Exhibit (k)(6)
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SECOND AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY
AGREEMENT
among
▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND,
as Borrower
JS SILOED TRUST
and
CHARIOT FUNDING LLC,
as Conduit Lenders
THE SECONDARY LENDERS PARTIES HERETO
and
JPMORGAN CHASE BANK, N.A,,
as Program Agent
Dated as of July 31, 2008
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[Type VII-C]
TABLE OF CONTENTS
Page
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SECOND AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Definitions.........................................................................................1
SECTION 1.02. Rules of Construction..............................................................................24
SECTION 1.03. Computation of Time Periods........................................................................24
ARTICLE II
ADVANCES TO THE BORROWER
SECTION 2.01. Advance Facility...................................................................................24
SECTION 2.02. Making of Advances.................................................................................25
SECTION 2.03. Noteless Agreement; Evidence of Indebtedness.......................................................26
SECTION 2.04. Maturity of the Advances...........................................................................27
SECTION 2.05. Prepayment of the Advances.........................................................................27
SECTION 2.06. Yield. 28
SECTION 2.07. Increased Costs....................................................................................28
SECTION 2.08. Compensation.......................................................................................30
SECTION 2.09. Additional Yield on Eurodollar Rate Advances.......................................................30
SECTION 2.10. Termination or Reduction of the Total Commitment...................................................30
SECTION 2.11. Rescission or Return of Payment....................................................................31
SECTION 2.12. Fees Payable by Borrower...........................................................................31
SECTION 2.13. Post Default Interest..............................................................................31
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SECTION 2.14. Payments...........................................................................................31
SECTION 2.15. Ratable Payments...................................................................................32
SECTION 2.16. Borrower's Obligations Absolute....................................................................32
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to the Effectiveness of the Original Credit Agreement.........................33
SECTION 3.02. Conditions Precedent to All Advances...............................................................34
SECTION 3.03. Conditions Precedent to the Effectiveness of this Agreement........................................34
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.....................................................36
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Borrower..............................................................39
SECTION 5.02. Negative Covenants of the Borrower.................................................................44
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default..................................................................................46
ARTICLE VII
PLEDGE OF PLEDGED COLLATERAL;
RIGHTS OF THE PROGRAM AGENT
SECTION 7.01. Security Interests.................................................................................49
SECTION 7.02. Substitution of Collateral and Release of Security Interest........................................50
SECTION 7.03. Application of Proceeds............................................................................51
SECTION 7.04. Rights and Remedies upon Event of Default..........................................................52
SECTION 7.05. Remedies Cumulative................................................................................53
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ARTICLE VIII
THE PROGRAM AGENT
SECTION 8.01. Authorization and Action...........................................................................53
SECTION 8.02. Delegation of Duties...............................................................................54
SECTION 8.03. Program Agent's Reliance, Etc......................................................................54
SECTION 8.04. Indemnification....................................................................................55
SECTION 8.05. Successor Program Agent............................................................................55
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. No Waiver; Modifications in Writing................................................................56
SECTION 9.02. Notices, Etc.......................................................................................56
SECTION 9.03. Taxes. 58
SECTION 9.04. Costs and Expenses; Indemnification................................................................59
SECTION 9.05. Execution in Counterparts..........................................................................61
SECTION 9.06. Assignability......................................................................................61
SECTION 9.07. Governing Law......................................................................................62
SECTION 9.08. Severability of Provisions.........................................................................62
SECTION 9.09. Confidentiality....................................................................................63
SECTION 9.10. Merger.............................................................................................64
SECTION 9.11. No Proceedings.....................................................................................64
SECTION 9.12. Survival of Representations and Warranties.........................................................65
SECTION 9.13. Consent to Amendment and Restatement...............................................................65
SECTION 9.14. Loan Documents.....................................................................................65
SECTION 9.15. Submission to Jurisdiction; Waivers................................................................66
SECTION 9.16. E-Mail Reports.....................................................................................66
SECTION 9.17. Waiver of Jury Trial...............................................................................66
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SECTION 9.18. Several Obligations................................................................................67
SECTION 9.19. Limitation on Liability............................................................................67
SECTION 9.20. Patriot Act Notice.................................................................................67
SECTION 9.21. No Novation........................................................................................68
SECTION 9.22. Third Party Beneficiary............................................................................68
SCHEDULES
Schedule I Form of Investor Report
Schedule II Form of Plan Arrangements
EXHIBITS
EXHIBIT A Form of Advance Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Assignment and Acceptance
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SECOND AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
This SECOND AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY
AGREEMENT, dated as of July 31, 2008 is entered into among JS SILOED TRUST,
CHARIOT FUNDING LLC, JPMORGAN CHASE BANK, N.A., STATE STREET BANK AND TRUST
COMPANY, THE BANK OF NEW YORK MELLON and the other Secondary Lenders (as
hereinafter defined) from time to time parties hereto, JPMORGAN CHASE BANK,
N.A., as program agent for the Secured Parties (as hereinafter defined) (in such
capacity, together with its successors and assigns, the "Program Agent") and ▇▇▇
▇▇▇▇▇▇ SENIOR LOAN FUND (together with its permitted successors and assigns, the
"Borrower"), to amend and restate the Revolving Credit and Security Agreement
entered into as of November 17, 2003 among the Borrower, Chariot Funding LLC, JS
Siloed Trust (as successor by assignment to Falcon Asset Securitization Company
LLC), the Secondary Lenders parties thereto, and the Program Agent (the
"Original Credit Agreement" and as amended and restated on July 14, 2006 and as
otherwise amended, supplemented or otherwise modified prior to the Restatement
Effective Date, the "Existing Credit Agreement"), and, from and after the
Restatement Effective Date, the Existing Credit Agreement is hereby amended and
restated in its entirety.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower desires that the Conduit Lenders (as
hereinafter defined) and the Secondary Lenders from time to time make advances
to the Borrower on the terms and subject to the conditions set forth in this
Agreement; and
WHEREAS, the Conduit Lenders and the Secondary Lenders are
willing to make such advances to the Borrower on the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Definitions.
As used in this Agreement, the following terms shall have the
meanings indicated:
The following terms are used herein as defined in the UCC (if
any term is defined in Article 9 of the UCC and in another article of the UCC,
the term as used herein shall be as defined in Article 9 of the UCC): Chattel
Paper, Instrument, Investment Property, Payment Intangible, Security, Security
Entitlement, and Supporting Obligations.
"Accounting Based Consolidation Event" means the
consolidation, for financial and/or regulatory accounting purposes, of all or
any portion of the assets and liabilities of a
Conduit Lender or Jupiter that are subject to this Agreement or any other
Program Document with all or any portion of the assets and liabilities of an
Affected Entity. An Accounting Based Consolidation Event shall be deemed to
occur on the date any Affected Entity shall acknowledge in writing that any such
consolidation of the assets and liabilities of a Conduit Lender or Jupiter shall
occur.
"Adjusted Asset Value" means in respect of any Borrowing Base
Eligible Asset an amount equal to the product of (i) the Asset Value of such
Borrowing Base Eligible Asset, and (ii) the applicable Advance Rate for such
Borrowing Base Eligible Asset.
"Advance" means each advance by a Conduit Lender or a
Secondary Lender to the Borrower on a Borrowing Date pursuant to Article II;
provided, that if a Conduit Lender assigns a portion of any Advance made by it
to a Lender pursuant to the Asset Purchase Agreement or otherwise or any
Secondary Lender assigns a portion of any outstanding Advance made by it
pursuant to an Assignment and Acceptance and in accordance with and subject to
Section 9.06(b), the portion of such Advance retained by such Conduit Lender or
Secondary Lender, as the case may be, and the portion of such Advance acquired
by such assignee shall each be deemed to constitute a separate Advance for
purposes of this Agreement.
"Advance Note" means each promissory note issued by the
Borrower to a Conduit Lender or a Secondary Lender in accordance with the
provisions of Section 2.03, substantially in the form of Exhibit A hereto, as
the same may from time to time be amended, supplemented, waived or modified.
"Advance Rate" means (i) in respect of Cash, 100%, (ii) in
respect of Eligible Commercial Paper Notes and Eligible Government Securities,
95%, (iii) in respect of Class A Loan Assets, 80%, (iv) in respect of Class B
Loan Assets, 70% and (v) in respect of Class C Loan Assets, 60%.
"Adverse Claim" means any Lien or other right, claim,
encumbrance or any other type of preferential arrangement in, of or on any
Person's assets or properties in favor of any other Person, other than Permitted
Liens.
"Adviser" means ▇▇▇ ▇▇▇▇▇▇ Asset Management (formerly
▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.), together with its permitted successors
and assigns.
"Adviser Material Adverse Effect" means (i) a material adverse
effect on the ability of the Adviser to perform its obligations under the Letter
Agreement, (ii) a material adverse effect on the validity or enforceability of
the Letter Agreement, or (iii) a material adverse effect on the business,
financial condition, operations, assets or properties of the Adviser.
"Advisory Agreement" means the Investment Advisory Agreement
dated as of May 31, 1997 between the Adviser and the Borrower, as the same may
be amended, supplemented, waived or modified as permitted under this Agreement.
"Affected Entity" means (i) JPMorgan, (ii) any insurance
company, bank or other funding entity providing liquidity, credit enhancement or
back-up purchase support or facilities
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to a Conduit Lender or Jupiter, (iii) any agent, administrator or manager of a
Conduit Lender or Jupiter, or (iv) any bank holding company in respect of any of
the foregoing.
"Affected Person" means each Lender, each Secondary Lender, or
any other entity which enters into a commitment to make or purchase Advances or
JUSI Certificates or any interest therein, or to provide any liquidity or credit
enhancement to Jupiter, a Conduit Lender, and any of their respective
Affiliates, including any assignee or participant of any Lender or Secondary
Lender.
"Affiliate" means, in respect of a referenced Person, another
Person controlling, controlled by or under common control with such referenced
Person (which in the case of any Conduit Lender and the Program Agent shall also
include any entity which is a special purpose entity and has a relationship to
the Program Agent comparable to that of the Conduit Lenders). The terms
"control," "controlling," "controlled" and the like mean the direct or indirect
possession of the power to direct or cause the direction of the management or
policies of a Person or the disposition of its assets or properties, whether
through ownership, by contract, arrangement or understanding, or otherwise.
"Aggregate Custodian's Advance Amount" means the sum of (i)
the aggregate unpaid Dollar amount of all outstanding Custodian's Overdraft
Advances of cash, (ii) the aggregate Value of all Custodian's Overdraft Advances
of assets (other than cash) to the extent not reimbursed by the Borrower, and
(iii) the accrued and unpaid interest, if any, on the amounts set forth above.
"Agreement" means this Second Amended and Restated Revolving
Credit and Security Agreement, as the same may from time to time be amended,
supplemented, waived or modified.
"Agreement of Amendment" means the Agreement of Amendment
dated as of the date hereof among the Borrower, the Program Agent, the Custodian
and the Adviser.
"Alternate Base Rate" means in respect of any Advance for any
Settlement Period, a fluctuating interest rate per annum as shall be in effect
from time to time, which rate shall be at all times equal to the applicable Base
Rate for such Advance.
"APA Amendment" means the Agreement of Amendment to the Asset
Purchase Agreement dated as of the date hereof among the Program Agent, Chariot,
the Trust, and each Secondary Lender, as purchaser.
"Applicable Law" means any Law of any Authority, including,
without limitation, all Federal and state banking or securities laws, to which
the Person in question is subject or by which it or any of its property is
bound.
"Applicable Margin" means, with respect to the Eurodollar
Rate, 2.00% per annum.
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"Asset Coverage Test" means, as of any Determination Date, the
Borrower's "senior securities representing indebtedness" (as defined in Section
18(g) of the Investment Company Act) have "asset coverage" (as defined in
Section 18(h) of the Investment Company Act) of at least 400% (computed on such
Determination Date regardless of whether or not dividends or distributions are
being made on such Determination Date, or whether Debt is being incurred on such
Determination Date and computed as if each outstanding Advance constituted a
"senior security" without regard to whether such Advance is a loan for
"temporary purposes" or otherwise excludable from the definition of "senior
securities" under Section 18(g) of the Investment Company Act).
"Asset Purchase Agreement" means the Third Amended and
Restated Asset Purchase Agreement dated as of July 14, 2006 entered into among
the Program Agent, Chariot, the Trust (as successor to Jupiter) and each
Secondary Lender, as purchaser, in connection with this Agreement, as the same
may be from time to time amended, supplemented, waived or modified.
"Assets" means a collective reference to all items which would
be classified as an "asset" on the balance sheet of the Borrower in accordance
with GAAP.
"Asset Value" means, as of any day of determination (a) in
respect of Cash, the amount of such Cash, and (b) in respect of any other Asset,
the Value of such Asset computed in the manner as such Value is required to be
computed by the Borrower in accordance with the rules, regulations and
interpretations of the SEC under the Investment Company Act; provided, that the
Asset Value of any Asset shall be net of the Borrower's liabilities relating
thereto, including without limitation all of the Borrower's obligations to pay
any unpaid portion of the purchase price therefor; provided, further, that for
any Asset for which independent reliable market quotations (it being understood
that independent reliable market quotations may consist of only an independent
dealer quotation) are not available (unless such Asset is otherwise valued for
the Borrower by a nationally recognized pricing source which is not controlled
by or under the common control within the meaning of the Investment Company Act
of the Borrower or any Affiliate of the Borrower), the Asset Value of such Asset
shall be deemed zero for purposes of this definition.
"Assignee Rate" means in respect of any Advance by a Secondary
Lender or acquired by a Lender (other than a Conduit Lender) for any Settlement
Period an interest rate per annum equal to the sum of the Applicable Margin plus
the Eurodollar Rate for such Settlement Period; provided, however, that in case
of:
(i) any Settlement Period on or prior to the first
day of which the applicable Lender (other than a Conduit Lender) or the
applicable Secondary Lender shall have notified the Program Agent that
the introduction of or any change in or in the interpretation of any
law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for such Lender or
such Secondary Lender to fund such Advance at the Assignee Rate set
forth above (and such Lender or such Secondary Lender shall not have
subsequently notified the Program Agent that such circumstances no
longer exist),
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(ii) any Settlement Period of one to (and including)
27 days,
(iii) any Settlement Period as to which the Program
Agent does not receive notice, by no later than 11:00 a.m. (Chicago
time) on the second Business Day preceding the first day of such
Settlement Period, that such Advance will not be funded by a Conduit
Lender, or
(iv) any Settlement Period for which the aggregate
principal amount of all outstanding Advances is less than $3,000,000,
the "Assignee Rate" for such Settlement Period shall be an interest rate per
annum equal to the applicable Alternate Base Rate in effect on the first day of
such Settlement Period.
"Assignment and Acceptance" means the Assignment and
Acceptance, in substantially the form of Exhibit C hereto, entered into by a
Secondary Lender, an Eligible Assignee, the Program Agent and, if required by
the terms of Section 9.06(b), the Borrower, pursuant to which such Eligible
Assignee may become a party to this Agreement.
"Authority" means any governmental or quasi-governmental
authority (including the National Association of Securities Dealers, the stock
exchanges and the SEC), whether executive, legislative, judicial, administrative
or other, or any combination thereof, including, without limitation, any
Federal, state, territorial, county, municipal or other government or
governmental or quasi-governmental agency, arbitrator, board, body, branch,
bureau, commission, corporation, court, department, instrumentality, master,
mediator, panel, referee, system or other political unit or subdivision or other
entity of any of the foregoing, whether domestic or foreign, having the force of
law.
"Base Rate" means the rate of interest from time to time
announced publicly by JPMorgan in Chicago, Illinois as JPMorgan's base rate. The
Base Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer of JPMorgan.
"Benefit Arrangement" means an employee benefit plan within
the meaning of Section 3(3) of ERISA which is subject to the provisions of Title
I of ERISA and is not a Plan or a Multiemployer Plan and which is maintained or
otherwise contributed to by any member of the ERISA Group.
"Borrower" shall have the meaning assigned to such term in the
introduction to this Agreement.
"Borrower Obligations" means all indebtedness, whether
absolute, fixed or contingent, at any time or from time to time owing by the
Borrower to any Secured Party under or in connection with this Agreement, the
Advance Notes, the Control Agreement or any other Program Document, including
without limitation, all amounts payable by the Borrower in respect of the
Advances, with interest thereon, and the amounts payable under Sections 2.05,
2.06, 2.07, 2.08, 2.09, 2.11, 2.12, 2.13, 7.04(b), 9.03 and 9.04 of this
Agreement. For the avoidance of
5
doubt, Borrower Obligations do not include indebtedness owing by the Borrower to
State Street Bank and Trust Company in its capacity as Custodian.
"Borrower's Account" means the account of the Borrower
(Account No. ▇▇▇▇▇▇▇▇, ABA No. 011-000-028) maintained with the Custodian or
such other account as the Borrower shall from time to time designate in writing
to the Program Agent.
"Borrowing Base" means on the date any determination thereof
is made, an amount equal to (i) the aggregate Adjusted Asset Value of all
Eligible Collateral as of such date of determination minus (ii) the Borrowing
Base Excess Amount as of such date of determination.
"Borrowing Base Eligible Asset" means Cash, any Eligible Loan
Asset, any Eligible Commercial Paper Note and any Eligible Government Security
which the Borrower is permitted to purchase in accordance with the Investment
Policies and Restrictions which are free and clear of all Adverse Claims;
provided, that such Asset does not constitute (i) a Derivative Transaction,
Modified Margin Stock, an Equity Security, a Non-OECD Loan Asset, a Class D Loan
Asset, a Foreign Security System Asset or a Foreign Currency Asset, (ii) an
Asset which is the subject of a reverse repurchase agreement, dollar roll,
securities lending transaction or other Derivatives Transaction (other than
Derivatives Transactions entered into solely to protect against interest rate
risk which have not been entered into for speculative purposes), including,
without limitation, any cash or other Asset maintained in a segregated account
with the Custodian relating to any outstanding reverse repurchase agreement
entered into by the Borrower; or (iii) an Asset held by a sub-custodian of the
Custodian which is not located in the United States.
"Borrowing Base Excess Amount" means as of any date any
determination thereof is made, an amount equal to the sum (without duplication)
of:
(i) the amount by which the aggregate Adjusted Asset
Value of all Eligible Collateral (other than Cash and Eligible
Government Securities) issued or Guaranteed by any Person
(together with all Affiliates of such Person), exceeds three
percent (3%) of the aggregate Adjusted Asset Value of all
Eligible Collateral;
(ii) the amount by which the aggregate Adjusted Asset
Value of all Eligible Collateral issued or Guaranteed by
Persons in a single Industry Class, exceeds fifteen percent
(15%) of the aggregate Adjusted Asset Value of all Eligible
Collateral;
(iii) the amount by which the aggregate Adjusted Asset
Value of all Eligible Collateral which constitute Foreign Loan
Assets exceeds ten percent (10%) of the aggregate Adjusted
Asset Value of all Eligible Collateral;
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(iv) the amount by which the aggregate Adjusted Asset
Value of all Eligible Collateral which constitutes Distressed
Loan Assets exceeds ten percent (10%) of the aggregate
Adjusted Asset Value of all Eligible Collateral;
(v) the amount by which the aggregate Adjusted Asset
Value of all Loan Assets which constitute Eligible Collateral
which have a scheduled final maturity date later than the
eighth (8th) anniversary of the Origination Date of such Loan
Assets, exceeds fifteen percent (15%) of the aggregate
Adjusted Asset Value of all Eligible Collateral;
(vi) the amount by which the aggregate Adjusted Asset
Value of all Loan Assets which constitute Eligible Collateral
which constitute participation interests purchased or
otherwise acquired from any Selling Institution (together with
all Affiliates of such Selling Institution), exceeds ten
percent (10%) of the aggregate Adjusted Asset Value of all
Eligible Collateral;
(vii) the amount by which the aggregate Adjusted Asset
Value of all Eligible Collateral which constitutes Unsecured
Loan Assets exceeds fifteen percent (15%) of the aggregate
Adjusted Asset Value of all Eligible Collateral;
(viii) the amount by which the aggregate Adjusted Asset
Value of all Eligible Collateral which constitutes Loan Assets
in respect of which the interest payable on the principal
amount thereof is not calculated by reference to a Floating
Rate, exceeds ten percent (10%) of the aggregate Adjusted
Asset Value of all Eligible Collateral; and
(ix) the aggregate maximum commitments of the Borrower
to fund future advances or extensions of credit under the Loan
Documents relating to the Pledged Collateral.
"Borrowing Base Test" means as of any Determination Date, that
the Borrowing Base shall be equal to or greater than Credits Outstanding.
"Borrowing Date" shall have the meaning assigned to such term
in Section 2.02.
"Business Day" means any day on which (i) banks are not
authorized or required to close in Chicago, Illinois and the New York Stock
Exchange is not authorized or required to close, and (ii) if this definition of
"Business Day" is utilized in connection with a Eurodollar Rate Advance,
dealings are carried out in the London interbank market.
"Cash" means a demand deposit of United States Dollars
immediately available on the day in question in an account maintained by the
Custodian.
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"Chariot" means Chariot Funding LLC, together with its
successors and assigns that constitute special purpose entities managed by
JPMorgan.
"Class A Loan Asset" means as of any date of determination, a
Borrowing Base Eligible Asset which (i) is a Loan Asset, (ii) is not a
Distressed Loan Asset, and (iii) has an Asset Value which is at least ninety
percent (90%) of its par value as of such date of determination.
"Class B Loan Asset" means as of any date of determination, a
Borrowing Base Eligible Asset which (i) is a Loan Asset, (ii) is not a
Distressed Loan Asset, and (iii) has an Asset Value which is less than ninety
percent (90%) of its par value as of such date of determination.
"Class C Loan Asset" means as of any date of determination, a
Borrowing Base Eligible Asset which (i) is a Distressed Loan Asset, and (ii) has
an Asset Value which is at least ninety percent (90%) of its par value as of
such date of determination.
