STONEPEAK-PLUS INFRASTRUCTURE FUND MASTER AGGREGATOR LP
Exhibit 10.1
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STONEPEAK-PLUS INFRASTRUCTURE FUND MASTER AGGREGATOR LP
as the Borrower,
and
the other Borrowers from time to time party hereto
STONEPEAK-PLUS INFRASTRUCTURE FUND LIQUIDITY LP
STONEPEAK-PLUS INFRASTRUCTURE FUND LOWER FUND VI-A LP
STONEPEAK-PLUS INFRASTRUCTURE FUND LOWER FUND VI-B LP
as Guarantors,
and
the other Guarantors from time to time party hereto
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ING CAPITAL LLC,
as the Administrative Agent, a Lender, Letter of Credit Issuer, Mandated Lead Arranger and Sole Bookrunner
and
the Lenders from time to time party hereto.
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July 16, 2025
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Page
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SECTION 1.
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DEFINITIONS
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1
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1.1
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Defined Terms
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1
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1.2
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Other Definitional Provisions
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42
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1.3
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Times of Day
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43
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1.4
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Letter of Credit Amounts
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43
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1.5
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Exchange Rates; Currency Equivalents
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43
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1.6
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Interest Rates
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44
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1.7
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Independent Valuation
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44
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SECTION 2.
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REVOLVING CREDIT LOAN AND LETTERS OF CREDIT
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46
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2.1
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The Lender Commitment
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46
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2.2
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Revolving Credit Commitment
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50
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2.3
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Manner of Borrowing
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51
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2.4
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Minimum Loan Amounts
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53
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2.5
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Funding
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54
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2.6
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Interest Rate
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54
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2.7
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Determination of Rate
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55
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2.8
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Letters of Credit
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56
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2.9
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Addition of Borrowers and Guarantors
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60
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2.10
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Use of Proceeds, Letters of Credit
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62
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2.11
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Administrative Agent and Lender Fees
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62
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2.12
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Unused Commitment Fee
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62
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2.13
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Letter of Credit Fees
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63
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2.14
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Extension of Maturity Date
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64
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2.15
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Increase in the Maximum Commitment; Borrowings and Repayments
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65
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SECTION 3.
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PAYMENT OF OBLIGATIONS
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68
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3.1
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Revolving Credit Notes
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68
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3.2
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Payment of Obligations
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68
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3.3
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Payment of Interest
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68
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3.4
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Payments on the Obligations
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70
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3.5
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Voluntary Prepayments
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71
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3.6
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Reduction or Early Termination of Lender Commitments
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71
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3.7
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Lending Office
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72
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SECTION 4.
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CHANGE IN CIRCUMSTANCES
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72
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4.1
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Increased Cost and Reduced Return; Change in Law
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72
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4.2
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Limitation on Types of Loans
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74
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4.3
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Illegality
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76
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4.4
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Treatment of Affected Loans
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77
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i
TABLE OF CONTENTS
(continued)
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4.5
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Compensation
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78
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4.6
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Taxes
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79
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4.7
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Requests for Compensation
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84
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4.8
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Survival
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84
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4.9
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Replacement of Lenders
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85
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SECTION 5.
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SECURITY
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85
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5.1
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Liens and Security Interest
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85
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5.2
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The Collateral Accounts
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86
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5.3
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Lender Offset
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86
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5.4
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Agreement to Deliver Additional Collateral Documents
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87
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5.5
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Subordination
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87
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5.6
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Permitted Liens
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88
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SECTION 6.
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CONDITIONS PRECEDENT TO LENDING.
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88
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6.1
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Obligations of the Lenders
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88
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6.2
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Conditions to all Loans and Letters of Credit
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91
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6.3
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Conditions to Additional Borrower Loans and Letters of Credit
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92
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6.4
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Conditions in respect of Additional Guarantors
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92
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SECTION 7.
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REPRESENTATIONS AND WARRANTIES
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93
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7.1
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Organization and Good Standing
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93
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7.2
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Authorization and Power
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93
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7.3
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No Conflicts or Consents
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94
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7.4
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Enforceable Obligations
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94
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7.5
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Priority of Liens
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94
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7.6
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Financial Condition
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94
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7.7
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Full Disclosure
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95
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7.8
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No Default
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95
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7.9
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No Litigation
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95
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7.10
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Taxes
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95
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7.11
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Principal Office; Jurisdiction of Formation
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96
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7.12
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ERISA
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96
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7.13
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Compliance with Law
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96
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7.14
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Fiscal Year
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96
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7.15
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Margin Stock
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96
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7.16
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Investment Company Act
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96
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7.17
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Ownership of Investments
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97
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7.18
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Foreign Asset Control Laws
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97
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7.19
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Investment Policy and Valuation Policy
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97
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7.20
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[Reserved]
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97
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ii
TABLE OF CONTENTS
(continued)
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7.21
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Plan Assets
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97
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7.22
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Partnership Agreement Representations
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97
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SECTION 8.
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AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES
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98
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8.1
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Financial Statements, Reports and Notices
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98
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8.2
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Payment of Taxes
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101
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8.3
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Maintenance of Existence and Rights
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101
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8.4
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Notice of Default
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101
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8.5
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Other Notices
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101
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8.6
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Compliance with Loan Documents and Partnership Agreement
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102
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8.7
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Operations and Properties
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102
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8.8
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Books and Records; Access
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102
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8.9
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Compliance with Law
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102
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8.10
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Insurance
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103
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8.11
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Authorizations and Approvals
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103
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8.12
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Maintenance of Liens
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103
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8.13
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Further Assurances
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103
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8.14
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Additional Borrowers
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103
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8.15
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[Reserved]
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104
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8.16
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Notices to Investors
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104
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8.17
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ERISA Matters
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104
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8.18
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Register of Mortgages and Charges
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104
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SECTION 9.
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NEGATIVE COVENANTS OF THE CREDIT PARTIES
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104
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9.1
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Mergers, Etc
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104
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9.2
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Negative Pledge
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105
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9.3
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Fiscal Year and Accounting Method
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105
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9.4
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Partnership Agreements
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105
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9.5
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[Reserved]
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106
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9.6
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[Reserved]
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106
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9.7
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ERISA Compliance
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106
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9.8
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Dissolution
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107
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9.9
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Environmental Laws
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107
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9.10
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Limitations on Distributions and Redemptions
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107
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9.11
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Limitation on Indebtedness
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107
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9.12
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Limitation on Withdrawals From the Collateral Accounts
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108
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9.13
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[Reserved]
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108
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9.14
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Transfers of Investments
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108
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9.15
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[Reserved]
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108
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9.16
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Sanctions
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109
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9.17
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Financial Covenants
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109
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iii
TABLE OF CONTENTS
(continued)
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SECTION 10.
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EVENTS OF DEFAULT
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109
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10.1
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Events of Default
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109
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10.2
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Remedies Upon Event of Default
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112
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10.3
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Performance by the Administrative Agent
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113
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10.4
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[Reserved]
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113
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SECTION 11.
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AGENTS
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113
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11.1
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Appointment
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113
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11.2
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Delegation of Duties
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114
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11.3
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Exculpatory Provisions
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114
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11.4
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Reliance on Communications
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115
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11.5
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Notice of Default
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115
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11.6
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Non-Reliance on the Administrative Agent and the Lenders
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116
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11.7
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Indemnification
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116
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11.8
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Administrative Agent in Its Individual Capacity
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116
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11.9
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Successor Agent
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117
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11.10
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Reliance by the Credit Parties
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118
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11.11
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Administrative Agent May File Proofs of Claim
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118
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11.12
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Delivery of Notices to the Lenders
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119
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11.13
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Non-Receipt of Funds by Administrative Agent; Erroneous Payments
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119
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SECTION 12.
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MISCELLANEOUS
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120
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12.1
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Amendments
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120
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12.2
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Sharing of Offsets
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123
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12.3
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Sharing of Collateral
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123
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12.4
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Waiver
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124
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12.5
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Payment of Expenses; Indemnity
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124
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12.6
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Notice
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126
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12.7
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Governing Law
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128
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12.8
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Choice of Forum; Consent to Service of Process and Jurisdiction; Waiver of Trial by Jury
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128
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12.9
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Invalid Provisions
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128
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12.10
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Entirety
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129
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12.11
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Parties Bound; Assignment
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129
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12.12
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Lender Default
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132
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12.13
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Maximum and Criminal Interest
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132
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12.14
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Headings
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133
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12.15
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Survival
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133
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12.16
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Full Recourse
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133
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12.17
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Availability of Records; Confidentiality
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134
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12.18
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USA Patriot Act Notice
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134
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iv
TABLE OF CONTENTS
(continued)
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12.19
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Multiple Counterparts
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135
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12.20
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Conversion of Currencies
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135
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12.21
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Acknowledgement and Consent to Bail-In of Affected Financial Institutions
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135
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12.22
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Acknowledgement Regarding Any Supported QFCs
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136
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12.23
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No Advisory or Fiduciary Responsibility
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138
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12.24
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Joint and Several Liability
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138
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12.25
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Obligations Unconditional
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138
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SECTION 13.
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GUARANTY
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139
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13.1
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Guaranty of Payment
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139
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13.2
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Obligations Unconditional
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140
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13.3
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Modifications
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141
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13.4
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Waiver of Rights
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141
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13.5
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Reinstatement
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142
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13.6
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Remedies
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142
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13.7
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Subrogation
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142
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13.8
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Inducement
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142
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13.9
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Combined Liability
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143
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13.10
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Borrower Information
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143
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13.11
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Instrument for the Payment of Money
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143
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13.12
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Termination
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143
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v
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EXHIBITS
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EXHIBIT A:
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[Reserved]
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EXHIBIT B:
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Form of Note
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EXHIBIT C:
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[Reserved]
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EXHIBIT D:
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Form of Distribution Collateral Account Pledge
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EXHIBIT E:
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Form of Request for Borrowing
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EXHIBIT F:
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Form of Request for Letter of Credit
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EXHIBIT G:
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Form of Conversion Notice
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EXHIBIT H:
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Form of Lender Assignment and Acceptance Agreement
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EXHIBIT I:
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[Reserved]
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EXHIBIT J:
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[Reserved]
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EXHIBIT K:
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[Reserved]
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EXHIBIT L:
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Form of Responsible Officer’s Certificate
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EXHIBIT M:
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[Reserved]
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EXHIBIT N:
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Form of Joinder Agreement
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EXHIBIT O:
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Form of Facility Increase Request
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EXHIBIT P:
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[Reserved]
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EXHIBIT Q:
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[Reserved]
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EXHIBIT R:
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Form of Compliance Certificate/Financial Covenant Certificate/Borrowing Base Certificate
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EXHIBIT S:
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[Reserved]
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EXHIBIT T:
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[Reserved]
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EXHIBIT U:
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Form of Extension Request
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EXHIBIT V-1:
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Form of Borrower Joinder Agreement
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EXHIBIT V-2:
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Form of Guarantor Joinder Agreement
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EXHIBIT W:
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Form of Beneficial Ownership Certificate
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SCHEDULE I:
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Credit Party and General Partner Information
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SCHEDULE II:
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Lender Commitments
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SCHEDULE III:
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Eligible Investments
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vi
REVOLVING CREDIT AGREEMENT (this “Credit Agreement”) is
dated as of July 16, 2025, by and among STONEPEAK-PLUS INFRASTRUCTURE FUND MASTER AGGREGATOR LP as the borrower (the “Initial Borrower” and, collectively
with any other Additional Borrowers, the “Borrower”; to the extent there are multiple Borrowers, references to “the Borrower” shall mean the applicable
Borrower, each Borrower individually or the Borrowers collectively, as the context requires), each of the entities from time to time listed as “Guarantors” on Schedule I hereto, as
guarantors (the “Guarantors”), ING Capital LLC, a Delaware limited liability company (“ING”),
as the Administrative Agent for each of the Lenders, the Mandated Lead Arranger, the Sole Bookrunner, the Letter of Credit Issuer and a Lender, and each of the other financial institutions from time to time party hereto as Lenders.
NOW, THEREFORE, in
consideration of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
Section 1. DEFINITIONS
1.1 Defined Terms. For the purposes of this Credit Agreement, unless otherwise expressly defined, the following terms shall have the respective meanings assigned to them in
this Section 1.1 or in the Section or recital referred to:
“Additional Borrower” is defined in Section 2.9(a) hereof.
“Adjusted NAV” means, as of any date of determination, an amount equal to
the NAV, excluding, with respect to any Eligible Primary Investment, any portion of such Eligible Primary Investment that is in excess of the following concentration limits for purposes of calculating the Adjusted NAV: (i)(A) from the Closing Date
until and including December 31, 2025, no Distinct Eligible Investment shall constitute more than thirty-five percent (35%) of the NAV, and (B) from January 1, 2026 and thereafter, no Distinct Eligible Investment shall constitute more than twenty
percent (20%) of the NAV; and (ii) the aggregate NAV of all Construction Eligible Investments shall not exceed twenty percent (20%) of the NAV, and any such excess shall be excluded from the Adjusted NAV. For the avoidance of doubt, the Adjusted
NAV of any Eligible Investment (or portion thereof) that is at the time of determination subject to a Material Investment Event shall be zero (0) at such time.
“Administrative Agent” means ING, until the appointment of a successor
“Administrative Agent” pursuant to Section 11.9 hereof and, thereafter, shall mean such successor Administrative Agent.
“Advisor” means Stonepeak-Plus Infrastructure Fund Advisors LLC, a Delaware
limited liability company.
“Affected Financial Institution” means (a) any EEA Financial Institution or
(b) any UK Financial Institution.
“Affiliate” of any Person means any other Person (whether or not existing
as of the Closing Date) that, directly or indirectly, controls or is controlled by, or is under common control with, such Person. For the purpose of this definition, “control” and the correlative meanings of the terms “controlled by” and “under
common control with” 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 the ownership of voting shares or partnership interests or by contract or
otherwise.
“Agency Services Address” means the address for the Administrative Agent
set forth in Section 12.6 hereof, or such other address as may be identified by written notice from the Administrative Agent to the Borrower and the Lenders.
“Aggregator I Excluded Share” means the 0.1% economic ownership interest of
Delaware Infra-Fund in Stonepeak-Plus Infrastructure Fund Aggregator I LP.
“Agreement Currency” is defined in Section 12.20(b) hereof.
“AIFM” means Carne Global Fund Managers (Luxembourg) S.A., a Luxembourg
public limited liability company (société anonyme), incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at ▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and registered with the RCS under number B148258, as authorized by the CSSF under article 5 of the AIFM Law (or any successor thereto) (or any successor thereto) or any other entity that may serve
as the alternative investment fund manager of the Luxembourg Infra-Fund.
“AIFM Directive” means the Directive 2011/61/EU of the European Parliament
and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010, as amended from time to time.
“AIFM Law” means the Luxembourg law of 12 July 2013 on alternative
investment fund managers, implementing the AIFM Directive, as amended from time to time.
“Alternative Currency” means (a) Australian Dollars, Canadian Dollars,
Danish Krone, Euros, Sterling, Swedish Krona, Swiss Francs, or Yen or (b) such other currencies requested by a Borrower for the applicable requested Loan or Letter of Credit hereunder, which are reasonably available to the Administrative Agent and
all Lenders in their sole discretion; provided, that, any Borrowing and issuance of Letters of Credit in an Alternative Currency shall for all purposes under this Credit Agreement be
subject to the prior approval of the Administrative Agent.
“Alternative Currency Reserve” means, at any time (a) with respect to Loans
and the aggregate face amount of Letters of Credit denominated in Euros or Sterling, zero; and (b) with respect to Loans and the aggregate face amount of Letters of Credit denominated in any Alternative Currencies other than Euros and Sterling,
3.5% of the aggregate Principal Obligations with respect to such amount.
“Annual Valuation Period” means the “annual valuation period” for the
applicable Credit Party as defined in 29 C.F.R. §2510.3-101(d)(5) as determined by designation of its General Partner.
2
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction applicable to the Credit Parties from time to time concerning or relating to bribery, corruption or money laundering, including the U.S. Foreign Corrupt
Practices Act, including, in each case, any regulations thereunder and as may be amended from time to time, and the UK Bribery Act of 2010, as amended.
“Applicable Creditor” is defined in Section 12.20(b) hereof.
“Applicable Lending Office” means, for each Lender and for each Type of
Loan, the “lending office” of such Lender (or of an Affiliate of such Lender) designated for such Type of Loan on the signature pages hereof or such other office of such Lender (or an Affiliate of such Lender) as such Lender may from time to time
specify to the Administrative Agent and the Borrower by written notice in accordance with the terms hereof as the office by which such Type of Loans are to be made and maintained.
“Applicable Margin” means, (i) with respect to (A) Eurocurrency Rate Loans
or RFR Loans and Letters of Credit, 240 basis points (2.40%) per annum and (B) Reference Rate Loans, 140 basis points (1.40%) per annum.
“Application for Letter of Credit” means an application for a letter of
credit by, between and among the Borrower, on the one hand, and the Letter of Credit Issuer, on the other hand, substantially in a form provided by the Letter of Credit Issuer (and customarily used by it in similar circumstances) and conformed to
the terms of this Credit Agreement, either as originally executed or as it may from time to time be supplemented, modified, amended, renewed, or extended; provided that to the extent the
terms of such Application for Letter of Credit are inconsistent with or otherwise more onerous than the terms of this Credit Agreement, the terms of this Credit Agreement shall control.
“Assignee” is defined in Section
12.11(c) hereof.
“Assignment and Acceptance Agreement” means the agreement contemplated by Section 12.11(c) hereof, pursuant to which any Lender assigns all or any portion of its rights and obligations hereunder, which agreement shall be substantially in the form of Exhibit H hereto.
“Australian Dollars” and the sign “A$” means the lawful currency of Australia.
“Available Commitment” means, on any date of determination, the lesser of:
(a) the Maximum Commitment, and (b) the Borrowing Base, minus, in either case, the Alternative
Currency Reserve. For the avoidance of doubt, the Available Commitment will always be calculated in Dollars.
“Available Tenor” means, as of any date of determination and with respect
to the relevant then-current Benchmark, as applicable, (a) if the then-current Benchmark is a future looking term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) if clause (a) does not apply, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Credit Agreement as of such date and not including, for
the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 4.2(b); provided that “Available Tenor” shall be determined on an individual basis in respect of each then-current Benchmark for each
Alternative Currency. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
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“Bail-In Action” means the exercise of any Write-Down and Conversion Powers
by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU
Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution
of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Levy” means any amount payable by any Lender or Letter of Credit
Issuer, pursuant to the laws of the United Kingdom or a state of the European Union on the basis of, or in relation to, its balance sheet, capital base or any part of that person, or its liabilities, minimum regulatory capital or any combination
thereof (including, without limitation, the UK bank levy as set out in the Finance Act 2011, the French taxe bancaire de risque systémique as set out in Article 235 ter ZE of
the French Code Général des impôts, the German bank levy as set out in the German Restructuring Fund Act 2010 (Restrukturierungsfondsgesetz), the Dutch bankenbelasting as set out in the bank levy act (Wet
bankenbelasting), the Spanish bank levy (Impuesto sobre los Depósitos en las Entidades de Crédito) as set out in the Law 16/2012 of 27 December 2012 and any tax in
any jurisdiction levied on a similar basis or for a similar purpose or any financial activities taxes (or other taxes) of a kind contemplated in the European Commission consultation paper on financial sector taxation dated 22 February 2011).
“Basel III” means, collectively, those certain agreements on capital and
liquidity standards contained in “Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems,” “Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring,” and “Guidance for National
Authorities Operating the Countercyclical Capital Buffer,” each as published by the Basel Committee on Banking Supervision in December 2010 (as revised from time to time), and “Basel III: The Liquidity Coverage Ratio and Liquidity Risk Monitoring
Tools,” as published by the Basel Committee on Banking Supervision in January 2013 (as revised from time to time).
“BBSY” is defined in the definition of “Eurocurrency Rate”.
“Benchmark” means with respect to any Obligations, interest, fees,
commissions or other amounts denominated in, or calculated with respect to:
(a) Dollars, at the election of the Borrower, the Daily Simple RFR applicable for Dollars or Term RFR for Dollars;
(b) Canadian Dollars, Sterling and Swiss Francs, the Daily Simple RFR applicable for such Currency; and
(c) any Alternative Currency (other than Canadian Dollars, Sterling or Swiss Francs), the Eurocurrency Rate for such Currency;
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provided that if a Benchmark Transition Event and its
related Benchmark Replacement Date have occurred with respect to a then-current Benchmark for such Currency, then “Benchmark” means, with respect to such Obligations, interest, fees,
commissions or other amounts denominated in such Currency, the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section
4.2.
“Benchmark Replacement” means, for any Available Tenor, with respect to any
Benchmark Transition Event for a then current Benchmark, the sum of: (i) the alternate benchmark rate and (ii) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and
the Borrower as the replacement for such Available Tenor of such then-current Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body
for U.S. syndicated credit facilities denominated in the applicable Currency at such time that are substantially similar to the credit facilities under this Credit Agreement, provided
that, if the Benchmark Replacement as determined above would be less the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Credit Agreement and the other Loan Documents.
“Benchmark Replacement Conforming Changes” means, with respect to any
Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Reference Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates
and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of breakage provisions, and other technical, administrative or
operational matters) that the Administrative Agent and the Borrower mutually decide may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in
a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice
for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent and the Borrower mutually decide is reasonably necessary in connection with the administration of this Credit Agreement
and the other Loan Documents).
“Benchmark Replacement Date” means the earliest to occur of the following
events with respect to the then-current Benchmark for any Currency:
| (a) |
the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in
the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
|
| (b) |
the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such
Benchmark (or such component thereof) to be no longer representative.
|
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For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date for any Benchmark occurs on the same day as, but earlier than, the Reference
Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such Benchmark and for such determination and (B) the “Benchmark Replacement Date” will be deemed to have occurred
in the case of clause (a) or clause (b) of this definition with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published
component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any then-current
Benchmark for any Currency, the occurrence of one or more of the following events with respect to such Benchmark: a public statement or publication of information by or on behalf of the administrator of such then-current Benchmark, the regulatory
supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution
authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or
will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no
successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is
intended to measure and that representativeness will not be restored.
“Beneficial Ownership Certification” means, for a “legal entity customer”
(as such term is defined in the Beneficial Ownership Regulation), a certification regarding beneficial ownership to the extent required by the Beneficial Ownership Regulation with respect to such “legal entity customer”, which certification shall
be substantially in the form of Exhibit W hereto.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Binding Limitations” means, with respect to any Person, any limitation or
restriction in its Partnership Agreement or any other Constituent Document thereof to the extent that exceeding or otherwise being in violation of such limitation would cause such Person to be in breach of its Partnership Agreement or any other
Constituent Document thereof and/or require remedial action by such Person or its General Partner as a result thereof. For the avoidance of doubt, any limitation, restriction or guideline that is a target amount or that would not require remedial
action if exceeded shall not be considered a Binding Limitation.
“Borrower” is defined in the preamble
to this Credit Agreement; “Borrowers” means, each of the entities from time to time listed as “Borrowers” on Schedule
I hereto (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time).
“Borrower Joinder Agreement” means an agreement substantially in the form
of Exhibit V-1 hereto, pursuant to which an Additional Borrower joins the Credit Facility as a Borrower.
“Borrower Party” is defined in Section 11.1(a) hereof.
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“Borrowing” means a disbursement made by the Lenders of any of the proceeds
of the Loans, and “Borrowings” means the plural thereof.
“Borrowing Base” means an amount equal to the Adjusted NAV multiplied by
the Portfolio Borrowing Base Advance Rate.
“Business Day” means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact closed in, New York City, and (a) if such day relates to any Eurocurrency Rate Loan denominated in Euros, a TARGET Day, (b) if such day relates to any dealings in any
other Alternative Currency, any day in which banks are open for foreign currency exchange business in the principal financial center of the country of such Alternative Currency, and (c) if such day relates to Loans denominated in Dollars, such day
is not a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Canadian Dollars” and the sign “CAD$” means the lawful currency of Canada.
“Capital Lease” means, as applied to any Person, any lease of any property
(whether real, personal or mixed) by that Person as lessee which, in accordance with Generally Accepted Accounting Principles, is or should be accounted for as a capital lease or finance lease on the balance sheet of that Person and the amount of
such obligation shall be the capitalized amount thereof determined in accordance with Generally Accepted Accounting Principles.
“Capitalized Interest Loan” is defined in Section 3.3(d) hereof.
“Capitalized Unused Commitment Fee Loan” is defined in Section 2.12(b) hereof.
“Cash Control Event” means (a) any Event of Default has occurred and is
continuing, (b) any Potential Default pursuant to Section 10.1(a), (h) or (i)
hereof has occurred and is continuing, (c) a breach of the Financial Covenants has occurred and is continuing, and/or (d) any other Trigger Event has occurred and is continuing.
“Cash Equivalents” means, collectively, (a) marketable direct obligations
issued or unconditionally guaranteed by the United States or any agency thereof to the extent such obligations are backed by the full faith and credit of the United States, in each case maturing within one (1) year from the date of acquisition
thereof, (b) commercial paper maturing no more than two hundred seventy (270) days from the date of creation thereof and currently having the highest rating obtainable from either S&P or ▇▇▇▇▇’▇ (or, if at any time either S&P or ▇▇▇▇▇’▇ are
not rating such fund, an equivalent rating from another nationally recognized statistical rating agency), (c) investments in certificates of deposit, banker’s acceptances, money market deposits and time deposits maturing within one hundred eighty
(180) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or
any State thereof that has a combined capital and surplus and undivided profits of not less than $500,000,000 and having a long-term debt rating of “A” or better by S&P or “A2” or better from Moody’s (or, if at any time either S&P or
▇▇▇▇▇’▇ are not rating such fund, an equivalent rating from another nationally recognized statistical rating agency) and (d) investments in any money market fund or money market mutual fund that has (i) substantially all of its assets invested in
the types of investments referred to in clauses (a) through (c) above, (ii) net assets of not less than $250,000,000 and (iii) a rating of at least A2 from S&P or at least P-2 from Moody’s (or, if at any time either S&P or ▇▇▇▇▇’▇ are not
rating such fund, an equivalent rating from another nationally recognized statistical rating agency).
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“Change of Control” means, either (a) Stonepeak shall cease to Control any
Credit Party, or (b) (i) none of the Advisor or Stonepeak, as applicable, shall be acting in the capacity of the “Investment Advisor” (or similar role, including the “Portfolio Manager” of the Luxembourg Infra-Fund) with respect to each Infra-Fund,
or (ii) such “Investment Advisor” (or similar entity) shall cease to be directly or indirectly controlled by, or under common control with, Stonepeak.
“CIBOR” is defined in the definition of “Eurocurrency Rate”.
“Closing Date” means July 16, 2025.
“Collateral” is defined in Section
5.1 hereof.
“Collateral Account” means, each Distribution Collateral Account; “Collateral Accounts” means, where the context may require, all Collateral
Accounts, collectively.
“Collateral Account Control Agreement” means, with respect to each
Collateral Account, each “springing” account control agreement among a Credit Party, the Administrative Agent and the Depository Bank, as the same may be amended, supplemented or modified from time to time.
“Collateral Account Pledge” means, each Distribution Collateral Account Pledge; “Collateral Account Pledges” means, where the context may require, all
Collateral Account Pledges, collectively.
“Collateral Agent” has the meaning assigned to such term in the applicable
Collateral Account Pledge.
“Collateral Documents” is defined in Section 5.1 hereof.
“Commitment Period” means the period commencing on the Closing Date and
ending on the Maturity Date.
“Competitor” means any private equity, credit, real estate, renewable
energy and/or infrastructure fund, Affiliate thereof or Person whose primary business is the management of private equity, renewable energy, credit, real estate and/or infrastructure funds (including mezzanine investment funds), excluding any
commercial or investment bank (including any commercial or investment bank that sponsors private equity, credit, real estate, renewable energy and/or infrastructure funds, privately negotiated mezzanine funds or makes private equity, real estate or
infrastructure investments, mezzanine or other loans); provided that any such fund sponsored by a commercial or investment bank shall be deemed to be a Competitor.
“Compliance Certificate” is defined in Section 8.1(b) hereof.
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“Confidential Information” means, at any time, all data, reports,
interpretations, forecasts and records containing or otherwise reflecting information and concerning any Credit Party or any Investor or Affiliate of such Person which is not available to the general public, together with analyses, compilations,
studies or other documents, which contain or otherwise reflect such information made available by or on behalf of any Credit Party, any Investor or any such Affiliate pursuant to this Credit Agreement orally or in writing to the Administrative
Agent or any Lender or their respective attorneys, certified public accountants or agents, but shall not include any data or information that: (a) was or became generally available to the public at or prior to such time (unless divulged by the
Administrative Agent or such Lender or the Administrative Agent’s or the Lender’s respective attorneys, certified public accountants or agents); or (b) was or became available to the Administrative Agent or a Lender or to the Administrative Agent’s
or Lender’s respective attorneys, certified public accountants or agents on a non-confidential basis from the Credit Parties or any Investor or any other source at or prior to such time, other than as a result of a prohibited (insofar as the
Administrative Agent or Lender has actual knowledge of) disclosure by such other source.
“Conforming Changes” means, with respect to either the use or
administration of Term SOFR, ▇▇▇▇▇ or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Reference Rate,” the definition of
“Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback
periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent and the Borrower mutually decide may be appropriate to reflect the adoption and implementation of such
Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is
not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent and the Borrower
mutually decide is reasonably necessary in connection with the administration of this Credit Agreement and the other Loan Documents).
“Constituent Documents” means, for any Person, its constituent or
organizational documents, including: (a) in the case of any limited partnership, exempted limited partnership, special limited partnership, joint venture, trust or other form of business entity, the limited partnership, the exempted limited
partnership, joint venture or other applicable agreement of formation, registration the certificate or declaration of limited partnership or exempted limited partnership, and any agreement, instrument, filing, notice or report with respect thereto
filed in connection with its formation and/or registration with the secretary of state, registrar of exempted limited partnerships or other department in the state, province, territory or other jurisdiction of its formation and/or registration, in
each case as amended from time to time; (b) in the case of any limited liability company, the articles of association, certificate of formation and operating agreement or limited liability company agreement for such Person; and (c) in the case of a
corporation or exempted company, the certificate and/or memorandum and articles of incorporation and the bylaws for such Person, and in the case of an exempted company only, the register of directors, register of officers and register of mortgages
and charges for such Person, in each such case as it may be restated, modified, amended or supplemented from time to time.
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“Construction Eligible Investment” means any Eligible Primary Investment
that is a standalone construction project or other project under or subject to material development, in each case to the extent such Eligible Primary Investment is not income generating. For the avoidance of doubt, secondary investments in funds
managed by Stonepeak which hold investments that include construction or development projects will not be deemed Construction Eligible Investments.
“Continue”, “Continuation”, and “Continued” shall refer to the continuation pursuant to a Rollover of a Eurocurrency Rate Loan or a
Term RFR Loan from one Interest Period to the next Interest Period.
“Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling”
and “Controlled” have meanings correlative thereto.
“Controlled Group” means: (a) the controlled group of corporations as
defined in Section 414(b) of the Internal Revenue Code; or (b) the group of trades or businesses under common control as defined in Section 414(c) of the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes
of provisions relating to Section 412 of the Internal Revenue Code and 302 of ERISA), in each case of which the applicable Credit Party is a member.
“Conversion”, “Convert”, and “Converted” shall refer to a conversion pursuant to Section
2.3(c) or Section 4 hereof of one Type of Loan into another Type of Loan.
“Conversion Date” means any Daily Simple SOFR Conversion Date, Term SOFR
Conversion Date or Reference Rate Conversion Date, as applicable.
“Conversion Notice” is defined in Section 2.3(c) hereof.
“▇▇▇▇▇” means the Canadian Overnight Repo Rate Average administered and
published by the ▇▇▇▇▇ Administrator.
“▇▇▇▇▇ Administrator” means the Bank of Canada or any successor
administrator of the Canadian Overnight Repo Rate Average.
“▇▇▇▇▇ Administrator’s Website” means the Bank of Canada’s website,
currently at ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇-▇▇▇▇▇/▇▇▇▇▇/, or any successor source for the Canadian Overnight Repo Rate Average identified as such by the ▇▇▇▇▇ Administrator from time to time
“▇▇▇▇▇ RFR Determination Day” is defined in the definition of “Daily Simple
RFR”.
“Credit Agreement” means this Revolving Credit Agreement, of which this Section 1.1 forms a part, together with all amendments, modifications and restatements hereof, and supplements and attachments hereto.
“Credit Facility” means the Loans and Letters of Credit provided to the
Borrower by the Lenders under the terms and conditions of this Credit Agreement.
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“Credit Party” means the Borrower and each Guarantor, and “Credit Parties” means, collectively, the Borrower and the Guarantors.
“Currency” means Dollars or an Alternative Currency.
“Current Party” is defined in Section 12.12 hereof.
“Daily Simple RFR” means, for any day (an “RFR Rate Day”), a rate per annum equal to, for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to:
(a) Dollars, the greater of (i) SOFR for the day (such day, a “SOFR
RFR Determination Day”) that is five (5) Business Days prior to (x) if such RFR Rate Day is a Business Day, such RFR Rate Day, or (y) if such RFR Rate Day is not a Business Day, the Business Day immediately preceding such RFR Rate Day, in
each case, as published by the SOFR Administrator on the SOFR Administrator’s Website, and (ii) the Floor;
(b) ▇▇▇▇▇▇▇▇, the greater of (i) ▇▇▇▇▇ for the day (such day, a “▇▇▇▇▇ RFR Determination Day”) that is five (5) Business Days prior to (x) if such RFR Rate Day is a Business Day, such RFR Rate Day, or (y) if such RFR Rate Day is not a Business Day, the Business Day immediately preceding such
RFR Rate Day, in each case, utilizing the ▇▇▇▇▇ component of such ▇▇▇▇▇ that is published by the ▇▇▇▇▇ Administrator on the ▇▇▇▇▇ Administrator’s Website and (ii) the Floor;
(c) Swiss Francs, the greater of (i) SARON for the day (such day, a “SARON RFR Determination Day” and, together with SOFR RFR Determination Day and ▇▇▇▇▇ RFR Determination Day, each an “RFR Determination Day”))
that is five (5) Business Days prior to (x) if such RFR Rate Day is a Business Day, such RFR Rate Day, or (y) if such RFR Rate Day is not a Business Day, the Business Day immediately preceding such RFR Rate Day, in each case, utilizing the SARON
component of such SARON that is published by the SARON Administrator on the SARON Administrator’s Website and (ii) the Floor; and
(d) Canadian Dollars, the greater of (i) ▇▇▇▇▇ for the day (such day, a “▇▇▇▇▇ RFR Determination Day”) that is five (5) Business Days prior to (x) if such RFR Rate Day is a Business Day, such RFR Rate Day, or (y) if such RFR Rate Day is not a Business Day, the Business Day immediately preceding such
RFR Rate Day, in each case, utilizing the rate that is published by the ▇▇▇▇▇ Administrator on the ▇▇▇▇▇ Administrator’s Website and (ii) the Floor.
If by 5:00 pm (local time for the applicable RFR) on the second (2nd) Business Day immediately following any applicable RFR Determination Day, the RFR in respect of
such RFR Determination Day has not been published on the applicable SOFR Administrator’s Website, ▇▇▇▇▇ Administrator’s Website, SARON Administrator’s Website, or ▇▇▇▇▇ Administrator’s Website and a Benchmark Replacement Date with respect to the
applicable Daily Simple RFR has not occurred, then the RFR for such RFR Determination Day will be the RFR as published in respect of the first preceding Business Day for which such RFR was published on the applicable SOFR Administrator’s Website,
▇▇▇▇▇ Administrator’s Website, SARON Administrator’s Website, or ▇▇▇▇▇ Administrator’s Website; provided that any RFR determined pursuant to this sentence shall be utilized for purposes
of calculation of Daily Simple RFR for no more than three (3) consecutive RFR Rate Days. Any change in Daily Simple RFR due to a change in the applicable RFR shall be effective from and including the effective date of such change in the applicable
RFR without notice to the Borrower.
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“Daily Simple RFR Loan” means a Loan that bears interest at a rate based on
Daily Simple RFR other than pursuant to clause (c) of the definition of “Reference Rate”.
“Daily Simple SOFR Conversion Date” is defined in Section 2.3(c) hereof.
“Debt Limitations” means the limitations set forth in Section 9.11 hereof.
