjudged to be so due in such Other Currency, the
Administrative Agent or any such Lender may in accordance with normal banking
procedures purchase the Original Currency with such Other Currency; if the
Original Currency so purchased is less than the sum originally due the
Administrative Agent or any such Lender in the Original Currency, the Borrower
agrees, as a separate and independent obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or any such Lender against
such loss, within five (5) Business Days of demand therefor and if the
Original Currency so purchased exceeds the sum originally due to the
Administrative Agent or any such Lender in the Original Currency, such Lender
shall remit such excess to the Borrower. The Borrower waives any right it may
have in any jurisdiction to pay any amount hereunder in a currency other than
that in which it is expressed to be payable.
Section 9.24 Collateral Valuation Schedule. Each of the ▇▇▇▇▇'▇
Collateral Valuation Schedule and S&P Collateral Valuation Schedule is hereby
incorporated by reference in its entirety into this Agreement, and, by signing
this Agreement, each party hereto hereby agrees to the terms and provisions of
the ▇▇▇▇▇'▇
80
Collateral Valuation Schedule and S&P Collateral Valuation Schedule, which
shall apply to the parties hereto in all respects as set forth therein and in
this Agreement.
Section 9.25 Consequences of Lender Ratings Downgrade.
Notwithstanding any provision herein to the contrary, in the event that the
unsupported long-term senior debt obligations or, if applicable, the claims
paying or financial strength rating of any Lender (or, alternatively, if
applicable, the guarantor of such Lender's obligations hereunder) is not, at
least (x)(1) "A2" by ▇▇▇▇▇'▇ or (2) "A3" by ▇▇▇▇▇'▇ and on a credit watch with
positive implications by ▇▇▇▇▇'▇, and (y)(1) "A" by S&P or (2) "A-" by S&P and
on a credit watch with positive implications by S&P (or its obligations are
not guaranteed by entities with such ratings) (or, in the case of a CP
Conduit, its commercial paper notes do have short term ratings of at least
"P-1" by ▇▇▇▇▇'▇ and "A-1" by S&P), the Borrower may, at its option upon at
least ten (10) Business Days' notice to the Administrative Agent and such
Lender, replace such Lender as contemplated by, and in the manner provided in
Section 3.4.7. The Administrative Agent shall notify ▇▇▇▇▇'▇ and S&P as soon
as practicable of such Lender or guarantor who fails to have or maintain the
ratings described above.
[Signatures begin on the next page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
▇▇▇▇▇▇▇▇▇▇ OPPORTUNITIES
PARTNERS V, LP, as Borrower
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
WACHOVIA CAPITAL MARKETS, LLC,
as Administrative Agent, Lead
Manager and Joint Bookrunner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Manager and Joint
Bookrunner
By:
-------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Swingline
Lender
By:
-------------------------------
Name:
Title:
[Signature Page to Credit Agreement]
WACHOVIA BANK, N.A., LONDON
BRANCH, as a Swingline Lender
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇
Title: Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Revolving
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, CFA
Title: Vice President
WACHOVIA BANK, N.A., LONDON
BRANCH, as a Revolving Lender
By:
-----------------------------
Name:
Title:
BANK OF AMERICA, N.A., as a
Revolving Lender
By:
-----------------------------
Name:
Title:
NIEUW AMSTERDAM RECEIVABLES CORP.,
as a Revolving Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
[Signature Page to Credit Agreement]
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Designated CP Conduit
Committed Lender to Nieuw
Amsterdam Receivables Corp.,
as a Revolving Lender
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
[Signature Page to Credit Agreement]
ANNEX X
DEFINITIONS
Any defined terms used herein shall have the respective meanings set
forth herein.
"Acceleration Notice" means an Acceleration Notice under and as
defined in the Pledge and Intercreditor Agreement.
"Account Property" shall have the meaning set forth in the Custodial
Agreement.
"Adjusted Contributed Company Capital" means, at any date,
Contributed Company Capital at such date minus Expensed Transaction Fees.
"Administrative Agent" means Wachovia Capital Markets, LLC, in its
capacity as agent for the Lenders under this Agreement and under the other
Credit Documents and any successor thereto in such capacity.
"Administrative Expenses" has the meaning set forth in the Pledge and
Intercreditor Agreement.
"Advance Amount" means, at any date of determination, subject to
Section 1.8, the lower of (i) the Senior Advance Amount calculated using the
▇▇▇▇▇'▇ Valuation Procedures and (ii) the Senior Advance Amount calculated
using the S&P Valuation Procedures.
"Advance Amount Cushion" has the meaning set forth in Section 6.2.5.
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with, such
former Person, it being understood and agreed that TCP, TCO, the Investment
Manager and their respective Affiliates shall constitute Affiliates of the
Borrower. As used in this definition, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Affiliate List" means a list of persons who are affiliates of any
Lender for purposes of Section 23A, as the same may from time to time be
delivered by the Administrative Agent to the Borrower in accordance with
Section 9.17.
"Affiliate Security" means any security issued by a Person who is (a)
an affiliate of any Lender for purposes of Section 23A, and (b) listed in the
most recent Affiliate List provided by the Administrative Agent to the
Borrower.
X-1
"Aggregate Percentage" means, with respect to any Lender, a
percentage equal to (x) the aggregate amount of such Lender's Revolving
Commitment divided by (y) the aggregate of the Total Revolving Commitments.
"Agreement" is defined in the preamble.
"Applicable Law" with respect to any Person or matter means any law,
rule, regulation, order, decree or other requirement having the force of law
relating to such Person or matter and, where applicable, any interpretation
thereof by any Person having jurisdiction with respect thereto or charged with
the administration or interpretation thereof.
"Applicable Margin" means, with respect to any LIBOR Loan, Cost of
Funds Rate Dollar Loan, EURIBOR Loan, Cost of Funds Rate Euro Loan or
Swingline Loan, 0.35% per annum; provided, that in the event that the rating
of the Loans hereunder has been withdrawn or downgraded to "Aa2" or lower by
▇▇▇▇▇'▇ or "AA" or lower by S&P, the Applicable Margin for any such LIBOR
Loan, Cost of Funds Rate Dollar Loan, EURIBOR Loan, Cost of Funds Rate Euro
Loan or Swingline Loan will increase to 0.425% per annum; provided, further,
that following the occurrence and during the continuance of any Default, the
Applicable Margin for any such LIBOR Loan, Cost of Funds Rate Dollar Loan,
EURIBOR Loan, Cost of Funds Rate Euro Loan or Swingline Loan shall be 3.00%
per annum.
"Approval" means each and every approval, consent, filing and
registration by or with any Federal, state or other Governmental Authority
necessary to authorize or permit the consummation of the transactions
contemplated by the Transaction Documents, including the execution, delivery
or performance of this Agreement or any other Credit Document or for the
validity or enforceability thereof.