"Class D Loan Asset" means as of any date of determination, a
Loan Asset which (i) is a Distressed Loan Asset, and (ii) has an Asset Value
which is less than ninety percent (90%) of its par value as of such date of
determination.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute.
"Collateral Account" means account number BO041427, ABA Number
▇▇▇-▇▇▇-▇▇▇ and account number JL20, ABA Number ▇▇▇-▇▇▇-▇▇▇ established at State
Street Bank and Trust Company each entitled "VKSLF-JPMorgan as Secured Party".
"Compliance Certification Date" shall have the meaning
assigned to such term in Section 2.05(b).
"Conduit Lenders" means each of Chariot and the Trust,
together with their respective successors and assigns.
"Control Agreement" means the Control and Collateral Agency
Agreement, dated as of November 17, 2003 among the Borrower, the Program Agent
and the Custodian, as the same may from time to time be amended, supplemented,
waived or modified.
"CP Rate" for each day during a Settlement Period for any
Advance means to the extent a Conduit Lender funds such Advance on such day, the
per annum rate notified by the Trust or Chariot, or by Jupiter with respect to
the Trust, to the Program Agent for such Advance, which rate shall (a) reflect
the actual cost of funds to such Conduit Lender (other than the Trust) of making
and maintaining such Advance on such day, or Jupiter of purchasing and
maintaining the portion of the Subject JUSI relating to such Advance on such
day, including fees payable by or on behalf of such Conduit Lender or Jupiter
with respect to the Trust to any dealer or placement agent in respect of
commercial paper notes issued by such Conduit Lender to fund such Advance, or
commercial paper notes issued by Jupiter to purchase and maintain the portion of
the Subject JUSI relating to such Advance, respectively, and (b) be calculated
in the manner in which such Conduit Lender and Jupiter typically calculates its
cost of funds in similar
8
transactions; provided, however, that if any component of such rate is a
discount rate, in calculating the "CP Rate" for such day, the Program Agent
shall for such component use the rate resulting from converting such discount
rate to an interest bearing equivalent rate per annum.
"Credits Outstanding" means at any time a determination
thereof is made, an amount equal to the sum of (i) the outstanding principal
amount of all Advances, plus (ii) the Yield that would accrue on the aggregate
outstanding principal amount of the Advances through the sixty (60) day period
following such date of determination, computed by reference to the Assignee Rate
based upon the applicable Eurodollar Rates for a thirty (30) day period in
effect as of the time of determination, plus (iii) the Aggregate Custodian's
Advance Amount.
"Custodial Agreement" means the Custodian Contract dated as of
August 1, 1997 between the Borrower and the Custodian, as the same may from time
to time be amended, supplemented, waived or modified as permitted under the
Program Documents.
"Custodian" means State Street Bank and Trust Company, as
custodian, securities intermediary and collateral agent under the Custodial
Agreement and the Control Agreement, and its permitted successors and assigns.
"Custodian's Overdraft Advances" means any advance of cash,
assets or securities by the Custodian to or for the benefit of the Borrower
pursuant to or in connection with the Custodial Agreement.
"Debt" means with respect to any Person, at any date, without
duplication, (i) all "senior securities representing indebtedness" (as defined
in Section 18(g) of the Investment Company Act), (ii) all obligations of such
Person for borrowed money, including without limitation, all obligations of such
Person which are evidenced by letters of credit or letter of credit
reimbursement, (iii) all obligations of such Person evidenced by bonds,
debentures, notes, acceptances or other similar instruments, (iv) all
obligations of such Person to pay the deferred purchase price of property or
services, (v) all obligations of such Person as lessee which are capitalized in
accordance with GAAP, (vi) all Debt of others secured by a Lien on any asset of
such Person, whether or not such Debt is assumed by such Person, (vii) payment
obligations, fixed or contingent, under investment, financial derivative or
similar contracts (other than covered short sales), (viii) all Debt of others
Guaranteed by such Person, and (ix) to the extent not otherwise included, all
items which in accordance with GAAP would be included in determining total
liabilities as shown on the liabilities side of such Person's balance sheet.
"Default" means any event which, with the passage of time, the
giving of notice, or both, would constitute an Event of Default.
"Defaulting Banks" means any Secondary Lender that (i)
defaults in its obligation to make any Advance pursuant to Section 2.02, or (ii)
in its capacity as a purchaser under the Asset Purchase Agreement, defaults in
its obligation to purchase any interest in any Advance under the Asset Purchase
Agreement.
"Derivatives Transaction" means any financial futures
contract, option, forward contract, warrant, swap, swaption, collar, floor, cap
and other agreement, instrument and
9
derivative and other transactions of a similar nature (whether currency
linked, index linked, insurance risk linked, credit risk linked or otherwise).
"Determination Date" means (i) each Borrowing Date, (ii) each
Weekly Determination Date, (iii) each date any Restricted Payment is made or any
Permitted Senior Security is issued, and (iv) during the continuance of an Event
of Default, each Business Day which the Program Agent may, or upon the direction
of the Majority Banks, shall, designate as a "Determination Date" (which may be
daily).
"Distressed Loan Asset" means a Loan Asset (i) the Obligor of
which is the subject of a bankruptcy, insolvency, liquidation or other similar
proceedings, (ii) which is in default (unless cured or waived) beyond the
applicable grace periods, if any, as to payment of principal or interest or
other amount owing under the applicable Loan Documents; provided, however, that
if such Loan Asset is past due as to the payment of principal or interest or
otherwise for a period of time equal to or greater than forty-five (45)
consecutive days, such Loan Asset shall be deemed to constitute a Distressed
Loan Asset regardless of whether or not the applicable grace period in respect
of such Loan Asset has expired, (iii) which is otherwise classified by the
Adviser or the Borrower as "non-performing", (iv) in respect of which the
related Obligor is rated "Caa" or lower by Moody's or "CCC" or lower by S&P or
which, if unrated, are in the reasonable judgment of the Adviser, of equivalent
credit quality, (v) which is not part of a senior credit facility, or (vi) which
is otherwise not classified as a "Senior Loan" by the Adviser.
"Dollars" and "$" mean lawful money of the United States of
America.
"Eligible Assignee" means JPMorgan, any of its Affiliates, any
Person managed by JPMorgan or any of their respective Affiliates, or any
financial or other institution acceptable to the Program Agent.
"Eligible Collateral" means at any time the Pledged Collateral
which constitutes Borrowing Base Eligible Assets.
"Eligible Commercial Paper Note" means a promissory note
issued in the commercial paper market by an obligor having its principal office
in the United States, having a maturity of not more than 270 days and which (i)
if rated by both S&P and ▇▇▇▇▇'▇ is rated at least "A-1" by S&P and at least
"P-1" by Moody's, and (ii) if rated by S&P or Moody's (but not both), is rated
at least "A-1" by S&P or at least "P-1" by Moody's.
"Eligible Government Securities" means all "Government
Securities" (as defined in the Investment Company Act and which for the purposes
hereof shall include any securities issued or guaranteed as to principal and
interest by an agency of the government of the United States) held in an account
maintained by the Custodian.
"Eligible Loan Asset" at any time means a Loan Asset:
(i) with respect to which the interest payable on the
principal amount thereof by the related Obligor is payable in cash;
10
(ii) in respect of which the Borrower's interest is not a
subparticipation;
(iii) which has a scheduled final maturity date no later than
the tenth (10th) anniversary after the related Origination Date;
(iv) which is part of a senior credit facility, with respect
to which such Loan Asset is not by its terms subordinated (pursuant to
contractual provisions or otherwise) to the prior payment of any other
liabilities or any equity interests of the related Obligor;
(v) which is part of a syndicated credit facility where the
sum of the aggregate revolving loan commitment amount plus the aggregate
outstanding principal amount of all loans under such facility on the
Origination Date of such Loan Asset is at least equal to $100,000,000;
(vi) which relates to Loan Documents in which the Borrower's
interest (direct or participating) in the aggregate outstanding principal
amount of all loans thereunder is no greater than thirty-three and
one-third percent (33.33%);
(vii) in respect of which the related Loan Documents are not
subject to any confidentiality arrangement which would preclude the Program
Agent from reviewing such Loan Documents;
(viii) in which the Borrower's interest in all collateral
security therefor and principal and interest payments thereunder is no less
than pro rata and pari passu with all other lenders thereunder or
participants therein, as the case may be;
(ix) in respect of which the credit rating of the related
Transaction Agent or its controlling Affiliate is no less than "A-" from
S&P or "A3" from Moody's;
(x) in respect of which, if the Borrower's interest therein is
that of a participant, the credit rating of the related Selling Institution
is no less than "A-" from S&P and "A3" from Moody's; and
(xi) the pledge of which under Article VII of this Agreement,
would not conflict with or constitute a default under or be prohibited by
any anti-assignment or other provisions contained in the related Loan
Documents, except for anti-assignment provisions rendered ineffective by
applicable law.
"E-Mail Report" shall have the meaning assigned to such term
in Section 9.16.
"Equity Securities" means common and preferred stock,
warrants, membership interests or partnership interests and securities that are
convertible into common or preferred stock, membership interests or partnership
interests, including without limitation common stock purchase warrants and
rights, equity interests in trusts, partnerships, limited liability companies,
joint ventures or similar enterprises.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
11
"ERISA Group" means the Borrower and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Section 414(b), (c), (m) or (n) of the Code.
"Eurocurrency Liabilities" shall have the meaning assigned to
such term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Additional Yield" means additional Yield on the
outstanding principal of each Advance during the Settlement Period in respect of
such Advance in respect of which Yield is computed by reference to the
Eurodollar Rate, for such Settlement Period, at a rate per annum equal at all
times during such Settlement Period to the remainder obtained by subtracting (i)
the Eurodollar Rate for such Settlement Period from (ii) the rate obtained by
dividing such Eurodollar Rate referred to in clause (i) above by that percentage
equal to one-hundred percent (100%) minus the Eurodollar Rate Reserve Percentage
of the applicable Lender (other than the Conduit Lenders) or Secondary Lender
for such Settlement Period.
"Eurodollar Rate" means, in respect of any Advance for any
Settlement Period, an interest rate per annum equal to the rate per annum at
which deposits in Dollars are offered by the principal office of JPMorgan in
London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two (2) Business Days before the first day of such Settlement
Period in an amount substantially equal to the outstanding principal amount of
such Advance on such first day and for a period equal to such Settlement Period.
"Eurodollar Rate Advance" means an Advance the Yield on which
is computed with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" for any Settlement Period
for any Eurodollar Rate Advance means the reserve percentage applicable during
such Settlement Period under regulations issued from time to time by the Board
of Governors of the Federal Reserve System (or any successor) (or if more than
one such percentage shall be applicable, the daily average of such percentages
for those days in such Settlement Period during which any such percentage shall
be so applicable) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for any applicable Lender (other than the Conduit Lenders) or
Secondary Lender with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency
Liabilities is determined) having a term comparable to such Settlement Period.
"Event of Default" means any of the events, acts or
occurrences set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, all as from time
to time in effect, or any successor law, rules or regulations, and any reference
to any statutory or regulatory provision shall be deemed to be a reference to
any successor statutory or regulatory provision.
12
"Existing Credit Agreement" shall have the meaning assigned to
such term in the introduction to this Agreement.
"Facility" shall have the meaning assigned to such term in
Section 9.09.
"Fee Letter" means that certain second amended and restated
letter agreement dated the date hereof between the Borrower and the Program
Agent, as the same may from time to time be amended, supplemented, waived or
modified.
"Floating Rate" means an interest rate calculated by reference
to the prime rate, the London interbank offered rate, the certificate of deposit
rate, the federal funds rate or any other per annum rate commonly referred to in
the United States banking industry as a "floating rate".
"Foreign Currency Asset" means any Asset which is denominated
or payable in a currency other than Dollars.
"Foreign Loan Asset" means any Loan Asset the Obligor of which
is organized under the laws of any OECD Country (other than the United States of
America).
"Foreign Security System Asset" shall have the meaning
assigned to such term in Section 3(a) of the Control Agreement.
"GAAP" means generally accepted accounting principles in the
United States, in effect from time to time.
"Governmental Authorizations" means all franchises, permits,
licenses, approvals, consents and other authorizations of all Authorities.
"Governmental Filings" means all filings, including franchise
and similar tax filings, and the payment of all fees, assessments, interests and
penalties associated with such filing with all Authorities.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Indemnified Party" shall have the meaning assigned to such
term in Section 9.04(b).
13
"Industry Class" means, for purposes of computing the
Borrowing Base, each industry class as determined by applying, in separate
tests, the classification categories provided by Moody's, or, in the event that
Moody's does not classify a particular Person, as classified by the Adviser
based upon the Moody's industry classifications.
"Investment Company Act" means the Investment Company Act of
1940, as amended, and the rules and regulations of the SEC thereunder, as
modified or interpreted by orders of the SEC, or other interpretative releases
or letters issued by the SEC or its staff, all as from time to time in effect,
or any successor law, rules or regulations, and any reference to any statutory
or regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
"Investment Policies and Restrictions" means the provisions
dealing with investment policies, distributions, investment restrictions, tender
offers, repurchases, leverage and diversification status as set forth in the
Prospectus, as modified in accordance with Section 5.02(i).
"Investor Report" means the Investor Report of the Borrower
substantially in the form of Schedule I hereto.
"▇▇ ▇▇▇▇▇▇" means JPMorgan Chase Bank, N.A. and its
successors.
"Jupiter" means Jupiter Securitization Company LLC, a Delaware
limited liability company, and its successors and assigns.
"Jupiter Purchase Agreement" means that certain Master JUSI
Purchase and Sale Agreement dated as of August 3, 2007, by and among the Trust,
JPMorgan, as administrative trustee, the institutions from time to time parties
thereto as lenders, and JPMorgan, as funding agent.
"JUSI Certificate" means any certificate issued by the Trust
to Jupiter evidencing all or any portion of the Subject JUSI.
"Law" means any action, code, consent decree, constitution,
decree, directive, enactment, finding, guideline, law, injunction,
interpretation, judgment, order, ordinance, policy statement, proclamation,
promulgation, regulation, requirement, rule, rule of law, rule of public policy,
settlement agreement, statute, or writ, of any Authority, or any particular
section, part or provision thereof.
"Lenders" means the Conduit Lenders, together with all Persons
which acquire or are obligated to acquire any interest in any Advance from the
Conduit Lenders under an Asset Purchase Agreement or under any similar
arrangement.
"Letter Agreement" means the Letter Agreement dated as of
November 17, 2003 from the Adviser to the Program Agent on behalf of the Secured
Parties, as the same may from time to time be amended, supplemented, waived or
modified.
14
"Leverage Purposes" means for the purpose of (i) purchasing
Assets, (ii) paying principal and Yield in respect of outstanding Advances, or
(iii) for general corporate purposes.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien or security interest (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement) and any financing lease
having substantially the same economic effect as any of the foregoing.
"Liquidation Fee" means, in respect of any Advance for any
Settlement Period which is funded by a Conduit Lender during which the principal
on such Advance is repaid by the Borrower in whole or in part, upon less than
two (2) Business Days prior written notice of such repayment, prior to the end
of said Settlement Period, the amount, if any, by which (i) the additional Yield
(calculated without taking into account any Liquidation Fee or any shortened
duration of such Settlement Period) which would have accrued during such
Settlement Period on the reduction of the outstanding principal amount of such
Advance relating to such Settlement Period had such reductions remained as
outstanding principal, exceeds (ii) that income, if any, received by such
Conduit Lender's investing the proceeds of such reductions of principal.
"Loan Asset" means a direct or participation or
subparticipation interest in or assignment or novation of a loan or other
extension of credit.
"Loan Documents" means with respect to any Loan Asset, each
loan agreement, promissory note, collateral security agreement, participation
certificate, guarantee and any other agreement or document evidencing, securing,
governing or executed in connection with such Loan Asset, including without
limitation, the agreements and instruments in respect of which the Borrower
acquired such Loan Asset.
"Majority Banks" means, as of any determination date (i) if on
such determination date, any Secondary Lender in its capacity as a purchaser
under the Asset Purchase Agreement has a commitment to purchase additional
interests in Advances from a Conduit Lender under the Asset Purchase Agreement,
such Secondary Lenders whose Commitments (as defined in the Asset Purchase
Agreement) aggregate in excess of fifty percent (50%) of the aggregate
Commitments under the Asset Purchase Agreement; provided, that, the Commitments
of any Defaulting Bank shall be excluded from the computation of Majority Banks,
(ii) if on such determination date no Secondary Lender in its capacity as a
purchaser under the Asset Purchase Agreement has any commitment to purchase
additional interests in Advances from a Conduit Lender under the Asset Purchase
Agreement, the Persons with Advances, the outstanding principal amount of which
exceeds fifty percent (50%) of the outstanding principal amount of all Advances;
provided, that if on any determination date there are multiple Secondary Lenders
which are not Defaulting Banks and the Majority Banks on such determination date
as determined by clause (i) or clause (ii) above, as applicable, is a single
entity (for such purpose treating JPMorgan and the Conduit Lenders (if the
Conduit Lenders are administered by JPMorgan) as a single entity) (the
"Controlling Bank"), then the term "Majority Banks" shall be deemed to mean such
Controlling Bank and at least one other Secondary Lender which is not a
Defaulting Bank.
15
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means a (i) material adverse effect
on the ability of the Borrower to perform its obligations under this Agreement
or the Control Agreement or to perform any material obligation under any other
Program Document to which it is a party or any Loan Document, (ii) a material
adverse effect on any Secured Party's right, title and interest in the Pledged
Collateral or on the rights and remedies of any Secured Party under any Program
Document, (iii) a material adverse effect on the validity or enforceability of
this Agreement or any other Program Document to which the Borrower is a party or
any Loan Document, (iv) a material adverse effect on the business, financial
condition, operations, Assets or properties of the Borrower, (v) a material
Adverse Claim on any of the Assets of the Borrower, or (vi) a Default or Event
of Default.
"Maturity Date" means (1) in respect of any Advance designated
by the Borrower in the Notice of Borrowing delivered in connection with such
Advance to be used solely for Short-Term Purposes, the earlier of (i) the date
which is sixty (60) days following the Borrowing Date of such Advance (or if
such day is not a Business Day, the Business Day immediately preceding such
date), and (ii) the Termination Date (or if such day is not a Business Day, the
Business Day immediately preceding such date), or (2) with respect to any
Advance designated by the Borrower in the Notice of Borrowing delivered in
connection with such Advance to be used solely for Leverage Purposes, the
earlier of (i) the date which is one (1) year following the Borrowing Date of
such Advance (or if such day is not a Business Day, the Business Day immediately
preceding such date), and (ii) the Termination Date (or if such day is not a
Business Day, the Business Day immediately preceding such date).
"Modified Margin Stock" shall mean "Margin Stock" as defined
in Regulation U (without giving effect to the exclusions from such definition in
clauses (5)(i) through (5)(iv) thereof).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., together with
its successors.
"Multiemployer Plan" means an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA.
"Non-Funding Notice" shall have the meaning assigned to such
term in Section 2.02.
"Non-OECD Loan Asset" means any Loan Asset the Obligor of
which is organized outside of any OECD Country.
"Notice of Borrowing" shall have the meaning assigned to such
term in Section 2.02.
"Notice of Exclusive Control" shall have the meaning assigned
to such term in the Control Agreement.
16
"Obligor" means in respect of any Loan Asset, the Person
primarily obligated under the related Loan Documents to repay the loan or
extension of credit which is the subject of such Loan Asset.
"OECD Country" means any country which is a member of the
Organization for Economic Cooperation and Development and which has a sovereign
credit rating for "foreign currency" of at least "AA-" and "Aa3" from S&P and
Moody's, respectively.
"Original Credit Agreement" shall have the meaning assigned to
such term in the introduction to this Agreement.
"Origination Date" means in respect of any Loan Asset the
initial date on which the proceeds of the loan or other extension of credit
which is the subject of such Loan Asset was advanced to the Obligor under the
related Loan Documents.
"Other Taxes" shall have the meaning assigned to such term in
Section 9.03(b).
"Parent" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., together with its
successors.
"Permitted Debt" means (i) Debt arising under this Agreement
or the other Program Documents to the Secured Parties, (ii) Debt in favor of the
Custodian relating to Custodian's Overdraft Advances incurred in the ordinary
course of the Borrower's business, which are not overdue and which do not exceed
the amount permitted by Section 5.02(o), (iii) fee and expense obligations to
the Custodian and other similar agents which are providing services in respect
of the Borrower's Assets arising in the ordinary course of the Borrower's
business which are not overdue for a period in excess of thirty (30) days, (iv)
Debt (other than Debt for borrowed money) arising in connection with
transactions in the ordinary course of the Borrower's business in connection
with its purchasing of securities, Derivatives Transactions or dollar rolls to
the extent such transactions are permitted under the Investment Company Act and
the Investment Policies and Restrictions, (v) obligations of the Borrower to
fund future extensions of credit under the Loan Documents relating to its Loan
Assets which do not exceed twenty percent (20%) of the aggregate Asset Value of
the Borrower's Assets and which meet the Borrower's diversification requirements
set forth in the Prospectus, which are not overdue, (vi) Debt representing
accrued expenses and current trade account payables incurred in the ordinary
course of the Borrower's business which are not overdue for a period beyond the
customary practices in the industry or which are being diligently contested in
good faith, (vii) Debt in respect of judgments or awards that have been in force
for less than the applicable period for taking an appeal so long as such
judgments or awards do not constitute an Event of Default and so long as
execution is not levied thereunder or in respect of which the Borrower (A) shall
at the time in good faith be diligently prosecuting an appeal or proceeding for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review, or (B) shall have obtained an unsecured
performance bond in respect of such judgment or award, and (viii) Debt arising
in connection with reverse repurchase agreements which are permitted under the
Investment Company Act and the Investment Policies and Restrictions and which
have been entered into in the ordinary course of the Borrower's business.
