UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 


 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

 

Date of report (Date of earliest event reported) January 22, 2010

 

ARES CAPITAL CORPORATION

(Exact Name of Registrant as Specified in Charter)

 

Maryland

 

000-50697

 

33-1089684

(State or Other Jurisdiction
of Incorporation)

 

(Commission
File Number)

 

(IRS Employer
Identification No.)

 

280 Park Avenue, 22 nd  Floor, Building East, New York, NY

 

10017

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code (212) 750-7300

 

N/A

(Former Name or Former Address, if Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 1.01  Entry into a Material Definitive Agreement .

 

New Revolving Credit Facility

 

On January 22, 2010, Ares Capital Corporation (the “Registrant”) entered into an agreement to amend and restate its senior secured revolving credit facility (as amended and restated, the “New Revolving Credit Facility”).  The New Revolving Credit Facility, among other things, increased the size of the facility from $525 million to $690 million (comprised of $615 million in commitments on a stand-alone basis and an additional $75 million in commitments contingent upon the closing of the Registrant’s acquisition of Allied Capital Corporation (the “Allied Acquisition”)), extended the maturity date to January 22, 2013 and modified pricing.  Subject to certain exceptions, pricing under the Registrant’s prior revolving credit facility was based on LIBOR plus 1.00% or on an “alternate base rate” (which is the highest of a prime rate or the federal funds rate plus 0.50%) plus 0.00%.  Subject to certain exceptions, pricing under the New Revolving Credit Facility is based on LIBOR plus an applicable spread of between 2.50% and 4.00% or on an “alternate base rate” (which is the highest of a prime rate, the federal funds rate plus 0.50%, or one month LIBOR plus 1.00%) plus an applicable spread of between 1.50% and 3.00%, in each case, based on a pricing grid depending on the Registrant’s credit rating.  The effective LIBOR spread under the New Revolving Credit Facility on January 22, 2010 was 3.00%.  The New Revolving Credit Facility is secured by substantially all of the Registrant’s assets (subject to certain exceptions, including investments held by certain subsidiaries of the Registrant).

 

The New Revolving Credit Facility includes an “accordion” feature that allows the Registrant, under certain circumstances, to increase the size of the New Revolving Credit Facility to a maximum of $897.5 million prior to the closing of the Allied Acquisition, and to a maximum of $1.05 billion upon the closing of the Allied Acquisition.

 

Under the New Revolving Credit Facility, the Registrant has made certain representations and warranties and is required to comply with various covenants, reporting requirements and other customary requirements for similar revolving credit facilities, including, without limitation, covenants related to: (a) limitations on the incurrence of additional indebtedness and liens, (b) limitations on certain investments, (c) limitations on certain restricted payments, (d) maintaining a certain minimum stockholders’ equity, (e) maintaining a ratio of total assets (less total liabilities) to total indebtedness, of the Registrant and its subsidiaries, of not less than 2.0:1.0, (f) maintaining minimum liquidity, and (g) limitations on the creation or existence of agreements that prohibit liens on certain properties of the Registrant and its subsidiaries.  The New Revolving Credit Facility also includes usual and customary events of default for senior secured revolving credit facilities of this nature.

 

In addition to the asset coverage ratio described above, borrowings under the New Revolving Credit Facility (and the incurrence of certain other permitted debt) will be subject to compliance with a borrowing base that will apply different advance rates to different types of assets in the Registrant’s portfolio.

 

Borrowings under the New Revolving Credit Facility are also subject to the leverage restrictions contained in the Investment Company Act of 1940, as amended.

 

The description above is only a summary of the material amendment provisions of the New Revolving Credit Facility and is qualified in its entirety by reference to a copy of the New Revolving Credit Facility, which is filed herewith as Exhibit 10.1 to this current report on Form 8-K and by this reference incorporated herein.

 

CP Funding Facility

 

On January 22, 2010, the Registrant also combined its existing $225 million amortizing Ares Capital CP Funding LLC facility with its existing $200 million revolving Ares Capital CP Funding II LLC facility, both with Wachovia Bank, National Association (“Wachovia”), into a single $400 million revolving securitized facility (the “New CP Funding Facility”).  In connection with the combination, the Registrant entered into (i) an Amended and Restated Purchase and Sale Agreement (the “Amended and Restated Purchase and Sale Agreement”) with Ares Capital CP Funding Holdings LLC, a wholly owned subsidiary of the Registrant (“CP Holdings”), pursuant to which the Registrant will sell to CP Holdings certain loans that it has originated or acquired, or will originate or acquire (the “Loans”) from time to time, which Loans CP Holdings will subsequently sell to Ares Capital CP Funding LLC, a wholly owned subsidiary of CP Holdings (“Ares Capital CP”) pursuant to a Second Tier Purchase and Sale Agreement (the “Second Tier Purchase and Sale Agreement”) among CP Holdings and Ares Capital CP, (ii) an Amended and Restated Sale and Servicing Agreement (the “Amended and Restated Sale Agreement” and, together with the Amended and Restated Purchase and Sale Agreement and the Second Tier Purchase and Sale Agreement, the “Agreements”) with Ares Capital CP, as borrower, Wachovia, as note purchaser, U.S. Bank National Association, as trustee and collateral custodian, and Wells Fargo Securities,

 

2



 

LLC, as agent, and (iii) various supporting documentation, including controlled account agreements and powers of attorney.  The New CP Funding Facility is secured by all of the assets held by Ares Capital CP and the membership interest in CP Holdings.

 

The New CP Funding Facility, among other things, extended the maturity date to January 22, 2013 (with two one-year extension options, subject to mutual consent) and modified pricing.  Subject to certain exceptions, the interest charged on the New CP Funding Facility is based on LIBOR plus an applicable spread of between 2.25% and 3.75% or on a “base rate” (which is the higher of a prime rate, or the federal funds rate plus 0.50%) plus an applicable spread of between 1.25% to 2.75%, in each case, based on a pricing grid depending on the credit rating of the Registrant.  The effective LIBOR spread under the New CP Funding Facility on January 22, 2010 was 2.75%.  Under the Amended and Restated Purchase and Sale Agreement, the Registrant has agreed to service the assets of Ares Capital CP, including the Loans, for a servicing fee of 50 basis points per annum on the aggregate outstanding principal balance of the Loans and substantially all other assets owned by Ares Capital CP.  Under the Agreements, the Registrant, CP Holdings and Ares Capital CP, as applicable, have made certain representations and warranties regarding the Loans, as well as their businesses and properties, and are required to comply with various covenants, servicing procedures, limitations on disposition of Loans, reporting requirements and other customary requirements for similar securitized credit facilities.  The Amended and Restated Sale Agreement includes usual and customary events of default for securitized credit facilities of this nature, including allowing Wachovia, upon a default, to foreclose on the Loans and to pursue the rights under the Loans directly with the obligors thereof.

 

Borrowings under the Amended and Restated Sale Agreement are subject to the leverage restrictions contained in the Investment Company Act of 1940, as amended.

 

The description above is only a summary of the material provisions of the Agreements and is qualified in its entirety by reference to copies of the Amended and Restated Sale Agreement, the Amended and Restated Purchase and Sale Agreement and the Second Tier Purchase and Sale Agreement, which are filed as Exhibits 10.2, 10.3 and 10.4, respectively, to this current report on Form 8-K and by this reference incorporated herein.

 

Item 2.03  Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant .

 

The information set forth under Item 1.01 of this current report on Form 8-K is by this reference incorporated in this Item 2.03.

 

Item 7.01  Regulation FD Disclosure .

 

On January 25, 2010, the Registrant issued a press release, included herewith as Exhibit 99.1 and by this reference incorporated herein.

 

The information disclosed under this Item 7.01, including Exhibit 99.1 hereto, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934 and shall not be deemed incorporated by reference into any filing made under the Securities Act of 1933, except as expressly set forth by specific reference in such filing.

 

Item 9.01  Financial Statements and Exhibits .

 

(d)          Exhibits:

 

Exhibit Number

 

Description

 

 

 

10.1

 

Senior Secured Revolving Credit Agreement, dated as of December 28, 2005 and amended and restated as of January 22, 2010, among Ares Capital Corporation, the lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.

10.2

 

Amended and Restated Sale and Servicing Agreement, dated as of January 22, 2010, among Ares Capital CP Funding LLC, Ares Capital Corporation, Wachovia Bank, National Association, as Note Purchaser, Wells Fargo Securities, LLC, as agent for the Note Purchaser, and U.S. Bank National Association, as Trustee, Bank and Collateral Custodian.

10.3

 

Amended and Restated Purchase and Sale Agreement, dated as of January 22, 2010, among Ares Capital Corporation, as Seller, and Ares Capital CP Funding Holdings LLC, as Purchaser.

 

3



 

10.4

 

Second Tier Purchase and Sale Agreement, dated as of January 22, 2010, among Ares Capital CP Funding Holdings LLC, as Seller, and Ares Capital CP Funding LLC, as Purchaser.

99.1

 

Press Release, dated as of January 25, 2010.

 

4



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

ARES CAPITAL CORPORATION

 

 

Date:  January 25, 2010

 

 

 

 

By:

/s/ Richard S. Davis

 

Name: Richard S. Davis

 

Title: Chief Financial Officer

 

5



 

Exhibit Index

 

Exhibit Number

 

Description

 

 

 

10.1

 

Senior Secured Revolving Credit Agreement, dated as of December 28, 2005 and amended and restated as of January 22, 2010, among Ares Capital Corporation, the lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent.

10.2

 

Amended and Restated Sale and Servicing Agreement, dated as of January 22, 2010, among Ares Capital CP Funding LLC, Ares Capital Corporation, Wachovia Bank, National Association, as Note Purchaser, Wells Fargo Securities, LLC, as agent for the Note Purchaser, and U.S. Bank National Association, as Trustee, Bank and Collateral Custodian.

10.3

 

Amended and Restated Purchase and Sale Agreement, dated as of January 22, 2010, among Ares Capital Corporation, as Seller, and Ares Capital CP Funding Holdings LLC, as Purchaser.

10.4

 

Second Tier Purchase and Sale Agreement, dated as of January 22, 2010, among Ares Capital CP Funding Holdings LLC, as Seller, and Ares Capital CP Funding LLC, as Purchaser.

99.1

 

Press Release, dated as of January 25, 2010.

 

6


Exhibit 10.1

 

Execution

 

SENIOR SECURED REVOLVING CREDIT AGREEMENT

 

dated as of

 

December 28, 2005

 

and amended and restated as of

 

January 22, 2010

 

between

 

ARES CAPITAL CORPORATION

 

The LENDERS Party Hereto

 

and

 

JPMORGAN CHASE BANK, N.A.

as Administrative Agent

 

BANK OF AMERICA, N.A.

SUNTRUST BANK,

as Syndication Agents

 

$690,000,000

 


 

JPMORGAN SECURITIES INC.

BANC OF AMERICA SECURITIES LLC

SUNTRUST ROBINSON HUMPHREY, INC.

as Joint Bookrunners and Joint Lead Arrangers

 

i



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I

 

1

 

 

 

DEFINITIONS

 

1

 

 

 

SECTION 1.01. Defined Terms

 

1

SECTION 1.02. Classification of Loans and Borrowings

 

30

SECTION 1.03. Terms Generally

 

30

SECTION 1.04. Accounting Terms; GAAP

 

30

SECTION 1.06. Currencies; Currency Equivalents

 

31

 

 

 

ARTICLE II

 

32

 

 

 

THE CREDITS

 

32

 

 

 

SECTION 2.01. The Commitments

 

32

SECTION 2.02. Loans and Borrowings

 

33

SECTION 2.03. Requests for Borrowings

 

34

SECTION 2.04. Letters of Credit

 

35

SECTION 2.05. Funding of Obligations

 

 

SECTION 2.06. Interest Elections

 

40

SECTION 2.07. Termination, Reduction or Increase of the Commitments

 

42

SECTION 2.08. Repayment of Loans; Evidence of Debt

 

45

SECTION 2.09. Prepayment of Loans

 

46

SECTION 2.10. Fees

 

48

SECTION 2.11. Interest

 

49

SECTION 2.12. Alternate Rate of Interest

 

50

SECTION 2.13. Increased Costs

 

51

SECTION 2.14. Break Funding Payments

 

52

SECTION 2.15. Taxes

 

53

SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs

 

56

SECTION 2.17. Defaulting Lenders

 

58

SECTION 2.18. Mitigation Obligations; Replacement of Lenders

 

60

 

 

 

ARTICLE III

 

61

 

 

 

REPRESENTATIONS AND WARRANTIES

 

61

 

 

 

SECTION 3.01. Organization; Powers

 

61

SECTION 3.02. Authorization; Enforceability

 

61

SECTION 3.03. Governmental Approvals; No Conflicts

 

61

SECTION 3.04. Financial Condition; No Material Adverse Change

 

62

SECTION 3.05. Litigation

 

63

SECTION 3.06. Compliance with Laws and Agreements

 

63

 

ii



 

SECTION 3.07. Reserved

 

63

SECTION 3.08. Taxes

 

63

SECTION 3.09. ERISA

 

63

SECTION 3.10. Disclosure

 

63

SECTION 3.11. Investment Company Act; Margin Regulations

 

64

SECTION 3.12. Material Agreements and Liens

 

64

SECTION 3.13. Subsidiaries and Investments

 

65

SECTION 3.14. Properties

 

65

SECTION 3.15. Affiliate Agreements

 

66

 

 

 

ARTICLE IV

 

66

 

 

 

CONDITIONS

 

66

 

 

 

SECTION 4.01. Restatement Effective Date

 

66

SECTION 4.02. Each Credit Event

 

68

 

 

 

ARTICLE V

 

69

 

 

 

AFFIRMATIVE COVENANTS

 

69

 

 

 

SECTION 5.01. Financial Statements and Other Information

 

69

SECTION 5.02. Notices of Material Events

 

71

SECTION 5.03. Existence; Conduct of Business

 

71

SECTION 5.04. Payment of Obligations

 

71

SECTION 5.05. Maintenance of Properties; Insurance

 

71

SECTION 5.06. Books and Records; Inspection and Audit Rights

 

72

SECTION 5.07. Compliance with Laws

 

72

SECTION 5.08. Certain Obligations Respecting Subsidiaries; Further Assurances

 

73

SECTION 5.09. Use of Proceeds

 

75

SECTION 5.10. Status of RIC and BDC

 

75

SECTION 5.11. Investment and Valuation Policies

 

75

SECTION 5.12. Portfolio Valuation and Diversification, Etc.

 

75

SECTION 5.13. Calculation of Borrowing Base

 

78

 

 

 

ARTICLE VI

 

85

 

 

 

NEGATIVE COVENANTS

 

85

 

 

 

SECTION 6.01. Indebtedness

 

85

SECTION 6.02. Liens

 

86

SECTION 6.03. Fundamental Changes

 

87

SECTION 6.04. Investments

 

88

SECTION 6.05. Restricted Payments

 

89

SECTION 6.06. Certain Restrictions on Subsidiaries

 

90

SECTION 6.07. Certain Financial Covenants

 

91

SECTION 6.08. Transactions with Affiliates

 

92

 

iii



 

SECTION 6.09. Lines of Business

 

92

SECTION 6.10. No Further Negative Pledge

 

92

SECTION 6.11. Modifications of Certain Documents

 

93

SECTION 6.12. Permitted Indebtedness

 

93

SECTION 6.13. Specified Debt

 

93

 

 

 

ARTICLE VII

 

94

 

 

 

EVENTS OF DEFAULT

 

94

 

 

 

ARTICLE VIII

 

98

 

 

 

THE ADMINISTRATIVE AGENT

 

98

 

 

 

ARTICLE IX

 

101

 

 

 

MISCELLANEOUS

 

101

 

 

 

SECTION 9.01. Notices; Electronic Communications

 

101

SECTION 9.02. Waivers; Amendments

 

102

SECTION 9.03. Expenses; Indemnity; Damage Waiver

 

105

SECTION 9.04. Successors and Assigns

 

106

SECTION 9.05. Survival

 

110

SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic Execution

 

110

SECTION 9.07. Severability

 

111

SECTION 9.08. Right of Setoff

 

111

SECTION 9.09. Governing Law; Jurisdiction; Etc.

 

111

SECTION 9.10. WAIVER OF JURY TRIAL

 

112

SECTION 9.11. Judgment Currency

 

112

SECTION 9.12. Headings

 

113

SECTION 9.13. Treatment of Certain Information; Confidentiality

 

113

SECTION 9.14. USA PATRIOT Act

 

114

SECTION 9.15. First Amendment

 

114

SECTION 9.16. Amendment to Security Agreement

 

114

SECTION 9.17. Amendment to Intercreditor Agreement

 

114

 

iv



 

SCHEDULE I

Commitments

SCHEDULE II

Material Agreements and Liens

SCHEDULE III

Litigation

SCHEDULE IV

Subsidiaries and Investments

SCHEDULE V

Transactions with Affiliates

SCHEDULE VI

Moody’s Industry Classification Group List

SCHEDULE VII

Approved Dealers and Approved Pricing Services

SCHEDULE VIII

Mandatory Cost Schedule

 

EXHIBIT A

-

Form of Assignment and Assumption

EXHIBIT B

-

Form of Guarantee and Security Agreement Confirmation

EXHIBIT C

-

Form of Opinion of Maryland Counsel to the Borrower

EXHIBIT D

-

Form of Opinion of Counsel to JPMCB

EXHIBIT E

-

Form of Borrowing Base Certificate

EXHIBIT F

-

Form of Borrowing Request

EXHIBIT G

-

Form of Interest Election Request

EXHIBIT H

-

Form of First Amendment to Intercreditor Agreement

 

v



 

SENIOR SECURED REVOLVING CREDIT AGREEMENT dated as of December 28, 2005 and amended and restated as of January 22, 2010 (this “ Agreement ”), between ARES CAPITAL CORPORATION, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A. as Administrative Agent.

 

Ares Capital Corporation, the “Lenders” party thereto (the “ Existing Lenders ”), and the Administrative Agent, are parties to a Senior Secured Revolving Credit Agreement dated as of December 28, 2005 (as amended through the Restatement Effective Date, the “ Original Agreement ”).

 

Each of the Existing Lenders not a party hereto (each, a “ Retiring Lender ”) will cease to be a “Lender” under the Original Agreement as of the Restatement Effective Date.  Each (a) Existing Lender party hereto (each, a “ Continuing Lender ”) and each (b) lender party hereto (other than Continuing Lenders) (each, a “ New Lender ”) shall become or continue as a “Lender” under the Original Agreement as amended and restated by this Agreement.

 

The Borrower has requested that the Continuing Lenders and the New Lenders provide the credit facilities described herein under this Agreement which shall amend and restate the Original Agreement on the terms specified herein to, inter alia, extend credit to the Borrower in an initial aggregate principal or face amount not exceeding $690,000,000 at any one time outstanding.  The Continuing Lenders and the New Lenders are prepared to amend and restate the Original Agreement upon the terms and conditions hereof, and, accordingly, the parties hereto agree as follows:

 

ARTICLE I

 

DEFINITIONS

 

SECTION 1.01.  Defined Terms .  As used in this Agreement, the following terms have the meanings specified below:

 

ABR ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are denominated in Dollars and bearing interest at a rate determined by reference to the Alternate Base Rate.

 

Acquisition ” means the acquisition by the Borrower of 100% of the outstanding capital stock of Allied as announced on October 26, 2009.

 

Additional Debt Amount ” means, as of any date, the greater of (a) $25,000,000 and (b) an amount equal to 5% of Shareholder’s Equity less the outstanding amount of Allied 2011/12 Notes as of such date.

 

1



 

Adjusted Borrowing Base ” means: (a) the lesser of  the (i) Borrowing Base and (ii) Relevant Available Funds minus (b) the aggregate amount of Cash and Cash Equivalents included in the Portfolio Investments (provided that cash cover for outstanding Letters of Credit shall not be treated as a portion of the Portfolio Investments).

 

Adjusted Covered Debt Amount ” means the Covered Debt Amount minus the aggregate amount of Cash and Cash Equivalents included in the Portfolio Investments (provided that cash cover for outstanding Letters of Credit shall not be treated as a portion of the Portfolio Investments).

 

Adjusted LIBO Rate ” means, for the Interest Period for any Eurocurrency Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.

 

Administrative Agent ” means JPMCB, in its capacity as administrative agent for the Lenders hereunder.

 

Administrative Agent’s Account ” means, for each Currency, an account in respect of such Currency designated by the Administrative Agent in a notice to the Borrower and the Lenders.

 

Administrative Questionnaire ” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

Advance Rate ” has the meaning assigned to such term in Section 5.13.

 

Affiliate ” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.  Anything herein to the contrary notwithstanding, the term “Affiliate” shall not include any Person that constitutes an Investment held by any Obligor in the ordinary course of business.

 

Affiliate Agreements ” means collectively, (a) the Investment Advisory and Management Agreement dated as of September 30, 2004 between the Borrower and Ares Capital Management, (b) the Administration Agreement dated as of September 30, 2004, between the Borrower and Ares Technical Administration LLC, (c) the Trademark License Agreement dated as of September 30, 2004 between Ares Capital Corporation and Ares Management LLC and (d) other than for purposes of Section 6.11, the CP Facility Documents and the Custodian Agreement.

 

Agreed Foreign Currency ” means, at any time, any of Canadian Dollars, English Pounds Sterling, Euros and, with the agreement of each Lender, any other Foreign Currency, so long as, in respect of any such specified Foreign Currency or other

 

2



 

Foreign Currency, at such time (a) such Foreign Currency is dealt with in the London (or, in the case of  English Pounds Sterling, Paris) interbank deposit market, (b) such Foreign Currency is freely transferable and convertible into Dollars in the London foreign exchange market and (c) no central bank or other governmental authorization in the country of issue of such Foreign Currency (including, in the case of the Euro, any authorization by the European Central Bank) is required to permit use of such Foreign Currency by any Lender for making any Loan hereunder and/or to permit the Borrower to borrow and repay the principal thereof and to pay the interest thereon, unless such authorization has been obtained and is in full force and effect.

 

Allied ” means Allied Capital Corporation, a Maryland corporation.

 

Allied 2011/12 Notes ” means, collectively (i) Allied’s $400,000,000 6.625% Notes due July 15, 2011 issued pursuant to that Indenture, dated as of June 16, 2006, by and between Allied and The Bank of New York (the “ Indenture ”), as amended by the First Supplemental Indenture, dated as of July 25, 2006 and (ii) Allied’s $250,000,000 6.00% Notes due April 1, 2012 issued pursuant to the Indenture as amended by the Second Supplemental Indenture, dated as of December 8, 2008 and, in each case, without giving effect to any modification, amendment, increase, replacement or refinancing of such Indebtedness after the Acquisition (other than any supplement entered into to give effect to the assumption of such Indebtedness by the Borrower or its Subsidiaries).

 

Allied 2047 Notes ” means Allied’s $200,000,000 6.875% Notes due April 15, 2047 issued pursuant to the Indenture as amended by the Third Supplemental Indenture, dated as of March 28, 2007, without giving effect to any modification, amendment, increase, replacement or refinancing of such Indebtedness after the Acquisition (other than any supplement entered into to give effect to the assumption of such Indebtedness by the Borrower or its Subsidiaries), as reported on the Borrower’s balance sheet.

 

Allied Excepted Property ” means any property of Allied or any of its subsidiaries at the time of the Acquisition that secures the Allied Secured Indebtedness; provided that, concurrently with (or prior to) the Acquisition, such property is transferred to a Special Acquisition Subsidiary.

 

Allied Secured Indebtedness ” means up to $250,000,000 of secured Indebtedness of Allied or any of its subsidiaries and any replacement or refinancing thereof; provided that, concurrently with (or prior to) the Acquisition, (a) such Indebtedness is assumed by a Special Acquisition Subsidiary and (b) the outstanding amount of such Indebtedness is not increased without the consent of the Required Lenders.