"Approved Counterparty" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Approved Dealer" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Approved Exchange" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Approved Investment Banking Firm" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Approved Lender" means a financial institution (including a
securities broker-dealer or Affiliate thereof) or other institutional lender
(including any CP Conduit) with (i) short-term ratings of at least "P-1" by
▇▇▇▇▇'▇ and "A-1" by S&P or (ii) long-term ratings or, if applicable, claims
paying or financial strength ratings of at least (x)(1) "A2" by ▇▇▇▇▇'▇ or (2)
"A3" by ▇▇▇▇▇'▇ and is placed on a credit watch with positive implications by
▇▇▇▇▇'▇ and (y)(1) "A" by S&P or (2) "A-" by S&P and is placed on a credit
watch with positive implications by S&P (or, if such entity does not have debt
X-2
which is rated by ▇▇▇▇▇'▇ and S&P but such entity's obligations are
unconditionally and irrevocably guaranteed by entities with such ratings) or,
in the case of a CP Conduit, a commercial paper note short-term rating of
"P-1" by ▇▇▇▇▇'▇ and at least "A-1" by S&P provided that (a) in the case of an
Approved Lender that is a Designated CP Conduit, such Designated CP Conduit's
Commitments hereunder must be fully supported by one or more Designated CP
Conduit Committed Lenders which is an Approved Lender, and (b) in the case of
an Approved Lender that is an Other CP Conduit, such Other CP Conduit shall
have entered into a Liquidity Agreement with a Liquidity Provider which is an
Approved Lender.
"Approved Pricing Service" has the meaning assigned to such term in
the applicable Collateral Valuation Schedule.
"Approved Source" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Approved Third-Party Appraisal" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Asset Category" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Assignment Agreement" has the meaning set forth in subsection
9.4(b).
"Authorized Officer" means, with respect to the Borrower, the Chief
Executive Officer, the President, the Secretary, the Chief Financial Officer
or another Person whose signatures and incumbency shall have been certified to
the Lenders pursuant to Section 4.1.1 or such other representatives or agents
as are thereafter certified in a similar manner from time to time and with
respect to the Investment Manager, those of the Investment Manager's officers,
managing members, members, representatives and agents whose signatures and
incumbency shall have been certified to the Lenders pursuant to Section 4.1.1
or such other representatives or agents as are thereafter certified in a
similar manner from time to time.
"Babson" means Babson Capital Management LLC, a Delaware
limited liability company.
"Bank Loans" has the meaning assigned to such term in the applicable
Collateral Valuation Schedule.
"Bankruptcy Remote Entity" means a special purpose entity formed
under the laws of one of the States of the United States or the District of
Columbia which is organized and operated in a manner designed to insulate it
from the risk of becoming the subject of bankruptcy, reorganization,
liquidation or other similar proceedings under any bankruptcy or insolvency
law.
X-3
"Base Rate" means, for any period, the higher of (a) the Federal
Funds Effective Rate for such period, plus 0.50% per annum, and (b) the Prime
Lending Rate for such period, plus 0.35% per annum.
"Basel II Framework" means the framework for measuring the capital
adequacy of banks in the form set out in the paper entitled "International
Convergence of Capital Measurement and Capital Standards, a Revised Framework"
issued by the Basel Committee on Banking Supervision in June 2004 in the form
existing on the date of this Agreement.
"Borrower" is defined in the preamble.
"Borrower Organization Agreement" means the Limited Partnership
Agreement of the Borrower dated as of December 15, 2006, as the same may be
amended, supplemented or otherwise modified from time to time pursuant to the
terms thereof and Section 6.2.9.
"Borrowing" means (a) the Revolving Loans made by all Revolving
Lenders on any Business Day and (b) the Swingline Loans made by the Swingline
Lenders on any Business Day, in each case in accordance with Section 3.1.
"Borrowing Base" means, at any date of determination, an amount equal
to the Advance Amount as of such date (determined in accordance with Section
6.1.1 and determined after giving effect to the application of the proceeds of
any Loan(s) requested on such date).
"Borrowing Request" means a loan request and certificate duly
executed by the Borrower substantially in the form of Exhibit A.
"Business Day" means (i) for all purposes other than as covered by
clause (ii) below, any day except a Saturday, Sunday or other day on which
commercial banks are authorized or obligated by law, regulation or executive
order to close in Charlotte, North Carolina, Columbia, Maryland, Minneapolis,
Minnesota, New York City or Los Angeles, California, and (ii) with respect to
all notices, borrowings and determinations in connection with, and payments of
principal and interest on, LIBOR Loans, EURIBOR Loans, Cost of Funds Rate
Dollar Loans, Cost of Funds Rate Euro Loans and Swingline Loans, any day which
is a Business Day described in clause (i) and which is also a TARGET Day and a
day on which banks in London, England are open for dealings in Dollar or Euro
deposits, as applicable, in the London interbank market.
"Capital Stock" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Cash" has the meaning assigned to such term in the applicable
Collateral Valuation Schedule.
"Cash Equivalent" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
X-4
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. ss. 9601 et seq.
"Closed-end Company" means a "Closed-end company" as defined in
Section 5(a)(2) of the Investment Company Act.
"Closing Date" means December 15, 2006.
"Co-Lead Manager" is defined in the preamble.
"Co-Management Agreement" means the Co-Management Agreement, dated as
of the Closing Date, among the Borrower, the Investment Manager and the
Co-Manager, as amended, supplemented or otherwise modified from time to time
pursuant to the terms thereof.
"Co-Manager" means Babson, in its capacity as co-manager under the
Co-Management Agreement, unless and until a replacement co-manager shall have
become co-manager pursuant to the Co-Management Agreement, and thereafter
"Co-Manager" shall mean such replacement co-manager.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of
this Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" has the meaning set forth in the Pledge and
Intercreditor Agreement.
"Collateral Documents" means the Pledge and Intercreditor Agreement,
the Custodial Agreement and any other agreement, instrument or document
executed and delivered by or on behalf of the Borrower in connection with the
foregoing or pursuant to which a Lien is granted in accordance with the terms
of the Pledge and Intercreditor Agreement as security for any of the Senior
Lender Indebtedness.
"Collateral Valuation Schedule" means the ▇▇▇▇▇'▇ Collateral
Valuation Schedule and/or the S&P Collateral Valuation Schedule.
"Commitment" means each Revolving Commitment.
"Commitment Reduction Amount" is defined in Section 2.2.
"Commitment Reduction Date" is defined in Section 2.2.
"Commitment Reduction Premium" is defined in Section 2.2.
"Commitment Termination Date" means the earliest of (a) the Scheduled
Commitment Termination Date (or, if an extension is made pursuant to Section
2.3.1, the
X-5
applicable Extension Date), (b) the date of any termination of all of the
Commitments in accordance with Section 2.2 and (c) the date of occurrence of
any Commitment Termination Event.