“Debtor Relief Laws” means any applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally in any applicable jurisdiction, including, without limitation, the United
States Bankruptcy Code, in each case, including all regulations thereunder and as amended from time to time, as are in effect from time to time during the term of the Loans or while any Letter of Credit is in effect or any Obligation is outstanding
or any Lender or Letter of Credit Issuer has any commitment to extend credit hereunder.
“Default Rate” means on any day the lesser of: (a) the applicable interest
rate for such outstanding amount (including the Applicable Margin) in effect on such day (or if no interest rate is otherwise applicable, the applicable interest rate for
Reference Rate Loans including the Applicable Margin) plus two percent (2%); or (b) the Maximum
Rate.
“Defaulting Lender” means any Lender that: (a) has failed to make its Pro
Rata Share of any disbursement required to be made in respect of any Loan within three (3) Business Days of when due; (b) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it
hereunder within three (3) Business Days of the date when due, unless such amount is the subject of a good faith dispute; (c) has been deemed insolvent or becomes the subject of a bankruptcy or insolvency proceeding; (d) has notified the Borrower,
the Administrative Agent or any Lender in writing that it does not intend to comply with any of its funding obligations under this Credit Agreement or has made a public statement that it does not intend to comply with its funding obligations under
this Credit Agreement or generally under credit agreements substantially similar to this Credit Agreement (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder or a loan under any such other credit
agreement and states that such position is based on such ▇▇▇▇▇▇’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public
statement) cannot be satisfied); (e) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in a manner reasonably satisfactory to the Administrative Agent or the Borrower, as
applicable, that it will comply with the terms of this Credit Agreement relating to its obligation to fund prospective Loans; or (f) has, or has an entity that controls such Lender that has, other than via an Undisclosed Administration become the
subject of (i) a bankruptcy or insolvency proceeding, (ii) a Bail-in Action, or (iii) has publicly appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or assets; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in
that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest or appointment (as applicable) does not result in or provide such Lender with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.
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“Delaware Infra-Fund” means Stonepeak-Plus Infrastructure Fund LP, a Delaware limited partnership.
“Depository Bank” means any institution identified in Schedule I hereto as a depository bank with respect to any Collateral Account as of the Closing Date (or any successor thereto or Affiliate thereof) (each, an “Initial Depository Bank”) or any other financial institution which is an Eligible Institution, in each case, in its capacity as depository or securities intermediary, as the case may be.
“Distinct Eligible Investment” means, any single Investment held by a
Credit Party or a Holding Vehicle which is an Eligible Primary Investment; provided that (i) with respect to any Investment in a pooled investment vehicle held by a Credit Party or
Holding Vehicle, each pooled investment vehicle related thereto shall be deemed to be a single Investment for the purposes of this Agreement (it being understood that investments in independent pooled investment vehicles will not be considered a
single Investment), and (ii) any Investments held by one or more Credit Parties or Holding Vehicles that are cross-collateralized with each other (excluding, for the avoidance of doubt, under the Loan Documents) shall be deemed to be a single
Investment for the purposes of this Agreement.
“Distribution” is defined in Section
9.10 hereof.
“Distribution Collateral Account” means, with respect to each Credit Party,
each deposit and/or securities account specified as the “Distribution Collateral Account” for such Credit Party on Schedule I hereto, as amended, restated, supplemented or otherwise
modified from time to time, into which Portfolio Investment Distributions that are received by such Credit Party shall be required to be deposited, as more fully described in Section 5.2
hereof, in each case, shall include the bank accounts described in each Distribution Collateral Account Pledge; “Distribution Collateral Accounts” means, where the context may require, all Distribution Collateral Accounts, collectively.
“Distribution Collateral Account Pledge” means a pledge by a Credit Party,
substantially in the form of Exhibit D hereto, pursuant to which such Credit Party pledges and/or assigns to the Administrative Agent, for the benefit of the Secured Parties, a security
interest and Lien in and on its Distribution Collateral Account, as the same may be amended, restated, supplemented or otherwise modified from time to time; “Distribution
Collateral Account Pledges” means, where the context may require, all Distribution Collateral Account Pledges, collectively.
“Distribution Reinvestment Plan” means, the reinvestment plan pursuant to
which an Infra-Fund Subscription Entity permits distributions to its Investors to be reinvested into Units in an amount equal to the amount of any distributions by such Infra-Fund Subscription Entity that such Investor has elected (or been deemed
to have elected by not opting out of such plan, as applicable) to be reinvested in Units.
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“Divide” means, with respect to a limited liability company, limited
partnership or other business entity, any division under Section 18-217 of the Delaware Limited Liability Company Act, or any similar statute in other jurisdictions applicable to such Person, and shall include the filing of any certificate or plan
of division by such Person.
“Dollar Equivalent” means, at any time on any date of determination: (a)
with respect to any amount denominated in Dollars, such amount; and (b) with respect to any amount denominated in an Alternative Currency, the equivalent amount thereof in Dollars as reasonably determined by the Administrative Agent or the Letter
of Credit Issuer, as the case may be, at such time on the basis of the Spot Rate for the purchase of Dollars with such Alternative Currency.
“Dollars” and the sign “$” means the lawful currency of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment
firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition and is
subject to the supervision of an EEA Resolution Authority, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to
consolidated supervision of an EEA Resolution Authority with its parent.
“EEA Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any
person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means an Assignee that has been approved in accordance
with Section 12.11(c) hereof.
“Eligible Institution” means the Initial Depository Bank or any depository
institution, organized under the laws of the United States or any state, having capital and surplus in excess of $200,000,000, the deposits of which are insured by the Federal Deposit Insurance Corporation to the fullest extent permitted by law and
which is subject to supervision and examination by federal or state banking authorities; provided that such institution also must have a short-term unsecured debt rating of at least P-1
from Moody’s and at least A-1 from S&P. If such depository institution publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
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“Eligible Investment” means each Investment of a Credit Party (held
directly or indirectly through a Holding Vehicle) that (a) in respect of any Eligible Primary Investments, at any time there are less than twelve (12) Eligible Primary Investments (including such Investment) at the time such Eligible Primary
Investment is first designated as an Eligible Investment, (x) has been approved by the Administrative Agent in its reasonable discretion, or (y) is a follow-on investment or a follow-up investment with respect to an existing Eligible Investment,
and with respect to which Follow-On Investment Materials have been delivered to the Administrative Agent and (b) with respect to all Eligible Investments (noting, for the avoidance of doubt, that clause (a) of this definition will not apply to any
Eligible Primary Investments if there are at least twelve (12) Eligible Primary Investments at the time such Eligible Primary Investment is first designated as an Eligible Investment under this Credit Agreement or to any Liquid Assets):
(i) if requested by the Administrative
Agent or any Lender, with respect to which a Credit Party has delivered evidence of its ownership (directly or indirectly through a Holding Vehicle) in form and substance acceptable to the Administrative Agent, acting reasonably (it being
understood that disclosure of such Investment in any applicable reports delivered pursuant to Section 8.1(a), (b) or (c) and certified by a Responsible Officer of a Credit Party and/or any publicly filed reports of any Infra-Fund shall be deemed acceptable evidence of such ownership);
(ii) which Investment has been made
consistent with the Investment Policy;
(iii) that is not subject to a Material
Investment Event; and
(iv) with respect to which no Credit Party or
Holding Vehicle has incurred any Lien on its Equity Interest therein (except for (x) any Permitted Lien and (y) solely in the case of any Holding Vehicle, any Lien in respect of Indebtedness not restricted under Section 9.11 and taken into account in determining the Adjusted NAV).
Any Investment (or portion thereof, as applicable) subject to a Material Investment Event shall be excluded as an Eligible Investment upon the earlier of notice from
the Administrative Agent or the Borrower obtaining knowledge thereof, until such time as such Material Investment Event, if capable of cure, is cured, and the Administrative Agent and the Required Lenders have approved the re-inclusion of such
Investment (or portion thereof, as applicable) as an Eligible Investment, in their reasonable discretion. The Eligible Investments as of the Closing Date are listed on Schedule III
hereto.
“Eligible Primary Investment” means each Eligible Investment other than any
Liquid Assets.
“EMU Legislation” means the legislative measures of the European Council
for the introduction of changeover to or operation of a single or unified European currency.
“Environmental Laws” means all federal, state, provincial, territorial,
national, international and local laws, ordinances, regulations or policies in force and binding relating to pollution or protection of human health as relating to the exposure to Hazardous Materials or the environment including without limitation,
air pollution, water pollution, noise control, or the use, handling, discharge, disposal or Release of Hazardous Materials, applicable to any Credit Party, and any and all regulations promulgated under or pursuant to any such statute of any
applicable governing body.
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“Equity Interests” means, with respect to any Person, all (a) shares,
interests, participations or other equivalents (howsoever designated) of capital stock and other equity interests of such Person, including without limitation partnership interests, limited partnership interests, exempted limited partnership
interests, general partnership interests in a partnership, or exempted limited partnership or membership interests, whether common or preferred and whether voting or non-voting or any other “equity security” (as such term is defined in Rule 3a11-1
under the Securities Exchange Act of 1934, as amended), and (b) rights (other than debt securities convertible into capital stock or other equity interests), warrants or options to acquire any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder, as from time to time in effect.
“ERISA Investor” means an Investor that is: (a) an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Part 4, Subtitle B of Title I of ERISA; (b) any “plan” defined in Section 4975 of the Internal Revenue Code to which the prohibited transaction provisions of Section 4975 applies; (c) a group trust, as described in Revenue Ruling 81-100, as amended; or (d) a partnership or commingled account of an employee benefit plan or plan described in clause (a) or (b) above, or any entity whose assets constitute Plan Assets.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule
published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR” is defined in the definition of “Eurocurrency Rate”.
“Eurocurrency Rate” means, with respect to any Eurocurrency Rate Loan for
any Interest Period,
(a) in the case of Australian Dollars, the rate per annum (rounded upwards if necessary to the nearest 1/100 of 1%) equal to the Bank Bill Swap Bid
Rate (“BBSY”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be
designated by the Administrative Agent from time to time in its reasonable discretion) at approximately 10:30 a.m. (Melbourne, Australia time) on the date two (2) Business Days prior to the commencement of such Interest Period, for deposits in
Australian Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
(b) in the case of Euros, the rate per annum (rounded upwards if necessary to the nearest 1/100 of 1%) equal to the Euro Interbank Offered Rate (“EURIBOR”) as administered by the European Money Markets Institute (or any other Person that takes over the administration of such rate), as published on the
applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m. (Brussels time) on
the date two (2) Business Days prior to the commencement of such Interest Period, for deposits in Euros (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
(c) in the case of Yen, the rate per annum (rounded upwards if necessary to the nearest 1/100 of 1%) equal to the Tokyo Interbank Offered Rate (“▇▇▇▇▇”) as administered by the Ippan ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Administration (or any other Person that takes over the administration of such rate), as published
on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m. (Tokyo time)
on the date two (2) Business Days prior to the commencement of such Interest Period, for deposits in Yen (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
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(d) in the case of Danish Krone, the rate per annum (rounded upwards if necessary to the nearest 1/100 of 1%) equal to the Copenhagen Interbank
Offered Rate (“CIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may
be designated by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m. (Copenhagen, Denmark time) on the date two (2) Business Days prior to the commencement of such Interest Period, for deposits in
Danish Krone (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;
(e) in the case of Swedish Krona, the rate per annum (rounded upwards if necessary to the nearest 1/100 of 1%) equal to the Stockholm Interbank
Offered Rate (“▇▇▇▇▇▇”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may
be designated by the Administrative Agent from time to time in its reasonable discretion) at approximately 11:00 a.m. (Stockholm, Sweden time) on the date two (2) Business Days prior to the commencement of such Interest Period, for deposits in
Swedish Krona (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; or
(f) in the case of any other Alternative Currency (other than Canadian
Dollars, Sterling or Swiss Francs), the rate per annum (rounded upwards if necessary to the nearest 1/100 of 1%) as designated with respect to such Alternative Currency at the time
such Alternative Currency is approved by the Administrative Agent and the Lenders; provided that, if more than one rate is published by Bloomberg (or such other commercially available source providing quotations of such applicable rate,
as designated by the Administrative Agent from time to time in its reasonable discretion), the applicable rate shall be the arithmetic mean of all such rates;
provided, that the foregoing definition
shall be subject to any Conforming Changes or Benchmark Replacement Conforming Changes. For the avoidance of doubt, in the event that any such Eurocurrency Rate is, at any time, below the Floor, such rate shall be deemed to be the Floor for all
purposes under this Credit Agreement.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based
on the Eurocurrency Rate.
“Euros”, “EUR” and the sign “€” mean the single, legal currency of the Participating Member States introduced in accordance with the EMU
Legislation.
“Event of Default” is defined in Section 10.1 hereof.
“Excess Prepayment Amount” has the meaning given to it in Section 2.1(d)(i).
“Excess Prepayment Event” has the meaning given to it in Section 2.1(d)(i).
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“Excluded Taxes” means, with respect to the Administrative Agent and any
Lender or Letter of Credit Issuer in relation to any Loan Document or Letter of Credit or with respect to any payment made to any such Person in relation to any Loan Document or Letter of Credit, all (a) Taxes imposed on or measured by net income
(however denominated), franchise taxes (imposed in lieu of net income Taxes), and branch profits Taxes, in each case, (i) imposed by the jurisdiction (or any political subdivision thereof) under the Laws of which such Person is organized, has its
principal office, maintains its Applicable Lending Office or otherwise is resident for Tax purposes, or (ii) that are Other Connection Taxes, (b) Taxes imposed by reason of the failure of any such Person to comply with Section 4.6(e), or the failure of the Administrative Agent to comply with Section 4.6(f), (c) withholding Taxes imposed by the United States with
respect to an applicable interest in a Loan, Letter of Credit or Lender Commitment pursuant to a law in effect on the date on which (i) a Lender or Letter of Credit Issuer acquires such interest in the Loan, Letter of Credit or Lender Commitment,
as applicable, other than pursuant to an assignment request by a Borrower under Section 4.9, or (ii) such Lender changes its Applicable Lending Offices, except in the case of either (i)
or (ii) to the extent that amounts with respect to such withholding Taxes were payable either to such Lender’s or Letter of Credit Issuer’s assignor immediately before such Lender or Letter of Credit Issuer became a party hereto or to such Lender
immediately before it changed its Applicable Lending Office, and (d) any withholding Taxes imposed under FATCA.
“Extension Request” means a written request by the Borrower substantially
in the form of Exhibit U hereto to extend the Stated Maturity Date.
“Facility Increase” is defined in Section 2.15(a) hereof.
“Facility Increase Fee” means the fee payable with respect to any Facility
Increase in accordance with Section 2.15 hereof, as set forth in the Fee Letter.
“Facility Increase Request” means the notice substantially in the form of Exhibit O hereto pursuant to which the Borrower requests an increase of the Lender Commitments in accordance with Section 2.15
hereof.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of
the date of this Credit Agreement (and any amended or successor version that is substantially comparable and not more materially onerous to comply with), any current or future regulations or official interpretations thereof and any similar
amendments thereto or successor provisions, any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreements entered into in connection with the implementation of such Sections of the
Internal Revenue Code and any fiscal or regulatory legislation, rules or guidance notes or official practices adopted pursuant to or in connection with any such intergovernmental agreements.
“Federal Funds Rate” means, for any day, the rate calculated by the Federal
Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day as the federal funds effective rate; provided that if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) received by the Administrative Agent from three Federal funds brokers of recognized standing selected by
the Administrative Agent.
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“Fee Letter” means (a) that certain Fee Letter dated as of the date hereof
between the Borrower and the Administrative Agent and (b) each other fee letter entered into by the Borrower and each applicable Lender from time to time, in each case as the same may be amended, supplemented or otherwise modified from time to
time.
“Financial Covenants” means each of the financial
covenants set forth in Section 9.17 hereof.
“Financial Covenant Certificate” is defined in Section 8.1(c) hereof.
“Floor” means a rate of interest equal to zero percent (0%).
“Follow-On Investment Materials” means, materials and
information in form and substance reasonably satisfactory to the Administrative Agent, including with respect to the ownership, acquisition cost, leverage and five (5) year (or such shorter period reasonably acceptable to the Administrative Agent)
dividend forecast of such Investment, together with a business description of such Investment.
“General Partner” and “General Partners” means in respect of any Person, the general partner, managing member or other similar managing fiduciary of such Person, and with respect to each Credit Party, as listed on Schedule I hereto (as the same may be amended from time to time in accordance with the terms hereof), and in each case, any successor thereto permitted under this Credit Agreement.
“Generally Accepted Accounting Principles” means those generally accepted
accounting principles and practices that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof (or the equivalent
thereof in the appropriate jurisdiction of the applicable Person’s organization, solely in the case of a Person organized outside of the United States which is subject to generally accepted accounting principles of a different jurisdiction), and
that are consistently applied for all periods, after the date hereof, so as to properly reflect the financial position of the applicable Person, except that any accounting principle or practice required to be changed by the Financial Accounting
Standards Board (or other appropriate board or committee of said Board, or the equivalent thereof in the appropriate jurisdiction) in order to continue as a generally accepted accounting principle or practice may be so changed.
“Governmental Authority” means any foreign governmental authority, the
United States of America, any State of the United States of America, and any subdivision of any of the foregoing whether provincial, state, territorial or local, and any agency, department, regulatory body, fiscal or monetary authority or other
authority relating to financial institutions, central bank, commission, board, authority or instrumentality, bureau or court having jurisdiction over any Credit Party, the Administrative Agent, any Lender, the Letter of Credit Issuer, or any of
their respective businesses, operations, assets, or properties, including any supra-national bodies (such as the European Union or the European Central Bank).
“Guarantor Joinder Agreement” means an agreement substantially in the form
of Exhibit V-2 hereto, pursuant to which an Additional Guarantor joins the Credit Facility as a Guarantor.
“Guarantors” are defined in the preamble to this Credit Agreement.
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“Guaranty Obligations” means, with respect to any Person, without
duplication, any obligations guaranteeing any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent: (a) to purchase any such Indebtedness or other
obligation or any property constituting security therefor; (b) to advance or provide funds or other support for the payment or purchase of such Indebtedness or obligation or to maintain working capital, solvency or other balance sheet condition of
such other Person (including, without limitation, maintenance agreements, comfort letters, take or pay arrangements, put agreements or similar agreements or arrangements) for the benefit of the holder of Indebtedness of such other Person; (c) to
lease or purchase property, securities or services primarily for the purpose of assuring the owner of such Indebtedness of the ability of the primary obligor to make payment of such primary obligation; or (d) to otherwise assure or hold harmless
the owner of such Indebtedness or obligation against loss in respect thereof; provided, however, that the term “Guaranty
Obligations” shall not include (w) endorsements of instruments for deposit or collection in the ordinary course of business, (x) deposits or other obligations to secure the performance of bids or trade contracts (other than for borrowed money), (y)
contingent obligations under customary “carve outs” in non-recourse loan documentation, including, but not limited to, environmental indemnities, guarantees of environmental indemnities and guarantees of non-recourse carve-outs which are usual and
customary in like transactions involving incurrence of such obligations or liabilities made by subsidiaries of such Person, and (z) other contingent obligations and liabilities which are not shown as indebtedness in the financial statements of the
Credit Parties, including but not limited to completion guaranties. The amount of any Guaranty Obligation of any guaranteeing Person shall be deemed to be the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of
the instrument embodying such Guaranty Obligation, unless such maximum amount for which such guaranteeing Person may be liable is not stated or determinable, in which case the amount of such Guaranty Obligation shall be such guaranteeing Person’s
maximum reasonable anticipated liability in respect thereof as determined by such Person in good faith.
“Hazardous Material” means any substance, material, or waste which is or
becomes regulated under any Environmental Law, as hazardous to public health or safety or to the environment, including, but not limited to: (a) any substance or material designated as a “hazardous substance” pursuant to Section 311 of the Clean
Water Act, as amended, 33 U.S.C. §1251 et seq., or listed pursuant to Section 307 of the Clean Water Act, as amended; (b) any substance or material defined as “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act,
as amended, 42 U.S.C. §6901 et seq.; (c) any substance or material defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq.; or (d)
petroleum, petroleum products and petroleum waste materials.
“Hedging Agreements” means, collectively, interest rate protection
agreements, foreign currency exchange agreements, commodity purchase or option agreements or other interest or exchange rate or commodity price hedging agreements.
“Holding Vehicle” means each holding company, special purpose vehicle or
similar entity that is a direct or indirect Subsidiary of one or more Credit Parties and/or any non-economic general partner or managing member and through which such Credit Party hold(s) an Investment, including any vehicles used to aggregate such
holdings; provided, that for the avoidance of doubt, to the extent any “Other Stonepeak Account” (as defined in the Partnership Agreement of the Delaware Infra-Fund) or
unaffiliated joint venture partner or other co-investor holds Equity Interests in such holding company, special purpose vehicle or similar entity, such Person shall not be a Holding Vehicle.
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“Increase Effective Date” is defined in Section 2.15(a) hereof.
“Indebtedness” of any Person means, without duplication: (a) all
obligations of such Person for borrowed money or with respect to advances of any kind held by such Person; (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are
customarily made; (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business); (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business); (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed; (f) all Guaranty Obligations (including, in respect of or under Hedging Agreements) of such Person in respect of Indebtedness of others; (g) all obligations of such Person
under: (i) Capital Leases; and (ii) any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product of such Person where such transaction is considered borrowed money indebtedness for United
States federal tax purposes but is classified as an operating lease in accordance with Generally Accepted Accounting Principles; (h) all obligations of such Person to repurchase any securities which repurchase obligation is related to the issuance
thereof; (i) all net obligations of such Person in respect of or under Hedging Agreements; (j) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and instruments of a like nature or of such
Person in respect of bankers’ acceptances; (k) debt obligations in respect of equity commitment letters provided in support of Indebtedness for Borrowed Money, and (l) the aggregate amount of uncollected accounts receivable of such Person subject
at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person or in a manner that would not be reflected on the balance sheet of such Person in accordance with
Generally Accepted Accounting Principles. The Indebtedness of any Person shall include the Indebtedness of any partnership, exempted limited partnership or unincorporated joint venture or similar entity for which such Person is legally obligated
unless made non-recourse to such Person by written agreement reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, Indebtedness shall not include obligations and liabilities which are not shown as obligations or
liabilities on the financial statements of such Person.
“Indebtedness for Borrowed Money” means, for any Person, any Indebtedness
of such Person as described under clauses (a), (b), (j) and (k) of the definition of “Indebtedness”.
“Indemnitee” is defined in Section
12.5(b) hereof.
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“Infra-Fund” means each of the Delaware Infra-Fund and the Luxembourg Infra-Fund; “Infra-Funds” means, where the context may require, the Delaware
Infra-Fund and the Luxembourg-Infra-Fund, collectively.
“Infra-Fund Feeder” means Stonepeak-Plus Infrastructure Fund (TE) LP, a
Delaware limited partnership.
“Infra-Fund Subscription Entity” means each Infra-Fund and the Infra-Fund
Feeder.
“Infra-Fund Supplemental Agreement” means any supplemental or other
agreement executed by or on behalf of an Investor with any Infra-Fund Subscription Entity, the General Partner thereof or Stonepeak with respect to such Investor’s rights and/or obligations under its subscription agreement or the applicable
Partnership Agreement (if any).
“ING” means ING Capital LLC, a Delaware limited liability company.
“Initial Borrower” is defined in the preamble to this Credit Agreement.
“Initial Cayman Credit Parties” means, the Initial Borrower and the Initial
Cayman Guarantors.
“Initial Cayman Guarantor” means each of the Liquidity Guarantor, Stonepeak-Plus Infrastructure Fund Lower Fund VI-A LP, a Cayman Islands exempted limited partnership, acting by its general partner, Stonepeak-Plus Infrastructure Fund
Associates (CYM) LP, acting by its general partner, Stonepeak-Plus Infrastructure Fund Cayman Ltd and Stonepeak-Plus Infrastructure Fund Lower Fund VI-B LP; a Cayman Islands exempted limited partnership, acting by its general partner,
Stonepeak-Plus Infrastructure Fund Associates (CYM) LP, acting by its general partner, Stonepeak-Plus Infrastructure Fund Cayman Ltd, “Initial Cayman Guarantors”
means, where the context may require, Stonepeak-Plus Infrastructure Fund Lower Fund VI-A LP, acting by its general partner, Stonepeak-Plus Infrastructure Fund Associates (CYM) LP, acting by its general partner, Stonepeak-Plus Infrastructure Fund
Cayman Ltd and Stonepeak-Plus Infrastructure Fund Lower Fund VI-B LP, acting by its general partner, Stonepeak-Plus Infrastructure Fund Associates (CYM) LP, acting by its general partner, Stonepeak-Plus Infrastructure Fund Cayman Ltd, collectively.
“Initial Guarantor” means each Guarantor identified as an “Initial
Guarantor” on Schedule I hereto (as the same may be amended, amended and restated, supplemented or otherwise modified from time to time).
“Initial Purchase Agreement” is defined in Section 2.1(g) hereof.
“Intraperiod Adjustment Event” has the meaning assigned in the definition
of “Value”.
“Interest Coverage Ratio” means, as of any date of determination, the ratio
of:
(a) (i) the sum of (x)
without duplication, the aggregate income of the Credit Parties from Portfolio Investment Distributions as reflected on the applicable financial statements during the trailing twelve (12) month period, plus (y) prior to the date ending July 14, 2028, without duplication, cash and Cash Equivalents on deposit in the Collateral Accounts as of such date of determination; to
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(b) (i) interest
obligations of the Credit Parties in respect of Indebtedness during such trailing twelve (12) month period (including any Letter of Credit fees and any interest that is capitalized or paid in kind (solely in the period so capitalized or paid in
kind)), plus (ii) any unused commitment fees or other similar fees in respect of such Indebtedness (including, any such fees that are capitalized as a loan (solely in
the period so capitalized) and, without duplication of any amounts included in clause (b)(i) above, any interest thereon).
“Interest Option” means, as applicable: (a) the Eurocurrency Rate; (b)
Daily Simple RFR; (c) Term RFR; or (d) the Reference Rate.
“Interest Payment Date” means (a) as to any Eurocurrency Rate Loan in
respect of which the Borrower has selected a one (1) or three (3)-month Interest Period, the last day of such Interest Period for such Loan, (b) as to any Eurocurrency Rate Loan in respect of which the Borrower has selected a six (6)-month Interest
Period, the last day of each third month during such Interest Period for such Loan, (c) as to any Term RFR Loan in respect of which the Borrower has selected a one (1) month Interest Period, the last day of such Interest Period for such Loan and
(d) as to any Reference Rate Loan or Daily Simple RFR Loan, the last day of each calendar month.
“Interest Period” means, with respect to any Eurocurrency Rate Loan or Term
RFR Loan, a period commencing:
(a) on the borrowing date thereof;
(b) on the applicable Conversion Date;
or
(c) on the termination date of the
immediately preceding Interest Period in the case of a Rollover to a successive Interest Period as described in Section 2.3(b) hereof,
and ending on (i) in the case of any Term RFR Loan, the last day of each one (1) month period thereafter, and (ii) in the case of any Eurocurrency Rate Loan, the last
day of each one (1), three (3) or, subject to availability from all Lenders (and excluding, for the avoidance of doubt, any Borrowing in Canadian Dollars), six (6) month period thereafter; provided
that:
(A) any Interest Period
that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the immediately
preceding Business Day;
(B) any Interest Period
which begins on the last day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (A) above, end on the last Business Day of the
applicable calendar month; and
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(C) if the Interest
Period would otherwise end after the Maturity Date, such Interest Period shall end on the Maturity Date.
For the avoidance of doubt, the “Interest Period” applicable to all Daily Simple RFR Loans (as applicable) shall be one (1) month.
“Internal Revenue Code” means the United States Internal Revenue Code of
1986, as amended.
“Investment” means a direct or indirect ownership interest in and/or
capital contribution to an “Investment” (as defined in the applicable Infra-Fund’s Partnership Agreement), including for the avoidance of doubt, any Liquid Assets and other loans or promissory notes but excluding Equity Interests in each Credit
Party and any Holding Vehicle, unless the context otherwise requires.
“Investment Credit Extension” means any Loan or Letter of Credit for which
the proceeds are used to fund an Investment.
“Investment Policy” means the investment objective and investment
limitations of each Infra-Fund and each Credit Party, as applicable, as in effect on the Closing Date or as otherwise modified not in contravention of Section 9.4, and with respect to each Infra-Fund, as described in the applicable Memoranda, Section 2.5 of the Delaware
Infra-Fund’s Partnership Agreement, Section 2.09 of the Luxembourg Infra-Fund’s Partnership Agreement or any other similar section of the applicable Infra-Fund’s Partnership Agreement, as applicable.
“Investor” means any Person that is admitted to an Infra-Fund Subscription
Entity as a “Unitholder”, an “Investor”, a “Limited Partner” or as a “General Partner” (each as defined in the applicable Partnership Agreement) in accordance with the terms of such Partnership Agreement; “Investors” means all of such Persons, collectively.
“Investor Information” is defined in Section 12.17 hereof.
“Joinder Agreement” means an agreement contemplated by Section 12.11(e)
hereof, pursuant to which a new lender joins the Credit Facility as a Lender, which agreement shall be substantially in the form of Exhibit N hereto.
“Judgment Currency” is defined in Section 12.20(b) hereof.
“Laws” means, collectively, all international, foreign, federal, state,
provincial, territorial and local laws, statutes, treaties, rules, guidelines, directives, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law; provided that notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer
Protection Act of 2010 and all rules, regulations directives or published interpretations thereunder or issued in connection therewith relating to capital, liquidity and leverage requirements and (y) all rules, regulations, directives or published
interpretations promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III,
shall in each case be deemed to be a “change in Law”, regardless of the date enacted, adopted or issued.
24
“Lender Commitment” means, for each Lender, the amount set forth opposite
its name on Schedule II hereto or in such Lender’s respective Assignment and Acceptance Agreement or Joinder Agreement, as the same may be increased from time to time by the Borrower
pursuant to Section 2.15 hereof or reduced from time to time by the Borrower pursuant to Section 3.6 hereof, or reduced or
increased by further assignment by or to such Lender pursuant to Section 12.11(c) hereof.
“Lenders” means the Lenders party hereto as of the Closing Date and each of
the other lending institutions that shall become a Lender hereunder pursuant to Section 12.11(c) or Section 12.11(e) hereof,
other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance Agreement or otherwise.
“Letter of Credit” means any letter of credit issued for the account of the
Borrower by the Letter of Credit Issuer pursuant to Section 2.8 hereof either as originally issued or as the same may, from time to time, be amended or otherwise modified or extended.
“Letter of Credit Issuer” means ING, or any Lender or Affiliate of such
Lender so designated, and which accepts such designation, by the Administrative Agent and approved by the Borrower, including any institution which issues a Letter of Credit to a Borrower pursuant to Section
2.8(a) of this Credit Agreement.
“Letter of Credit Liability” means the aggregate amount of the undrawn
stated amount of all outstanding Letters of Credit plus the amount drawn under Letters of Credit for which the Letter of Credit Issuer and the Lenders, or any one or more of them, have not yet received payment or reimbursement (in the form of a
conversion of such liability to Loans, or otherwise) as required pursuant to Section 2.8 hereof.
“Letter of Credit Sublimit” means an amount equal to the lesser of (i) fifty percent (50%) of the Maximum Commitment, and (ii) $50,000,000. For the avoidance of doubt, the Letter of Credit Sublimit is a part of, and not in addition
to, the Maximum Commitment.
“Lien” means any lien, mortgage, security interest, assignment by way of
security, charge, tax lien, pledge, similar encumbrance, or conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of indebtedness, whether arising by agreement or under common law, any
statute, law, contract, or otherwise.
“Liquid Assets” means Investments constituting “Debt and Other Securities” (as
defined in the Memorandum of the Delaware Infra-Fund) and which Investment has been made consistent with the Investment Policy.
“Liquidity Guarantor” means Stonepeak-Plus Infrastructure Fund Liquidity LP, a
Cayman Islands exempted limited partnership, acting by its general partner, Stonepeak-Plus Infrastructure Fund Finance LLC.
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“Loan Documents” means this Credit Agreement, the Notes (including any
renewals, extensions, re-issuances and refinancings thereof), each of the Collateral Documents, each Assignment and Acceptance Agreement, each Application for Letter of Credit, any Borrower Joinder Agreements, any Guarantor Joinder Agreements, any
Fee Letters, and such other agreements and documents, and any amendments or supplements thereto or modifications thereof that are executed or delivered pursuant to the terms of this Credit Agreement or any of the other Loan Documents and any
additional documents delivered in connection with any such amendment, supplement or modification that the parties thereto agree shall constitute a “Loan Document” hereunder.
“Loans” means the groups of Eurocurrency Rate Loans, RFR Loans and
Reference Rate Loans (including any Loans deemed made pursuant to Section 2.8(d) hereof) made by the Lenders to the Borrower pursuant to the terms and conditions of this Credit Agreement,
and certain other related amounts specified in Sections 2.9, 2.12(b), 3.3(c)
and 3.3(d) hereof shall be treated as Loans pursuant to Sections 2.9, 2.12(b),
3.3(c) and 3.3(d) hereof.
“LTV Ratio” means, as of any date of determination, the ratio (expressed as
a percentage) of (a) the sum of the aggregate outstanding Principal Obligations and all other Indebtedness for Borrowed Money of the Credit Parties, to (b) the sum of (x) Adjusted NAV plus or minus (as applicable) (y) without duplication, all net obligations of the Credit Parties and the Holding Vehicles in respect of or under Hedging
Agreements (as a mark-to-market liability shall be deducted and a mark-to-market asset shall be added) minus, (z) without duplication, the aggregate amount of Indebtedness of all Holding Vehicles (other than in respect of or under Hedging Agreements and solely to the extent not already deducted in determining NAV), in each case as of such
date.
“Luxembourg” means the Grand Duchy of Luxembourg.
“Luxembourg Infra-Fund” means Stonepeak-Plus Infrastructure Master Fund SCSp-RAIF, a reserved alternative investment fund (fonds d’investissement alternatif réservé) in the form of a special limited partnership (société en commandite spéciale) established
and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and registered with the RCS under number B293652, represented by its managing general
partner (associé commandité-gérant) Stonepeak-Plus Infrastructure Fund Associates (Lux) S.à ▇.▇., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ and
registered with the RCS under number B291963.
“Mandated Lead Arranger” is defined in the preamble hereof.
“Margin Stock” has the meaning assigned thereto in Regulation U.
“Material Adverse Effect” means a material adverse effect on (a) the rights
of, or benefits available to, the Lenders under the Loan Documents, (b) the Credit Parties’ (taken as a whole) ability to pay the Obligations when due in accordance with the terms of the Loan Documents, (c) the Credit Parties’ (taken as a whole)
ability to perform their respective material obligations under any Loan Document to which any of them is a party, (d) the legality, validity, binding effect or enforceability of any Loan Document, or (e) the ability of the Credit Parties (taken as
a whole) to receive Portfolio Investment Distributions.
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“Material Amendment” is defined in Section 9.4 hereof.
“Material Infra-Fund Amendment” is defined in Section 9.5 hereof.
“Material Investment Event” means any of the following events with respect
to any Investment that is an Eligible Investment or the Holding Vehicle in which such Eligible Investment is held, as applicable (in each case, which shall be deemed to occur upon the earlier of notice from the Administrative Agent or any Credit
Party obtaining knowledge thereof):
(a) any action under any Debtor Relief
Law relating to the issuer of such Eligible Investment, such Eligible Investment or such Holding Vehicle (in involuntary cases or proceedings, if not stayed or dismissed within sixty (60) days);
(b) (i) any payment default (whether by
virtue of a default with respect to a payment due at scheduled maturity, required prepayment, acceleration, demand, or otherwise) of $15,000,000 or more relating to any Indebtedness for Borrowed Money, hedging obligations or guaranties thereof
by such Eligible Investment or such Holding Vehicle that continues uncured (after giving effect to any grace period applicable to such payment), or (ii) any other material event of default (including, but not limited to, the failure to meet or
maintain any applicable financial covenants thereunder or the entry of any judgment in contravention of the terms thereof) relating to any Indebtedness for Borrowed Money, hedging obligations or guaranties thereof by such Eligible Investment or
such Holding Vehicle that continues uncured beyond the expiration of any applicable grace period or such longer period as agreed by the Administrative Agent;
(c) the Value of such Eligible
Investment is less than seventy five percent (75%) of the cost of such Investment (in each case, based on applicable local currency) for a period of two consecutive quarters (excluding any reductions caused from the partial disposition of, or
distribution made in respect of, such Eligible Investment);
(d) any default by a Credit Party or
Holding Vehicle with respect to any Portfolio Investment Obligations related to such Eligible Investment, beyond any applicable notice or cure period;
(e) a Credit Party or Holding Vehicle
has repudiated its Portfolio Investment Obligations or any material obligation under any Portfolio Investment Document and continued enforceability of such obligation;
(f) the foreclosure of any material Lien
in respect of such Eligible Investment or the Equity Interest of any applicable Borrower or Holding Vehicle therein;
(g) such Eligible Investment or Holding
Vehicle is prevented under the terms of its financing arrangements from paying a declared distribution (directly or indirectly) to a Credit Party due to its failure to meet any conditions or criteria thereunder for the payment of such
distribution, as determined by such Eligible Investment or Holding Vehicle at the time such distribution is declared; or
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(h) such Eligible Investment or Holding
Vehicle is a Sanctioned Person;
provided, that in each case (other than
with respect to clause (a), (c)-(e), (f) and (g) above), if a Material Investment Event occurs only with respect to a portion of an Eligible Investment, only such portion subject to such Material Investment Event shall be treated as subject to a
Material Investment Event. Any Investment (or portion thereof) subject to a Material Investment Event shall be excluded as an Eligible Investment upon the earlier of notice from the Administrative Agent or the Borrower obtaining knowledge
thereof, until such time as such Material Investment Event, if capable of cure, is cured.