17
"Permitted Liens" means (a) in respect of any Asset of the
Borrower, (i) Liens of any Secured Party created by or pursuant to this
Agreement or the Control Agreement, (ii) Liens of the Custodian securing the
Custodian's Overdraft Advances to the extent such Custodian's Overdraft Advances
do not exceed the amount permitted by Section 5.02(o), (iii) Liens of the
Custodian which are by the terms of the Control Agreement expressly subordinated
to the payment of the Borrower Obligations, and (iv) Liens (other than
non-possessory Liens which pursuant to applicable law are, or may be, entitled
to take priority (in whole or in part) over prior, perfected liens and security
interests) with respect to taxes, assessments and other governmental charges or
levies for amounts not yet due or which are being contested in good faith by
appropriate proceedings diligently conducted and with respect to which adequate
reserves have been set aside in accordance with GAAP, provided that enforcement
of such Liens is stayed pending such contest, and (b) in respect of any Asset of
the Borrower other than any Pledged Collateral (i) Liens incidental to the
conduct of the Borrower's business securing the performance of fee and expense
obligations to the Custodian and other similar agents which are providing
services in respect of the Borrower's Assets arising in the ordinary course of
the Borrower's business which are not overdue for a period in excess of thirty
(30) days, and (ii) Liens in respect of Debt permitted under clauses (iv) and
(viii) of the definition of Permitted Debt.
"Permitted Senior Securities" means "senior securities" within
the meaning of the Investment Company Act which constitute Advances under this
Agreement, Derivatives Transactions, repurchase transactions, reverse repurchase
transactions, preferred shares or commitments of the Borrower to fund future
advances or other extensions of credit under any Loan Document, to the extent
the issuance of any such senior security by the Borrower is not in contravention
of the Investment Company Act or the Investment Policies and Restrictions.
"Person" means an individual or a corporation (including a
business trust), partnership, trust, incorporated or unincorporated association,
joint stock company, limited liability company, government (or an agency or
political subdivision thereof) or other entity of any kind.
"Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code.
"Pledged Collateral" shall have the meaning assigned to such
term in Section 7.01.
"Post-Default Rate" means in respect of all amounts payable to
any Secured Party under any Program Document not paid when due (whether at
stated maturity, by acceleration or otherwise), including, without limitation,
the principal and Yield on any Advance not paid when due, a rate per annum
during the period commencing on the due date until such amount is paid in full
equal to the applicable Base Rate as in effect from time to time plus two (2)
percent (2%).
"Preliminary Borrowing Notice" shall have the meaning assigned
to such term in Section 2.02.
18
"Private Authorizations" means all franchises, permits,
licenses, approvals, consents and other authorizations of all Persons (other
than Authorities) including, without limitation, those with respect to
trademarks, service marks, trade names, copyrights, computer software programs,
technical and other know-how.
"Proceeds" shall have, with reference to any asset or
property, the meaning assigned to it under the UCC and, in any event, shall
include, but not be limited to, any and all amounts from time to time paid or
payable under or in connection with such asset or property.
"Product Information" shall have the meaning assigned to such
term in Section 9.09(a).
"Program Agent" shall have the meaning assigned to such term
in the introduction to this Agreement.
"Program Agent's Account" means the special account of the
Conduit Lenders (Account No. 51-14810, ABA No. ▇▇▇▇▇▇▇▇▇, Reference: VK Senior
Loan Fund) maintained at the principal office of JPMorgan or such account of the
Program Agent which the Program Agent has designated in writing to the other
parties hereto.
"Program Documents" means this Agreement, the Advance Notes,
the Letter Agreement, the Asset Purchase Agreement, the Control Agreement,
Advisory Agreement, the Custodial Agreement, the Fee Letter, the Loan Documents,
the Jupiter Purchase Agreement and the other agreements, documents and
instruments entered into or delivered in connection herewith or therewith.
"Program Termination Date" means the later to occur of (i) the
Termination Date, and (ii) the date that all Borrower Obligations have been
finally paid in full; provided, however, that if any payment in respect of any
Borrower Obligation made to any Secured Party must be rescinded or returned for
any reason whatsoever (including the insolvency or bankruptcy of the Borrower)
such Borrower Obligation shall be deemed to be reinstated as though such payment
had not been made and the Program Termination Date shall be deemed to have not
occurred.
"Prospectus" means with respect to the Borrower the prospectus
dated November 30, 2005 filed with the SEC as a part of the Borrower's
registration statement on Form N-2, as amended (or any successor SEC form), and
shall include, without limitation, the related statement of additional
information, if any, included in such registration statement, and all
supplements, amendments and modifications thereto as of the Restatement
Effective Date, and as further supplemented, amended or modified in accordance
with Applicable Law, including, without limitation, the Securities Act and the
Investment Company Act.
"Regulation T" means Regulation T of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
19
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Requested Amount" shall have the meaning assigned to such
term in Section 2.02.
"Responsible Officer" means in respect of any Person, the
president, any vice president, the chief financial officer, controller,
treasurer or any assistant treasurer; provided, that the Program Agent shall
have received a manually signed certificate of the Secretary or Assistant
Secretary of such Person as to the incumbency of, and bearing a manual specimen
signature of, such duly authorized officer.
"Restatement Effective Date" means the first date on which the
conditions precedent specified in Section 3.03 have been fully satisfied.
"Restricted Payments" means (a) the declaration of any
distribution or dividends (other than distributions payable solely in shares of
beneficial interest in the Borrower) on, or the payment on account of, or the
setting apart of assets for the purchase, redemption, retirement or other
acquisition of, any shares of beneficial interests in the Borrower, including,
without limitation, all common and preferred shares, whether now or hereafter
outstanding, either directly or indirectly, whether in cash, property or in
obligations of the Borrower, and (b) the payment of fees and expenses to the
Adviser or any Affiliate of the Adviser as compensation for the provision of
managerial, administrative services or otherwise.
"S&P" means Standard & Poor's Ratings Group, together with its
successors.
"SEC" means the Securities and Exchange Commission or any
other governmental authority of the United States of America at the time
administrating the Securities Act, the Investment Company Act or the Exchange
Act.
"Secondary Lender Commitment" means (a) with respect to each
Secondary Lender party to this Agreement on the Restatement Effective Date, the
amount set forth on the signature page to this Agreement in respect of such
Secondary Lender, as such amount shall be adjusted by any Assignment and
Acceptance entered into between such Secondary Lender and an Eligible Assignee
in accordance with and subject to Section 9.06(b), or (b) with respect to a
Secondary Lender that has entered into an Assignment and Acceptance, the amount
set forth therein as such Secondary Lender's "Secondary Lender Commitment", in
each case as such amount may be reduced by an Assignment and Acceptance entered
into between such Secondary Lender and an Eligible Assignee in accordance with
and subject to Section 9.06(b), and as may be further reduced (or terminated)
pursuant to the next sentence. Any reduction (or termination) of the Total
Commitment pursuant to the terms of this Agreement shall reduce ratably (or
terminate) each Secondary Lender's Secondary Lender Commitment.
"Secondary Lender Percentage" of any Secondary Lender means,
(a) with respect to each Secondary Lender party to this Agreement on the
Restatement Effective Date, the percentage set forth on the signature page to
this Agreement in respect of such Secondary Lender, as such percentage shall be
reduced by any Assignment and Acceptance entered into by
20
such Secondary Lender with an Eligible Assignee in accordance with and subject
to Section 9.06(b), or (b) with respect to a Secondary Lender that has entered
into an Assignment and Acceptance, the percentage set forth therein as such
Secondary Lender's Secondary Lender Percentage, as such percentage shall be
reduced by an Assignment and Acceptance entered into between such Secondary
Lender and an Eligible Assignee in accordance with and subject to Section
9.06(b).
"Secondary Lender Stated Expiration Date" means July 29, 2009,
unless, prior to such date (or the date so extended pursuant to this clause),
upon the Borrower's request, made not more than sixty (60) days nor less than
thirty (30) days prior to the then current Secondary Lender Stated Expiration
Date, one or more Secondary Lenders having 100% of the Total Commitment shall in
their sole discretion consent, which consent shall be given not less than twenty
(20) days prior to the then current Secondary Lender Stated Expiration Date (the
date any such consent is given, the "Extension Date"), to the extension of the
Secondary Lender Stated Expiration Date to the date occurring 364 days after
such Extension Date; provided, however, that any failure of any Secondary Lender
to respond to the Borrower's request for such extension shall be deemed a denial
of such request by such Secondary Lender.
"Secondary Lenders" means JPMorgan, State Street Bank and
Trust Company, The Bank of New York Mellon (in their capacities as lenders under
this Agreement) and each Eligible Assignee that becomes a party to this
Agreement pursuant to and in accordance with the requirements of Section
9.06(b).
"Secured Parties" means the Program Agent, the Lenders, the
Secondary Lenders and their respective successors and assigns.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any
statutory or regulatory provisions shall be deemed to be a reference to any
successor statutory or regulatory provision.
"Selling Institution" means in respect of any Loan Asset which
constitutes a participation interest, the Person which has granted or sold to
the Borrower a participation interest in the loan or other extension of credit
which is the subject of such Loan Asset.
"Settlement Date" means the date which is the twelfth (12th)
day of each calendar month, or if such day is not a Business Day, the next
succeeding Business Day; provided, that, for purposes of the payment of Yield,
with respect to any Settlement Period for which Yield is computed by reference
to the Eurodollar Rate, the Settlement Date shall be the last day of such
Settlement Period, or if such day is not a Business Day, the next succeeding
Business Day.
"Settlement Period" means in respect of any Advance:
(a) in the case of any Settlement Period in respect of which
Yield in respect of such Advance is computed by reference to the CP Rate,
the period beginning on the date such Advance was made and ending on the
last day of the calendar month in which such Advance was made and
thereafter each successive period commencing on the first day of
21
each calendar month during the term of this Agreement and ending on the
last day of such calendar month during the term of this Agreement;
provided, however, that in the case of any Settlement Period for any
Advance which commences before the Maturity Date for such Advance and
would otherwise end on a date occurring after such Maturity Date, such
Settlement Period shall end on such Maturity Date and the duration of
each Settlement Period which commences on or after the Maturity Date
for such Advance may be any period (including, without limitation, a
period of one day) as shall be selected from time to time by the
Program Agent;
(b) in the case of any Settlement Period in respect of which
Yield in respect of such Advance is computed by reference to the Eurodollar
Rate, the period beginning on the date such Advance was made and ending on
the last day of the calendar month in which such Advance was made and
thereafter each successive period commencing on the first day of each
calendar month during the term of this Agreement and ending on the last day
of such calendar month during the term of this Agreement; provided,
however, that any Settlement Period which is other than the monthly
Settlement Period shall be of such duration as shall be selected by the
Program Agent; and
(c) in the case of any Settlement Period in respect of which
Yield is computed by reference to the Alternate Base Rate, such Settlement
Period shall be of such duration as shall be selected by the Program Agent.
"Short-Term Purposes" means for the purpose of short-term
liquidity and other temporary emergency purposes, which purposes are permitted
under and in compliance with the Investment Company Act and by the Borrower's
Prospectus.
"Specified Loan Documents" shall have the meaning assigned to
such term in the Control Agreement.
"Subject JUSI" means Jupiter's beneficial interest in the
Advances maintained by the Trust and in the Trust's rights and remedies under
this Agreement and the other Program Documents, which interest was purchased by
Jupiter pursuant to the Jupiter Purchase Agreement.
"Taxes" shall have the meaning assigned to such term in
Section 9.03(a).
"Termination Date" means the earlier of (i) the Secondary
Lender Stated Expiration Date, and (ii) the date the Total Commitment shall
terminate pursuant to Section 2.10 or Section 6.01.
"Total Commitment" means $500,000,000, as such amount may be
reduced pursuant to Section 2.10. References to the unused portion of the Total
Commitment shall mean, at any time, the Total Commitment then in effect, minus
the outstanding principal amount of the Advances.
"Transaction Agent" means a commercial bank, insurance
company, finance company or other financial institution that is acting as agent
or trustee under the Loan Documents relating to any Loan Asset.
22
"Trust" means JS Siloed Trust, a Delaware statutory trust, and
its successors and assigns.
"UCC" means the Uniform Commercial Code, as from time to time
in effect in the State of Illinois; provided, however, that, in the event that,
by reason of mandatory provisions of law, any of the perfection or priority of
the security interest granted hereunder in any of the Pledged Collateral is
governed by the Uniform Commercial Code of a jurisdiction other than the State
of Illinois, "UCC" shall mean the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or priority.
"Unsecured Loan Assets" means Loan Assets which are not fully
secured under the related Loan Documents by a first priority perfected Lien on
assets or properties of the related Obligor with value as reasonably determined
by the Adviser at the time of the Borrower's purchase of such Loan Asset in
reliance upon appraisals, financial statements or market valuation techniques,
in an amount no less than the outstanding debt of such Obligor under the related
Loan Documents.
"Value" shall have the meaning assigned to such term in
Section 2(a)(41) of the Investment Company Act.
"Weekly Determination Date" means the last Business Day of
each calendar week.
"Yield" means for each Advance for each Settlement Period:
(i) for each day during such Settlement Period to the
extent such Advance will be funded or maintained on such day by a
Conduit Lender,
CPR x P + LF
---------
360
(ii) for each day during such Settlement Period to
the extent such Advance will be funded or maintained on such day by a
Secondary Lender or a Lender (other than a Conduit Lender),
AR x P
---------
360
where:
AR = the applicable Assignee Rate for such Advance
for such Settlement Period
P = the outstanding principal amount of such
Advance on such day
23
CPR = the applicable CP Rate for such Advance on
such day
LF = the Liquidation Fee, if any, for such Advance
for such Settlement Period (expressed as a
daily amount);
provided, further, that Yield for any Advance shall not be considered paid by
any distribution to the extent that at any time all or a portion of such
distribution is rescinded or must otherwise be returned for any reason.
SECTION 1.02. Rules of Construction.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires (i) singular words
shall connote the plural as well as the singular, and vice versa (except as
indicated), as may be appropriate, (ii) the words "herein," "hereof" and
"hereunder" and other words of similar import used in this Agreement refer to
this Agreement as a whole and not to any particular appendix, article, schedule,
section, paragraph, clause, exhibit or other subdivision, (iii) the headings,
subheadings and table of contents set forth in this Agreement are solely for
convenience of reference and shall not constitute a part of this Agreement nor
shall they affect the meaning, construction or effect of any provision hereof,
(iv) references in this Agreement to "including" shall mean including without
limiting the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a general
statement, followed by or referable to an enumeration of specific matters, to
matters similar to those specifically mentioned, and (v) each of the parties to
this Agreement and its counsel have reviewed and revised, or requested revisions
to, this Agreement, and the usual rule of construction that any ambiguities are
to be resolved against the drafting party shall be inapplicable in the
construction and interpretation of this Agreement.
SECTION 1.03. Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation
of a period of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" both mean "to
but excluding".
ARTICLE II
ADVANCES TO THE BORROWER
SECTION 2.01. Advance Facility.
On the terms and conditions hereinafter set forth, including
without limitation, Sections 3.01, 3.02 and 3.03, each Conduit Lender may, in
its sole discretion, make an Advance to the Borrower on any Borrowing Date from
the date hereof to the Termination Date in an amount equal to the Requested
Amount. On the terms and conditions hereinafter set forth, including without
limitation, Sections 3.01, 3.02 and 3.03 and during the period from the date
24
hereof to the Termination Date if the Conduit Lenders have declined to make
Advances in the full Requested Amount, the Secondary Lenders shall make Advances
to the Borrower, ratably in accordance with their respective Secondary Lender
Percentages as provided in Section 2.02. Under no circumstances shall any
Conduit Lender or any Secondary Lender be obligated to make any such Advance, to
the extent that after giving effect to the making of such Advance (i) the
aggregate principal amount of all outstanding Advances would exceed the Total
Commitment, or (ii) the aggregate principal amount of all outstanding Advances
funded by any Secondary Lender under this Agreement and in its capacity as a
purchaser under the Asset Purchase Agreement would exceed such Secondary
Lender's Secondary Lender Commitment.
SECTION 2.02. Making of Advances.
If the Borrower desires to receive a borrowing under this
Agreement it shall (i) give the Program Agent written notice (each such notice a
"Preliminary Borrowing Notice") of such desire not later than 11:00 a.m.
(Chicago time) on the Business Day immediately preceding the proposed borrowing
date of such borrowing, which notice shall specify (x) the proposed borrowing
date therefor which shall be a Business Day (each such date, a "Borrowing
Date"), and (y) the aggregate principal amount of the proposed borrowing (the
"Requested Amount"), and (ii) no later than 7:00 a.m. (Chicago time) on the
Borrowing Date specified in the related Preliminary Borrowing Notice, confirm
its desire to receive a borrowing on such Borrowing Date by giving the Program
Agent a final borrowing notice in substantially the form of Exhibit B hereto
(each such notice a "Notice of Borrowing") which shall be signed by a
Responsible Officer of the Borrower and shall specify the Borrowing Date, the
Requested Amount specified in the related Preliminary Borrowing Notice, whether
such Advance shall be used for Short-Term Purposes or Leverage Purposes and
shall otherwise be appropriately completed. Each Notice of Borrowing shall be
irrevocable upon receipt by the Program Agent. If the Borrower fails to deliver
a Notice of Borrowing in accordance with this Section 2.02 its Preliminary
Borrowing Notice shall be deemed to be revoked by the Borrower without incurring
any costs, penalties, expenses or other liability (including, without
limitation, under this Section 2.02 or Section 2.08 or as a Liquidation Fee).
The Requested Amount specified in any Notice of Borrowing shall be at least
$3,000,000 and in integral multiples of $100,000 in excess thereof. The Borrower
shall not request more than two (2) borrowings in any calendar week. During the
period prior to the Termination Date, each Conduit Lender shall promptly notify
the Program Agent whether it has determined to make an Advance and if it has
decided to make an Advance, such notice shall specify the principal amount
thereof. If the Conduit Lenders have declined to make a proposed Advance in the
full Requested Amount, the Program Agent shall promptly send notice of the
proposed borrowing to each of the Secondary Lenders concurrently by telecopier,
telex or cable specifying the Borrowing Date for such borrowing, each Secondary
Lender's Secondary Lender Percentage of the Requested Amount and whether the
Yield for such Advance is calculated based on the Eurodollar Rate or the
Alternate Base Rate. Provided that the Borrower has delivered a Preliminary
Borrowing Notice and a Notice of Borrowing in accordance with this Section 2.02,
on each Borrowing Date the Conduit Lenders or the Secondary Lenders shall,
subject to the terms and conditions of this Agreement, make available to the
Borrower at the Borrower's Account (or such other account specified in the
applicable Notice of Borrowing) Advances in an amount equal to the Requested
Amount in immediately available funds. To the extent not covered by Section
2.08, the Borrower shall indemnify each
25
Conduit Lender, each Secondary Lender and the Program Agent against any loss or
expense incurred by them as a result of any failure by the Borrower to accept
any Advance requested in a Notice of Borrowing or as a result of the failure of
the Borrower to receive any Advance requested in a Notice of Borrowing as a
result of the failure of any condition precedent to the making of such Advance
to be satisfied, including, without limitation, any loss or expense incurred by
reason of the liquidation or reemployment of funds acquired or requested to fund
such Advance.
SECTION 2.03. Noteless Agreement; Evidence of Indebtedness.
(a) Each Lender and each Secondary Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender or such Secondary Lender, as
applicable, in respect of each Advance funded by it, from time to time,
including the amounts of principal and Yield thereon and paid to such Lender or
Secondary Lender, as applicable, from time to time hereunder.
(b) The Program Agent shall maintain accounts in which it will
record (i) the amount of each Advance funded by the Lenders and the Secondary
Lenders and the Settlement Period with respect thereto, (ii) the amount of any
principal and Yield due and payable or to become due and payable from the
Borrower to each Lender and Secondary Lender hereunder, and (iii) the amount of
any sum received by the Program Agent hereunder from the Borrower and each
Lender's and Secondary Lender's share thereof. If consent of the Majority Banks
is required by the terms of this Agreement for any action or inaction then being
taken or not taken under this Agreement, then upon the written request of the
Borrower, the Program Agent shall use reasonable efforts to as promptly as
possible notify the Borrower (i) of the Commitment (as defined in the Asset
Purchase Agreement) of each Secondary Lender in its capacity as a purchaser
under the Asset Purchase Agreement, (ii) if any Secondary Lender constitutes a
Defaulting Bank, and (iii) of the outstanding principal amount of the Advances
of each Lender and each Secondary Lender; provided, that the Program Agent shall
have no liability for any error in any notice provided by it pursuant to this
Section 2.03(b) or for any delay in providing such notice.
(c) The entries maintained in the accounts maintained pursuant
to clauses (a) and (b) of this Section 2.03 shall be rebuttable presumptive
evidence of the existence and amounts of the Borrower Obligations therein
recorded (absent manifest error); provided, however, that the failure of the
Program Agent, any Lender or any Secondary Lender to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Borrower Obligations in accordance with their terms.
(d) Any Conduit Lender and any Secondary Lender may request
that its Advances be evidenced by an Advance Note. In such event, the Borrower
shall (as soon as reasonably practicable) prepare, execute and deliver to such
Conduit Lender or Secondary Lender, as applicable, an Advance Note payable to
the order of such Conduit Lender or Secondary Lender, as applicable. Thereafter,
the Advances evidenced by such Advance Note and interest thereon shall at all
times (including after any assignment pursuant to Section 9.06) be represented
by one or more Advance Notes payable to the order of the payee named therein
or
26
any assignee pursuant to Section 9.06, except to the extent that any such
Conduit Lender, Secondary Lender or assignee subsequently returns to the
Borrower any such Advance Note for cancellation and requests that such Advances
once again be evidenced as described in clauses (a) and (b) of this Section
2.03. In connection with any assignment pursuant to Section 9.06, if such
assigning Secondary Lender shall have an Advance Note issued to it, such
assigning Secondary Lender shall promptly return its Advance Note to the
Borrower marked "cancelled".