 

Alternate Base Rate ” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate

 

3



 

for such day plus 1/2 of 1% and (c) the rate per annum equal to 1% plus the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, on such day (or if such day is not a Business Day, the immediately preceding Business Day), for Dollar deposits with a term of one month.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the rate appearing on Reuters Screen LIBOR01 Page (or successor or substitute therefor) as set forth above shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or such rate appearing on Reuters Screen LIBOR01 Page (or successor or substitute therefor), respectively.

 

Applicable Percentage ” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment; provided that, prior to the Step-Up Date, any Lender’s Applicable Percentage shall equal the percentage of the total Initial Commitments represented by such Lender’s Initial Commitment.  If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.

 

Applicable Margin ” means, for any day, with respect to any ABR Loan or Eurocurrency Loan, or with respect to the commitment fees payable under Section 2.10 hereunder, as the case may be, the applicable rate per annum set forth below under the caption “ABR”, “LIBOR” or “Commitment Fee”, as the case may be, based upon the Borrower Rating of S&P Fitch, and Moody’s, respectively, applicable on such date:

 

Borrower Rating
S&P/Fitch/Moody’s

 

Applicable Margin

 

 

 

Category

 

ABR

 

LIBOR

 

Commitment Fee

 

> BBB/BBB/Baa2

 

1.50

%

2.50

%

0.50

%

= BBB/BBB/Baa2

 

2.00

%

3.00

%

0.50

%

= BBB-/BBB-/Baa3

 

2.50

%

3.50

%

0.625

%

< BBB-/BBB-/Baa3

 

3.00

%

4.00

%

0.75

%

 

For purposes of the foregoing, (i) if any of S&P, Fitch or Moody’s shall not have in effect a Borrower Rating for the Borrower (other than by reason of the circumstances referred to in the penultimate sentence of this definition) or if the Borrower shall have voluntarily elected to terminate its arrangement with any rating agency for the ongoing rating of itself, then such rating agency shall be deemed to have

 

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established the lowest Borrower Rating; (ii) if the Borrower Ratings established or deemed to have been established by S&P, Fitch and Moody’s shall fall within different Categories, the Applicable Margin shall be based on the lower of the two highest ratings unless, at such time, only two of the applicable rating agencies shall have in effect a Borrower Rating for the Borrower ((x) without giving effect to any deemed rating pursuant to clause (i) and (y) other than by reason of the circumstances referred to in the penultimate sentence of this definition) and one of the two ratings is two or more Categories lower than the other, in which case the Applicable Rate shall be determined by reference to the Category next above that of the lower of the two Borrower Ratings; (iii) if the Borrower Ratings established or deemed to have been established by S&P, Fitch and Moody’s shall be changed (other than as a result of a change in the rating system of S&P, Fitch or Moody’s), such change shall be effective as of the date on which it is first announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01 or otherwise and (iv) during the continuance of any Event of Default, the rates corresponding to the lowest Borrower Rating shall apply.  Each change in the Applicable Margin shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.  If the rating system of S&P, Fitch or Moody’s shall change, or if any such rating agency shall cease to be in the business of rating corporate debt obligations, the Borrower (1) may, to the extent that only one of the rating agencies rating’s system has changed or has ceased to be in the business of rating corporate debt obligations, or (2) shall, to the extent that more than one of the rating agencies rating’s systems has changed or has ceased to be in the business of rating corporate debt obligations, negotiate with the Lenders in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Margin shall be determined by reference to the rating most recently in effect prior to such change or cessation; provided that if the Borrower shall not elect to negotiate with the Lenders to amend this definition pursuant to clause (1) of the foregoing, the affected rating agency shall be deemed to have established the lowest Borrower Rating.  If any Borrower Rating is on-watch, such on-watch status will be disregarded for purposes of determining the Applicable Margin.

 

Approved Dealer ” means (a) in the case of any Portfolio Investment that is not a U.S. Government Security, a bank or a broker-dealer registered under the Securities Exchange Act of 1934 of nationally recognized standing or an Affiliate thereof, (b) in the case of a U.S. Government Security, any primary dealer in U.S. Government Securities, and (c) in the case of any foreign Portfolio Investment, any foreign broker-dealer of internationally recognized standing or an Affiliate thereof, in the case of each of clauses (a), (b) and (c) above, as set forth on Schedule VII or any other bank or broker-dealer acceptable to the Administrative Agent in its reasonable determination.

 

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Approved Pricing Service ” means a pricing or quotation service as set forth in Schedule VII or any other pricing or quotation service approved by the Board of Directors of the Borrower and designated in writing to the Administrative Agent (which designation shall be accompanied by a copy of a resolution of the Board of Directors of the Borrower that such pricing or quotation service has been approved by the Borrower).

 

Ares Capital CP ” means Ares Capital CP Funding LLC, a wholly owned Subsidiary of the Borrower.

 

 “ Ares Capital CP II ” means Ares Capital CP Funding II LLC, a wholly owned Subsidiary of the Borrower.

 

 “ Ares Capital CP Holdings ” means Ares Capital CP Funding Holdings LLC, a wholly owned Subsidiary of the Borrower.

 

 “ Ares Capital CP Holdings II ” means Ares Capital CP Funding Holdings II LLC, a wholly owned Subsidiary of the Borrower.

 

Ares Capital Management ” means Ares Capital Management LLC, a Delaware Limited Liability Company.

 

Asset Coverage Ratio ” means the ratio, determined on a consolidated basis, without duplication, in accordance with GAAP, of (a) the Value of total assets of the Borrower and its Subsidiaries, less all liabilities (other than outstanding Indebtedness, including outstanding Indebtedness hereunder) of the Borrower and its Subsidiaries, to (b) the aggregate amount of Indebtedness of the Borrower and its Subsidiaries.

 

Assignment and Assumption ” means an Assignment and Assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

Assuming Lender ” has the meaning assigned to such term in Section 2.07(e).

 

Availability Period ” means the period from and including the Restatement Effective Date to but excluding the earlier of the Commitment Termination Date and the date of termination of the Commitments.

 

Board ” means the Board of Governors of the Federal Reserve System of the United States of America.

 

Borrower ” means Ares Capital Corporation, a Maryland corporation.

 

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Borrower Rating ” means, with respect to the Borrower, (a) in the case of S&P, the Borrower’s long-term counterparty rating, (b) in the case of Fitch, the Borrower’s long-term issuer default rating and (c) in the case of Moody’s, the Borrower’s issuer rating.

 

Borrowing ” means (a) all ABR Loans made, converted or continued on the same date or (b) all Eurocurrency Loans denominated in the same Currency that have the same Interest Period.

 

Borrowing Base ” has the meaning assigned to such term in Section 5.13.

 

Borrowing Base Certificate ” means a certificate of a Financial Officer of the Borrower, substantially in the form of Exhibit E and appropriately completed.

 

Borrowing Base Deficiency ” means, at any date on which the same is determined, the amount, if any, that (a) the aggregate Covered Debt Amount as of such date exceeds (b) the Borrowing Base as of such date.

 

Borrowing Request ” means a request by the Borrower for a Borrowing in accordance with Section 2.03 substantially in the form of Exhibit F.

 

Business Day ” means any day (a) that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed, (b) if such day relates to a borrowing of, a payment or prepayment of principal of or interest on, a continuation or conversion of or into, or the Interest Period for, a Eurocurrency Borrowing, or to a notice by the Borrower with respect to any such borrowing, payment, prepayment, continuation, conversion, or Interest Period, that is also a day on which dealings in deposits denominated in the Currency of such Borrowing are carried out in the London interbank market and (c) if such day relates to a borrowing or continuation of, a payment or prepayment of principal of or interest on, or the Interest Period for, any Borrowing denominated in any Foreign Currency, or to a notice by the Borrower with respect to any such borrowing, continuation, payment, prepayment or Interest Period, that is also a day on which commercial banks and the London foreign exchange market settle payments in the Principal Financial Center for such Foreign Currency.

 

Capital Lease Obligations ” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

Cash ” means any immediately available funds in Dollars or in any currency other than Dollars which is a freely convertible currency.

 

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Cash Equivalents ” means investments (other than Cash) that are one or more of the following obligations:

 

(a)           U.S. Government Securities, in each case maturing within one year from the date of acquisition thereof;

 

(b)           investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, a credit rating of at least A-1 from S&P and at least P-1 from Moody’s;

 

(c)           investments in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition thereof (i) issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof or under the laws of the jurisdiction or any constituent jurisdiction thereof of any Agreed Foreign Currency, provided that such certificates of deposit, banker’s acceptances and time deposits are held in a securities account (as defined in the Uniform Commercial Code) through which the Collateral Agent can perfect a security interest therein and (ii) having, at such date of acquisition, a credit rating of at least A-1 from S&P and at least P-1 from Moody’s; and

 

(d)           fully collateralized repurchase agreements with a term of not more than 30 days from the date of acquisition thereof for U.S. Government Securities and entered into with (i) a financial institution satisfying the criteria described in clause (c) of this definition or (ii) an Approved Dealer having (or being a member of a consolidated group having) at such date of acquisition, a credit rating of at least A-1 from S&P and at least P-1 from Moody’s,

 

provided , that (i) in no event shall Cash Equivalents include any obligation that provides for the payment of interest alone (for example, interest-only securities or “ IOs ”); (ii) if any of Moody’s or S&P changes its rating system, then any ratings included in this definition shall be deemed to be an equivalent rating in a successor rating category of Moody’s or S&P, as the case may be; (iii) Cash Equivalents (other than U.S. Government Securities or repurchase agreements) shall not include any such investment of more than 10% of total assets of the Loan Parties in any single issuer; and (iv) in no event shall Cash Equivalents include any obligation that is not denominated in Dollars or an Agreed Foreign Currency.

 

Change in Control ” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Restatement Effective Date), of shares representing more than 35% of the aggregate ordinary voting power represented by the issued and outstanding capital stock of the Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who

 

8



 

were neither (i) nominated by the requisite members of the board of directors of the Borrower nor (ii) appointed by a majority of the directors so nominated; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or group other than Ares Capital Management.  For the avoidance of doubt, (1) the Acquisition and the issuance of its Equity Interests by the Borrower in connection therewith shall not constitute a “Change in Control” so long as after giving effect thereto, none of the events or circumstances described in the foregoing clauses (a) through (c) shall have occurred with respect to the Borrower and (2) the shareholders taken as a whole of Allied shall not constitute a “group” for purposes of clause (a) of the foregoing so long as they would not otherwise constitute a “group” within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the Restatement Effective Date.

 

Change in Law ” means (a) the adoption of any law, rule or regulation after the Restatement Effective Date, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Restatement Effective Date or (c) compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Restatement Effective Date.

 

Code ” means the Internal Revenue Code of 1986, as amended from time to time.

 

Collateral ” has the meaning assigned to such term in the Guarantee and Security Agreement.

 

Collateral Agent ” means JPMCB in its capacity as Collateral Agent under the Guarantee and Security Agreement, and includes any successor Collateral Agent thereunder.

 

Commitment ” means, with respect to each Lender, the aggregate of its Initial Commitment and its Step-Up Date Commitment (if any), as such commitments may be (a) reduced or increased from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial aggregate amount of the Lenders’ Commitments as of the Restatement Effective Date is $690,000,000.  Unless otherwise expressly stated herein, references herein to “Commitments” shall include the Step-Up Date Commitments.

 

Commitment Increase ” has the meaning assigned to such term in Section 2.07(e).

 

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Commitment Increase Date ” has the meaning assigned to such term in Section 2.07(e).

 

Commitment Termination Date ” means January 22, 2013.

 

Continuing Lenders ” has the meaning set forth in the recitals.

 

Control ” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “ Controlling ” and “ Controlled ” have meanings correlative thereto.

 

Controlled Foreign Corporation ” means any Subsidiary which is (i) a “controlled foreign corporation” (within the meaning of Section 957 of the Code), (ii) a subsidiary substantially all the assets of which consist of equity in Subsidiaries described in clause (i) of this definition, or (iii) an entity treated as disregarded for U.S. federal income tax purposes that owns more than 65% of the voting stock of a Subsidiary described in clause (i) or (ii) of this definition.

 

Covered Debt Amount ” means, on any date, (a) all of the Revolving Credit Exposures of all Lenders on such date plus (b) the aggregate amount of outstanding Permitted Indebtedness on such date plus (c) the aggregate amount of any Indebtedness incurred pursuant to Section 6.01(g)  plus (d) the aggregate amount of any outstanding Allied 2011/12 Notes minus  (e) the LC Exposures fully cash collateralized on such date pursuant to Section 2.04(k) and the last paragraph of Section 2.08(a); provided that if the Acquisition has been consummated, the aggregate amount of the Allied 2047 Notes will be excluded from the calculation of the Covered Debt Amount solely for purposes of (i) determining compliance with the Borrowing Base, including, without limitation, for purposes of calculating compliance with clause (d) of the definition of “Step-Up Date” and (ii) to the extent that the Borrowing Base is less than Relevant Available Funds (after giving effect to the exclusion of the Allied 2047 Notes from Relevant Available Funds) on any relevant determination date, the Liquidity Tests set forth in clauses (i) and (ii) of Section 6.07(c).

 

CP Facility ” means the credit facility established on November 3, 2004 between, among others, Ares Capital CP and Wachovia Capital Markets, LLC pursuant to the CP Facility Documents.

 

CP Facility Documents ” means, collectively, (a) the Purchase and Sale Agreement dated as of November 3, 2004 by and between the Borrower and Ares Capital CP, (b) the Sale and Servicing Agreement by and among the Borrower, Ares Capital CP, the Conduit Purchasers and institutional purchasers party thereto, the Purchaser Agents party thereto, Wachovia Capital Markets, LLC, as Administrative Agent, U.S. Bank National Association, as Trustee, and Lyon Financial Services, Inc., as Backup Servicer, and (c) the Intercreditor and Concentration Account Administration Agreement dated as

 

10



 

of November 3, 2004 by and among U.S. Bank National Association, as Concentration Account Bank, U.S. Bank National Association, as Account Custodian, the Borrower, as Originator, Original Servicer and Concentration Account Servicer, and the Security Interest Grantees from time to time party thereto.  It is understood that the term “CP Facility Documents” shall not include the exhibits and schedules thereto.

 

Currency ” means Dollars or any Foreign Currency.

 

Custodian Agreement ” means the Custodian Agreement dated as of a date in October, 2004 by and among the Borrower and U.S. Bank, National Association.

 

Default ” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

Defaulting Lender ” means any Lender, as determined by the Administrative Agent, that has (a) failed to fund any portion of its Loans or participations in Letters of Credit within three Business Days of the date required to be funded by it hereunder, unless, in the case of any Loans, such Lender’s failure is based on such Lender’s reasonable determination that the conditions precedent to funding such Loan under this Agreement have not been met, such conditions have not otherwise been waived in accordance with the terms of this Agreement and such Lender has advised the Administrative Agent in writing (with reasonable detail of those conditions that have not been satisfied) prior to the time at which such funding was to have been made, (b) notified the Borrower, the Administrative Agent, the Issuing Bank or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or generally under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.

 

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Designated Subsidiary ” means:

 

(a)           a direct or indirect Subsidiary of the Borrower designated by the Borrower as a “Designated Subsidiary” which meets the following criteria:

 

(i)            to which any Obligor sells, conveys or otherwise transfers (whether directly or indirectly) Portfolio Investments, which engages in no material activities other than in connection with the purchase or financing of such assets;

 

(ii)           no portion of the Indebtedness or any other obligations (contingent or otherwise) of such Subsidiary (A) is Guaranteed by any Obligor (other than Guarantees in respect of Standard Securitization Undertakings), (B) is recourse to or obligates any Obligor in any way other than pursuant to Standard Securitization Undertakings or (C) subjects any property of any Obligor (other than property that has been contributed or sold, purported to be sold or otherwise transferred to such Subsidiary), directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings or any Guarantee thereof,

 

(iii)          with which no Obligor has any material contract, agreement, arrangement or understanding other than on terms no less favorable to such Obligor than those that might be obtained at the time from Persons that are not Affiliates of any Obligor, other than fees payable in the ordinary course of business in connection with servicing receivables or financial assets, and

 

(iv)          to which no Obligor has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results, other than pursuant to Standard Securitization Undertakings; or

 

(b)           a direct or indirect Subsidiary of the Borrower designated by the Borrower as a “Designated Subsidiary” and which satisfies each of the foregoing criteria set forth in clauses (a)(ii), (iii) and (iv).

 

Any such designation by the Borrower shall be effected pursuant to a certificate of a Financial Officer delivered to the Administrative Agent, which certificate shall include a statement to the effect that, to the best of such officer’s knowledge, such designation complied with the foregoing conditions set forth in clauses (a) or (b).  For the avoidance of doubt, in the case of clause (a), the Borrower shall be in compliance with Section 6.03(d) after giving effect to any such designation.  Each Subsidiary of a Designated Subsidiary shall be deemed to be a Designated Subsidiary and shall comply with the foregoing requirements of this definition.  The parties hereby agree that Ares Capital CP, Ares Capital CP Holdings, Ares Capital CP II, Ares Capital CP Holdings II, ARCC CLO 2006 LLC, ARCC Commercial Loan Trust 2006 and ARCC JTC, LLC shall each constitute a Designated Subsidiary so long as they comply with the foregoing requirements of this definition.

 

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Disclosed Matters ” means the actions, suits and proceedings disclosed or referenced in Schedule III (provided that such matters to the extent relating to Allied and its subsidiaries or the Acquisition may be updated on or prior to the date of the Acquisition with the consent of the Required Lenders and each Lender having a Step-Up Date Commitment).

 

Dollar Equivalent ” means, on any date of determination, with respect to an amount denominated in any Foreign Currency, the amount of Dollars that would be required to purchase such amount of such Foreign Currency on the date two Business Days prior to such date, based upon the spot selling rate at which the Administrative Agent offers to sell such Foreign Currency for Dollars in the London foreign exchange market at approximately 11:00 a.m., London time, for delivery two Business Days later.

 

Dollars ” or “ $ ” refers to lawful money of the United States of America.

 

Domestic Subsidiary ” means any Subsidiary other than a Controlled Foreign Corporation.

 

Equity Interests ” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

 

ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

ERISA Affiliate ” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code.

 

ERISA Event ” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) any failure by any Plan to satisfy the minimum funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan; (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the

 

13



 

receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

Eurocurrency ”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

Event of Default ” has the meaning assigned to such term in Article VII.

 

Excluded Taxes ” means, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law described in clause ( a) or (b) of the definition of Change in Law) to comply with Section 2.15(e), except to the extent, other than in a case of failure to comply with Section 2.15(e), that such Foreign Lender’s (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding tax pursuant to Section 2.15(a), (d) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender to the extent attributable to such Foreign Lender’s failure to take any action (including entering into an agreement with the Internal Revenue Service) or comply with any information gathering and reporting requirements, in each case, that are required to obtain the maximum available exemption from United States federal withholding taxes under Title I of the Foreign Account Tax Compliance Act of 2009 (the “Proposed Act) or under legislation that is substantially similar to Title I of the Proposed Act with respect to payments received by or on behalf of such Foreign Lender and (e) in the case of any Lender or Issuing Bank that is not a Foreign Lender, any withholding tax that is imposed as a result of such Lender’s or Issuing Bank’s failure or inability to comply with Section 2.15(f).

 

Existing Lenders ” has the meaning set forth in the recitals.

 

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Federal Funds Effective Rate ” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

Financial Officer ” means the president, chief financial officer, principal accounting officer, treasurer, assistant treasurer, controller or assistant controller of the Borrower.

 

First Amendment ” means the First Amendment Agreement and Waiver to the Original Agreement dated as of November 13, 2007.

 

Fitch ” means Fitch Ratings or any successors thereto.

 

Foreign Currency ” means at any time any Currency other than Dollars.

 

Foreign Currency Equivalent ” means, with respect to any amount in Dollars, the amount of any Foreign Currency that could be purchased with such amount of Dollars using the reciprocal of the foreign exchange rate(s) specified in the definition of the term “Dollar Equivalent”, as determined by the Administrative Agent.

 

Foreign Lender ” means any Lender or Issuing Bank that is organized under the laws of a jurisdiction other than that in which the Borrower is located.  For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

GAAP ” means generally accepted accounting principles in the United States of America.

 

Governmental Authority ” means the government of the United States of America, or of any other nation, or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Guarantee ” of or by any Person (the “ guarantor ”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to

 

15



 

advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided , that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business.

 

Guarantee and Security Agreement ” means that certain Guarantee and Security Agreement dated as of December 28, 2005 between the Borrower, the Administrative Agent, each holder (or a representative or trustee therefor) from time to time of any Other Secured Indebtedness, and the Collateral Agent.

 

Guarantee and Security Agreement Confirmation ” means a Guarantee and Security Agreement Confirmation between the parties to the Guarantee and Security Agreement substantially in the form of Exhibit B.

 

Guarantee Assumption Agreement ” means a Guarantee Assumption Agreement substantially in the form of Exhibit B to the Guarantee and Security Agreement between the Administrative Agent and an entity that, pursuant to Section 5.08 is required to become a “Subsidiary Guarantor” under the Guarantee and Security Agreement (with such changes as the Administrative Agent shall request, consistent with the requirements of Section 5.08).

 

Hedging Agreement ” means any interest rate protection agreement, foreign currency exchange protection agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price hedging arrangement.

 

Increasing Lender ” has the meaning assigned to such term in Section 2.07(e).

 

Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (d) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable incurred in the ordinary course of business), (e) all Indebtedness of others secured by any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such

 

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Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

 

Indemnified Taxes ” means Taxes other than Excluded Taxes.

 

Independent ” when used with respect to any specified Person means that such Person (a) does not have any direct financial interest or any material indirect financial interest in the Borrower or any of its Subsidiaries or Affiliates (including its investment advisor or any Affiliate thereof) and (b) is not connected with the Borrower or of its Subsidiaries or Affiliates (including its investment advisor or any Affiliate thereof) as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.

 

Industry Classification Group ” means (a) any of the Moody’s classification groups set forth in Schedule VI hereto, together with any such classification groups that may be subsequently established by Moody’s and provided by the Borrower to the Lenders and (b) up to three additional industry group classifications established by the Borrower pursuant to Section 5.12.  For the avoidance of doubt, CDO Securities shall be treated as belonging to the “Structured Finance” Industry Classification Group.

 

Initial Commitments ” means, with respect to each Lender, the commitment (excluding any Step-Up Date Commitment) of such Lender to make Loans and to acquire participations in Letters of Credit hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment may be (a) reduced or increased from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Initial Commitment as of the Restatement Effective Date is set forth on Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Initial Commitment, as applicable.  The initial aggregate amount of the Lenders’ Initial Commitments as of the Restatement Effective Date is $615,000,000.

 

Interest Election Request ” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.06 substantially in the form of Exhibit G.

 

Interest Payment Date ” means (a) with respect to any ABR Loan, each Quarterly Date, and (b) with respect to any Eurocurrency Loan, the last day of each Interest Period therefor and, in the case of any Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at three-month intervals after the first day of such Interest Period.

 

Interest Period ” means, for any Eurocurrency Loan or Borrowing, the period commencing on the date of such Loan or Borrowing and ending on the

 

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numerically corresponding day in the calendar month that is one, two, three or six months thereafter or, with respect to such portion of any Eurocurrency Loan or Borrowing denominated in a Foreign Currency that is scheduled to be repaid on the Commitment Termination Date, a period of less than one month’s duration commencing on the date of such Loan or Borrowing and ending on the Commitment Termination Date, as specified in the applicable Borrowing Request or Interest Election Request; provided , that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (ii) any Interest Period (other than an Interest Period pertaining to a Eurocurrency Borrowing denominated in a Foreign Currency that ends on the Commitment Termination Date that is permitted to be of less than one month’s duration as provided in this definition) that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan, and the date of a Borrowing comprising Loans that have been converted or continued shall be the effective date of the most recent conversion or continuation of such Loans.