“Maturity Date” means the earliest of: (a) the Stated Maturity Date; (b)
the date upon which the Administrative Agent declares the Obligations due and payable after the occurrence of an Event of Default; (c) twenty-eight (28) days prior to the dissolution of any Credit Party (other than any Credit Party permitted to
withdraw pursuant to Section 2.9(c) and in the process of effectuating such a withdrawal); and (d) the date upon which the Borrower terminates all of the Lender Commitments pursuant to Section 3.6 hereof or otherwise.
“Maximum Commitment” means $100,000,000 as it may be (a) reduced from time
to time by the Borrower pursuant to Section 3.6 hereof or (b) increased from time to time pursuant to Section 2.15 hereof.
“Maximum LC Draw Amount” is defined in Section 10.4(c)(i) hereof.
“Maximum LTV Ratio Breach” is defined in Section 2.1(d)(ii) hereof.
“Maximum LTV Ratio” is defined in Section 9.17 hereto.
“Maximum Rate” means, on any day, the highest rate of interest (if any)
permitted by applicable Law on such day.
“Memorandum” means, each “Memorandum” as defined in the Partnership
Agreement of the Delaware Infra-Fund and the Partnership Agreement of the Luxembourg Infra-Fund.
“Minimum Adjusted NAV” means Adjusted NAV is an amount less than (i) during
the first year following the Closing Date, $200,000,000, and (ii) from the first anniversary of the Closing Date and thereafter, $350,000,000.
“Minimum Interest Coverage Ratio” is defined in Section 9.17 hereto.
“Minimum Interest Coverage Ratio Breach” is defined in Section 2.1(d)(iii) hereof.
“▇▇▇▇▇’▇” means ▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.
“NAV” means, as of any date of calculation, an amount equal to:
(a) the aggregate
Value of all Eligible Investments in U.S. Dollars, as of such date (which, for the avoidance of doubt, shall not include any Investment or portion of an Investment, in each case, to the extent constituting or held through the Aggregator I
Excluded Share), plus
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(b) without
duplication, the amount of cash and Cash Equivalents held by the Credit Parties, less
(c) to the extent
not deducted in determining the aggregate Value pursuant to clause (a), the aggregate outstanding Indebtedness for Borrowed Money of any Holding Vehicle in which such Eligible
Investment is held (excluding the Obligations).
“Net Cash Proceeds” means, in respect of any cash proceeds actually
received by a Credit Party or Holding Vehicle from any Investment in which it holds an interest (including in connection with a disposition, distribution, dividend or other payment directly or indirectly from such Investment), the gross amount of
cash proceeds so received, net of the sum of, without duplication, (i) all fees and out-of-pocket expenses reasonably incurred by such Credit Party or Holding Vehicle or reasonably expected to be payable and reserved by any such Person in
connection with such event, (ii) with respect to any applicable transaction generating such cash proceeds, any funded escrow established pursuant to the documents evidencing any disposition to secure any indemnification obligations or adjustments
to the purchase price associated with any such sale, transfer or disposition; provided that the amount of any subsequent reduction of such escrow (other than in connection with a payment
in respect of any such liability) shall be deemed to be Net Cash Proceeds occurring on the date of such reduction solely to the extent that any such Credit Party or Holding Vehicle receives cash in an amount equal to the amount of such reduction,
(iii) any reasonable and customary costs associated with unwinding any related obligations under Hedging Agreements in connection therewith, (iv) the amount of all taxes paid (or reasonably estimated to be payable) by such Credit Party or Holding
Vehicle in respect of such Investment and the amount of any reserves established by such Credit Party or Holding Vehicle to fund contingent liabilities reasonably estimated to be payable in respect of such Investment, provided that any reduction at
any time in the amount of any such reserves (other than as a result of payments made in respect thereof) shall be deemed to constitute the receipt by such Credit Party or Holding Vehicle at such time of Net Cash Proceeds in the amount of such
reduction, (v) any amounts applied to pay Permitted Tax Distributions, (vi) any amounts retained or applied to pay operating expenses of a Holding Vehicle (not to exceed $10,000 per annum for each applicable Holding Vehicle) and (vii) any amounts
otherwise required to be paid or reserved pursuant to any contractual arrangement related to the applicable Investment entered into in good faith, for a bona fide purpose and not for the primary purpose of prohibiting or preventing the application
of such amount (it being understood that (x) if such requirement is pursuant to the terms of Indebtedness, this clause (vii) shall not apply to the extent such Indebtedness was entered into in contravention of Section 9.11 and (y) any such amounts that cease to be reserved pursuant to any such contractual arrangement and are not so paid or applied shall again be deemed to constitute Net Cash Proceeds hereunder). With respect to
Net Cash Proceeds received in connection with a casualty or condemnation, the term “Net Cash Proceeds” shall exclude amounts paid as income replacement (for example, the proceeds attributable to a claim under a business interruption insurance
policy).
“New Investment Materials” means, with respect to any
new Eligible Primary Investment, materials and information with respect to the ownership, acquisition cost, leverage and, to the extent available to the Credit Parties, dividend forecast of such Eligible Primary Investment, together with a business
description of such Eligible Primary Investment.
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“Non-Excluded Taxes” means all (a) Taxes other than Excluded Taxes, imposed
on or with respect to any payment made by, or on account of any obligation of, the Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Notes” means the promissory notes provided for in Section 3.1 hereof, and all promissory notes delivered in substitution or exchange therefor, as such notes may be amended, restated, reissued, extended or modified, and “Note” means any one of the Notes.
“Obligations” means all present and future indebtedness, obligations, and
liabilities of the Credit Parties to the Lenders, and all renewals and extensions thereof (including, without limitation, Loans, Letters of Credit, or both), or any part thereof, arising pursuant to this Credit Agreement (including, without
limitation, the indemnity provisions hereof) or represented by the Notes, and all interest accruing thereon, and attorneys’ fees incurred in the enforcement or collection thereof, regardless of whether such indebtedness, obligations, and
liabilities are direct, indirect, fixed, contingent, joint, several, or joint and several; together with all present and future indebtedness, obligations and liabilities of the Credit Parties to the Secured Parties evidenced or arising pursuant to
any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof. For the avoidance of doubt, the “Obligations” with respect to any Credit Party shall include any joint and several obligations of such Credit Party as
described herein.
“OFAC” means the Office of Foreign Assets Control of the U.S. Department of
Treasury.
“Operating Company” means a “venture capital operating company” or a “real estate operating company”, each as defined in the Plan Asset Regulations.
“Other Claims” is defined in Section
5.5 hereof.
“Other Connection Taxes” means, with respect to any Secured Party, Taxes
imposed as a result of a present or former connection between such Secured Party and the jurisdiction imposing such Tax (other than connections arising from such Secured Party having executed, delivered, become a party to, performed its obligations
under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” is defined in Section
4.6(c) hereof.
“Participant” is defined in Section
12.11(b) hereof.
“Participant Register” is defined in Section 12.11(f) hereof.
“Participating Member State” shall mean a member of the European
Communities that adopts or has adopted the Euro as its currency in accordance with EMU Legislation.
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“Partnership Agreement” means, for any Person, the limited partnership
agreement, special limited partnership agreement, limited liability company agreement, exempted limited partnership agreement, memorandum and articles of association, or other equivalent governing document in the applicable jurisdiction of its
formation, as the same may be further amended, restated, modified or supplemented in accordance with the terms hereof and in each case of the Credit Parties as described on Schedule I
hereto, as such schedule may be amended, restated, modified or supplemented from time to time; “Partnership Agreements” means, collectively, all of the
Partnership Agreements.
“Patriot Act” is defined in Section
12.18 hereof.
“Payment Recipient” is defined in Section 11.13(a) hereof.
“Periodic Term ▇▇▇▇▇ Determination Day” has the meaning assigned in the
definition of “Term ▇▇▇▇▇”.
“Permitted Liens” is defined in Section 9.2 hereof.
“Permitted Tax Distributions” with respect to any taxable period (or
portion thereof) during which any Credit Party is a partnership, S corporation or disregarded entity of a partnership or S corporation for U.S. federal income Tax purposes, payments or distributions by such Credit Party to any direct or indirect
holder of Equity Interests of such Credit Party with respect to each estimated Tax payment date as well as each other applicable Tax payment due date, such that each such holder receives, in the aggregate for such taxable period, payments or
distributions in an amount not to exceed (i) the sum of the highest combined marginal U.S. federal, state and local Tax rate (including any Tax rate imposed on “net investment income” by Section 1411 of the Internal Revenue Code) applicable to an
individual, or if higher, a corporation resident in New York, New York (taking into account the character of the taxable income (e.g., long-term capital gain, ordinary income, etc.)), multiplied by (ii) the amount of net taxable income (including
reasonable estimates thereof) allocated to such holder for such taxable period in respect of such Credit Party and its subsidiaries (to the extent such subsidiaries are disregarded entities of such Credit Party or partnerships or S corporations
allocating income to such Credit Party); provided that, the determination of such distributions (A) shall take into account (1) any U.S. federal, state and/or local losses,
deductions, and credits allocated to such holder by such Credit Party and its subsidiaries for prior taxable periods to the extent such losses, deductions, or credits are of a character that would allow such losses, deductions, or credits to be
available to reduce Taxes in the current taxable period (taking into account any limitations on the utilization of such losses, deductions, or credits to reduce such Taxes and to the extent such losses, deductions, or credits had not already been
taken into account to offset income with respect to the operations of such Credit Party and its subsidiaries), (2) any adjustment to such holder’s taxable income attributable to its direct or indirect ownership of such Credit Party and its
subsidiaries as a result of any Tax examination, audit or adjustment with respect to any taxable period or portion thereof and (3) the deductibility of state and local income Taxes for U.S. federal income tax purposes and (B) shall not take into
account the effect of any deduction under Section 199A of the Internal Revenue Code or the impact of any tax basis step ups after the date hereof under Sections 734, 743 or 754 of the Internal Revenue Code.
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“Person” means an individual, sole proprietorship, joint venture,
association, trust, estate, business trust, corporation, limited liability company, nonprofit corporation, partnership, limited partnership, exempted limited partnership, exempted company, sovereign government or agency (including any Governmental
Authority), instrumentality, or political subdivision thereof, or any similar entity or organization.
“Plan” means any “employee pension benefit plan” (as such term is defined
in Section 3(2) of ERISA), including any single-employer plan or multiemployer plan (as such terms are defined in Section 4001(a)(15) and in Section 4001(a)(3) of ERISA, respectively), that is subject to Title IV of ERISA or Section 412 or Section
430 of the Internal Revenue Code.
“Plan Asset Regulations” means 29 C.F.R. §2510.3-101, et seq., as modified by Section 3(42) of ERISA, as the same may be amended from time to time.
“Plan Assets” means “plan assets” within the meaning of the Plan Asset
Regulations.
“Portfolio Borrowing Base Advance Rate” means, at any time, (a) as long as
there are at least five (5) Distinct Eligible Investments and the Adjusted NAV is no less than the Minimum Adjusted NAV, twenty five percent (25%); and (b) there are less than five (5) Distinct Eligible Investments or Adjusted NAV is less than
Minimum Adjusted NAV, zero percent (0%).
“Portfolio Investment Distributions” means dividends, interest payments,
distributions, liquidation, sale and other proceeds of any kind or nature received by any Credit Party or applicable Holding Vehicle on or in respect of any Investment (including in respect of any Liquid Assets), including on account of the
purchase, redemption, retirement or other disposition or acquisition of any Equity Interest.
“Portfolio Investment Document” means any governing document, side letter,
shareholder agreement, joint venture agreement or other contract which governs the terms and conditions of any Investment held by a Credit Party or a Holding Vehicle.
“Portfolio Investment Obligation” means in respect of any Investment, any
payments required to be made from time to time in respect thereof by a Credit Party or a Holding Vehicle, including any capital contribution obligation or other liability for which such Credit Party or Holding Vehicle is obligated, including
pursuant to any Portfolio Investment Document.
“Potential Default” means any condition, act or event which, with the
giving of notice or lapse of time or both, would become an Event of Default.
“Primary Obligations” means any Principal Obligations or Obligations owing
to the Secured Parties in respect of accrued and unpaid interest or fees payable under the Loan Documents.
“Prime Rate” means, for any date, a per annum rate equal to the rate of
interest set forth for such date as published in The Wall Street Journal as the “prime rate” for such date. The Prime Rate may be, but is not intended to be, the lowest rate of interest charged by the Administrative Agent, any Lender, the Letter
of Credit Issuer or any other financial institution in connection with extensions of credit to borrowers. If The Wall Street Journal no longer reports the Prime Rate, or if such Prime Rate no longer exists, the Administrative Agent may select a
reasonably comparable index or source to use as the basis for the Prime Rate.
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“Principal Obligations” means, on any date of determination, the sum of (a)
the aggregate outstanding principal amount of the Loans (including any Capitalized Interest Loan and any Capitalized Unused Commitment Fee Loan), and (b) the Letter of Credit Liability.
“Pro Rata Share” means, with respect to each Lender, the percentage
obtained from the fraction: (a) (i) the numerator of which is the Lender Commitment of such Lender; and (ii) the denominator of which is the aggregate Lender Commitments of all Lenders; or (b) in the event the Lender Commitments have been
terminated: (i) the numerator of which is the Lender Commitment of such Lender as in effect immediately prior to such termination; and (ii) the denominator of which is the aggregate Lender Commitments of all Lenders as in effect immediately prior
to such termination.
“Proceedings” is defined in Section
7.9 hereof.
“Proposed Amendment” is defined in Section 9.4 hereof.
“RCS” means the Luxembourg Trade and Companies Register (Registre de Commerce et des Sociétés, Luxembourg).
“Reference Rate” means, for any date, the greatest of: (a) the Prime Rate;
(b) the Federal Funds Rate plus fifty (50) basis points; and (c) the Daily Simple RFR for Dollars in effect on such date plus one hundred (100) basis points, plus, in the
case of the foregoing clause (a), clause (b) and clause (c), the Applicable Margin. Each change in the Reference Rate shall become effective without prior notice to any Credit Party automatically as of the opening of business on the day of such
change in the Reference Rate. Notwithstanding the foregoing, in no event shall the Reference Rate be less than the Floor.
“Reference Rate Conversion Date” is defined in Section 2.3(c) hereof.
“Reference Rate Loan” means a Loan made hereunder with respect to which the
interest rate is calculated by reference to the Reference Rate.
“Reference Time” means, with respect to any setting of the then-current
Benchmark for any Currency:
(a) if such Benchmark is Term SOFR, two (2) Business Days prior to (i) if the date of such setting is a Business Day, such date or (ii) if the date
of such setting is not a Business Day, the Business Day immediately preceding such date;
(b) if such Benchmark is a Daily Simple RFR, (i) if the RFR for such Benchmark is SOFR, then four (4) Business Days prior to (A) if the date of such
setting is a Business Day, such date or (B) if the date of such setting is not a Business Day, the Business Day immediately preceding such date; (ii) if the RFR for such Benchmark is ▇▇▇▇▇, then four (4) Business Days prior to (A) if the date of
such setting is a Business Day, such date or (B) if the date of such setting is not a Business Day, the Business Day immediately preceding such date; and (iii) if the RFR for such Benchmark is SARON, then five (5) Business Days prior to (A) if the
date of such setting is a Business Day, such date or (B) if the date of such setting is not a Business Day, the Business Day immediately preceding such date; and
33
(c) otherwise, then the time reasonably determined by the Administrative Agent, including in accordance with any Conforming Changes or Benchmark
Replacement Conforming Changes.
“Regulation T”, “Regulation U” and “Regulation X” means Regulation T, U, or X, as the case may be, of the Board of Governors of the Federal Reserve
System, from time to time in effect, and shall include any successor or other regulation relating to margin requirements applicable to member banks of the Federal Reserve System.
“Release” means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching, or migration of Hazardous Materials into the environment, or into or out of any real property Investment, including the movement of any Hazardous Material through or in the air, soil, surface water
or groundwater of any real property Investment.
“Relevant Governmental Body” means (a) with respect to a Benchmark
Replacement in respect of Loans denominated in Dollars, the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve
System or the Federal Reserve Bank of New York, or any successor thereto, (b) with respect to a Benchmark Replacement in respect of Loans denominated in Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of
England or, in each case, any successor thereto and (c) with respect to a Benchmark Replacement in respect of Loans denominated in an Alternative Currency (other than Sterling), (i) the central bank for the Currency in which the Loans for such
Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement or (ii) any working group or committee
officially endorsed or convened by (A) the central bank for the Currency in which the Loans for such Benchmark Replacement is denominated, (B) any central bank or other supervisor that is responsible for supervising either (1) such Benchmark
Replacement or (2) the administrator of such Benchmark Replacement, (C) a group of those central banks or other supervisors or (D) the Financial Stability Board or any part thereof with respect to such Benchmark Replacement.
“Repurchase Request” means a notice provided by an Investor to the
applicable Infra-Fund Subscription Entity pursuant to which such Investor requests the applicable Infra-Fund Subscription Entity to repurchase some or all of its Units as permitted under the applicable Infra-Fund Subscription Entity’s Partnership
Agreement and in accordance with the Unit Repurchase Program.
“Repurchases” means the repurchase by the applicable Infra-Fund
Subscription Entity of some or all of an Investor’s Units pursuant to the applicable Partnership Agreement and/or Unit Repurchase Program.
“Request for Borrowing” is defined in Section 2.3 hereof.
“Request for Letter of Credit” is defined in Section 2.8(b) hereof.
34
“Required Lenders” means, at any time: (a) the Lenders (other than the
Defaulting Lenders) holding an aggregate Pro Rata Share of greater than fifty percent (50%) of the Lender Commitments (excluding the Lender Commitments of any Defaulting Lenders); or (b) at any time that the Lender Commitments are zero (0), the
Lenders (other than the Defaulting Lenders) owed an aggregate Pro Rata Share of greater than fifty percent (50%) of the Principal Obligations outstanding at such time, provided that, at
any time that there is more than one Lender, the Required Lenders shall be comprised of at least two (2) Lenders.
“Required Payment” is defined in Section 11.13(a) hereof.
“Required Payment Time” means, (a) within two (2) Business Days, to the
extent that funds are available in the Collateral Account maintained by the Borrower; provided that the aggregate amount so debited from such Collateral Accounts shall not exceed the
amount of the Dollar Equivalent of the Principal Obligations owing by the Borrower; provided further that such funds first be
deposited into the applicable Collateral Account of the Borrower in accordance with the last sentence of Section 9.12 hereof or (b) otherwise, within twenty (20) Business Days or, if
later, by the fifth (5th) Business Day of the following calendar month.
“Resolution Authority” means an EEA Resolution Authority or, with respect
to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means any Chairman, President, Co-President, Senior
Managing Director, Managing Director, Principal, Director, Executive Vice President, Vice President, Secretary, Assistant Secretary, Treasurer, or Assistant Treasurer or any manager, director or officer of (a) a corporation or an exempted company,
(b) the general partner of a limited partnership or an exempted limited partnership or if such general partner is itself a limited partnership or an exempted limited partnership, its general partner, or (c) a limited liability company or the
managing member thereof and, in each case, any other authorized officer or signatory thereof who has the power to bind the Person who has provided documentation that is acceptable in the reasonable discretion of the Administrative Agent evidencing
such authority.
“Retained Distributions” is defined in Section 5.2(a).
“Revaluation Date” means: (a) each date of the making of any Loan in an
Alternative Currency or an issuance, amendment, renewal or extension of a Loan or Letter of Credit denominated in an Alternative Currency, as applicable, (b) the date of any Material Investment Event, (c) the last Business Day of each calendar
month, and (d) each other date on which the Administrative Agent, the Letter of Credit Issuer or the Borrower shall reasonably request.
“Review Event” means, as of the end of any calendar month, the Infra-Fund Subscription Entities in the
aggregate shall have satisfied Unit Repurchase Requests with respect to Investors during the trailing twelve month period requesting the Repurchase of Units which resulted in Repurchases by the Infra-Fund Subscription Entities of Units (net of
new subscriptions during such twelve month period) representing more than 30% of Adjusted NAV as of the end of such calendar month; provided, that Repurchases of Units held by ▇▇▇▇▇▇▇▇▇ and replaced on a Dollar-for-Dollar basis with new subscriptions from Investors shall not be deemed Repurchased for
purposes of this definition.
“Review Event Cure Plan” is defined in Section 2.1(d)(vii).
“Review Event Period” is defined in Section 2.1(d)(vii).
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“RFR” means, for any Obligations, interest, fees, commissions or other amounts
denominated in, or calculated with respect to, (a) Dollars, SOFR, (b) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, (c) Swiss Francs, SARON, and (d) Canadian Dollars, ▇▇▇▇▇.
“RFR Determination Day” is defined in the definition of “Daily Simple RFR”.
“RFR Loan” means a Daily Simple RFR Loan or a Term RFR Loan, as the context
may require.
“RFR Rate Day” is defined in the definition of “Daily Simple RFR”.
“Rollover” means the renewal of all or any part of any Eurocurrency Rate
Loan or Term RFR Loan upon the expiration of the Interest Period with respect thereto, pursuant to Section 2.3(b) hereof.
“Rollover Notice” is defined in Section 2.3(b) hereof.
“S&P”
means S&P Global Ratings, a subsidiary of S&P Global Inc., and any successor thereto.
“Same-Day Borrowing” means a Borrowing of a Reference Rate Loan
(denominated in Dollars only), for which the date of the Request for Borrowing and the date of the funding requested in such Request for Borrowing occur on the same day.
“Same-Day Borrowing Sublimit” means an amount equal to twenty percent (20%)
of the Maximum Commitment (or such higher percentage as agreed by the Administrative Agent and the Lenders, each in its sole discretion) at the time of any Same-Day Borrowing.
“Sanctioned Country” means, at any time, a country or territory which is
the subject or target of any country-based or territory-based Sanctions (at the time of this Agreement, the Crimean, so-called Donetsk People’s Republic, Kherson, the so-called Luhansk People’s Republic, and Zaporizhzhia regions of Ukraine, Cuba,
Iran, North Korea, and Syria).
“Sanctioned Person” means, at any time, (a) any Person or vessel listed in
any Sanctions-related list of designated Persons or other similar list maintained by OFAC or the U.S. Department of State or by the United Nations Security Council, the United Kingdom, the European Union, any EU member state, the Australian
Department of Foreign Affairs and Trade or any other applicable sanctions authority where a Credit Party is located or conducts business or any other applicable sanctions authority that is otherwise described in the definition for Sanctions, (b)
any Person operating, organized, citizen of, or resident in a Sanctioned Country, (c) any Person owned 50% or more by such Persons described in clause (a) or (b), or (d) an agency or instrumentality of, or entity owned 50% or more by, the
government of a Sanctioned Country.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State, (b) the
United Nations Security Council, the European Union, His Majesty’s Treasury of the United Kingdom (including any sanctions legislation extended to the Cayman Islands pursuant to any Order in Council of His Majesty’s Privy Council in the United
Kingdom) or the Australian Department of Foreign Affairs and Trade (“DFAT”), (c) by such Japanese Governmental Authority imposing, administering or
enforcing similar types of sanctions or trade embargoes, (d) Global Affairs Canada and any other applicable Canadian Governmental Authority or (e) such Governmental Authorities imposing, administering or enforcing similar types of sanctions or
trade embargoes in the jurisdiction of any Alternative Currency where a Loan or Letter of Credit has been requested by a Borrower in such Alternative Currency.
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“SARON” means a rate equal to the Swiss Average Rate Overnight as
administered by the SARON Administrator.
“SARON Administrator” means the SIX Swiss Exchange AG (or any successor
administrator of the Swiss Average Rate Overnight).
“SARON Administrator’s Website” means SIX Swiss Exchange AG’s website,
currently at ▇▇▇▇▇://▇▇▇.▇▇▇-▇▇▇▇▇.▇▇▇, or any successor source for the Swiss Average Rate Overnight identified as such by the SARON Administrator from time to time.
“SARON RFR Determination Day” is defined in the definition of “Daily Simple
RFR”.
“Secured Parties” means the Administrative Agent, the Collateral Agent,
the Lenders and any Affiliate of any Lender to which Obligations are owed, and Letter of Credit Issuer.
“Securities Exchange Act” means the Securities Exchange Act of 1934, as
amended to the date hereof and from time to time hereafter, and any successor statute.
“SOFR” means, with respect to any Business Day, a rate per annum equal to
the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a
successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve
Bank of New York, currently at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR RFR Determination Day” is defined in the definition of “Daily Simple
RFR”.
“▇▇▇▇▇” means a rate equal to the Sterling Overnight Index Average as
administered by the ▇▇▇▇▇ Administrator.
“▇▇▇▇▇ Administrator” means the Bank of England (or any successor
administrator of the Sterling Overnight Index Average).
“▇▇▇▇▇ Administrator’s Website” means the Bank of England’s website,
currently at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇.▇▇, or any successor source for the Sterling Overnight Index Average identified as such by the ▇▇▇▇▇ Administrator from time to time.
“▇▇▇▇▇ RFR Determination Day” is defined in the definition of “Daily Simple
RFR”.
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“Spot Rate” means, with respect to any Alternative Currency on any
Revaluation Date, the rate at which such Alternative Currency may be exchanged into Dollars, as set forth on such Revaluation Date at approximately 11:00 a.m. on the applicable Reuters World Currency Page. In the event that such rate does not
appear on the applicable Reuters World Currency Page, the Spot Rate with respect to such Alternative Currency shall be determined by reference to such other publicly available service for displaying exchange rates as the Administrative Agent may
determine, in its reasonable discretion; provided, that if at the time of any such Revaluation Date, for any reason, no such Spot Rate is being quoted, the Administrative Agent may use
any reasonable method it deems appropriate, in the exercise of its commercially reasonable discretion, to determine such rate, and such determination shall be conclusive absent manifest error.
“Stated Maturity Date” means July 16, 2027, subject to the extension of
such date pursuant to Section 2.14 hereof.
“Sterling” and “£” means the lawful currency of the United Kingdom.
“▇▇▇▇▇▇” is defined in the definition of “Eurocurrency Rate”.
“Stonepeak” means, collectively, Stonepeak Partners and any applicable
Affiliate thereof.
“Stonepeak Partners” means Stonepeak Partners LP, a Delaware limited
partnership or any successor thereto.
“Subsidiary” means, in relation to any Person, any other Person (a) which
is controlled, directly or indirectly, by the first mentioned Person, (b) more than half the voting power of shares of stock (or similar or equivalent instruments) of which is beneficially owned, directly or indirectly, by the first mentioned
Person or (c) which is a Subsidiary of another Subsidiary of the first mentioned Person, and for this purpose, a Person shall be treated as being “controlled” by another if that other person is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body or similarly directs its affairs. Anything herein to the contrary notwithstanding, the term “Subsidiary” shall not include any Person that constitutes an Investment.
“Swedish Krona” and the sign “kr” mean the lawful currency of Sweden.
“Swiss Francs” and the sign “Fr” mean the lawful currency of Switzerland.
“TARGET Day” means any day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be operative, such other payment system (if any) determined by the Administrative Agent, in its
reasonable discretion, to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax Payment” means either the increase in a payment made by, or on account
of any obligation of, the Borrower to a Lender or the Administrative Agent under Section 4.6(a) hereof or a payment under the indemnity in Section
4.6(d) hereof.
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“Taxes” means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term ▇▇▇▇▇ Administrator” means Candeal Benchmark Administration Services
Inc., TSX Inc., or any successor administrator.
“Term ▇▇▇▇▇” means, for any calculation with respect to a Term RFR Loan denominated in Canadian Dollars, the Term ▇▇▇▇▇ Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term ▇▇▇▇▇ Determination Day”) that is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term ▇▇▇▇▇ Administrator; provided, however, that if as of 1:00 p.m. (Toronto time) on any Periodic Term ▇▇▇▇▇ Determination Day the Term ▇▇▇▇▇ Reference Rate for the applicable tenor has not been
published by the Term ▇▇▇▇▇ Administrator and a Benchmark Replacement Date with respect to Term ▇▇▇▇▇ Reference Rate has not occurred, then Term ▇▇▇▇▇ will be the Term ▇▇▇▇▇ Reference Rate for such tenor as published by the Term ▇▇▇▇▇ Administrator
on the first preceding Business Day for which such Term ▇▇▇▇▇ Reference Rate for such tenor was published by the Term ▇▇▇▇▇ Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such Periodic
Term ▇▇▇▇▇ Determination Day.
“Term ▇▇▇▇▇ Reference Rate” means the forward-looking term rate based on
▇▇▇▇▇.
“Term RFR” means, with respect to Dollars, Canadian Dollars, Sterling or
Swiss Francs for any Interest Period, a rate per annum equal to:
(a) for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Dollars, the greater of (i)
Term SOFR and (ii) the Floor;
(b) for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Sterling , the greater of
(i) ▇▇▇▇▇ for a period comparable to such Interest Period and any related spread adjustment that has been selected by the Administrative Agent and the Borrower giving due consideration to any evolving or then-prevailing market convention, including
any applicable recommendations made by the Relevant Governmental Body for U.S. syndicated credit facilities denominated in Sterling at such time that are substantially similar to the credit facilities under this Credit Agreement and (ii) the Floor;
(c) for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Swiss Francs, the greater of
(i) SARON for a period comparable to such Interest Period and any related spread adjustment that has been selected by the Administrative Agent and the Borrower giving due consideration to any evolving or then-prevailing market convention, including
any applicable recommendations made by the Relevant Governmental Body for U.S. syndicated credit facilities denominated in Swiss Francs at such time that are substantially similar to the credit facilities under this Credit Agreement and (ii) the
Floor; and
(d) for any Obligations, interest, fees, commissions or other amounts denominated in, or calculated with respect to, Canadian Dollars, the greater
of (i) Term ▇▇▇▇▇ for a period comparable to such Interest Period and any related spread adjustment that has been selected by the Administrative Agent and the Borrower giving due consideration to any evolving or then-prevailing market convention,
including any applicable recommendations made by the Relevant Governmental Body for U.S. syndicated credit facilities denominated in Canadian Dollars at such time that are substantially similar to the credit facilities under this Credit Agreement
and (ii) the Floor.
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“Term RFR Loan” means a Loan that bears interest at a rate based on Term
RFR other than pursuant to clause (c) of the definition of “Reference Rate”.
“Term SOFR” means, for any calculation with respect to a Term RFR Loan in
Dollars, the Term SOFR Reference Rate for a tenor comparable to such Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that
is two (2) Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York
City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not
occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding Business Day prior to the date that would otherwise be applicable for which such Term SOFR Reference
Rate for such tenor was published by the Term SOFR Administrator so long as such date is not more than three (3) Business Days prior to such Periodic Term SOFR Determination Day; provided,
further, that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited
(CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Conversion Date” is defined in Section 2.3(c) hereof.
“Term SOFR Reference Rate” means the forward-looking term rate based on
SOFR.
“Third Party Valuation” means, an independent “valuation” report prepared
by a Third Party Valuation Agent reflecting the fair market valuation (or midpoint of ranges) of any Investment or Investments.
“Third Party Valuation Agent” means each of (a) ▇▇▇▇▇, LLC, (b) Deloitte
& Touche LLC, (c) Ernst & Young LLP, (d) KPMG LLC, (e) PricewaterhouseCoopers LLP, (f) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, (g) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (h) any other third party advisory firm identified by the Borrowers that is acceptable to Administrative Agent
(acting at the direction of the Required Lenders).
“▇▇▇▇▇” is defined in the definition of “Eurocurrency Rate”.
“Transfer” means to assign, convey, exchange, pledge, sell, set-off, transfer
or otherwise dispose.
“Trigger Event” means (i) the occurrence and continuance of any Excess
Prepayment Event or (ii) a Review Event has occurred and is continuing and either no Review Event Cure Plan has been agreed in respect of such Review Event or the Borrower is not in compliance with the agreed Review Event Cure Plan in respect of
such Review Event.
40
“Type of Loan” means a Eurocurrency Rate Loan, an RFR Loan or a Reference
Rate Loan.
“UCC” means the Uniform Commercial Code as adopted in the State of New York
and any other state, which from time to time governs creation or perfection (and the effect thereof) of security interests in any Collateral for the Obligations.
“UK Financial Institution” means any BRRD Undertaking (as such term is
defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any Person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United
Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public
administrative authority having responsibility for the resolution of any UK Financial Institution.
“Uncommitted Extension Option” is defined in Section 2.14(a) hereof.
“Undisclosed Administration” means, in relation to a Lender or its direct
or indirect parent company that is a solvent person, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law
in the country where such Lender or such parent company is subject to home jurisdiction, if applicable Law requires that such appointment not be disclosed.
“Unit Repurchase Program” means the “Unit Repurchase Program”, as defined
in the Partnership Agreement of the Delaware Infra-Fund (or any comparable provision of the applicable Luxembourg Infra-Fund’s or Infra-Fund Feeder’s Partnership Agreement, as applicable).
“Units” has the meaning given to such term in the Partnership Agreement of
the Delaware Infra-Fund (or any comparable provision of the applicable Luxembourg Infra-Fund’s or Infra-Fund Feeder’s Partnership Agreement, as applicable).
“Unused Portion” is defined in Section 2.12(a) hereof.
“U.S. Person” is a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code.
“Valuation Policy” means the valuation policy and procedures of each Infra-Fund
and each Credit Party, as applicable, as in effect on the Closing Date, and with respect to each Infra-Fund, as described in Section 4.6 of the Partnership Agreement of the
Delaware Infra-Fund (or other similar section of the Lux Infra-Fund’s Partnership Agreement and/or the “Valuation Policy” set forth in the applicable Memorandum, which,
as of the Closing Date, are intended to ensure that each such Infra-Fund’s and each Credit Party’s Investments are valued in a manner consistent with Generally Accepted Accounting Principles.
41
“Value” means, with respect to an Investment (or portion
thereof) held directly or indirectly by any Credit Party,
| (a) |
the net asset value of such Investment, in Dollars, as reflected in the Monthly Report most recently delivered pursuant to Section 8.1(a);
and
|
| (b) |
with respect to an Investment (or portion thereof) acquired after the date the most recent
Monthly Report is delivered to the Administrative Agent pursuant to Section 8.1(a) reports the net asset value of the Investments as of, the fair market value of such Investment, in Dollars, at the time of such acquisition;
|
provided, that Value shall be calculated giving effect
to (i) any Distributions made in respect of such Investment, (ii) without duplication of any amounts included in clause (b) above, the amount of
any capital contributions made by any Credit Party or Holding Vehicle to such Investment (including with proceeds of the Distribution Reinvestment Plan), or (iii) any write down or write off of any such Investment consistent with the Valuation
Policy, in each case, after the date such Monthly Report reports the net asset value as of in the case of clause (a), or after the acquisition of such Investment in the case of clause (b) (any such event, an “Intraperiod Adjustment Event”).
“Voluntary Prepayment” is defined in Section 3.5 hereof.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA
Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU
Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or
any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that Person or any other Person, to provide that any such contract or instrument is to have effect as
if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
“Yen” means the lawful currency of Japan.
.
(a) All terms
defined in this Credit Agreement shall have the above-defined meanings when used in the Notes or any other Loan Documents or any certificate, report or other document made or delivered pursuant to this Credit Agreement, unless otherwise defined
in such other document.
(b) Defined terms
used in the singular shall import the plural and vice versa.
(c) The words
“hereof”, “herein”, “hereunder”, and similar terms when used in this Credit Agreement shall refer to this Credit Agreement as a whole and not to any particular provisions of this Credit Agreement.