SECTION 2.04. Maturity of the Advances.
The principal amount of, and the accrued and unpaid Yield on
each outstanding Advance shall be due and payable by the Borrower on the
Maturity Date for such Advance.
SECTION 2.05. Prepayment of the Advances.
(a) The Borrower shall have the right at any time and from
time to time, upon not less than two (2) Business Days' prior written or
telephonic notice (in the case of telephonic notice, promptly confirmed in
writing) to the Program Agent specifying the date and amount of such prepayment,
to prepay (without any premium or penalty, except for any Liquidation Fee or
amount payable under Section 2.08) all or a portion of the outstanding Advances,
together with unpaid Yield thereon, on a Business Day; provided, that any such
prepayment, if a partial prepayment, shall be at least $3,000,000.
(b) If on any Determination Date the Borrower is not in full
compliance with the Borrowing Base Test, the Borrower shall on such
Determination Date (I) notify the Program Agent of such failure to comply, and
(II) on the Business Day next succeeding such Determination Date (each such
date, a "Compliance Certification Date") prepay Advances (together with Yield
thereon) in an amount necessary to cause the Borrower to be in full compliance
with the Borrowing Base Test on such Compliance Certification Date; provided,
however, that to the extent the Borrower does not have sufficient available
funds to fully cure such compliance shortfall on such Compliance Certification
Date, then the Borrower shall (i) on such Compliance Certification Date prepay
outstanding Advances in the amount of its available funds; (ii) no later than
the close of business on the tenth (10th) Business Day following such
Determination Date either (A) acquire and pledge to the Program Agent under this
Agreement and the Control Agreement additional Borrowing Base Eligible Assets
having an Adjusted Asset Value at least sufficient to cause the Borrowing Base
to be at least equal to the product of (x) 1.05, and (y) Credits Outstanding, as
determined on such Compliance Certification Date, or (B) prepay Advances in a
principal amount (and pay the Yield thereon) at least sufficient to cause the
Borrowing Base to be at least equal to the product of (x) 1.05 and (y) Credits
Outstanding, as determined on such Compliance Certification Date; and (iii) no
later than the close of business on such Compliance Certification Date, deliver
to the Program Agent a certificate, signed by an Responsible Officer of the
Borrower, that (1) certifies the amount of the compliance shortfall, (2)
specifies whether the Borrower shall either (x) prepay the Advances in
accordance with clause (B) above, or (y) acquire additional Borrowing Base
Eligible Assets in accordance with clause (A) above and specifies the identity
and Adjusted Asset Value of the Borrowing Base Eligible Assets for which the
Borrower has entered into corrective trades in order to satisfy the requirements
of clause (A) of this Section 2.05(b), and (3) certifies that the
27
requirements of this Section 2.05(b) shall be satisfied on or prior to the tenth
(10th) Business Day following such Determination Date.
(c) The amount of each prepayment under this Section 2.05
shall be applied ratably to the Advances of each Lender and each Secondary
Lender in the order in which such Advances were made by such Lender or Secondary
Lender.
SECTION 2.06. Yield.
The Borrower hereby agrees to pay the Yield computed with
reference to the principal amount of each Advance outstanding from time to time.
Yield accruing in respect of any Advance for any Settlement Period shall be due
and payable on the Settlement Date immediately succeeding such Settlement Period
and as required by Section 2.05; provided, that, accrued Yield computed by
reference to the Eurodollar Rate shall be paid on the last day of such
Settlement Period, or if such day is not a Business Day, the immediately
succeeding Business Day. It is the intention of the parties hereto that the
Yield on the Advances shall not exceed the maximum rate permissible under
applicable law. Accordingly, anything herein or in any Advance Note to the
contrary notwithstanding, in the event any Yield is charged to, collected from
or received from or on behalf of the Borrower by the Lenders or the Secondary
Lenders pursuant hereto or thereto in excess of such maximum lawful rate, then
the excess of such payment over that maximum shall be applied first to the
payment of amounts then due and owing by the Borrower to the Secured Parties
under the Program Documents (other than in respect of principal and Yield on
Advances), then to the reduction of the outstanding principal balance of the
Advances then due and then any excess amount to be returned to the Borrower.
SECTION 2.07. Increased Costs.
(a) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements
reflected in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any Applicable Law or (ii) the compliance with any guideline or request from
any central bank or other Authority (whether or not having the force of law),
there shall be any increase in the cost to any Affected Person of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances to the Borrower,
then the Borrower from time to time shall, as promptly as practicable upon
written demand by such Affected Person pay to the Program Agent for the account
of such Affected Person additional amounts sufficient to compensate such
Affected Person for such increased cost; provided, however, that no additional
amounts shall be required under this Section 2.07 with respect to (i) income or
profits taxes (or franchise taxes imposed in lieu thereof), (ii) Taxes or Other
Taxes in effect on the date that such Affected Person became a party to this
Agreement or otherwise became committed to purchase or acquire any interest in
any Advances (whether by assignment, participation or otherwise), except to the
extent that such Affected Person's assignor or predecessor was entitled to such
additional amounts, and (iii) Taxes to the extent avoidable had such Person
complied with the provisions of Section 9.03(f). In determining such amount,
such Affected Person may in good faith use any reasonable averaging and
attribution methods, consistent with the averaging and attribution methods
generally used by such Affected Person in determining amounts of this type with
respect to other borrowers. Each such Affected Person shall, together
28
with its written demand therefor, deliver to the Borrower and the Program Agent
a certificate setting forth in reasonable detail the amount of such increased
cost and the basis for the calculation of such amount, which certificate shall
be conclusive and binding for all purposes, absent manifest error.
(b) If an Affected Person determines that compliance with any
Applicable Law enacted after the effectiveness of the Original Credit Agreement
or request from any central bank or other Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) affects the amount of capital required or expected to be maintained by such
Affected Person and that the amount of such capital is increased by or based
upon the existence of such Affected Person's commitment under the Program
Documents or upon such Affected Person's making, funding or maintaining
Advances, then, as promptly as practicable upon written demand of such Affected
Person (with a copy of such demand to the Program Agent), the Borrower shall pay
to the Program Agent for the account of such Affected Person, from time to time
as specified by such Affected Person, additional amounts sufficient to
compensate such Affected Person in light of the circumstances. Each such
Affected Person shall, together with its written demand therefore, deliver to
the Borrower and the Program Agent a certificate setting forth in reasonable
detail such amounts and the basis for the calculation of such amounts, which
certificate shall be conclusive and binding for all purposes, absent manifest
error.
(c) If an Accounting Based Consolidation event shall at any
time occur then, upon demand by the Program Agent, Borrower shall pay to the
Program Agent, for the benefit of the relevant Affected Entity, such amounts as
such Affected Entity reasonably determines will compensate or reimburse such
Affected Entity for any resulting (i) fee, expense or increased cost charged to,
incurred or otherwise suffered by such Affected Entity, (ii) reduction in the
rate of return on such Affected Entity's capital or reduction in the amount of
any sum received or receivable by such Affected Entity or (iii) opportunity
cost, internal capital charge or other imputed cost determined by such Affected
entity to be allocable to the Borrower or the transactions contemplated in this
Agreement in connection therewith. Amounts under this Section 2.07(c) may be
demanded at any time without regard to the timing of issuance of any financial
statement by the Borrower or by any Affected Entity.
(d) Upon the occurrence of any event giving rise to the
Borrower's obligation to pay additional amounts to any Affected Person pursuant
to Sections 2.07(a), 2.07(b), 2.07(c) or 9.03, such Affected Person will, if
requested by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Affected Person) to designate a different lending office;
provided, however, that such designation is made on such terms that such
Affected Person and its lending office suffer no significant economic, legal or
regulatory disadvantage, with the object of avoiding future consequence of the
event giving rise to the operation of any such Section. If such additional
amounts are not eliminated by any such designation and such Affected Person does
not waive payment of such additional amounts, the Program Agent, may at its sole
discretion within sixty (60) days, recommend a replacement Affected Person not
so affected. If after the sixty (60) day period described in the preceding
sentence a replacement for such Affected Person has not been procured, the
Borrower may propose a replacement for such Affected Person and, upon approval
of the Program Agent (which approval shall not be unreasonably withheld or
delayed), such Affected Person shall assign its interests under the
29
applicable Program Documents to such replacement entity. The parties hereby
agree that unless and until the Affected Person to be replaced (i) is paid in
full for all amounts due and owing to it hereunder and under any other Program
Document, and (ii) enters into assignment documents with the replacement entity
which are reasonably satisfactory to such Affected Person, it shall have no
obligation to assign any of its rights and interests hereunder. Each such
Affected Person agrees to take all actions necessary to permit a replacement
entity to succeed to its rights and obligations hereunder and under the other
Program Documents. The Borrower agrees to pay all reasonable expenses incurred
by any Affected Person in utilizing another lending office of such Affected
Person or in assigning its interest pursuant to this Section 2.07(d). Nothing in
this Section 2.07(d) shall affect or postpone any of the obligations of the
Borrower or the rights of any Secured Party.
SECTION 2.08. Compensation.
Without duplication of any amount due by the Borrower in
respect of any Liquidation Fee, the Borrower shall compensate each Affected
Person, upon its written request (which request shall set forth in reasonable
detail the basis for requesting such amounts and the details showing the basis
of the calculation of such amounts), for all reasonable losses, expenses and
liabilities (including, without limitation, any interest paid by such Affected
Person to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Advances and any loss sustained by such Affected Person in connection with the
re-employment of such funds), which such Affected Person may sustain: (i) if for
any reason (other than a default by such Affected Person) a borrowing of any
Eurodollar Rate Advance by the Borrower does not occur on a date specified
therefor in the Notice of Borrowing, (ii) if any prepayment of any of the
Borrower's Eurodollar Rate Advances occurs on a date which is not the last day
of a Settlement Period applicable thereto, (iii) if any prepayment of any of the
Borrower's Eurodollar Rate Advances is not made on any date specified in a
notice of prepayment given by the Borrower, or (iv) as a consequence of any
other default by the Borrower to repay its Eurodollar Rate Advances when
required by the terms of this Agreement.
SECTION 2.09. Additional Yield on Eurodollar Rate Advances.
So long as any Affected Person shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, the Borrower shall pay as promptly as practicable
following written demand therefor to such Affected Person Eurodollar Additional
Yield on the principal amount of each outstanding Eurodollar Rate Advance on
each date on which Yield is payable on such Advance. Such Eurodollar Additional
Yield shall be determined on a reasonable basis by such Affected Person and
notified to the Borrower through the Program Agent within thirty (30) days after
any payment is made with respect to which such additional Yield is requested.
Each such Affected Person shall, together with the written demand therefor,
deliver to the Borrower and the Program Agent a certificate setting forth in
reasonable detail the amount of such Eurodollar Additional Yield and the basis
for the calculation of such amount, which certificate shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.10. Termination or Reduction of the Total
Commitment.
30
The Borrower may at any time, upon thirty (30) days prior
written notice to the Program Agent terminate in whole or reduce in part the
unused portion of the Total Commitment; provided, that each such partial
reduction of the Total Commitment shall be in an amount equal to at least
$5,000,000 or an integral multiple thereof. Any reduction of the Total
Commitment shall reduce ratably (or terminate) the Secondary Lender Commitment
of each Secondary Lender.
SECTION 2.11. Rescission or Return of Payment.
The Borrower further agrees that, if at any time all or any
part of any payment theretofore made by it to any Secured Party or their
designees is or must be rescinded or returned for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
the Borrower or any of its Affiliates), the obligation of the Borrower to make
such payment to such Secured Party shall, for the purposes of this Agreement, to
the extent that such payment is or must be rescinded or returned, be deemed to
have continued in existence and this Agreement shall continue to be effective or
be reinstated, as the case may be, as to such obligations, all as though such
payment had not been made.
SECTION 2.12. Fees Payable by Borrower.
The Borrower agrees to pay to the Program Agent for the
benefit of the applicable Secured Parties such fees as are set forth in the Fee
Letter.
SECTION 2.13. Post Default Interest.
The Borrower hereby promises to pay interest on the unpaid
principal amount of each Advance and any other amount payable by the Borrower
hereunder, in each case, which shall not be paid in full when due, for the
period commencing on the due date thereof until but not including the date the
same is paid in full at the Post-Default Rate. Interest payable at the
Post-Default Rate shall be payable on the Program Agent's demand.
SECTION 2.14. Payments.
(a) All amounts owing and payable by the Borrower to any
Secured Party, any Affected Person or any Indemnified Party under this
Agreement, including, without limitation, the principal amount of
outstanding Advances, Yield, fees, indemnities, expenses or other amounts
payable by the Borrower to any Secured Party, any Affected Person or any
Indemnified Party under the Program Documents, shall be paid in Dollars, in
immediately available funds on or prior to 12:00 noon (Chicago time) on the
date due without counterclaim, setoff, deduction, defense, abatement,
suspension or deferment. Subject to Section 2.14(d) and Section 7.03 all
payments in respect of the Borrower Obligations, payable by or on behalf of
the Borrower to the Lenders, Secondary Lenders, any Affected Person, any
Indemnified Party and the Program Agent shall be paid to the Program
Agent's Account. Any payment paid after 12:00 noon (Chicago time) on any
day shall be deemed to have been made on the next Business Day for all
purposes of this Agreement.
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(b) All computations of interest at the Post-Default Rate and
all computations of Yield, fees and other amounts hereunder and under the
Fee Letter shall be made on the basis of a year of 360 days for the actual
number of days elapsed. Whenever any payment or deposit to be made
hereunder and under the Fee Letter shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of such payment or deposit.
(c) Subject to Sections 2.14(d) and 7.03(a), upon the Program
Agent's receipt of funds deposited into the Program Agent's Account, the
Program Agent shall distribute such funds, first to the Lenders and the
Secondary Lenders on a pro rata basis in accordance with such amounts owed
to each Lender and Secondary Lender in payment of all accrued and unpaid
Yield owing to such Lenders and Secondary Lenders, second to such Lenders,
such Secondary Lenders and itself as Program Agent on a pro rata basis in
accordance with such amounts owed to each such Person in payment of any
other fees or other amounts owed by the Borrower to the Lenders, the
Secondary Lenders and the Program Agent under this Agreement and the other
Program Documents (other than in respect of the principal amount of the
Advances), and third to the payment of the principal amount of the Advances
owing to such Lenders and Secondary Lenders on a pro rata basis in
accordance with such amounts owed to each such Lender and Secondary Lender.
(d) During the continuance of an Event of Default all payments
in respect of the Borrower Obligations, payable by or on behalf of the
Borrower, including all Proceeds resulting from the sale or disposition of
the Pledged Collateral shall be remitted to the Program Agent's Account and
applied in accordance with Section 7.03(a).
(e) If, after the Program Agent has paid any Secondary Lender
its allocable share of any amounts pursuant to Sections 2.14 or 7.03 of
this Agreement, such amount must be returned for any reason (including the
bankruptcy, insolvency or similar circumstance relating to the Borrower),
such Secondary Lender will repay to the Program Agent promptly the amount
the Program Agent so paid to such Secondary Lender.
SECTION 2.15. Ratable Payments.
If any Secondary Lender or Lender (other than a Conduit
Lender), whether by set-off, bankers' lien, counterclaim or otherwise, has
payment made to it with respect to any Borrower Obligations owing to it in a
greater proportion than that received by any other Lender or Secondary Lender
entitled to receive a ratable share of such payments, such Lender or Secondary
Lender agrees, promptly upon demand, to purchase for cash without recourse or
warranty a portion of the unpaid Borrower Obligations held by the other Lenders
and Secondary Lenders so that after such purchase each Lender and Secondary
Lender will hold its ratable proportion of such unpaid Borrower Obligations;
provided that if all or any portion of such excess amount is thereafter
recovered from such Secondary Lender or Lender, as the case may be, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest.
SECTION 2.16. Borrower's Obligations Absolute.
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The Borrower's obligations to each Secured Party, each
Affected Person and each Indemnified Party under this Agreement and under the
other Program Documents (other than the Loan Documents) to which it is a party
shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms hereof and thereof, under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower, the Adviser or any other Person may have or have had against any
Secured Party or any other Person.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to the Effectiveness of
the Original Credit Agreement.
The Borrower hereby confirms that concurrently with the
effectiveness of the Original Credit Agreement, the Program Agent received on or
before the initial borrowing date under the Original Credit Agreement the
following:
(a) each of the Program Documents (as defined in the Original
Credit Agreement) (other than the Loan Documents (as defined in the
Original Credit Agreement)) duly executed and delivered by the parties
thereto, each of which was in full force and effect;
(b) the Prospectus (as defined in the Original Credit
Agreement);
(c) the signed opinions of counsel to the Borrower and the
Adviser addressed to the Program Agent, the Conduit Lenders and each
Secondary Lender as to such matters as the Program Agent shall have
reasonably requested;
(d) if requested by any Conduit Lender or any Secondary Lender
pursuant to Section 2.03 of the Original Credit Agreement, an Advance Note
duly executed and completed by the Borrower to such Conduit Lender or such
Secondary Lender, as applicable;
(e) copies of all Governmental Authorizations, material
Private Authorizations and Governmental Filings, if any, required to be
made or obtained by the Borrower in connection with the transactions
contemplated by the Original Credit Agreement;
(f) a certificate of the Secretary or Assistant Secretary of
each of the Borrower and the Adviser certifying (i) as to its certificate
of incorporation or declaration of trust, as applicable and by-laws, (ii)
as to the resolutions of its Board of Directors or Board of Trustees, as
applicable, approving the Original Credit Agreement and the other Program
Documents (other than the Loan Documents) to which it was a party as of
such date and the transactions contemplated thereby, (iii) that its
representations and warranties set forth in the Program Documents (as
defined in the Original Credit Agreement) (other than the Loan Documents)
to which it was a party as of such date were true and correct in all
material respects, and (iv) the incumbency and specimen signature of each
of its officers authorized to
33
execute the Program Documents (as defined in the Original Credit
Agreement) (other than the Loan Documents) to which it was a party as
of such date;
(g) copies of proper financing statements naming the Borrower
as debtor and the Program Agent as secured party filed under the UCC in all
jurisdictions that the Program Agent deemed necessary or desirable in order
to perfect the Program Agent's interests in the Pledged Collateral
contemplated by the Original Credit Agreement;
(h) copies of proper termination financing statements, if any,
necessary to release all Adverse Claims of any Person in the Assets of
the Borrower previously granted by the Borrower;
(i) completed requests for information, dated on or before the
date of the initial Borrowing Date (as defined in the Original Credit
Agreement), listing all effective financing statements filed in the
jurisdictions referred to in subsection (g) above that name the Borrower
(under its present name and any previous name) as debtor, together with
copies of such other financing statements; and
(j) a pro forma Investor Report, which shall evidence
compliance with the Borrowing Base Test, the Asset Coverage Test and
certain other terms of the Program Documents (as such terms are defined in
the Original Credit Agreement) (other than the Loan Documents) after giving
effect to the initial borrowing of Advances (as defined in the Original
Credit Agreement) under the Original Credit Agreement.
SECTION 3.02. Conditions Precedent to All Advances.
The obligation of the Conduit Lenders and the Secondary
Lenders to make any Advance (including the initial Advances) on any Borrowing
Date shall be subject to the fulfillment of the following conditions:
(a) each of the representations and warranties of the Borrower
contained in this Agreement and the Control Agreement and each of the
representations and warranties of the Adviser contained in the Letter
Agreement shall be true and correct as of such date and shall continue to
be true immediately after giving effect to such Advance;
(b) no Default or Event of Default shall have occurred and be
continuing or shall result from the making of such Advance;
(c) immediately after giving effect to such Advance the
Borrower shall be in full compliance with each of the Borrowing Base Test
and the Asset Coverage Test;
(d) immediately after the making of any such Advance, the
aggregate outstanding principal amount of all Advances shall not exceed the
Total Commitment; and the Program Agent shall have received an Investor
Report.
SECTION 3.03. Conditions Precedent to the Effectiveness of
this Agreement.
34
The effectiveness of the amendment and restatement of the
Existing Credit Agreement as set forth in this Agreement shall be subject to the
conditions precedent that each Program Document be in full force and effect and
that the Agent shall have received the following, each (unless otherwise
indicated) in form and substance reasonably satisfactory to the Program Agent
and the Secondary Lenders parties hereto in sufficient copies for the Conduit
Lenders and the Secondary Lenders:
(a) duly executed copies of this Agreement, the APA Amendment,
the Agreement of Amendment and any other related amendments and the Fee
Letter from each of the Borrower, the Custodian, the Adviser, the Lenders,
the Secondary Lenders and the Agent, as the case may be;
(b) the Prospectus, as in effect on the Restatement Effective
Date;
(c) a certificate of the Secretary or Assistant Secretary of
the Borrower certifying that the Prospectus, as delivered pursuant to
clause 3.01(b) above has not been modified since the effectiveness of the
Original Credit Agreement (other than any modifications to the Prospectus
in accordance with the provisions of the Existing Credit Agreement as in
effect immediately preceding the Restatement Effective Date);
(d) the signed opinions of counsel to the Borrower and the
Adviser addressed to the Program Agent, the Conduit Lenders and each
Secondary Lender as to such matters as the Program Agent shall have
reasonably requested;
(e) all Governmental Authorizations, material Private
Authorizations and Governmental Filings, if any, which may be required in
connection with the transactions contemplated by this Agreement;
(f) the results of a recent search by a Person reasonably
satisfactory to the program Agent of all UCC lien filings with respect to
the Borrower, and such results shall be satisfactory to the Program Agent;
(g) copies of proper financing statements and/or financing
statement amendments naming the Borrower as debtor and the Program Agent as
secured party filed under the UCC in all jurisdictions that the Program
Agent deemed necessary or desirable in order to perfect and maintain the
perfection of the Program Agent's interests in the Pledged Collateral
contemplated by this Agreement; and
(h) if requested by any Conduit Lender or Secondary Lender
under Section 2.03 on or prior to the Restatement Effective Date, an
Advance Note duly executed and completed by the Borrower to such Conduit
Lender or Secondary Lender, as applicable, provided that such Conduit
Lender or Secondary Lender shall have returned any advance note issued by
the Borrower to such Conduit Lender or Secondary Lender pursuant to the
Existing Credit Agreement.