"Commitment Termination Event" means the earlier of (a) automatically
and without notice or further action, the occurrence of any Event of Default
described in Section 7.1.9 with respect to the Borrower or (b) the occurrence
and continuation of any other Event of Default under this Agreement and the
declaration of the Loans to be due and payable pursuant to Section 7.3 or, in
the absence of such declaration, a direction from the Required Lenders to the
Administrative Agent, to the extent permitted under this Agreement, to give
notice to the Borrower of the termination of the Commitments of the Lenders.
"Common Interest Holder" means, at any date, with respect to any
outstanding Common Interest, the record holder of such Common Interest as
reflected in the register held by the Borrower.
"Common Interest Holders' Escrow Account" has the meaning set forth
in the Custodial Agreement.
"Common Interests" means the common limited partner interests (or
other form of common equity) issued by the Borrower pursuant to the Borrower
Organization Agreement.
"Company Equity" means, at any date, the equity of the Borrower
represented by the Common Interests (determined in accordance with GAAP as of
such date); provided, that for purposes of Sections 6.1.15 and 6.2.5, Company
Equity will not be reduced by Expensed Transaction Fees of the Borrower or by
Interest Rate Hedging Transactions entered into pursuant to Section 6.1.16 and
will be increased by the net contributions from any Subordinated Equity
Security. For purposes of this Agreement, Company Equity shall be deemed to be
the Company Equity as of the end of the most recently completed fiscal quarter
for which financial statements are available as adjusted to give effect to any
capital contributions and distributions that occurred after such fiscal
quarter.
"Company Tax Distribution" means any distribution that the Borrower
reasonably and in good faith estimates should be made by it to the Common
Interest Holders (i) to provide such Persons funds to pay taxes in respect of
the Preferred Interests or Common Interests held by such Persons or (ii) in
order to preserve the U.S. federal income tax status of the Borrower as a
regulated investment company.
"Consent Notice" is defined in Section 2.3.1.
"Consent Period" is defined in Section 2.3.1.
"Continuing Lender" is defined in Section 2.3.1.
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"Contractual Obligation" means, relative to any Person, any provision
of any security issued by such Person or of any instrument, agreement or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contributed Company Capital" has the meaning assigned to such term
in the applicable Collateral Valuation Schedule.
"Cost of Funds Rate" means, with respect to a Cost of Funds Rate
Dollar Loan or Cost of Funds Rate Euro Loan, the rate determined pursuant to
Section 3.4.1(i) (not to exceed LIBOR plus 0.20% per annum, in the case of
Cost of Funds Rate Dollar Loans, or EURIBOR plus 0.20% per annum, in the case
of Cost of Funds Rate Euro Loans).
"Cost of Funds Rate Dollar Loan" means any Revolving Loan denominated
in Dollars made by a Lender that is a CP Conduit or an SPC.
"Cost of Funds Rate Euro Loan" means any Revolving Loan denominated
in Euros made by a Lender that is a CP Conduit or an SPC.
"CP Conduit" means a Lender which is a Bankruptcy Remote Entity, and
which obtains a portion of its financing, either directly or indirectly,
through the issuance of commercial paper notes.
"Credit Document" means this Agreement, the Lender Notes, the
Collateral Documents, each Borrowing Request and any other agreement,
instrument or document executed and delivered by or on behalf of the Borrower
in connection with the foregoing, but excluding, for the avoidance of doubt,
the Investment Management Agreement, the Co-Management Agreement and the
Borrower's Organic Documents.
"Custodial Account" has the meaning set forth in the Custodial
Agreement.
"Custodial Agreement" means the custodial agreement dated as of the
Closing Date among the Borrower, the Custodian, the Administrative Agent, and
the Secured Parties Representative, as the same may be amended, modified or
supplemented from time to time pursuant to the terms hereof and thereof.
"Custodian" means ▇▇▇▇▇ Fargo Bank, National Association, acting in
its capacity as Custodian under the Custodial Agreement and any successor
thereto in such capacity.
"Debt" of any Person means, at any date, without duplication: (i) all
obligations of such Person for borrowed money; (ii) all obligations of such
Person evidenced by bonds, debentures, notes 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
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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, it being
acknowledged and understood that Debt shall in no event include any
obligations under any Hedging and Short Sale Transactions.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in accordance with the provisions of this Agreement,
become an Event of Default; provided, that a "Default" shall not include a
failure by the Borrower to comply with Section 6.1.18 of this Agreement so
long as such failure is cured within the applicable grace period specified
therein.
"Defaulting Lender" means any Lender with respect to which a Lender
Default is in effect.
"Defensive Hedge Transaction" has the meaning assigned to such term
in the applicable Collateral Valuation Schedule.
"Designated CP Conduit" means any CP Conduit that is a party to a
Loan Purchase Agreement.
"Designated CP Conduit Committed Lender" means an Approved Lender
that has committed to purchase the Loans of a Designated CP Conduit and make
Loans to the Borrower pursuant to Section 2.1 in lieu of such Designated CP
Conduit in accordance with the terms of a Loan Purchase Agreement and any
permitted successor or assign.
"Determination Date" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Disqualified Transferee" is defined in subsection 9.4(c).
"Dollar" or "$" means dollars in lawful currency of the United States
of America.
"Dollar Equivalents" means, as to any amount denominated in Euros,
the equivalent amount in Dollars as determined by the Administrative Agent at
the relevant time on the basis of the Exchange Mechanism.
"Eligible Counterparty" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Eligible Investments" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Eligible Transferee" means and includes a commercial bank, savings
and loan association, insurance company, investment company, business
development
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company, other financial institution or other corporation, business trust,
partnership or fund not formed for the specific purpose of acquiring the
Loans.
"Environmental Claim" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, administrative investigations or proceedings
relating in any way to any Environmental Law or any permit issued, or any
approval given, under any such Environmental Law (hereafter, "Claims"),
including (a) any and all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any applicable Environmental Law and (b) any and all Claims by any
third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief resulting from Hazardous Materials arising
from alleged injury or threat of injury to health, safety or the environment.
"Environmental Law" means any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, rule of common law or
written and binding policy or guide, now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or Hazardous Materials, including
CERCLA; RCRA; the Federal Water Pollution Control Act, as amended, 33 U.S.C.
ss. 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 7401 et
seq.; the Clean Air Act, 42 U.S.C. ss. 7401 et seq.; the Safe Drinking Water
Act, 42 U.S.C. ss. 3808 et seq.; the Oil Pollution Act of 1990, 33 U.S.C. ss.
2701 et seq.; and any applicable state and local or foreign counterparts or
equivalents.