42
(d) “Including” and
similar terms shall be deemed to be followed by “without limitation” unless in fact followed by “without limitation” or a similar term.
(e) In the
computation of periods of time from a specified date to a later specified date, the word “from” means “from and including”; the words “to” and “until” each mean “to but excluding”; and the word “through” means “to and including”.
(f) Any reference
to a General Partner shall be deemed to be a reference to such General Partner and any successor thereto.
(g) Unless otherwise
expressly provided herein, (a) references to Constituent Documents, agreements (including the Loan Documents) and other contractual instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are permitted by any Loan Document and (b) references to any Law shall include all statutory and regulatory
provisions consolidating, amending, replacing, supplementing or interpreting such Law.
(h) Any reference to
the “financial statements” of the applicable Credit Parties will be deemed to include any trial balances and/or financial information in Monthly Reports, in each case, to the extent necessary to give effect to the financial condition of the
applicable Credit Parties and their applicable subsidiaries and other investment vehicles, but the foregoing shall not result in any duplication in any calculation or other determination of any relevant amount.
(i) All references
to a Cayman Islands exempted limited partnership taking any action, having any power or authority, owning, holding or dealing with any asset are to such partnership acting through its general partner (or, as the case may be, such general
partner’s general partner).
1.3 Times of Day. Unless otherwise specified in the Loan Documents, time references are to time in New York, New York.
43
(a) The Required
Lenders may from time to time, acting reasonably and in good faith on a belief that the fair market value of all Eligible Investments in the aggregate is at least 20% lower than the Value reported by the Borrower in the financial statements
most recently delivered hereunder request further information from the Borrower pertaining to the Value of such Eligible Investments. The Borrower shall use commercially reasonable efforts to, within five (5) Business Days, provide information
reasonably requested to support its valuation of such Eligible Investments (provided, that in no event shall this Section
1.7(a) require any Credit Party or Affiliate thereof to breach any (x) binding confidentiality obligations owed to any Investors, Investments or bona fide counterparties with respect thereto or (y) securities Laws, other similar
Laws or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies with respect to Investments, and the Borrower will be permitted to redact any of the foregoing contents in any information provided solely to the extent necessary to avoid any such breach).
44
(b) The Borrower and
the Lenders agree that, if at any time (A)(i) the LTV Ratio is greater than 20% or (ii) an Event of Default or Potential Event in each case of the type described in Sections 10.1(a),
10.1(h) or 10.1(i) hereof has occurred or is continuing, and (B) the Required Lenders acting reasonably and in good faith
on a belief that the fair market value of all Eligible Investments in the aggregate is at least 20% lower than the Value reported by the Borrower in the financial statements most recently delivered hereunder, then the Administrative Agent
(acting at the direction of the Required Lenders) shall have the right to request a Third Party Valuation with respect to any Eligible Investment from a Third Party Valuation Agent.
(c) The Borrower shall
use commercially reasonable efforts to cause such Third Party Valuation to be provided to the Administrative Agent (for distribution to the Lenders) within thirty (30) days of the date of any such request.
(d) If the
Administrative Agent requests a Third Party Valuation because an Event of Default has occurred and is continuing or if the LTV Ratio is greater than 20%, all fees and expenses incurred in connection with such Third Party Valuation shall be
payable by the Borrower. If the Administrative Agent requests a Third Party Valuation of an Eligible Investment for any reason set out in Section 1.7(a) above other than an Event of
Default and the fair market value for such Investment is (i) greater than or equal to 95% of the Value reported by the Borrower in the financial statements most recently delivered hereunder, unless the Value as determined per the Third Party
Valuation results in a Maximum LTV Ratio Breach, all fees and expenses incurred in connection with such Third Party Valuation shall be payable by the requesting Lenders, or (ii) less than 95% of the Value reported by the Borrower in the
financial statements most recently delivered hereunder, all fees and expenses incurred in connection with such Third Party Valuation shall be payable by the Borrower.
(e) The Value of any
Eligible Investment for which a Third Party Valuation (A) has been obtained and delivered by the Borrower to the Administrative Agent in accordance with this Section 1.7, and (B)
provides a fair market value for such Investment that is less than the Value reported by the Borrower with respect to one or more Eligible Investments in the financial statements most recently delivered hereunder, shall be adjusted to reflect
such Third Party Valuation, and the Borrower shall deliver a Financial Covenant Certificate, including a recalculation of the LTV Ratio within five (5) Business Days, using such revised Value. Such revised Value and calculation of the LTV Ratio
shall apply for all purposes in the Transaction Documents as of the date of such revaluation or recalculation (and for the avoidance of doubt, shall not apply retroactively) and shall not be increased until the earliest to occur of (x) the
3-month anniversary of the date that the applicable Third Party Valuation is delivered by the Borrower to the Administrative Agent, (y) the date the Borrower delivers a Third Party Valuation by a Third Party Evaluator, or (z) the date that the
Administrative Agent (acting at the direction of the Required Lenders) agrees with the Borrower to a Value above the Third Party Valuation for such Eligible Investment.
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Section 2. REVOLVING
CREDIT LOAN AND LETTERS OF CREDIT
(a) Committed Amount. Subject to the terms and conditions herein set forth, the Lenders agree, during the Commitment Period: (i) to extend to the Borrower a revolving line of
credit; and (ii) to participate in Letters of Credit issued by the Letter of Credit Issuer for the account of the Borrower.
(b) Limitation on Borrowings and Re-borrowings. The Lenders shall not be required to advance any Borrowing or, except as provided in clause (c) below, Rollover or Conversion if:
(i) after giving
effect to such Borrowing, Rollover or Conversion: (A) the Dollar Equivalent of the Principal Obligations would exceed the Available Commitment; or (B) the Principal Obligations of any Same-Day Borrowing would exceed the Same-Day Borrowing
Sublimit;
(ii) an Event of
Default or, to any Credit Party’s or the Administrative Agent’s knowledge, Potential Default is continuing or would occur as a result of such Borrowing;
(iii) a Review Event
has occurred and is continuing and either no Review Event Cure Plan has been agreed in respect of such Review Event or the Borrower is not in compliance with the agreed Review Event Cure Plan in respect of such Review Event in any material
respect;
(iv) any other Trigger
Event has occurred and is continuing; or
(v) the Borrower is in
violation of any Financial Covenant or, after giving effect to any such Borrowing, Rollover or Conversion on a pro forma basis, would not be in compliance with the Financial Covenants.
(c) Exceptions to Limitations. Conversions to Reference Rate Loans shall be permitted with the consent of the Administrative Agent in the situations described in clauses (i)
through (v) of Section 2.1(b) above, and Rollovers of Eurocurrency Rate Loans and Term RFR Loans shall be permitted in the situations described in clauses (ii), (iii), (iv) (other
than with respect to an Excess Prepayment Event) and (v) of Section 2.1(b) above, in each case, unless the Administrative Agent has otherwise accelerated the Obligations or exercised
other rights that terminate the Lender Commitments under Section 10.2 hereof.
(d) Prepayment Events, Cash Sweeps, Cure Plan Events and Review Events.
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(i) Excess Loans Outstanding. If, on any day, the Dollar Equivalent of the Principal Obligations exceeds the Maximum Commitment (including, without limitation, as a result of a
change in the Spot Rate as of any Revaluation Date) (each, an “Excess Prepayment Event”), then the Borrower shall pay such excess, together with accrued
and unpaid interest and fees payable thereon (the “Excess Prepayment Amount”) to the Administrative Agent, for the benefit of the Secured Parties, in
immediately available funds, no later than the Required Payment Time following the Notice Date.
(ii) LTV Breach Prepayment. If, on any day, the LTV Ratio is greater than the Maximum LTV Ratio (the continuance thereof, a “Maximum LTV Ratio Breach”), then, subject to the provisions set forth in Section 3.4 hereof, the Borrower shall prepay the principal
amount of the Loans, together with accrued and unpaid interest thereon, in an aggregate amount that would cause the LTV Ratio to be less than the Maximum LTV Ratio, to the Administrative Agent, for the benefit of the Secured Parties, in
immediately available funds no later than the Required Payment Time after the applicable Notice Date.
(iii) Minimum Interest Coverage Ratio Prepayment. If, on any day, the Interest Coverage Ratio is less than the Minimum Interest Coverage Ratio (the continuance thereof, a “Minimum Interest Coverage Ratio Breach”), then subject to the provisions set forth in Section 3.4
hereof, the Borrower shall prepay the principal amount of the Loans, together with accrued and unpaid interest thereon, in an aggregate amount that would cause the Interest Coverage Ratio to be greater than or equal to the Minimum Interest
Coverage Ratio (an “ICR Cure Payment”), to the Administrative Agent, for the benefit of the Secured Parties, in immediately available funds no later
than the Required Payment Time after the applicable Notice Date (it being understood that for purposes of determining whether the applicable Minimum Interest Coverage Ratio Breach has been cured, the principal amount of any Loans and any other
Indebtedness so prepaid or repaid shall be reduced for purposes of clause (b) of the definition of Interest Coverage Ratio and the Interest Coverage Ratio shall be retested giving pro forma effect to such reduction).
(iv) [Reserved].
(v) Pay Down of Investment Loans. To the extent that any Investment relating to an Investment Credit Extension causes any applicable investment limits that are Binding Limitations
set forth in the applicable Infra-Fund’s Partnership Agreement or any Memorandum to be exceeded, or any Investment relating to an Investment Credit Extension is otherwise in violation of the applicable Partnership Agreement or Investment Policy
in any material respect (collectively, the “Investment Limitations”), the Borrower shall repay (except to the extent such amounts are addressed by Section 2.1(e) hereof) such Investment Credit Extension to the extent necessary to no longer exceed or be in violation of the Investment Limitations with respect thereto on or before the
Required Payment Time (measured from the date of any Credit Party’s knowledge of such violation).
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(vi) Pay Down of Certain Loans. To the extent that any Principal Obligations of the Borrower would either (A) cause any Binding Limitations set forth in Section 4.1(b) of the
Delaware Infra-Fund’s Partnership Agreement (or any comparable provision set forth in the Partnership Agreement of any other Infra-Fund (including Section 3.02(c)(i) of the Luxembourg Infra-Fund’s Partnership Agreement), Credit Party or other
Holding Vehicle with applicable limitations on indebtedness) to be exceeded, or (B) require repayment by the Borrower of Principal Obligations outstanding hereunder by a certain date (and, in each case, the necessary approvals of the General
Partner, board of directors or independent directors, as applicable, of each Infra-Fund, Credit Party or other Holding Vehicle, as applicable, have not been obtained such as to permit such amounts to remain outstanding), the Borrower shall
promptly repay all such Principal Obligations (or with respect to clause (A) above, promptly repay other indebtedness of the Borrower) required to be repaid on or before such date so
as to comply with the requirements of Section 4.1(b) of the Delaware Infra-Fund’s Partnership Agreement (or any comparable provision set forth in the Partnership Agreement of any other Infra-Fund, Credit Party or other Holding Vehicle with
applicable Binding Limitations on indebtedness).
(vii) Review Event. The Borrower shall promptly notify the Administrative Agent of any Review Event, and shall promptly negotiate in good faith with the Administrative Agent
regarding a resolution to such Review Event and/or the consequences of such Review Event, and the Borrower and the Administrative Agent (at the instruction of the Required Lenders) shall, if agreed, enter into a written plan (a “Review Event Cure Plan”) outlining such resolution. In the event that no Review Event Cure Plan shall have been agreed within sixty (60) days of occurrence
thereof (which date may be extended by the Administrative Agent and the Required Lenders, in their sole discretion) (the “Review Event Period”) and such Review Event remains continuing as of the end of the Review Event Period, the Administrative Agent if instructed by the Required Lenders,
shall notify the Borrower that all outstanding Obligations (or a lesser portion thereof, to the extent so instructed by the Required Lenders) shall be required to be repaid in full by the Borrower on the next succeeding Business Day after the
end of the Review Event Period.
(viii) Notice Dates. Notwithstanding anything to the contrary herein, a Trigger Event, Maximum LTV Ratio Breach or Minimum Interest Coverage Ratio Breach shall be deemed to occur
upon the earlier of the Borrower’s knowledge of such Trigger Event, Maximum LTV Ratio Breach or Minimum Interest Coverage Ratio Breach, as applicable, or notice thereof from the Administrative Agent (so long as such Trigger Event, Maximum LTV
Ratio Breach or Minimum Interest Coverage Ratio Breach is continuing when such notice is given) (such date, a “Notice Date”).
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(ix) Test Dates. For purposes of the Loan Documents:
(1) the LTV Ratio shall
be tested only (A) as of the end of each fiscal quarter on the date on which calculations thereof are delivered in a Compliance Certificate pursuant to Section 8.1(b), (B) on a pro
forma basis as of the date of any prepayment or other action taken to cause the LTV Ratio to be less than or equal to the Maximum LTV Ratio, (C) on the date on which any Financial Covenant Certificate is delivered pursuant to Section 8.1(c) and/or any Compliance Certificate is delivered pursuant to Section 8.1(b)(y), (D) (i) on a pro forma basis on
the date of the making of any Distribution for purposes of testing the conditions set forth in Section 9.10, and (ii) on a pro forma basis on the date of the making a proposed
withdrawal or transfer of funds for purposes of testing the conditions set forth in Section 9.12, and (E) on a pro forma basis for purposes of demonstrating the cure of any Potential
Default or Event of Default as a result of any Maximum LTV Ratio Breach in accordance with this Credit Agreement, including after giving effect to any prepayments made pursuant to Section 2.1(d);
and
(2) the Interest
Coverage Ratio shall be tested only (A) as of the end of each fiscal quarter on the date on which calculations thereof are delivered in a Compliance Certificate pursuant to Section 8.1(b)
and (B) on a pro forma basis for purposes of demonstrating the cure of any Potential Default or Event of Default caused by a breach of Section 9.17(b).
(x) Letter of Credit Liability. For purposes of any prepayments required to be made under Section 2.1(d), to the extent
any applicable Principal Obligations are comprised of Letter of Credit Liability, the Borrower may satisfy their obligation to prepay any Loans under Section 2.1(d) by cash
collateralizing any such Letter of Credit Liability; provided, that unless otherwise directed by the Borrower, any prepayments made by the Borrower pursuant to Section 2.1(d) shall first be applied to prepay any outstanding Loans before being applied to cash collateralize Letter of Credit Liability.
(xi) Withdrawals from Collateral Accounts. Each Credit Party hereby agrees that, subject to the terms of
the applicable Collateral Documents, the Administrative Agent may withdraw from such Credit Party’s Collateral Account amounts therein credited to or held as Collateral and apply the same to the Primary Obligations owing by the Borrower
pursuant to Section 2.1(d) to the extent not paid when due.
(e) Excess Letters of Credit Outstanding. If, on any day, (i) the Letter of Credit Liability exceeds the Letter of Credit Sublimit, (ii) if any excess amount calculated pursuant
to Section 2.1(d)(i) hereof is attributable to undrawn Letters of Credit or (iii) the Borrower gives the Administrative Agent notice that it is making a payment to cash collateralize
Letter of Credit Liability pursuant to Section 2.1(d)(x) hereof, the Borrower shall pay such excess amount to the Administrative Agent for the account of the Letter of Credit Issuer
in the applicable Currency (unless otherwise agreed by the Letter of Credit Issuer in writing), when required pursuant to the applicable terms of Section 2.1(d) hereof for deposit
into a segregated interest-bearing cash collateral account, as security for such portion of the Obligations. Unless otherwise required by law, amounts held as such cash collateral shall be required to be returned by the Administrative Agent to
the Borrower upon the earlier to occur of (i)(a) in respect a payment made in respect of any excess calculated pursuant to Section 2.1(d)(i), a change in circumstances such that the
Dollar Equivalent of the Principal Obligations no longer exceeds the Maximum Commitment, the Letter of Credit Liability no longer exceeds the Letter of Credit Sublimit and the Principal Obligations of any Same-Day Borrowing no longer exceed the
Same-Day Borrowing Sublimit (so long as no Event of Default has occurred and is continuing) or (b) in respect of any other payment made pursuant to Section 2.1(d)(x), the date on
which no Trigger Event or Event of Default is continuing; or (ii) the full and final payment of the Obligations.
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(f) Currency of Loans and Letters of Credit. Each Eurocurrency Rate Loan made pursuant to this Credit Agreement may be funded, or Letters of Credit issued, at the request of the
Borrower in any applicable Alternative Currency, subject to the prior approval of the Administrative Agent (other than Canadian Dollars, Sterling or Swiss Francs).
Daily Simple RFR Loans made pursuant to this Credit Agreement may be funded at the request of the Borrower in Canadian Dollars, Sterling, Swiss Francs or Dollars. Term RFR Loans made pursuant to this Credit Agreement may be funded at the
request of the Borrower in Dollars. Reference Rate Loans and any Same-Day Borrowings made pursuant to this Credit Agreement shall be funded in Dollars only. Each Loan shall, unless otherwise agreed by the Lenders in writing, be repaid in the
Currency in which such Loan was made. Eurocurrency Rate Loans, RFR Loans and Letters of Credit denominated in an Alternative Currency are subject to Sections 1.4 and 1.5 hereof.
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(a) Request for Borrowing. Each Request for Borrowing shall be substantially in the form of Exhibit E hereto (with
blanks appropriately completed in conformity herewith and signed by a Responsible Officer of the Borrower), shall be delivered to the Agency Services Address, and shall be deemed to constitute a representation and warranty by the Borrower
providing such Request for Borrowing (and additionally, it is agreed by each other Borrower that such Request for Borrowing shall also be deemed to constitute, a representation and warranty by each the Borrower as to itself) that:
(i) The
representations and warranties (other than those in Section 7.8 hereof, which shall be replaced with the condition in Section
2.3(a)(ii) below) herein and in the other Loan Documents are true and correct in all material respects (except that any representation (or portion
thereof, as applicable) qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the date of such Request for Borrowing, with the same force and effect as if made on and
as of such date (except to the extent of changes in facts or circumstances that have been disclosed in writing to the Administrative Agent and do not constitute an Event of Default or a Potential Default or to the extent such representations
and warranties relate to an earlier or other specific date);
(ii) No Event of
Default or, to its knowledge, Potential Default exists and is continuing at such date;
(iii) Either no Review
Event has occurred and is continuing or if a Review Event has occurred and is continuing, a Review Event Cure Plan has been agreed with respect thereto and the Borrower is in compliance with such agreed Review Event Cure Plan;
(iv) No other Trigger
Event has occurred and is continuing;
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(v) The Borrower is in
compliance with the Financial Covenants contained in Section 9.17 at the time of, and after giving pro forma effect to, any such Borrowing; and
(vi) Immediately prior
to, and after giving effect to such Borrowing, (a) the Dollar Equivalent of the Principal Obligations as of such date, will not exceed the Available Commitment as of such date and (b) the Principal Obligations of any Same-Day Borrowing would
exceed the Same-Day Borrowing Sublimit.
Each Request for Borrowing shall be revocable, subject to Borrower’s compliance with Section 4.5 hereof.
(b) Rollovers. No later than 2:00 p.m. (New York time) at least three (3) Business Days prior to the termination of each Interest Period related to a Eurocurrency Rate Loan or a
Term RFR Loan, the Borrower may give the Administrative Agent written notice at the Agency Services Address (which notice may be via fax, electronic mail, or by telephone, if confirmed in writing promptly thereafter) (a “Rollover Notice”) whether it desires to renew such Loan. Each such notice shall also specify the length of the Interest Period selected by the Borrower,
with respect to such Rollover. Each Rollover Notice shall be revocable, subject to the Borrower’s compliance with Section 4.5 hereof and the provisions of this paragraph. If the
Borrower fails to timely give the Administrative Agent such notice with respect to any Eurocurrency Rate Loan or any Term RFR Loan, the Borrower shall be deemed to have elected to continue such Eurocurrency Rate Loan as a Eurocurrency Rate
Loan, or such Term RFR Loan as a Term RFR Loan, in each case, with an Interest Period of one (1) month commencing on the expiration the preceding Interest Period. For the avoidance of doubt, any Daily Simple RFR Loan shall automatically
Rollover at the end of each Interest Period if not repaid prior to the end of such Interest Period.
(c) Conversions. The Borrower shall have the right, with respect to: (i) any Reference Rate Loan, on any Business Day, to convert such Reference Rate Loan to either (A) a Term RFR
Loan in Dollars or (B) a Daily Simple RFR Loan in Dollars; (ii) any Daily Simple RFR Loan in Dollars, on any Business Day, to convert such Daily Simple RFR Loan to a Term RFR Loan in Dollars (together with any conversion in clause(i)(A), a “Term SOFR Conversion Date”); (iii) any Term RFR Loan in Dollars, on any Business Day, to convert such Term RFR Loan to a Daily Simple RFR Loan in Dollars
(together with any conversion in clause (i)(B), a “Daily Simple SOFR Conversion Date”); and (iv) any RFR Loan in Dollars on any Business Day (a “Reference Rate Conversion Date”), to convert such RFR Loan to a Reference Rate Loan; provided
that the Borrower shall, on such Conversion Date, make the payments required by Section 4.5 hereof, if any; in either case, by giving the Administrative Agent written notice at the
Agency Services Address (which notice may be via fax, electronic mail, or by telephone, if confirmed in writing promptly thereafter) substantially in the form of Exhibit G hereto (a “Conversion Notice”) of such selection no later than (x) 2:00 p.m. (New York time) at least three (3) Business Days prior to such Term SOFR Conversion Date
or (y) on such Reference Rate Conversion Date or Daily Simple SOFR Conversion Date, as applicable. Each Conversion Notice shall be irrevocable and effective upon notification thereof to the Administrative Agent.
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(d) Interest Periods. No more than a total of twenty (20) Eurocurrency Rate Loans and RFR Loans in the aggregate may be outstanding hereunder at any one time during the Commitment
Period.
(e) Administrative Agent Notification of the Lenders. The Administrative Agent shall promptly notify each Lender (and will use good faith efforts to make such notification on the
day such notice is timely received from the Borrower) of receipt of a Request for Borrowing, a Conversion Notice or a Rollover Notice, the amount of the Borrowing and such ▇▇▇▇▇▇’s Pro Rata Share thereof, the date the Borrowing is to be made,
the Interest Option, the Interest Period and Currency selected, if applicable, and the applicable rate of interest.
2.4 Minimum Loan Amounts. Each Eurocurrency Rate Loan and each RFR Loan shall be in an aggregate amount that is not less than the Dollar Equivalent of
$100,000 (or such other amounts as agreed by the Administrative Agent); provided that in addition to the foregoing, a Reference Rate Loan may be in an aggregate amount that is equal to
the entire unused balance of the total Lender Commitments or that is required to finance the reimbursement of a Letter of Credit under Section 2.8(d) hereof or that is equal to the amount
of any interest payment or unused commitment fees that are permitted to be capitalized as a Capitalized Interest Loan or a Capitalized Unused Commitment Fee Loan, as applicable, in accordance with Section
3.3(d) or Section 2.12(b) hereof, as applicable.
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2.5 Funding. Subject to fulfillment of all applicable conditions set forth herein,
by no later than 12:00 p.m. (New York time) on the date specified in the related Request for Borrowing as the borrowing date (and with respect to a Request for Borrowing in respect of a Same-Day Borrowing, in sufficient time such that the
Administrative Agent can receive funds from Lenders and transfer such proceeds as the Borrower has specified in the relevant Request for Borrowing prior to 4:00 p.m. (New York time) on the date of the requested Borrowing), each Lender shall
wire-transfer the proceeds of its Pro Rata Share of each Borrowing in immediately available funds in the applicable Currency to the Administrative Agent for the account of the Borrower for value and, upon fulfillment of all applicable conditions
set forth herein, the Administrative Agent shall deposit such proceeds in immediately available funds, on the date specified in the Request for Borrowing as the borrowing date, to the account of the Borrower as specified by the Borrower, or if
requested by the Borrower in the Request for Borrowing, shall wire-transfer such funds as requested no later than such date specified in the Request for Borrowing as the borrowing date; provided
that the Administrative Agent shall issue the wire-transfer request prior to the close of business in New York City on the date of receipt of the Borrower’s Request for Borrowing and, with respect to a Request for Borrowing in respect of a Same-Day
Borrowing, to the extent that each Lender shall fund its Pro Rata Share of the Borrowing, the Administrative Agent may transfer such proceeds as the Borrower has specified in the relevant Request for Borrowing, prior to 4:00 p.m. (New York time) on
the date of receipt of the Borrower’s Request for Borrowing. The failure of any Lender to advance the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder shall not relieve any other Lender of its obligation to advance
the proceeds of its Pro Rata Share of any Borrowing required to be advanced hereunder. Absent contrary written notice from a Lender, the Administrative Agent may assume that each Lender has made its Pro Rata Share of the requested Borrowing
available to the Administrative Agent on the applicable borrowing date, and the Administrative Agent may, in reliance upon such assumption (but is not required to), make available to the Borrower a corresponding amount. If a Lender fails to make
its Pro Rata Share of any requested Borrowing (including any Borrowing in accordance with Section 2.8(d) hereof with respect to the funding of a Letter of Credit) available to the
Administrative Agent on the applicable borrowing date, then the Administrative Agent may recover the applicable amount in the applicable Currency on demand: (a) from such Lender, together with interest at the Federal Funds Rate for the period
commencing on the date the amount was made available to the Borrower by the Administrative Agent and ending on (but excluding) the date the Administrative Agent recovers the amount from such Lender; or (b) if such Lender fails to pay its amount in
the applicable Currency upon the Administrative Agent’s demand, then from the Borrower: promptly on demand, to the extent such funds are available in a Collateral Account of the Borrower, provided that, with respect to the Borrower, the amount so debited from such Collateral Accounts shall not exceed the amount that such Lender failed to pay of such requested Borrowing; together with
interest at a rate per annum equal to the rate applicable to the requested Borrowing for the period commencing on the borrowing date and ending on (but excluding) the date the Administrative Agent recovers the amount from the Borrower(s). The
liabilities and obligations of each Lender hereunder shall be several and not joint, and neither the Administrative Agent nor any Lender shall be responsible for the performance by any other Lender of its obligations hereunder. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. Each Lender hereunder shall be liable to the Borrower only for the amount of its
respective Lender Commitment.
2.6 Interest Rate.
(a) Eurocurrency Rate. The unpaid principal amount of each Eurocurrency Rate Loan shall
bear interest at a rate per annum which shall be equal to the Eurocurrency Rate in effect for the applicable Interest Period for such Currency plus the Applicable Margin.
(b) Reference Rate. The unpaid principal amount of each Reference Rate Loan shall bear interest at a rate per annum which shall be equal to the Reference Rate in effect for the
applicable Interest Period.
(c) RFR Loans.
(i) The unpaid
principal amount of each Term RFR Loan shall bear interest at a rate per annum which shall be equal to the applicable Term RFR in effect for the applicable Interest Period for such Currency plus the Applicable Margin.
(ii) The unpaid
principal amount of each Daily Simple RFR Loan shall bear interest at a rate per annum which shall be equal to the applicable Daily Simple RFR for such Currency on each day during such applicable Interest Period plus the Applicable Margin.
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(d) Past Due Amounts; Calculations of Interest. Interest on the unpaid principal balance of (i) each Eurocurrency Rate Loan and RFR Loan (other than RFR Loans denominated in
Sterling) shall be calculated on the basis of the actual days elapsed in a year consisting of 360 days (provided that Eurocurrency Rate Loans denominated in Alternative Currencies
typically calculated on the basis of the actual days elapsed in a year consisting of 365 days (or 366, as the case may be) shall be calculated on such basis), and (ii) each RFR Loan denominated in Sterling and Reference Rate Loan (other than
when the Reference Rate is calculated based off Daily Simple RFR for Dollars) shall be calculated on the basis of the actual days elapsed in a year consisting of 365 days (or 366, as the case may be). If any principal of, or interest on, the
Obligations is not paid when due (whether at stated maturity, by acceleration, by mandatory prepayment or otherwise), then (in lieu of the interest rate provided in Sections 2.6(a) or
(b) above, as applicable) such overdue amount shall bear interest at the Default Rate.
(e) Interest Act (Canada) Disclosure. For purposes of the Interest Act (Canada) and disclosure
thereunder, whenever any interest or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such calculation is equivalent is
the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable. The rates of interest under this Credit Agreement are nominal rates, and not
effective rates or yields. The principle of deemed reinvestment of interest does not apply to any interest calculation under this Credit Agreement.
(f) Conforming Changes. In connection with the use, administration, adoption or implementation of any Benchmark or Benchmark Replacement, the Administrative Agent will have the
right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or
consent of any other party to this Credit Agreement or any other Loan Document (other than as provided in the definition of Conforming Changes). The Administrative Agent will
promptly notify the Borrower and the Lenders of the effectiveness of any Conforming Changes.
2.7 Determination of Rate. The Administrative Agent shall calculate each interest
rate applicable to the Borrowings hereunder in accordance with the terms set forth in this Credit Agreement. The Administrative Agent shall give prompt notice to the Borrower and to the Lenders of each rate of interest so calculated, and its
calculation thereof shall be conclusive and binding in the absence of manifest error.
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2.8 Letters of Credit.
(a) Letter of Credit Commitment. Subject to the terms and conditions hereof, on any Business Day during the Commitment Period, the Administrative Agent shall cause the Letter of
Credit Issuer to issue such Letters of Credit in such aggregate face amounts and Currencies as the Borrower may request; provided that: (i) after giving effect to the issuance of any
such Letter of Credit, (A) the Dollar Equivalent of the Principal Obligations as of such date will not exceed the Available Commitment as of such date; (B) the Principal Obligations of any Same-Day Borrowing will not exceed the Same-Day
Borrowing Sublimit on such date; and (C) the Dollar Equivalent of the Letter of Credit Liability will not exceed the Letter of Credit Sublimit on such date; (ii) the expiry date of the Letter of Credit shall not be later than the earlier of (A)
twelve (12) months after the date of issuance without the Letter of Credit Issuer’s consent, in its sole discretion (provided, that the Borrower may request, and the
Letter of Credit Issuer shall issue, a Letter of Credit that has extension provisions for an automatic extension for twelve (12) months from the initial expiry date thereof or any future expiry date, so long as such Letter of Credit permits the
Letter of Credit Issuer to elect not to extend the Letter of Credit for any such additional period by written notice to the Borrower and the applicable beneficiary at least thirty (30) days prior to the relevant expiry date), or (B) thirty (30)
days prior to the Stated Maturity Date (unless such Letter of Credit has been cash collateralized on or before the date that is thirty (30) days prior to the Stated Maturity Date); and (iii) the Letter of Credit Issuer shall be under no
obligation to issue any Letter of Credit if, after the Closing Date, (A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms enjoin or restrain the Letter of Credit Issuer from issuing such Letter of
Credit, or any Law applicable to the Letter of Credit Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Letter of Credit Issuer shall prohibit, or request that
the Letter of Credit Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Letter of Credit Issuer is not otherwise compensated hereunder) not in effect on the Closing Date or shall impose upon the Letter of Credit Issuer any other unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Letter of Credit Issuer in good ▇▇▇▇▇ ▇▇▇▇▇ material to it and for which the Letter of Credit Issuer is not reimbursed hereunder, or (B) the Borrower has not provided the information necessary for
the Letter of Credit Issuer to complete the form of Letter of Credit.
(b) Request. Each request for a Letter of Credit (a “Request for Letter of Credit”)
shall be submitted by the Borrower to the Administrative Agent substantially in the form attached hereto as Exhibit F (with blanks appropriately completed in conformity herewith),
together with an Application for Letter of Credit, for the Letter of Credit Issuer, on or before 11:00 a.m. (New York time) at least three (3) Business Days prior to the requested date of issuance of such Letter of Credit. The Administrative
Agent shall promptly notify each Lender of such Request for Letter of Credit and the terms of the requested Letter of Credit. Upon each such application, a Borrower (as to itself) shall be deemed to have automatically made to the
Administrative Agent, each Lender, and the Letter of Credit Issuer the following representations and warranties:
(i) As of the date of
the issuance of the Letter of Credit requested, the representations and warranties of the Borrower (other than those in Section 7.8 hereof, which shall be replaced with the condition
in Section 2.8(b)(ii) below) herein and in the other Loan Documents are true and correct in all material respects (except that any representation (or portion thereof, as applicable)
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the date of such issuance, with the same force and effect as if made on and as of such date (except to the extent
of changes in facts or circumstances that have been disclosed in writing to the Administrative Agent and do not constitute an Event of Default or a Potential Default or to the extent such representations and warranties relate to an earlier or
other specific date);
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(ii) No Event of
Default or, to its knowledge, Potential Default exists and is continuing at such date;
(iii) Either no Review
Event has occurred and is continuing or if a Review Event has occurred and is continuing, a Review Event Cure Plan has been agreed with respect thereto and the Borrower is in compliance with such agreed Review Event Cure Plan;
(iv) No other Trigger
Event has occurred and is continuing;
(v) The Borrower is in
compliance with the Financial Covenants contained in Section 9.17 at the time of, and after giving pro forma effect to, the issuance of such Letter of Credit;
(vi) [Reserved];
(vii) Immediately prior
to, and after giving effect to, the issuance of the requested Letter of Credit, (A) the Dollar Equivalent of the Principal Obligations as of such date will not exceed the Available Commitment as of such date; (B) the Principal Obligations of
any Same-Day Borrowing as of such date will not exceed the Same-Day Borrowing Sublimit on such date; and (C) the Letter of Credit Liability as of such date will not exceed the Letter of Credit Sublimit on such date;
(viii) (A) Not more than
twenty (20) issued but undrawn Letters of Credit are then outstanding, and (B) such Letter of Credit will be in an amount equal to or in excess of $100,000 or the Dollar Equivalent thereof (or such other amount as agreed by the Letter of Credit
Issuer);
(ix) [Reserved]; and
(x) [Reserved].
(c) Participation by the Lenders. Each Lender shall and does hereby participate ratably with the Letter of Credit Issuer in each Letter of Credit issued and outstanding hereunder
to the extent of its Pro Rata Share of the Letter of Credit Liability with respect to each such Letter of Credit, and shall share in all rights and obligations resulting therefrom, including, without limitation: (i) the right to receive from
the Administrative Agent its Pro Rata Share of any reimbursement of the amount of each draft drawn under each Letter of Credit, including any interest payable with respect thereto; (ii) the right to receive from the Administrative Agent its Pro
Rata Share of the Letter of Credit fee pursuant to Section 2.13 hereof (which, for the avoidance of doubt, shall take into account the Applicable Margin in respect of such Letter of
Credit); (iii) the right to receive from the Administrative Agent its additional costs pursuant to Section 4.1 hereof; and (iv) the obligation to pay to the Administrative Agent or
the Letter of Credit Issuer, as the case may be, in immediately available funds, its Pro Rata Share of any unreimbursed drawing under a Letter of Credit.