35
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants to each of the Secured
Parties on and as of the Restatement Effective Date, each Borrowing Date and
each Weekly Determination Date (except solely in respect of clause (l) below,
each date such information is provided), as follows:
(a) Due Organization. The Borrower is a business trust duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, with full power and authority to own and
operate its Assets, conduct the business in which it is now engaged and to
execute and deliver and perform its obligations under this Agreement and
the other Program Documents to which it is a party, except where the
failure to hold such power and authority could not reasonably be expected
to result in a Material Adverse Effect.
(b) Due Qualification and Good Standing. The Borrower is duly
qualified to do business and is in good standing in each jurisdiction in
which the nature of its business, assets and properties, including, without
limitation, the performance of its obligations under this Agreement and the
other Program Documents to which it is a party, requires such
qualification, except where the failure to be so qualified or to be in good
standing could not reasonably be expected to have a Material Adverse
Effect.
(c) Due Authorization; Execution and Delivery; Legal, Valid
and Binding; Enforceability. The execution and delivery by the Borrower of,
and the performance by the Borrower of its obligations under the Program
Documents to which it is a party are within its powers and have been duly
authorized by all requisite action by the Borrower and have been duly
executed and delivered by the Borrower and constitute the legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
(d) Noncontravention. Neither the execution and delivery by
the Borrower of this Agreement, the other Program Documents to which it is
a party nor the consummation of the transactions herein or therein
contemplated, nor compliance with the terms, conditions and provisions
hereof or thereof by it, will (i) conflict with, or result in a breach or
violation of, or constitute a default under its declaration of trust or
other organizational documents, (ii) conflict with or contravene (A) any
Applicable Law the contravention of which could reasonably be expected to
have a Material Adverse Effect, (B) any contractual restriction binding on
or affecting the Borrower or any of its Assets the contravention of which
could reasonably be expected to have a Material Adverse Effect or which
could reasonably be expected to result in any material liability to a
Secured Party, or (C) any order, writ, judgment, award, injunction or
decree binding on or affecting the Borrower or any of its Assets, except to
the extent non-compliance therewith could not reasonably be expected to
36
have a Material Adverse Effect, or (iii) result in any Adverse Claim upon
any Asset of the Borrower.
(e) Governmental Authorizations; Private Authorizations;
Governmental Filings. The Borrower has obtained all necessary Governmental
Authorizations and Private Authorizations, and made all Governmental
Filings necessary for the execution and delivery by the Borrower of, and
the performance by the Borrower of its obligations under this Agreement,
the other Program Documents to which it is a party and the agreements,
certificates and instruments contemplated hereby or thereby, except in the
case of Private Authorizations, where the failure to obtain such Private
Authorizations could not reasonably be expected to have a Material Adverse
Effect.
(f) Security Interest. This Agreement and the Control
Agreement and the actions required to be taken pursuant to the terms hereof
are, and at all times shall be, effective to create and perfect in the
Program Agent for the benefit of the Secured Parties a first priority
perfected security interest in the Pledged Collateral (subject to the Lien
of the Custodian securing the Custodian's Overdraft Advances to the extent
permitted by Section 5.02(o) and other Permitted Liens) free and clear of
all Adverse Claims.
(g) Borrowing Base Eligible Assets, Adverse Claims, Etc. The
Borrower owns each Borrowing Base Eligible Asset free and clear of Adverse
Claims and as of the initial Borrowing Date and at all times thereafter,
the Program Agent has a first priority perfected security interest in the
Pledged Collateral (subject to the Lien of the Custodian securing the
Custodian's Overdraft Advances to the extent permitted by Section 5.02(o)
and other Permitted Liens) free and clear of all Adverse Claims.
(h) No Financing Statement. No effective financing statements
or other instruments similar in effect covering any Asset of the Borrower
are on file in any recording office, except those filed in favor of the
Program Agent pursuant to this Agreement.
(i) Principal Office; Organization. The Borrower's principal
place of business and chief executive office is at the addresses referred
to in Section 5.01(d), the Borrower's jurisdiction of organization is the
Commonwealth of Massachusetts and during the prior five (5) year period the
Borrower has not transacted any business under any name other than "▇▇▇
▇▇▇▇▇▇ Senior Loan Fund", "▇▇▇ ▇▇▇▇▇▇ Prime Rate Income Trust" and "▇▇▇
▇▇▇▇▇▇ Senior Floating Rate Fund".
(j) Pending Litigation or Other Proceeding. There are no
pending or, to the best of the Borrower's knowledge, threatened
investigations, litigation, suits or proceedings involving the Borrower
which could reasonably be expected to have a Material Adverse Effect.
(k) Investment Company Act, Etc. The Borrower is and will
continue to be registered as a closed-end management investment company as
such term is used in the Investment Company Act and is in compliance in all
material respect with the Investment Company Act and the Investment
Policies and Restrictions.
37
(l) Information and Reports. The Prospectus, each Investor
Report, each Notice of Borrowing and all other written information, written
reports, certificates and written statements provided by or on behalf of
the Borrower to any Secured Party for purposes of or in connection with
this Agreement, the other Program Documents to which the Borrower is a
party or the transactions contemplated hereby or thereby to be performed by
the Borrower is, and all such information hereafter provided by or on
behalf of the Borrower to any Secured Party is and will be (except for
projections and forward looking statements (other than any pro forma
Investor Report)) true and accurate in all material respects on the date
such information is stated or certified and no such information contains,
or will contain, any material misrepresentation or any omission to state
therein matters necessary to make the statements made therein not
misleading in any material respect under the circumstances in which they
were made when considered in their entirety.
(m) Applicable Law. The Borrower is in full compliance with
all Applicable Law, including, without limitation, the Securities Act and
the Investment Company Act, including the rules and regulations promulgated
thereunder, except where the failure to so comply could not give rise to a
reasonable possibility of a Material Adverse Effect.
(n) ERISA. The Borrower is not nor has during the past five
(5) years been a member of an ERISA Group and does not have nor during the
past five (5) years had any liability or obligation with respect to any
Plan, Multiemployer Plan or Benefit Arrangement; provided, however, that
the Borrower may incur liabilities or obligations under a plan or
arrangement substantially in the form of the Form of Retirement Plan For
Each Closed End Fund or the Form of Amended and Restated Deferred
Compensation Agreement, each attached hereto as Schedule II.
(o) No Default or Event of Default. No Default or Event of
Default has occurred and is continuing and on each Borrowing Date each of
the conditions precedent to the making of Advances set forth in Section
3.02 have been fully satisfied.
(p) Borrowing Base Test; Asset Coverage Test, Etc. The
Borrowing Base Test and the Asset Coverage Test are fully satisfied and
will be fully satisfied and immediately after the making of each Advance;
provided, that if on any date this representation is made (other than a
Borrowing Date) the Borrower is in full compliance with the requirements
set forth in Section 2.05(b), the Borrower shall be deemed to be in
compliance with this clause (p) to the extent it relates to the Borrowing
Base Test as of such date.
(q) Internal Revenue Code. The Borrower is qualified, and
intends to continue to qualify, as a "regulated investment company" within
the meaning of the Code.
(r) Taxes. The Borrower has filed all United States Federal
income tax returns and all other material tax returns which are required to
be filed by it, if any, and has paid all material taxes due pursuant to
such returns, if any, or pursuant to any assessment received by the
Borrower, except for any taxes or assessments which are being contested in
good faith by appropriate proceedings and with respect thereto adequate
reserves have been established in accordance with GAAP.
38
(s) Financial Condition. The statement of assets and
liabilities of the Borrower as at July 31, 2007, certified by Deloitte &
Touche LLP, certified public accountants, fairly present in conformity with
GAAP the financial position of the Borrower at such date and since such
date there has been no material adverse change in the business, financial
condition or results of operations of the Borrower.
(t) Regulations T, U and X. Neither the making of any Advance
nor the use of proceeds thereof will violate the provisions of Regulation U
or Regulation X. The Borrower's use of the proceeds of the Advances will
not violate Regulation T.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Borrower.
The Borrower covenants and agrees that it shall from the date
hereof until the Program Termination Date:
(a) Compliance with Agreements, Laws, Etc. (i) Duly observe,
comply with and conform to all requirements of Applicable Law relative to the
conduct of its business or to its Assets, including without limitation the
Investment Company Act, (ii) preserve and keep in full force and effect the
legal existence of the Borrower and the rights, privileges, qualifications and
franchises of the Borrower, (iii) comply in all material respects with the terms
and conditions of each Program Document to which it is a party, and (iv) obtain,
maintain and keep in full force and effect all Governmental Authorizations,
Private Authorizations and Governmental Filings which are necessary or
appropriate to properly carry out its business and the transactions contemplated
to be performed by the Borrower under this Agreement and the other Program
Documents to which it is a party, except with respect to clauses (i) through
(iv) above where the failure to so observe, comply, preserve, keep, obtain,
maintain and conform could not reasonably be expected to have a Material Adverse
Effect.
(b) Taxes. Cause to be computed, paid and discharged when due
all material taxes, assessments and other governmental charges or levies imposed
upon it, or upon any income or Assets of the Borrower, prior to the day on which
penalties are attached thereto, unless and to the extent that the same shall be
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been established on the books of the Borrower in
accordance with GAAP.
(c) Further Assurances. Promptly, at its expense, execute and
deliver such further instruments and take such further action as is necessary in
order to (i) establish and protect the rights, interests and remedies created,
or intended to be created, in favor of the Secured Parties including, without
limitation, all such actions which are necessary or reasonably advisable to
maintain and protect the Secured Parties' first priority perfected (subject to
the Lien of the Custodian securing the Custodian's Overdraft Advances to the
extent permitted by Section 5.02(o) and other Permitted Liens) security interest
in the Pledged Collateral free and clear of Adverse Claims, and (ii) enable the
Secured Parties to enforce their rights and remedies under the Program Documents
to which the Borrower is a party, including, without limitation, to
39
do all things necessary at the reasonable request of the Program Agent during
the continuance of an Event of Default to have each Loan Asset which constitutes
Pledged Collateral and the related Loan Documents assigned to the Program Agent
or its designee. Further, without limiting the obligations of the Borrower set
forth above, the Borrower hereby authorizes the filing of any financing
statements or continuation statements, and amendments to financing statements,
in any jurisdictions and with any filing offices as the Program Agent may
determine, in its reasonable discretion, are necessary to perfect the security
interest granted to the Program Agent in connection herewith. Such financing
statements may describe the collateral in the same manner as described herein or
in the Control Agreement or may contain an indication or description of
collateral that describes such property in any other manner as the Program Agent
may determine, in its reasonable discretion, is necessary to ensure the
perfection of the security interest in the collateral granted to the Program
Agent in connection herewith, including, without limitation, describing such
property as "all assets of the debtor whether now owned or hereafter acquired"
or "all personal property of the debtor whether now owned or hereafter
acquired".
(d) Continued Existence. Keep the Commonwealth of
Massachusetts as its jurisdiction of organization and keep its chief executive
office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or, upon thirty (30)
days' prior written notice to the Program Agent, in any other jurisdiction of
organization or at any other locations in jurisdictions where all actions to
protect and perfect the Program Agent's first priority perfected (subject to the
Lien of the Custodian securing the Custodian's Overdraft Advances to the extent
permitted by Section 5.02(o) and other Permitted Liens) security interest in the
Pledged Collateral have been taken and completed.
(e) Financial Statement; Accountants' Reports; Other
Information. Provide to the Program Agent (with enough additional copies for
each Conduit Lender and each Secondary Lender):
(i) as soon as available, and in any event within
ninety (90) days after the end of each fiscal year of the Borrower, a
statement of assets and liabilities of the Borrower as at the end of
such fiscal year, and statements of operations and of changes in net
assets of the Borrower for such fiscal year, and the Borrower's
portfolio of investments as of the end of such fiscal year, with an
audit report thereon issued by Deloitte & Touche LLP or other
independent certified public accountants of nationally recognized
standing, together with the comparable report for the prior fiscal
year;
(ii) as soon as available and in any event within
seventy-five (75) days after the end of each first semi-annual fiscal
period of the Borrower, a statement of assets and liabilities of the
Borrower as at the end of such period, a statement of operations and of
changes in net assets of the Borrower for such period, and the
portfolio of investments as of the end of such period, all in
reasonable detail and stating in comparative form the respective
figures for the comparable period in the preceding year, prepared in
accordance with GAAP, consistently applied and all certified (subject
to normal year-end adjustment) as to fairness of presentation in all
material respects by a Responsible Officer of the Borrower;
40
(iii) as soon as available, and in any event within
sixty (60) days after the end of the first and third fiscal quarters of
the Borrower's fiscal years, a list setting forth each of the senior
loan assets held by the Borrower and the Value thereof, in each case,
as of the last day of such quarter;
(iv) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii) above, a
statement of a Responsible Officer to the effect that nothing has come
to the attention of such Responsible Officer to cause him/her to
believe that any Default or Event of Default existed on the date of
such statements;
(v) as soon as possible, and in any event within
three (3) Business Days of the Borrower's actual knowledge of the
occurrence of any Default or Event of Default, a certificate of a
Responsible Officer of the Borrower setting forth the details thereof
and the action which the Borrower is taking or proposes to take with
respect thereto;
(vi) as soon as possible, and in any event within two
(2) Business Days, after the Borrower has actual knowledge of any
failure by the Custodian to perform or observe any term, covenant or
agreement on its part to be performed under the Custodial Agreement
which failure gives rise to a reasonable possibility of a Material
Adverse Effect, written notice thereof executed by a Responsible
Officer of the Borrower;
(vii) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all financial
statements, reports and proxy statements so mailed;
(viii) promptly upon the filing thereof, copies of
all registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent) and unless
duplicative of any deliveries to be made under clauses (i) or (ii)
above, annual and semi-annual reports which the Borrower shall have
filed with the SEC;
(ix) so long as any Advance or Borrower Obligation
shall be outstanding, within one (1) Business Day after the written
request of the Program Agent, a report in substantially the form of the
Investor Report in respect of the Assets of the Borrower as of the
determination date designated in such Program Agent's request, together
with a certificate of a Responsible Officer of the Borrower in
substantially the form of Annex A to the Investor Report;
(x) on or before the day which is two (2) Business
Days prior to each Settlement Date (or more frequently as the Program
Agent shall reasonably request (which may be daily)), an Investor
Report substantially in the form of Schedule I hereto, for the
immediately preceding calendar month (or other relevant period if
delivered on a daily or weekly basis), together with a certificate of a
Responsible Officer of the Borrower in substantially the form of Annex
A to the Investor Report;
(xi) promptly upon its receipt of and
contemporaneously with its giving of any notice relating to the
termination of the Custodial Agreement or the Control Agreement, copies
of any such notice;
41
(xii) prior to the issuance by the Borrower of any
preferred shares, notice of such issuance which notice shall include
the offering materials to be used in connection with the issuance of
such preferred shares;
(xiii) prompt notice of any amendment or modification
to the Investment Policies and Restrictions which notice shall include,
in reasonable detail, a description of any such change; and
(xiv) from time to time such additional information
regarding the financial condition or business of the Borrower as the
Program Agent may reasonably request.
(f) Maintenance of Insurance. Maintain in force with
financially sound and reputable insurers, policies with respect to its assets
and property and business against such risks and in such amounts as are usually
insured against in the same general area in the case of entities engaged in
similar lines of business and as may be required by the Investment Company Act.
(g) Maintenance of Business. Remain at all times a closed-end
investment company for the purposes of the Investment Company Act and continue
to engage in business of the same general type as now conducted by the Borrower,
and will preserve, renew and keep in full force and effect its existence and
rights, privileges and franchises necessary or reasonably desirable in the
normal conduct of business and will at all times remain registered under the
Investment Company Act.
(h) Audits. Annually (or more frequently as the Program Agent,
for itself and as agent for the Secured Parties may require after the occurrence
of and during the continuance of a Default or an Event of Default) and at the
sole cost and expense of the Borrower (i) cause an independent nationally
recognized accounting firm reasonably satisfactory to the Program Agent, to
enter the premises of the Borrower and any Person to whom the Borrower delegates
all or any portion of its duties under any Program Document to which it is a
party (including, without limitation, the Adviser) and examine and audit the
books, records and accounts of the Borrower and such other Person relating to
its business, financial condition, operations and the Borrower's and such other
Person's performance under the Program Documents to which it is a party, (ii)
permit such accounting firm to discuss the Borrower's and such other Person's
affairs and finances with the officers, partners, employees and accountants of
any of them, (iii) cause such accounting firm to provide to the Program Agent a
certified report in respect of the foregoing, which shall be in form and scope
reasonably satisfactory to the Program Agent, and (iv) authorize such accounting
firm to discuss such affairs, finances and performance with representatives of
the Program Agent and their designees; provided, that, such examination and
audit of information provided to the Borrower in connection with any Loan
Document (which, for the avoidance of doubt, does not include the Loan Documents
relating to any Eligible Loan Asset) shall be subject to any prohibition set
forth in written confidentiality agreements entered into by the Borrower with
respect thereto.
(i) Access to Records. Annually (or more frequently as the
Program Agent, for itself and as agent for the Secured Parties may require after
the occurrence of and during the continuance of a Default or an Event of
Default) permit the Program Agent and the Secondary Lenders or any Person
designated by the Program Agent and the Secondary Lenders to, upon
42
reasonable advance notice and during normal hours, visit and inspect at
reasonable intervals its and any Person to which it delegates any of its duties
under the Program Documents to which it is a party (including, without
limitation, the Adviser) books, records and accounts relating to its business,
financial condition, operations, Assets and its performance under the Program
Documents to which it is a party and to discuss the foregoing with its and such
Person's officers, partners, employees and accountants; provided, that the
Program Agent and each Secondary Lender shall use reasonable efforts to
coordinate their inspections; provided, however, that if under the terms of any
agreement with any Person which is not an Affiliate of the Adviser or the
Borrower to whom the Adviser or the Borrower has delegated any of its duties
under any Program Document, only the Borrower or the Adviser, as the case may
be, is permitted to visit and inspect such Person's books, records and accounts,
it shall at the request of the Program Agent, exercise or cause the applicable
Adviser or the Borrower, as the case may be, to exercise the rights specified in
this Section 5.01(i) on behalf of such requesting parties; provided, further,
that the Program Agent's, each Secondary Lender's and their respective
designees' right to review information provided to the Borrower in connection
with any Loan Document (which, for the avoidance of doubt, does not include the
Loan Documents relating to any Eligible Loan Asset) shall be subject to the
prohibitions of any written confidentiality agreements entered into by the
Borrower with respect thereto, provided, that the Borrower had used reasonable
efforts to permit the Program Agent, the applicable Secondary Lenders or their
respective designees to review such information by complying with any terms of
such confidentiality agreement which would permit disclosure of confidential
information to the third parties.
(j) Investment Policies and Restrictions. At all times be in
compliance in all material respects with Investment Policies and Restrictions
and maintain necessary liquidity to meet its obligations to fund future advances
or other extensions of credit under the Loan Documents relating to its Loan
Assets.
(k) Defense of Secured Parties' Interest. Warrant and defend
each of the Secured Parties' right and interest in, to and under the Pledged
Collateral against all Adverse Claims of all Persons whomsoever.
(l) Custody and Control. At all times cause all Borrowing Base
Eligible Assets of the Borrower (including all investments, if any, evidencing
the same and all Specified Loan Documents) to constitute Pledged Collateral and
to be (i) custodied with the Custodian or a sub-custodian of the Custodian
pursuant to the Custodial Agreement, and (ii) subject to the Custodian's control
and custody in accordance with the Control Agreement; provided, that if such
Borrowing Base Eligible Asset or Pledged Collateral is a Loan Asset,
concurrently with any request to register such Loan Asset in the name of the
Borrower, the Borrower shall deliver instructions to all Selling Institutions,
Transaction Agents and Obligors related to such Loan Asset requiring that any
instrument evidencing such Loan Asset be delivered to the Custodian. At all
times cause all Loan Documents (other than the Specified Loan Documents) to be
held at the address of the Borrower set forth in Section 9.02 or, such other
location in Illinois as the Borrower shall designate upon twenty (20) day's
prior written notice to the Program Agent.
(m) Notice of Litigation or Other Proceedings. Promptly give
notice in writing to the Program Agent of all litigation, arbitration
proceedings and regulatory proceedings affecting the Borrower or the Assets of
the Borrower, except such litigation, arbitration
43
proceedings and regulatory proceedings which could not reasonably be expected to
have a Material Adverse Effect.
(n) Maintenance of Books of Record and Account. Keep proper
books of record and account in which full, true and correct entries shall be
made of all dealings and transactions in relation to its business and activities
in accordance with the requirements of the SEC or under the Investment Company
Act.
(o) Proceeds of Pledged Collateral. Cause all Proceeds of the
Pledged Collateral to be remitted to the Collateral Account if a Default or
Event of Default shall be continuing or would occur as a result of the failure
to so remit such Proceeds.
(p) Use of Proceeds. Use the net proceeds of any Advance made
hereunder solely for the purpose designated in the Notice of Borrowing with
respect to such Advance, which shall be either Short-term Purposes or Leverage
Purposes.
(q) Investment Adviser. Except as consented to by the Program
Agent and the Secondary Lenders (which consent shall not be unreasonably
withheld or delayed), or as otherwise permitted by Section 6.01(n), at all times
maintain the Adviser as the Borrower's investment adviser.