"Equity Capital Commitments" means irrevocable commitments of the
Common Interest Holders to provide an aggregate amount of $725,000,000 to be
contributed as equity capital to the Borrower, as such commitments may be
increased, up to a maximum aggregate amount of $1,500,000,000, on or prior to
March 31, 2007.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute from time to time, and the regulations
promulgated and rulings issued thereunder. Section references to ERISA are to
ERISA, as in effect at the date of this Agreement and any subsequent
provisions of ERISA, amendatory thereof, supplemental thereto or substituted
therefor.
"ERISA Affiliate" means each person (as defined in Section 3(9) of
ERISA) which together with the Borrower would be deemed to be a "single
employer" within the meaning of Section 414 of the Code.
"EURIBOR" means, with respect to each Interest Period for any EURIBOR
Loan, an interest rate per annum determined by the Administrative Agent equal
to:
(i) the rate appearing on the Screen as EURIBOR Rate for one-month
deposits in Euros as of 11:00 a.m. Brussels time two TARGET Days before the
applicable funding date (with respect to the initial Interest Period
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for such Borrowing) and two TARGET Days before the first day of the applicable
Interest Period (with respect to all subsequent Interest Periods for such
Borrowing); or
(ii) if no such rate appears on the Screen at such time and day, then
EURIBOR shall be equal to the arithmetic mean (calculated by the
Administrative Agent) of the offered quotations of four EURIBOR Reference
Banks for one-month deposits in Euros as of 11:00 a.m. Brussels time two
TARGET Days before the applicable funding date (with respect to the initial
Interest Period for such Borrowing) and two TARGET Days before the first day
of the applicable Interest Period (with respect to all subsequent Interest
Periods for such Borrowing); provided that if, on any such date, at least two
of the EURIBOR Reference Banks provide such quotations, EURIBOR shall equal
the arithmetic mean of such quotations;
provided, however, that if (i) for the relevant Interest Period the rate
appearing on the Screen as EURIBOR Rate for deposits in Euro is not available
and none or only one of the EURIBOR Reference Banks supplies a rate to the
Administrative Agent to determine the EURIBOR for the relevant Interest
Period; or (ii) before close of business in London on the relevant TARGET Day
for the relevant Interest Period, the Administrative Agent receives
notifications from any Lenders representing, in aggregate, more than 50% of
the aggregate Revolving Commitments of the Lenders then in effect, that the
cost to it of obtaining matching deposits in the relevant interbank market
would be in excess of EURIBOR, then the Euro Base Rate shall be the interest
rate.
"EURIBOR Loan" means a Loan (excluding, for the avoidance of doubt,
any Cost of Funds Rate Euro Loan, LIBOR Loan, Cost of Funds Rate Dollar Loan
or Swingline Loan) bearing interest at a rate determined by reference to
EURIBOR.
"EURIBOR Reference Banks" means four major banks in the relevant
interbank market selected by the Administrative Agent.
"Euro" or "(euro)"means the lawful currency of the Participating
Member States.
"Euro Base Rate" means, for any period, the main refinancing rate as
set by the European Central Bank, plus 0.50% per annum.
"Event of Default" is defined in Section 7.1.
"Excess Amount" as of any Business Day, for purposes of this
Agreement, means the amount, if any, by which the sum of the Outstanding
Principal Amount of the Loans as of the close of business of such Business Day
exceeds the Advance Amount as of such close of business.
"Excess Date" means any Business Day on which there is an Excess
Amount. An Excess Date shall always follow a Business Day (i) that does not
have an
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Excess Amount or (ii) on which the Borrower has satisfied the
Over-Collateralization Test by complying with clause (i) of Section 6.1.18.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and any successor statute thereto.
"Exchange Mechanism" means (a) in the case of a Borrowing of
Swingline Loans denominated in Euros, the Dollar Equivalent calculated by the
Administrative Agent by using the spot selling rate at which the
Administrative Agent offers to sell Euros for Dollars in the London foreign
exchange market at approximately 11:00 a.m., London time for delivery on the
day on which the related Borrowing Request is received or deemed received, and
such spot selling rate shall be applicable to the related Swingline Loan until
the applicable Swingline Lender has been reimbursed and (b) in the case of a
Borrowing of EURIBOR Loans or Cost of Funds Rate Euro Loans, the Dollar
Equivalent calculated by the Administrative Agent on the day which is two
Business Days prior to the first day of the related Interest Period of such
Borrowing by using the spot selling rate at which the Administrative Agent
offers to sell Euros for Dollars in the London foreign exchange market at
approximately 11:00 a.m., London time for delivery two Business Days later,
and such spot selling rate shall be applicable to the related EURIBOR Loan or
Cost of Funds Rate Euro Loan for the related Interest Period; provided, that,
on any day, the Administrative Agent may calculate the Dollar Equivalent of
all Borrowings outstanding in Euros by using the spot selling rate at which
the Administrative Agent offers to sell Euros for Dollars in the London
foreign exchange market at approximately 11:00 a.m., London time for delivery
on the same day.
"Excluded Investments" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Expensed Transaction Fees" means, as of any date, all legal, tax,
accounting software and systems, and other organizational expenditures
incurred in connection with this Agreement or the issuance of the Preferred
Interests, the formation and capitalization of the Borrower and related
entities (including without limitation any special purpose vehicles that issue
securities backed by or representing interests in the Common Interests
approved by the Borrower) and the fees due to the initial purchasers in
connection with the issuance of the Preferred Interests and to the agents and
Lenders in connection with the placement of the Loans, to the extent such
amounts have been expensed, or capitalized and amortized, whether or not any
such amount is actually expensed, or capitalized and amortized, as approved by
the Independent Public Accountant of Issuer, on or prior to such date.
"Extension Date" is defined in Section 2.3.1.
"Extension Notice" is defined in Section 2.3.1.
"Facility Commitment" means the aggregate amount of all Commitments
of the Lenders from time to time. The original Facility Commitment is
$483,000,000.
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"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate 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 arranged by Federal Funds brokers, as published for such day
(or, if such day is not a Business Day, for the preceding Business Day) by the
FRB, 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 Administrative Agent from three Federal Funds brokers of recognized
standing selected by the Administrative Agent.
"Fee Letter" means the fee letter dated as of the Closing Date from
the Administrative Agent to the Borrower.
"Final Maturity Payment Default Notice" means a Final Maturity
Payment Default Notice under and as defined in the Pledge and Intercreditor
Agreement.
"Fitch" means Fitch, Inc., or any successor thereto.
"FRB" means the Federal Reserve Bank of New York.
"FRS Board" means the Board of Governors of the Federal Reserve
System and, as applicable, the staff thereof.