 

Investment ” means, for any Person:  (a) Equity Interests, bonds, notes, debentures or other securities of any other Person or any agreement to acquire any Equity Interests, bonds, notes, debentures or other securities of any other Person (including any “short sale” or any sale of any securities at a time when such securities are not owned by the Person entering into such sale); (b) deposits, advances, loans or other extensions of credit made to any other Person (including purchases of property from another Person subject to an understanding or agreement, contingent or otherwise, to resell such property to such Person); or (c) Hedging Agreements.

 

Investment Policies ” has the meaning assigned to such term in Section 3.11(c).

 

Investment Company Act ” means the Investment Company Act of 1940, as amended from time to time.

 

Issuing Bank ” means JPMCB, in its capacity as the issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.04(j).

 

JPMCB ” means JPMorgan Chase Bank, N.A.

 

LC Disbursement ” means a payment made by the Issuing Bank pursuant to a Letter of Credit.

 

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LC Exposure ” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.

 

Lenders ” means the Persons listed on Schedule I and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

 

Letter of Credit ” means any letter of credit issued pursuant to this Agreement.

 

Letter of Credit Collateral Account ” has the meaning assigned to such term in Section 2.04(k).

 

Letter of Credit Documents ” means, with respect to any Letter of Credit, collectively, any application therefor and any other agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the parties concerned or at risk with respect to such Letter of Credit or (b) any collateral security for any of such obligations, each as the same may be modified and supplemented and in effect from time to time.

 

LIBO Rate ” means, for the Interest Period for any Eurocurrency Borrowing denominated in any Currency, the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in such currency in the London or other applicable interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as LIBOR for deposits denominated in such Currency with a maturity comparable to such Interest Period.  In the event that such rate is not available as described above for any reason, then the LIBO Rate for such Interest Period shall be the rate at which deposits in such Currency in the amount of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London (or, in the case of English Pounds Sterling, Paris) interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.  Notwithstanding the foregoing, the LIBO Rate for any Eurocurrency Loan denominated in English Pounds Sterling for any Interest Period shall be the sum of (i) the rate referred to above plus (ii) the MCR Cost.

 

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LIBOR ” means, for any Currency, the rate at which deposits denominated in such Currency are offered to leading banks in the London interbank market (or, in the case of English Pounds Sterling, in the eurocurrency market).

 

Lien ” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities, except in favor of the issuer thereof.

 

Liquidity Tests ” means, collectively, the tests set forth in Section 6.07(c).

 

Loan Documents ” means, collectively, this Agreement, the Letter of Credit Documents and the Security Documents.

 

Loans ” means the loans made by the Lenders to the Borrower pursuant to Section 2.01.

 

Local Time ” means, with respect to any Loan denominated in or any payment to be made in any Currency, the local time in the Principal Financial Center for the Currency in which such Loan is denominated or such payment is to be made.

 

Margin Stock ” means “margin stock” within the meaning of Regulations T, U and X.

 

Material Adverse Effect ” means a material adverse effect on (a) the business, Portfolio Investments and other assets, liabilities and financial condition of the Borrower and its Subsidiaries taken as a whole (excluding in any case a decline in the net asset value of the Borrower or a change in general market conditions or values of the Investments of the Borrower and its Subsidiaries), or (b) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.

 

Material Indebtedness ” means (a) Indebtedness (other than the Loans, Letters of Credit and Hedging Agreements), of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $25,000,000 and (b) obligations in respect of one or more Hedging Agreements under which the maximum aggregate amount (giving effect to any netting agreements) that the Borrower and the Subsidiaries would be required to pay if such Hedging Agreement(s) were terminated at such time would exceed $25,000,000.

 

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MCR Cost ” means, with respect to any Lender, the cost imputed to such Lender of compliance with the Mandatory Cost Rate requirements of the Bank of England during the relevant period, determined in accordance with Schedule VIII.

 

Moody’s ” means Moody’s Investors Service, Inc. or any successor thereto.

 

Multiemployer Plan ” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

 

National Currency ” means the currency, other than the Euro, of a Participating Member State.

 

New Lenders ” has the meaning set forth in the recitals.

 

Obligor ” means, collectively, the Borrower and the Subsidiary Guarantors.

 

Other Permitted Indebtedness ” means (a) accrued expenses and current trade accounts payable incurred in the ordinary course of any Obligor’s business which are not overdue for a period of more than 90 days or which are being contested in good faith by appropriate proceedings, (b) Indebtedness (other than Indebtedness for borrowed money) arising in connection with transactions in the ordinary course of any Obligor’s business in connection with its purchasing of securities, derivatives transactions, reverse repurchase agreements or dollar rolls to the extent such transactions are permitted under the Investment Company Act and the Investment Policies, provided that such Indebtedness does not arise in connection with the purchase of Portfolio Investments other than Cash Equivalents and U.S. Government Securities and (c) Indebtedness 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 under clause (l) of Article VII.

 

Other Secured Indebtedness ” means, as at any date, Indebtedness (other than Indebtedness hereunder) of an Obligor (which may be Guaranteed by one or more other Obligors) that (a) has no amortization prior to, and a final maturity date not earlier than, six months after the Commitment Termination Date, (b) has terms substantially comparable to market terms for substantially similar debt of other similarly situated borrowers as reasonably determined by at least two Joint Lead Arrangers (identified on the cover of this Agreement) and (c) is not secured by any assets of any Obligor other than pursuant to the Security Documents and the holders of which have agreed, in a manner satisfactory to the Administrative Agent and the Collateral Agent, to be bound by the provisions of the Security Documents.

 

Other Taxes ” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any

 

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payment made under any Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan Document.

 

Participating Member State ” means any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with the legislation of the European Union relating to the European Monetary Union.

 

PBGC ” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.

 

Permitted Allied Indebtedness ” means collectively (a) the Allied 2011/12 Notes and (b) the Allied 2047 Notes.

 

Permitted Indebtedness ” means, collectively, Other Secured Indebtedness and Unsecured Indebtedness.

 

Permitted Liens ” means (a) Liens imposed by any Governmental Authority for taxes, assessments or charges not yet due or that are being contested in good faith and by appropriate proceedings if adequate reserves with respect thereto are maintained on the books of the Borrower in accordance with GAAP; (b) Liens of clearing agencies, broker-dealers and similar Liens incurred in the ordinary course of business, provided that such Liens (i) attach only to the securities (or proceeds) being purchased or sold and (ii) secure only obligations incurred in connection with such purchase or sale, and not any obligation in connection with margin financing; (c) Liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmens’, storage and repairmen’s Liens and other similar Liens arising in the ordinary course of business and securing obligations (other than Indebtedness for borrowed money); (d) Liens incurred or pledges or deposits made to secure obligations incurred in the ordinary course of business under workers’ compensation laws, unemployment insurance or other similar social security legislation (other than in respect of employee benefit plans subject to ERISA) or to secure public or statutory obligations; (e) Liens securing the performance of, or payment in respect of, bids, insurance premiums, deductibles or co-insured amounts, tenders, government or utility contracts (other than for the repayment of borrowed money), surety, stay, customs and appeal bonds and other obligations of a similar nature incurred in the ordinary course of business; (f) Liens arising out 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 under clause (l) of Article VII; (g) customary rights of setoff and liens upon (i) deposits of cash in favor of banks or other depository institutions in which such cash is maintained in the ordinary course of business, (ii) cash and financial assets held in securities accounts in favor of banks and other financial institutions with which such accounts are maintained in the ordinary course of business and (iii) assets held by a custodian in favor of such custodian in the ordinary course of business securing payment of fees, indemnities and other similar obligations; (h) Liens arising solely from precautionary filings of financing statements under the Uniform Commercial Code of the applicable jurisdictions in respect of operating leases entered

 

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into by the Borrower or any of its Subsidiaries in the ordinary course of business; and (i) precautionary Liens, and filings of financing statements under the Uniform Commercial Code, covering assets sold or contributed to any Person not prohibited hereunder.

 

Person ” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

Plan ” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

 

Portfolio Investment ” means any Investment held by the Obligors in their asset portfolio (and solely for purposes of determining the Borrowing Base, and of Sections 6.02(d) and 6.04(d) and clause (p) of Article VII, Cash).  Without limiting the generality of the foregoing, it is understood and agreed that any Portfolio Investments that have been contributed or sold, purported to be contributed or sold or otherwise transferred to any Designated Subsidiary, or held by any Controlled Foreign Corporation that is not a Subsidiary Guarantor, or which secure obligations in respect of the CP Facility, shall not be treated as Portfolio Investments.  Notwithstanding the foregoing, nothing herein shall limit the provisions of Section 5.12(b)(i), which provides that, for purposes of this Agreement, all determinations of whether an investment is to be included as a Portfolio Investment shall be determined on a settlement-date basis (meaning that any investment that has been purchased will not be treated as a Portfolio Investment until such purchase has settled, and any Portfolio Investment which has been sold will not be excluded as a Portfolio Investment until such sale has settled), provided that no such investment shall be included as a Portfolio Investment to the extent it has not been paid for in full.

 

Prime Rate ” means the rate of interest per annum publicly announced from time to time by JPMCB as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

Principal Financial Center ” means, in the case of any Currency, the principal financial center where such Currency is cleared and settled, as determined by the Administrative Agent.

 

Quarterly Dates ” means the last Business Day of March, June, September and December in each year, commencing on March 31, 2010.

 

Register ” has the meaning set forth in Section 9.04.

 

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Regulations T, U and X ” means, respectively, Regulations T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.

 

Related Parties ” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

Relevant Available Funds ” means, as of any date of determination, without duplication, the aggregate amount of (a) Indebtedness of the Obligors that is not required to be repaid, prepaid or terminated on or prior to the date six months after such date of determination, (b) Relevant Available Commitments of the Obligors and (c) Relevant Available Commitments of subsidiaries and portfolio companies Controlled by the Obligors to the extent available to be utilized, directly or indirectly, to increase the liquidity available to the Obligors, as determined in good faith by the Borrower.

 

Relevant Available Commitments ” means, for any Person, as of any date of determination, undrawn commitments to extend credit to or for the account of such Person that have a final termination date not earlier than six months after such date of determination, the conditions for the availability of which have been satisfied other than with respect to the delivery of a borrowing request or similar notice (which such Person is permitted to deliver).

 

Relevant Investment Commitments ” will mean, for any Person, all commitments of such Person to acquire, make or enter into, any Investments (other than Investments constituting Cash Equivalents or, to the extent entered into for risk reductions in the ordinary course of business, Hedging Agreements), in each case as determined by reference to the value of such Investments as if the same were actually consummated.  For purposes of the foregoing, “commitments” shall only include binding commitments not subject to unilateral veto or rejection by any Obligor.

 

Required Lenders ” means, at any time, Lenders having Revolving Credit Exposures and unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments at such time.

 

Restatement Effective Date ” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

 

Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any shares of any class of capital stock of the Borrower or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock of the Borrower or any option, warrant or other right to acquire any such shares of capital stock of the Borrower.

 

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Retiring Lenders ” has the meaning set forth in the recitals.

 

Revolving Credit Exposure ” means, with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Loans and its LC Exposure at such time.

 

RIC ” means a person qualifying for treatment as a “regulated investment company” under the Code.

 

S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc., a New York corporation, or any successor thereto.

 

Security Documents ” means, collectively, the Guarantee and Security Agreement, all Uniform Commercial Code financing statements filed with respect to the security interests in personal property created pursuant to the Guarantee and Security Agreement and all other assignments, pledge agreements, security agreements, intercreditor agreements, control agreements and other instruments executed and delivered at any time by any of the Obligors pursuant to the Guarantee and Security Agreement or otherwise providing or relating to any collateral security for any of the Secured Obligations under and as defined in the Guarantee and Security Agreement.

 

Shareholders’ Equity ” means, at any date, the amount determined on a consolidated basis, without duplication, in accordance with GAAP, of shareholders equity for the Borrower and its Subsidiaries at such date.

 

Special Acquisition Subsidiary ” means a wholly-owned Subsidiary of the Borrower formed for the purpose of assuming or incurring the Allied Secured Indebtedness and that will, following the earlier of the date on which it assumes or incurs such Indebtedness and the date of the Acquisition, satisfy each of the following conditions:

 

(i)                                      such Subsidiary engages in no material activities other than in connection with the assumption or incurrence of the Allied Secured Indebtedness (and, in that connection, shall apply all payments of principal, interest, fees and other amounts received on its investments to promptly prepay the Allied Secured Indebtedness or distribute such amounts to the Borrower);

 

(ii)                                   no portion of the Allied Secured Indebtedness or any other obligations (contingent or otherwise) of such Special Acquisition Subsidiary (A) is Guaranteed by the Borrower or any other Subsidiary, (B) shall be recourse to or obligate the Borrower or any other Subsidiary in any way (other than pursuant to customary arms-length servicing obligations (together with any related performance guarantees)), or (C) subject any property of the Borrower or any other Subsidiary, directly or indirectly, contingently or otherwise, to the

 

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satisfaction thereof, other than pursuant to customary arms-length servicing obligations (together with any related performance guarantees),

 

(iii)                                neither the Borrower nor any Subsidiary has any material contract, agreement, arrangement or understanding with such Special Acquisition Subsidiary other than on terms no less favorable to the Borrower or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Borrower or any Subsidiary, other than fees payable in the ordinary course of business in connection with servicing receivables or financial assets,

 

(iv)                               neither the Borrower nor any Subsidiary has any obligation to maintain or preserve such Special Acquisition Subsidiary’s financial condition or cause such Special Acquisition Subsidiary to achieve certain levels of operating results, excluding customary arms-length servicing obligations (together with any related performance guarantees),

 

(v)                                  all the assets and Investments of such Special Acquisition Subsidiary and the aggregate amount of Investments in and to such Special Acquisition Subsidiary are excluded from the Borrowing Base until such Allied Secured Indebtedness is paid in full.

 

Specified Debt ” means any portion of unsecured Indebtedness of the Borrower (other than any Permitted Allied Indebtedness or any Indebtedness incurred in connection with the Acquisition) described in clauses (a) or (b) of the definition of Indebtedness incurred or assumed from and after the Restatement Effective Date that (i) matures or comes due more than six months after the Commitment Termination Date, (ii) is not prepayable, redeemable or purchasable by the Borrower or any of its Subsidiaries at any time on or before the date six months after the Commitment Termination Date (except for regularly scheduled payments, prepayments or redemptions of principal and interest in respect thereof required pursuant to the instruments evidencing such Indebtedness), (iii) cannot be accelerated in circumstances that would not constitute an Event of Default, (iv) is accounted for by the Borrower on a fair value basis pursuant to Financial Accounting Standard No. 159 or by application of Financial Accounting Standard No. 141(R), and (v) the Borrower elects to treat as Specified Debt, provided that the Borrower shall not be permitted to revoke or rescind any such election.

 

Specified Debt Payment ” means (a) any purchase, redemption, retirement or other acquisition for value of, (b) any setting apart of any money for a sinking, defeasance or other analogous fund for the purchase, redemption, retirement or other acquisition of, or (c) any voluntary payment or prepayment of, in each case, the principal of or interest on, or any other amount owing in respect of, Specified Debt.

 

Special Equity Interest ” means any Equity Interest that is subject to a Lien in favor of creditors of the issuer of such Equity Interest, provided that (a) such Lien

 

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was created to secure Indebtedness owing by such issuer to such creditors, (b) such Indebtedness was (i) in existence at the time the Obligors acquired such Equity Interest, (ii) incurred or assumed by such issuer substantially contemporaneously with such acquisition or (iii) already subject to a Lien granted to such creditors and (c) unless such Equity Interest is not intended to be included in the Collateral, the documentation creating or governing such Lien does not prohibit the inclusion of such Equity Interest in the Collateral.

 

Standard Securitization Undertakings ” means, collectively, (a) customary arms-length servicing obligations (together with any related performance guarantees), (b) obligations (together with any related performance guarantees) to refund the purchase price or grant purchase price credits for dilutive events or misrepresentations (in each case unrelated to the collectability of the assets sold or the creditworthiness of the associated account debtors ) and (c) representations, warranties, covenants and indemnities (together with any related performance guarantees) of a type that are reasonably customary in accounts receivable securitizations or securitizations of financial assets.

 

Statutory Reserve Rate ” means, for the Interest Period for any Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the arithmetic mean, taken over each day in such Interest Period, of the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D).  Such reserve percentages shall include those imposed pursuant to Regulation D.  Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation.  The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

Step-Up Date ” means the date on which each of the following conditions are satisfied or waived by each Lender with a Step-Up Date Commitment (and the Borrower shall have delivered a certification to such effect to the Administrative Agent):

 

(a)                                   the Acquisition shall have been consummated on or before June 30, 2010 (which date may be extended until September 30, 2010 with the consent of greater than or equal to 66 2/3 of the Lenders with Step-Up Date Commitments) in accordance with the acquisition agreement dated October 26, 2009, and no provision thereof shall have been waived, amended, supplemented or otherwise modified, except as would not be expected to have a Material Adverse Effect;

 

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(b)                                  the Administrative Agent shall have received an updated Schedule IV to this Agreement, adjusted to give effect to the consummation of the Acquisition (and such updated Schedule IV shall be deemed to replace the prior Schedule IV);

 

(c)                                   the Lenders shall have received a satisfactory pro forma consolidated balance sheet of the Borrower, adjusted to give effect to the consummation of the Acquisition;

 

(d)                                  after giving effect to the Acquisition, the ratio of the aggregate amount of Indebtedness of the Borrower and its Subsidiaries to Shareholder’s Equity of the Borrower (in each case, calculated in accordance with GAAP) shall not exceed 85%, and the Covered Debt Amount shall not exceed 90% of the then applicable Borrowing Base;

 

(e)                                   no Default or Event of Default shall have occurred and be continuing; and

 

(f)                                     the representations and warranties contained in this Agreement shall be true and correct in all material respects (or, in the case of the representations and warranties in Sections 3.01 (first sentence with respect to the Obligors), 3.02, 3.04, 3.11 and 3.15 of this Agreement, and in Sections 2.01, 2.02 and 2.04 through 2.09 of the Guarantee and Security Agreement, true and correct in all respects) on and as of the Step-Up Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).

 

Step-Up Date Commitments ” means, with respect to each Lender, the amount (if any) by which such Lender has agreed to increase its Initial Commitment on the Step-Up Date, as such additional commitments may be (a) reduced or increased from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Step-Up Date Commitment is set forth on Schedule I, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Step-Up Date Commitment, as applicable.  The initial aggregate amount of the Lenders’ Step-Up Date Commitments is $75,000,000.

 

Subsidiary ” means, with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general

 

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partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.  Anything herein to the contrary notwithstanding, the term “Subsidiary” shall not include any Person that constitutes an Investment held by any Obligor in the ordinary course of business and that is not, under GAAP, consolidated on the financial statements of the Borrower and its Subsidiaries.  Unless otherwise specified, “Subsidiary” means a Subsidiary of the Borrower.

 

Subsidiary Guarantor ” means any Subsidiary of the Borrower (including, following the Acquisition, Subsidiaries of Allied) that is a Guarantor under the Guarantee and Security Agreement.  It is understood and agreed that (w) Designated Subsidiaries, (x) Excluded Entities, (y) so long as the terms of the Allied Secured Indebtedness would prohibit it from becoming a Subsidiary Guarantor hereunder, a Special Acquisition Subsidiary, and (z) following consummation of the Acquisition, Allied Asset Holdings, LLC (provided that so long as Allied Asset Holdings, LLC is not a “Subsidiary Guarantor” or a “Designated Subsidiary”,  all the assets and Investments of Allied Asset Holdings, LLC and the aggregate amount of Investments in and to Allied Asset Holdings, LLC shall be excluded from the Borrowing Base), shall not be required to be Subsidiary Guarantors.

 

Taxes ” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

 

Transactions ” means the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.

 

Type ”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans constituting such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

 

Uniform Commercial Code ” means the Uniform Commercial Code as in effect from time to time in the State of New York.

 

Unsecured Indebtedness ” means any Indebtedness of an Obligor (which may be Guaranteed by one or more other Obligors) that (a) has no amortization prior to, and a final maturity date not earlier than, six months after the Commitment Termination Date, (b) has terms substantially comparable to market terms for substantially similar debt of other similarly situated borrowers as reasonably determined by at least two Joint Lead Arrangers and (c) is not secured by any assets of any Obligor.

 

U.S. Government Securities ” means securities that are direct obligations of, and obligations the timely payment of principal and interest on which is fully guaranteed by, the United States or any agency or instrumentality of the United States the

 

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obligations of which are backed by the full faith and credit of the United States and in the form of conventional bills, bonds, and notes.

 

Valuation Policy ” has the meaning assigned to such term in Section 5.12(b)(ii)(B).

 

Value ” has the meaning assigned to such term in Section 5.13.

 

Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.

 

SECTION 1.02.  Classification of Loans and Borrowings .  For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., an “ABR Loan”).  Borrowings also may be classified and referred to by Type (e.g., an “ABR Borrowing”).  Loans and Borrowings may also be identified by Currency.

 

SECTION 1.03.  Terms Generally .  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, renewed or otherwise modified (subject to any restrictions on such amendments, supplements, renewals or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

SECTION 1.04.  Accounting Terms; GAAP .  Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Restatement Effective Date in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then

 

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such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.  The Borrower covenants and agrees with the Lenders that whether or not the Borrower may at any time adopt Financial Accounting Standard No. 159 (or successor standard solely as it relates to fair valuing liabilities) or accounts for liabilities acquired in an acquisition on a fair value basis pursuant to Financial Accounting Standard No. 141(R) (or successor standard solely as it relates to fair valuing liabilities), all determinations of compliance with the terms and conditions of this Agreement shall be made on the basis that the Borrower has not adopted Financial Accounting Standard No. 159 (or such successor standard solely as it relates to fair valuing liabilities) or, in the case of liabilities acquired in an acquisition, Financial Accounting Standard No. 141(R) (or such successor standard solely as it relates to fair valuing liabilities); provided that, if the Borrower shall at any time adopt Financial Accounting Standard No. 159, or if Financial Accounting Standard No. 141(R) shall apply with respect to any acquired assets or liabilities, for purposes of calculating compliance with Section 6.07(a) and Section 6.07(b) after such adoption, or for any period ending after such adoption, Specified Debt shall be valued as it is valued under Financial Accounting Standard No. 159 or Financial Accounting Standard No. 141(R), as applicable.

 

SECTION 1.06.  Currencies; Currency Equivalents .

 

(a)                                   Currencies Generally .  At any time, any reference in the definition of the term “Agreed Foreign Currency” or in any other provision of this Agreement to the Currency of any particular nation means the lawful currency of such nation at such time whether or not the name of such Currency is the same as it was on the Restatement Effective Date.  Except as provided in Section 2.09(b) and the last sentence of Section 2.16(a), for purposes of determining (i) whether the amount of any Borrowing or Letter of Credit, together with all other Borrowings and Letters of Credit then outstanding or to be borrowed at the same time as such Borrowing, would exceed the aggregate amount of the Initial Commitments or Commitments, as applicable, (ii) the aggregate unutilized amount of the Commitments, (iii) the Revolving Credit Exposure, (iv) the LC Exposure, (v) the Covered Debt Amount and (vi) the Borrowing Base or the Value or the fair market value of any Portfolio Investment, the outstanding principal amount of any Borrowing or Letter of Credit that is denominated in any Foreign Currency or the Value or the fair market value of any Portfolio Investment that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent of the amount of the Foreign Currency of such Borrowing, Letter of Credit or Portfolio Investment, as the case may be, determined as of the date of such Borrowing or Letter of Credit (determined in accordance with the last sentence of the definition of the term “Interest Period”) or the date of valuation of such Portfolio Investment, as the case may be.  Wherever in this Agreement in connection with a Borrowing or Loan an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing or Loan is denominated in a Foreign Currency, such amount shall be the relevant Foreign Currency

 

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Equivalent of such Dollar amount (rounded to the nearest 1,000 units of such Foreign Currency).