SECTION 5.02. Negative Covenants of the Borrower.
The Borrower covenants and agrees that from the date hereof
until the Program Termination Date the Borrower shall not:
(a) Impairment of Rights. Enter into any agreement containing
any provision which would be violated or breached by the performance of its
obligations under any Program Document to which the Borrower is a party the
continuation of which could reasonably be expected to have a Material
Adverse Effect or which could reasonably be expected to result in any
material liability to a Secured Party.
(b) Prospectus and Investment Policies and Restrictions.
Purchase any Assets or engage in any line of business not contemplated by
the Prospectus or the Investment Policies and Restrictions.
(c) Creation of Debt. Create, assume or suffer to exist any
Debt, except for Permitted Debt.
(d) Mergers; Sale of Assets. Adopt or carry out any plan of
liquidation, partial liquidation, reorganization, incorporation,
recapitalization, merger or consolidation nor sell, transfer or otherwise
dispose of all or substantially all of its Assets (whether in one
transaction or a series of transactions), without the prior written consent
of the Program Agent and the Secondary Lenders (which consent shall not be
unreasonably withheld or delayed).
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(e) Advances and Extensions of Credit. Make any advance or
other extension of credit to any Person except in the ordinary course of
the Borrower's business and as expressly contemplated by the Investment
Policies and Restrictions.
(f) Custodial Agreement. Without the prior written consent
(which consent shall not be unreasonably withheld or delayed) of the
Program Agent, permit or consent to any material amendment, modification or
waiver of the Custodial Agreement, unless the Borrower has delivered to the
Program Agent a certificate of a Responsible Officer of the Borrower
certifying that such amendment, modification or waiver could not reasonably
be expected to have a Material Adverse Effect.
(g) Amendments to Organizational Documents. Except in
connection with the issuance of preferred stock, amend, terminate,
supplement or otherwise modify in any material respect its declaration of
trust, by-laws or other organizational documents, unless the Borrower has
delivered to the Program Agent a certificate of a Responsible Officer of
the Borrower certifying that to the actual knowledge of such Responsible
Officer such amendment, modification or waiver could not reasonably be
expected to have a Material Adverse Effect.
(h) ERISA. Become a member of an ERISA Group or incur any
liability or obligation with respect to any Plan, Multiemployer Plan or any
Benefit Arrangement; provided, however, that the Borrower may incur
liabilities or obligations under a plan or arrangement substantially in the
form of (i) the Form of Retirement Plan For Each Closed End Fund or (ii)
the Form of Amended and Restated Deferred Compensation Agreement each
attached on Schedule II hereto; provided, further, that the Borrower gives
the Program Agent at least ten (10) days prior written notice of any such
amendment to the forms of the plan or agreement that materially increases
the Borrower's liabilities under the plan or agreement.
(i) Investment Policies and Restrictions. Without the prior
written consent (which consent shall not be unreasonably withheld or
delayed) of the Program Agent and the Secondary Lenders (i) unless required
by a change in Applicable Law (including, without limitation, the
Investment Company Act and the Securities Act), make or permit any material
change in the Investment Policies and Restrictions; provided, that the
Borrower may, without the prior written consent of the Program Agent and
the Secondary Lenders, make a material change to the Investment Policies
and Restrictions solely to the extent relating to tender offers or
repurchases if such change would not materially adversely effect any
Conduit Lender, any Secondary Lender or the Program Agent, or (ii) make or
permit any change in any Industry Class used to compute the Borrowing Base.
(j) Liens. Create, assume or suffer to exist any Adverse Claim
on any Asset now owned or hereafter acquired by it (including without
limitation the Pledged Collateral).
(k) Senior Securities. Issue any "senior securities", as such
term is defined and used in the Investment Company Act other than
Permitted Senior Securities.
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(l) Margin Requirements. Extend credit to others for the
purpose of buying or carrying any "margin stock" in such a manner as to
violate Regulation T, Regulation U or Regulation X or use the proceeds of
any Advance to purchase or carry Margin Stock or, without limiting the
foregoing, have more than twenty percent (20%) of its total Assets
constitute Margin Stock.
(m) Restricted Payments. Make any Restricted Payment (i) if
any Default or Event of Default shall be continuing or shall result
therefrom, (ii) if immediately after giving effect to such payment the
Borrower will not be in full compliance with the Borrowing Base Test and
the Asset Coverage Test, (iii) at any time after the Program Agent shall
have delivered a Notice of Exclusive Control to the Custodian (unless such
Notice of Exclusive Control has been revoked in writing by the Program
Agent), or (iv) at any time after the Termination Date.
(n) Name Change. Change its name (i) without giving the
Program Agent at least ten (10) days prior written notice, and (ii) unless
all actions necessary and reasonably appropriate to protect and perfect the
Secured Parties' first priority perfected security interest (subject to any
Permitted Liens) in the Pledged Collateral have been taken and completed.
(o) Custodian's Overdraft Advances. Permit the Aggregate
Custodian's Advance Amount to at any time exceed $50,000,000.
(p) Notice of Exclusive Control; Pledged Collateral. After the
Borrower has received written notice of delivery by the Program Agent to
the Custodian of a Notice of Exclusive Control, unless such Notice of
Exclusive Control is revoked in writing by the Program Agent, give any
instruction to the Custodian in respect of the Pledged Collateral without
the prior written consent of the Program Agent.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
If any of the following events shall occur and be continuing
(each an "Event of Default"):
(a) the Borrower shall fail to make or cause to be made in the
manner and when due (i) except as expressly provided in Section 2.05(b),
any payment of principal to be made or to be caused to be made by it under
this Agreement and such failure shall continue for one (1) Business Day, or
(ii) any payment of interest, fees or other deposit to be made or caused to
be made by it under this Agreement or any of the other Program Documents to
which it is a party and such failure shall continue for three (3) Business
Days; or
(b) the Borrower shall (i) fail to be in compliance with the
Asset Coverage Test, provided that if a Responsible Officer of the Borrower
has certified that the Borrower is taking all steps necessary to cause the
Borrower to be in full compliance with the Asset Coverage Test within ten
(10) Business Days after the first date of the Borrower's knowledge
46
of such noncompliance, such event shall not constitute an Event of
Default unless such failure shall continue for ten (10) Business Days
after such first date, or (ii) fail to comply with Section 2.05(b),
Section 5.01(g) or clauses (c), (d), (e), (f), (g), (h), (i), (j), (k),
(l) or (m) of Section 5.02; or
(c) (i) the Borrower shall fail to perform or observe any
other term, covenant or agreement on its part to be performed or observed
under this Agreement or any other Program Document to which it is a party,
or (ii) the Adviser shall fail to perform any of its obligations under the
Letter Agreement, which could reasonably be expected to have an Adviser
Material Adverse Effect, or (iii) the Custodian shall fail to perform or
observe any term, covenant or agreement on its part to be performed or
observed under the Control Agreement, which could reasonably be expected to
have a Material Adverse Effect, or (iv) the Custodian shall fail to perform
or observe any term, covenant or agreement on its part to be performed
under the Custodial Agreement, which in the case of this clause (iv), could
reasonably be expected to have a Material Adverse Effect and such failure
described in the cases of clauses (i) through (iv) shall continue
unremedied for thirty (30) days after such person has knowledge of such
failure; or
(d) any representation or warranty made or deemed made by the
Borrower, the Adviser or the Custodian under or in connection with this
Agreement, the Control Agreement, the Letter Agreement or any certificate
or report delivered by or on behalf of the Borrower, the Adviser or the
Custodian in connection therewith shall have been false or incorrect in any
material respect on or as of the date made or deemed made or any material
representation or warranty made or deemed made by the Borrower, the Adviser
or the Custodian in any other Program Document to which it is a party or
any certificate or report delivered by or on behalf of the Borrower, the
Adviser or the Custodian in connection therewith shall be false or
incorrect in any material respect when made or deemed made or delivered;
provided, however, that, with respect to the representation set forth in
Section 4.01(l), such event (except to the extent relating to any Investor
Report) shall not constitute an Event of Default under this clause (d) if
(i) such breach has not resulted in a Material Adverse Effect, and (ii) the
incorrect or incomplete information or report giving rise to such breach
was promptly corrected by the Borrower; or
(e) the Program Agent shall for any reason cease to have a
valid and perfected first priority security interest in the Pledged
Collateral (subject to the Lien of the Custodian securing the Custodian's
Overdraft Advances to the extent permitted by Section 5.02(o) and other
Permitted Liens) free and clear of all Adverse Claims or the Custodian, as
collateral agent and/or securities intermediary under the Control
Agreement, shall not have custody and control, as contemplated by the
Control Agreement, of the Pledged Collateral; or
(f) the Borrower or the Custodian shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against the
Borrower or the Custodian seeking to adjudicate it a bankrupt or insolvent,
or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any
law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the
47
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of sixty (60) days, or any of the actions sought in such
proceeding (including an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property) shall occur; or the Borrower
or the Custodian shall take any corporate action to authorize any of
the actions set forth above in this subsection; or
(g) any provision of any Program Document shall cease to be a
legal, valid and binding obligation of any of the parties purported to be
bound thereby, enforceable in accordance with its respective terms or the
Borrower, the Adviser or the Custodian shall so assert in writing; or
(h) any judgment or order, or any series of judgments or
orders, shall have been entered against the Borrower, provided that (i)
such judgments or orders that have not been vacated, discharged, settled,
paid or satisfied shall aggregate to $5,000,000 or more at any one time
outstanding (excluding any judgments or orders related to any payment to or
application by the Borrower that is rescinded or must otherwise be returned
or paid over as a result of any bankruptcy, insolvency or similar
proceeding involving any other Person), and (ii) enforcement actions have
been commenced with respect thereto and have not been dismissed or stayed
or bonded pending appeal within sixty (60) days of such entry; or
(i) either (1) State Street Bank and Trust Company shall at
any time cease to serve as Custodian under the Custodial Agreement or the
Control Agreement, unless a successor thereto reasonably satisfactory to
the Program Agent shall have assumed the duties of Custodian thereunder and
in accordance with the terms of the Program Documents, or (2) the Custodian
or the Borrower shall have given notice of the termination of the Custodial
Agreement or the Control Agreement; provided, however, that events
specified in clause (2) above shall not constitute an Event of Default if
prior to the tenth (10th) Business Day immediately preceding the effective
date of such termination a successor custodian reasonably satisfactory to
the Program Agent shall have been appointed as custodian under the
Custodial Agreement and shall have assumed the obligations of the Custodian
under the Custodial Agreement and the Control Agreement and the Program
Agent shall have received such certificates and opinions as they shall have
reasonably requested; or
(j) any event or condition shall occur which results in the
acceleration of the maturity of any Debt of the Borrower which Debt in the
aggregate is at least $3,000,000 or enables (or, with the giving of notice
or lapse of time or both would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity thereof;
or
(k) any change in Applicable Law (including, without
limitation, the Investment Company Act and the Securities Act) shall be
enacted or promulgated which (i) would limit in any material respect the
ability of the Program Agent, or any Secured Party to foreclose upon its
interest in, or in the event of such foreclosure to dispose of, the Pledged
Collateral or to be granted the security interest in Pledged Collateral as
contemplated by this Agreement and the Control Agreement, or (ii) unless
such changes have been consented to in writing by
48
the Program Agent and the Secondary Lenders (which consent shall not be
unreasonably withheld or delayed), would require any material change to
the Investment Policies and Restrictions; or
(l) the Adviser shall cease to be a wholly owned direct or
indirect subsidiary of the Parent; or
(m) unless consented to in writing by the Program Agent (which
consent shall not be unreasonably withheld or delayed), the Advisory
Agreement in effect on November 17, 2003 or any replacement advisory
agreement approved of in writing by the Program Agent shall be (i) amended,
waived or otherwise modified in any material respect, or (ii) shall be
terminated unless a replacement investment advisory agreement has been
entered into with a successor investment adviser which is substantially
similar in all material respects to the Advisory Agreement in effect prior
to any such termination; or
(n) ▇▇▇ ▇▇▇▇▇▇ Asset Management or another wholly-owned direct
or indirect subsidiary of the Parent (or another entity consented to in
writing by the Program Agent and the Secondary Lenders (which consent shall
not be unreasonably withheld or delayed) which has executed a letter
agreement in favor of the Program Agent on behalf of the Secured Parties
substantially identical in all material respects to the Letter Agreement),
is not the current investment adviser for the Borrower;
then, and in any such event, in addition to all rights and remedies specified in
this Agreement, including without limitation, Article VII, and the rights and
remedies of a secured party under Applicable Law including, without limitation
the UCC, the Program Agent may, or upon the direction of the Majority Banks
shall, by notice to the Borrower, declare the Termination Date to have occurred
and declare the outstanding Advances to be due and payable (in which case the
Termination Date and the Maturity Date for all outstanding Advances shall be
deemed to have occurred); provided, that, upon the occurrence of any event
(without any requirement for the passage of time or the giving of notice, or
both) described in subsection (f) of this Section 6.01, the Termination Date and
the Maturity Date for all outstanding Advances shall be deemed to have
automatically occurred.
ARTICLE VII
PLEDGE OF PLEDGED COLLATERAL;
RIGHTS OF THE PROGRAM AGENT
SECTION 7.01. Security Interests.
In consideration of the Lenders and the Secondary Lenders
making and maintaining the Advances, and as collateral security for the prompt,
complete and unconditional payment and performance of all of the Borrower
Obligations, the Borrower hereby pledges, hypothecates, assigns, transfers, sets
over and delivers to the Program Agent for the benefit of the Secured Parties
and grants to the Program Agent for the benefit of the Secured Parties a
continuing Lien upon and security interest in, all of the Borrower's right,
title and interest in, to and under all of the Borrower's Instruments,
Securities, Investment Property, Chattel Paper, Payment Intangibles, and
Supporting Obligations, together with all books and records, customer
49
lists, credit files, computer files, programs, printouts and other computer
materials and records related thereto, and all Proceeds thereof, whether now
owned or existing or hereafter arising or acquired and wheresoever located, and
including, without limitation, each of the following assets and properties of
the Borrower (collectively, the "Pledged Collateral"):
(i) all of the Cash, Assets, investments and property
from time to time credited to the Collateral Account, and all security
entitlements with respect to the Collateral Account and all Loan Assets
of the Borrower evidenced by, secured by, or governed by any Loan
Document;
(ii) the Collateral Account (together with all other
accounts in which the distributions referred to in clause (iii) below
are remitted);
(iii) all interest, dividends, stock dividends, stock
splits, distributions and other money or property of any kind
distributed in respect of the assets, investments, property and
security entitlements described in clause (i) above, including without
limitation the principal payments in respect of such Loan Assets;
(iv) all rights and remedies of the Borrower under
the Loan Documents and the Custodial Agreement in respect of the
assets, investments, property and security entitlements described in
clause (i) above;
(v) all security interests, liens, collateral,
property, guaranties, supporting obligations, insurance and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of the assets, investments, property and
security entitlements described in clause (i) above;
(vi) all accounts, contract rights, documents,
instruments, securities, investment property, chattel paper, general
intangibles (including payment intangibles), inventory, goods,
equipment and all other property of every kind and nature, now owned or
hereafter acquired that secure or evidence any of the assets,
investments, property and security entitlements described in clause (i)
above);
(vii) all books, records and other information
(including, without limitation, computer programs, tapes, discs, punch
cards, data processing software and related property and rights)
relating to the assets, investments, property and security entitlements
described in clause (i) above; and
(viii) all Proceeds of any and all of the
foregoing.
Notwithstanding the foregoing provisions of this Section 7.01,
the Pledged Collateral shall not include Modified Margin Stock.
SECTION 7.02. Substitution of Collateral and Release of
Security Interest.
(a) Subject to Section 5.02(p), so long as no Default or Event
of Default shall have occurred and be continuing or would occur as a consequence
of such sale, disposition or
50
substitution and the Borrowing Base Test will be satisfied immediately following
such sale, disposition or substitution, the Borrower may originate entitlement
orders with respect to the Collateral Account and may sell or dispose of or
substitute Pledged Collateral in accordance with the terms of this Agreement and
the Control Agreement.
(b) On the Program Termination Date the Lien granted under
this Agreement shall be automatically terminated and released and the Program
Agent at the written request of the Borrower shall execute, deliver and file
such instruments as the Borrower shall reasonably request in order to reassign,
release or terminate its security interest in the Pledged Collateral. Any and
all actions under this Section 7.02 shall be without any recourse to, or
representation or warranty by, the Program Agent or any Secured Party and shall
be at the sole cost and expense of the Borrower.
SECTION 7.03. Application of Proceeds.
(a) After the occurrence and during the continuance of an
Event of Default, all amounts remitted to the Program Agent's Account in respect
of the Borrower Obligations, including without limitation all Proceeds resulting
from the sale or other disposition of the Pledged Collateral shall be applied by
the Program Agent in the following order and priority:
First, to the payment of all amounts advanced or expended by
the Program Agent and all costs and expenses incurred by the Program Agent in
connection with the enforcement of the Secured Parties' rights and remedies
under the Program Documents;
Second, to the extent funds are remaining after the above
application, to the Lenders and the Secondary Lenders to the payment of all
accrued and unpaid Yield on all outstanding Advances on a pro-rata basis
according to the amount of accrued Yield owing to each Lender and each Secondary
Lender;
Third, to the extent funds are remaining after the above
applications, to the Secured Parties to the payment of all fees payable under
the Fee Letter on a pro rata basis according to the amount of such fees owing to
each such Secured Party;
Fourth, to the extent funds are remaining after the above
applications, to the Lenders and the Secondary Lenders to the payment of the
principal amount of each outstanding Advance on a pro-rata basis according to
the amount of principal owing to each Lender and each Secondary Lender;
Fifth, to the extent funds are remaining after the above
applications, to the Secured Parties to the payment of all other amounts payable
to the Secured Parties pursuant to this Agreement and the other Program
Documents on a pro rata basis according to the amounts owed to each such Secured
Party.
The Program Agent shall, once the Program Termination
Date has occurred, remit the remaining excess Proceeds which it had received
from the sale or disposition of the Pledged Collateral to the Borrower's
Account.
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(b) For purposes of determining the application to be made of
such monies and other cash proceeds by the Program Agent to other Secured
Parties pursuant to this Section 7.03, the Program Agent may rely exclusively
upon a certificate or other statement of such Secured Party setting forth in
reasonable detail the amount then owing to such Secured Party. The Program Agent
shall not be liable for any application of funds in accordance with any
certificate or direction delivered pursuant to this Section 7.03; provided,
however, that no application of funds in accordance with any certificate
delivered pursuant to this Section 7.03 shall be deemed to restrict or limit the
right of any party to contest with the purported obligee its respective
liability in respect of the amount set forth in such certificate.
SECTION 7.04. Rights and Remedies upon Event of Default.
(a) The Program Agent (for itself and on behalf of the other
Secured Parties) shall have all of the rights and remedies of a secured party
under the UCC and other Applicable Law. Upon the occurrence and during the
continuance of an Event of Default, the Program Agent or its designees may (i)
deliver a Notice of Exclusive Control to the Custodian; (ii) instruct the
Custodian to deliver any or all of the Pledged Collateral and any Loan Documents
relating to the Pledged Collateral to the Program Agent or its designees and
otherwise give all instructions and entitlement orders to the Custodian
regarding the Pledged Collateral; (iii) sell or otherwise dispose of the Pledged
Collateral, all without judicial process or proceedings; (iv) take control of
the Proceeds of any such Pledged Collateral; (v) subject to the provisions of
the applicable Loan Documents, exercise any consensual or voting rights in
respect of the Pledged Collateral; (vi) release, make extensions, discharges,
exchanges or substitutions for, or surrender all or any part of the Pledged
Collateral; (vii) enforce the Borrower's rights and remedies under the Custodial
Agreement with respect to the Pledged Collateral; (viii) institute and prosecute
legal and equitable proceedings to enforce collection of, or realize upon, any
of the Pledged Collateral; (ix) require that the Borrower and the Custodian
promptly take action to liquidate the Pledged Collateral to pay amounts due and
payable in respect of the Borrower Obligations; (x) remove from the Borrower's,
the Adviser's and their respective agents' place of business all books, records
and documents relating to the Pledged Collateral unless copies thereof shall
have been provided to the Program Agent which copies of such books and records
shall thereafter be deemed to be originals thereof; and/or (xi) notify all
Selling Institutions, Transaction Agents and Obligors related to the Loan Assets
which constitute Pledged Collateral to make payments in respect thereof directly
to the Program Agent's Account; (xii) at the request of the Program Agent
execute all documents and agreements which are necessary or appropriate to have
the Pledged Collateral which constitutes Loan Assets to be assigned to the
Program Agent or its designee; and (xiii) endorse the name of the Borrower upon
any items of payment relating to the Pledged Collateral or upon any proof of
claim in bankruptcy against an account debtor. For purposes of taking the
actions described in Subsections (i) through (xiii) of this Section 7.04(a) the
Borrower hereby irrevocably appoints the Program Agent as its attorney-in-fact
(which appointment being coupled with an interest is irrevocable while any of
the Borrower Obligations remain unpaid), with power of substitution, in the name
of the Program Agent or in the name of the Borrower or otherwise, for the use
and benefit of the Program Agent, but at the cost and expense of the Borrower
and with notice to the Borrower.
52
(b) All sums paid or advanced by the Program Agent in
connection with the foregoing and all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable outside attorneys' fees and
expenses) incurred in connection therewith, together with interest thereon at
the Post-Default Rate from the date of payment until repaid in full, shall be
paid by the Borrower to the Program Agent on demand and shall constitute and
become a part of the Borrower Obligations secured hereby.
SECTION 7.05. Remedies Cumulative.