"Fund Investments" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Funding Agent" means, with respect to each CP Conduit, the bank or
other financial institution acting as the agent of such CP Conduit under this
Agreement and the Loan Purchase Agreement or the Liquidity Agreement to which
such CP Conduit and such agent are parties.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or
other obligation of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other
X-12
manner the obligee of such Debt or other obligation of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hazardous Materials" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation, transformers or other equipment that
contained, electric fluid containing levels of polychlorinated biphenyls, and
radon gas; (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous waste," "hazardous
materials," "extremely hazardous waste," "restricted hazardous waste," "toxic
substances," "toxic pollutants," "contaminants," or "pollutants," or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, exposure to which is prohibited, limited or
regulated by any Governmental Authority.
"Hedging and Short Sale Transaction" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Hedging SPEs" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"High Yield Bonds" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Holder" means, at any date, with respect to any outstanding Lender
Note or Loan, the Lender registered with the Administrative Agent on the
Register as the record owner of such Lender Note (or the Loans and Obligations
represented by such Lender Note) or Loan.
"Incur," "Incurred" and "Incurrence" have the meaning set forth in
Section 6.2.2 of this Agreement.
"Independent Public Accountant" means one of the four largest
independent public accounting firms in the United States as of the Closing
Date or any independent public accounting firm reasonably satisfactory to the
Administrative Agent.
"Industry" has the meaning assigned to such term in the applicable
Collateral Valuation Schedule.
"Interest Period" means, with respect to any LIBOR Loan, EURIBOR
Loan, Cost of Funds Rate Dollar Loan or Cost of Funds Rate Euro Loan, the
Interest Period applicable thereto, as determined pursuant to Section 3.4.2.
"Interest Rate Hedging Transaction" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
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"Investment Company Act" means the United States Investment Company
Act of 1940, as amended.
"Investment Holding Subsidiaries" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Investment Management Agreement" means the Investment Management
Agreement dated as of the Closing Date between the Borrower and the Investment
Manager relating to the management of the investment portfolio of the
Borrower, as may be amended, supplemented or otherwise modified from time to
time pursuant to the terms thereof and Section 6.2.9.
"Investment Manager" means TCP, in its capacity as investment manager
under the Investment Management Agreement, unless terminated in accordance
with the Investment Company Act. In the event of any such termination or
otherwise "Investment Manager" shall mean a replacement investment manager
only if such replacement investment manager shall have become investment
manager pursuant to the Investment Management Agreement and subsection
6.2.9(b).
"IRS" means the Internal Revenue Service and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Key Individual" means any individual serving in high-level
management capacities for the Investment Manager identified in the list
delivered to the Administrative Agent and the Lenders pursuant to Section
4.1.16, as updated in accordance with Section 6.1.21.
"Lead Manager" is defined in the preamble.
"Lender" means (i) each financial institution or other institutional
lender (including any CP Conduit) listed on the signature pages of this
Agreement, (ii) each Designated CP Conduit Committed Lender upon making or
purchasing of the Loans requested of the related Designated CP Conduit, and
(iii) each Person which becomes an assignee pursuant to subsection 9.4(b) and
their respective successors, in the case of each of clauses (i), (ii) and
(iii), unless and until such Person has assigned all of its rights and
obligations hereunder to an assignee pursuant to subsection 9.4(b).
"Lender Default" means (i) the refusal (which has not been retracted)
of a Lender to make available its portion of any incurrence of Loans or (ii) a
Lender having notified the Administrative Agent and/or the Borrower that it
does not intend to comply with its obligations under Section 2.1.1, in the
case of either clause (i) or (ii) as a result of the appointment of a receiver
or conservator with respect to such Lender at the direction or request of any
regulatory agency or authority.
"Lender Note" means each Revolving Note and each Swingline Note.
"Lending Party" is defined in Section 3.6.
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"LIBOR" means, with respect to each Interest Period, the rate
determined by the Administrative Agent in accordance with the following
provisions:
(i) LIBOR shall equal the rate, as determined by the
Administrative Agent on each LIBOR Determination Date, for one-month
U.S. dollar deposits which appears on the Telerate Page 3750 as of
11:00 a.m. (London time) on such LIBOR Determination Date, as reported
by Bloomberg Financial Markets Commodities News.
(ii) If, on any LIBOR Determination Date, such rate does not
appear on the Telerate Page 3750, the Administrative Agent shall
determine the arithmetic mean of the offered quotations of the LIBOR
Reference Banks to prime banks in the London interbank market for
one-month U.S. dollar deposits by reference to requests for quotations
as of approximately 11:00 a.m. (London time) on such LIBOR
Determination Date made by the Administrative Agent to the LIBOR
Reference Banks. If, on any LIBOR Determination Date, at least two of
the LIBOR Reference Banks provide such quotations, LIBOR shall equal
such arithmetic mean. If, on any LIBOR Determination Date, only one or
none of the LIBOR Reference Banks provide such quotations, LIBOR shall
be deemed to be the arithmetic mean of the offered quotations that the
leading banks in New York City selected by the Administrative Agent
(after consultation with the Borrower) are quoting on such LIBOR
Determination Date for one-month U.S. dollar deposits to the principal
London offices of leading banks in the London interbank market.
(iii) If the Administrative Agent is required but is unable to
determine a rate in accordance with at least one of the procedures
provided above, LIBOR shall be the Base Rate for each day during such
Interest Period.
For the purposes of clause (ii) above, all percentages resulting from
such calculations shall be rounded, if necessary, to the nearest one thirty
second of a percentage point.
"LIBOR Determination Date" means the second London Banking Day prior
to the first day of each Interest Period.
"LIBOR Loan" means a Loan (excluding, for the avoidance of doubt, any
Cost of Funds Rate Dollar Loan, EURIBOR Loan, Cost of Funds Rate Euro Loan or
Swingline Loan) bearing interest at a rate of interest determined by reference
to LIBOR.
"LIBOR Market Index Rate" with respect to any Swingline Loan
denominated in Dollars for any day, means the rate, as determined by the
Administrative Agent, for Dollar deposits with maturities comparable to such
Swingline Loan as reported on Telerate Page 3750 as of 11:00 a.m. London time,
for such day, provided, if such day is not a London Banking Day, the
immediately preceding London Banking Day
X-15
(or if not so reported, then as determined by the Administrative Agent from
another recognized source or interbank quotation).
"LIBOR Reference Banks" means four major banks in the London
interbank market selected by the Administrative Agent.
"Lien" means, with respect to any asset, any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory
or other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any conditional sale or other title retention agreement relating to such
asset).
"Liquidation Acceleration" means a Liquidation Acceleration under and
as defined in the Pledge and Intercreditor Agreement.