 

(b)                                  Special Provisions Relating to Euro .  Each obligation hereunder of any party hereto that is denominated in the National Currency of a state that is not a Participating Member State on the Restatement Effective Date shall, effective from the date on which such state becomes a Participating Member State, be redenominated in Euro in accordance with the legislation of the European Union applicable to the European Monetary Union; provided that, if and to the extent that any such legislation provides that any such obligation of any such party payable within such Participating Member State by crediting an account of the creditor can be paid by the debtor either in Euros or such National Currency, such party shall be entitled to pay or repay such amount either in Euros or in such National Currency.  If the basis of accrual of interest or fees expressed in this Agreement with respect to an Agreed Foreign Currency of any country that becomes a Participating Member State after the date on which such currency becomes an Agreed Foreign Currency shall be inconsistent with any convention or practice in the interbank market for the basis of accrual of interest or fees in respect of the Euro, such convention or practice shall replace such expressed basis effective as of and from the date on which such state becomes a Participating Member State; provided that, with respect to any Borrowing denominated in such currency that is outstanding immediately prior to such date, such replacement shall take effect at the end of the Interest Period therefor.

 

Without prejudice to the respective liabilities of the Borrower to the Lenders and the Lenders to the Borrower under or pursuant to this Agreement, each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time, in consultation with the Borrower, reasonably specify to be necessary or appropriate to reflect the introduction or changeover to the Euro in any country that becomes a Participating Member State after the Restatement Effective Date; provided that the Administrative Agent shall provide the Borrower and the Lenders with prior notice of the proposed change with an explanation of such change in sufficient time to permit the Borrower and the Lenders an opportunity to respond to such proposed change.

 

ARTICLE II

 

THE CREDITS

 

SECTION 2.01.  The Commitments .  Subject to the terms and conditions set forth herein, each Lender agrees to make Loans in Dollars or in any Agreed Foreign Currency to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (a) prior to the Step-Up Date, such Lender’s Revolving Credit Exposure exceeding such Lender’s Initial Commitment and on or after the Step-Up Date, such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment, (b) prior to the Step-Up Date, the aggregate Revolving Credit Exposure of all of the Lenders exceeding the aggregate Initial Commitments and on or

 

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after the Step-Up Date, the aggregate Revolving Credit Exposure of all of the Lenders exceeding the Commitments, or (c) the total Covered Debt Amount exceeding the Borrowing Base then in effect.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Loans.

 

SECTION 2.02.  Loans and Borrowings .

 

(a)                                   Obligations of Lenders .  Each Loan shall be made as part of a Borrowing consisting of Loans of the same Currency and Type made by the Lenders ratably in accordance with their respective Initial Commitments in the case of any Loan or Borrowing made prior to the Step-Up Date and ratably in accordance with their respective Commitments in the case of any Loan or Borrowing made on or after the Step-Up Date.  The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b)                                  Type of Loans .  Subject to Section 2.12, each Borrowing shall be constituted entirely of ABR Loans or of Eurocurrency Loans denominated in a single Currency as the Borrower may request in accordance herewith.  Each ABR Loan shall be denominated in Dollars.  Each Lender at its option may make any Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

(c)                                   Minimum Amounts .  Each Borrowing (whether Eurocurrency or ABR) shall be in an aggregate amount of $1,000,000 or a larger multiple of $1,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Commitments or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.04(f).  Borrowings of more than one Currency and Type may be outstanding at the same time.

 

(d)                                  Limitations on Interest Periods .  Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request (or to elect to convert to or continue as a Eurocurrency Borrowing) any Borrowing if the Interest Period requested therefor would end after the Commitment Termination Date.

 

(e)                                   Restatement Effective Date Adjustments .  On the Restatement Effective Date the Borrower will borrow from each of the Lenders, and the Lenders will make Loans to the Borrower (in the case of Eurocurrency Loans, with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s) under the Original Agreement, provided that for any outstanding Interest Period of less than 1-month, the LIBO Rate will be equal to 1-month LIBOR), and (notwithstanding the provisions in this Agreement requiring that borrowings and prepayments be made ratably in accordance with the principal amounts of the Loans held by the Lenders) the Borrower shall prepay

 

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all of the Loans held by the Retiring Lenders and prepay the Loans held by the Lenders in such amounts as may be necessary, together with any amounts payable under Section 2.14, so that after giving effect to such Loans and prepayments, the Loans (and Interest Period(s) of Eurocurrency Loan(s)) shall be held by the Lenders pro rata in accordance with the respective amounts of their Initial Commitments.  Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Initial Commitments as so modified.

 

SECTION 2.03.  Requests for Borrowings .

 

(a)                                   Notice by the Borrower .  To request a Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone (i) in the case of a Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in a Foreign Currency, not later than 11:00 a.m., London time, three Business Days before the date of the proposed Borrowing or (iii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the proposed Borrowing.  Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower.

 

(b)                                  Content of Borrowing Requests .  Each telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:

 

(i)                                      the aggregate amount and Currency of the requested Borrowing;

 

(ii)                                   the date of such Borrowing, which shall be a Business Day;

 

(iii)                                in the case of a Borrowing denominated in Dollars, whether such Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing;

 

(iv)                               in the case of a Eurocurrency Borrowing, the Interest Period therefor, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d); and

 

(v)                                  the location and number of the Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.

 

(c)                                   Notice by the Administrative Agent to the Lenders .  Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amounts of such Lender’s Loan to be made as part of the requested Borrowing.

 

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(d)           Failure to Elect .  If no election as to the Currency of a Borrowing is specified, then the requested Borrowing shall be denominated in Dollars.  If no election as to the Type of a Borrowing is specified, then the requested Borrowing shall be a Eurocurrency Borrowing having an Interest Period of one month and, if an Agreed Foreign Currency has been specified, the requested Borrowing shall be a Eurocurrency Borrowing denominated in such Agreed Foreign Currency and having an Interest Period of one month.  If a Eurocurrency Borrowing is requested but no Interest Period is specified, (i) if the Currency specified for such Borrowing is Dollars (or if no Currency has been so specified), the requested Borrowing shall be a Eurocurrency Borrowing denominated in Dollars having an Interest Period of one month’s duration, and (ii) if the Currency specified for such Borrowing is an Agreed Foreign Currency, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.

 

SECTION 2.04.  Letters of Credit .

 

(a)           General .  Subject to the terms and conditions set forth herein, in addition to the Loans provided for in Section 2.01, the Borrower may request the Issuing Bank to issue, at any time and from time to time during the Availability Period, Letters of Credit denominated in Dollars or in any Agreed Foreign Currency for its own account in such form as is acceptable to the Issuing Bank in its reasonable determination and for the benefit of such named beneficiary or beneficiaries as are specified by the Borrower.  Letters of Credit issued hereunder shall constitute utilization of the Initial Commitments prior to the Step-Up Date and, on and after the Step-Up Date, shall constitute utilization of the Commitments, up to the aggregate amount then available to be drawn thereunder.

 

(b)           Notice of Issuance, Amendment, Renewal or Extension .  To request the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (d) of this Section), the amount and Currency of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank’s standard form in connection with any request for a Letter of Credit.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

 

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(c)           Limitations on Amounts .  A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the aggregate LC Exposure of the Issuing Bank (determined for these purposes without giving effect to the participations therein of the Lenders pursuant to paragraph (e) of this Section) shall not exceed $50,000,000, (ii) the total Revolving Credit Exposures shall not exceed the aggregate Commitments and (iii) the total Covered Debt Amount shall not exceed the Borrowing Base then in effect.

 

(d)           Expiration Date .  Each Letter of Credit shall expire at or prior to the close of business on the date twelve months after the date of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, twelve months after the then-current expiration date of such Letter of Credit, so long as such renewal or extension occurs within three months of such then-current expiration date); provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods.

 

(e)           Participations .  By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) by the Issuing Bank, and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.  Each Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, provided that no Lender shall be required to purchase a participation in a Letter of Credit pursuant to this Section 2.04(e) if (x) the conditions set forth in Section 4.02 would not be satisfied in respect of a Borrowing at the time such Letter of Credit was issued and (y) the Required Lenders shall have so notified the Issuing Bank in writing and shall not have subsequently determined that the circumstances giving rise to such conditions not being satisfied no longer exist.

 

In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for account of the Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank promptly upon the request of the Issuing Bank at any time from the time of such LC Disbursement until such LC Disbursement is reimbursed by the Borrower or at any time after any reimbursement payment is required to be refunded to the Borrower for any reason.  Such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each such payment shall be made in the same

 

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manner as provided in Section 2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis mutandis , to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders.  Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to the next following paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that the Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear.  Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement.

 

(f)            Reimbursement .  If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the Issuing Bank in respect of such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on (i) the Business Day that the Borrower receives notice of such LC Disbursement, if such notice is received prior to 10:00 a.m., New York City time, or (ii) the Business Day immediately following the day that the Borrower receives such notice, if such notice is not received prior to such time, provided that, if such LC Disbursement is not less than $1,000,000, the Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting ABR Borrowing.

 

If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof.

 

(g)           Obligations Absolute .  The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (f) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply strictly with the terms of such Letter of Credit, and (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of the Borrower’s obligations hereunder.

 

Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by reason of or in

 

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connection with the issuance or transfer of any Letter of Credit by the Issuing Bank or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank’s gross negligence or willful misconduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that:

 

(i)            the Issuing Bank may accept documents that appear on their face to be in substantial compliance with the terms of a Letter of Credit without responsibility for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents that appear on their face to be in substantial compliance with the terms of such Letter of Credit;

 

(ii)           the Issuing Bank shall have the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict compliance with the terms of such Letter of Credit; and

 

(iii)          this sentence shall establish the standard of care to be exercised by the Issuing Bank when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by applicable law, any standard of care inconsistent with the foregoing).

 

(h)           Disbursement Procedures .  The Issuing Bank shall, within a reasonable time following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly after such examination notify the Administrative Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the Lenders with respect to any such LC Disbursement.

 

(i)            Interim Interest .  If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but

 

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excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Loans; provided that, if the Borrower fails to reimburse such LC Disbursement within two Business Days following the date when due pursuant to paragraph (f) of this Section, then the provisions of Section 2.11(c) shall apply.  Interest accrued pursuant to this paragraph shall be for account of the Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (f) of this Section to reimburse the Issuing Bank shall be for account of such Lender to the extent of such payment.

 

(j)            Replacement of the Issuing Bank .  The Issuing Bank may be replaced at any time by written agreement between the Borrower, the Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.  The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for account of the replaced Issuing Bank pursuant to Section 2.10(b).  From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement of the Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.

 

(k)           Cash Collateralization .  If the Borrower shall be required to provide cover for LC Exposure pursuant to Section 2.08(a), Section 2.09(c) or the last paragraph of Article VII, the Borrower shall immediately deposit into a segregated collateral account or accounts (herein, collectively, the “ Letter of Credit Collateral Account ”) in the name and under the dominion and control of the Administrative Agent Cash denominated in the Currency of the Letter of Credit under which such LC Exposure arises in an amount equal to the amount required under Section 2.08(a), Section 2.09(c) or the last paragraph of Article VII, as applicable.  Such deposit shall be held by the Administrative Agent as collateral in the first instance for the LC Exposure under this Agreement and thereafter for the payment of the “Secured Obligations” under and as defined in the Guarantee and Security Agreement, and for these purposes the Borrower hereby grants a security interest to the Administrative Agent for the benefit of the Lenders in the Letter of Credit Collateral Account and in any financial assets (as defined in the Uniform Commercial Code) or other property held therein.

 

SECTION 2.05.  Funding of Borrowings .

 

(a)           Funding by Lenders .  Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., Local Time, to the account of the Administrative Agent

 

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most recently designated by it for such purpose by notice to the Lenders.  The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request; provided that ABR Borrowings made to finance the reimbursement of an LC Disbursement as provided in Section 2.04(f) shall be remitted by the Administrative Agent to the Issuing Bank.

 

(b)           Presumption by the Administrative Agent .  Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.  Nothing in this paragraph shall relieve any Lender of its obligation to fulfill its commitments hereunder, and shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

 

SECTION 2.06.  Interest Elections .

 

(a)           Elections by the Borrower for Borrowings .  Subject to Section 2.03(d), the Loans constituting each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurocurrency Borrowing, shall have the Interest Period specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Eurocurrency Borrowing, may elect the Interest Period therefor, all as provided in this Section; provided , however , that (i) a Borrowing denominated in one Currency may not be continued as, or converted to, a Borrowing in a different Currency, (ii) no Eurocurrency Borrowing denominated in a Foreign Currency may be continued if, after giving effect thereto, the aggregate Revolving Credit Exposures would exceed the aggregate Commitments, and (iii) a Eurocurrency Borrowing denominated in a Foreign Currency may not be converted to a Borrowing of a different Type.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans constituting such Borrowing, and the Loans constituting each such portion shall be considered a separate Borrowing.

 

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(b)           Notice of Elections .  To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election.  Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly (but no later than the close of business on the date of such request) by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request signed by the Borrower.

 

(c)           Content of Interest Election Requests .  Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:

 

(i)            the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) of this paragraph shall be specified for each resulting Borrowing);

 

(ii)           the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

 

(iii)          whether, in the case of a Borrowing denominated in Dollars, the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing; and

 

(iv)          if the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period therefor after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” and permitted under Section 2.02(d).

 

(d)           Notice by the Administrative Agent to the Lenders .  Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

 

(e)           Failure to Elect; Events of Default .  If the Borrower fails to deliver a timely and complete Interest Election Request with respect to a Eurocurrency Borrowing prior to the end of the Interest Period therefor, then, unless such Borrowing is repaid as provided herein, (i) if such Borrowing is denominated in Dollars, at the end of such Interest Period such Borrowing shall be converted to a Eurocurrency Borrowing having an Interest Period of one month, and (ii) if such Borrowing is denominated in a Foreign Currency, the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  Notwithstanding any contrary provision hereof, if an Event of

 

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Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing no outstanding Eurocurrency Borrowing may have an Interest Period of more than one month’s duration.

 

SECTION 2.07.  Termination, Reduction or Increase of the Commitments .

 

(a)           Scheduled Termination .  Unless previously terminated, the Commitments shall terminate on the Commitment Termination Date.  Unless previously terminated, the Step-Up Date Commitments shall terminate on June 30, 2010 if the Step-Up Date has not occurred prior to such date (or, if such date has been extended to September 30, 2010 in accordance with clause (a) of the definition of Step-Up Date, September 30, 2010 if the Step-Up Date shall not have occurred by such date).

 

(b)           Voluntary Termination or Reduction .  The Borrower may at any time terminate, or from time to time reduce, the Commitments; provided that (i) each reduction of the Commitments shall be in an amount that is $25,000,000 (or, if less, the entire remaining amount of the Commitments) or a larger multiple of $5,000,000 in excess thereof and (ii) the Borrower shall not terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.09, the total Revolving Credit Exposures would exceed the total Commitments.

 

(c)           Notice of Voluntary Termination or Reduction .  The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.

 

(d)           Effect of Termination or Reduction .  Any termination or reduction of the Commitments shall be permanent.  Each reduction of the Commitments shall be made ratably among the Lenders in accordance with their respective Commitments; provided that, prior to the Step-Up Date, any reduction in Commitments shall be applied first, to reduce the Step-Up Date Commitments until the Step-Up Date Commitments are reduced to zero and, thereafter pro rata to the remaining Commitments.

 

(e)           Increase of the Commitments .

 

(i)            Requests for Increase by Borrower .  The Borrower may at any time propose that the Commitments hereunder be increased (each such proposed

 

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increase being a “ Commitment Increase ”) by notice to the Administrative Agent, specifying each existing Lender (each an “ Increasing Lender ”) and/or each additional lender (each an “ Assuming Lender ”) that shall have agreed to an additional Commitment and the date on which such increase is to be effective (the “ Commitment Increase Date ”), which shall be a Business Day at least three Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date; provided that:

 

(A)          each increase shall be in a minimum amount of at least $25,000,000 or a larger multiple of $5,000,000 in excess thereof (or such lesser amount as shall be determined in the discretion of the Administrative Agent);

 

(B)           the aggregate amount of all Commitment Increases shall not exceed $360,000,000; provided that, prior to the Step-Up Date, the aggregate amount of any Commitment Increases shall not exceed $282,500,000.

 

(C)           each Assuming Lender shall be consented to by the Administrative Agent and the Issuing Bank;

 

(D)          no Default shall have occurred and be continuing on such Commitment Increase Date or shall result from the proposed Commitment Increase; and

 

(E)           the representations and warranties contained in this Agreement shall be true and correct in all material respects (or, in the case of the representations and warranties in Sections 3.01 (first sentence with respect to the Obligors), 3.02, 3.04, 3.11 and 3.15 of this Agreement, and in Sections 2.01, 2.02 and 2.04 through 2.09 of the Guarantee and Security Agreement, true and correct in all respects) on and as of the Commitment Increase Date as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).

 

(ii)           Effectiveness of Commitment Increase by Borrower .  The Assuming Lender, if any, shall become a Lender hereunder as of such Commitment Increase Date and the Commitment of any Increasing Lender and such Assuming Lender shall be increased as of such Commitment Increase Date; provided that:

 

(x)            the Administrative Agent shall have received on or prior to 11:00 a.m., New York City time, on such Commitment Increase Date a certificate of a duly authorized officer of the Borrower stating that each of the applicable conditions to such

 

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Commitment Increase set forth in the foregoing paragraph (i) has been satisfied; and

 

(y)           each Assuming Lender or Increasing Lender shall have delivered to the Administrative Agent, on or prior to 11:00 a.m., New York City time, on such Commitment Increase Date, an agreement, in form and substance satisfactory to the Borrower and the Administrative Agent, pursuant to which such Lender shall, effective as of such Commitment Increase Date, undertake a Commitment or an increase of Commitment, duly executed by such Assuming Lender or Increasing Lender, as applicable, and the Borrower and acknowledged by the Administrative Agent.

 

(iii)          Recordation into Register .  Upon its receipt of an agreement referred to in clause (ii)(y) above executed by an Assuming Lender or an Increasing Lender, together with the certificate referred to in clause (ii)(x) above, the Administrative Agent shall, if such agreement has been completed, (x) accept such agreement, (y) record the information contained therein in the Register and (z) give prompt notice thereof to the Borrower.

 

(iv)          Adjustments of Borrowings upon Effectiveness of Increase and Step-Up Date .  In the event that the Administrative Agent shall have received notice from the Borrower as to any agreement with respect to a Commitment Increase prior to the relevant Commitment Increase Date and the actions provided for in clauses (ii)(x) and (ii)(y) above shall have occurred by 9:00 a.m., New York City time, on such Commitment Increase Date or shall have received notice at least 4 Business Days prior to the proposed Step-Up Date provided that the conditions to the Step-Up Date have been satisfied by 12:00 p.m. New York City time as of the Business Day immediately preceding such proposed Step-Up Date, the Administrative Agent shall notify the Lenders (including any Assuming Lenders) of the occurrence of such Commitment Increase Date or Step-Up Date, as applicable, promptly on such date by facsimile transmission or electronic messaging system.  If on the Commitment Increase Date or Step-Up Date, as applicable, any Loans shall be outstanding, the Borrower will borrow from each of the Increasing Lenders or Lenders with Step-Up Date Commitments, as applicable, and the Increasing Lenders or Lenders with Step-Up Date Commitments, as applicable, will make Loans to the Borrower (in the case of Eurocurrency Loans, with Interest Period(s) ending on the date(s) of any then outstanding Interest Period(s) provided that for any outstanding Interest Period of less than 1-month, the LIBO Rate will be equal to 1-month LIBOR), and (notwithstanding the provisions in this Agreement requiring that borrowings and prepayments be made ratably in accordance with the principal amounts of the Loans held by the Lenders) the Borrower shall prepay the Loans held by the other Lenders (other than the Increasing Lenders or Lenders with Step-Up Date Commitments) in such amounts as may be necessary, together with any amounts payable under Section 2.14 as a result of such prepayment, so that after giving effect to

 

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such Loans and prepayments, the Loans (and Interest Period(s) of Eurocurrency Loan(s)) shall be held by the Lenders pro rata in accordance with the respective amounts of their Initial Commitments or Commitments, as applicable (as modified hereby).  Concurrently therewith, the Lenders shall be deemed to have adjusted their participation interests in any outstanding Letters of Credit so that such interests are held ratably in accordance with their Initial Commitments or Commitments, as applicable, as so increased.

 

SECTION 2.08.  Repayment of Loans; Evidence of Debt .

 

(a)           Repayment .  The Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Lenders the outstanding principal amount of the Loans on the Commitment Termination Date.

 

In addition, on the Commitment Termination Date, the Borrower shall deposit into the Letter of Credit Collateral Account Cash in an amount equal to 102% of the undrawn face amount of all Letters of Credit outstanding on the close of business on the Commitment Termination Date, such deposit to be held by the Administrative Agent as collateral security for the LC Exposure under this Agreement in respect of the undrawn portion of such Letters of Credit.

 

(b)           Manner of Payment .  Prior to any repayment or prepayment of any Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be paid and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such selection not later than 11:00 a.m., New York City time, three Business Days before the scheduled date of such repayment; provided that each repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings before any other Borrowings.  If the Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid or prepaid, such payment shall be applied, first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid first).  Each payment of a Borrowing shall be applied ratably to the Loans included in such Borrowing.

 

(c)           Maintenance of Records by Lenders .  Each Lender shall maintain in accordance with its usual practice records evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts and Currency of principal and interest payable and paid to such Lender from time to time hereunder.

 

(d)           Maintenance of Records by the Administrative Agent .  The Administrative Agent shall maintain records in which it shall record (i) the amount and Currency of each Loan made hereunder, the Type thereof and each Interest Period therefor, (ii) the amount and Currency of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the

 

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amount and Currency of any sum received by the Administrative Agent hereunder for account of the Lenders and each Lender’s share thereof.

 

(e)           Effect of Entries .  The entries made in the records maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence, absent obvious error, of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such records or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.

 

(f)            Promissory Notes .  Any Lender may request that Loans made by it be evidenced by a promissory note.  In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).

 

SECTION 2.09.  Prepayment of Loans .

 

(a)           Optional Prepayments .  The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty except for payments under Section 2.14, subject to the requirements of this Section.

 

(b)           Mandatory Prepayments due to Changes in Exchange Rates .

 

(i)            Determination of Amount Outstanding .  On each Quarterly Date and, in addition, promptly upon the receipt by the Administrative Agent of a Currency Valuation Notice (as defined below), the Administrative Agent shall determine the aggregate Revolving Credit Exposure.  For the purpose of this determination, the outstanding principal amount of any Loan that is denominated in any Foreign Currency shall be deemed to be the Dollar Equivalent of the amount in the Foreign Currency of such Loan, determined as of such Quarterly Date or, in the case of a Currency Valuation Notice received by the Administrative Agent prior to 11:00 a.m., New York City time, on a Business Day, on such Business Day or, in the case of a Currency Valuation Notice otherwise received, on the first Business Day after such Currency Valuation Notice is received.  Upon making such determination, the Administrative Agent shall promptly notify the Lenders and the Borrower thereof.

 

(ii)           Prepayment .  If, on the date of such determination the aggregate Revolving Credit Exposure exceeds 105% of the aggregate amount of the Commitments as then in effect, the Borrower shall prepay the Loans (and/or

 

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provide cover for LC Exposure as specified in Section 2.04(k)) within 15 Business Days following such date of determination in such amounts as shall be necessary so that after giving effect thereto the aggregate Revolving Credit Exposure does not exceed the Commitments.