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(d) Payment of Letter of Credit. In consideration for the issuance by the Letter of Credit Issuer of a Letter of Credit for the account of a Borrower, the Borrower hereby
authorizes, empowers, and directs the Administrative Agent, for the benefit of the Secured Parties and the Letter of Credit Issuer, to disburse directly, as a Borrowing hereunder by the Borrower, to the Letter of Credit Issuer, with notice to
the Borrower, in immediately available funds an amount in the applicable Currency equal to the stated amount of each draft drawn under each such Letter of Credit plus all interest, reasonable costs and expenses, and fees due to the Letter of
Credit Issuer pursuant to this Credit Agreement in respect of Letters of Credit issued for the account of the Borrower. Subject to receipt of notice from the Administrative Agent, each Lender shall pay to the Administrative Agent such ▇▇▇▇▇▇’s
Pro Rata Share of the amount disbursed by the Administrative Agent in the applicable Currency on the Business Day on which the Letter of Credit Issuer honors any such draft or incurs or is owed any such interest, costs, expenses or fees. The
Administrative Agent will promptly notify the Borrower of any disbursements made by the Lenders pursuant to the terms hereof; provided that the failure to give such notice will not
affect the validity of the disbursement, and the Administrative Agent shall provide the Lenders with notice thereof. Any such disbursement made by the Lenders to the Letter of Credit Issuer on account of a Letter of Credit shall be deemed a
Eurocurrency Rate Loan with a one-month Interest Period if such disbursement is in an Alternative Currency (other than Canadian Dollars, Sterling or Swiss Francs), or a Daily Simple RFR Loan if such disbursement is in Dollars, Canadian Dollars,
Sterling or Swiss Francs, in each case, to the Borrower, and the Borrower shall be deemed to have given to the Administrative Agent, in accordance with the terms and conditions of Section 2.3(a)
hereof, a Request for Borrowing with respect thereto and such payments shall be made without regard to the minimum and multiple amounts set forth in Section 2.4 hereof. The
Administrative Agent and the Lenders may conclusively rely on the Letter of Credit Issuer as to the amount due the Letter of Credit Issuer by reason of any draft of a Letter of Credit or due the Letter of Credit Issuer under any Application for
Letter of Credit. The obligations of a Lender to make payments to the Administrative Agent for the account of the Letter of Credit Issuer under this Section 2.8(d) shall be
irrevocable, shall not be subject to any qualification or exception whatsoever, and shall, irrespective of the satisfaction of the conditions to the making of any Loans described in Sections 2.3,
6.1, 6.2 and/or 6.3 hereof, as applicable, be honored in
accordance with this Section 2.8(d) under all circumstances unless there is an Event of Default or Potential Default, in each case, under Section 10.1(h) or (i), including, without limitation, any of the following circumstances: (i) any lack of validity or enforceability of such Letter of
Credit, this Credit Agreement or any of the other Loan Documents; (ii) the existence of any claim, counterclaim, setoff, defense or other right which any Credit Party may have at any time against a beneficiary named in a Letter of Credit or any
transferee of a beneficiary named in a Letter of Credit (or any Person for whom any such transferee may be acting), the Administrative Agent, the Letter of Credit Issuer, any Lender, or any other Person, whether in connection with this Credit
Agreement, any Letter of Credit, the transactions contemplated herein or any unrelated transactions (including any underlying transactions between the account party and beneficiary named in any Letter of Credit); (iii) any draft, demand,
certificate or any other document presented under a Letter of Credit having been determined to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect or any loss or delay
in the transmission or otherwise of any document required in order to make a draw under a Letter of Credit; (iv) any payment by the Letter of Credit Issuer under such Letter of Credit against presentation of a draft or certificate that does
not strictly comply with the terms of such Letter of Credit; or any payment made by the Letter of Credit Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; (v) the surrender or
impairment of any security for the performance or observance of any of the terms of any of the Loan Documents; or (vi) the occurrence of any Event of Default or Potential Default.
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(e) Borrower Inspection. The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower’s instructions or other irregularity, the Borrower shall promptly notify the Letter of Credit Issuer in writing. The Borrower shall be conclusively deemed to have waived any such claim against the Letter of
Credit Issuer and its correspondents, unless such prompt written notice is given as aforesaid.
(f) Role of Letter of Credit Issuer. Each Lender and the Borrower agrees that, in paying any drawing under a Letter of Credit issued for the account of the Borrower, the Letter of
Credit Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by such Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. None of the Letter of Credit Issuer, the Administrative Agent nor any of the respective correspondents, Participants or Assignees of the Letter of Credit Issuer
shall be liable to any Lender for: (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit. The Borrower(s) assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit issued for the account of the Borrower; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Letter of Credit Issuer,
the Administrative Agent, nor any of the respective correspondents, Participants or Assignees of the Letter of Credit Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vi) of Section 2.8(d) hereof. In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.
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(g) Acceleration of Undrawn Amounts. Should the Administrative Agent demand payment of the Obligations hereunder prior to the Maturity Date pursuant to Section 10.2 hereof, the Administrative Agent, by written notice to the Borrower, may take one or more of the following actions: (i) declare the obligation of the Letter of Credit Issuer to issue Letters of
Credit hereunder terminated, whereupon such obligations shall forthwith terminate without any other notice of any kind; or (ii) declare the outstanding Letter of Credit Liability to be forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby waived, and demand that the Borrower pay, in the applicable Currency (unless otherwise agreed to by the Administrative Agent in writing), to the Administrative Agent for deposit
in a segregated interest-bearing cash collateral account, as security for its Obligations, an amount equal to the aggregate undrawn stated amount of all Letters of Credit issued for the account of the Borrower then outstanding at the time such
notice is given. Unless otherwise required by Law, upon the full and final payment of the Obligations, the Administrative Agent shall return to the Borrower any amounts remaining in said cash collateral account.
2.9 Addition of Borrowers and Guarantors.
(a) In order for an
entity to be approved as an Additional Borrower: (i) the Borrower shall obtain the consent of the Administrative Agent, such consent to be in the reasonable discretion of the Administrative Agent if such proposed Additional ▇▇▇▇▇▇▇▇ holds or
proposes to acquire an Investment and in the sole discretion of the Administrative Agent if otherwise (such entity, an “Additional Borrower”); and (ii)
the applicable provisions of this Section 2.9 and Section 6.3 hereof shall be satisfied.
(b) In order for an
entity to be approved as an Additional Guarantor: (i) the Borrower shall obtain the consent of the Administrative Agent which shall be in the sole discretion of the Administrative Agent (such entity, an “Additional Guarantor”); and (ii) the applicable provisions of this Section 2.9 and Section 6.4 hereof shall be satisfied.
(c) Upon the
satisfaction of the applicable requirements of clauses (a) and (b) above, the Additional Borrower or Additional Guarantor
shall be bound by the terms and conditions of this Credit Agreement as if it were a Borrower or Guarantor, as applicable, hereunder and shall execute and deliver documentation, substantially similar to that executed by the Initial Borrower or
Initial Guarantors, as applicable, including but not limited to (i) a Borrower Joinder Agreement and/or a Guarantor Joinder Agreement, as applicable (and any other applicable Loan Documents), (ii) with respect to each Additional Borrower, the
documents and other items set forth in Section 6.3(b), (iii) with respect to each Additional Guarantor, the documents and other items set forth in Section 6.4(b), and (iv) such other documents and agreements as the Administrative Agent may reasonably require in connection therewith.
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(d)
(i) If any Borrower
(i) has no Obligations outstanding (including any Loans or Letters of Credit issued for its benefit but excluding any Obligations of any other Borrower), (ii) holds no Eligible Investments (or Investments that were Eligible Investments prior to
a Material Investment Event), (iii) such Borrower accounts for no greater than the lesser of (A) $5,000,000 and (B) 3.5% of Adjusted NAV, and (iv) there exists no Event of Default, Potential Default or Trigger Event which is continuing, such
Borrower shall be permitted to withdraw from the Credit Facility as a Borrower upon ten (10) days advance written notice to the Administrative Agent (or such shorter period as agreed by the Administrative Agent in writing), provided that after
giving effect to such withdrawal, the LTV Ratio shall not exceed the Maximum LTV Ratio. Upon effectiveness of such withdrawal, such Borrower shall have no further obligations under this Credit Agreement (except as set forth in the last
sentence of this Section 2.9(d)(i)). Upon effectiveness of such withdrawal, the Administrative Agent will return or destroy any Note issued by such ▇▇▇▇▇▇▇▇, and any Collateral
Document executed by such Borrower shall, notwithstanding anything to the contrary in any Loan Document, be of no further force or effect. Thereafter, upon request, the Administrative Agent, on behalf of the Secured Parties, shall promptly
provide such Borrower, at its sole expense, a written release of their respective Obligations hereunder and under the other Loan Documents and of the Collateral pledged, assigned or otherwise secured, together with any assignment therefor to
the relevant party by such Borrower and, so long as such Borrower has written confirmation from the Administrative Agent that such Collateral Documents have been terminated as provided above, such Borrower shall be authorized to prepare and
file termination statements terminating all UCC financing statements and any related filings in foreign jurisdictions filed of record in connection with such Collateral Documents. Notwithstanding any withdrawal by a Borrower pursuant to this Section 2.9(d)(i), such Borrower shall remain liable for any amounts due to the Secured Parties pursuant to Sections 4 and 12.5 hereof from such Borrower, which provisions shall survive any withdrawal by a Borrower and the termination of this Credit Agreement.
(ii) If any Guarantor
does not directly or indirectly hold any Eligible Investments (or Investments that were Eligible Investments prior to a Material Investment Event), and there exists no Event of Default, Potential Default or Trigger Event which is continuing,
such Guarantor shall be permitted to withdraw from the Credit Facility as a Guarantor upon ten (10) days advance written notice to the Administrative Agent (or such shorter period as agreed by the Administrative Agent in writing). Upon
effectiveness of such withdrawal, such Guarantor shall have no further obligations under this Credit Agreement. Thereafter, upon request, the Administrative Agent, on behalf of the Secured Parties, shall promptly provide such Guarantor, at its
sole expense, a written release of their respective Obligations hereunder and under the other Loan Documents, except for those Obligations (including indemnification obligations pursuant to Section
12.5) which by their terms survive withdrawal by a Guarantor and termination of this Credit Agreement.
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2.10 Use of Proceeds, Letters of Credit. The proceeds of the Loans and the Letters of
Credit shall be used solely to finance any Credit Party’s direct or indirect acquisition of Investments, to provide working capital or for other general corporate purposes permitted under each applicable Credit Party’s Partnership Agreement, all
related documentation (including any subscription agreements and Infra-Fund Supplemental Agreements, if any) and the Constituent Documents of each applicable Credit Party,
including to acquire or otherwise support an Investment or Investments; provided that, subject to Section 9.10, the
outstanding Principal Obligations as of any date used for Distributions to Investors in any Infra-Fund Subscription Entity (excluding any repurchase of Units pursuant to the Unit Repurchase Program of the applicable Infra-Fund Subscription
Entities) shall not exceed twenty percent (20%) of the Available Commitment as of such date. Neither the Lenders nor the Administrative Agent shall have any liability, obligation, or responsibility whatsoever with respect to the Borrower’s use of
the proceeds of the Loans or the Letters of Credit, and neither the Lenders nor the Administrative Agent shall be obligated to determine whether or not the Borrower’s use of the proceeds of the Loans or the Letters of Credit are for purposes
permitted under the Partnership Agreement or other Constituent Documents of any Infra-Fund Subscription Entity, Credit Party or Holding Vehicle or any related documentation (including any applicable subscription agreements and Infra-Fund
Supplemental Agreements, if any). Nothing, including, without limitation, any Borrowing, any Rollover, any issuance of any Letter of Credit, or other document or instrument, shall be construed as a representation or warranty, express or implied,
to any party by the Lenders or the Administrative Agent as to whether any investment by a Borrower is permitted by the terms of its Partnership Agreement and related documentation (including the Partnership Agreement or other Constituent Documents
of any Infra-Fund Subscription Entity, Credit Party or other Holding Vehicle, as applicable or any related documentation (including any applicable subscription agreements and Infra-Fund Supplemental Agreements, if any).
2.11 Administrative Agent and ▇▇▇▇▇▇ ▇▇▇▇. The Borrower shall pay, to the
Administrative Agent and to each applicable Lender, fees in consideration of the arrangement and in respect of the Administrative Agent only, administration of the Lender Commitments, which fees shall be payable in amounts and on the dates set
forth in the applicable Fee Letter.
2.12 Unused Commitment Fee.
(a) In addition to the
payments provided for in Section 3 hereof, the Borrower shall pay or cause to be paid to the Administrative Agent, for the account of each Lender, according to its Pro Rata Share, an
unused commitment fee on the average daily amount of the Maximum Commitment less the Dollar Equivalent of the Principal Obligations outstanding on such date (the “Unused Portion”), during the immediately preceding calendar quarter at the rate of (a) 40 basis points (0.40%) per annum when the Unused Portion is less than or equal to fifty percent (50%) of the Maximum Commitment, or (b) 50
basis points (0.50%) per annum when the Unused Portion is greater than 50 percent (50%) of the Maximum Commitment, in either case calculated on the basis of actual days elapsed in a year consisting of 360 days, in each case, payable in arrears
on the fifteenth (15th) Business Day of each calendar quarter for the preceding calendar quarter. The unused commitment fee shall accrue at all times during the Commitment Period, shall be calculated on an average daily basis and
shall be payable in Dollars. The Borrower and the Lenders acknowledge and agree that the unused commitment fees payable hereunder are bona fide unused commitment fees
and are intended as reasonable compensation to the Lenders for committing to make funds available to the Borrower as described herein and for no other purposes.
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(b) Any such unused
commitment fees accrued pursuant to Section 2.12(a) above shall be paid in cash, unless the Borrower delivers written notice to the Administrative Agent not later than 2:00 p.m. (New
York time) three (3) Business Days prior to any payment date for unused commitment fees pursuant to Section 2.12(a) above that it elects to capitalize such fees as a Loan, then the
amount of such fees shall be capitalized and deemed to be a Loan under this Credit Agreement (each such Loan, a “Capitalized Unused Commitment Fee Loan”);
provided that on any such payment date for unused commitment fees pursuant to Section 2.12(a) above, (i) no Event of
Default or Potential Default shall have occurred and be continuing, (ii) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (except that any
representation (or portion thereof, as applicable) qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of such date, with the same force and effect as if made on and as
of such date (except to the extent of changes in facts or circumstances that have been disclosed to the Administrative Agent in writing and do not constitute an Event of Default or Potential Default or to the extent such representations and
warranties expressly relate to an earlier or other specific date), and (iii) no Excess Prepayment Event shall have occurred and be continuing as a result thereof. The initial Capitalized Unused Commitment Fee Loan hereunder shall be a new Loan
bearing interest based on Daily Simple RFR for Dollars. Any subsequent Capitalized Unused Commitment Fee Loan, unless otherwise specified by the Borrower in writing, shall become part of the initial Capitalized Unused Commitment Fee Loan, on
the same terms and conditions as such initial Capitalized Unused Commitment Fee Loan.
2.13 Letter of Credit Fees. The Borrower shall pay to the Administrative Agent:
(a) for the benefit of
the Lenders, in consideration for the issuance of Letters of Credit issued for its account hereunder, a non-refundable fee equal to the Applicable Margin (applicable to Loans in such Currency) on the average daily face amount of each such
Letter of Credit, less the amount of any draws on such Letter of Credit, payable quarterly in arrears on the later of (i) the fifteenth (15th) Business Day of each calendar quarter for the preceding calendar quarter and (ii) the
fifth (5th) Business Day following receipt of an invoice from the Administrative Agent, commencing on the issuance date and continuing for so long as such Letter of Credit remains outstanding (such fee shall be payable in Dollars);
and
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(b) for the benefit of
the Letter of Credit Issuer, and for the Letter of Credit Issuer’s own account, in consideration of the issuance and fronting of Letters of Credit, a fronting fee, with respect to each Letter of Credit, at a rate equal to 0.125% per annum,
computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears, which fee shall be waived by ING if it is the sole Lender in the Credit Facility. Such fronting fee shall be due and payable on (i)
the later of (A) the fifteenth (15th) Business Day of each calendar quarter for the preceding calendar quarter (or portion thereof, in the case of the first payment) and (B) the fifth (5th) Business Day following receipt
of an invoice from the Administrative Agent, commencing with the first such date to occur after the issuance of such Letter of Credit, (ii) the Maturity Date and (iii) thereafter (if applicable) on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.4. In addition, the Borrower Party shall
pay directly to the Letter of Credit Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the Letter of Credit Issuer relating to letters of credit as
from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
2.14 Extension of Maturity Date.
(a) The Borrower will
may request an extension of the Stated Maturity Date then in effect for 1 additional term of up to 364 days with respect to each such extension (any such extension, an “Uncommitted Extension Option”), in each case, subject to the approval of the Administrative Agent and one or more of the Lenders in their sole discretion and to satisfaction of the following applicable conditions precedent:
(i) the Borrower shall
have paid (on or prior to the date on which such extension becomes effective) an extension fee for the extension as set forth in the applicable Fee Letter, payable to the Administrative Agent, for the benefit of each extending Lender ratably
based on such extending Lender’s share of the Lender Commitments subject to extension, and such extension fee shall be pro-rated in the case of any extension of less than 364 days, provided that if any such extension is for less than 364 days, then such extension shall have a term of at least six (6) months (or such shorter period agreed by the Administrative Agent);
(ii) no Potential
Default or Event of Default shall have occurred and be continuing on the date on which notice is given in accordance with the following clause (v) or on the Stated Maturity Date then
being extended;
(iii) either no Review
Event has occurred and is continuing or if a Review Event has occurred and is continuing, a Review Event Cure Plan has been agreed with respect thereto and the Borrower is in compliance with such agreed Review Event Cure Plan;
(iv) no other Trigger
Event has occurred and is continuing;
(v) the Borrower shall
have delivered an Extension Request to the Administrative Agent with respect to such extension no less than thirty (30) days prior to the Stated Maturity Date then in effect (or such shorter period agreed to by the Administrative Agent in
writing) (which shall be promptly forwarded by the Administrative Agent to each Lender);
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(vi) the
representations and warranties set forth herein and in the other Loan Documents are true and correct in all material respects (except that any representation (or portion thereof, as applicable) qualified as to “materiality” or “Material Adverse
Effect” shall be true and correct in all respects as so qualified) on and as of the date of such extension, and will be true and correct in all material respects (except that any representation (or portion thereof, as applicable) qualified as
to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) immediately after the extension pursuant to this Section 2.14, with the same
force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed in writing to the Administrative Agent and do not constitute an Event of Default or a Potential Default or to
the extent such representations and warranties relate to an earlier or specified date);
(vii) the Borrower shall
have delivered to each requesting Lender a new or updated Beneficial Ownership Certification, as applicable, in relation to the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, if so requested by
such Lender prior to the effectiveness of any extension to the Maturity Date; and
(viii) on or prior to
the then current Maturity Date, the Administrative Agent and one or more existing Lender(s) shall have agreed to extend the Maturity Date for such additional term, each in its sole discretion.
(b) To the extent any
Lender does not consent to extend its Lender Commitment with respect to any Uncommitted Extension Option under this Section 2.14, the Obligations outstanding to such Lender as of the
then effective Stated Maturity Date shall be due and payable to such Lender on such date; provided that, at the discretion of the Administrative Agent and the Borrower, such
non-extending Lender may be required to assign on the Stated Maturity Date all or part of its Lender Commitment to one or more extending Lenders (or new Lenders) who have consented to increase their Lender Commitments and have agreed to such
extended Stated Maturity Date. Upon the payment of amounts due under the prior sentence to the non-extending Lender (and, if requested by the Administrative Agent and the Borrower, such aforementioned assignment), such non-extending Lender
shall cease to be a Lender hereunder.
2.15 Increase in the Maximum Commitment; Borrowings and Repayments.
(a) Permanent
Increase in the Maximum Commitment.
(i) Request for Increase. Subject to compliance with the terms of this Section 2.15(a), upon delivery to the
Administrative Agent by the Borrower of a Facility Increase Request, the Borrower may permanently increase the Maximum Commitment to an amount whereby immediately after giving effect thereto, the LTV Ratio shall not exceed the Maximum LTV
Ratio. Such permanent increases may be effected in one or more requested increases, in minimum increments of $25,000,000 (or such other amount as agreed by the Administrative Agent) (each such increase, shall be referred to herein as a “Facility Increase”).
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(ii) Effective Date. The Administrative Agent and the Borrower shall determine the effective date of any Facility Increase (the “Increase Effective Date”). The Administrative Agent shall promptly notify the Borrower and the Lenders of the Increase Effective Date.
(iii) Conditions to Effectiveness of Increase. The following are conditions precedent to such increase:
(1) each of the
increasing Lenders shall consent in writing to such Facility Increase in their sole discretion and the Administrative Agent shall consent in writing to such Facility Increase to the extent such Facility Increase is pursuant to a new Lender
joining the Credit Facility (such consent not to be unreasonably withheld or delayed);
(2) no later than
ten (10) Business Days prior to the date of such increase (or such shorter period as agreed by the Administrative Agent in its sole discretion), the Borrower shall deliver to the Administrative Agent a Facility Increase Request signed by a
Responsible Officer of the Borrower certifying and attaching the resolutions adopted by or on behalf of the Borrower approving or consenting to such increase;
(3) on or prior to
the proposed date of such Facility Increase, the Borrower shall pay to the Administrative Agent, for the benefit of the applicable Lenders or other applicable Persons: (A) the Facility Increase Fee, and (B) to the extent invoiced at least two
(2) Business Days prior to the required payment date, all other fees due and owing hereunder or under any other Loan Document;
(4) if requested by
the Administrative Agent on behalf of the Lenders and the Borrower executing the Facility Increase Request shall execute replacement Notes payable to the Administrative Agent reflecting the Facility Increase;
(5) on the Increase
Effective Date, (A) an existing Lender or Lenders agree(s) to increase its Lender Commitment to support the Facility Increase, in its sole discretion, and/or (B) an additional Lender or Lenders shall have joined the Credit Facility in
accordance with Section 2.14 or 12.11(e) hereof, and the aggregate Lender Commitment of such increasing and additional
Lenders shall be at least equal to the amount of such Facility Increase;
(6) the
representations and warranties set forth herein and in the other Loan Documents are true and correct in all material respects (except that any representation (or portion thereof, as applicable) qualified as to “materiality” or “Material Adverse
Effect” shall be true and correct in all respects as so qualified) on and as of the Increase Effective Date, and will be true and correct in all material respects (except that any representation (or portion thereof, as applicable) qualified as
to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) immediately after the Facility Increase pursuant to this Section 2.15(a), with
the same force and effect as if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed in writing to the Administrative Agent and do not constitute an Event of Default or a Potential
Default or to the extent such representations and warranties relate to an earlier or specified date);
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(7) no Potential
Default or Event of Default shall have occurred and be continuing;
(8) either no Review
Event has occurred and is continuing or if a Review Event has occurred and is continuing, a Review Event Cure Plan has been agreed with respect thereto and the Borrower is in compliance with such agreed Review Event Cure Plan;
(9) no other Trigger
Event has occurred and is continuing (or will result therefrom);
(10) the Borrower is in
compliance with the Financial Covenants after giving pro forma effect to any such increase and shall demonstrate pro forma compliance including (A) an increased interest rate (for the drawn portion on the effective date of such Facility
Increase) and (B) increased unused commitment fees (for the undrawn portion on the effective date of such Facility Increase) pursuant to delivery of a Compliance Certificate under Section 8.1(b);
and
(11) the Borrower shall
have delivered to each requesting Lender (i) a new or updated Beneficial Ownership Certification, as applicable, in relation to the Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation; and (ii) any
documents or information related to “Know Your Customer” or similar requirements reasonably requested by the Lenders (through the Administrative Agent), and required by their applicable regulatory requirements, in each case, if so requested by
such Lender prior to the effectiveness of any Facility Increase.
(iv) For the avoidance
of doubt, such increases provided under this Section 2.15(a) may be provided by existing Lender(s) on a non-ratable basis.
(b) Reallocation Following Facility Increase. On any Increase Effective Date with respect to any Facility Increase pursuant to Section
2.15(a) hereof (whether pursuant to a new Lender joining the Credit Facility or an existing Lender increasing its Lender Commitment), the Administrative Agent will reallocate the outstanding Loans and participations in Letters of
Credit hereunder (including any Loans made by any new or increasing Lender pursuant to Section 2.15(a)) such that, after giving effect thereto, the ratio of each Lender’s (including
each new or increasing Lender’s) share of the outstanding Loans and participations in Letters of Credit is in the same proportion as that of such ▇▇▇▇▇▇’s individual Lender Commitment over the total Lender Commitments. For the avoidance of
doubt, such reallocation may require the reallocation of Loans from an existing Lender to a new or increasing Lender. In connection with any such reallocation of the outstanding Loans, (i) the Administrative Agent will give advance notice
sufficient to comply with the applicable timing period in Section 2.3 to each Lender which is required to fund any amount or receive any partial repayment in connection therewith and
(ii) the applicable Lender or Lenders will fund such amounts up to their respective shares of the Loans being reallocated and the Administrative Agent shall remit to any applicable Lenders its applicable portion of such funded amount if
necessary to give effect to the reallocation of such Loans. In connection with such repayment made with respect to such reallocation (to the extent such repayment is required), the Borrower shall pay (i) all interest due on the amount repaid
to the date of repayment on the immediately following Interest Payment Date and (ii) any amounts due pursuant to Section 4.5 hereof as a result of such reallocation occurring on any
date other than an Interest Payment Date.
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Section 3. PAYMENT OF
OBLIGATIONS
3.1 Revolving Credit Notes. The Administrative Agent may request that ▇▇▇▇▇ made
under this Credit Agreement be evidenced by a promissory note executed by each Borrower, with each Borrower being jointly and severally liable for the Obligations of all Borrowers (if applicable). In such event, each Borrower shall execute and
deliver a promissory note payable to the Administrative Agent on behalf of the Lenders. Any such note issued by each Borrower shall be substantially in the form of Exhibit B attached
hereto (with blanks appropriately completed in conformity herewith). Each Borrower agrees, from time to time, upon the request of the Administrative Agent, to reissue a new Note, in accordance with the terms and in the form heretofore provided, to
the Administrative Agent, in renewal of and substitution for the Note previously issued by such Borrower(s) to the Administrative Agent, and such previously issued Note shall be returned to the applicable Borrower(s) marked “replaced.”
3.2 Payment of Obligations. The unpaid principal amount of the Obligations
outstanding on the Maturity Date, together with all accrued but unpaid interest thereon, shall be due and payable on the Maturity Date.
3.3 Payment of Interest.
(a) Interest. Interest on each Borrowing and any portion thereof shall commence to accrue in accordance with the terms of this Credit Agreement and the other Loan Documents as of
the date of the disbursal or wire transfer of such Borrowing by the Administrative Agent, consistent with the provisions of Section 2.6 hereof, even if such Borrowing is held in
escrow pursuant to the terms of any escrow arrangement or agreement. When a Borrowing is disbursed by wire transfer pursuant to instructions received from the Borrower in accordance with the related Request for Borrowing, then such Borrowing
shall be considered made at the time of the transmission of the wire, rather than the time of receipt thereof by the receiving bank. With regard to the repayment of the Loans, interest shall continue to accrue on any amount repaid until such
time as the repayment has been received in federal or other immediately available funds in the applicable Currency (unless otherwise agreed by all Lenders) by the Administrative Agent to the Administrative Agent’s account described in Section 3.4 hereof, or any other account of the Administrative Agent which the Administrative Agent designates in writing to the Borrower.
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(b) Interest Payment Dates. Accrued and unpaid interest on the Obligations (i) shall be due and payable in arrears on each Interest Payment Date and on the Maturity Date, (ii)
shall be due and payable on each other date of any reduction of the Principal Obligations hereunder (solely with respect to the portion of the Obligations so prepaid), (iii) with respect to any Obligation with respect to which the Borrower is
in default, shall be due and payable at any time and from time to time following such default upon demand by Administrative Agent and (iv) in the event of any Conversion of any Eurocurrency Rate Loan or Term RFR Loan prior to the end of the
Interest Period applicable thereto, accrued interest on such applicable Loan shall be payable on the effective date of such Conversion. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief Law.
(c) Direct Disbursement. If, at any time, the Administrative Agent or Letter of Credit Issuer shall not have received on the date due, any payment of interest upon the Loans
(other than as provided in Section 3.3(d) hereof), or any fee described herein, the Administrative Agent may direct the disbursement of funds from a Collateral Account of the Borrower
(or the Borrower) to the Lenders to the extent available therein for payment of any such amount; provided that, subject to the provisions set forth in Section 3.1 hereof, the amount so debited from any Collateral Account(s) shall not exceed the amount owing by the Borrower. Thereafter, if the amount available in the applicable Collateral Account(s) is not
sufficient for the full payment of such amounts due from the Borrower, the Administrative Agent may, without prior notice to or the consent of the Credit Parties, within the limits of the Available Commitment, disburse to the Lenders or the
Letter of Credit Issuer, in accordance with the terms hereof, in immediately available funds an amount equal to the interest or fee due to the Lenders, which disbursement shall be deemed to be a Daily Simple RFR Loan for an amount owing in
Dollars, Canadian Dollars Sterling or Swiss Francs, or a Eurocurrency Rate Loan with a one-month Interest Period with respect to an amount owing in an Alternative Currency (other than Canadian Dollars Sterling or Swiss Francs), to the Borrower
pursuant to Section 2.3 hereof, and the Borrower shall be deemed to have given to the Lenders in accordance with the terms and conditions of Section 2.3 hereof a Request for Borrowing with respect thereto. After any disbursement of funds from any Collateral Account to the Lenders as contemplated in this Section
3.3(c), the Administrative Agent shall promptly deliver written notice of such disbursement to the Borrower; provided that the failure of the Administrative Agent to
give such notice will not affect the validity of such disbursement, and the Administrative Agent shall provide the Lenders with notice thereof.
(d) Capitalization of Interest. Notwithstanding anything in this Credit Agreement to the contrary, if the Borrower notifies the Administrative Agent in a Request for Borrowing
submitted pursuant to Section 2.3 hereof that it elects to capitalize interest related to the Loan requested therein, then the amount of such interest shall be capitalized, added to
the principal amount of such Loan and deemed to be a Loan under this Credit Agreement (each such Loan, a “Capitalized Interest Loan”), unless the
Borrower otherwise notifies the Administrative Agent, with respect to interest payable in Dollars, at least three (3) Business Days and, with respect to interest payable in an Alternative Currency, at least four (4) Business Days prior to the
applicable Interest Payment Date. Unless otherwise specified by the Borrower in writing, any such Capitalized Interest Loan shall become part of the existing Loan upon which it is capitalized, on the same terms and conditions (and in the same
Currency) as such existing Loan. Notwithstanding anything in this Section 3.3(d) to the contrary, no interest shall be capitalized hereunder if (i) the result thereof would be the
creation of an Excess Prepayment Event, or (ii) any Event of Default or Potential Default shall have occurred and be continuing.
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3.4 Payments on the Obligations. All payments of principal of, and interest on, the Obligations under this Credit Agreement by the Borrower to or for the account of the
Lenders, or any of them, shall be made without condition or deduction for any counterclaim, defense, recoupment or set-off by the Borrower for receipt by the Administrative Agent on the relevant due date therefor in federal or other immediately
available funds in the same currency in which the relevant amount was remitted not later than 5:00 p.m., New York time, to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, to such account of the
Administrative Agent that the Administrative Agent designates in writing to the Borrower. Funds received after 5:00 p.m., New York time, shall be treated for all purposes as having been received by the Administrative Agent on the first Business
Day next following receipt of such funds. Except as provided in Section 2.14, 2.15
or 12.11 hereof, and as contemplated by the definition of “Applicable Margin”, each Lender shall be entitled to receive its Pro Rata Share of each payment received by the Administrative
Agent hereunder for the account of the Lenders on the Obligations. Each payment received by the Administrative Agent hereunder for the account of a Lender shall be promptly distributed by the Administrative Agent to such Lender. If any payment to
be made by the Borrower shall come due on a day other than an Interest Payment Date, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. The
Administrative Agent and each Lender hereby agree that payments to the Administrative Agent by the Borrower of principal of, and interest on, the Obligations of the Borrower to or for the account of the Lenders in accordance with the terms of this
Credit Agreement, the Notes and the other Loan Documents shall constitute satisfaction of the Borrower’s obligations with respect to any such payments, and the Administrative Agent shall indemnify, and each Lender shall hold harmless, the Borrower
from any claims asserted by any Lender in connection with the Administrative Agent’s duty to distribute and apportion such payments to the Lenders in accordance with this Section 3.4. At
all times when no Event of Default has occurred and is continuing, all payments made by a Borrower on the Obligations shall be credited as directed by the Borrower. At all times when an Event of Default has occurred and is continuing, all payments
made by a Borrower on the Obligations (including all amounts received by the Administrative Agent pursuant to the exercise of remedies hereunder or under any Collateral Document) shall be credited, to the extent of the amount thereof, in the
following manner:
(a) first, against all costs, indemnities, expenses and other fees (including attorneys’ fees) arising under the terms hereof or under any other Loan Document;
(b) second, against the amount of interest accrued and unpaid on the Obligations of the Borrower as of the date of such payment;
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(c) third, against all principal due and owing on the Obligations of the Borrower as of the date of such payment (including any Capitalized Interest Loan); and
(d) fourth, to all other amounts constituting any portion of the Obligations of the Borrower.
3.5 Voluntary Prepayments. The Borrower may, at any time or from time to time,
without premium or penalty, with prior written notice to the Administrative Agent, which such notice must be received by Administrative Agent not later than 2:00 p.m.: (i) three (3) Business Days prior to the requested date with respect to any
Eurocurrency Rate Loans; (ii) three (3) Business Days prior to the requested date with respect to any Term RFR Loans or Daily Simple RFR Loans (other than in Dollars); (iii) two (2) Business Days prior to the requested date with respect to any
Daily Simple RFR Loans in Dollars; and (iv) on the requested date with respect to any Reference Rate Loans if such date is a Business Day, prepay the principal of the Obligations then outstanding, in whole or in part, at any time or from time to
time; provided that if the Borrower shall prepay the principal of any Eurocurrency Rate Loan on any date other than the last day of the applicable Interest Period applicable thereto, the
Borrower shall make the payments required by Section 4.5 hereof. Each such notice shall specify the date (which shall be a Business Day) and amount of such prepayment and the type(s) of
Loans to be prepaid. Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s applicable percentage of such prepayment. Any such voluntary prepayment received after the close of
business in New York City on the date specified in such notice shall be treated for all purposes as having been received by the Administrative Agent on the first Business Day next following receipt of such amount.
3.6 Reduction or Early Termination of Lender Commitments. The Borrower may terminate
the Lender Commitments, or from time to time reduce the Maximum Commitment, by giving prior irrevocable written notice to the Administrative Agent of such termination or reduction three (3) Business Days (or such shorter time as the Administrative
Agent may permit) prior to the effective date of such termination or reduction (which date shall be specified by the Borrower in such notice): (a)(i) in the case of complete termination of the Lender Commitments, upon prepayment by the Borrower of
all of the outstanding Obligations, including, without limitation, all fees and interest accrued thereon, in accordance with the terms of Section 3.5 hereof; or (ii) in the case of a
reduction of the Maximum Commitment, upon prepayment of the amount by which the Dollar Equivalent of the Principal Obligations exceed the reduced Available Commitment resulting from such reduction, including, without limitation, payment of all fees
and interest accrued thereon, in accordance with the terms of Section 3.5 hereof, provided that, except in connection with a
termination of all of the Lender Commitments, the Maximum Commitment may not be reduced such that, upon such reduction, the Available Commitment is less than the Dollar Equivalent of the aggregate stated amount of (i) outstanding Letters of Credit
plus (ii) the amount indicated in all outstanding Requests for Letter of Credit; and (b) in the case of the complete termination of the Lender Commitments, if any Letter of Credit Liability exists, upon payment to the Administrative Agent for
deposit in a segregated interest-bearing cash collateral account, as security for the Letter of Credit Liability, an amount equal to the Letter of Credit Liability then outstanding at the time such notice is given in the applicable Currencies of
such outstanding Letters of Credit, without presentment, demand, protest or any other notice of any kind, all of which are hereby waived. Unless otherwise required by Law, upon the full and final payment of the Letter of Credit Liability, or upon
the termination of all outstanding Letter of Credit Liability due to the expiration of all outstanding Letters of Credit prior to draws thereon, the Administrative Agent shall return to the Borrower any amounts remaining in said cash collateral
account; provided that, so long as no Event of Default or Potential Default exists, to the extent individual Letters of Credit expire, the Administrative Agent will return to the Borrower
the corresponding amount of the expired Letter of Credit Liability. Notwithstanding the foregoing: (1) any reduction of the Maximum Commitment shall be in an amount equal to $5,000,000 or multiples thereof (or such other amount as agreed by the
Administrative Agent); and (2) in no event shall a reduction by the Borrower reduce the Maximum Commitment to less than $25,000,000 (except for a termination of all the Lender Commitments). Promptly after receipt of any notice of reduction or
termination, the Administrative Agent shall notify each Lender of the same. Any reduction of the Maximum Commitment shall reduce the Lender Commitments of the Lenders on a pro rata
basis, subject to Section 2.15 hereof.
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3.7 Lending Office. Each Lender may: (a) designate its principal office or a branch,
subsidiary or Affiliate of such Lender as its lending office (and the office to whose accounts payments are to be credited) for any Loan; and (b) change its lending offices from time to time by notice to the Administrative Agent and the Borrower.
Each Lender shall be entitled to fund all or any portion of its Lender Commitment in any manner it reasonably deems appropriate, consistent with the provisions of Section 2.5 hereof, but
for the purposes of this Credit Agreement such Lender shall, regardless of such Lender’s actual means of funding, be deemed to have funded its Lender Commitment in accordance with the Interest Option selected from time to time by the Borrower for
such Borrowing period.