"Liquidity Agreement" means each liquidity agreement, asset purchase
agreement or other similar agreement entered into from time to time by a
Lender which is an Other CP Conduit, one or more financial institutions
parties thereto as Liquidity Providers, a liquidity agent, a collateral agent
or such other persons as may be party thereto, if any, as the same may from
time to time be amended, restated, supplemented or otherwise modified,
providing for the Liquidity Providers parties thereto to make loans from time
to time to the Other CP Conduit to support the making and/or maintaining of
Loans by the Lender under this Agreement.
"Liquidity Provider" means any Person providing liquidity or credit
enhancement support for an Other CP Conduit in connection with the
transactions contemplated pursuant to this Agreement.
"Loan" means each Revolving Loan and each Swingline Loan.
"Loan Purchase Agreement" means each loan purchase agreement, asset
purchase agreement or other similar agreement entered into from time to time
by one or more Lenders which are CP Conduits or SPCs, one or more Designated
CP Conduit Committed Lenders, and the other parties thereto, pursuant to which
such Designated CP Conduit Committed Lenders shall be committed to purchase,
or acquire participation interests in, the Loans of such CP Conduit or SPCs
and make Loans requested of such CP Conduit by the Borrower hereunder, as the
same may from time to time be amended, restated, supplemented or otherwise
modified.
"London Banking Day" means any Business Day on which dealings in U.S.
dollar deposits are carried on in the London interbank market.
"Majority Lenders" means, at any time and without duplication in the
case of Designated CP Conduits and their respective Designated CP Conduit
Committed Lenders, Lenders having, in the aggregate, a Voting Percentage of
more than 50% of the total Voting Percentages of all the Lenders at such time.
"Mandatory Borrowing" is defined in subsection 3.1.1(c).
X-16
"Margin Stock" means "margin stock" as defined in Regulation U of the
FRS Board, as amended from time to time.
"Market Value" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Market Value Price" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Material Adverse Effect" means, relative to any occurrence of
whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), a materially
adverse effect on:
(a) the financial condition or operations of the Borrower taken as a
whole;
(b) the ability of the Borrower to timely and fully perform any of
its payment or other material obligations under this Agreement or any other
Credit Document to which it is a party or under the Borrower Organization
Agreement or the Preferred Interests; or
(c) the perfected security interest of the Secured Parties
Representative in the Collateral, for the benefit of the Administrative Agent
and the Lenders.
"Maximum Swingline Amount" means $100,000,000.
"Minimum Borrowing Amount" means, at any time, with respect to any
commitment fee payable under Section 2.4.1, 20% of the Total Maximum
Commitment.
"Monthly Date" means the last day of each Interest Period, commencing
in January 2007.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor
thereto.
"Moody's Collateral Valuation Schedule" shall mean the Moody's
Collateral Valuation Schedule attached as Schedule 9 to this Agreement, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with this Agreement.
"Moody's Valuation Procedures" shall mean the procedures prescribed
by Moody's for determining the Market Value of Fund Investments as set forth
in the Moody's Collateral Valuation Schedule.
"Net Asset Value" means "Company Equity" as calculated in the
definition thereof determined by the Borrower, at any date, based upon good
faith estimates for accruals and expenses of the Borrower, which may, but need
not, be fully compliant with GAAP.
X-17
"Non-Defaulting Lender" means each Lender other than a Defaulting
Lender.
"Non-Petition Covenant" means a covenant by any Person to the effect
that, prior to the date that is one year (or, if longer, the preference period
then in effect under applicable federal and state law) and one day after the
payment in full of all Senior Indebtedness and Preferred Interests, it will
not commence or otherwise institute against the Borrower any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings.
"Obligations" means all obligations and liabilities of the Borrower
to the Administrative Agent or any of the Lenders or any Designated CP Conduit
Committed Lender or Liquidity Provider, howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, under or in connection with this
Agreement, the Loans, the Lender Notes, any other Credit Document or any
Secured Hedging Transaction.
"Organic Documents" of any Person means its certificate of limited
partnership or formation, limited partnership agreement, limited liability
company agreement, operating agreement, memorandum and articles of
association, charter and by-laws or similar constitutive documents and
includes all agreements, voting trusts and similar arrangements with or among
the holders of such Person's Capital Stock or other equity.
"Other CP Conduit" means any CP Conduit that is a Lender (other than
a Designated CP Conduit).
"Outstanding Principal Amount" has the meaning assigned to such term
in the applicable Collateral Valuation Schedule.
"Over-Collateralization Test" is defined in Section 6.1.18.
"Participating Member State" means a member state of the European
Community which has adopted the single currency in accordance with the Treaty
of Rome of 25 March 1957, as amended, inter alia, by the Single European Act
and the Treaty of European Union of 7 February 1992, establishing the European
Union.
"Payment Office" means the office of the Administrative Agent located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other office as the Administrative Agent may designate to the Borrower and the
Lenders from time to time.
"Pension Plan" means a "pension plan," as such term is defined in
Section 3(2) of ERISA.
"Percentage" means, with respect to any Lender, such Lender's
Revolving Percentage.
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"Performing" has the meaning assigned to such term in the applicable
Collateral Valuation Schedule.
"Permitted Liens" is defined in Section 6.2.3.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or any agency or
instrumentality thereof.
"Plan Assets" means such term within the meaning of the
Department of Labor Regulation 29 CFR ss. 2510.3-101, as amended, and the
advisory opinions and rulings issued thereunder.
"Pledge and Intercreditor Agreement" means the Pledge and
Intercreditor Agreement dated as of the Closing Date, among the Borrower, the
Custodian, the Administrative Agent and the Secured Parties Representative, as
the same may be amended, modified or supplemented from time to time pursuant
to the terms hereof and thereof.
"Portfolio Limitations" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Preferred Interest Holder" means, at any date, with respect to any
outstanding Preferred Interest, the record holder of such Preferred Interest
as reflected in the register of the Borrower.
"Preferred Interests" means any preferred limited partner interests
(or other form of preferred equity) issued by the Borrower pursuant to the
Borrower Organization Agreement.
"Prime Lending Rate" means the rate which Wachovia Bank, National
Association announces from time to time as its prime lending rate, the Prime
Lending Rate to change when and as such prime lending rate changes, or if such
bank ceases to exist or is not quoting a prime lending rate, such other major
money center commercial bank in New York City as is selected by the
Administrative Agent. The Prime Lending Rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged to any
customer. Wachovia Bank, National Association may make commercial loans or
other loans at rates of interest at, above or below the Prime Lending Rate.
"Proceeding" means the making of a trust, mortgage or assignment for
the benefit of creditors; the voluntary or involuntary dissolution, winding
up, total or partial liquidation, reorganization, bankruptcy, insolvency,
receivership or marshalling of assets or liabilities of the Borrower; or any
other statutory, common law or contractual proceeding or arrangement for the
postponement or adjustment of all or a substantial part of the liabilities of
the Borrower.