 

For purposes hereof, “ Currency Valuation Notice ” means a notice given by the Required Lenders to the Administrative Agent stating that such notice is a “Currency Valuation Notice” and requesting that the Administrative Agent determine the aggregate Revolving Credit Exposure.  The Administrative Agent shall not be required to make more than one valuation determination pursuant to Currency Valuation Notices within any rolling three month period.

 

Any prepayment pursuant to this paragraph shall be applied, first , to Loans outstanding and second , as cover for LC Exposure.

 

(c)           Mandatory Prepayments due to Borrowing Base Deficiency .  In the event that at any time any Borrowing Base Deficiency shall exist, the Borrower shall prepay the Loans (or provide cover for Letters of Credit as contemplated by Section 2.04(k)), or reduce Permitted Indebtedness or Indebtedness incurred pursuant to Section 6.01(g), in such amounts as shall be necessary so that such Borrowing Base Deficiency is immediately cured, provided that (i) the aggregate amount of such prepayment of Loans (and cover for Letters of Credit) shall be at least equal to the Revolving Credit Exposure’s ratable share of the aggregate prepayment and reduction of Permitted Indebtedness and of Indebtedness incurred pursuant to Section 6.01(g) and (ii) if, within five Business Days after delivery of a Borrowing Base Certificate demonstrating such Borrowing Base Deficiency (and/or at such other times as the Borrower has knowledge of such Borrowing Base Deficiency), the Borrower shall present the Administrative Agent with a reasonably feasible plan to enable such Borrowing Base Deficiency to be cured within 30 Business Days (which 30-Business Day period shall include the five Business Days permitted for delivery of such plan), then such prepayment or reduction shall not be required to be effected immediately but may be effected in accordance with such plan (with such modifications as the Borrower may reasonably determine), so long as such Borrowing Base Deficiency is cured within such 30-Business Day period.

 

(d)           Notices, Etc.   The Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m., New York City time (or, in the case of a Borrowing denominated in a Foreign Currency, 11:00 a.m., London time), three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment.  Each such notice shall be irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated

 

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by Section 2.07, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.07.  Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued interest to the extent required by Section 2.11 and shall be made in the manner specified in Section 2.08(b).

 

SECTION 2.10.  Fees .

 

(a)           Commitment Fee .  The Borrower agrees to pay to the Administrative Agent for account of each Lender a commitment fee, which shall accrue at the Applicable Margin on the average daily unused amount of the Commitment of such Lender during the period from and including the Restatement Effective Date to but excluding the earlier of the date such Commitment terminates and the Commitment Termination Date.  Accrued commitment fees shall be payable within one Business Day after each Quarterly Date and on the earlier of the date the Commitments terminate and the Commitment Termination Date, commencing on the first such date to occur after the Restatement Effective Date.  All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  For purposes of computing commitment fees, the Commitment of a Lender shall be deemed to be used to the extent of the outstanding Loans and LC Exposure of such Lender.

 

(b)           Letter of Credit Fees .  The Borrower agrees to pay (i) to the Administrative Agent for account of each Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Margin applicable to interest on Eurocurrency Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Restatement Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.25% per annum on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Restatement Effective Date to but excluding the later of the date of termination of the Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees accrued through and including each Quarterly Date shall be payable on the third Business Day following such Quarterly Date, commencing on the first such date to occur after the Restatement Effective Date; provided that, on the date on which the

 

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Commitments terminate (the “ termination date ”) the Borrower shall pay any such fees that have accrued and that are unpaid on the termination date and, in the event any Letters of Credit shall be outstanding that have expiration dates after the termination date, the Borrower shall prepay on the termination date the full amount of the participation and fronting fees that will accrue on such Letters of Credit subsequent to the termination date through but not including the date such outstanding Letters of Credit are scheduled to expire (and in that connection, the Lenders agree not later than the date two Business Days after the date upon which the last such Letter of Credit shall expire or be terminated to rebate to the Borrower the excess, if any, of the aggregate participation and fronting fees that have been prepaid by the Borrower over the amount of such fees that ultimately accrue through the date of such expiration or termination).  Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 days after demand.  All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

 

(c)           Administrative Agent Fees .  The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Borrower and the Administrative Agent.

 

(d)           Payment of Fees .  All fees payable hereunder shall be paid on the dates due, in Dollars and immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for distribution, in the case of facility fees and participation fees, to the Lenders entitled thereto.  Fees paid shall not be refundable under any circumstances absent obvious error.

 

SECTION 2.11.  Interest .

 

(a)           ABR Loans .  The Loans constituting each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin.

 

(b)           Eurocurrency Loans .  The Loans constituting each Eurocurrency Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the related Interest Period for such Borrowing plus the Applicable Margin.

 

(c)           Default Interest .  Notwithstanding the foregoing clauses (a) and (b), if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided above or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.

 

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(d)           Payment of Interest .  Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan in the Currency in which such Loan is denominated and upon termination of the Commitments (including on the Commitment Termination Date); provided that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the Commitment Termination Date), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurocurrency Borrowing denominated in Dollars prior to the end of the Interest Period therefor, accrued interest on such Borrowing shall be payable on the effective date of such conversion.

 

(e)           Computation .  All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

SECTION 2.12.  Alternate Rate of Interest .  If prior to the commencement of the Interest Period for any Eurocurrency Borrowing (the Currency of such Borrowing herein called the “ Affected Currency ”):

 

(a)           the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for the Affected Currency for such Interest Period; or

 

(b)           the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for the Affected Currency for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for such Interest Period;

 

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or the continuation of any Borrowing as, a Eurocurrency Borrowing denominated in the Affected Currency shall be ineffective and, if the Affected Currency is Dollars, such Borrowing (unless prepaid) shall be continued as, or converted to, an ABR Borrowing, (ii) if the Affected Currency is Dollars and any Borrowing Request requests a Eurocurrency Borrowing denominated in Dollars, such

 

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Borrowing shall be made as an ABR Borrowing and (iii) if the Affected Currency is a Foreign Currency, any Borrowing Request that requests a Eurocurrency Borrowing denominated in the Affected Currency shall be ineffective.

 

SECTION 2.13.  Increased Costs .

 

(a)           Increased Costs Generally .  If any Change in Law shall:

 

(i)            impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate and, if applicable, the MCR Cost) or the Issuing Bank; or

 

(ii)           impose on any Lender or the Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurocurrency Loans made by such Lender or any Letter of Credit or participation therein;

 

and the result of any of the foregoing shall be to increase the cost to such Lenders of making or maintaining any Eurocurrency Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as the case may be, in Dollars, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.

 

(b)           Capital Requirements .  If any Lender or the Issuing Bank determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing Bank’s holding company with respect to capital adequacy), by an amount deemed to be material by such Lender or Issuing Bank, then from time to time the Borrower will pay to such Lender or the Issuing Bank, as the case may be, in Dollars, such additional amount or amounts as will compensate such Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such reduction suffered.

 

(c)           Certificates from  Lenders .  A certificate of a Lender or the Issuing Bank setting forth the amount or amounts, in Dollars, necessary to compensate such Lender or the Issuing Bank or its holding company, as the case may be, as specified in

 

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paragraph (a) or (b) of this Section shall be promptly delivered to the Borrower and shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

 

(d)           Delay in Requests .  Failure or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than six months prior to the date that such Lender or the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.

 

SECTION 2.14.  Break Funding Payments .  In the event of (a) the payment of any principal of any Eurocurrency Loan other than on the last day of an Interest Period therefor (including as a result of the occurrence of the Step-Up Date, any Commitment Increase Date or an Event of Default), (b) the conversion of any Eurocurrency Loan other than on the last day of an Interest Period therefor, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (including, in connection with the Step-Up Date or any Commitment Increase Date, and regardless of whether such notice is permitted to be revocable under Section 2.09(d) and is revoked in accordance herewith), or (d) the assignment as a result of a request by the Borrower pursuant to Section 2.18(b) of any Eurocurrency Loan other than on the last day of an Interest Period therefor, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan, the loss to any Lender attributable to any such event shall be deemed to include an amount determined by such Lender to be equal to the excess, if any, of

 

(i)            the amount of interest that such Lender would pay for a deposit equal to the principal amount of such Loan denominated in the Currency of such Loan for the period from the date of such payment, conversion, failure or assignment to the last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the duration of the Interest Period that would have resulted from such borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBO Rate for such Currency for such Interest Period, over

 

(ii)           the amount of interest that such Lender would earn on such principal amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid by such Lender (or an

 

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affiliate of such Lender) for deposits denominated in such Currency from other banks in the eurocurrency market at the commencement of such period.

 

Payment under this Section shall be made upon request of a Lender delivered not later than five Business Days following the payment, conversion, or failure to borrow, convert, continue or prepay that gives rise to a claim under this Section accompanied by a certificate of such Lender setting forth the amount or amounts that such Lender is entitled to receive pursuant to this Section, which certificate shall be conclusive absent manifest error.  The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.

 

SECTION 2.15.  Taxes .

 

(a)           Payments Free of Taxes .  Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent, Lender or Issuing Bank (as the case may be) 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 Governmental Authority in accordance with applicable law.

 

(b)           Payment of Other Taxes by the Borrower .  In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

 

(c)           Indemnification by the Borrower .  The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank for, and within 30 Business Days after written demand therefor, pay the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error.

 

(d)           Evidence of Payments .  As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a

 

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receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

(e)           Foreign Lenders .  Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate.

 

In addition, any Foreign Lender, if requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Foreign Lender is subject to backup withholding or information reporting requirements.

 

Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

 

(i)            duly completed copies of Internal Revenue Service Form W-8BEN or any successor form claiming eligibility for benefits of an income tax treaty to which the United States is a party,

 

(ii)           duly completed copies of Internal Revenue Service Form W-8ECI or any successor form certifying that the income receivable pursuant to this Agreement is effectively connected with the conduct of a trade or business in the United States,

 

(iii)          in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (2) a “10 percent shareholder” of the Borrower within the meaning of section 881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (B) duly completed copies of  Internal Revenue Service Form W-8BEN (or any successor form) certifying that the Foreign Lender is not a United States Person, or

 

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(iv)          any other form including Internal Revenue Service Form W-8IMY as applicable prescribed by applicable law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made.

 

In addition, upon reasonable request of the Borrower or the Administrative Agent, each Foreign Lender shall deliver such forms promptly upon the expiration or invalidity of any form previously delivered by such Foreign Lender, provided it is legally able to do so at the time.  Each Foreign Lender shall promptly notify the Borrower and the Administrative Agent at any time the chief tax officer of such Foreign Lender becomes aware that it no longer satisfies the legal requirements to provide any previously delivered form or certificate to the Borrower (or any other form of certification adopted by the U.S. or other taxing authorities for such purpose).

 

(f)            United States Lenders .  Each Lender and Issuing Bank that is not a Foreign Lender shall deliver to the Borrower (with a copy to the Administrative Agent), prior to the date on which such Issuing Bank or Lender becomes a party to this Agreement, upon the expiration or invalidity of any forms previously delivered and at times reasonably requested by the Borrower, duly completed copies of Internal Revenue Service Form W-9 or any successor form, provided it is legally able to do so at the time.

 

(g)           Treatment of Certain Refunds .  If the Administrative Agent, any Lender or an Issuing Bank determines, in its sole discretion, that it has received a refund or credit (in lieu of such refund) of any Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all reasonable out-of-pocket expenses of the Administrative Agent, any Lender or an Issuing Bank, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Administrative Agent, any Lender or an Issuing Bank, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, any Lender or an Issuing Bank in the event the Administrative Agent, any Lender or an Issuing Bank is required to repay such refund to such Governmental Authority.  This subsection shall not be construed to require the Administrative Agent, any Lender or an Issuing Bank to make available its tax returns or its books or records (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person.

 

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SECTION 2.16.  Payments Generally; Pro Rata Treatment; Sharing of Set-offs .

 

(a)           Payments by the Borrower .  The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or under Section 2.13, 2.14 or 2.15, or otherwise) or under any other Loan Document (except to the extent otherwise provided therein) prior to 2:00 p.m., Local Time, on the date when due, in immediately available funds, without set-off or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent at the Administrative Agent’s Account, except as otherwise expressly provided in the relevant Loan Document and except payments to be made directly to the Issuing Bank as expressly provided herein and payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03, which shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any such payments received by it for account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All amounts owing under this Agreement (including commitment fees, payments required under Section 2.13, and payments required under Section 2.14 relating to any Loan denominated in Dollars, but not including principal of, and interest on, any Loan denominated in any Foreign Currency or payments relating to any such Loan required under Section 2.14, which are payable in such Foreign Currency) or under any other Loan Document (except to the extent otherwise provided therein) are payable in Dollars.  Notwithstanding the foregoing, if the Borrower shall fail to pay any principal of any Loan when due (whether at stated maturity, by acceleration, by mandatory prepayment or otherwise), the unpaid portion of such Loan shall, if such Loan is not denominated in Dollars, automatically be redenominated in Dollars on the due date thereof (or, if such due date is a day other than the last day of the Interest Period therefor, on the last day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of such redenomination and such principal shall be payable on demand; and if the Borrower shall fail to pay any interest on any Loan that is not denominated in Dollars, such interest shall automatically be redenominated in Dollars on the due date therefor (or, if such due date is a day other than the last day of the Interest Period therefor, on the last day of such Interest Period) in an amount equal to the Dollar Equivalent thereof on the date of such redenomination and such interest shall be payable on demand.

 

(b)           Application of Insufficient Payments .  If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to

 

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such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.

 

(c)           Pro Rata Treatment .  Except to the extent otherwise provided herein: (i) prior to the Step-Up Date, each Borrowing shall be made from the Lenders, and each termination or reduction of the amount of the Initial Commitments under Section 2.07 shall be applied to the respective Initial Commitments of the Lenders, pro rata according to the amounts of their respective Initial Commitments; (ii) on and after the Step-Up Date, each Borrowing shall be made from the Lenders, and each termination or reduction of the amount of the Commitments under Section 2.07 shall be applied to the respective Commitments of the Lenders, pro rata according to the amounts of their respective Commitments; (iii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans), provided that prior to the Step-Up Date, each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Initial Commitments; (iv) each payment of commitment fee under Section 2.10 shall be made for account of the Lenders pro rata according to the average daily unused amounts of their respective Commitments; (v) each payment or prepayment of principal of Loans by the Borrower shall be made for account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by them; and (vi) each payment of interest on Loans by the Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders.

 

(d)           Sharing of Payments by Lenders .  If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).

 

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The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

 

(e)           Presumptions of Payment .  Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due.  In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal Funds Effective Rate.

 

(f)            Certain Deductions by the Administrative Agent .  If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(e), 2.05(b) or 2.16(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

SECTION 2.17.  Defaulting Lenders .

 

Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

 

(a)           commitment fees pursuant to Section 2.10(a) shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender;

 

(b)           the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;

 

(c)           if any LC Exposure exists at the time a Lender becomes a Defaulting Lender then:

 

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(i)            all or any part of such LC Exposure shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages but only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments, (y) no non-Defaulting Lender’s Revolving Credit Exposure will exceed such Lender’s Initial Commitment or Commitment, as applicable, and (z) the conditions set forth in Section 4.02 are satisfied at such time;

 

(ii)           if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within three Business Days following notice by the Administrative Agent cash collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.04(k) for so long as such LC Exposure is outstanding;

 

(iii)          if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;

 

(iv)          if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.10(a) and Section 2.10(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and

 

(v)           if any Defaulting Lender’s LC Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.17(c), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all facility fees that otherwise would have been payable to such Defaulting Lender (solely with respect to the portion of such Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit fees payable under Section 2.10(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or reallocated; and

 

(d)           so long as any Lender is a Defaulting Lender, the Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.17(c), and participating interests in any such newly issued or increased

 

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Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.17(c)(i) (and Defaulting Lenders shall not participate therein).

 

In the event that the Administrative Agent, the Borrower and the Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders as the Administrative shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage.

 

SECTION 2.18.  Mitigation Obligations; Replacement of Lenders .

 

(a)           Designation of a Different Lending Office .  If any Lender requests compensation under Section 2.13, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not subject such Lender to any cost or expense not required to be reimbursed by the Borrower and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

 

(b)           Replacement of Lenders .  If any Lender requests compensation under Section 2.13, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for account of any Lender pursuant to Section 2.15, or if any Lender becomes a Defaulting Lender or is a non-consenting Lender (as provided in Section 9.02(d)), then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.04), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and, if a Commitment is being assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts), and (iii) in the case of any such assignment resulting from a claim for compensation under Section 2.13 or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction in such compensation or

 

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payments.  A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.

 

(c)           Defaulting Lender .  If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(e), 2.05 or 9.03(c), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent or the Issuing Bank to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

 

ARTICLE III

 

REPRESENTATIONS AND WARRANTIES

 

The Borrower represents and warrants to the Lenders that:

 

SECTION 3.01.  Organization; Powers .  Each of the Borrower and its Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required of the Borrower or such Subsidiary, as applicable.

 

SECTION 3.02.  Authorization; Enforceability .  The Transactions are within the Borrower’s corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary shareholder action.  This Agreement has been duly executed and delivered by the Borrower and constitutes, and each of the other Loan Documents when executed and delivered will constitute, a legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

SECTION 3.03.  Governmental Approvals; No Conflicts .  The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except for (i) such as have been or will be obtained or made and are in full force and effect and (ii) filings and recordings in respect of the Liens created pursuant to the Security Documents, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of

 

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the Borrower or any of its Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default in any material respect under any indenture, agreement or other instrument binding upon the Borrower or any of its Subsidiaries or assets, or give rise to a right thereunder to require any payment to be made by any such Person, and (d) except for the Liens created pursuant to the Security Documents, will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries.

 

SECTION 3.04.  Financial Condition; No Material Adverse Change .

 

(a)           Financial Statements .  The Borrower has heretofore delivered to the Lenders the following financial statements:

 

(i)            the audited consolidated balance sheet and statements of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of and for the fiscal year ended December 31, 2008, reported on by KPMG LLP, independent public accountants; and

 

(ii)           the unaudited interim consolidated balance sheet and statements of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of and for the three, six and nine-month periods ended, respectively, March 31, 2009, June 30, 2009 and September 30, 2009, in each case certified by a Financial Officer of the Borrower.

 

Such financial statements present fairly, in all material respects, the consolidated financial position and results of operations and cash flows of the Borrower and its Subsidiaries as of such dates and for such periods in accordance with generally accepted accounting principles applied on a consistent basis, subject to, in the case of such interim statements, year-end audit adjustments and the absence of footnotes.  None of the Borrower or any of its Subsidiaries has on the Restatement Effective Date any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments not reflected in the financial statements referred to above.

 

(b)           No Material Adverse Change .  Since December 31, 2008, there has not been any event, development or circumstance that has had or could reasonably be expected to have a material adverse effect on (i) the business, Portfolio Investments and other assets, liabilities and financial condition of the Borrower taken as a whole (excluding in any case a decline in the net asset value of the Borrower or a change in general market conditions or values of the Borrower’s Portfolio Investments), or (ii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent and the Lenders thereunder.

 

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SECTION 3.05.  Litigation .

 

(a)           Actions, Suits and Proceedings .  There are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority now pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of its Subsidiaries (i) as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or the Transactions.

 

(b)           Disclosed Matters .  Since the Restatement Effective Date, there has been no change in the status of the Disclosed Matters (after giving effect to any update of the Disclosed Matters in accordance with the definition thereof) that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

 

SECTION 3.06.  Compliance with Laws and Agreements .  Each of the Borrower and its Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  None of the Obligors is subject to any contract or other arrangement, the performance of which by them could reasonably be expected to result in a Material Adverse Effect.

 

SECTION 3.07.  [ Reserved] .

 

SECTION 3.08.   Taxes .  Each of the Borrower and its Subsidiaries has timely filed or caused to be filed all material Tax returns and reports required to have been filed and has paid or caused to be paid all material Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Person has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.

 

SECTION 3.09.  ERISA .  No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect.

 

SECTION 3.10.  Disclosure .  The Borrower has disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.  None of the reports, financial statements, certificates or other information furnished by or on

 

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behalf of the Borrower to the Lenders in connection with the negotiation of this Agreement and the other Loan Documents or delivered hereunder or thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

 

SECTION 3.11.  Investment Company Act; Margin Regulations .

 

(a)           Status as Business Development Company .  The Borrower is an “investment company” that has elected to be regulated as a “business development company” within the meaning of the Investment Company Act and qualifies as a RIC.

 

(b)           Compliance with Investment Company Act .  The business and other activities of the Borrower and its Subsidiaries, including the making of the Loans hereunder, the application of the proceeds and repayment thereof by the Borrower and the consummation of the Transactions contemplated by the Loan Documents do not result in a violation or breach in any material respect of the provisions of the Investment Company Act or any rules, regulations or orders issued by the Securities and Exchange Commission thereunder, in each case, that are applicable to the Borrower and its Subsidiaries.

 

(c)           Investment Policies .  The Borrower is in compliance with all investment objectives, policies, restrictions and limitations for the Borrower delivered to the Lenders prior to the Restatement Effective Date (the “ Investment Policies ”), except to the extent that the failure to so comply could not reasonably be expected to result in a Material Adverse Effect.

 

(d)           Use of Credit .  Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any extension of credit hereunder will be used to buy or carry any Margin Stock.

 

SECTION 3.12.  Material Agreements and Liens .

 

(a)           Material Agreements .  Part A of Schedule II is a complete and correct list of each credit agreement, loan agreement, indenture, purchase agreement, guarantee, letter of credit or other arrangement providing for or otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension of credit) to, or guarantee by, the Borrower or any of its Subsidiaries outstanding on the Restatement Effective Date, and the aggregate principal or face amount outstanding or that is, or may

 

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become, outstanding under each such arrangement is correctly described in Part A of Schedule II.

 

(b)           Liens .  Part B of Schedule II is a complete and correct list of each Lien  securing Indebtedness of any Person outstanding on the Restatement Effective Date covering any property of the Borrower or any of its Subsidiaries, and the aggregate Indebtedness secured (or that may be secured) by each such Lien and the property covered by each such Lien is correctly described in Part B of Schedule II.

 

SECTION 3.13.  Subsidiaries and Investments .

 

(a)           Subsidiaries .  Set forth in Part A of Schedule IV is a complete and correct list of all of the Subsidiaries of the Borrower on the Restatement Effective Date together with, for each such Subsidiary, (i) the jurisdiction of organization of such Subsidiary, (ii) each Person holding ownership interests in such Subsidiary, (iii) the nature of the ownership interests held by each such Person and the percentage of ownership of such Subsidiary represented by such ownership interests and (iv) whether such Subsidiary is a Designated Subsidiary.  Except as disclosed in Part A of Schedule IV, (x) the Borrower owns, free and clear of Liens, and has (and will have) the unencumbered right to vote, all outstanding ownership interests in each Person shown to be held by it in Part A of Schedule IV, (y) all of the issued and outstanding capital stock of each such Person organized as a corporation is validly issued, fully paid and nonassessable and (z) there are no outstanding Equity Interests with respect to such Person.  Each Subsidiary identified on said Part A of Schedule IV as a “Designated Subsidiary” qualifies as such under the definition of “Designated Subsidiary” set forth in Section 1.01.

 

(b)           Investments .  Set forth in Part B of Schedule IV is a complete and correct list of all Investments (other than Investments of the types referred to in clauses (b), (c) and (d) of Section 6.04) held by any of the Obligors in any Person on the Restatement Effective Date and, for each such Investment, (x) the identity of the Person or Persons holding such Investment and (y) the nature of such Investment.  Except as disclosed in Part B of Schedule IV, each of the Borrower and its Subsidiaries owns, free and clear of all Liens (other than Liens created pursuant to the Security Documents), all such Investments.