Section 4. CHANGE IN
CIRCUMSTANCES
4.1 Increased Cost and Reduced Return; Change in Law.
(a) Change in Law: Increased Costs. Subject to Section 4.1(b) hereof, if any Lender or the Letter of Credit Issuer
reasonably determines that as a result of the introduction after the Closing Date, or if later, with respect to any Lender or the Letter of Credit Issuer, after the date such Lender or Letter of Credit Issuer became a Lender or the Letter of
Credit Issuer hereunder, of any change in, or in the interpretation by any Governmental Authority of, any Law or the method by which such Lender or the Letter of Credit Issuer must comply therewith, there shall be any increase in the cost to
such Lender or the Letter of Credit Issuer of agreeing to make or making, funding or maintaining Eurocurrency Rate Loans, RFR Loans or Reference Rate Loans or (as the case may be) issuing or participating in Letters of Credit by virtue of the
participation arrangement provided in Section 2.8(c) hereof (including the imposition, modification or application of any reserve (including pursuant to regulations issued from time
to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency reserve requirement) with respect to eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D)), or a
reduction in the amount received or receivable by such Lender or the Letter of Credit Issuer in connection with any of the foregoing (excluding for purposes of this Section 4.1(a) any
such increased costs or reduction in amount resulting from (i) Non-Excluded Taxes (as to which Section 4.6 hereof shall govern), (ii) Taxes described in clauses (b) through (d) of the
definition of Excluded Taxes, and (iii) Taxes imposed on or measured by net income (however denominated) or that are franchise Taxes (imposed in lieu of net income Taxes), or branch profit Taxes imposed as a result of a present or former
connection between a Lender or Letter of Credit Issuer and the jurisdiction imposing such Tax (other than connections arising from such Lender or Letter of Credit Issuer having executed, delivered, become a party to or performed its obligations
under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document), then from time to time
upon demand of such Lender or the Letter of Credit Issuer (with a copy of such demand to the Administrative Agent)), the Borrower shall pay to such Lender or the Letter of Credit Issuer, as applicable, on or prior to the Required Payment Time
(measured from the date of such demand), such additional amounts (subject to Section 4.7 hereof) as will compensate such Lender or the Letter of Credit Issuer for such increased cost
or reduction (provided that such amounts (other than Taxes) shall be consistent with amounts that such Lender or the Letter of Credit Issuer is generally charging other borrowers
similarly situated to the Borrower).
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(b) Change in Law: Reduced Return. If any Lender or the Letter of Credit Issuer reasonably determines that the introduction after the Closing Date, or if later, with respect to
any Lender or the Letter of Credit Issuer, after the date such Lender or the Letter of Credit Issuer became a Lender or the Letter of Credit Issuer hereunder, of any Law regarding capital adequacy or liquidity requirement or any change therein
or in the interpretation by any Governmental Authority thereof, or the method by which such Lender (or its Applicable Lending Office) or the Letter of Credit Issuer must comply therewith, has the effect of reducing the rate of return on the
capital of such Lender or the Letter of Credit Issuer or any entity controlling such Lender or the Letter of Credit Issuer as a consequence of such Lender’s or the Letter of Credit Issuer’s obligations hereunder (taking into consideration its
policies with respect to capital adequacy and liquidity requirements and such Lender or the Letter of Credit Issuer’s or entity’s desired return on capital), then from time to time upon demand of such Lender or the Letter of Credit Issuer (with
a copy of such demand to the Administrative Agent), the Borrower shall (subject to Section 4.7 hereof) pay to such Lender or the Letter of Credit Issuer, as applicable, on or prior to
the Required Payment Time (measured from the date of such demand), such additional amounts as will compensate such Lender or the Letter of Credit Issuer for such reduction (provided
that such amounts shall be consistent with amounts that such Lender or the Letter of Credit Issuer is generally charging other borrowers similarly situated to the Borrower).
(c) Notice. Each Lender and the Letter of Credit Issuer shall promptly notify the Borrower and the Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, but in no event later than one hundred eighty (180) days after the occurrence of such event, which will or may entitle such Lender to compensation pursuant to this Section 4.1;
provided, that, if the circumstance giving rise to such increased cost or reduction is retroactive, then such one hundred eighty (180) day period referenced above shall be extended to
include the period of retroactive effect. Each Lender agrees to designate a different Applicable Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the good faith judgment of
such Lender, be otherwise disadvantageous to it.
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4.2 Limitation on Types of Loans.
(a) [Reserved].
(b) Effect of Benchmark Transition Event.
(i) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document:
(A) [Reserved].
(B) Future Benchmark Replacement. If a Benchmark Transition Event occurs after the Closing Date with respect to any then-current Benchmark and a Benchmark Replacement is determined, then such Benchmark
Replacement will replace such then-current Benchmark for all purposes hereunder and under each other Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date
notice of such Benchmark Replacement is provided by the Administrative Agent to the Lenders and the Borrower without any amendment to, or further action or consent of any other party to, this Credit Agreement or any other Loan Document so long
as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. At any time that the administrator of a then-current Benchmark has permanently
or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative
of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower(s) may revoke any Request for Borrowing for, Conversion to or Continuation of, a
Eurocurrency Rate Loan or RFR Loan that would bear interest by reference to such Benchmark until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark and, failing that, the
Borrower will be deemed to have converted any such Request for Borrowing for, Conversion to or Continuation of, a Eurocurrency Rate Loan or RFR Loan into a Reference Rate Loan. During the period referenced in the foregoing sentence, the
component of the Reference Rate based upon the applicable then-current Benchmark will not be used in any determination of the Reference Rate. Furthermore, if any Eurocurrency Rate Loan or RFR Loan in such Currency (as applicable) is
outstanding on the date of the Borrower’s receipt of such notice from the Administrative Agent under this clause (B) with respect to a then-current Benchmark applicable to such
Eurocurrency Rate Loan or RFR Loan, then until such time as a Benchmark Replacement for such then-current Benchmark is implemented pursuant to this Section 4.2(b) (including, for the
avoidance of doubt, by any amendment to implement any necessary Benchmark Replacement Conforming Changes related thereto) (i) if such RFR Loan is denominated in Dollars, then on the last day of the Interest Period applicable to such Loan (or
the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Administrative Agent to, and shall constitute, a Reference Rate Loan denominated in Dollars on such day or (ii) if such Eurocurrency Rate
Loan or RFR Loan is denominated in an Alternative Currency, then such Loan shall, on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), at the Borrower’s election
prior to such day: (A) be prepaid by the Borrower on such day or (B) such Eurocurrency Rate Loan or RFR Loan shall be Converted into Loans bearing interest at the Reference Rate.
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(i) Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to
make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective
without any further action or consent of any other party to this Credit Agreement or any other Loan Document (other than as provided in the definition of Benchmark Replacement Conforming Changes).
(ii) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly (and in any event within five (5) Business Days) notify the Borrower and the
Lenders of (A) any occurrence of a Benchmark Transition Event, (B) the implementation of any Benchmark Replacement, (C) the effectiveness of any Benchmark Replacement Conforming Changes, and (D) the removal or reinstatement of any tenor of a
Benchmark pursuant to clause (iv) below. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, the Borrower or any Lender (or group
of Lenders) pursuant to this Section 4.2(b), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance
or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Credit
Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 4.2(b).
(iii) Unavailability of Tenor of Benchmark. At any time (including in connection with the implementation of a Benchmark Replacement), (i) if a then-current Benchmark is a term rate
(including any Term RFR or Eurocurrency Rate ), then the Administrative Agent may remove any tenor of such Benchmark that is unavailable or non-representative for such Benchmark (including Benchmark Replacement) settings and (ii) the
Administrative Agent may reinstate any such previously removed tenor for such Benchmark (including Benchmark Replacement) settings.
(iv) [Reserved].
(v) Tax Matters. The Administrative Agent and, to the extent the Borrower shall have any consent or consultation right in respect of the selection of such Benchmark Replacement,
each such applicable party shall use commercially reasonable efforts to satisfy any applicable Internal Revenue Service guidance, including Section 1.1001-3 of the United States Treasury Regulations and any future guidance, to the effect that a
Benchmark Replacement will not result in a deemed exchange for U.S. federal income tax purposes of any Loan under this Credit Agreement.
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4.3 Illegality.
(a) If any Lender reasonably determines that any Law adopted after the Closing Date or if later, with respect to any Lender, after the date such Lender became a
Lender hereunder, has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its Applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans or RFR Loans, or to determine or
charge interest rates based upon the applicable Eurocurrency Rate or RFR or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or take deposits of any Currency in the applicable
interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or Continue Eurocurrency Rate Loans in the relevant Currency or to Convert Loans to such applicable
RFR Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower pursuant to Section 4.4 hereof that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice: (i)
the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurocurrency Rate Loans or RFR Loans denominated in an Alternative Currency to Loans bearing interest at the
Reference Rate or RFR Loans denominated in Dollars of such Lender to Reference Rate Loans (with an interest rate that shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Daily Simple
RFR for Dollars component of the Reference Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans or RFR Loans to such day, or promptly, if such Lender may
not lawfully continue to maintain such Eurocurrency Rate Loans or RFR Loans; and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the applicable RFR, the Administrative Agent shall
during the period of such suspension compute the Reference Rate applicable to such Lender without reference to the Daily Simple RFR for Dollars component thereof until the Administrative Agent is advised in writing by such Lender that it is no
longer illegal for such Lender to determine or charge interest rates based upon such applicable RFR. Upon the prepayment of any such Loans, the Borrower shall also pay interest on the amount so prepaid. Each Lender agrees to designate a
different Applicable Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender.
(b) [Reserved].
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4.4 Treatment of Affected Loans.
(a) Subject to Section 4.2, in connection with any RFR Loan or any Reference Rate Loan, a Request for Borrowing therefor, a Conversion thereto or a Rollover
thereof or otherwise, if for any reason (i) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that (x) if Daily Simple RFR is utilized in any calculations hereunder or under any
other Loan Document with respect to any Obligations, interest, fees, commissions or other amounts, “Daily Simple RFR” cannot be determined pursuant to the definition thereof, or (y) if Term RFR is utilized in any calculations hereunder or under
any other Loan Document with respect to any Obligations, interest, fees, commissions or other amounts, “Term RFR” cannot be determined pursuant to the definition thereof on or prior to the first day of any Interest Period, (ii) the
Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that a fundamental change has occurred in the foreign exchange markets with respect to an applicable Alternative Currency (including
changes in national or international financial, political or economic conditions or currency exchange rates or exchange controls), or (iii) the Required Lenders determine (which determination shall be conclusive and binding absent manifest
error) that the applicable Daily Simple RFR, Term RFR or Reference Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall
promptly give notice thereof to the Borrower and the Lenders. Upon notice thereof by the Administrative Agent to the Borrower and the Lenders, (A) any obligation of the Lenders to make RFR Loans in each such Currency, and any right of the
Borrower to convert any Loan in each such Currency (if applicable) or Rollover any Loan as an RFR Loan in each such Currency (if applicable), shall be suspended (to the extent of the affected RFR Loans or, in the case of Term RFR Loans, the
affected Interest Periods) until the Administrative Agent revokes such notice and (B) if such determination affects the calculation of the Reference Rate, the Administrative Agent shall during the period of such suspension compute the Reference
Rate without reference to clause (c) of the definition of “Reference Rate” until the Administrative Agent revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending Request for Borrowing of, Conversion
Notice to or Rollover Notice of RFR Loans in each such affected Currency (to the extent of the affected RFR Loans or, in the case of Term RFR Loans, the affected Interest Periods) or, failing that, (I) in the case of any Request for Borrowing
of any affected RFR Loans in Dollars, the Borrower will be deemed to have converted any such request into a Request for Borrowing of or Conversion Notice to Reference Rate Loans in the amount specified therein, and (II) in the case of any
Request for Borrowing of any affected RFR Loans in an Alternative Currency, then such request shall be ineffective, and (B)(I) any outstanding affected RFR Loans denominated in Dollars will be deemed to have been converted into Reference Rate
Loans immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period, and (II) any outstanding affected RFR Loans denominated in an Alternative Currency, at the Borrower’s election, shall either (1) be converted
into Reference Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of such Alternative Currency) immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period, or (2) be prepaid in full,
together with accrued interest thereon (subject to the last sentence of Section 2.6(a)), immediately or, in the case of Term RFR Loans, at the end of the applicable Interest Period; provided that if no election is made by the
Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice or, in the case of Term RFR Loans, the last day of the current Interest Period for the applicable RFR Loan, if earlier, the Borrower shall be
deemed to have elected clause (1) above. Upon any such prepayment or conversion, the Borrower shall also pay any additional amounts required pursuant to Section 4.5.
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(b) Subject to Section 4.2, if, for any reason on or prior to the first day of any Interest Period with respect to a Eurocurrency Rate Loan, a Request for
Borrowing therefor, a Conversion thereto or a Rollover thereof or otherwise, (w) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that deposits are not being offered to banks in the
applicable interbank market for the applicable Currency, amount and Interest Period of such Loan, (x) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that a fundamental change has
occurred in the foreign exchange or interbank markets with respect to the applicable Alternative Currency (including changes in national or international financial, political or economic conditions or currency exchange rates or exchange
controls), (y) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that reasonable and adequate means do not exist for the ascertaining the Eurocurrency Rate for such Currency and
Interest Period, including because any screen rate for the applicable Currency is not available or published on a current basis, or (z) the Required Lenders determine (which determination shall be conclusive and binding absent manifest error)
that the Eurocurrency Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining such Loans during such Interest Period, then the Administrative Agent shall promptly give notice thereof to the Borrower and the
Lenders. Upon notice thereof by the Administrative Agent to the Borrower and the Lenders, any obligation of the Lenders to make Eurocurrency Rate Loans in each such Currency, and any right of the Borrower to convert any Loan in each such
Currency (if applicable), or Rollover any Loan as a Eurocurrency Rate Loan in each such Currency (in each case, to the extent of the affected Eurocurrency Rate Loans or Interest Periods), shall be suspended until the Administrative Agent
revokes such notice. Upon receipt of such notice, (A) the Borrower may revoke any pending Request for Borrowing of, Conversion Notice to or Rollover Notice of Eurocurrency Rate Loans in each such affected Currency (to the extent of the affected
Eurocurrency Rate Loans or the affected Interest Periods) or, failing that, in the case of any Request for Borrowing of any affected Eurocurrency Rate Loans in such Alternative Currency, then such request shall be ineffective and (B) any
outstanding affected Eurocurrency Rate Loans denominated in such Alternative Currency, at the Borrower’s election, shall either (1) be converted into Reference Rate Loans denominated in Dollars (in an amount equal to the Dollar Equivalent of
such Alternative Currency) at the end of the applicable Interest Period or (2) be prepaid in full, together with accrued interest thereon (subject to the last sentence of Section 2.6(a)), at the end of the applicable Interest Period; provided
that if no election is made by the Borrower by the date that is three (3) Business Days after receipt by the Borrower of such notice or, in the case of Eurocurrency Rate Loans, the last day of the current Interest Period for the applicable
Eurocurrency Rate Loan, if earlier, the Borrower shall be deemed to have elected clause (1) above. Upon any such prepayment or conversion, the Borrower shall also pay any additional amounts required pursuant to Section 4.5.
4.5 Compensation. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for any cost or expense actually incurred by it (other
than loss of margin or spread) as a result of:
(a) any Conversion, payment or prepayment by the Borrower of any Eurocurrency Rate Loan or Term RFR Loan on a day other than the last day of the Interest Period for
such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); provided that no Borrower shall be required to pay any of the foregoing amounts to the Lenders due to a prepayment pursuant to clause (b) of Section
2.5 hereof as a result of a Lender failing to make its Pro Rata Share of any requested Borrowing; or
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(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan, and including, without limitation, the failure of any condition
precedent specified in Section 6 hereof to be satisfied) to prepay, borrow, or Continue or Convert any Eurocurrency Rate Loan or Term RFR Loan or Convert a Reference Rate Loan to a Eurocurrency Rate Loan or Term RFR Loan on the date or
in the amount notified by the Borrower including any loss or expense (other than loss of margin or spread) arising from the liquidation of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such
funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing.
4.6 Taxes.
(a) Non-Excluded Taxes. Any and all payments by, or on account of any obligation of, the Borrower to or for the account of
the Administrative Agent, any Lender or the Letter of Credit Issuer under any Loan Document or in connection with any Letter of Credit shall be made free and clear of and without deduction for any and all present or future Taxes with respect
thereto, unless required by applicable Law. If the Borrower or the Administrative Agent shall (as determined in the good faith discretion of such Person) be required by any applicable Laws to deduct or withhold any Taxes from any such
payment: (i) in the event that such deduction or withholding is in respect of Non-Excluded Taxes, the sum payable by the Borrower shall be increased as necessary so that after making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums payable under this Section 4.6), the Administrative Agent and such Lender or Letter of Credit Issuer (without duplication) receives an amount equal to the sum it would have
received had no such deductions or withholdings of Non-Excluded Taxes been made; (ii) the Borrower or the Administrative Agent, as applicable, shall make such deductions and withholdings of Taxes; and (iii) the Borrower or the Administrative
Agent, as applicable, shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Laws.
(b) Notice of Deduction of Excluded Taxes. The Borrower shall promptly, upon becoming aware that the Borrower must deduct
or withhold any Tax on a payment under a Loan Document (or that there is any change in the rate or the basis of a Tax required to be deducted or withheld), notify the Administrative Agent accordingly.
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(c) Other Taxes. Without duplication of amounts paid to Section 4.6(a), the Borrower agrees to pay any and all present or
future stamp, court or documentary, intangible, record, filing, stamp duty reserve tax, stamp duty land tax, and any other excise or property taxes or charges or similar levies or penalties that arise from any payment made by it under any Loan
Document or in connection with any Letter of Credit or from the execution, delivery, performance, enforcement or registration of, or otherwise with respect to, any Loan Document to which it is a party or any Letter of Credit issued for its
account (hereinafter referred to as “Other Taxes”); provided that the Borrower shall not be responsible hereunder to pay any such Other Taxes (i) arising in connection with any
Lender’s violation of applicable Law and/or the use by any Lender of funds constituting Plan Assets, (ii) that are Other Connection Taxes imposed on an assignment pursuant to Section 12.11(c) hereof respectively (except in circumstances
described in Section 4.9 below), (iii) if any Loan Document is voluntarily presented (including under a contractual obligation) to the registration formalities in Luxembourg, or (iv) if any Loan Document is appended to a document that
requires mandatory registration in Luxembourg.
(d) Indemnification.
(i) The Borrower agrees to jointly and severally, indemnify any Secured Party for (A) the full amount of Non-Excluded Taxes and Other Taxes (including any Non-Excluded
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable under this Section 4.6) paid or payable by such Secured Party (other than the Collateral Agent), and (B) any liability (including, without duplication,
penalties, interest or expenses, including legal expenses incurred in the enforcement of this Credit Agreement against the Administrative Agent or the Borrower), excluding any penalties, interest or expenses attributable to the gross negligence
or willful misconduct of the Administrative Agent or any Lender or any of their Affiliates arising therefrom or with respect thereto, in each case whether or not such Non-Excluded Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. Payment under this Section 4.6(d) shall be made by the Required Payment Time (measured from the date of demand by the applicable Secured Party).
Nothing in this Section 4.6(d) shall require the Borrower to indemnify the Secured Parties (other than the Collateral Agent) to the extent that the Non-Excluded Taxes, Other Taxes or liabilities are or will be compensated for under Section
4.6(a) hereof, are suffered or incurred in respect of any Bank Levy (or any payment attributable to, or liability arising as a consequence of, a Bank Levy).
(ii) Each Lender shall severally indemnify the Administrative Agent for (x) any Non-Excluded Taxes attributable to such Lender (but only to the extent that a
Borrower has not already indemnified the Administrative Agent for such Non-Excluded Taxes and without limiting the obligation of the Borrower to do so), (y) any Taxes attributable to such ▇▇▇▇▇▇’s failure to comply with the provision of Section
12.11(f) relating to the maintenance of a Participant Register, and (z) any Excluded Taxes and any and all related losses, claims, liabilities, penalties, interest and reasonable expenses (including the fees, charges and disbursements of
any counsel for the Administrative Agent, as applicable) attributable to such Lender and incurred by or asserted against the Administrative Agent in connection with any Loan Document, as applicable, by the relevant Governmental Authority for
not properly withholding such Excluded Taxes, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender
by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise
payable by the Administrative Agent to such Lender from any other source against any amount due to the Administrative Agent under this Section 4.6(d)(ii). The agreements in this Section 4.6(d) hereof shall survive the
resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, and the repayment, satisfaction or discharge of all other Obligations.
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(e) Prescribed Forms.
(i) In the event that any Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document, such Lender
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and duly executed documentation reasonably requested by the Borrower or
the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender or Letter of Credit Issuer, if reasonably requested by the Borrower or the Administrative Agent,
shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender or Letter of
Credit Issuer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in clause (e)(ii) and (iii) below) shall not be required if, in a Lender’s reasonable judgment, such completion, execution or submission would subject such Lender, as applicable, to any material
unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii) Without limiting the foregoing, each Lender or Letter of Credit Issuer that is a U.S. Person, on or prior to the date on which such Lender or Letter of Credit
Issuer becomes a Lender or Letter of Credit Issuer hereunder (and from time to time thereafter upon the reasonable request of a Borrower or the Administrative Agent, but only to the extent that such Lender or Letter of Credit Issuer is legally
entitled to do so), shall deliver to the Borrower and the Administrative Agent executed copies of Internal Revenue Service Form W‑9 or any applicable successor form, certifying that such Lender or Letter of Credit Issuer is exempt from U.S.
federal backup withholding tax. Each Lender or Letter of Credit Issuer that is not a U.S. Person, on or prior to the date on which such Lender or Letter of Credit Issuer becomes a Lender or Letter of Credit Issuer under this Credit Agreement
(and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) shall, only to the extent that such Lender or Letter of Credit Issuer is legally entitled to do so, deliver to the Borrower and the
Administrative Agent executed copies of whichever of the following is applicable: (A) Internal Revenue Service Form W‑8BEN or W-8BEN-E, as applicable, or any applicable successor form, (I) claiming eligibility of such Lender or Letter of
Credit Issuer for a complete exemption from, or reduction of, U.S. federal withholding Tax pursuant to the benefits of an income tax treaty to which the United States is a party, or (II) accompanied by a certificate for the “portfolio interest”
rule of Section 881(c) of the Internal Revenue Code, stating that such Lender or Letter of Credit Issuer is not (x) a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (y) a “10 percent shareholder” of the Borrower
within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code or (z) a controlled foreign corporation receiving interest from a related person within the meaning of Section 881(c)(3)(C) of the Internal Revenue Code, (B) Internal
Revenue Service Form W-8ECI, or any applicable successor form, (C) Internal Revenue Service Form W-8IMY, or any applicable successor form accompanied by Internal Revenue Service Form W-8ECI, W-8BEN, W-8BEN-E, W-9 and/or other certification
documents from each beneficial owner, as applicable, evidencing a complete exemption from or reduction of U.S. withholding Tax, or (D) such other documentary evidence satisfactory to Borrowers and the Administrative Agent that such Person is
entitled to a complete exemption from or reduction of U.S. withholding Tax.
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(iii) Each Lender and Letter of Credit Issuer shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or
times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender or Letter of Credit Issuer has
complied with such ▇▇▇▇▇▇’s or Letter of Credit Issuer’s obligations thereunder or to determine the amount to deduct and withhold from such payment. For purposes of this clause (iii), “FATCA” shall include any amendments made to FATCA after
the date of this Credit Agreement and analogous provisions of non-U.S. law.
Each Lender and Letter of Credit Issuer agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.
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(f) Status of Administrative Agent. If the Administrative Agent is a U.S. Person, then it shall, on or prior to the date
of this Credit Agreement (or, in the case of a successor Administrative Agent, on or before the date on which it becomes the Administrative Agent hereunder), provide the Borrower with a properly completed and duly executed copy of IRS Form W-9
confirming that the Administrative Agent is exempt from U.S. federal back-up withholding. If the Administrative Agent is not a U.S. Person, then it shall, on or prior to the date of this Credit Agreement (or, in the case of a successor
Administrative Agent, on or before the date on which it becomes the Administrative Agent hereunder), provide the Borrower with, (i) with respect to payments made to the Administrative Agent for its own account, a properly completed and duly
executed copy of IRS Form W-8ECI (or other applicable IRS Form W-8), and (ii) with respect to payments made to the Administrative Agent on behalf of the Lenders, a properly completed and duly executed IRS Form W-8IMY confirming that the
Administrative Agent agrees (A) to be treated as a “United States person” for U.S. federal withholding Tax purposes and the payments it receives for the account of such Lenders are not effectively connected with the conduct of its trade or
business in the United States or (B) is a “Qualified Intermediary” for U.S. federal withholding Tax purposes; provided, in each case, that the Administrative Agent shall not be required to deliver any documentation pursuant to this Section
4.6(f) that it is not legally eligible to deliver as a result of any change in, or in the interpretation by any Governmental Authority of, any Law or the method by which such Administrative Agent must comply therewith occurring after the
Closing Date (or, in the case of a successor Administrative Agent, occurring after the date on which it becomes the Administrative Agent hereunder). Such Administrative Agent agrees that if such documentation previously delivered expires or
becomes obsolete or inaccurate in any respect, it shall update such form or promptly notify the Borrower in writing of its legal inability to do so.
(g) Selection of Lending Office. If the Borrower is or is likely to be required to pay additional amounts to or for the
account of any Lender pursuant to this Section 4.6, then such Lender will agree to use reasonable efforts to change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the good faith judgment of such Lender, is not otherwise materially disadvantageous to such Lender.
(h) Evidence of Payment. Within thirty (30) days after the date of any payment of Taxes or Other Taxes under a Loan Document
by the Borrower, the Borrower shall furnish to the Administrative Agent the original or a certified copy of a receipt evidencing such payment, if any.
(i) Tax Refunds. Each Lender and Letter of Credit Issuer and the Administrative Agent agrees that if such Lender or Letter
of Credit Issuer or the Administrative Agent determines, in its sole discretion exercised in good faith, that it subsequently recovers or receives a refund of any Taxes attributable to a Tax Payment by the Borrower, such Lender or Letter of
Credit Issuer or the Administrative Agent shall promptly pay the Borrower such refund net of all out-of-pocket expenses (including Taxes) related thereto; provided that if, due to subsequent adjustment of such refund, such Lender or
Letter of Credit Issuer or the Administrative Agent is required to repay such amount to the relevant Governmental Authorities, the Borrower agrees to repay to such Lender or Letter of Credit Issuer or the Administrative Agent, as the case may
be, the amount required to be repaid, plus any interest, penalties, or other charges imposed by the Governmental Authority in respect thereof. Notwithstanding anything to the contrary in this paragraph (i), in no event will any Lender or
Letter of Credit Issuer or the Administrative Agent be required to pay any amount to a Borrower pursuant to this paragraph (i) the payment of which would place such Lender or Letter of Credit Issuer or the Administrative Agent in a less
favorable net after-Tax position than such Lender or Letter of Credit Issuer or the Administrative Agent would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise
imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any Lender or Letter of Credit Issuer or the Administrative Agent to make available
its Tax returns (or any other information relating to its Taxes that it deems confidential) to the Borrower or any other Person.
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4.7 Requests for Compensation.
(a) Certificate. If requested by the Borrower in connection with any demand for payment pursuant to Section 4.1, 4.5,
or 4.6 hereof, a Lender shall provide to the Borrower with a copy to the Administrative Agent, a certificate setting forth, unless prohibited by applicable Law, in reasonable detail the basis for such demand, the amount required to be
paid by the Borrower to such Lender, the computations made by such Lender to determine such amount and satisfaction of the condition set forth in subsection (b) below. Such certificate shall, in the absence of manifest error, be
conclusive and binding.
(b) No Duplication. Any amount payable by the Borrower on account of Section 4.1, 4.5, or 4.6 hereof
shall not be duplicative of: (i) any amount paid under any other such sections, or (ii) any amounts included in the calculation of any Eurocurrency Rate, RFR or the Reference Rate.
(c) Refund. Any amount determined to be paid by the Borrower in error pursuant to Section 4.1, 4.5, or 4.6
hereof shall be, if no Event of Default or Potential Default has occurred and is continuing, promptly refunded to the Borrower, or applied to amounts owing by the Borrower hereunder, as the Borrower may elect.
4.8 Survival. Without prejudice to the survival of any other agreement of the Borrower hereunder, all of the Borrower’s obligations under this Section 4 shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Lender Commitments or the termination of this Credit Agreement or any provision
hereof. Each Lender and Letter of Credit Issuer shall notify the Borrower of any event occurring after the termination of this Credit Agreement entitling such Lender or Letter of Credit Issuer to compensation under Section 4.1,
4.5 or 4.6 hereof as promptly as practicable, but in any event within one hundred eighty (180) days, after such Lender or Letter of Credit Issuer obtains actual knowledge thereof; if any Lender or Letter of Credit Issuer fails to
give such notice within one hundred eighty (180) days after it obtains actual knowledge of such an event, such Lender or Letter of Credit Issuer shall, with respect to compensation payable under Section 4.1, 4.5, or 4.6
hereof, only be entitled to payment for such compensation relating to the period from and after the date one hundred eighty (180) days prior to the date that such Lender or Letter of Credit Issuer does give such notice.
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4.9 Replacement of Lenders. If any Lender or Letter of Credit Issuer (a) requests compensation under this Section 4, (b) becomes a Defaulting Lender or (c) does not provide its consent to an amendment,
modification or waiver that requires the consent of each Lender or Letter of Credit Issuer or each affected Lender or Letter of Credit Issuer, as applicable, and such amendment, modification or waiver receives the consent of the Required
Lenders, then, if there is no Event of Default, the Borrower may, at its sole expense and effort, upon notice to such Lender or Letter of Credit Issuer and the Administrative Agent, require such Lender or Letter of Credit Issuer to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.11 hereof), all of its interests, rights and obligations under this Credit Agreement and the related Loan
Documents or Letters of Credit to an Eligible Assignee who agrees to assume such obligations; provided that:
(a) such Lender or Letter of Credit Issuer shall have received payment of an amount equal to the outstanding principal of its Loans or Letters of Credit, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under this Section 4) from the Assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);
(b) in the case of any such assignment resulting from a claim for compensation under this Section 4, such assignment will result in a reduction in such
compensation or payments thereafter;
(c) such assignment does not conflict with applicable Law; and
(d) a Lender or Letter of Credit Issuer shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or
Letter of Credit Issuer or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
Section 5. SECURITY
5.1 Liens and Security Interest.
(a) Collateral Accounts. Subject to the terms of the applicable Collateral Documents, each Credit Party, pursuant to the
terms of the applicable Distribution Collateral Account Pledge, to further secure the payment and performance of the Obligations of each Credit Party, shall pledge and assign (by way of security) to the Administrative Agent, for the benefit of
the Secured Parties, as collateral, its Distribution Collateral Account and all amounts and assets credited thereto. For the avoidance of doubt, no security interest or ▇▇▇▇ will be created with respect to any Credit Party’s direct or indirect
interest in any Investment.
The collateral security set forth in subsection (a) of this Section 5.1 shall be collectively referred to herein as the “Collateral”. The security agreements, assignments, collateral assignments and any other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement to grant a
security interest in the Collateral, the Collateral Account Pledges, the Collateral Account Control Agreements, and any documents or instruments amending or supplementing the same, shall be collectively referred to herein as the “Collateral Documents”. The Collateral provided by the Credit Parties shall secure the Obligations.
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5.2 The Collateral Accounts.
(a) The Collateral Accounts. In order to directly or indirectly secure further the payment and the performance of the
Obligations: (A) each Credit Party shall cause any Portfolio Investment Distributions and all proceeds from disposals or sales with respect to the Investments that are received by such Credit Party to be deposited into such Credit Party’s
Distribution Collateral Account promptly, but in any event within ten (10) Business Days to the extent no Event of Default or any other Cash Control Event is continuing, otherwise within three (3) Business Days following receipt thereof by such
Person, and (B) during the continuance of an Event of Default or any other Cash Control Event that is continuing, each Credit Party shall cause any Portfolio Investment Distributions (excluding amounts retained or applied for a purpose set
forth in clauses (i)-(vii) in the definition of “Net Cash Proceeds”) (collectively, the “Retained Distributions” (as further defined below)) that are received by any Holding Vehicle to
be deposited into the applicable Credit Party’s Distribution Collateral Account, promptly, but in any event within five (5) Business Days, following receipt thereof by such Person; provided that, during a Cash Control Event (other than
a Cash Control Event in which an Event of Default or Potential Default under Section 10.1(a), (d), (f), (h), (i), (k), (l), (o) or (q) hereof has occurred and is
continuing), the “Retained Distributions” may also include Distributions retained to make an Investment pursuant to then-existing binding commitments.
(b) Use of the Collateral Accounts. The Credit Parties may withdraw funds from the Collateral Accounts only in compliance
with Section 9.12 hereof. During the existence of the conditions specified in Section 9.12 hereof, no Credit Party shall have any right to withdraw funds from any Collateral Account, except as described in Section 9.12
hereof.
(c) Withdrawals from Collateral Accounts to pay Borrower Obligations. Upon the occurrence and during the continuation of an
Event of Default, the Administrative Agent shall have the right, at any time during the continuation of such Event of Default, to direct the Depository Bank to withdraw funds from any Collateral Account(s), and apply such funds for the purpose
of paying the Obligations that are then due and owing (after the passage of any applicable grace period); provided that promptly after any disbursement of funds from any such account to the Lenders, as contemplated in this Section
5.2(c), the Administrative Agent shall deliver a written notice of such disbursement to the Borrower.
5.3 Lender Offset. In addition to the rights granted to the Administrative Agent and the Lenders under Section 5.2 hereof, the Borrower hereby grants to each Lender a right of offset, to secure repayment
of the Obligations of the Borrower or any other Borrower, as applicable, upon any and all monies, securities, or other property of the Borrower and the proceeds therefrom, now or hereafter held or received by or on behalf of or in transit to
the Lenders, from or for the account of the Borrower, whether for safekeeping, custody, pledge, transmission, collection, or otherwise, and also upon any and all deposits (general or specified) and credits of the Borrower and any and all claims
of the Borrower, against the Lenders at any time existing. The Lenders are hereby authorized at any time and from time to time during the existence of an Event of Default, without notice to the Borrower, to offset, appropriate, apply, and
enforce such right of offset against any and all items referred to above against the Obligations of the Borrower or any other Borrower, as applicable. The Borrower shall be deemed directly indebted to the Lenders in the full amount of its
Obligations, and the Lenders shall be entitled to exercise the rights of offset provided for above. The rights of the Lenders under this Section 5.3 are subject to Section 12.2 hereof. The Administrative Agent, and the
Lenders, as applicable, shall give the Borrower prompt notice of any action taken pursuant to this Section 5.3, but failure to give such notice shall not affect the validity of such action or give rise to any defense in favor of the
Borrower with respect to such action.
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5.4 Agreement to Deliver Additional Collateral Documents. Each Additional Borrower and Additional Guarantor that is added pursuant to Section 2.9 hereof shall deliver such security agreements, financing
statements, financing change statements, assignments, notices and other acknowledgments and other collateral documents (all of which security agreements shall be deemed part of the Collateral Documents), in form and substance satisfactory to
the Administrative Agent, acting reasonably, as the Administrative Agent acting on behalf of the Lenders may reasonably request from time to time for the purpose of granting to, or maintaining or perfecting in favor of the Lenders, security
interests in the Collateral with respect to which is the Credit Parties are granting a security interest to the Administrative Agent, together with other assurances of the enforceability of the Lenders’ Liens and assurances of due recording and
documentation of the Collateral Documents or copies thereof, as the Administrative Agent may reasonably require to avoid material impairment of the Liens and security interests (or the priority thereof) granted or purported to be granted
pursuant to this Section 5.
5.5 Subordination. During the occurrence and continuation of an Event of Default, if there are any Obligations outstanding under the Credit Facility, no Credit Party shall make any payments or advances of any
kind (other than Permitted Tax Distributions and subject in each case to Section 5.2(a) hereof and, with respect to amounts to be withdrawn from a Collateral Account, Section 9.12 hereof), directly or indirectly, on any debts
and liabilities to any other Credit Party or Investor whether now existing or hereafter arising and whether direct, indirect, several, joint and several, or otherwise, and howsoever evidenced or created (collectively, the “Other Claims”), except to the extent that such payments or advances are being provided to a Credit Party in order to pay such Obligations. All Other Claims, together with all Liens,
security interests, and all other encumbrances or charges on assets securing the payment of all or any portion of the Other Claims shall at all times during the continuance of an Event of Default, if there are any Obligations outstanding under
the Credit Facility, be subordinated to and inferior in right and in payment to the Obligations and all Liens, security interests, and all other encumbrances or charges on assets securing all or any portion of the Obligations, and the Credit
Parties agree to take any actions reasonably requested by the Administrative Agent as are necessary to provide for such subordination between it and any other Credit Party, inter se, including but not
limited to including provisions for such subordination in the documents evidencing the Other Claims. Notwithstanding the foregoing, there shall be no restriction or limitation on the right of any General Partner, the AIFM or the Advisor (or
Affiliate of any thereof) to receive management or other fees (including incentive management fees) payable to such General Partner, the AIFM, the Advisor (or such Affiliate) under or pursuant to the Partnership Agreements or the applicable
Constituent Documents, except as set forth in Section 9.10 hereof, provided that such management or other fees shall not be paid from the Collateral during any time that withdrawals from the Collateral Accounts are prohibited pursuant
to Section 9.12 hereof.