"Proceeds" means all "proceeds" as such term is defined in Section
9-306(l) of the UCC and, in any event shall include, without limitation, all
interest,
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dividends or other earnings, income or distributions from or in respect of, or
investments or reinvestments of, the Cash and Cash Equivalents from time to
time on deposit in the Custodial Account and the Pledged Investments (as
defined in the Pledge and Intercreditor Agreement) and all other proceeds of
Collateral (whether the same arise or are acquired before or after
commencement of a Proceeding in which the Borrower is a debtor).
"Quarterly Date" means the 20th calendar day of each January, April,
July and October, commencing in April of 2007, or, if any such day is not a
Business Day, the next succeeding day that is a Business Day.
"Rating Agency" means a nationally recognized statistical rating
organization in the United States selected by the Borrower that will be
substituted for ▇▇▇▇▇'▇ or S&P (or their respective successors) if any such
entity is no longer in the business of rating securities.
"Rating Agency Condition" means, with respect to any specified
action, that (a) each of ▇▇▇▇▇'▇ and S&P shall have been given prior written
notice thereof and (b) each of ▇▇▇▇▇'▇ and S&P shall have notified the
Borrower in writing that such action will not result at that time in a
downgrading or withdrawal of its then current ratings of the Debt under this
Agreement or the Preferred Interests, as applicable.
"RCRA" means the Resource Conservation and Recovery Act, as amended,
42 U.S.C. ss. 6901 et seq.
"Register" is defined in Section 9.16.
"Regulation D" means, unless otherwise indicated, Regulation D of the
FRS Board as from time to time in effect and any successor to all or a portion
thereof establishing reserve requirements.
"Related Contract" has the meaning set forth in the Pledge and
Intercreditor Agreement.
"Related Person" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Relevant Date" is defined in subsection 9.19(a).
"Replaced Lender" is defined in Section 3.4.7.
"Replacement Lender" is defined in Section 3.4.7.
"Reporting Date" means the last Business Day of each calendar month,
commencing in January 2007.
"Required Lenders" means, at any time and without duplication in the
case of Designated CP Conduits and their respective Designated CP Conduit
Committed
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Lenders, Lenders having, in the aggregate, a Voting Percentage of more than
60% of the total Voting Percentages of all the Lenders at such time.
"Restricted Payment" means
(i) any payment or other distribution (including, without limitation,
dividends) to any Common Interest Holder of the Borrower in respect of its
Common Interests;
(ii) any payment or other distribution on account of the purchase,
redemption, retirement or acquisition of any Common Interest, Preferred
Interest or other equity interest in the Borrower; or
(iii) any payment in respect of any Subordinated Equity Securities.
For the avoidance of doubt, dividends on the Preferred Interests shall not be
treated as Restricted Payments and may be paid by the Borrower at any time in
accordance with the terms of the Borrower Organization Agreement.
"Revolving Borrowing" means a Borrowing of Revolving Loans.
"Revolving Commitment" has the meaning set forth in subsection
2.1.1(a).
"Revolving Lender" means each Lender that has a Revolving Commitment.
"Revolving Loan" is defined in subsection 2.1.1(a).
"Revolving Note" is defined in Section 3.2.
"Revolving Percentage" of any Lender means, at any time: (a) with
respect to the aggregate amount of Revolving Commitments of all Lenders to
make Revolving Loans of any Type at such time, the percentage which such
Lender's Revolving Commitment to make Revolving Loans, if any, is of the
aggregate amount of Revolving Commitments of all Lenders to make Revolving
Loans at such time; and (b) with respect to the aggregate amount of Revolving
Loans which are outstanding at such time, the percentage which the aggregate
principal amount of such Lender's Revolving Loans of such Type is of the total
principal amount of Revolving Loans of such Type at such time; in each case as
shown on the Schedule 1 to this Agreement (or, in the case of any Lender which
becomes a Lender pursuant to any Assignment Agreement, as provided in such
Assignment Agreement) and in all cases as changed from time to time as a
consequence of Assignment Agreements pursuant to subsection 9.4(b) and as
reflected in the books and records of the Administrative Agent at such time.
"RIC Distribution" is defined in Section 6.2.5.
"RIC Withholding Taxes" is defined in Section 6.2.5.
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"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a New York corporation, or any successor thereto.
"S&P Collateral Valuation Schedule" means Schedule 10 to this
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with this Agreement.
"S&P Valuation Procedures" means the procedures prescribed by S&P for
determining the Market Value of Fund Investments as set forth in the S&P
Collateral Valuation Schedule.
"Scheduled Commitment Termination Date" means December 15, 2014.
"Screen" means the relevant display page for EURIBOR Rate (as
determined by the Administrative Agent) appearing on Reuters Page 248 and 249,
as applicable (or if such page is replaced or such service ceases to be
available, another page as agreed between the Borrower and the Administrative
Agent); provided that if the Administrative Agent determines that there is no
such relevant display page for EURIBOR Rate, "Screen" means the relevant
display page for EURIBOR Rate (as determined by the Administrative Agent) on
the Reuters Monitor Money Rates Service.
"Section 23A" means Section 23A of the Federal Reserve Act, 12 USC
371c, and any regulations, interpretations, rulings and opinions of the FRS
Board.
"Secured Hedging Advance Amount" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Secured Hedging Net Exposure" has the meaning assigned to such term
in the applicable Collateral Valuation Schedule.
"Secured Hedging Transaction" has the meaning assigned to such term
in the applicable Collateral Valuation Schedule.
"Secured Parties Representative" means Wachovia Capital Markets, LLC,
as Secured Parties Representative under the Pledge and Intercreditor
Agreement, and any successor thereto in such capacity.
"Securities" has the meaning assigned to such term in the applicable
Collateral Valuation Schedule.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Securities Lending Transactions" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Senior Advance Amount" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
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"Senior Indebtedness" means all Debt and other payment obligations
(including, without limitation, interest that would accrue but for the filing
of a petition initiating a Proceeding, whether or not a claim for such
interest is allowed in the Proceeding) of the Borrower arising under or in
respect of this Agreement, the other Credit Documents, the Loans or the
Secured Hedging Transactions, whether outstanding on the Closing Date or
thereafter created or incurred, including obligations owing to the Custodian
under the Custodial Agreement, to the Administrative Agent under this
Agreement and to the Secured Parties Representative under the Pledge and
Intercreditor Agreement; provided, however, that Senior Indebtedness shall not
include any Debt or such other obligations incurred in violation of this
Agreement.
"Senior Lender Indebtedness" means all Debt and other payment
obligations (including, without limitation, interest that would accrue but for
the filing of a petition initiating a Proceeding, whether or not a claim for
such interest is allowed in the Proceeding) of the Borrower arising under or
in respect of this Agreement, the Loans, the Lender Notes or the Secured
Hedging Transactions, whether outstanding on the Closing Date or thereafter
created or incurred.