 

SECTION 3.14.  Properties .

 

(a)           Title Generally .  Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes.

 

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(b)           Intellectual Property .  Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and its Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

SECTION 3.15.  Affiliate Agreements .  As of the Restatement Effective Date, the Borrower has heretofore delivered to each of the Lenders true and complete copies of each of the Affiliate Agreements (including any amendments, supplements or waivers executed and delivered thereunder and, except in the case of the CP Facility Documents, any schedules and exhibits thereto).  As of the date of hereof, each of the Affiliate Agreements is in full force and effect.

 

ARTICLE IV

 

CONDITIONS

 

SECTION 4.01.  Restatement Effective Date .  This Agreement (and the amendment and restatement of the Original Agreement to be effected hereby) shall become effective on the date on which the Administrative Agent shall have received each of the following documents, each of which shall be satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance (or such condition shall have been waived in accordance with Section 9.02):

 

(a)           Executed Counterparts .  From each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to this Agreement) that such party has signed a counterpart of this Agreement.

 

(b)           Fees and Expenses .  The Administrative Agent shall have received evidence of the payment by the Borrower of all fees payable to the Lenders on the Restatement Effective Date that the Borrower has agreed to pay in connection with this Agreement.  The Borrower shall have paid all reasonable expenses (including the legal fees of Milbank, Tweed, Hadley & McCloy LLP) for which invoices have been presented that the Borrower has agreed to pay in connection with this Agreement.

 

(c)           Opinion of Counsel to the Borrower .  A favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Restatement Effective Date) of Latham & Watkins LLP, New York counsel for the Borrower, in form and substance reasonably satisfactory to the Administrative Agent and of Venable LLP, Maryland counsel for the Borrower, in substantially the form of Exhibit C, and in each case covering such other matters relating to the

 

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Borrower, this Agreement or the Transactions as the Required Lenders shall reasonably request (and the Borrower hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent).

 

(d)           Opinion of Special New York Counsel to JPMCB .  An opinion, dated the Restatement Effective Date, of Milbank, Tweed, Hadley & McCloy, LLP, special New York counsel to JPMCB in substantially the form of Exhibit D (and JPMCB hereby instructs such counsel to deliver such opinion to the Lenders).

 

(e)           Corporate Documents .  Such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of the Borrower, the authorization of the Transactions and any other legal matters relating to the Borrower, this Agreement or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel.

 

(f)            Officer’s Certificate .  A certificate, dated the Restatement Effective Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in the lettered clauses of the first sentence of Section 4.02.

 

(g)           Liens .  Results of a recent lien search in each relevant jurisdiction with respect to the Borrower and such search shall reveal no liens on any of the assets of the Obligors except for liens permitted under Section 6.02.

 

(h)           Guarantee and Security Agreement Confirmation .  The Guarantee and Security Agreement Confirmation, duly executed and delivered by each of the parties to the Guarantee and Security Agreement.

 

(i)            Borrowing Base Certificate .  A Borrowing Base Certificate as of a date not more than five days prior to the Restatement Effective Date.

 

(j)            Retiring Lenders .  Evidence that each Retiring Lender shall have, as of the Restatement Effective Date, received repayment in full of its outstanding Loans and all accrued and unpaid interest, facility fees, LC participation fees, and any other amounts owing to such Retiring Lender under the Original Agreement.

 

(k)           Restatement Effective Date Adjustments .  Evidence that each Continuing Lender shall have, as of the Restatement Effective Date, received payment in full of all accrued and unpaid interest, facility fees and LC participation fees owing to such Lender under the Original Agreement and the Borrowings and other adjustments to the Loans described in Section 2.02(e) shall have occurred.

 

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(l)            Other Documents .  Such other documents as the Administrative Agent or any Lender or special New York counsel to JPMCB may reasonably request.

 

SECTION 4.02.  Each Credit Event .  The obligation of each Lender to make any Loan, and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit, is additionally subject to the satisfaction of the following conditions:

 

(a)           the representations and warranties of the Borrower set forth in this Agreement and in the other Loan Documents shall be true and correct in all material respects (or, in the case of the representations and warranties in Sections 3.01 (first sentence with respect to the Obligors), 3.02, 3.04, 3.11 and 3.15 of this Agreement, and in Sections 2.01, 2.02 and 2.04 through 2.09 of the Guarantee and Security Agreement, true and correct in all respects) on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, or, as to any such representation or warranty that refers to a specific date, as of such specific date;

 

(b)           at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing; and

 

(c)           either (i) the aggregate Covered Debt Amount (after giving effect to such extension of credit) shall not exceed the Borrowing Base reflected on the Borrowing Base Certificate most recently delivered to the Administrative Agent or (ii) the Borrower shall have delivered an updated Borrowing Base Certificate demonstrating that the Covered Debt Amount (after giving effect to such extension of credit) shall not exceed the Borrowing Base after giving effect to such extension of credit as well as any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans or Permitted Indebtedness or Indebtedness incurred pursuant to Section 6.01(g).

 

Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in the preceding sentence.

 

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ARTICLE V

 

AFFIRMATIVE COVENANTS

 

Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or been terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:

 

SECTION 5.01.  Financial Statements and Other Information .  The Borrower will furnish to the Administrative Agent and each Lender:

 

(a)           within 90 days after the end of each fiscal year of the Borrower, the audited consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or other independent public accountants of recognized national standing to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided that the requirements set forth in this clause (a) may be fulfilled by providing to the Administrative Agent and the Lenders the report of the Borrower to the SEC on Form 10-K for the applicable fiscal year;

 

(b)           within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower, the consolidated balance sheet and related statements of operations, stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for (or, in the case of the balance sheet, as of the end of) the corresponding period or periods of the previous fiscal year, all certified by a Financial Officer of the Borrower as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; provided that the requirements set forth in this clause (b) may be fulfilled by providing to the Lenders the report of the Borrower to the SEC on Form 10-Q for the applicable quarterly period;

 

(c)           concurrently with any delivery of financial statements under clause (a) or (b) of this Section, a certificate of a Financial Officer of the Borrower (i) certifying as to whether the Borrower has knowledge that a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Sections 6.01, 6.02, 6.04, 6.05 and 6.07 and (iii) stating whether any change in GAAP as applied

 

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by (or in the application of GAAP by) the Borrower has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate;

 

(d)           as soon as available and in any event not later than the last Business Day of the calendar month following each monthly accounting period (ending on the last day of each calendar month) of the Borrower, a Borrowing Base Certificate as at the last day of such accounting period;

 

(e)           promptly but no later than five Business Days after the Borrower shall at any time have knowledge that there is a Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the Borrower has knowledge of such Borrowing Base Deficiency indicating the amount of the Borrowing Base Deficiency as at the date the Borrower obtained knowledge of such deficiency and the amount of the Borrowing Base Deficiency as of the date not earlier than one Business Day prior to the date the Borrowing Base Certificate is delivered pursuant to this paragraph;

 

(f)            promptly upon receipt thereof, copies of all significant reports submitted by the Borrower’s independent public accountants in connection with each annual, interim or special audit or review of any type of the financial statements or related internal control systems of the Borrower or any of its Subsidiaries delivered by such accountants to the management or board of directors of the Borrower;

 

(g)           promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by any of the Obligors with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, as the case may be;

 

(h)           promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any of its Subsidiaries, or compliance with the terms of this Agreement and the other Loan Documents, as the Administrative Agent or any Lender may reasonably request; and

 

(i)            promptly after Moody’s or S&P or Fitch shall have announced a change in the Borrower Rating, written notice of such rating change.

 

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SECTION 5.02.  Notices of Material Events .  The Borrower will furnish to the Administrative Agent and each Lender prompt written notice of the following:

 

(a)           the occurrence of any Default;

 

(b)           the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any of its Affiliates that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;

 

(c)           the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000; and

 

(d)           any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect.

 

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.

 

SECTION 5.03.  Existence; Conduct of Business .  The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.

 

SECTION 5.04.  Payment of Obligations .  The Borrower will, and will cause each of its Subsidiaries to, pay its obligations, including tax liabilities and material contractual obligations, that, if not paid, could reasonably be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect.

 

SECTION 5.05.  Maintenance of Properties; Insurance .  The Borrower will, and will cause each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are customarily

 

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maintained by companies engaged in the same or similar businesses operating in the same or similar locations.

 

SECTION 5.06.  Books and Records; Inspection and Audit Rights .

 

(a)           Books and Records; Inspection Rights .  The Borrower will, and will cause each of its Subsidiaries to, keep books of record and account in accordance with GAAP.  The Borrower will, and will cause each other Obligor to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties during business hours, to examine and make extracts from its books and records (including books and records maintained by it in its capacity as a “servicer” in respect of Ares Capital CP, or in a similar capacity with respect to any other Designated Subsidiary, and any books, records and documents held by the Custodian), and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested, provided that the Borrower shall be entitled to have its representatives and advisors present during any inspection of its books and records.

 

(b)           Audit Rights .  The Borrower will, and will cause each other Obligor to, permit any representatives designated by Administrative Agent (including any consultants, accountants, lawyers and appraisers retained by the Administrative Agent) to conduct evaluations and appraisals of the Borrower’s computation of the Borrowing Base and the assets included in the Borrowing Base, all at such reasonable times and as often as reasonably requested.  The Borrower shall pay the reasonable fees and expenses of any representatives retained by the Administrative Agent to conduct any such evaluation or appraisal; provided that the Borrower shall not be required to pay such fees and expenses for more than one such evaluation or appraisal during any calendar year unless an Event of Default has occurred and is continuing at the time of any subsequent evaluation or appraisal during such calendar year.  The Borrower also agrees to modify or adjust the computation of the Borrowing Base to the extent required by the Administrative Agent or the Required Lenders as a result of any such evaluation or appraisal, provided that if the Borrower demonstrates that such evaluation or appraisal is incorrect, the Borrower shall be permitted to re-adjust its computation of the Borrowing Base.

 

SECTION 5.07.  Compliance with Laws .  The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations, including the Investment Company Act, any applicable rules, regulations or orders issued by the Securities and Exchange Commission thereunder and orders of any other Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

 

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SECTION 5.08.  Certain Obligations Respecting Subsidiaries; Further Assurances .

 

(a)           Subsidiary Guarantors .  In the event that any Obligor shall form or acquire any new Domestic Subsidiary (other than a Designated Subsidiary or, so long as it is prevented from becoming an Obligor by the terms of the Allied Secured Indebtedness, a Special Acquisition Subsidiary), the Borrower will cause such new Subsidiary to become a “Subsidiary Guarantor” (and, thereby, an “Obligor”) under the Guarantee Assumption Agreement and to deliver such proof of corporate or other action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Borrower pursuant to Section 4.01 upon the Restatement Effective Date or as the Administrative Agent shall have requested.

 

(b)           Ownership of Subsidiaries .  The Borrower will, and will cause each of its Subsidiaries to, take such action from time to time as shall be necessary to ensure that each of its Subsidiaries is a wholly owned Subsidiary (other than any Subsidiary that is a “Designated Subsidiary”).

 

(c)           Further Assurances .  The Borrower will, and will cause each of the Subsidiary Guarantors to, take such action from time to time as shall reasonably be requested by the Administrative Agent to effectuate the purposes and objectives of this Agreement.  Without limiting the generality of the foregoing, the Borrower will, and will cause each of the Subsidiary Guarantors to, take such action from time to time (including filing appropriate Uniform Commercial Code financing statements and executing and delivering such assignments, security agreements and other instruments) as shall be reasonably requested by the Administrative Agent

 

(i)            to create, in favor of the Collateral Agent for the benefit of the Lenders (and any affiliate thereof that is a party to any Hedging Agreement entered into with the Borrower) and the holders of any Other Secured Indebtedness, perfected security interests and Liens in the Collateral; provided that any such security interest or Lien shall be subject to the relevant requirements of the Security Documents; provided further, that in the case of any Collateral consisting of voting stock of any Controlled Foreign Corporation, such security interest shall be limited to 65% of the issued and outstanding voting stock of such Controlled Foreign Corporation,

 

(ii)           to cause any bank or securities intermediary (within the meaning of the Uniform Commercial Code) to enter into such arrangements with the Collateral Agent as shall be appropriate in order that the Collateral Agent has “control” over each bank account or securities account of the Obligors (other than any thereof that are maintained by the Obligors in their capacity as “servicer” for Ares Capital CP or any other Designated Subsidiary, or which hold solely money or financial assets of Ares Capital CP or any other Designated Subsidiary), and in that connection, the Borrower agrees to cause all cash and other proceeds of

 

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Portfolio Investments received by any Obligor to be promptly deposited into such an account (or otherwise delivered to, or registered in the name of, the Collateral Agent) and, until such deposit, delivery or registration such cash and other proceeds shall be held in trust by the Borrower for and as the property of the Collateral Agent and shall not be commingled with any other funds or property of such Obligor or of any Designated Subsidiary or other Person (including with any money or financial assets of any Obligor in its capacity as “servicer” for Ares Capital CP or any other Designated Subsidiary, or any money or financial assets of any Designated Subsidiary).

 

(iii)          to cause its Designated Subsidiaries, and any custodians or account banks and securities intermediaries acting on their behalf, or trustee or representative acting for any Person extending credit to any Designated Subsidiary, to execute and deliver such intercreditor and other agreements, in form and substance reasonably satisfactory to the Administrative Agent, as it shall determine are necessary to confirm that none of such Designated Subsidiaries or custodians claims any interest or Lien upon any property of any Obligor and that any custodian that holds documentation on behalf of both the Obligors and any Designated Subsidiary will provide access to such documentation consistent with the provisions of Section 5.06,

 

(iv)          in the case of any Portfolio Investment consisting of a Bank Loan that does not constitute all of the credit extended to the underlying borrower under the relevant underlying loan documents and a Designated Subsidiary holds any interest in the loans or other extensions of credit under such loan documents, (x) cause such Designated Subsidiary to be party to such underlying loan documents as a “lender” having a direct interest (or a participation not acquired from an Obligor) in such underlying loan documents and the extensions of credit thereunder and (y) ensure that all amounts owing to such Obligor or Designated Subsidiary by the underlying borrower or other obligated party are remitted by such borrower or obligated party directly to separate accounts of such Obligor and such Designated Subsidiary,

 

(v)           in the event that any Obligor is acting as an agent or administrative agent under any loan documents with respect to any Bank Loan that does not constitute all of the credit extended to the underlying borrower under the relevant underlying loan documents, ensure that all funds held by such Obligor in such capacity as agent or administrative agent is segregated from all other funds of such Obligor and clearly identified as being held in an agency capacity and

 

(vi)          cause all loan and other documents relating to any Portfolio Investment to be held by (x) the Collateral Agent or (y) the Custodian pursuant to the terms of the Custodian Agreement (or another custodian reasonably satisfactory to the Administrative Agent), or pursuant to an appropriate intercreditor agreement, so long as the Custodian (or custodian) has agreed to

 

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grant access to such loan and other documents to the Administrative Agent and the Lenders pursuant to an access or similar agreement between the Borrower and such Custodian (or custodian) in form and substance reasonably satisfactory to the Administrative Agent.

 

SECTION 5.09.  Use of Proceeds .  The Borrower will use the proceeds of the Loans only for general corporate purposes of the Borrower in the ordinary course of business, including in connection with the Acquisition and the acquisition and funding (either directly or through one or more wholly-owned Subsidiaries) of Portfolio Investments; provided that neither the Administrative Agent nor any Lender shall have any responsibility as to the use of any of such proceeds.  No part of the proceeds of any Loan will be used in violation of applicable law or, directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of buying or carrying any Margin Stock.  Margin Stock shall be purchased by the Obligors only with the proceeds of Indebtedness not directly or indirectly secured by Margin Stock (within the meaning of Regulation U), or with the proceeds of equity capital of the Borrower.

 

SECTION 5.10.  Status of RIC and BDC .  The Borrower shall at all times maintain its status as a RIC under the Code, and as a “business development company” under the Investment Company Act.

 

SECTION 5.11.  Investment and Valuation Policies .  The Borrower shall promptly advise the Lenders and the Administrative Agent of any material change in either its Investment Policies or Valuation Policy.

 

SECTION 5.12.  Portfolio Valuation and Diversification, Etc .

 

(a)           Industry Classification Groups .  For purposes of this Agreement, the Borrower shall assign each Portfolio Investment to an Industry Classification Group.  To the extent that any Portfolio Investment is not correlated with the risks of other Portfolio Investments in an Industry Classification Group established by Moody’s, such Portfolio Investment may be assigned by the Borrower to an Industry Classification Group that is more closely correlated to such Portfolio Investment.  In the absence of any correlation, the Borrower shall be permitted, upon notice to the Administrative Agent and each Lender to create up to three additional industry classification groups for purposes of this Agreement.

 

(b)           Portfolio Valuation Etc.

 

(i)            Settlement Date Basis .  For purposes of this Agreement, all determinations of whether an investment is to be included as a Portfolio Investment shall be determined on a settlement-date basis (meaning that any investment that has been purchased will not be treated as a Portfolio Investment until such purchase has settled, and any Portfolio Investment which has been sold will not be excluded as a Portfolio Investment until such sale has settled),

 

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provided that no such investment shall be included as a Portfolio Investment to the extent it has not been paid for in full.

 

(ii)           Determination of Values .  The Borrower will conduct reviews of the value to be assigned to each of its Portfolio Investments as follows:

 

(A)          Quoted Investments—External Review .  With respect to Portfolio Investments (including Cash Equivalents) for which market quotations are readily available, the Borrower shall, not less frequently than once each calendar week, determine the market value of such Portfolio Investments which shall, in each case, be determined in accordance with one of the following methodologies (as selected by the Borrower):

 

(w)          in the case of public and 144A securities, the average of the mean prices as determined by two Approved Dealers selected by the Borrower,

 

(x)            in the case of bank loans, the mean price as determined by one Approved Dealer or Approved Pricing Service selected by the Borrower,

 

(y)           in the case of any Portfolio Investment traded on an exchange, the closing price for such Portfolio Investment most recently posted on such exchange, and

 

(z)            in the case of any other Portfolio Investment, the fair market value thereof as determined by an Approved Pricing Service; and

 

(B)           Unquoted Investments- External Review .  With respect to Portfolio Investments for which market quotations are not readily available (other than SSLF), the Borrower shall value such Portfolio Investments quarterly in a manner consistent with its “Net Asset Valuation Policy” delivered to the Lenders prior to the Restatement Effective Date (the “ Valuation Policy ”).

 

(C)           Investments in Designated Subsidiaries .  In addition to the valuation obtained in accordance with sub-clause (B) above, with respect to any Portfolio Investment consisting of Equity Interests in a Designated Subsidiary, the Borrower shall determine a value for such Portfolio Investment, which at any time shall equal the value of the underlying financial assets held by such Designated Subsidiary as most recently determined by the Borrower in accordance with its Valuation Policy less the aggregate face amount of all liabilities of such Designated Subsidiary (provided such value shall be proportionately adjusted to reflect any

 

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investment in any Designated Subsidiary that is less than wholly-owned or in which the Collateral Agent’s security interest therein is limited to 65% of the voting stock thereof because such Designated Subsidiary is a Controlled Foreign Corporation).

 

(D)          Investment in SSLF .  With respect to Borrower’s investment in the SSLF, the Borrower shall value such Portfolio Investment quarterly with the assistance of a third-party service provider consistent with the Valuation Policy.

 

(E)           Internal Review .  The Borrower shall conduct an internal review of the aggregate value of the Portfolio Investments, and of the Borrowing Base, at least once each calendar week which shall take into account any events of which the Borrower has knowledge that materially affects the aggregate value of the Portfolio Investments or the Borrowing Base, including, as applicable, in the case of any Portfolio Investment consisting of Equity Interests in a Designated Subsidiary or non-consolidated subsidiary, any modifications to any relevant debt agreements, the occurrence of any “default” or similar event thereunder or any other adverse actions taken by any creditor of such Designated Subsidiary or non-consolidated subsidiary.  If, based upon such weekly internal review, the Borrower determines that a Borrowing Base Deficiency exists, then the Borrower shall, within five Business Days as provided in Section 5.01(c), deliver a Borrowing Base Certificate reflecting the new amount of the Borrowing Base and shall take the actions, and make the payments and prepayments (and provide cover for Letters of Credit), all as more specifically set forth in Section 2.09(c).

 

(F)           Quarterly Valuations .  Without limiting the requirements of sub-clauses (A) through (E) above, the Borrower shall value at least 60% in aggregate value of its Non-Core Investments that are included in the 25% of the Borrowing Base referenced in Section 5.13(e) below no less frequently than quarterly in the manner set forth in sub-clause (A) or (B), as applicable.

 

(G)           Failure to Determine Values .  If the Borrower shall fail to determine the value of any Portfolio Investment as at any date pursuant to the requirements of the foregoing sub-clauses (A) through (F),  the “Value” of such Portfolio Investment as at such date shall be deemed to be zero;

 

provided that, in no event shall any Portfolio Investment be valued pursuant to the foregoing requirements less frequently than annually.

 

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(c)                                   Investment Company Diversification Requirements .  The Borrower will, and will cause its Subsidiaries (other than Designated Subsidiaries that are exempt from the Investment Company Act) at all times to (i) comply in all material respects with the portfolio diversification and similar requirements set forth in the Investment Company Act applicable to business development companies and (ii) subject to applicable grace periods set forth in the Code, comply with the portfolio diversification and similar requirements set forth in the Code applicable to RIC’s.

 

SECTION 5.13.  Calculation of Borrowing Base .  For purposes of this Agreement, the “ Borrowing Base ” shall be determined, as at any date of determination, as the sum of the Advance Rates of the Value of each Portfolio Investment, provided that:

 

(a)                                   the Advance Rate applicable to that portion of the aggregate Value of the Portfolio Investments of all issuers in a consolidated group of corporations or other entities in accordance with GAAP (other than SSLF) exceeding 10% of Shareholders’ Equity of the Borrower (which, for purposes of the calculation of Shareholder’s Equity of the Borrower, shall exclude the aggregate amount of investments in, and advances to, Designated Subsidiaries and Excluded Entities) as of the end of the most recent quarter, shall be 50% of the otherwise applicable Advance Rate.

 

(b)                                  the Advance Rate applicable to that portion of the aggregate Value of the Portfolio Investments of all issuers in a consolidated group of corporations or other entities in accordance with GAAP (other than SSLF) exceeding 20% of Shareholders’ Equity of the Borrower (which, for purposes of the calculation of Shareholder’s Equity of the Borrower, shall exclude the aggregate amount of investments in, and advances to, Designated Subsidiaries and Excluded Entities) shall be 0%.

 

(c)                                   the Advance Rate applicable to that portion of the aggregate Value of the Portfolio Investments (other than SSLF) in any single Industry Classification Group (which, for purposes of this calculation, shall exclude the aggregate amount of investments in, and advances to, Designated Subsidiaries and Excluded Entities) that exceeds 20% of Shareholders’ Equity shall be 0%, provided that, with respect to the Portfolio Investments (other than CDO Securities) in a single Industry Classification Group from time to time designated by the Borrower to the Administrative Agent, such 20% figure shall be increased to 30% and, accordingly, only to the extent that the Value for such single Industry Classification Group exceeds 30% of the Shareholders’ Equity shall the Advance Rate applicable to such excess Value be 0%.

 

(d)                                  the Advance Rate applicable to that portion of the aggregate Value of the Borrower’s investment in SSLF shall be zero to the extent necessary so that no more than 15% of the Borrowing Base is attributable to such investment.

 

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(e)                                   the Advance Rate applicable to that portion of the aggregate Value of the Borrower’s investments in Non-Core Investments shall be zero to the extent necessary so that no more than 25% of the Borrowing Base is attributable to such investments.