Each right, power, and remedy of the Program Agent and the
other Secured Parties, or any of them, as provided for in this Agreement or in
the other Program Documents or now or hereafter existing at law or in equity or
by statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power, or remedy provided for in this Agreement
or in the other Program Documents or now or hereafter existing at law or in
equity or by statute or otherwise, and the exercise or beginning of the exercise
by the Program Agent or any other Secured Party of any one or more of such
rights, powers, or remedies shall not preclude the simultaneous or later
exercise by such Persons of any or all such other rights, powers, or remedies.
Section 7.06. Enforcement of Remedies under the Custodial
Agreement and Loan Documents.
(a) The Borrower agrees that it shall, (i) during the
continuance of a Default or an Event of Default, upon the request of the Program
Agent (and at the Borrower's own expense) diligently enforce the rights and
remedies under the Custodial Agreement and at law or equity against the
Custodian for any material breach by the Custodian of any term, covenant or
agreement thereunder relating to or affecting any Pledged Collateral, and (ii)
diligently enforce its rights and remedies under the Loan Documents relating to
the Pledged Collateral. The Borrower, shall at all times enforce its rights and
remedies under the Custodial Agreement and the Loan Documents with the same
degree of care and diligence that it would exercise if this Agreement had not
been entered into; provided, that, during the continuance of a Default or an
Event of Default, the Borrower shall not, in enforcing such rights and remedies,
settle any claim against the Custodian without the prior written consent of the
Program Agent (which consent shall not be unreasonably withheld or delayed).
(b) The Borrower agrees that to the extent not expressly
prohibited by the terms of the related Loan Documents, after the occurrence and
during the continuance of an Event of Default, it shall (i) upon the written
request of the Program Agent promptly forward to the Program Agent all
information and notices which it receives under or in connection with the Loan
Documents relating to the Pledged Collateral, and (ii) act and refrain from
acting, in respect of any request, act, decision or vote under the Loan
Documents relating to the Pledged Collateral only in accordance with the
direction of the Program Agent.
ARTICLE VIII
THE PROGRAM AGENT
SECTION 8.01. Authorization and Action.
53
Each of the Secured Parties hereby irrevocably appoints and
authorizes the Program Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Program Documents as are
delegated to the Program Agent by the terms hereof and thereof, together with
such powers as are reasonably incidental thereto. The Program Agent shall not
have any duties or responsibilities, except those expressly set forth herein or
in the other Program Documents, or any fiduciary relationship with any Secured
Party, and no implied covenants, functions, responsibilities, duties or
obligations or liabilities on the part of the Program Agent shall be read into
this Agreement or any other Program Document or otherwise exist for the Program
Agent. As to any matters not expressly provided for by this Agreement or the
other Program Documents, the Program Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks; provided, however, that the Program
Agent shall not be required to take any action which exposes the Program Agent
to personal liability or which is contrary to this Agreement, the other Program
Documents or Applicable Law. Each Secured Party agrees that in any instance in
which the Program Documents provide that the Program Agent's consent may not be
unreasonably withheld, provide for the exercise of the Program Agent's
reasonable discretion, or provide to a similar effect, it shall not in its
instructions to the Program Agent withhold its consent or exercise its
discretion in an unreasonable manner.
SECTION 8.02. Delegation of Duties.
The Program Agent may execute any of its duties under this
Agreement and each other Program Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Program Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
SECTION 8.03. Program Agent's Reliance, Etc.
Neither the Program Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any of the other
Program Documents, except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the Program Agent:
(i) may consult with legal counsel (including counsel for the Borrower or the
Adviser) and independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (ii)
makes no warranty or representation to any Secured Party or any other Person and
shall not be responsible to any Secured Party or any Person for any statements,
warranties or representations (whether written or oral) made in or in connection
with this Agreement or the other Program Documents; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement, the other Program
Documents or any Loan Documents on the part of the Borrower, the Adviser, the
Custodian or any other Person or to inspect the property (including the books
and records) of the Borrower or the Adviser; (iv) shall not be responsible to
any Secured Party or any other Person for the due execution, legality, validity,
enforceability, genuineness, sufficiency
54
or value of this Agreement, the other Program Documents, any Loan Document or
any other instrument or document furnished pursuant hereto or thereto; and (v)
shall incur no liability under or in respect of this Agreement or any other
Program Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be delivered by telecopier, telegram, cable or
telex) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 8.04. Indemnification.
Each of the Secondary Lenders agrees to indemnify and hold the
Program Agent harmless (to the extent not reimbursed by or on behalf of the
Borrower) from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Program Agent in any way relating to or arising out of this
Agreement or any other Program Document or any action taken or omitted by the
Program Agent under this Agreement or any other Program Document; provided, that
no Secondary Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Program Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each of the Secondary
Lenders agrees to reimburse the Program Agent promptly upon demand for any
out-of-pocket expenses (including reasonable counsel fees) incurred by the
Program Agent in connection with the administration or enforcement (whether
through negotiations, legal proceedings or otherwise) or legal advice in respect
of rights or responsibilities under this Agreement or the other Program
Documents, to the extent that the Program Agent is not reimbursed for such
expenses by or on behalf of the Borrower. Each Secondary Lender shall be
obligated to pay its Proportionate Share of all amounts payable to the Program
Agent under this Section 8.04. As used in this Section 8.04, the term
"Proportionate Share" in respect of any Secondary Lender means the fraction,
expressed as a percentage, the numerator of which is the Secondary Lender
Commitment of such Secondary Lender and the denominator of which is the Total
Commitment.
SECTION 8.05. Successor Program Agent.
The Program Agent may, upon thirty (30) days' notice to the
Borrower, the Conduit Lenders and the Secondary Lenders, resign as Program
Agent. If the Program Agent shall resign, then the Majority Banks during such
thirty (30) day period shall appoint from among the Secondary Lenders a
successor program agent. If for any reason a successor program agent is not so
appointed and does not accept such appointment during such thirty (30) day
period, the Program Agent may appoint a successor program agent. Any resignation
of the Program Agent shall be effective upon the appointment of a successor
program agent pursuant to this Section 8.05 and the acceptance of such
appointment by such successor. After the effectiveness of any retiring Program
Agent's resignation hereunder as Program Agent, the retiring Program Agent shall
be discharged from its duties and obligations hereunder and under the other
Program Documents and the provisions of this Article VIII and Section 9.04 shall
continue in effect for its benefit with respect to any actions taken or omitted
to be taken by it while it was Program Agent under this Agreement and under the
other Program Documents.
55
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. No Waiver; Modifications in Writing.
No failure or delay on the part of any Secured Party in
exercising any right, power or remedy hereunder or with respect to the Advances
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. The remedies provided for
herein are cumulative and are not exclusive of any remedies that may be
available to any Secured Party, at law or in equity. No amendment, modification,
supplement, termination or waiver of this Agreement shall be effective unless
the same shall be in writing and signed by each of the Borrower, the Conduit
Lenders and the Program Agent. Any waiver of any provision of this Agreement,
and any consent to any departure by the Borrower from the terms of any provision
of this Agreement, shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances. Notwithstanding the foregoing, in no event shall
the Secondary Lender Commitment of any Secondary Lender be extended or increased
without the written consent of such Secondary Lender.
SECTION 9.02. Notices, Etc.
Except where telephonic instructions are authorized herein to
be given, all notices, demands, instructions and other communications required
or permitted to be given to or made upon any party hereto shall be in writing
and shall be personally delivered or sent by registered, certified or express
mail, postage prepaid, or by prepaid telegram (with messenger delivery specified
in the case of a telegram), or by facsimile transmission, or by prepaid courier
service, and shall be deemed to be given for purposes of this Agreement on the
day that such writing is received by the intended recipient thereof. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section 9.02, notices, demands, instructions and
other communications in writing shall be given to or made upon the respective
parties hereto at their respective addresses (or to their respective facsimile
numbers) indicated below, and, in the case of telephonic instructions or
notices, by calling the telephone number or numbers indicated for such party
below:
If to the
Conduit Lenders: JS Siloed Trust
c/o JPMorgan Chase Bank, N.A.
Mail Suite ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Portfolio Management
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
56
Chariot Funding LLC
c/o JPMorgan Chase Bank, N.A.
Mail Suite ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Portfolio Management
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to JPMorgan, as
Program Agent or
Secondary Lender: JPMorgan Chase Bank, N.A.
Mail Suite ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Portfolio Management
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to State Street
Bank and Trust
Company: State Street Bank and Trust Company
Mutual Fund Lending
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Tower 2, Floor 4
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice
President
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to The Bank of
New York: The Bank of New York Mellon
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.:(▇▇▇) ▇▇▇-▇▇▇▇
57
If to the Borrower: ▇▇▇ ▇▇▇▇▇▇ Senior Loan Fund
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Senior Loan Group
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 9.03. Taxes.
(a) Any and all payments owed to any Secured Party, Affected
Person or Indemnified Party by the Borrower under this Agreement or any other
Program Document (other than any Loan Document) to which it is a party shall be
made, in accordance with this Agreement, free and clear of and without deduction
for any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of the Secured Parties, (i) United States federal withholding taxes and (ii)
income, profits and franchise taxes imposed on it by any taxing Authority in any
jurisdiction which asserts jurisdiction to impose such taxes on the basis of
contacts which the Secured Party in question maintains with such jurisdiction
other than contacts arising solely out of the execution, delivery or performance
of the Program Documents or the transactions contemplated thereby (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any other Program Document (other than any Loan Document) to
which it is a party to any Secured Party, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 9.03) such
Secured Party receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with Applicable Law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made by the Borrower to any
Secured Party, any Affected Person or any Indemnified Party hereunder or under
any other Program Document (other than any Loan Document) to which the Borrower
is a party or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or under any other Program Document (other than any
Loan Document) to which it is a party (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each of the Secured Parties
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 9.03) paid by any Secured Party in respect of the Borrower and any
liability (including penalties, interest and expenses) (other than such as are
the result of such Person's action or failure to take action) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or
58
legally asserted. This indemnification shall be made within thirty (30) days
from the date the Secured Party makes written demand therefor to the Borrower.
(d) Within thirty (30) days after the date of receiving a
receipt for any payment of Taxes or Other Taxes, the Borrower will furnish to
the Program Agent the original or a copy of a receipt evidencing payment
thereof.
(e) With respect to an assignment or appointment of a
successor program agent, the assignee or successor program agent (including such
that is already a party to this Agreement) shall not be entitled to increased
amounts or Other Taxes pursuant to this Section 9.03 in excess of the amount to
which its transferor or predecessor, as the case may be, was entitled.
(f) To the extent legally entitled to do so, each Secured
Party and participant shall provide to the Borrower and Program Agent (as
applicable) such forms or other certifications at such time(s) and in such
manner(s) as will permit payments to be made under this Agreement without
deduction for, or at a reduced rate of, withholding taxes.
(g) If any Secured Party determines, in its sole discretion,
that it has actually received or realized any refund or tax, any reduction of,
or credit against, its tax liabilities or otherwise recovered any amount that
would not have been received, realized or recovered but for any deduction or
withholding, or payment of any additional amount, by the Borrower pursuant to
this Section 9.03 or Section 2.07, then so long as no Default or Event of
Default shall have occurred and be continuing, such Secured Party shall
reimburse the Borrower an amount that the Secured Party shall, in its sole
discretion, determine is equal to the net benefit after tax, and net of all
expenses incurred by the Secured Party in connection with its receipt or
realization of such refund, reduction, credit or recovery; provided, that
nothing in this paragraph (g) shall require any Secured Party to make available
its tax returns (or any other information relating to its taxes which it deems
to be confidential). The Borrower shall return such amount to the applicable
Secured Party in the event that the Secured Party is subsequently required to
repay such refund of tax or is not entitled to such reduction of, or credit
against, its tax liabilities.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreement and obligations of the Borrower
contained in this Section 9.03 shall survive the termination of this Agreement
and the payment in full of principal and Yield hereunder until the expiration of
all applicable statutes of limitation.
SECTION 9.04. Costs and Expenses; Indemnification.
(a) The Borrower agrees to promptly pay on written demand all
reasonable costs and expenses (excluding any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, in each case, now or hereafter imposed, levied, collected,
withheld or assessed) of each of the Secured Parties and Jupiter, in connection
with the preparation, review, negotiation, reproduction, execution, delivery,
modification, amendment and enforcement of this Agreement and the other Program
Documents to which the Borrower is a party, including, without limitation, the
reasonable fees and disbursements of counsel for the Secured Parties and Jupiter
with respect thereto and with
59
respect to advising the Secured Parties and Jupiter, as to its rights, remedies
and responsibilities under this Agreement and the other Program Documents to
which the Borrower is a party, UCC filing fees, periodic auditing expenses
incurred in connection with clauses (h) and (i) of Section 5.01 and all other
related fees and expenses.
(b) The Borrower agrees to indemnify and hold harmless each
Secured Party, Jupiter and each of their Affiliates and the respective officers,
directors, employees, agents, managers of, and any Person controlling any of,
the foregoing (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities, obligations, expenses, penalties, actions,
suits, judgments and disbursements of any kind or nature whatsoever, (including,
without limitation, the reasonable fees and disbursements of counsel), but
excluding in all cases any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
in each case, now or hereafter imposed levied, collected, withheld or assessed
(collectively the "Liabilities") that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of the execution, delivery, enforcement, performance,
administration of or otherwise arising out of or incurred in connection with
this Agreement, any Loan Document or any other Program Document to which the
Borrower is a party or any transaction contemplated hereby or thereby (and
regardless of whether or not any such transactions are consummated), including,
without limitation any such Liability that is incurred or arises out of or in
connection with, or by reason of any one or more of the following: (i)
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with this Agreement or any other
Program Document to which the Borrower is a party or any of the transactions
contemplated hereby or thereby; (ii) any breach or alleged breach of any
covenant by the Borrower contained in any Program Document to which the Borrower
is a party; (iii) any representation or warranty made or deemed made by the
Borrower contained in any Program Document to which the Borrower is a party or
in any certificate, statement or report delivered in connection therewith is, or
is alleged to be, false or misleading; (iv) any failure by the Borrower to
comply with any Applicable Law or contractual obligation binding upon it; (v)
any failure to vest, or delay in vesting, in the Secured Parties a first
priority perfected (subject to the Lien of the Custodian securing the
Custodian's Overdraft Advances to the extent permitted by Section 5.02(o) and
other Permitted Liens) security interest in all of the Pledged Collateral; (vi)
any action or omission, not expressly authorized by the Program Documents to
which the Borrower is a party, by the Borrower which has the effect of reducing
or impairing the Pledged Collateral or the rights of the Program Agent or the
Secured Parties with respect thereto; (vii) any Default or Event of Default
relating to the Borrower; (viii) any claim that any Secured Party or Jupiter has
assumed any obligation or liability of the Borrower under any Loan Document or
otherwise; and (ix) any transactions related to the funding, carrying or
repayment of the outstanding principal amount of the Advances in connection with
the Program Documents to which the Borrower is a party; except to the extent any
such Liability is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence, bad faith or willful misconduct.
(c) For the avoidance of doubt, neither the payment of any
Liability by the Borrower under Section 9.04(b) nor the terms of Section 9.04(b)
shall be deemed to limit any right or cause of action the Borrower may have
against any Indemnified Party or any other
60
Person. Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 9.04 shall survive the termination of this Agreement and the payment in
full of principal and Yield on the Advances.
SECTION 9.05. Execution in Counterparts.
This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same agreement.
SECTION 9.06. Assignability.
(a) This Agreement and each Conduit Lender's rights and
obligations herein (including the outstanding Advances) shall be assignable by
such Conduit Lender to an Eligible Assignee; provided, that without the prior
written consent of the Borrower (which consent shall not be unreasonably
withheld or delayed and which consent shall, in any event not be required if an
Event of Default shall have occurred and be continuing) such Conduit Lender
shall not assign its obligations under this Agreement to any Person other than
to a U.S. Affiliate of the Program Agent which is a special purpose entity. Each
such assignor shall notify the Program Agent and the Borrower of any such
assignment. Each such assignor may, in connection with the assignment or
participation, disclose to the assignee or participant any information relating
to the Borrower, including the Pledged Collateral, furnished to such assignor by
or on behalf of the Borrower or by the Program Agent; provided that, prior to
any such disclosure, the assignee or participant agrees to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from any of the foregoing entities. Notwithstanding the
foregoing, without the consent of the Borrower, each Conduit Lender may,
pursuant to the Asset Purchase Agreement or otherwise, sell, assign, transfer
and convey all or any portion of the Advances maintained by such Conduit Lender,
together with all rights hereunder and under the Program Documents in respect
thereof, to any bank or financial institution which is also a Secondary Lender.
(b) Each Secondary Lender may, with the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed and which
consent shall, in any event, not be required if an Event of Default shall have
occurred and be continuing), assign to any Eligible Assignee or to any other
Secondary Lender all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Secondary
Lender Commitment and the outstanding Advances or interests therein owned by
it); provided, that the Borrower's consent to any such assignment shall not be
required if the assignee is an existing Secondary Lender or a U.S. Affiliate of
an existing Secondary Lender. The parties to each such assignment shall execute
and deliver to the Program Agent an Assignment and Acceptance. Notwithstanding
the foregoing, each Secondary Lender may assign or pledge or grant a security
interest in any or all of its rights (including, without limitation, rights to
payment of principal and Yield on the Advances and the ability to pledge) under
this Agreement to any Federal Reserve Bank without notice to or consent of the
Borrower.
61
(c) The Program Agent may, with the consent of the Borrower
(which consent shall not be unreasonably withheld or delayed and which consent
shall not be required if an Event of Default has occurred and is continuing),
assign this Agreement and its rights and obligations hereunder; provided, that
the Borrower's consent to any such assignment shall not be required if the
assignee is a U.S. Affiliate of the Program Agent.
(d) Except for an assignment by operation of law to the extent
expressly permitted by Section 5.02(d), the Borrower may not assign its rights
or obligations hereunder or any interest herein without the prior written
consent of the Program Agent and the Secondary Lenders.
(e) The Borrower acknowledges and agrees that each Lender's
(other than the Conduit Lenders) and each Secondary Lender's source of funds may
derive in part from its participants. Accordingly, references in Sections 2.06,
2.07, 2.08, 9.03 and 9.04 and the other terms and provisions of this Agreement
and the other Program Documents (other than the Loan Documents) to rates,
determinations, reserve and capital adequacy requirements, expenses, increased
costs, reduced receipts and the like as they pertain to the Lenders (other than
the Conduit Lenders) and the Secondary Lenders shall be deemed also to include
those of each of its participants; provided, that no participant shall be
entitled to any amount under any such Sections or provisions, which is greater
than the amount the related Lender or Secondary Lender, as the case may be,
would have been entitled to under any such Sections or provisions if the
applicable participation had not occurred.
(f) The Program Agent shall maintain at its address specified
in Section 9.02 or such other address as the Program Agent shall designate in
writing to the Conduit Lenders and Secondary Lenders, a copy of this Agreement
and each signature page hereto and each Assignment and Acceptance delivered to
and accepted by it and a register (the "Register") for the recordation of the
names and addresses of such Secondary Lenders, their Secondary Lender
Commitments, effective dates and Secondary Lender Stated Expiration Dates, and
the aggregate outstanding principal amount of the outstanding Advances made by
each such Secondary Lender under this Agreement. The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Program Agent and the Secondary Lenders may treat each Person
whose name is recorded in the Register as a Secondary Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Secondary Lender at any reasonable time and from time to
time upon reasonable prior notice.
SECTION 9.07. Governing Law.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF ILLINOIS, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE.
SECTION 9.08. Severability of Provisions.
62
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 9.09. Confidentiality.
(a) The Borrower agrees that it shall (i) keep this Agreement,
the Control Agreement, the Fee Letter, the Letter Agreement, the proposal
relating to the structure of the facility contemplated by this Agreement, (the
"Facility"), any analyses, computer models, information or document prepared by
the Program Agent or any of its Affiliates in connection with the Facility, the
Program Agent's or any of its Affiliate's written reports to the Borrower, the
Adviser or any of their respective Affiliates and any related written
information (collectively, the "Product Information") confidential and to
disclose Product Information only to those of its officers, employees, agents,
accountants, regulators, financial advisors, trustees, directors, legal counsel
and other representatives (collectively, the "Borrower Representatives") who may
have a need to know or review such Product Information for the purpose of
assisting in the negotiation, evaluation, completion and administration of the
Facility; (ii) use the Product Information only in connection with the Facility
and not for any other purpose; and (iii) cause the Borrower Representatives to
comply with the provisions of this Section 9.09 and to be responsible for any
failure of any Borrower Representative to so comply. The Borrower shall not
disclose Product Information to any third-party for the purpose of enabling such
third-party to provide senior debt to the Borrower.
The provisions of this Section 9.09(a) shall not apply to any
Product Information that is a matter of general public knowledge or that has
heretofore been made available to the public by any Person other than the
Borrower, the Adviser, any of their respective Affiliates or any Borrower
Representative or that is required to be disclosed by applicable law or
regulation or is requested by any Authority with jurisdiction over the Borrower,
the Adviser, any Borrower Representative or any of their respective Affiliates,
it being understood that any such disclosure or filing shall not relieve the
Borrower, the Adviser, any of their respective Affiliates or any Borrower
Representative of any of its obligations under this Section 9.09(a). Each of the
Borrower and the Adviser agree that if any Product Information is required by
applicable law or regulation to be included by it in any filing with the SEC or
any other Authority it shall, in consultation with the Program Agent, use its
reasonable best efforts to "black-out" all information which is not necessary
under applicable law or regulation to be included in such filing which the
Program Agent deems is of a sensitive nature and in no event shall the Fee
letter or the Investor Report be disclosed in any such filing.