"SPC" is defined in Section 3.8.
"Statement Date" is defined in Section 6.1.18.
"Structured Product Transaction" has the meaning assigned to such
term in the applicable Collateral Valuation Schedule.
"Subordinated Equity Securities" means any equity securities issued
by the Borrower following the Closing Date which are permitted pursuant to
Section 6.2.2(iii).
"Subsidiary" means at any time, with respect to any Person (the
"parent"), any corporation, association, partnership or other business entity
(a) of which securities or other ownership interests representing more than
50% of the ordinary voting power to elect the board of directors, general
partner, manager or comparable body of such corporation, association,
partnership or other business entity (irrespective of whether at the time
securities or other ownership interests of any other class or classes of such
corporation, association, partnership or other business entity shall or might
have voting power solely upon the occurrence of any contingency) are, at such
time owned directly or indirectly by the parent, by one or more Subsidiaries
of the parent or by the parent and one or more Subsidiaries of the parent and
(b) which is also required at such time under GAAP to be consolidated with the
parent. Notwithstanding the foregoing, with respect to the Borrower, any
corporation, association, partnership or other business entity that otherwise
meets the definition of "Subsidiary" shall not constitute a Subsidiary of the
Borrower, if the securities or other ownership interests representing more
than 50% of the ordinary voting power to elect the board of directors, general
partner, manager or comparable body of such corporation, association,
partnership or other business entity are obtained by the Borrower upon
conversion, foreclosure or exercise of remedies or in connection with a
bankruptcy, reorganization, restructuring or similar proceeding
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(whether or not under the supervision of a court or other regulatory body) of
the issuer or obligor of a Fund Investment.
"Swap Transaction" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
"Swingline Base Rate" means, for any period, the main refinancing
rate as set by the European Central Bank for such period, plus 0.50% per
annum.
"Swingline Expiry Date" means the date which is ten (10) Business
Days prior to the Commitment Termination Date or such later date as agreed to
in writing by the Swingline Lenders from time to time.
"Swingline Lender" means (a) in the case of Swingline Loans
denominated in Dollars, Wachovia Bank, National Association, and its
successors and assigns, in its capacity as the lender of such Swingline Loans,
and (b) in the case of Swingline Loans denominated in Euros, Wachovia Bank,
N.A., London Branch, and its successors and assigns, in its capacity as the
lender of such Swingline Loans.
"Swingline Loans" is defined in subsection 2.1.1(d).
"Swingline Note" is defined in Section 3.2.
"Swingline Rate" means, for any period, (a) in the case of a
Swingline Loan denominated in Dollars, the LIBOR Market Index Rate; provided,
that following the occurrence and during the continuance of any Default, the
Swingline Rate shall be LIBOR, and (b) in the case of a Swingline Loan
denominated in Euros, the Swingline Base Rate.
"TARGET Day" means any Business Day on which the Trans-European
Automated Real-time Gross settlement Express Transfer system is open.
"Tax Certificate" is defined in subsection 3.6(b).
"Taxes" is defined in Section 3.6.
"TCO" means ▇▇▇▇▇▇▇▇▇▇ & Co., LLC.
"TCP" means ▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC, a Delaware limited
liability company.
"Telerate Page 3750" means the display page currently so designated
on the Bridge Telerate Market Report (or such other page as may replace such
page on such service for the purpose of displaying comparable rates).
"Total Capitalization" has the meaning assigned to such term in the
applicable Collateral Valuation Schedule.
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"Total Maximum Commitment" means, at any date of determination, (a)
on and after the Closing Date and prior to the Commitment Termination Date,
$483,000,000 and (b) on and after the Commitment Termination Date, zero;
provided, that (1) the calculations in this definition shall be made after
giving effect to all issuances, payments and other transactions contemplated
on the applicable date; and (2) the Total Maximum Commitment may be reduced as
provided in subsections 2.2(a), 2.3.5 and 9.12(c) or increased as provided in
subsection 2.2(b).
"Total Revolving Commitments" means the sum of the Revolving
Commitments of each of the Lenders.
"Transaction Documents" means this Agreement, the other Credit
Documents, the Investment Management Agreement, the Co-Management Agreement,
the Notes, the Preferred Interests, the Borrower Organization Agreement and
any other agreement, instrument or document executed and delivered by the
Borrower in connection with the foregoing.
"Trigger Event" means any event specified in Section 11(b) of the
Investment Management Agreement pursuant to which a "Replacement Principal"
may be appointed in accordance with the terms of the Investment Management
Agreement.
"Type" means any type of Loan determined with respect to the interest
rate option applicable thereto (i.e., a Cost of Funds Rate Dollar Loan, a
LIBOR Loan, a Cost of Funds Rate Euro Loan, a EURIBOR Loan or a Swingline
Loan).
"UCC" means, with respect to any jurisdiction, the Uniform Commercial
Code as from time to time in effect in such jurisdiction.
"United States" or "U.S." means the United States of America, its 50
States, the District of Columbia and the Commonwealth of Puerto Rico.
"Unquoted Investment" means any Fund Investment other than Cash or
Cash Equivalents for which the Market Value has not been obtained from an
Approved Source.
"Unutilized Commitment" means, at any time, the amount, if any, by
which the Total Maximum Commitment exceeds the then aggregate outstanding
principal amount of Revolving Loans.
"U.S. Government Securities" has the meaning assigned to such term in
the applicable Collateral Valuation Schedule.
"Valuation Statement" is defined in subsection 6.1.1(b).
"Voting Percentage" of any Lender means, at any time:
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(i) prior to the first Borrowing, the percentage which such Lender's
aggregate Commitments at such time is of the total aggregate Commitments of
all the Lenders at such time; and
(ii) on and after the first Borrowing, the percentage which (i) the
sum of the outstanding principal amount of such Lender's Loans (other than
Swingline Loans) plus such Lender's aggregate unused Commitments at such time
is of (ii) the sum of the outstanding principal amount of all Loans (other
than Swingline Loans) plus the aggregate amount of all unused Commitments at
such time, in each case as shown in the Register;
provided that a Lender may divide its Voting Percentage in accordance with
Section 9.16. If the Borrower or any Affiliate thereof or of TCP holds any
Loans or Commitments, (x) neither the Borrower nor any such Affiliate shall be
included as a Lender for purposes of this definition, and (y) the amount of
such Loans or Commitments shall be subtracted from the total amounts of such
Loans and Commitments based on which the calculation of Voting Percentages are
made.
"Welfare Plan" means a "welfare plan," as such term is defined in
section 3(l) of ERISA.
"Withdrawal Notice" is defined in Section 2.3.2.
"Withdrawing Lender" is defined in Section 2.3.2.
"Yield-to-Worst" has the meaning set forth in the applicable
Collateral Valuation Schedule.
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