 

(f)                                     the Advance Rate applicable to that portion of the aggregate Value of the Borrower’s investments in Non-Core Investments and SSLF shall be zero to the extent necessary so that no more than 35% of the Borrowing Base is attributable to such investments.

 

For the purposes of the issuer concentration limits in clauses (a) and (b) above, (i) all Designated Subsidiaries and non-consolidated subsidiaries (excluding Ares Capital CP, Ares Capital CP II, Ares Capital CP Holdings, Ares Capital CP Holdings II, SSLF, ARCC Commercial Loan Trust 2006 LLC and ARCC CLO 2006 LLC, in each case, so long as such entities maintain capital structures substantially the same as their existing capital structures on the Restatement Effective Date, and any other Subsidiaries with the consent of the Required Lenders) will be treated as a single issuer and (ii) Ares Capital CP, Ares Capital CP II, Ares Capital CP Holdings and Ares Capital CP Holdings II (and any successor entity replacing Ares Capital CP, Ares Capital CP II, Ares Capital CP Holdings and Ares Capital CP Holdings II), so long as their combined capital structure is substantially as described to the Administrative Agent prior to the Restatement Effective Date, will be treated as a combined single issuer.

 

No Portfolio Investment (including, for the avoidance of doubt, any Restricted Acquisition Asset) may be included in the Borrowing Base until such time as such Portfolio Investment has been Delivered (as defined in the Guarantee and Security Agreement) to the Collateral Agent, and then only for so long as such Portfolio Investment continues to be Delivered as contemplated therein; provided that in the case of any Portfolio Investment in which the Collateral Agent has a first-priority perfected security interest pursuant to a valid UCC filing (and for which no other method of perfection with a higher priority is possible), such Portfolio Investment may be included in the Borrowing Base so long as all remaining actions to complete “Delivery” are satisfied within 7 days of such inclusion.  Voting stock of any Controlled Foreign Corporation in excess of 65% of the issued and outstanding voting stock of such Controlled Foreign Corporation shall not be included as a Portfolio Investment for purposes of calculating the Borrowing Base.

 

The Borrower shall from time to time deliver a Borrowing Base Certificate to the Administrative Agent and each Lender as provided in Sections 4.01(h), 5.01(d), 5.01(e) and 6.05(d).

 

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As used herein, the following terms have the following meanings:

 

Advance Rate ” means, as to any Portfolio Investment and subject to adjustment as provided in Section 5.13(a) through (f), the following percentages with respect to such Portfolio Investment:

 

Portfolio Investment

 

Quoted

 

Unquoted

 

 

 

 

 

 

 

Cash, Cash Equivalents and Short-Term U.S. Government Securities

 

100

%

n.a.

 

Long-Term U.S. Government Securities

 

95

%

n.a.

 

Performing First Lien Bank Loans

 

85

%

75

%

Performing Second Lien Bank Loans

 

75

%

65

%

Performing Cash Pay High Yield Securities

 

70

%

60

%

Investment Grade CDO Securities

 

65

%

55

%

Performing Cash Pay Mezzanine Investments

 

65

%

55

%

Performing Non-Cash Pay High Yield Securities

 

60

%

50

%

Non-Investment Grade CDO Securities

 

55

%

45

%

Performing Non-Cash Pay Mezzanine Investments

 

55

%

45

%

Non-Performing First Lien Bank Loans

 

50

%

50

%

Non-Performing Second Lien Bank Loans

 

40

%

40

%

Non-Performing High Yield Securities

 

35

%

35

%

Non-Performing Mezzanine Investments

 

35

%

35

%

Performing Common Equity

 

40

%

40

%

Other Category CDO Securities*

 

25

%

25

%

Non-Performing Common Equity

 

0

%

0

%

 


* For purposes of determining the Advance Rate, “Other Category CDO Securities” shall include any Obligor’s investment in (i) SSLF, (ii) any subsidiary that is not consolidated with the Borrower in its consolidated financial statements and (iii) any Designated Subsidiary.

 

Bank Loans ” means debt obligations (including, without limitation, term loans, revolving loans, debtor-in-possession financings, the funded and unfunded portion of revolving credit lines and letter of credit facilities and other similar loans and investments including interim loans and senior subordinated loans) which are generally under a syndicated loan or credit facility.

 

Capital Stock ” of any Person means any and all shares of corporate stock (however designated) of, and any and all other equity interests and participations representing ownership interests (including membership interests and limited liability company interests) in, such Person.

 

Cash ” has the meaning assigned to such term in Section 1.01 of the Credit Agreement.

 

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Cash Equivalents ” has the meaning assigned to such term in Section 1.01 of the Credit Agreement.

 

Cash Pay Bank Loans ” means First Lien Bank Loans and Second Lien Bank Loans as to which, at the time of determination, all of the interest on which is payable not less frequently than quarterly and for which not less than 2/3rds of the interest (including accretions and “pay-in-kind” interest) for the current monthly or quarterly period (as applicable) is payable in cash.

 

CDO Securities ” means debt securities, equity securities or composite or combination securities (i.e. securities consisting of a combination of debt and equity securities that are issued in effect as a unit), including synthetic securities that provide synthetic credit exposure to debt securities, equity securities or composite or combination securities, that entitle the holders thereof to receive payments that (i) depend on the cash flow from a portfolio consisting primarily of ownership interests in debt securities, corporate loans or asset-backed securities or (ii) are subject to losses owing to credit events (howsoever defined) under credit derivative transactions with respect to debt securities, corporate loans or asset-backed securities.

 

Excluded Entities ” means ARCC LVCG Holdings LLC, ARCC CLPB Corp., ARCC IGS Corp., ARCC PAH Corp., ARCC TTL Corp., ARCC VTH Corp., ARCC WMA Corp, ARCC Odyssey Corp. and, after the Step-Up Date, to the extent such entity is a Subsidiary, Allied Capital REIT, Inc., and, in each case, their respective subsidiaries (provided that in the case of ARCC Odyssey Corp., it shall have no material assets or liabilities and its sole purpose shall be to consummate the Acquisition, provided further, in no event shall Allied be deemed an “Excluded Entity”).

 

First Lien Bank Loan ” means a Bank Loan that is entitled to the benefit of a first lien and first priority perfected security interest on a substantial portion of the assets of the respective borrower and guarantors obligated in respect thereof.

 

High Yield Securities ” means debt Securities and Preferred Stock, in each case (a) issued by public or private issuers, (b) issued pursuant to an effective registration statement or pursuant to Rule 144A under the Securities Act (or any successor provision thereunder) and (c) that are not Cash Equivalents, Mezzanine Investments or Bank Loans.

 

Investment Grade CDO Securities ” means Rated CDO Securities that are direct or synthetic debt securities (and not composite or combination securities) and are (a) Performing and (b) rated as follows by two of the following three rating agencies: “BBB-” or higher by S&P, “BBB-” or higher by Fitch and “Baa3” or higher by Moody’s.

 

Long-Term U.S. Government Securities ” means U.S. Government Securities maturing more than one month from the applicable date of determination.

 

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Mezzanine Investments ” means debt Securities (including convertible debt Securities (other than the “in-the-money” equity component thereof)) and Preferred Stock in each case (a) issued by public or private issuers, (b) issued without registration under the Securities Act, (c) not issued pursuant to Rule 144A under the Securities Act (or any successor provision thereunder), (d) that are not Cash Equivalents and (e) contractually subordinated in right of payment to other debt of the same issuer.

 

Non-Core Investments ” means, collectively, Portfolio Investments in common equity, warrants, Non-Performing Bank Loans, Non-Performing High Yield Securities, Non-Performing Mezzanine Investments, Other Category CDO Securities and any Obligor’s investment in any subsidiary that is not consolidated with the Borrower in its consolidated financial statements and any Obligor’s investment in a Designated Subsidiary (but not, in any event, including the Borrower’s investment in SSLF).

 

Non-Investment Grade CDO Securities ” means Rated CDO Securities that are direct or synthetic debt securities (and not composite or combination securities) and that are (a) Performing and (b) neither Investment Grade CDO Securities nor Other Category CDO Securities.

 

Non-Performing Common Equity ” means Capital Stock (other than Preferred Stock) and warrants of an issuer having any debt outstanding that is non-Performing.

 

Non-Performing First Lien Bank Loans ” means First Lien Bank Loans other than Performing First Lien Bank Loans.

 

Non-Performing High Yield Securities ” means High Yield Securities other than Performing High Yield Securities.

 

Non-Performing Bank Loans ” means, collectively, Non-Performing First Lien Bank Loans and Non-Performing Second Lien Bank Loans.

 

Non-Performing Mezzanine Investments ” means Mezzanine Investments other than Performing Mezzanine Investments.

 

Non-Performing Second Lien Bank Loans ” means Second Lien Bank Loans other than Performing Second Lien Bank Loans.

 

Other Category CDO Securities ” means (a) CDO Securities that are direct or synthetic debt securities (and not composite or combination securities) and that are (i) Performing and (ii) either (x) not-secured or (y) not Rated CDO Securities and (b) CDO Securities that are direct or synthetic equity securities or direct or synthetic composite or combination securities and that are Performing.

 

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Performing ” means (a) with respect to any Portfolio Investment that is debt, the issuer of such Portfolio Investment is not in default of any payment obligations in respect thereof, after the expiration of any applicable grace period and (b) with respect to any Portfolio Investment that is Preferred Stock or Other Category CDO Securities, the issuer of such Portfolio Investment has not failed to meet any scheduled redemption obligations or to pay its latest declared cash dividend, after the expiration of any applicable grace period.

 

Performing Cash Pay High Yield Securities ” means High Yield Securities (a) as to which, at the time of determination, not less than 2/3rds of the interest (including accretions and “pay-in-kind” interest) for the current monthly, quarterly, semi-annual or annual period (as applicable) is payable in cash and (b) which are Performing.

 

Performing Cash Pay Mezzanine Investments ” means Mezzanine Investments (a) as to which, at the time of determination, not less than 2/3rds of the interest (including accretions and “pay-in-kind” interest) for the current monthly, quarterly, semi-annual or annual period (as applicable) is payable in cash and (b) which are Performing.

 

Performing Common Equity ” means Capital Stock (other than Preferred Stock) and warrants of an issuer all of whose outstanding debt is Performing.

 

Performing First Lien Bank Loans ” means First Lien Bank Loans which are Cash Pay Bank Loans and are Performing.

 

Performing Non-Cash Pay High Yield Securities ” means Performing High Yield Securities other than Performing Cash Pay High Yield Securities.

 

Performing Non-Cash Pay Mezzanine Investments ” means Performing Mezzanine Investments other than Performing Cash Pay Mezzanine Investments.

 

Performing Second Lien Bank Loans ” means Second Lien Bank Loans which are Cash Pay Bank Loans and are Performing.

 

Preferred Stock ,” as applied to the Capital Stock of any Person, means Capital Stock of such Person of any class or classes (however designated) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to any shares (or other interests) of other Capital Stock of such Person, and shall include, without limitation, cumulative preferred, non-cumulative preferred, participating preferred and convertible preferred Capital Stock.

 

Rated CDO Securities ” means CDO Securities that are rated by at least two of S&P, Fitch and Moody’s.

 

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Restricted Acquisition Asset ” means, any Portfolio Investment (a) that was owned by Allied or any of its subsidiaries and acquired by an Obligor and (b) the underlying governing agreements for which (i) prohibit the grant of a Lien thereon or (ii) require the satisfaction of certain conditions for the grant of a Lien thereon.  Any such Portfolio Investment shall no longer constitute a “Restricted Acquisition Asset” to the extent that a waiver of, or consent under, any restriction on a pledge to the Collateral Agent contained in the underlying governing agreements for such Restricted Acquisition Asset has been obtained or the applicable conditions required thereunder for a pledge have been satisfied, in each case, to permit the grant of a Lien on such Restricted Acquisition Asset in favor of the Collateral Agent pursuant to the Security Documents.

 

Second Lien Bank Loan ” means a Bank Loan that is entitled to the benefit of a second lien and second priority perfected security interest on a substantial portion of the assets of the respective borrower and guarantors obligated in respect thereof.

 

Securities ” means common and preferred stock, units and participations, member interests in limited liability companies, partnership interests in partnerships, notes, bonds, debentures, trust receipts and other obligations, instruments or evidences of indebtedness, including debt instruments of public and private issuers and tax-exempt securities (including warrants, rights, put and call options and other options relating thereto, representing rights, or any combination thereof) and other property or interests commonly regarded as securities or any form of interest or participation therein, but not including Bank Loans.

 

Securities Act ” means the United States Securities Act of 1933, as amended.

 

Short-Term U.S. Government Securities ” means U.S. Government Securities maturing within one month of the applicable date of determination.

 

SSLF ” means the Senior Secured Loan Fund LLC (fka Unitranche Fund LLC).

 

U.S. Government Securities ” has the meaning assigned to such term in Section 1.01 of the Credit Agreement.

 

Value ” means:

 

(i)                                      with respect to any Portfolio Investment (other than a Portfolio Investment consisting of Equity Interests in a Designated Subsidiary), the lower of:

 

(1)                                   the most recent internal fair market value as determined pursuant to Section 5.12(b)(ii)(E); and

 

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(2)                                   the most recent external fair market value as determined pursuant to Section 5.12(b)(ii)(A), (B) or (D); and

 

(ii)                                   with respect to any Portfolio Investment consisting of Equity Interests in a Designated Subsidiary, the lowest of:

 

(1)                                   the most recent internal fair market value as determined pursuant to Section 5.12(b)(ii)(E);

 

(2)                                   the most recent external fair market value as determined pursuant to Section 5.12(b)(ii)(B); and

 

(3)                                   the most recent value as determined pursuant to Section 5.12(b)(ii)(C).

 

ARTICLE VI

 

NEGATIVE COVENANTS

 

Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and agrees with the Lenders that:

 

SECTION 6.01.  Indebtedness .  Subject to the last sentence of this Section 6.01, the Borrower will not, nor will it permit any other Obligor to, create, incur, assume or permit to exist any Indebtedness, except:

 

(a)                                   Indebtedness created hereunder or under any other Loan Document;

 

(b)                                  Permitted Indebtedness in an aggregate amount that, taken together with Indebtedness permitted under clauses (a) and (g) of this Section 6.01 plus the outstanding Allied 2011/12 Notes, does not exceed the lesser of (i) the Borrowing Base and (ii) the amount required to comply with the provisions of Section 6.07(b);

 

(c)                                   Other Permitted Indebtedness;

 

(d)                                  Indebtedness of the Borrower to or from any other Obligor or Indebtedness of an Obligor to or from another Obligor;

 

(e)                                   repurchase obligations arising in the ordinary course of business with respect to U.S. Government Securities;

 

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(f)                                     obligations payable to clearing agencies, brokers or dealers in connection with the purchase or sale of securities in the ordinary course of business;

 

(g)                                  other Indebtedness in an aggregate amount not exceeding the Additional Debt Amount at any one time outstanding and that, taken together with Indebtedness permitted under clauses (a) and (b) of this Section 6.01 plus the outstanding Allied 2011/12 Notes, does not exceed the lesser of (i) the Borrowing Base and (ii) the amount required to comply with the provisions of Section 6.07(b);

 

(h)                                  obligations (including Guarantees) in respect of Standard Securitization Undertakings; and

 

(i)                                      Permitted Allied Indebtedness.

 

In addition, the Borrower will not, and will not permit any other Subsidiary to, create, incur, assume or permit to exist any secured Indebtedness of Allied or Allied’s subsidiaries, except for Allied Secured Indebtedness that is assumed or incurred on or prior to the date of the Acquisition by a Special Acquisition Subsidiary or that would be permitted under this Section 6.01(g) above.  For the avoidance of doubt, the foregoing sentence does not require the Borrower or any Subsidiary to control any actions or inactions of Allied or any of Allied’s subsidiaries prior to the Acquisition.

 

SECTION 6.02.  Liens .  Subject to the last sentence of this Section 6.02, the Borrower will not, nor will it permit any other Obligor to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:

 

(a)                                   any Lien on any property or asset of the Borrower existing on the Restatement Effective Date and set forth in Part B of Schedule II, provided that (i) no such Lien shall extend to any other property or asset of the Borrower or any of its Subsidiaries and (ii) any such Lien shall secure only those obligations which it secures on the Restatement Effective Date and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;

 

(b)                                  Liens created pursuant to the Security Documents;

 

(c)                                   Liens on Special Equity Interests included in the Portfolio Investments but only to the extent securing obligations in the manner provided in the definition of “Special Equity Interests” in Section 1.01;

 

(d)                                  Liens securing Indebtedness or other obligations in an aggregate principal amount not exceeding $25,000,000 at any one time outstanding (which

 

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may cover Portfolio Investments, but only to the extent released from the Lien in favor of the Collateral Agent in accordance with the requirements of Section 10.03 of the Guarantee and Security Agreement), so long as at the time thereof the aggregate amount of Indebtedness permitted under clauses (a), (b) and (g) of Section 6.01 plus the outstanding Allied 2011/12 Notes, does not exceed the lesser of (i) the Borrowing Base and (ii) the amount required to comply with the provisions of Section 6.07(b); and

 

(e)                                   Permitted Liens.

 

In addition, the Borrower will not, and will not permit any other Subsidiary to, create, incur, assume or permit to exist any Lien on its property or assets securing any Indebtedness of Allied or Allied’s subsidiaries, except for Liens on Allied Excepted Property or Liens in respect of other secured Indebtedness of Allied and its subsidiaries that would be permitted under this Section 6.02(d) above, provided that, notwithstanding the other provisions of this Section 6.02, in no event shall any Lien securing the Allied Secured Indebtedness extend to any other property of the Borrower or any Subsidiary. For the avoidance of doubt, the foregoing sentence does not require the Borrower or any Subsidiary to control any actions or inactions of Allied or any of Allied’s subsidiaries prior to the Acquisition.

 

SECTION 6.03.  Fundamental Changes .  The Borrower will not, nor will it permit any other Obligor to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution).  The Borrower will not, nor will it permit any other Obligor to, acquire any business or property from, or capital stock of, or be a party to any acquisition of, any Person, except for purchases or acquisitions of Portfolio Investments and other assets in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries and not in violation of the terms and conditions of this Agreement or any other Loan Document.  The Borrower will not, nor will it permit any other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, any part of its assets, whether now owned or hereafter acquired, but excluding (x) assets sold or disposed of in the ordinary course of business (including to make expenditures of cash in the normal course of the day-to-day business activities of the Borrower and its Subsidiaries) and (y) subject to the provisions of clause (d) below, Portfolio Investments (to the extent not otherwise included in clause (x) of this Section).

 

Notwithstanding the foregoing provisions of this Section:

 

(a)                                   any Subsidiary Guarantor of the Borrower may be merged or consolidated with or into the Borrower or any other Subsidiary Guarantor; provided that if any such transaction shall be between a Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or surviving corporation;

 

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(b)                                  any Subsidiary Guarantor may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;

 

(c)                                   the capital stock of any Subsidiary of the Borrower may be sold, transferred or otherwise disposed of to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;

 

(d)                                  the Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a Designated Subsidiary under clause (a) of the definition thereof so long as (i) after giving effect to such sale, transfer or disposition (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and delivers a certificate of a Financial Officer to such effect to the Administrative Agent and (ii) either (x) the amount of any excess availability under the Borrowing Base immediately prior to such sale, transfer or disposition is not diminished as a result of such release or (y) the Borrowing Base immediately after giving effect to such sale, transfer or disposition is at least 110% of the Covered Debt Amount;

 

(e)                                   the Borrower may merge or consolidate with any other Person so long as (i) the Borrower is the continuing or surviving entity in such transaction and (ii) at the time thereof and after giving effect thereto, no Default shall have occurred or be continuing;

 

(f)                                     the Borrower and the other Obligors may sell, lease, transfer or otherwise dispose of equipment or other property or assets that do not consist of Portfolio Investments so long as the aggregate amount of all such sales, leases, transfer and dispositions does not exceed $10,000,000 in any fiscal year; and

 

(g)                                  the Obligors may transfer Restricted Acquisition Assets to a Special Acquisition Subsidiary to the extent required by the terms of the Allied Secured Indebtedness.

 

SECTION 6.04.  Investments .  The Borrower will not, nor will it permit any other Obligor to, acquire, make or enter into, or hold, any Investments except:

 

(a)                                   operating deposit accounts with banks;

 

(b)                                  Investments by the Borrower and the Subsidiary Guarantors in the Borrower and the Subsidiary Guarantors;

 

(c)                                   Hedging Agreements entered into in the ordinary course of any Obligor’s financial planning and not for speculative purposes;

 

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(d)                                  Portfolio Investments by the Borrower and its Subsidiaries to the extent such Portfolio Investments are permitted under the Investment Company Act and the Borrower’s Investment Policies;

 

(e)                                   Investments in Designated Subsidiaries; and

 

(f)                                     additional Investments up to but not exceeding $50,000,000 in the aggregate.

 

For purposes of clause (f) of this Section, the aggregate amount of an Investment at any time shall be deemed to be equal to (A) the aggregate amount of cash, together with the aggregate fair market value of property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to such Investment minus (B) the aggregate amount of dividends, distributions or other payments received in cash in respect of such Investment, provided that in no event shall the aggregate amount of such Investment be deemed to be less than zero; the amount of an Investment shall not in any event be reduced by reason of any write-off of such Investment nor increased by any increase in the amount of earnings retained in the Person in which such Investment is made that have not been dividended, distributed or otherwise paid out.

 

SECTION 6.05.  Restricted Payments .  The Borrower will not, nor will it permit any other Obligor to, declare or make, or agree to pay or make, directly or indirectly, any Restricted Payment, except that the Borrower may declare and pay:

 

(a)                                   dividends with respect to the capital stock of the Borrower to the extent payable in additional shares of the Borrower’s common stock;

 

(b)                                  dividends and distributions in either case in cash or other property (excluding for this purpose the Borrower’s common stock) in any taxable year of the Borrower in amounts not to exceed the amount that is estimated in good faith by the Borrower to be required to (i) reduce to zero for such taxable year or for the previous taxable year, its investment company taxable income (within the meaning of section 852(b)(2) of the Code, and reduce to zero the tax imposed by section 852(b)(3) of the Code, and (ii) avoid federal  excise taxes for such taxable year  imposed by section 4982 of the Code;

 

(c)                                   dividends and distributions  in each  case in cash or other property (excluding for this purpose the Borrower’s common stock) in addition to the dividends and distributions permitted under the foregoing clauses (a) and (b), so long as on the date of such Restricted Payment and after giving effect thereto:

 

(i)                                      no Default shall have occurred and be continuing; and

 

(ii)                                   the aggregate amount of Restricted Payments made during any taxable year of the Borrower after the Restatement Effective Date

 

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under this clause (c) shall not exceed the sum of (x) an amount equal to 10% of the taxable income of the Borrower for such taxable year determined under section 852(b)(2) of the Code, but without regard to subparagraphs (A), (B) or (D) thereof, minus (y) the amount, if any, by which dividends and distributions made during such taxable year pursuant to the foregoing clause (b) (whether in respect of such taxable year or the previous taxable year) based upon the Borrower’s estimate of taxable income exceeded the actual amounts specified in subclauses (i) and (ii) of such foregoing clause (b) for such taxable year; and

 

(d)                                  other Restricted Payments so long as (i) on the date of such other Restricted Payment and after giving effect thereto (x) the Covered Debt Amount does not exceed 90% of the Borrowing Base and (y) no Default shall have occurred and be continuing and (ii) on the date of such other Restricted Payment the Borrower delivers to the Administrative Agent and each Lender a Borrowing Base Certificate as at such date demonstrating compliance with subclause (x) after giving effect to such Restricted Payment.  For purposes of preparing such Borrowing Base Certificate, (A) the fair market value of Portfolio Investments for which market quotations are readily available shall be the most recent quotation available for such Portfolio Investment and (B) the fair market value of Portfolio Investments for which market quotations are not readily available shall be the Value set forth in the Borrowing Base Certificate most recently delivered by the Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01(d), provided that the Borrower shall reduce the Value of any Portfolio Investment referred to in this sub-clause (B) to the extent necessary to take into account any events of which the Borrower has knowledge that adversely affect the value of such Portfolio Investment.