(b) Each of the Secured Parties agrees (i) to keep all
non-public information with respect to the Borrower and the Adviser and their
respective Affiliates which such Secured Party receives pursuant to the Program
Documents (collectively, the "Borrower Information") confidential and to
disclose Borrower Information only to those of its officers, employees, agents,
accountants, legal counsel and other representatives of the Secured Parties and
Jupiter (collectively, the "Secured Party Representatives"), to providers of
program-wide credit enhancement for, other financings to, or investors in the
Conduit Lenders, and to S&P, ▇▇▇▇▇'▇
63
or any other rating agency that rates the promissory notes of the Conduit
Lenders and Jupiter which, in each case, may have a need to know or review such
Borrower Information for the purpose of assisting in the negotiation,
completion, administration and evaluation of the Facility; (ii) to use the
Borrower Information only in connection with the Facility and not for any other
purpose; and (iii) to cause its related Secured Party Representatives to comply
with the provisions of this Section 9.09(b).
The provisions of this Section 9.09(b) shall not apply to any
Borrower Information that is a matter of general public knowledge or that has
heretofore been made available to the public by any Person other than any
Secured Party or any Secured Party Representative or that is required to be
disclosed by applicable law or regulation or is requested by any Authority with
jurisdiction over any Secured Party or Secured Party Representative or any of
its Affiliates.
Notwithstanding the foregoing, the Borrower Information may be
disclosed by any Secured Party Representative to permitted assignees and
participants and potential assignees and participants in the Facility to the
extent such disclosure is made pursuant to a written agreement of
confidentiality substantially similar to this Section 9.09(b).
(c) Notwithstanding anything in this Section 9.09 to the
contrary, the parties hereto (and each of their respective employees,
representatives or other agents) may disclose to any and all Persons, without
limitation of any kind, the "tax treatment" and "tax structure" (in each case
within the meaning of Treasury Regulation Section 1.6011-4) of the Facility and
all materials of any kind (including opinions or other tax analyses) that are
provided to it, relating to such tax treatment and tax structure of the
Facility, other than any information for which non-disclosure is reasonably
necessary in order to comply with applicable securities laws.
SECTION 9.10. Merger.
The Program Documents (other than the Loan Documents) taken as
a whole incorporate the entire agreement between the parties thereto concerning
the subject matter thereof. The Program Documents (other than the Loan
Documents) supersede any prior agreements among the parties thereto relating to
the subject matter thereof.
SECTION 9.11. No Proceedings.
Each of the parties to this Agreement and each assignee of any
Advance or any interest therein and each entity which enters into a commitment
to make Advances to the Borrower hereunder hereby agrees that it will not
institute against any Conduit Lender or Jupiter any proceeding of the type
referred to in Section 6.01(f) so long as the JUSI Certificates issued by the
Trust to Jupiter or any commercial paper issued by any Conduit Lender or Jupiter
shall be outstanding or there shall not have elapsed one year plus one day since
the last day on which the JUSI Certificates issued by the Trust or commercial
paper issued by the Conduit Lenders or Jupiter shall have been outstanding. The
obligations of each Conduit Lender under and in connection with this Agreement
and the other Program Documents are solely the obligations of each Conduit
Lender. It is expressly agreed that no recourse shall be had for the payment of
any
64
amount owing by or in respect of any Conduit Lender in respect of this
Agreement or any other Program Document or for any other obligation of, or claim
against, such Conduit Lender arising out of or based upon this Agreement or any
other Program Document, against any member, stockholder, employee, officer,
trustee, manager, director, organizer or incorporator of such Conduit Lender or
against any member, stockholder, employee, officer, trustee, manager, director,
organizer or incorporator of any such member, stockholder or manager.
SECTION 9.12. Survival of Representations and Warranties.
All representation and warranties made hereunder, in the other
Program Documents (other than the Loan Documents) and in any document,
certificate or statement delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery of this Agreement
and the making of the Advances hereunder.
SECTION 9.13. Consent to Amendment and Restatement.
Each of the Secondary Lenders (including in its capacity as a
purchaser under the Asset Purchase Agreement as required pursuant to the terms
thereof) hereby consents to this amendment and restatement of the Existing
Credit Agreement.
SECTION 9.14. Loan Documents.
No obligation or liability of the Borrower is intended to be
assumed by the Program Agent or any other Secured Party under or as a result of
this Agreement or the other Program Documents, and the transactions contemplated
hereby and thereby, including, without limitation, under any Loan Document and,
to the maximum extent permitted under provisions of law, the Program Agent and
the other Secured Parties expressly disclaim any such assumption.
If an Event of Default under Section 6.01(f) in respect of the
Borrower shall have occurred and is continuing or the Program Agent shall have
delivered a Notice of Exclusive Control to the Custodian, and such notice has
not been revoked by the Program Agent, the Borrower will use its best efforts to
obtain and give all necessary consents under all Loan Documents relating to any
Pledged Collateral and execute and deliver all agreements and documents which
are necessary or appropriate in order to enable the Secured Parties to enforce
their rights and remedies hereunder and under the other Program Documents,
including without limitation, to permit the Pledged Collateral which constitutes
Loan Assets to be assigned to the Program Agent or its designees. In addition,
the Borrower shall pay all assignment fees which are required to be paid
pursuant to the Loan Documents relating to the Pledged Collateral in connection
with the foregoing. The Program Agent and the Secured Parties acknowledge that
in order to enforce certain of their remedies in respect of the Pledged
Collateral which constitutes Loan Assets after the occurrence and during the
continuance of an Event of Default, certain provisions of the related Loan
Documents may need to be complied with, including provisions requiring the
consent of the related Transaction Agent and/or Obligor.
The Program Agent agrees that if it would be prevented from
reviewing any Loan Document relating to an Eligible Loan Asset in connection
with the exercise of its rights under
65
Section 5.01(i) or Section 7.04, as a result of any confidentiality agreement
entered into by the Borrower in respect thereof, and if it's review of such Loan
Documents would be permitted if it agrees to maintain the confidentiality of
such Loan Documents in accordance with the terms of such confidentiality
agreement (each such confidentiality agreement a "Subject Confidentiality
Agreement"), the Program Agent hereby agrees to abide by the terms of such
Subject Confidentiality Agreement in respect of such Loan Documents.
SECTION 9.15. Submission to Jurisdiction; Waivers.
The Borrower hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement or the other Program
Documents (other than the Loan Documents) to which it is a party, or
for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of any United States Federal or
Illinois State court sitting in Chicago, Illinois, and the appellate
courts of any of them;
(ii) consents that any such action or proceeding may
be brought in any of such courts and waives any objection that it may
now or hereafter have to the venue of any such action or proceeding in
any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Borrower at its address set forth in
Section 9.02 or at such other address as may be permitted thereunder;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner permitted by law
or shall limit the right to ▇▇▇ in any other jurisdiction or court; and
(v) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary, punitive
or consequential damages.
SECTION 9.16. E-Mail Reports.
Subject to the following terms and conditions the Borrower
may, unless otherwise notified to the contrary by the Program Agent, transmit
Investor Reports to the Program Agent by electronic mail (each an "E-Mail
Report"). Each E-Mail Report shall be formatted as the Program Agent may
reasonably designate from time to time. Each E-Mail Report shall be sent to the
Program Agent at an electronic mail address designated by the Program Agent, and
the executed "summary sheet" for each E-Mail Report shall be transmitted via
facsimile transmission to the Program Agent at the facsimile numbers specified
for the Program Agent in Section 9.02.
SECTION 9.17. Waiver of Jury Trial.
66
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER PROGRAM DOCUMENT (OTHER THAN ANY LOAN DOCUMENT)
TO WHICH THE BORROWER IS A PARTY OR FOR ANY COUNTERCLAIM THEREIN OR RELATING
THERETO.
SECTION 9.18. Several Obligations.
Except for the commitment of the Secondary Lenders to make
Advances if the Conduit Lenders have declined to make an Advance to the extent
expressly required by Section 2.02, no Lender or Secondary Lender shall be
responsible for the failure of any other Lender or Secondary Lender to make any
Advance or to perform any obligation under this Agreement or any other Program
Document. The Program Agent shall not have any liability to the Borrower, any
Lender or any Secondary Lender for the Borrower's, any Lender's or any Secondary
Lender's, as the case may be, performance of, or failure to perform, any of
their respective obligations and duties under this Agreement or any other
Program Document.
SECTION 9.19. Limitation on Liability.
No claim may be made by the Borrower or any other Person
against the Program Agent, any Lender or any Secondary Lender or Jupiter or
their respective Affiliates, directors, officers, employees, attorneys or agents
for any special, indirect, consequential or punitive damages in respect of any
claim for breach of contract or any other theory or liability arising out of or
related to the transactions contemplated by this Agreement or any other Program
Document, or any act, omission or event occurring in connection therewith; and
the Borrower hereby waives, releases, and agrees not to ▇▇▇ upon any claim for
any such damages, whether or not accrued and whether or not known or suspected
to exist in its favor.
As provided for in Section 5.5 of the Amended and Restated
Declaration of Trust, made as of September 19, 1989 and subsequently amended, of
the Borrower (under which the Borrower is organized as a voluntary association
with transferable shares under the laws of the Commonwealth of Massachusetts),
the shareholders, trustees, officers, employees and other agents of the Borrower
shall not personally be bound by or liable for the matters set forth herein or
in any other Program Document, nor shall resort be had to their private property
for the satisfaction of any obligation or claim hereunder or under any other
Program Document.
SECTION 9.20. Patriot Act Notice.
Each of the Lenders hereby notifies the Borrower that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed
into law on October 26, 2001)) (the "Patriot Act"), it is required to obtain,
verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with the Patriot Act.
The Borrower shall, and shall cause each of its subsidiaries, if any, to,
provide to the extent commercially reasonable, such information and take such
actions as are reasonably
67
requested by any Lender in order to assist such Lender in maintaining compliance
with the Patriot Act.
SECTION 9.21. No Novation.
It is the intent of the parties hereto that this Agreement (i)
shall re-evidence, in part, the Borrower's indebtedness under the Existing
Credit Agreement, (ii) is entered into in substitution for, and not in payment
of, the obligations of the Borrower under the Existing Credit Agreement, and
(iii) is in no way intended to constitute a novation of any of the Borrower's
indebtedness which was evidenced by the Existing Credit Agreement or any of the
other Program Documents (as defined in the Existing Credit Agreement).
SECTION 9.22. Third Party Beneficiary.
The parties hereto acknowledge and agree that Jupiter is an
intended third party beneficiary of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND,
as Borrower
By:
----------------------------
Name:
Title:
JS SILOED TRUST,
as Conduit Lender
By JPMorgan Chase Bank, N.A.,
its attorney-in-fact
By:
----------------------------
Name:
Title:
CHARIOT FUNDING LLC,
as Conduit Lender
By JPMorgan Chase Bank, N.A.,
its attorney-in-fact
By:
----------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A,,
as Secondary Lender and Program Agent
By:
----------------------------
Name:
Title:
Secondary Lender Percentage: 55.00%
Secondary Lender Commitment: $275,000,000
STATE STREET BANK AND TRUST COMPANY,
as Secondary Lender
By:
----------------------------
Name:
Title:
Secondary Lender Percentage: 25.00%
Secondary Lender Commitment: $125,000,000
THE BANK OF NEW YORK MELLON,
as Secondary Lender
By:
----------------------------
Name:
Title:
Secondary Lender Percentage: 20.00%
Secondary Lender Commitment: $100,000,000
SCHEDULE I
FORM OF INVESTOR REPORT
Annex A
to
Schedule I
--------------------------------------------------------------------------------
Investor Report Officer's Certificate
The undersigned, ______________, [INSERT TITLE] of ▇▇▇ ▇▇▇▇▇▇
Senior Loan Fund (the "Borrower") pursuant to Section 5.01(e) of that certain
Second Amended and Restated Revolving Credit and Security Agreement, dated as of
July 31, 2008, among the Borrower, JS Siloed Trust, Chariot Funding LLC, the
banks and financial institutions parties thereto and JPMorgan Chase Bank, NA.,
as program agent (the "Program Agent"), as the same may be amended, modified or
supplemented from time to time (the "Credit Agreement"), hereby certifies that
to the undersigned's actual knowledge:
1. Except as expressly disclosed in writing to the Program Agent,
no event has occurred and is continuing which would constitute
a Default or an Event of Default.
2. Except as expressly disclosed in writing to the Program Agent,
as of the date hereof, the Borrower is in compliance with the
Borrowing Base Test and the Asset Coverage Test.
Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has duly signed on behalf of the
Borrower as of the date set forth below.
DATED:
---------------------
----------------------------------
Name:
Title:
--------------------------------------------------------------------------------
SCHEDULE II
FORM OF PLAN ARRANGEMENTS
EXHIBIT A
[FORM OF ADVANCE NOTE]
$---------- ---------, ----
FOR VALUE RECEIVED, on the Maturity Date (as defined in the Credit
Agreement defined below) of each Advance made by the [Conduit Lender] [Secondary
Lender] to the undersigned (the "Borrower") pursuant to the Credit Agreement
(defined below), the Borrower hereby promises to pay to the order of [INSERT
NAME OF CONDUIT LENDER OR SECONDARY LENDER] (together with its successors and
assigns the ["Conduit Lender"] ["Secondary Lender"]) the unpaid principal amount
of each such Advance, in immediately available funds and in lawful money of the
United States of America, and to pay Yield on the unpaid balance of said
principal Advance from the Borrowing Date thereof, until the principal amount
thereof shall have been paid in full, in like funds and money as provided in
said Credit Agreement for Advances made by the [Conduit Lender] [Secondary
Lender] and at the maturity thereof. Capitalized terms used in this promissory
note unless otherwise defined herein shall have the meaning assigned to such
terms in the Credit Agreement.
This promissory note is an Advance Note referred to in the Second
Amended and Restated Revolving Credit and Security Agreement dated as of July
31, 2008 (as from time to time amended, modified, or supplemented, the "Credit
Agreement") among the Borrower, [the Conduit Lender], [Secondary Lender], the
lenders parties thereto, and JPMorgan Chase Bank, N.A., as program agent. The
date and principal amount of each Advance made to the Borrower and of each
repayment of principal thereon shall be recorded by the [Conduit Lender]
[Secondary Lender] or its designee on Schedule I attached to this Advance Note,
and the aggregate unpaid principal amount shown on such schedule shall be
rebuttable presumptive evidence of the principal amount owing and unpaid on the
Advances made by the [Conduit Lender] [Secondary Lender]. The failure to record
or any error in recording any such amount on such schedule shall not, however,
limit or otherwise affect the obligations of the Borrower hereunder or under the
Credit Agreement to repay the principal amount of the Advances together with all
Yield accrued thereon.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS.
▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND
By:
------------------------
Name:
Title:
SCHEDULE I
TO EXHIBIT A
This Advance Note evidences Advances made by [INSERT NAME OF CONDUIT
LENDER OR SECONDARY LENDER], (the ["Conduit Lender"] ["Secondary Lender"]) under
the Second Amended and Restated Revolving Credit and Security Agreement dated as
of July 31, 2008 among ▇▇▇ ▇▇▇▇▇▇ Senior Loan Fund, the [Conduit Lender],
[Secondary Lender], the lenders parties thereto and JPMorgan Chase Bank, N.A.,
as program agent, in the principal amounts and on the dates set forth below,
subject to the payments and prepayments of principal set forth below:
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT AMOUNT PAID BALANCE NOTATION
DATE ADVANCED OR PREPAID OUTSTANDING BY
---- ---------- ----------- ----------- --------
EXHIBIT B
▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND
[ADDRESS]
JPMorgan Chase Bank, N.A.,
as Program Agent
[ADDRESS]
NOTICE OF BORROWING
This Notice of Borrowing is made pursuant to Section 2.02 of that
certain Second Amended and Restated Revolving Credit and Security Agreement
dated as of July 31, 2008, among JS Siloed Trust and Chariot Funding LLC, as
lenders (the "Conduit Lenders"), the bank lenders parties thereto, JPMorgan
Chase Bank, N.A., as program agent (the "Program Agent") and ▇▇▇ ▇▇▇▇▇▇ Senior
Loan Fund, as borrower (the "Borrower") (as the same may from time to time be
amended, supplemented, waived or modified, the "Credit Agreement"). Unless
otherwise defined herein, capitalized terms used herein have the meanings
assigned to those terms in the Credit Agreement.
1. The Borrower hereby requests that on ______________, ____ (the
"Borrowing Date") it receive Advances under the Credit Agreement in an aggregate
principal amount of _____________ Dollars ($_______) (the "Requested Amount").
Such Advances shall be used solely for [Short-Term Purposes][Leverage Purposes].
2. The Borrower hereby gives notice of its request for such Advances to
the Program Agent pursuant to Section 2.02 of the Credit Agreement and requests
the Conduit Lenders or the Secondary Lenders remit, or cause to be remitted, the
proceeds thereof to [the Borrower's Account] [SPECIFY OTHER ACCOUNT, IF
APPLICABLE].
3. The Borrower certifies that (i) the representations and warranties
of the Borrower contained or reaffirmed in Section 4.01 of the Credit Agreement
are true and correct in all material respects on and as of the date hereof to
the same extent as though made on and as of the date hereof (except to the
extent such representations and warranties expressly relate to any earlier
date); (ii) no Default or Event of Default has occurred and is continuing under
the Credit Agreement or will result from the proposed borrowing; (iii) the
conditions precedent to the making of the proposed Advance set forth in Section
3.02 of the Credit Agreement have been fully satisfied; and (iv) immediately
after giving effect to such advance the Borrowing Base Test and the Asset
Coverage Test will be complied with and not more than 20% of its Assets is
represented by Margin Stock.
WITNESS my hand on this ____ day of _________, ____.
▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND,
By:
----------------------------
Name:
Title:
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Revolving Credit
and Security Agreement dated as of July 31, 2008 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement") among JS SILOED
TRUST and CHARIOT FUNDING LLC (together with their respective successors and
assigns, the "Conduit Lenders"), the banks and financial institutions from time
to time parties thereto as secondary lenders (the "Secondary Lenders"), JPMORGAN
CHASE BANK, N.A., as program agent (in such capacity, together with its
successors and assigns, the "Program Agent") and ▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND
(together with its permitted successors and assigns, the "Borrower"). Terms
defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. As of the Effective Date (as defined below), the Assignor hereby
absolutely and unconditionally sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse
to or representation of any kind (except as set forth below) from Assignor,
an interest in and to the Assignor's rights and obligations under the
Credit Agreement and under the other Program Documents (other than the Loan
Documents) equal to the percentage interest specified on Schedule I hereto,
including the Assignor's Secondary Lender Commitment and Secondary Lender
Percentage and the Assignor's portion of the outstanding principal amount
of the Advances (such rights and obligations assigned hereby being the
"Assigned Interests"). After giving effect to such sale, assignment and
assumption, the Assignee's "Secondary Lender Commitment" and the Assignee's
"Secondary Lender Percentage" will be as set forth on Schedule I hereto.
2. The Assignor (i) represents and warrants that immediately prior to
the Effective Date it is the legal and beneficial owner of the Assigned
Interest free and clear of any Lien created by the Assignor; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Program Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any
lien or security or ownership interest created or purported to be created
under or in connection with, the Program Documents or any other instrument
or document furnished pursuant thereto or the condition or value of the
Assigned Interest, Pledged Collateral, or any interest therein; and (iii)
makes no representation or warranty and assumes no responsibility with
respect to the condition (financial or otherwise) of any of the Borrower,
the Custodian, the Adviser or any other Person, or the performance or
observance by any Person of any of its obligations under any Program
Document or any instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement and the other Program Documents (other than the Loan Documents),
together with copies of any financial statements delivered pursuant to
Section 5.01 of the Credit Agreement and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees that
it will,
independently and without reliance upon the Program Agent, the Assignor,
any Conduit Lender or any other Secondary Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under or in connection with any of the Program Documents; (iii) confirms
that it is an Eligible Assignee; (iv) appoints and authorizes the Program
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under the Program Documents as are delegated to the
Program Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Program Documents are required to be performed by it as a
Secondary Lender; (vi) confirms that the assignment hereunder complies with
any applicable legal requirements including the Securities Act of 1933, as
amended; (vii) confirms that such Assignee is a United States Person (as
defined in Section 7701 (a)(30) of the Code) or that such Assignee shall
have provided the Program Agent with two Internal Revenue Service forms
W-8ECI (or a successor form) certifying that the income from the Assigned
Interest is effectively connected with the conduct of such Person's trade
or business in the United States; and (viii) confirms that such Assignee is
not a partnership, grantor trust or S corporation (as such terms are
defined in the Code).
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Program Agent for acceptance and recording by the
Program Agent. The effective date for this Assignment and Acceptance (the
"Effective Date") shall be the date of acceptance hereof by the Program
Agent, unless a later effective date is specified on Schedule I hereto.
5. Upon such acceptance and recording by the Program Agent, as of the
Effective Date, (i) the Assignee shall be a party to and bound by the
provisions of the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Secondary
Lender thereunder and under any other Program Document and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and under any other Program Document.
6. Upon such acceptance and recording by the Program Agent, from and
after the Effective Date, the Program Agent shall make all payments to be
made by it under the Credit Agreement in respect of the Assigned Interest
to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Assigned
Interests for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Illinois.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Schedule I to this Assignment and
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Acceptance by telecopier shall be effective as a delivery of a manually
executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
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Schedule I
Secondary Lender Percentage interest
transferred by Assignor: ___%
Assignee's "Secondary Lender Commitment"
on and after the Effective Date: $___
Assignee's "Secondary Lender Percentage" on and after the Effective Date: ___%
Assignor: [INSERT NAME OF ASSIGNOR],
as Assignor,
By:
-------------------------------
Authorized Signatory,
Assignee: [INSERT NAME OF ASSIGNEE]
as Assignee
By:
-------------------------------
Authorized Signatory
Accepted, Consented to and
Acknowledged this ___ day of
---------------, ----
JPMORGAN CHASE BANK, N.A.,
as Program Agent
By:
--------------------------
Name:
Title:
[▇▇▇ ▇▇▇▇▇▇ SENIOR LOAN FUND
By:
--------------------------*
Authorized Signatory]
---------------------
* If required pursuant to Section 9.06(b).
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