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5.6 Permitted Liens. Any reference in any of the Loan Documents to a Permitted Lien is not intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to
subordinate or postpone, any Lien created by any of the Loan Documents to any Permitted Lien.
Section 6. CONDITIONS PRECEDENT TO LENDING.
6.1 Obligations of the Lenders. This Credit Agreement shall become effective on the Closing Date, subject to the Administrative Agent’s receipt of the following (which, unless otherwise consented to in writing
by the Administrative Agent, shall be received within one (1) Business Day of the date hereof):
(a) Credit Agreement. This Credit Agreement, duly executed and delivered by the Credit Parties and each other party hereto;
(b) Notes. The Notes, duly executed and delivered by the Borrower to each requesting Lender in accordance with Section
3.1 hereof;
(c) [Reserved].
(d) Collateral Accounts.
(i) Evidence acceptable to the Administrative Agent, acting reasonably, that each Distribution Collateral Account has been established at the Depository Bank;
(ii) The Distribution Collateral Account Pledges, each duly executed and delivered by each applicable Credit Party; and
(iii) The Collateral Account Control Agreements with respect to the Distribution Collateral Accounts, each duly executed and delivered by each applicable Credit Party
and the applicable Depository Bank;
(e) UCC and Bankruptcy Searches. Searches of (A) UCC filings (or their equivalent) in each jurisdiction where a filing would
need to be made in order to perfect the Secured Parties’ first priority security interest (subject to any Permitted Liens) in the Collateral, copies of the financing statements (if any) on file in such jurisdictions and evidence that no Liens
(other than Permitted Liens) exist on the Collateral, or, if necessary, copies of proper financing statements, if any, filed on or before the date hereof necessary to terminate all security interests and other rights of any Person in any
Collateral previously granted, and (B) bankruptcy and insolvency, execution and other searches conducted by the Administrative Agent and its counsel with respect to the Credit Parties in all relevant jurisdictions selected by the Administrative
Agent and its counsel;
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(f) Responsible Officer Certificates. A certificate from a Responsible Officer of each then existing Credit Party,
substantially in the form of Exhibit L hereto;
(g) The Credit Parties’ Constituent Documents. True and complete copies of the Constituent Documents of the Credit Parties
(and the Constituent Documents of its general partner, managing general partner or ultimate general partner as set forth in its signature block, as the case may be) and each Infra-Fund Subscription Entity, as in effect on the Closing Date, and
together with certificates of existence or good standing or equivalent from the applicable Governmental Authority of each such Credit Party’s and Infra-Fund Subscription Entity’s jurisdiction of incorporation, organization, registration or
formation, each dated on the Closing Date or a recent date prior thereto (including with respect to the Luxembourg Infra-Fund and its respective General Partner, excerpts (extraits) issued by the RCS and
certificates as to the non-inscription of a court decision or administrative dissolution without liquidation (certificats de non-inscription d’une décision judiciaire ou de dissolution administrative sans
liquidation) issued by the insolvency register (Registre de l’insolvabilité) (Reginsol) held and maintained by the RCS, dated no earlier than two (2)
Business Days prior to the Closing Date), in each case satisfactory to the Administrative Agent in its sole discretion;
(h) Authority Documents. Certified copies of resolutions of (or on behalf of) each applicable Credit Party authorizing the
entry by each applicable Credit Party into the transactions contemplated herein and in the other Loan Documents to which such Credit Party is a party;
(i) Incumbency Certificate. A signed certificate of a Responsible Officer of each Credit Party (or its general partner or
applicable ultimate general partner, as the case may be) who shall certify the names of the Persons authorized, on the Closing Date, to sign each of the Loan Documents to which such Credit Party is a party and the other documents or
certificates to be delivered pursuant to such Loan Documents on behalf of such Credit Party, together with the true signatures of each such Person. The Administrative Agent may conclusively rely on such certificate until it shall receive a
further certificate canceling or amending the prior certificate and submitting the authority and signatures of the Persons named in such further certificate;
(j) Representations and Warranties. All of the representations and warranties of the Credit Parties (including such
representation and warranties made on behalf of each General Partner) set forth herein and in the other Loan Documents shall be true and correct in all material respects (except that any representation (or portion thereof, as applicable)
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the Closing Date to the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
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(k) No Default. No event shall have occurred and be continuing, or would result from any Borrowing or the issuance of any
Letter of Credit on the Closing Date, which constitutes an Event of Default or a Potential Default;
(l) Opinions. A favorable opinion or opinions of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York counsel to the Credit
Parties; and (ii) ▇▇▇▇▇▇ and ▇▇▇▇▇▇ (Cayman) LLP, Cayman counsel to the Cayman Credit Parties; each in form and substance satisfactory to the Administrative Agent and its counsel, acting reasonably, dated the Closing Date;
(m) [Reserved].
(n) Fees; Costs and Expenses. Payment of all fees and other amounts due and payable on or prior to the date hereof, including
pursuant to the Fee Letter, and, to the extent invoiced at least two (2) Business Days prior to the date hereof, reimbursement or payment of all reasonable expenses required to be reimbursed or paid by the Borrower hereunder, including the
reasonable fees and disbursements invoiced through the date hereof of the Administrative Agent’s special counsel, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP and special Cayman Islands counsel, Harney, Westwood & Riegels (Cayman) LLP, which may
be deducted from the proceeds of any initial Borrowing on the Closing Date;
(o) ERISA Status. As of the Closing Date with respect to each Credit Party with one or more ERISA Investors, either (i) a
copy of any opinion acceptable to the Administrative Agent, acting reasonably, delivered to ERISA Investors (along with a reliance letter, dated as of the later of such Credit Party’s “initial valuation date” or the Closing Date, from the
issuer of such opinion specifying that the Lenders are permitted to rely on such opinion as if such opinion had been addressed to them) regarding the status of such Credit Party as an Operating Company; provided that such opinion
delivery requirement under this clause (i) may alternatively be satisfied by delivery to the Lenders of a copy of such Credit Party’s most recent certificate, if any, of a Responsible Officer with respect to such Credit Party’s most recent
Annual Valuation Period to the effect that the assets of such Credit Party should not constitute Plan Assets of any such ERISA Investor and stating the basis for such conclusion, or (ii) a certificate signed by a Responsible Officer certifying
that the underlying assets of such Credit Party should not constitute Plan Assets of any such ERISA Investor; and
(p) Know Your Customer. (i) A Beneficial Ownership Certification in relation to the Borrower that qualifies as a “legal entity
customer” under the Beneficial Ownership Regulation and/or, with respect to the Borrower that does not qualify as a “legal entity customer” under the Beneficial Ownership Regulation, a certification describing the basis of such exemption, and
(ii) any documents or information related to “Know Your Customer” or similar requirements reasonably requested by the Lenders (through the Administrative Agent), and required by their applicable regulatory requirements.
Without limiting the generality of the provisions of the last paragraph of Section 11.3, for purposes of determining compliance with the conditions specified in this
Section 6.1, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
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(q) Additional Information. The Administrative Agent shall have received such other information and documents as may reasonably
be required by the Administrative Agent and its counsel.
6.2 Conditions to all Loans and Letters of Credit. The obligation of the Lenders to advance each Borrowing (including without limitation the initial Borrowing) or to cause the issuance of Letters of Credit
(including, without limitation, the initial Letter of Credit) hereunder is subject to the additional conditions precedent that:
(a) Representations and Warranties. The representations and warranties (other than those in Section 7.8 hereof,
which shall be replaced with the condition in Section 6.2(b) below) set forth herein and in the other Loan Documents are true and correct in all material respects (except that any representation (or portion thereof, as applicable)
qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the date of the advance of such Borrowing or issuance of such Letter of Credit, with the same force and effect as
if made on and as of such date (except to the extent of changes in facts or circumstances that have been disclosed to the Administrative Agent and do not constitute an Event of Default or a Potential Default or to the extent such
representations and warranties relate to an earlier or other specific date);
(b) No Default. No event shall have occurred and be continuing, or would result from the Borrowing or the issuance of the
Letter of Credit, which constitutes an Event of Default or a Potential Default;
(c) Request for Borrowing. The Administrative Agent shall have received a Request for Borrowing or Request for Letter of
Credit, as applicable;
(d) Investment Events. To the knowledge of the Borrower, no Material Investment Event or Intraperiod Adjustment Event has
occurred except as disclosed in writing to the Administrative Agent;
(e) Application. In the case of a Letter of Credit, the Letter of Credit Issuer shall have received an Application for
Letter of Credit executed by the Borrower;
(f) No Material Adverse Effect. To the knowledge of the Borrower, no circumstances exist or changes to the Borrower have
occurred since the date of the most recent financial statements delivered or required to be delivered to the Administrative Agent hereunder that would reasonably be expected to result in a material adverse effect on the Borrower’s ability to
pay the Obligations when due in accordance with the terms of the Loan Documents;
(g) Adjusted NAV. Solely with respect to the first to occur of the initial Borrowing or the issuance of the initial Letter of
Credit, the Administrative Agent shall have received satisfactory evidence that the Adjusted NAV is no less than the applicable Minimum Adjusted NAV;
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(h) Financial Covenants. The Borrower is in compliance with the Financial Covenants contained in Section 9.17 at the
time of, and after giving pro forma effect to, any such Borrowing or issuance of Letters of Credit;
(i) Review Event. Either no Review Event has occurred or if a Review Event has occurred and is continuing, a Review Event
Cure Plan has been agreed with respect thereto and the Borrower is in compliance with such agreed Review Event Cure Plan in all material respects;
(j) No Trigger Event. No other Trigger Event has occurred as is continuing (or no other Trigger Event will be continuing
after giving pro forma effect to the acquisition of any Investments with the proceeds thereof); and
(k) No Excess Outstanding. Immediately prior to, and after giving effect to such Borrowing or issuance of Letter of Credit, as
applicable, (A) the Dollar Equivalent of the Principal Obligations as of such date will not exceed the Maximum Commitment as of such date; and (B) the Letter of Credit Liability as of such date will not exceed the Letter of Credit Sublimit on
such date.
6.3 Conditions to Additional
Borrower Loans and Letters of Credit. The obligation of the Lenders to advance a Borrowing to an Additional Borrower or to cause the issuance of a Letter of Credit for the account of an Additional Borrower is subject to the conditions
that (in addition to the conditions specified in Section 6.2), on or prior to the date that such entity becomes an “Additional Borrower” hereunder (such date, the “Additional Borrower
Joinder Date”):
(a) Borrower Joinder Agreement. The Administrative Agent shall have received from such Additional Borrower (i) a duly executed
Borrower Joinder Agreement complying with the terms and provisions hereof and (ii) an updated Schedule I hereto which provides the relevant Schedule I information with respect to such Additional Borrower; and
(b) Other Items. The Administrative Agent shall have received from or on behalf of such Additional Borrower the documents
and other items set forth in Sections 6.1(b), (d), (e), (f), (g), (h), (i), (j), (l), (n), (o), and (p), to the extent applicable to such Additional
Borrower and applied mutatis mutandis with respect to the Additional Borrower Joinder Date as opposed to the Closing Date.
6.4 Conditions in respect of Additional Guarantors. On or prior to the date that an entity becomes an “Additional Guarantor” hereunder (such date, the “Additional
Guarantor Joinder Date”):
(a) Guarantor Joinder Agreement. The Administrative Agent shall have received from such Additional Guarantor (i) a duly
executed Guarantor Joinder Agreement complying with the terms and provisions hereof and (ii) an updated Schedule I hereto which provides the relevant Schedule I information with respect to such Additional Guarantor; and
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(b) Other Items. The Administrative Agent shall have received from or on behalf of such Additional Guarantor the documents
and other items set forth in Sections 6.1(d), (e), (f), (g), (h), (i), (j), (l), (n), (o) and (p), to the extent applicable to such Additional Guarantor and
applied mutatis mutandis with respect to the Additional Guarantor Joinder Date as opposed to the Closing Date.
Section 7. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to make the Loans and cause the issuance of Letters of Credit hereunder, each Credit Party hereby represents and warrants (solely as to itself and its General Partner) to
the Administrative Agent and the Lenders that:
7.1 Organization and Good Standing.
(a) The Credit Parties. Each Credit Party is duly formed and/or registered, as applicable, validly existing and, except
where such failure would not result in a Material Adverse Effect, in good standing (to the extent applicable) under the laws of its jurisdiction of formation and/or registration, each has the requisite power and authority to own its properties
and assets and to carry on its business as now conducted, and each Credit Party, except where such failure would not result in a Material Adverse Effect, is qualified to do business in every jurisdiction where the nature of the business
conducted or the property owned or leased requires such qualification.
(b) The General Partners. Each Credit Party’s General Partner is duly formed, validly existing and, except where such failure
would not result in a Material Adverse Effect, in good standing (to the extent applicable) under the laws of its jurisdiction of formation and/or registration, each has the requisite power and authority to own its properties and assets and to
carry on its business as now conducted, and each such General Partner, except where such failure would not result in a Material Adverse Effect, is qualified to do business in every jurisdiction where the nature of the business conducted or the
property owned or leased requires such qualification.
7.2 Authorization and Power. Each Credit Party has the requisite power and authority to execute, deliver and perform its obligations under this Credit Agreement, the Notes, the applicable Partnership Agreement,
any applicable Constituent Documents, and any applicable subscription agreements, Infra-Fund Supplemental Agreements (if any) and each of the other Loan Documents to be executed by it, as the case may be; each Credit Party is duly authorized
to, and has taken all action necessary to authorize it to, execute, deliver and perform its obligations under this Credit Agreement, the Notes, the applicable Partnership Agreements, the applicable Constituent Documents, the subscription
agreements, Infra-Fund Supplemental Agreements (if any) and each of the other Loan Documents to which it is a party.
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7.3 No Conflicts or Consents. None of the execution and delivery of this Credit Agreement or the other Loan Documents to which it is a party, the consummation of any of the transactions herein or therein
contemplated, or the compliance with the terms and provisions hereof or with the terms and provisions thereof, will contravene or conflict, in any material respect, with any provision of Law to which each Credit Party and each Credit Party’s
General Partner is subject or any material judgment, license, order or permit applicable to such Credit Party and each Credit Party’s General Partner or any material indenture, mortgage, deed of trust or other material agreement or instrument
(including such Credit Party’s and each such Credit Party’s General Partner Constituent Documents, as applicable) to which such Credit Party or such Credit Party’s General Partner is a party or by which such Credit Party or such Credit Party’s
General Partner may be bound, or to which such Credit Party or such Credit Party’s General Partner may be subject. No material consent, approval, authorization or order of any court or Governmental Authority or third party is required in
connection with the execution and delivery by any Credit Party of the Loan Documents to which it is a party or to consummate the transactions contemplated hereby or thereby, except (a) the consents, approvals, authorizations, filings and
notices that have been obtained or made and are in full force and effect and (b) the filings and regulations referred to in Section 6.1(e) hereof.
7.4 Enforceable Obligations. This Credit Agreement, any Notes (in the case of the Borrower) and the other Loan Documents to which each Credit Party is a party are the legal and binding obligations of such Credit
Party, enforceable against it in accordance with their respective terms, subject to Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law).
7.5 Priority of Liens. The Collateral Documents to which each Credit Party is a party create, as security for the Obligations of such Credit Party (and, the Obligations of each other Credit Party), valid and
enforceable security interests in and Liens on all of the Collateral in which the applicable Credit Party has any right, title or interest, in favor of the Administrative Agent, for the benefit of the Secured Parties, and such Liens are prior
to all other Liens on the Collateral (other than Permitted Liens), except as enforceability may be limited by Debtor Relief Laws and general equitable principles (whether considered in a proceeding in equity or at law). Such security interests
in and Liens on the Collateral in which the applicable Credit Party has any right, title or interest shall (subject to Permitted Liens) be superior to and prior to the rights of all third parties in such Collateral, and, other than in
connection with any future change in Law or in the applicable Credit Party’s name, identity or structure, or its jurisdiction of organization, as the case may be, no further recordings or filings are or will be required in connection with the
creation, perfection or enforcement of such security interests and Liens, other than the filing of continuation statements, financing change statements or their equivalent in accordance with applicable Law. Each Lien referred to in this Section
7.5 is and shall be the sole and exclusive Lien (other than Permitted Liens) on the Collateral in which the applicable Credit Party has any right, title or interest.
7.6 Financial Condition. Each Credit Party has delivered to the Administrative Agent the most recently available copies of the financial statements and reports required pursuant to Section 8.1(a) hereof,
if any, together with the Compliance Certificate and Financial Covenant Certificate required to be delivered under Section 8.1(b) and (c) hereof, as applicable, and such financial statements fairly present, in all material
respects, the financial condition of the applicable Credit Parties as of the date of such financial statements and have been prepared in accordance with Generally Accepted Accounting Principles, except as provided therein. The Credit Parties,
taken as a whole (after giving effect to the Loans and the other transactions to be consummated on the Closing Date), are Solvent.
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7.7 Full Disclosure.
(a) There is no fact and there are no changes to any Credit Party or General Partner that such Credit Party has not disclosed to the Administrative Agent in writing
which could reasonably be expected to have a Material Adverse Effect. No information heretofore furnished by such Credit Party, in connection with this Credit Agreement, the other Loan Documents or any transaction contemplated hereby (or, to
the extent such information was provided to a Credit Party by an Investor, to the knowledge of such Credit Party) contains any untrue statement of material fact that could reasonably be expected to result in a Material Adverse Effect.
(b) As of the Closing Date, to the best of the applicable Responsible Officer’s knowledge, the information provided in the Beneficial Ownership Certification of the
Borrower (if any) is complete and correct.
7.8 No Default. No event has occurred and is continuing which constitutes an Event of Default or a Potential Default.
7.9 No Litigation. As follows: (a) for purposes of this representation and warranty as of the Closing Date, there are no material actions, suits, investigations or legal, equitable, arbitration or
administrative proceedings in any court or before any arbitrator or Governmental Authority (“Proceedings”) pending, or to the knowledge of such Credit Party threatened, against any
Credit Party or such Credit Party’s General Partner, other than any such Proceeding that is disclosed in writing by such Credit Party to the Administrative Agent before the Closing Date; and (b) for purposes of this representation and warranty
as of the date of the advance of any Borrowing or the issuance of any Letter of Credit, there are no such Proceedings pending, or to the knowledge of such Credit Party threatened, against such Credit Party or such Credit Party’s General
Partner, other than any such Proceeding that would not have a Material Adverse Effect.
7.10 Taxes. To the extent that failure to do so would
(individually or in the aggregate) result in a Material Adverse Effect, all Tax returns required to be filed by any Credit Party in any jurisdiction have been filed and all Taxes (including mortgage recording Taxes), assessments, fees, and
other governmental charges upon such Credit Party or upon any of its properties, income or franchises have been paid prior to the time that such Taxes become delinquent (other than any Taxes the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which reserves in conformity with Generally Accepted Accounting Principles have been provided on the books of the relevant Credit Party). To the knowledge of any Credit
Party, there is no proposed Tax assessment against any Credit Party or any basis for such assessment that is material and is not being contested in good faith.
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7.11 Principal Office; Jurisdiction of Formation. As of the Closing Date, (a) each of the principal office, chief executive office, registered office, and principal place of business of each Credit Party and such
Credit Party’s General Partner is correctly listed on Schedule I hereto, and such Credit Party and such Credit Party’s General Partner has maintained such principal office, registered office, chief executive office and principal place
of business at such location since its formation and/or registration; and (b) the jurisdiction of formation of each Credit Party and such Credit Party’s General Partner is listed on Schedule I hereto, and no Credit Party or such Credit
Party’s General Partner is organized under the laws of any other jurisdiction. After the Closing Date, the principal office, chief executive or registered office and principal place of business of each Credit Party and such Credit Party’s
General Partner and the jurisdiction of formation of each Credit Party is as set forth on Schedule I hereto (including any updated Schedule I provided to the Administrative Agent for any Credit Party and such Credit Party’s
General Partner which have changed their principal office, chief executive office and principal place of business).
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(a) As of the Closing Date, and as of the date of each requested Borrowing hereunder by the Borrower, each Eligible Investment included in the calculation of the
Available Commitment is owned by a Credit Party (directly or indirectly through a Holding Vehicle).
(b) The Borrower, to its knowledge, has good and marketable title to the Investments which it owns (directly or indirectly through a Holding Vehicle), except for
Liens not prohibited hereunder.
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Section 8. AFFIRMATIVE COVENANTS OF THE CREDIT PARTIES
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letters of Credit hereunder, and until payment and performance in full of the Obligations (other
than Letter of Credit obligations which have been fully cash collateralized and contingent indemnification obligations for which no claim has been made) under this Credit Agreement and the other Loan Documents, each Credit Party agrees (solely
as to itself, and in the case of each Credit Party, its General Partner) that:
(a) Financial Reports.
(i) Annual Reports. Within one hundred twenty (120) days after the end of each fiscal year of each Infra-Fund (subject to
reasonable delays in the event of the late receipt of any necessary financial information from any portfolio company), and in any event no later than five (5) Business Days after delivery thereof to the Investors, commencing with the fiscal
year ending December 31, 2025, each such Infra-Fund’s audited balance sheet and income statement, prepared in accordance with Generally Accepted Accounting Principles, as more particularly provided in the Partnership Agreement of such
Infra-Fund, together with the unqualified opinion of a firm of nationally-recognized independent certified public accountants to the effect that such financial statements present fairly in all material respects the financial condition and
results of operations of each Infra-Fund; and
(ii) Quarterly Reports. As soon as available, but no later than ninety (90) days after the end of each of the first three
(3) fiscal quarters of each Infra-Fund, but in no event later than five (5) Business Days after the date when such statements and reports are distributed to Investors, commencing with the fiscal quarter ending June 30, 2025, an unaudited report
setting forth as of the end of such fiscal quarter, each such Infra-Fund’s, balance sheet and income statement, certified by a Responsible Officer of the Borrower as presenting fairly in all material respects the financial condition and results
of operations of each Infra-Fund in accordance with Generally Accepted Accounting Principles, subject to normal year-end audit adjustments, the absence of footnotes and as otherwise described therein;
provided that the financial statements to be delivered in accordance with clauses (a)(i) and (ii) above may be separate, consolidated or combined for the various Credit Parties.
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(iii) Monthly Reports. As soon as available, but no later than the later of (x) twenty (20) Business Days after the end of
each calendar month of the Borrower and (y) the immediately following Business Day after the date on which the monthly net asset value of the Infra-Fund Subscription Entities is delivered to Investors, commencing with the calendar month ending
August 31, 2025, a report (collectively, the “Monthly Report”) containing (A) a spreadsheet substantially in the form delivered on the Closing Date or such other form reasonably
acceptable to the Administrative Agent reflecting (1) a trial balance with respect to each Credit Party setting forth each Credit Party’s assets and liabilities for such calendar month, (2) a calculation of the Value of each Investment (and
with respect to each Eligible Investment, identifying each such Investment as an Eligible Investment) held directly or indirectly by each Credit Party as of the end of such calendar month and the change in the Value as of such calendar
month-end from the preceding calendar month-end, as determined in accordance with the Valuation Policy and the Generally Accepted Accounting Principles, (3) the amount of Portfolio Investment
Distributions received by each Credit Party with respect to each Investment (and with respect to each Eligible Investment, identifying each such Investment as an Eligible Investment) during the trailing twelve (12) month period, (4) a
calculation of the aggregate Value of (x) the Eligible Primary Investments and (y) the Liquid Assets, and (5) a calculation of the Adjusted NAV, (B) to the extent the Borrower has not previously notified the Administrative Agent thereof, a
summary of any acquisitions or dispositions of Eligible Investments in such calendar month and (C) to the extent not previously delivered to the Administrative Agent, New Investment Materials with respect any new Eligible Primary Investments
made by any Credit Party or Holding Vehicle through the date such report is delivered (provided, that in no event shall this clause (C) require any Credit Party or Affiliate thereof to breach any (x)
binding confidentiality obligations owed to any Investors, Investments or bona fide counterparties with respect thereto or (y) securities Laws, other similar Laws or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policies with respect to Investments, and the Borrower will be
permitted to redact any of the foregoing contents of any Monthly Report solely to the extent necessary to avoid any such breach).
(iv) Other Reporting. Promptly following the delivery to the Investors, other financial statements and material periodic
reports from time to time prepared by the Infra-Funds and/or the Credit Parties and furnished to Investors in one or more of the Infra-Funds generally, including without limitation, any annual reports, communications relating to any change to
the net asset value of any Investment, and the liquidity of such Infra-Fund.
Notwithstanding anything in this Section 8.1(a) to the contrary, the Borrower shall be deemed to have satisfied the applicable requirements of this Section 8.1(a)
if the reports, documents and other information of the type otherwise so required thereby are publicly available when filed on ▇▇▇▇▇ at the ▇▇▇.▇▇▇.▇▇▇ website or any successor service provided by the SEC.
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(b) Compliance Certificate. (x) As soon as available, but no later than five (5) Business Days after the date on which any
quarterly financial reports are delivered pursuant to Section 8.1(a)(ii) hereof or any annual audited financial reports are delivered pursuant to Section 8.1(a)(i) hereof, (y) promptly upon any Credit Party’s knowledge that the
LTV Ratio exceeds the Maximum LTV Ratio or the Interest Coverage Ratio has declined below the Minimum Interest Coverage Ratio, and (z) on or prior to the Increase Effective Date pursuant to Section 2.15(a)(iii)(10), a compliance
certificate, substantially in the applicable form of Exhibit R hereto (the “Compliance Certificate”), executed by a Responsible Officer of the Borrower, and (i) stating
whether, to such Responsible Officer’s knowledge, any Event of Default or Potential Default has occurred and is continuing; (ii) stating whether the applicable Credit Parties are in compliance with the Financial Covenants contained in Section
9.17 and the Debt Limitations contained in Section 9.11 hereof and containing the calculations evidencing such compliance and (iii) stating that, to the knowledge of the applicable Responsible Officer, no Material Investment Event
has occurred and is continuing with respect to any Eligible Investment or if one has occurred, the nature of such Material Investment Event.
(c) Financial Covenant Certificates. The Borrower shall provide to the Administrative Agent a certificate, substantially in
the applicable form of Exhibit R hereto, certified by a Responsible Officer of the Borrower to be true and correct in all material respects, stating whether the applicable Credit Parties are in compliance with the Financial Covenants
contained in Section 9.17 and the Debt Limitations contained in Section 9.11 hereof and containing a spreadsheet substantially in the form delivered on the Closing Date which includes the calculations evidencing such compliance
(each a “Financial Covenant Certificate”): (i) on the effective date of any extension of the Stated Maturity Date pursuant to Section 2.14 and any Increase Effective Date
pursuant to Section 2.15(a); and (ii) promptly following its knowledge, but not later than two (2) Business Days thereafter, of the occurrence of any Material Investment Event (calculated after giving effect thereto), which shall
include a calculation of the Financial Covenants under Section 9.17 hereof after giving effect to such Material Investment Event.
(d) Borrowing Base Certificate. The Borrower shall provide to the Administrative Agent a certificate, substantially in the
applicable form of Exhibit R hereto, certified by a Responsible Officer of the Borrower to be true and correct in all material respects, setting forth a calculation of the Available Commitment, in each case, in reasonable detail as of
such date on a spreadsheet substantially in the form delivered on the Closing Date: (i) in connection with the delivery of each quarterly Compliance Certificate in accordance with Section 8.1(b) hereof; (ii) in connection with any new
Borrowing by, or issuance of Letter of Credit to, a Borrower; (iii) promptly following the occurrence of any Material Investment Event (calculated after giving effect thereto) and (iv) subject to Section 9.14 hereof, prior to the sale,
transfer or other disposition of any Eligible Investment, which results in such Investment (or any portion thereof) no longer being deemed an Eligible Investment.
(e) Funding Deficiencies. No later than ten (10) days after becoming aware thereof, notice of any funding deficiencies with
respect to any Plan maintained or sponsored by any Credit Party or member of its Controlled Group or to which any Credit Party or member of its Controlled Group has an obligation to contribute;
(f) Material Investment Events. Promptly, but not later than two (2) Business Days after knowledge of any Material Investment
Event, notify the Administrative Agent of such Material Investment Event with respect to any Eligible Investment;
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(g) Other Information. (i) Such other information concerning the business, properties, or financial condition of such Credit
Parties as the Administrative Agent shall reasonably request, and which information is not otherwise subject to confidentiality restrictions with third parties, and (ii) information and documentation reasonably requested by the Administrative
Agent or any Lender (through the Administrative Agent) as reasonably required by the Administrative Agent or such Lender to comply with applicable “know your customer” requirements under the Patriot Act or other applicable anti-money laundering
laws; and
(h) Beneficial Ownership Certification. Promptly following request from the Administrative Agent, the Borrower shall notify
the Administrative Agent of any change in the information provided in the Borrower’s Beneficial Ownership Certification (if any) that would result in a change to the list of beneficial owners identified in parts (c) or (d) of such
certification.
(a) Prior to or simultaneously with any delivery of a Request for Borrowing or Request for Letter of Credit, the Borrower shall disclose in writing to the
Administrative Agent all material Proceedings pending, or to the knowledge of the Credit Parties, threatened against the Credit Parties which could reasonably be expected to have a Material Adverse Effect.
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(b) The Borrower shall, promptly upon receipt of knowledge thereof, notify the Administrative Agent of any of the following events if such event would reasonably be
expected to result in a Material Adverse Effect: (i) any change in the financial condition or business of any Credit Party; (ii) any default under any material agreement, contract, or other instrument to which any Credit Party is a party or by
which any of its properties are bound, or any acceleration of the maturity of any material Indebtedness owing by a Credit Party; (iii) any uninsured claim against or affecting a Credit Party or any of its properties; or (iv) the commencement
of, and any material determination in any Proceeding affecting any Credit Party.
(c) Each Credit Party shall promptly provide the Administrative Agent with a copy of any written notice received from the Investors of such Credit Party that such any
such investors intend to exercise their right to remove the General Partner of any Credit Party in accordance with the applicable Partnership Agreement.
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Section 9. NEGATIVE COVENANTS OF THE CREDIT PARTIES
So long as the Lenders have any commitment to lend hereunder or to cause the issuance of any Letter of Credit hereunder, and until payment and performance in full of the Obligations (other than
Letter of Credit obligations which have been fully cash collateralized and contingent indemnification obligations for which no claim has been made) under this Credit Agreement and the other Loan Documents, each Credit Party agrees that, without
the written consent of the Administrative Agent, based upon the approval of the Required Lenders (unless the approval of the Administrative Agent alone or a different number of the Lenders is expressly permitted below):
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With respect to any proposed alteration, amendment, modification, termination or change affecting any applicable provisions of any Credit
Party’s or Infra-Fund Subscription Entity’s Partnership Agreement or any other Constituent Document, Investment Policy, the Valuation Policy or any Memorandum, in each case, described in clauses (i) through (vi) in the foregoing paragraph
(each, a “Proposed Amendment”), the applicable Credit Party shall notify the Administrative Agent of such proposal. The Administrative Agent shall determine, in its sole reasonable
discretion (i.e., the determination of the other Lenders shall not be required) and on its good faith belief, whether such Proposed Amendment would constitute a Material Amendment within three (3) Business Days of the date on which it is deemed
to have received such notification in accordance with Section 12.6 hereof and shall promptly notify the applicable Credit Parties of its determination. If the Administrative Agent determines that the Proposed Amendment is a Material
Amendment, the approval of the Required Lenders shall be required (unless the approval of all Lenders is otherwise required consistent with the terms of this Credit Agreement), and the Administrative Agent shall promptly notify the Lenders of
such request for such approval, distributing, as appropriate, the Proposed Amendment and any other relevant information provided by the Credit Parties; subject to Section 12.1 hereof, the Lenders shall have five (5) Business Days from
the date of such notice from the Administrative Agent to deliver their approval or denial thereof. If the Administrative Agent determines that the Proposed Amendment is not a Material Amendment, the applicable Credit Party may make such
amendment without the consent of the Lenders.
Notwithstanding the foregoing, any Credit Party may, without the consent of the Administrative Agent or the Lenders (and without submitting the
Proposed Amendment to the Administrative Agent for determination as described above), amend its applicable Partnership Agreement or other Constituent Documents: (a) [reserved]; (b) to reflect transfers of interests in the applicable Credit
Party to the extent permitted by the Loan Documents; (c) to modify the Debt Limitations imposed on the applicable Credit Party in a manner that reduces the amount of Indebtedness such Credit Party may incur or suffer to exist, to the extent it
does not affect outstanding Obligations; (d) with respect to the Valuation Policy, to comply with guidelines issued by a Governmental Authority; and (e) to cure any ambiguity, correct or supplement any provision of such Partnership Agreement or
any other Constituent Document, Investment Policy, the Valuation Policy or any Memorandum which is incomplete or inconsistent with any other provision thereof (the effect of which shall be immaterial to the Lenders), correct any printing,
stenographic or clerical error or effect changes of an administrative or ministerial nature which do not materially increase the authority of a General Partner or adversely affect the rights of the Lenders or to fix any other obvious error or
any other error or omission of a technical or immaterial nature; provided that the applicable Credit Party shall promptly provide to the Administrative Agent a copy of any such amendment which does not require the consent of the
Administrative Agent or the Lenders and an executed copy of any amendment consented to by the Administrative Agent or the Lenders; provided that the applicable Credit Party shall promptly provide to the Administrative Agent a copy of
any such amendment which does not require the consent of the Administrative Agent or the Lenders and an executed copy of any amendment consented to by the Administrative Agent or the Lenders.
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(a) for fair value, as determined by such Credit Party, in accordance with the Valuation Policy; and
(b) in an arm’s length transaction (or otherwise in accordance with such Credit Party’s Partnership Agreement).
Notwithstanding the foregoing, no Credit Party shall, nor shall it permit any Holding Vehicle which it directly or indirectly controls to (or, in the case of any Holding Vehicle of such Credit Party, vote or
consent to), sell, transfer or otherwise dispose of an Investment to any Person: (i) if there are any Obligations outstanding, while an Event of Default under Section 10.1(a), 10.1(h) or 10.1(i) has occurred or any other
Event of Default which has occurred and is continuing for a period of thirty (30) consecutive days; and/or (ii) to the extent a breach of a Financial Covenant or an Excess Prepayment Event would result therefrom, in each case unless, (x) the
Net Cash Proceeds of such disposition shall be applied to repay the Obligations of the Borrower in accordance with Section 2.1(d); or (y) such transfer or disposition is to any other Credit Party.
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(a) Maximum LTV Ratio. As of all dates of determination, the LTV Ratio shall be less than or equal to 25% (the “Maximum LTV Ratio”).
(b) Minimum Interest Coverage Ratio. As of all dates of determination, the Interest Coverage Ratio shall be at least
3.5:1.0 (the “Minimum Interest Coverage Ratio”).
Section 10. EVENTS OF DEFAULT
(a) (i) the Borrower shall fail to pay when due (in the applicable Currency as required by Section 2.1(f) hereof), any principal of its Obligations,
including any failure to pay any amount required to be paid by it under Section 2.1(d) hereof; or (ii) the Borrower shall fail to pay when due, any interest on its Obligations or any fee, expense, indemnity or other payment required to
be paid by it hereunder, including, without limitation, payment of cash for deposit as cash collateral under Section 2.1(e) hereof; provided in respect of clause (ii) such failure shall continue for three (3) Business Days following the
date such amount was required to be paid by it hereunder;
(b) any representation or warranty made by or on behalf of the Credit Parties (in each case, as applicable) under this Credit Agreement, or any of the other Loan
Documents executed by any one or more of them, or in any certificate or statement furnished or made to the Lenders or any one of them by the Credit Parties (in each case, as applicable) pursuant hereto, in connection herewith or with the Loans,
or in connection with any of the other Loan Documents, shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made and the adverse effect of the failure of such representation
or warranty shall not have been cured within thirty (30) days after written notice thereof is delivered to the Borrower by the Administrative Agent;
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(c) default shall occur in the performance of: (i) any of the covenants or agreements contained herein (other than the covenants contained in Sections 1.7(b), 2.1(d),
2.1(e), 5.1(a), 5.2(a), 8.1(a), (b), (c), (d), (e), (i), 8.3 (solely as to existence), 8.4, 8.5, 8.8, 8.12, 8.14, 8.18, and Sections 9.1 through 9.16 hereof) by the Credit Parties or any General Partner, as applicable; or (ii) the covenants or agreements of the Credit Parties or any General Partner, as
applicable, contained in any other Loan Documents executed by such Person, and such default shall continue uncured to the satisfaction of the Administrative Agent for a period of thirty (30) days after the earlier of: (x) written notice thereof
has been given by the Administrative Agent to the Borrower; or (y) the Administrative Agent has been notified or should have been notified of such default pursuant to Section 8.4 or Section 8.5 hereof; provided that if
such default is not susceptible of being cured with diligence within said thirty (30)-day period, but, in the reasonable determination of Administrative Agent, is susceptible of being cured within an additional period, then such period may be
extended by the Administrative Agent after consulting with the Required Lenders, for such additional period of time, not to exceed an additional thirty (30) days, as may reasonably be necessary to cure the same; provided that the
applicable Credit Parties or General Partner commences such cure within such thirty (30) day period and diligently prosecutes the same until its completion;
(d) default shall occur in the performance of any of the covenants or agreements of the Borrower or any other Credit Party contained in Section 2.1(d) (other
than with respect to diligently pursuing any LTV Ratio Cure Plan or failure to comply with a Review Event Cure Plan) or (e) or Section 5.1(a) or Section 5.2(a), hereof, Section 8.3 (solely as to
existence) or any one of Sections 9.1 through 9.16 hereof;
(e) (i) default shall occur in the performance of any one of the covenants contained in Sections 8.1(a), (b), (c), (d), (e),
and (i), 8.5, 8.8, 8.12, 8.14 or 8.18 of this Credit Agreement and such default shall continue uncured for five (5) Business Days after written notice thereof is given to the Borrower by the
Administrative Agent; or (ii) default shall occur in the performance of any one of the covenants contained in Section 8.4 of this Credit Agreement and such default shall continue uncured for five (5) Business Days after
the earlier of (a) written notice thereof is given to the Borrower by the Administrative Agent or (b) the knowledge of a Responsible Officer of any Credit Party of the occurrence of such breach;
(f) other than in compliance with the explicit provisions of the Loan Documents, any of the Loan Documents executed by any of the Credit Parties party thereto: (i)
shall cease, in whole or in material part, to be legal, valid, binding agreements enforceable against such Credit Parties, as the case may be, in accordance with the terms thereof; (ii) shall in any way be terminated or become or be declared
ineffective or inoperative except in accordance with its terms thereof; or (iii) shall in any way whatsoever cease to give or provide the respective first priority Liens (subject to any Permitted Liens), security interest, rights, titles,
interest, remedies, powers, or privileges intended to be created thereby (other than, in each case, solely as the result of an action or failure to act on the part of the Administrative Agent); provided that if any of the events set
forth in the foregoing clauses (i), (ii) and (iii) occur as a result of a change in any applicable Law, and is in the reasonable judgment of the Administrative Agent susceptible of being cured, then the Administrative Agent shall be permitted
to provide the Borrower up to thirty (30) days from the date thereof to cure a default arising under this Section 10.1(f) to the reasonable satisfaction of the Administrative Agent;
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(g) default shall occur with respect to the payment of any recourse Indebtedness or Guaranty Obligations of the Credit Parties in an aggregate amount of the Dollar
Equivalent of 3.5% of NAV or more, and such default shall continue for more than the applicable period of grace or cure, if any; or any non-monetary default occurs in respect of such Indebtedness which permits such Indebtedness to become due
before its stated maturity by acceleration of the maturity thereof;
(h) any Credit Party, the Advisor or Stonepeak Partners shall: (i) apply for or consent to the appointment of a receiver, interim receiver, receiver and manager,
trustee, custodian, intervenor, liquidator or provisional liquidator of itself or of all or a substantial part of its assets; (ii) file a voluntary petition in bankruptcy or admit in writing that it is unable to pay its debts as they become
due; (iii) make a general assignment for the benefit of creditors; (iv) file a petition or answer seeking reorganization or an arrangement with creditors or to take advantage of any Debtor Relief Laws; (v) file an answer admitting the material
allegations of, or consent to, or default in answering, a petition filed against it in any bankruptcy, reorganization or insolvency proceeding; (vi) take partnership, limited partnership, exempted limited partnership, limited liability company
or corporate action for the purpose of effecting any of the foregoing; or (vii) take any analogous procedure or step in any other applicable jurisdiction;
(i) an order, order for relief, judgment or decree shall be entered by any court of competent jurisdiction or other competent authority approving a petition seeking
reorganization of any Credit Party, the Advisor or Stonepeak Partners, or appointing a receiver, interim receiver, receiver and manager, custodian, trustee, intervenor, liquidator or provisional liquidator of any Credit Party, the Advisor or
Stonepeak Partners, or of all or substantially all of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of sixty (60) days;
(j) any final judgment(s) for the payment of money in excess of the sum of the Dollar Equivalent of the lesser of (i) $50,000,000 and (ii) 5% of NAV, in the
aggregate shall be rendered against any Credit Party and such judgment is not stayed, discharged or vacated after a period of thirty (30) consecutive days during which execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of any Credit Party to enforce any such judgment, unless such judgment is covered by insurance or bonded or unless it is being appealed and such Credit Party has posted a bond or
cash collateral;
(k) a Minimum Interest Coverage Ratio Breach has occurred and is continuing, and (i) the Borrower has failed to make a prepayment as required by Section 2.1(d)(iii)
or (ii) the Borrower makes three or more ICR Cure Payments in any twelve month period;
(l) a Maximum LTV Ratio Breach has occurred and is continuing, and the Borrower has failed to make a prepayment as required by Section 2.1(d)(ii);
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(m) a Review Event Cure Plan has been agreed in respect of a then-continuing Review Event, and the Borrower have failed to comply with the terms of such Review Event
Cure Plan and such failure continues for ten (10) Business Days after notice from the Administrative Agent or the Required Lenders;
(n) with respect to any Credit Party, the assets of such Credit Party shall be treated as Plan Assets of any ERISA Investor and such condition gives rise to a
non-exempt prohibited transaction under Section 406(a) of ERISA or Section 4975(c)(1)(A)-(C) of the Internal Revenue Code subjecting the Administrative Agent and/or Lenders to any tax or penalty on prohibited transactions imposed under Section
4975 of the Internal Revenue Code or Section 502(i) of ERISA;
(o) any General Partner of a Credit Party shall cease to be the general partner or managing member, as applicable, or shall withdraw or resign as the general partner
or managing member, as applicable, of such Credit Party (except in the case of the appointment of a successor general partner or managing member that is an Affiliate of Stonepeak Partners reasonably acceptable to the Administrative Agent), or
any General Partner of a Credit Party shall be removed as a general partner or managing member, as applicable, of such Credit Party or the requisite percentage of Investors shall notify any Credit Party of their intent to seek the removal of
such entity’s General Partner under the applicable Partnership Agreement to the extent such Investors are permitted to so remove such General Partner under the terms of the applicable Partnership Agreement (provided, that it shall no longer be
deemed an Event of Default pursuant to this Section 10.1(o) if the corresponding vote for removal does not succeed in removing such General Partner);
(p) upon the occurrence of a Change of Control; or
(q) except as permitted by Section 9.1 hereof, an event shall occur that causes a dissolution or liquidation of any Credit Party or General Partner.
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Section 11. AGENTS
(a) Authority of the Administrative Agent. Each Lender hereby designates and appoints ING, as the Administrative Agent of
such Lender to act as specified herein and the other Loan Documents, and each such Lender hereby authorizes the Administrative Agent, as the agent for such Lender, to take such action on its behalf under the provisions of this Credit Agreement
and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent by the terms hereof and of the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere herein and in the other Loan Documents, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein and therein, or
any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Credit Agreement or any of the other Loan Documents, or shall otherwise exist against
the Administrative Agent. The provisions of this Section 11 are solely for the benefit of the Administrative Agent and the Lenders and none of the Credit Parties or any Affiliate of the foregoing (each, a “Borrower Party”) or any Investor or its Affiliates shall have any rights as a third-party beneficiary of the provisions hereof (except for the provisions that explicitly relate to the Credit Parties in Section
11.10 hereof). In performing its functions and duties under this Credit Agreement and the other Loan Documents, the Administrative Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or for the Borrower Party.
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(b) Release of Collateral. The Secured Parties irrevocably authorize the Administrative Agent, at the Administrative Agent’s
option and in its sole discretion, to release any security interest in or Lien on any Collateral granted to or held by the Administrative Agent: (i) upon termination of this Credit Agreement and the other Loan Documents, termination of the
Lender Commitments and all Letters of Credit and payment in full of all of the Obligations, including all fees and indemnified costs and expenses that are then due and payable pursuant to the terms of the Loan Documents; (ii) pursuant to any
express provision of a Loan Document; and (iii) if approved by the Lenders pursuant to the terms of Section 12.1. Upon the request of the Administrative Agent, the Lenders shall confirm in writing the Administrative Agent’s authority
to release particular types or items of Collateral pursuant to this Section 11.1(b).
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11.11 Administrative Agent May
File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Credit Party, the Secured
Parties acknowledge and agree that the Administrative Agent (irrespective of whether the principal of any Loan or Letter of Credit Liability shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Letter of Credit Liability and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties (including any claim for the reasonable compensation, expenses, disbursements and
advances of the Secured Parties and their respective agents and counsel and all other amounts due the Secured Parties hereunder) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Secured Party, to pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent hereunder.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Secured Party any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights of any Secured Party or to authorize the Administrative Agent to vote in respect of the claim of any Secured Party in any such proceeding.
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(a) Unless Administrative Agent shall have received notice from a Lender or Borrower (either one as appropriate being the “Payor”) prior to the date on which such Lender is to make payment hereunder to Administrative Agent of the proceeds of a Loan or Borrower is required to make payment to Administrative Agent, as the case may be (either such
payment being a “Required Payment”), which notice shall be effective upon receipt, that the Payor will not make the Required Payment in full to Administrative Agent, Administrative
Agent may assume that the Required Payment has been made in full to Administrative Agent on such date, and Administrative Agent in its sole discretion may, but shall not be obligated to, in reliance upon such assumption, make the amount thereof
available to the intended recipient on such date. If and to the extent the Payor shall not have in fact so made the Required Payment in full to Administrative Agent, the recipient of such payment shall repay to Administrative Agent forthwith on
demand such amount made available to it together with interest thereon, for each day from the date such amount was so made available by Administrative Agent until the date Administrative Agent recovers such amount, at the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(b) (i) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that
any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one
Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the
date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense
or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar
doctrine. A notice of the Administrative Agent to any Lender under this Section 11.3(b) shall be conclusive, absent manifest error:
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(ii) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or
on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y)
that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a
Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business
Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such
Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation from time to time in effect.
(iii) The Borrower hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or
portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations
owed by the Borrower, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from or on behalf of a Credit
Party for the purpose of prepaying, repaying, discharging or otherwise satisfying any Obligations.
(iv) Each party’s obligations under this Section 11.13(b)(iv) shall survive the resignation or replacement of the Administrative Agent or any transfer of
rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
Section 12. MISCELLANEOUS
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(a) each Lender affected thereby:
(i) increase the amount or extend the term of the Lender Commitment of such Lender (other than increases complying with Section 2.15 hereof or an extension of
the Stated Maturity Date pursuant to Section 2.14 hereof), decrease the amount of fees (or any other payments) payable to such Lender, or accelerate the obligations of such Lender to advance its portion of any Borrowing, as contemplated
in Section 2.5 hereof or to issue or participate in any Letter of Credit, as contemplated in Section 2.8 hereof;
(ii) extend the time for payment for the principal of or interest on the Obligations (other than an extension pursuant to Section 2.14 hereof), or fees or
costs, or reduce the principal amount of the Obligations (except as a result of the application of payments or prepayments), or reduce the rate of interest borne by the Obligations (other than as a result of waiving the applicability of the
Default Rate), or otherwise affect the terms of payment of the principal of or any interest on the Obligations or fees or costs hereunder; and
(iii) release all or any material portion of the Collateral, except as otherwise contemplated herein or in the Collateral Documents, except in connection with the
transfer of interests in a Credit Party permitted under the Loan Documents;
(b) all Lenders:
(i) amend the definition of “Adjusted NAV,” “Available Commitment,” “Borrowing Base,” “Cash Control Event,” “Eligible Investment,” “Eligible Investment Concentration
Limit,” “Excess Prepayment Event,” “Fair Market Value,” “Financial Covenants,” “Interest Coverage Ratio,” “LTV Ratio,” “Maximum LTV Ratio,” “Minimum Interest Coverage Ratio,” “NAV,” “Portfolio Borrowing Base Advance Rate,” “Trigger Event,”
“Material Investment Event,” “Review Event,” “Value,” or the definition of any of the defined terms used therein;
(ii) change the percentages specified in the definition of Required Lenders herein or any other provision hereof specifying the number or percentage of the Lenders
which is required to amend, waive or modify any rights hereunder or otherwise make any determination or grant any consent hereunder;
(iii) except in a transaction permitted by this Credit Agreement, consent to the assignment or transfer by any Credit Party of any of its rights and obligations under
(or in respect of) the Loan Documents;
(iv) change the payment on the Obligations specified in Section 3.4; or
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(v) change any applicable provision in a manner that would alter the pro rata sharing of payments required thereby; or
(vi) amend the terms of this Section 12.1.
Notwithstanding the above: (A) no provision of Section 11 hereof may be amended or modified without the consent of the Administrative Agent; (B) no provisions of Section 2.8
hereof may be amended or modified without the consent of the Letter of Credit Issuer; and (C) Section 8 and Section 9 hereof specify the requirements for waivers of the affirmative covenants and negative covenants listed
therein, and any amendment to a provision of Section 8 or Section 9 hereof shall require the consent of the Lenders or the Administrative Agent that are specified therein as required for a waiver thereof.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above: (1) each Lender is entitled to vote as such ▇▇▇▇▇▇ sees fit on any
reorganization plan that affects the Loans or the Letters of Credit, and each Lender acknowledges that the provisions of Section 1126(c) of the United States Bankruptcy Code supersede the unanimous consent provisions set forth herein; (2) the
Required Lenders may consent to allow a Credit Party to use cash collateral in the context of a bankruptcy or insolvency proceeding; and (3) the Administrative Agent may, with the consent of the Borrower, agree to the modification or waiver of
any of the other terms of this Credit Agreement or any other Loan Document or consent to any action or failure to act by any Credit Party, if such modification, waiver, or consent is of an administrative nature. If the Administrative Agent
shall request the consent of any Lender to any amendment, change, waiver, discharge, termination, consent or exercise of rights covered by this Credit Agreement, such Lender shall use best efforts in good faith to give such consent or denial
thereof in writing within ten (10) Business Days of the making of such request by the Administrative Agent, as the case may be, but if such Lender is unable to respond within such time, such Lender shall be deemed to have denied its consent to
the request.
Notwithstanding anything to the contrary herein, Schedule I hereto may be amended without the consent of any Lender or other Secured Party if delivered in accordance with the terms of
the Loan Documents; provided that the Borrower shall provide such revised Schedules to the Administrative Agent prior to such amendment and the Administrative Agent shall have confirmed such amended schedules in writing.
Notwithstanding anything to the contrary herein, if following the Closing Date, the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission
of a technical or immaterial nature, in each case, in any provision of this Credit Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision and such amendment shall become
effective without any further action or consent of any other party to this Credit Agreement or any other Loan Document if the same is not objected to in writing by the Required Lenders within five (5) Business Days following receipt of notice
thereof.
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Notwithstanding anything to the contrary herein, any Collateral Account Control Agreement may be amended, waived, discharged or terminated by the Administrative Agent in order to (i) assist
with any transfer to a new Depository Bank which is an Eligible Institution in accordance with this Credit Agreement or to otherwise reflect any change in the account number with an existing Depository Bank or (ii) to fix an obvious error or
any error or omission of a technical or immaterial nature, in either case, without any further action or consent of any other party to this Credit Agreement or any other Loan Document if the same is, in the reasonable determination of the
Administrative Agent, not materially adverse to the Lenders.
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(a) The Borrower agrees to pay (within the Required Payment Time after the receipt of written notice from the Administrative Agent) its pro rata share of all
documented out-of-pocket costs and expenses of the Administrative Agent (including without limitation the reasonable fees and expenses of one designated law firm in each applicable jurisdiction acting as counsel to the Administrative Agent)
reasonably and actually incurred by it in connection with the negotiation, preparation, execution and delivery of this Credit Agreement, the Notes, and the other Loan Documents and any and all amendments, modifications, waivers and supplements
thereof or thereto, and, if an Event of Default exists, all documented out-of-pocket costs and expenses of the Administrative Agent and the Lenders (including, without limitation, the reasonable attorneys’ fees of the Administrative Agent’s and
the Lenders’ legal counsel) reasonably incurred by them in connection with the preservation and enforcement of the Administrative Agent’s, the Letter of Credit Issuer’s and the Lenders’ rights under this Credit Agreement, the Notes, and the
other Loan Documents.
(b) The Borrower agrees to indemnify the Administrative Agent, the Letter of Credit Issuer and each of the Lenders and their respective directors, officers, employees,
attorneys and agents (each such Person, including without limitation the Administrative Agent, the Letter of Credit Issuer, each of the Lenders, and any affiliate of the foregoing acting in any such capacity in connection with this Credit
Agreement or any other Loan Document, being called an “Indemnitee”) its pro rata share against, and to hold each Indemnitee harmless from, any and all losses, claims, actions,
judgments, suits, disbursements, penalties, damages, liabilities and related expenses and counsel fees and expenses (including without limitation the counsel fees and expenses incurred in the enforcement of any Loan Documents against any Credit
Party), incurred by or asserted against any Indemnitee arising out of, in any way connected with, or as a result of:
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(i) this Credit Agreement or any other Loan Document, including without limitation the execution, delivery and enforcement thereof, or any agreement or instrument
contemplated thereby,
(ii) the use or misuse of the proceeds of the Loans,
(iii) the fraudulent actions or misrepresentations of any Credit Party or its Affiliates in connection with the transactions contemplated by this Credit Agreement and
the other Loan Documents, or any breach by any Credit Party of its obligations under this Credit Agreement or any other Loan Document, or
(iv) any claim, litigation, investigation or proceeding relating to any of the foregoing or relating to any transaction contemplated hereby, whether or not any
Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, apply (1) to any such losses, claims, actions, judgments, suits,
disbursements, penalties, damages, liabilities or related expenses as determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from gross negligence, fraud or willful misconduct of such Indemnitee
or from any dispute between or among the Indemnitees and not involving any Credit Party or (2) with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
(c) To the fullest extent permitted by applicable Law, the Borrower and each other Credit Party shall not assert, and hereby waive, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Credit Agreement, any other Loan Document or any agreement
or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in clause (b) above shall be liable for any damages arising
from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Credit Agreement or the other Loan Documents
or the transactions contemplated hereby or thereby, other than for direct or actual damages resulting from the gross negligence, bad faith, material breach of contract or willful misconduct of such Indemnitee as determined by a final and
non-appealable judgment of a court of competent jurisdiction.
(d) WITHOUT LIMITATION OF AND SUBJECT TO THE FOREGOING, THE BORROWER AND EACH OTHER CREDIT PARTY INTENDS AND AGREES THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH
INDEMNITEE WITH RESPECT TO ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, THE REASONABLE AND DOCUMENTED FEES AND EXPENSES OF COUNSEL) WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE
OR CLAIMS OF NEGLIGENCE OF SUCH OR ANY OTHER INDEMNITEE OR ANY STRICT LIABILITY OR CLAIMS OF STRICT LIABILITY.
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(e) The provisions of this Section 12.5 shall survive termination of this Credit Agreement, and shall remain operative and in full force and effect
regardless of the expiration of the Commitment Period, the consummation of the transactions contemplated hereby, the repayment of the Loans, the occurrence of the Maturity Date, the invalidity, illegality, or unenforceability of any term or
provision of this Credit Agreement or any other Loan Document, or any investigation made by or on behalf of the Lenders. All amounts due under this Section 12.5 shall be payable promptly on written demand therefor.
(a) Notices Generally. Any notice, demand, request or other communication which any party hereto may be required or may
desire to give hereunder shall be in writing (except where telephonic instructions or notices are expressly authorized herein to be given) and shall be deemed to be effective: (a) if by hand delivery on the day and at the time on which
delivered to such party at the address or fax numbers specified below; (b) if by mail, on the day which it is received after being deposited, postage prepaid, in the United States registered or certified mail, return receipt requested,
addressed to such party at the address specified below; (c) if by FedEx or other internationally recognized express mail service, on the next Business Day following the delivery to such express mail service, addressed to such party at the
address set forth below; (d) if by telephone, on the day and at the time communication with one of the individuals named below occurs during a call to the telephone number or numbers indicated for such party below; or (e) if by email, as
provided in Section 12.6(b) hereof:
If to a Borrower:
At the address specified with respect thereto on Schedule I hereto.
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
1999 Avenue of the Stars – 29th Floor
Los Angeles, CA 90067
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Attention:
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▇▇▇ ▇▇▇▇▇▇▇
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Telephone:
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(▇▇▇) ▇▇▇-▇▇▇▇
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Fax:
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(▇▇▇) ▇▇▇-▇▇▇▇
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Email:
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▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
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If to the Administrative Agent:
At the address specified with respect thereto on Schedule II hereto.
With a copy to (which shall not constitute notice):
Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
New York, New York 10281
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Attention:
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▇▇▇▇ ▇▇▇▇▇▇▇▇
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Telephone:
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(▇▇▇) ▇▇▇-▇▇▇▇
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Fax:
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(▇▇▇) ▇▇▇-▇▇▇▇ |
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▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇
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If to the Lenders:
At the address specified with respect thereto on Schedule II hereto or on the Assignment and Acceptance Agreement of such Lender.
Any party may change its address for purposes of this Credit Agreement by giving notice of such change to the other parties pursuant to this Section 12.6. With
respect to any notice received by the Administrative Agent from the Borrower not otherwise addressed herein, the Administrative Agent shall notify the Lenders promptly of the receipt of such notice, and shall provide copies thereof to the
Lenders.
(b) Electronic Communication. Notices and other communications to the Lenders and the Letter of Credit Issuer hereunder may
be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices to any Lender
or the Letter of Credit Issuer pursuant to Section 2 hereof if such Lender or the Letter of Credit Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving such notices by electronic communication.
Any Credit Party may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the recipient’s receipt of
such notice with no error message or other evidence of non-delivery received by the sender, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses
(i) and (ii) above, if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next
Business Day for the recipient
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Notwithstanding the foregoing, delivery by posting to a secure website which is available to the Administrative Agent shall be an acceptable form of delivery for any report, statement or notice
required of the Borrower pursuant to Section 8.1(a), 8.1(b)(iv)(A) and (B), or 8.1(i) hereof; provided that the Borrower shall notify the Administrative Agent by electronic mail (or shall cause the
Administrative Agent to be notified by electronic mail from the applicable secure website) that such posting has been made at the notice addresses set forth above.
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(a) Parties Bound. The provisions of this Credit Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, except that, except as expressly permitted hereby, no Credit Party may assign or otherwise transfer any of its respective rights under this Credit Agreement without the prior written
consent of all the Lenders.
(b) Participations. Any Lender may at any time grant to one or more banks or other institutions (each a “Participant”) a participating interest in its Lender Commitment or any or all of its Loans; provided that (i) any such participation shall be in a minimum amount of $5,000,000,
and, if in a greater amount, in integral multiples of $5,000,000 (or such Lender’s entire remaining Lender Commitment), and (ii) prior to the occurrence and continuance of an Event of Default pursuant to Section 10.1(a) that has not
been cured within sixty (60) days, no such participation shall be granted to any Competitor. In the event of any such grant by a Lender of a participating interest to a Participant, such Lender shall remain responsible for the performance of
its obligations hereunder, and the Credit Parties and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ▇▇▇▇▇▇’s rights and obligations under this Credit Agreement. Any agreement
pursuant to which any Lender may grant such a participating interest shall provide that such Lender shall retain the sole right and responsibility to enforce the Obligations including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Credit Agreement. The voting rights of each Participant shall be limited to (i) reductions or increases in the amount, or altering the term, of the Lender Commitment of such Participant and (ii)
changes to the Maturity Date or interest rate. The Borrower agrees that each Participant shall be entitled to the benefits of Section 4.6, and Section 5.3 hereof with respect to its participating interest; provided that
in no event shall the Borrower be obligated to pay to such Participant amounts greater than those the Borrower would have been required to pay to the granting Lender in the absence of such participation; and provided, further, that the
Participant shall have complied with the obligations of such sections as though such Participant were a Lender. An assignment or other transfer which is not permitted by subsection (c) below shall be given effect for purposes of this
Credit Agreement only to the extent of a participating interest which is permitted in accordance with this subsection (b). Each Lender that sells a participating interest in any Loan, Lender Commitment or other interest to a
Participant shall, as agent of the Borrower solely for the purpose of this Section 12.11(b), record in book entries maintained by such Lender the name and the amount of the participating interest of each Participant entitled to receive
payments in respect of such participating interests.
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(c) Assignments. With the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld,
conditioned or delayed) and with the prior written consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed (but shall be deemed to have been given on the fifth (5th) Business Day after the date written
notice is provided to the Borrower and the assigning Lender has not received, by such time, written notice of the Borrower’s objection to such assignment), and such consent of the Borrower not to be required for (i) assignments to another
existing Lender, to a Federal Reserve Bank or other central banking authority, an Affiliate of a Lender (so long as, if such Affiliate is a commercial paper conduit, the assigning Lender provides credit support acceptable to the Borrower in
their reasonable discretion) or (ii) during the existence of an Event of Default of the type described in Section 10.1(a), (h) or (i) hereof or any other Event of Default which has continued uncured for a period of
thirty (30) days), any Lender may (at its expense) at any time assign to one or more Persons (an “Assignee”) all, or a proportionate part of all (in a constant, not varying,
percentage), of its rights and obligations under this Credit Agreement, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Acceptance Agreement; provided that:
(i) this Section 12.11(c) shall not restrict an assignment or other transfer by any Lender to a Federal Reserve Bank or other central banking authority, but
no such assignment to a Federal Reserve Bank or other central banking authority shall release the assigning Lender from its obligations hereunder;
(ii) except in the case of an assignment to another Lender, or the assignment of all of a Lender’s rights and obligations under this Credit Agreement, any assignment
shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $5,000,000 (or such ▇▇▇▇▇▇’s entire remaining Lender Commitment); provided that, no Lender shall
have a Lender Commitment of less than $5,000,000 following any such assignment (unless the assigning Lender shall have assigned all of its rights and obligations under this Credit Agreement);
(iii) prior to the occurrence and continuance of an Event of Default pursuant to Section 10.1(a) that has not been cured within sixty (60) days, the Assignee
shall not be a Competitor;
(iv) the Assignee shall provide any required documentation under Section 4.6 of this Credit Agreement; and
(v) the parties to each such assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement, and the Assignee shall pay to the
transferor Lender an amount equal to the purchase price agreed between such transferor Lender and such Assignee, and the transferor Lender shall deliver payment of a processing and recordation fee of $3,500 to the Administrative Agent.
(d) Consequences of Assignment. Upon execution and delivery of such Assignment and Acceptance Agreement and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price agreed between such transferor Lender and such Assignee, such Assignee shall be a Lender party to this Credit Agreement and shall have all the rights and obligations of
a Lender with a Lender Commitment as set forth in such Assignment and Acceptance Agreement, and the transferor Lender shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party
shall be required.
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(e) Addition of Lenders. With the prior written consent of the Administrative Agent in its sole discretion (other than with
respect to any Lender agreed in writing between the Borrower and the Administrative Agent on or prior to the Effective Date), at the request of the Borrower, a new lender may join the Credit Facility as a Lender by delivering a Joinder
Agreement to the Administrative Agent, and such new Lender shall assume all rights and obligations of a Lender under this Credit Agreement and the other Loan Documents; provided that:
(i) The Lender Commitment of the new Lender shall be in addition to the Lender Commitment of the existing Lenders in effect on the date of such new Lender’s entry
into the Credit Facility and the Maximum Commitment shall be increased in a corresponding amount;
(ii) the Lender Commitment of the new Lender shall be in a minimum amount of $5,000,000, and, if in a greater amount, in integral multiples of $1,000,000 (in each
case, or such lesser amount agreed to by the Borrower and the Administrative Agent in writing);
(iii) the new Lender shall provide any required documentation under Section 4.6 of this Credit Agreement; and
(iv) the parties shall execute and deliver to the Administrative Agent a Joinder Agreement, the Borrower shall execute such new Notes as the Administrative Agent or any
Lender may reasonably request, and the new Lender shall deliver payment of a processing and recordation fee of $3,500 to the Administrative Agent.
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(f) Register of Lenders. The Administrative Agent shall maintain at its principal offices in New York or at such other
location as the Administrative Agent shall designate in writing to each Lender and the Borrower, a copy of each Assignment and Acceptance Agreement and Joinder Agreement delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders, the principal amount of each Lender’s Pro Rata Share of the Lender Commitments and the Loans, and the name and address of each Lender’s agent for service of process in New York (the “Register”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each person or entity
whose name is recorded in the Register as a Lender hereunder for all purposes of this Credit Agreement. The Register shall be available for inspection and copying by the Borrower or any Lender during normal business hours upon reasonable prior
notice to the Administrative Agent. A Lender may change its address and its agent for service of process upon written notice to the Administrative Agent, which notice shall be effective upon actual receipt by the Administrative Agent, which
receipt will be acknowledged by the Administrative Agent upon request. Upon receipt of any Assignment and Acceptance Agreement or Joinder Agreement, the Administrative Agent shall, if such Assignment and Acceptance Agreement has been
completed, fully-executed and is substantially in the form of Exhibit H hereto or if such Joinder Agreement has been completed, fully-executed and is substantially in the form of Exhibit N hereto: (i) accept such an Assignment
and Acceptance Agreement or Joinder Agreement; (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Borrower. Each Lender that sells a participation shall, acting solely for this purpose as
a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the
Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the
identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is
necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive
absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Credit Agreement notwithstanding any notice to the contrary. For the
avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(g) Disclosure of Information. Any Lender may furnish any information concerning the Borrower Party in the possession of
such Lender from time to time to Assignees and Participants (including prospective Assignees and Participants), subject, however, to the provisions of Section 12.17 hereof.
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(a) If, for the purpose of obtaining a judgment in any court in any jurisdiction with respect to any Loan Document, it is necessary to convert a sum owing hereunder
in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures in the relevant
jurisdiction the first currency could be purchased by the Administrative Agent with such other currency on the Business Day immediately preceding the day on which final judgment is given.
(b) The obligations of the Borrower in respect of any sum due from it to any Secured Party hereunder or under the other Loan Documents (the “Applicable Creditor”) shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than the currency in which such sum is
stated to be due hereunder or under the other Loan Documents (the “Agreement Currency”), be discharged only to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the Applicable Creditor may in accordance with normal banking procedures in the relevant jurisdiction purchase the Agreement Currency with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum originally due to the Applicable Creditor from the Borrower in the Agreement Currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify
the Applicable Creditor against such loss. If the amount of the Agreement Currency so purchased is greater than the sum originally due to the applicable Secured Party in such currency, such Secured Party agrees to return the amount of any
excess to the Borrower (or to any other Person who may be entitled thereto under applicable Law). The obligations of the Borrower contained in this Section 12.20 shall survive the termination of this Credit Agreement and the payment of
all other amounts owing hereunder.
Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges
that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and
consents to, and acknowledges and agrees to be bound by:
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(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to
it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent
undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Credit
Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
(a) To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC
(such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows
with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (together with the regulations promulgated
thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents
and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(b) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes
subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any
rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such
QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject
to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be
exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.
Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC
Credit Support.
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(a) As used in this Section 11.23, the following terms have the following meanings:
(i) “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted
in accordance with, 12 U.S.C. 1841(k)) of such party.
(ii) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and
interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance
with, 12 C.F.R. § 382.2(b).
(iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with,
12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted
in accordance with, 12 U.S.C. 5390(c)(8)(D).
(v) “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any
International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any
such obligations or liabilities under any Master Agreement.
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(a) at any time or from time to time, without notice to any Borrower, the time for any performance of or compliance with any of the Obligations shall be extended, or
such performance or compliance shall be waived;
(b) any of the acts mentioned in any of the provisions of this Credit Agreement or any other agreement or instrument referred to herein or therein shall be done or
omitted; or
(c) the maturity of any of the Obligations shall be accelerated or delayed, or any of the Obligations shall be modified, supplemented or amended in any respect, or any
right under this Credit Agreement or any other agreement or instrument referred to herein or therein shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released or exchanged in whole or in part or
otherwise dealt with.
Section 13. GUARANTY
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This Credit Agreement and the obligations of each Guarantor hereunder shall be valid and enforceable and shall not be subject to any limitation,
impairment or discharge for any reason (other than payment in full of the Obligations), including the occurrence of any of the following, whether or not the Administrative Agent shall have had notice or knowledge of any of them: (A) any failure
to assert or enforce or agreement not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy with respect to the
Obligations or any agreement relating thereto, or with respect to any guaranty of or other security for the payment of the Obligations, (B) any waiver, amendment or modification of, or any consent to departure from, any of the terms or
provisions (including provisions relating to Events of Default) of this Credit Agreement and any other Loan Document or any agreement or instrument executed pursuant thereto, or of any guaranty or other security for the Obligations, (C) to the
fullest extent permitted by applicable Law, any of the Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect, (D) the application of payments received from any source to
the payment of indebtedness other than the Obligations, even though the Administrative Agent might have elected to apply such payment to any part or all of the Obligations, (E) any failure to perfect or continue perfection of a security
interest in any of the Collateral, (F) any defenses (other than the defense of payment), set-offs or counterclaims which a Borrower may allege or assert against the Administrative Agent in respect of the Obligations, including failure of
consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury, and (G) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to
any extent vary the risk of each Guarantor as an obligor in respect of the Obligations.
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REMAINDER OF ▇▇▇▇ INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW.
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IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly
executed and delivered as of the day and year first above written.
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BORROWER:
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STONEPEAK-PLUS INFRASTRUCTURE
FUND MASTER AGGREGATOR LP
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Acting by its general partner, Stonepeak-Plus
Infrastructure Fund Associates (CYM) LP, acting
by its general partner, Stonepeak-Plus Infrastructure
Fund Cayman Ltd
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Title: Senior Managing Director & General
Counsel / Chief Compliance Officer
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GUARANTORS:
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STONEPEAK-PLUS INFRASTRUCTURE
FUND LOWER FUND VI-A LP
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Acting by its general partner, Stonepeak-Plus
Infrastructure Fund Associates (CYM) LP, acting
by its general partner, Stonepeak-Plus Infrastructure
Fund Cayman Ltd
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Senior Managing Director & General
Counsel / Chief Compliance Officer
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STONEPEAK-PLUS INFRASTRUCTURE
FUND LOWER FUND VI-B LP
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Acting by its general partner, Stonepeak-Plus
Infrastructure Fund Associates (CYM) LP, acting
by its general partner, Stonepeak-Plus Infrastructure
Fund Cayman Ltd
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By:
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| |
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
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Title: Senior Managing Director & General
Counsel / Chief Compliance Officer
|
||
|
STONEPEAK-PLUS INFRASTRUCTURE
FUND LIQUIDITY LP
|
||
|
Acting by its general partner, Stonepeak-Plus
Infrastructure Fund Finance LLC
|
||
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By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
||
|
Title: Senior Managing Director & General
Counsel / Chief Compliance Officer
|
||
|
ADMINISTRATIVE AGENT AND LENDER
AND LETTER OF CREDIT ISSUER:
|
||
|
ING CAPITAL LLC, a Delaware limited liability
company, as the Administrative Agent, a Lender
and Letter of Credit Issuer
|
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||
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By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
|
||
| Title: Managing Director | ||
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇▇ d’Elzius
|
|
| |
Name: ▇▇▇▇ ▇▇▇▇▇▇ d’Elzius
|
|
| Title: Director | ||
SCHEDULE I
[Intentionally Omitted]
SCHEDULE II
[Intentionally Omitted]
SCHEDULE III
[Intentionally Omitted]