 

In calculating the amount of Restricted Payments made by the Borrower during any period referred to in paragraphs (b) or (c) above, any Restricted Payments made by Designated Subsidiaries during such period (other than any such Restricted Payments that are made to Obligors) shall be treated as Restricted Payments made by the Borrower during such period.

 

Nothing herein shall be deemed to prohibit the payment of Restricted Payments by any Subsidiary Guarantor of the Borrower to the Borrower or to any other Subsidiary Guarantor.

 

For the avoidance of doubt, the Borrower shall not declare any dividend to the extent such declaration violates the provisions of the Investment Company Act applicable to it.

 

SECTION 6.06.  Certain Restrictions on Subsidiaries .  The Borrower will not permit any of its Subsidiaries (other than Designated Subsidiaries and, following consummation of the Acquisition, for so long as the Allied Secured Indebtedness is

 

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outstanding, any Special Acquisition Subsidiary) to enter into or suffer to exist any indenture, agreement, instrument or other arrangement (other than the Loan Documents) that prohibits or restrains, in each case in any material respect, or imposes materially adverse conditions upon, the incurrence or payment of Indebtedness, the granting of Liens, the declaration or payment of dividends, the making of loans, advances, guarantees or Investments or the sale, assignment, transfer or other disposition of property (except for restrictions imposed by the underlying governing agreements of any Restricted Acquisition Asset and applicable only to such Restricted Acquisition Asset).

 

SECTION 6.07.  Certain Financial Covenants .

 

(a)                                   Minimum Shareholders’ Equity .  The Borrower will not permit Shareholders’ Equity at the last day of any fiscal quarter of the Borrower to be less than the greater of (i) 40% of the total assets of the Borrower and its Subsidiaries as at the last day of such fiscal quarter (determined on a consolidated basis, without duplication, in accordance with GAAP) and (ii) $750,000,000 plus 25% of the net proceeds of the sale of Equity Interests by the Borrower and its Subsidiaries after the Restatement Effective Date plus , at any time after the consummation of the Acquisition, 50% of the value of Equity Interests in the Borrower issued in connection therewith.

 

(b)                                  Asset Coverage Ratio .  The Borrower will not permit the Asset Coverage Ratio to be less than 2.00 to 1 at any time.

 

(c)                                   Liquidity Tests .

 

(i)                                      The Borrower will not permit the aggregate Value of the Portfolio Investments that are Cash (excluding cash cover for outstanding Letters of Credit)  or that can be converted to Cash in fewer than 10 Business Days without more than a 5% change in price to be less than 7.5% of the Covered Debt Amount for more than 30 consecutive Business Days during any period when the Adjusted Covered Debt Amount is greater than 85% of the Adjusted Borrowing Base as determined in good faith by the Borrower.

 

(ii)                                   The Borrower will not permit the aggregate Value of the Portfolio Investments that are Cash (excluding cash cover for outstanding Letters of Credit)  or that can be converted to Cash in fewer than 30 Business Days without more than a 10% change in price to be less than 15% of the Covered Debt Amount for more than 30 consecutive Business Days during any period when the Adjusted Covered Debt Amount is greater than 85% of the Adjusted Borrowing Base, as determined in good faith by the Borrower.

 

(iii)                                The Borrower will not create, incur or assume any Indebtedness under Section 6.01(a), (b) or (g) unless after giving effect thereto the sum of Shareholder’s Equity and Relevant Available Funds shall be greater than:

 

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(A)  the sum of (1) the aggregate Value of Portfolio Investments plus (2) the aggregate amount of Relevant Investment Commitments of the Obligors; minus

 

(B)  the sum of (1) aggregate Value of Portfolio Investments that can be converted to Cash in fewer than 10 Business Days without more than a 5% change in price plus (2) the aggregate amount of Relevant Investment Commitments of the Obligors that can be converted into Cash in fewer than 10 Business Days without more than a 5% change in price plus (3) without duplication, the aggregate Value of Portfolio Investments maturing on a date not later than six months after the relevant date of determination.

 

SECTION 6.08.  Transactions with Affiliates .  The Borrower will not, and will not permit any other Obligors to enter into any transactions with any of its Affiliates, even if otherwise permitted under this Agreement, except (a) transactions in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such other Obligor than could be obtained on an arm’s-length basis from unrelated third parties, (b) transactions between or among the Borrower and any other Obligors not involving any other Affiliate, (c) Restricted Payments permitted by Section 6.05, (d) the transactions provided in the Affiliate Agreements, (e) transactions described or referenced on Schedule V or (f) any Investment that results in the creation of an Affiliate.

 

SECTION 6.09.  Lines of Business .  The Borrower will not, nor will it permit any of its Subsidiaries to, engage to any material extent in any business other than in accordance with its Investment Policies.

 

SECTION 6.10.  No Further Negative Pledge .  The Borrower will not, and will not permit any other Obligors to, enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Obligor to create, incur, assume or suffer to exist any Lien upon any of its properties, assets or revenues, whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation, except the following: (a) this Agreement and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 6.02 prohibiting further Liens on the assets encumbered thereby; (c) customary restrictions contained in leases not subject to a waiver; (d) any agreement that imposes such restrictions only on Equity Interests in Designated Subsidiaries; (e) the underlying governing agreements of any Restricted Acquisition Asset that impose such restrictions only on such Restricted Acquisition Asset and (f) any other agreement that does not restrict in any manner (directly or indirectly) Liens created pursuant to the Loan Documents on any Collateral securing the “Secured Obligations” under and as defined in the Guarantee and Security Agreement and does not require the direct or indirect granting of any Lien securing any Indebtedness or other obligation by virtue of the granting of

 

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Liens on or pledge of property of any Obligor secure the Loans or any Hedging Agreement.

 

SECTION 6.11.  Modifications of Certain Documents .  The Borrower will not consent to any modification, supplement or waiver of (a) any of the provisions of any agreement, instrument or other document evidencing or relating to any Permitted Indebtedness that would result in such Permitted Indebtedness not meeting the requirements of the definition of “Permitted Indebtedness” set forth in Section 1.01 of this Agreement or (b) any of the Affiliate Agreements, unless such modification, supplement or waiver is not less favorable to the Borrower than could be obtained on an arm’s-length basis from unrelated third parties, in each case, without the prior consent of the Administrative Agent (with the approval of the Required Lenders).

 

SECTION 6.12.  Permitted Indebtedness .  The Borrower will not, nor will it permit any other Obligor to, purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Permitted Indebtedness (other than the refinancing of such Indebtedness with Indebtedness permitted under Section 6.01), except for (a) regularly scheduled payments, prepayments or redemptions of principal and interest in respect thereof required pursuant to the instruments evidencing such Permitted Indebtedness, (b) payments and prepayments thereof required to comply with requirements of Section 2.09(c), and (c) Specified Debt Payments permitted to be made under Section 6.13.

 

SECTION 6.13.  Specified Debt .  The Borrower will not, nor will it permit any of its Subsidiaries to:

 

(a)                                   make any Specified Debt Payment at any time, provided that the Borrower may make a Specified Debt Payment described in clause (a) of the definition of Specified Debt Payment if (i) such Specified Debt Payment does not exceed the then fair value (which fair value shall include reasonable fees and premiums payable in connection therewith) as reasonably determined by the Borrower of the Specified Debt purchased, redeemed, retired or otherwise acquired thereby, (ii) at the time of and immediately after giving effect to such Specified Debt Payment, no Default shall have occurred and be continuing and (iii) if such Specified Debt Payment were treated as a “Restricted Payment” for the purposes of determining compliance with Section 6.05, such Specified Debt Payment would be permitted to be made under Section 6.05; and

 

(b)                                  notwithstanding anything to the contrary in Section 6.02, create, incur, assume or permit to exist any Lien securing any Specified Debt at any time.

 

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ARTICLE VII

 

EVENTS OF DEFAULT

 

If any of the following events (“ Events of Default ”) shall occur and be continuing:

 

(a)                                   the Borrower shall (i) fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise or (ii) fail to deposit any amount into the Letter of Credit Collateral Account as required by Section 2.08(a) on the Commitment Termination Date;

 

(b)                                  the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article) payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five or more Business Days;

 

(c)                                   any representation or warranty made (or deemed made pursuant to Section 4.02) by or on behalf of the Borrower or any of its Subsidiaries in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, shall prove to have been incorrect when made or deemed made in any material respect;

 

(d)                                  the Borrower shall fail to observe or perform any covenant, condition or agreement contained in (i) Section 5.03 (with respect to the Borrower’s existence) or Sections 5.08(a) and (b) or in Article VI or any Obligor shall default in the performance of any of its obligations contained in Section 7 of the Guarantee and Security Agreement or (ii) Sections 5.01(e) and (f) or 5.02 and such failure shall continue unremedied for a period of five or more days after notice thereof by the Administrative Agent (given at the request of any Lender) to the Borrower;

 

(e)                                   a Borrowing Base Deficiency shall occur and continue unremedied for a period of five or more Business Days after delivery of a Borrowing Base Certificate demonstrating such Borrowing Base Deficiency pursuant to Section 5.01(e), provided that it shall not be an Event of Default hereunder if the Borrower shall present the Administrative Agent with a reasonably feasible plan to enable such Borrowing Base Deficiency to be cured within 30 Business Days (which 30-Business Day period shall include the five Business Days permitted for

 

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delivery of such plan), so long as such Borrowing Base Deficiency is cured within such 30-Business Day period;

 

(f)                                     the Borrower or any Obligor, as applicable, shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b), (d) or (e) of this Article) or any other Loan Document and such failure shall continue unremedied for a period of 30 or more days after notice thereof from the Administrative Agent (given at the request of any Lender) to the Borrower;

 

(g)                                  the Borrower or any of its Subsidiaries shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable, taking into account (other than with respect to payments of principal) any applicable grace period;

 

(h)                                  any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that shall continue unremedied for any applicable period of time sufficient to enable or permit the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this clause (h) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness;

 

(i)                                      an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any of its Subsidiaries or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed and unstayed for a period of 60 or more days or an order or decree approving or ordering any of the foregoing shall be entered;

 

(j)                                      the Borrower or any of its Subsidiaries shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (i) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any of its Subsidiaries or for a substantial part of its

 

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assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;

 

(k)                                   the Borrower or any of its Subsidiaries shall become unable, admit in writing its inability or fail generally to pay its debts as they become due;

 

(l)                                      one or more judgments for the payment of money in an aggregate amount in excess of $25,000,000 shall be rendered against the Borrower or any of its Subsidiaries or any combination thereof and (i) the same shall remain undischarged for a period of 30 consecutive days following the entry of such judgment during which 30 day period such judgment shall not have been vacated, stayed, discharged or bonded pending appeal, or (ii) any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any of its Subsidiaries to enforce any such judgment;

 

(m)                                an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;

 

(n)                                  a Change in Control shall occur;

 

(o)                                  Ares Capital Management shall cease to be the investment advisor for the Borrower;

 

(p)                                  the Liens created by the Security Documents shall, at any time with respect to Portfolio Investments having an aggregate Value in excess of 5% of the aggregate Value of all Portfolio Investments, not be valid and perfected (to the extent perfection by filing, registration, recordation, possession or control is required herein or therein) in favor of the Administrative Agent, free and clear of all other Liens (other than Liens permitted under Section 6.02 or under the respective Security Documents);

 

(q)                                  except for expiration in accordance with its terms, any of the Security Documents shall for whatever reason be terminated or cease to be in full force and effect in any material respect, or the enforceability thereof shall be contested by the Borrower;

 

(r)                                     the Obligors shall at any time, without the consent of the Required Lenders, (i) modify, supplement or waive in any material respect the Investment Policies (other than any modification, supplement or waiver required by any applicable law, rule or regulation), provided that it shall not be deemed a modification in any material respect of the Investment Policies if the permitted investment size of the Portfolio Investments proportionately increases as the size of the Borrower’s capital base changes; (ii) modify, supplement or waive in any

 

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material respect the Valuation Policy (other than any modification, supplement or waiver required under GAAP or required by any applicable law, rule or regulation), (iii) fail to comply with the Valuation Policy in any material respect, or (iv) fail to comply with the Investment Policies if the same could reasonably be expected to result in a Material Adverse Effect, and in the case of sub-clauses (iii) and (iv) of this clause (r), such failure shall continue unremedied for a period of 30 or more days after the earlier of notice thereof by the Administrative Agent (given at the request of any Lender) to the Borrower or knowledge thereof by a Financial Officer.

 

(s)                                   any Designated Subsidiary shall either (i) make any dividend or other distribution (whether in cash, securities or other property) with respect to any shares of any class of capital stock of the Borrower, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such shares of capital stock of the Borrower or any option, warrant or other right to acquire any such shares of capital stock of the Borrower that, if such actions were undertaken by the Obligors, would not be permitted under Section 6.05 or (ii) purchase, redeem, retire or otherwise acquire for value, or set apart any money for a sinking, defeasance or other analogous fund for the purchase, redemption, retirement or other acquisition of, or make any voluntary payment or prepayment of the principal of or interest on, or any other amount owing in respect of, any Permitted Indebtedness that, if such actions were undertaken by the Obligors, would not be permitted under Section 6.12;

 

then, and in every such event (other than an event with respect to the Borrower described in clause (i) or (j) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (i) or (j) of this Article, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower.

 

In the event that the Loans shall be declared, or shall become, due and payable pursuant to the immediately preceding paragraph then, upon notice from the

 

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Administrative Agent or Lenders with LC Exposure representing more than 50% of the total LC Exposure demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall immediately deposit into the Letter of Credit Collateral Account cash in an amount equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (i) or (j) of this Article.

 

ARTICLE VIII

 

THE ADMINISTRATIVE AGENT

 

Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.

 

The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.

 

The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or in the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered

 

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hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.

 

The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed or sent by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

 

The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties.  The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

 

The Administrative Agent may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.  Upon any such resignation, the Required Lenders shall have the right, with the consent of the Borrower not to be unreasonably withheld (or, if an Event of Default has occurred and is continuing in consultation with the Borrower), to appoint a successor.  If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent’s resignation shall nonetheless become effective and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the Administrative Agent (and all payments and communications provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders appoint a successor agent as provided for above in this paragraph.  Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent and the

 

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retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this paragraph).  The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor.  After the Administrative Agent’s resignation hereunder, the provisions of this Article and Section 9.03 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent.

 

Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

Except as otherwise provided in Section 9.02(b) with respect to this Agreement, the Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise), consent to any modification, supplement or waiver under any of the Loan Documents, provided that, without the prior consent of each Lender, the Administrative Agent shall not (except as provided herein or in the Security Documents) release all or substantially all of the Collateral or otherwise terminate all or substantially all of the Liens under any Security Document providing for collateral security, agree to additional obligations being secured by all or substantially all of such collateral security, alter the relative priorities of the obligations entitled to the benefits of the Liens created under the Security Documents with respect to all or substantially all of the Collateral, except that no such consent shall be required, and the Administrative Agent is hereby authorized, to release any Lien covering property that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented.

 

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ARTICLE IX

 

MISCELLANEOUS

 

SECTION 9.01.  Notices; Electronic Communications

 

(a)           Notices Generally .  Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:

 

(i)            if to the Borrower, to it at 280 Park Avenue, 22 nd  Floor East, New York, NY 10017, Attention of Michael J. Arougheti, President (Telecopy No. (212) 750-1777; Telephone No. (212) 750-7300); with a copy to Ares Management LLC, at 2000 Avenue of the Stars, 12 th  Floor, Los Angeles, CA, 90067 Attention of Rick Davis (Telephone No. (310) 201-4111);

 

(ii)           if to the Administrative Agent, to JPMorgan Chase Bank, N.A., 1111 Fannin Street, 10th Floor, Houston, Texas 77002-8069, Attention of Missy Barbosa (Telecopy No. (713) 750-2223; Telephone No. (713) 750-3570);

 

(iii)          if to the Issuing Bank, to JPMorgan Chase Bank, N.A., Attention of Letter of Credit Department, 10420 Highland Manor Drive, Floor 4, Tampa, FL 33610-9128, (Telecopy No. (813) 432-5162; Telephone No. (866) 632-5101); and

 

(iv)          if to any other Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.

 

Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto.  All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.  Notices delivered through electronic communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).

 

(b)           Electronic Communications .  Notices and other communications to the Lenders and the Issuing Bank hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank pursuant to Section 2.05 if such Lender or the Issuing Bank, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to

 

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procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

 

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

 

(c)           Documents to be Delivered under Sections 5.01 and 5.12(a) .  For so long as an Intralinks™ or equivalent website is available to each of the Lenders hereunder, the Borrower may satisfy its obligation to deliver documents to the Administrative Agent or the Lenders under Sections 5.01 and 5.12(a) by delivering one hard copy thereof to the Administrative Agent and either an electronic copy or a notice identifying the website where such information is located for posting by the Administrative Agent on Intralinks™ or such equivalent website, provided that the Administrative Agent shall have no responsibility to maintain access to intralinks or an equivalent website.

 

SECTION 9.02.  Waivers; Amendments .

 

(a)           No Deemed Waivers; Remedies Cumulative .  No failure or delay by the Administrative Agent, the Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.

 

(b)           Amendments to this Agreement .  Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement

 

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or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall

 

(i)            increase the Commitment of any Lender without the written consent of such Lender,

 

(ii)           reduce the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender affected thereby,

 

(iii)          postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender affected thereby,

 

(iv)          change Section 2.16(b), (c) or (d) in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender affected thereby, or

 

(v)           change any of the provisions of this Section or the percentage in the definition of the term “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;

 

provided further that (x) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank hereunder without the prior written consent of the Administrative Agent, the Issuing Bank, as the case may be and (y) the consent of Lenders holding not less than two-thirds of the Revolving Credit Exposure and unused Commitments will be required (A) for any adverse change affecting the provisions of this Agreement relating to the calculation of the Borrowing Base (including the definitions set forth in Section 5.13) or the provisions of Section 5.12(c)(ii) unless otherwise expressly provided herein and (B) for any release of Collateral other than for fair value or as otherwise permitted hereunder or under the other Loan Documents.

 

For purposes of this Section, the “scheduled date of payment” of any amount shall refer to the date of payment of such amount specified in this Agreement, and shall not refer to a date or other event specified for the mandatory or optional prepayment of such amount.  In addition, whenever a waiver, amendment or modification requires the consent of a Lender “affected” thereby, such waiver, amendment or modification shall, upon consent of such Lender, become effective as to such Lender

 

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whether or not it becomes effective as to any other Lender, so long as the Required Lenders consent to such waiver, amendment or modification as provided above.

 

(c)           Amendments to Security Documents .  No Security Document nor any provision thereof may be waived, amended or modified, nor may the Liens thereof be spread to secure any additional obligations (excluding any increase in the Loans and Letters of Credit hereunder pursuant to a Commitment Increase under Section 2.07(e)) except pursuant to an agreement or agreements in writing entered into by the Borrower, and by the Administrative Agent with the consent of the Required Lenders; provided that, (i) without the written consent of each Lender, no such agreement shall release all or substantially all of the Obligors from their respective obligations under the Security Documents and (ii) without the written consent of each Lender, no such agreement shall release all or substantially all of the collateral security or otherwise terminate all or substantially all of the Liens under the Security Documents, alter the relative priorities of the obligations entitled to the Liens created under the Security Documents (except in connection with securing additional obligations equally and ratably with the Loans and other obligations hereunder) with respect to all or substantially all of the collateral security provided thereby, or release all or substantially all of the guarantors under the Guarantee and Security Agreement from their guarantee obligations thereunder, except that no such consent shall be required, and the Administrative Agent is hereby authorized (and so agrees with the Borrower) to direct the Collateral Agent under the Guarantee and Security Agreement to, and in addition to the rights of such parties under the Guarantee and Security Agreement, the Administrative Agent and the Collateral Agent under the Guarantee and Security Agreement may, (1) release any Lien covering property (and to release any such guarantor) that is the subject of either a disposition of property permitted hereunder or a disposition to which the Required Lenders have consented and (2) release from the Guarantee and Security Agreement any “Subsidiary Guarantor” (and any property of such Subsidiary Guarantor) that is designated as a “Designated Subsidiary” in accordance with this Agreement or which ceases to be consolidated on the Borrower’s financial statements and is no longer required to be a “Subsidiary Guarantor”, so long as (A) after giving effect to any such release under this clause (2) (and any concurrent acquisitions of Portfolio Investments or payment of outstanding Loans) the Covered Debt Amount does not exceed the Borrowing Base and the Borrower delivers a certificate of a Financial Officer to such effect to the Administrative Agent and (B) either (I) the amount of any excess availability under the Borrowing Base immediately prior to such release is not diminished as a result of such release or (II) the Borrowing Base immediately after giving effect to such release is at least 110% of the Covered Debt Amount.

 

(d)           Replacement of Non-Consenting Lender .  If, in connection with any proposed change, waiver, discharge or termination to any of the provisions of this Agreement as contemplated by this Section 9.02, the consent of one or more Lenders whose consent is required for such proposed change, waiver, discharge or termination is not obtained, then (so long as no Event of Default has occurred and is continuing) the Borrower shall have the right, at its sole cost and expense, to replace each such non- consenting Lender or Lenders with one or more replacement Lenders pursuant to Section 

 

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2.18(b) so long as at the time of such replacement, each such replacement Lender consents to the proposed change, waiver, discharge or termination.

 

SECTION 9.03.  Expenses; Indemnity; Damage Waiver .

 

(a)           Costs and Expenses .  The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein (as amended and restated hereby), the preparation and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), subject to any limitation previously agreed in writing, (ii) all reasonable and documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder, (iii) all documented out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement and the other Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect thereof and (iv) and all costs, expenses, taxes, assessments and other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated by any Security Document or any other document referred to therein.

 

(b)           Indemnification by the Borrower .  The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (other than Taxes or Other Taxes which shall only be indemnified by the Borrower to the extent provided in Section 2.15), including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit) or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent

 

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that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from (i) the fraud, willful misconduct or gross negligence of such Indemnitee or (ii) a claim brought against such Indemnitee for breach in bad faith of such Indemnitee’s obligations under this Agreement or the other Loan Documents, if there has been a final and nonappealable judgment against such Indemnitee on such claim as determined by a court of competent jurisdiction.

 

The Borrower shall not be liable to any Indemnitee for any special, indirect, consequential or punitive damages arising out of, in connection with, or as a result of the Transactions asserted by an Indemnitee against the Borrower or any other Obligor, provided that the foregoing limitation shall not be deemed to impair or affect the Obligations of the Borrower under the preceding provisions of this subsection.

 

(c)           Reimbursement by Lenders .  To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing Bank under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent, the Issuing Bank in its capacity as such.

 

(d)           Waiver of Consequential Damages, Etc.   To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.

 

(e)           Payments .  All amounts due under this Section shall be payable promptly after written demand therefor.

 

SECTION 9.04.  Successors and Assigns .

 

(a)           Assignments Generally .  The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,

 

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their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

(b)           Assignments by Lenders .

 

(i)            Assignments Generally .  Subject to the conditions set forth in clause (ii) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans and LC Exposure at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of:

 

(A)          the Borrower, provided that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, or, if an Event of Default has occurred and is continuing, any other assignee; and

 

(B)           the Administrative Agent and the Issuing Bank.

 

(ii)           Certain Conditions to Assignments .  Assignments shall be subject to the following additional conditions:

 

(A)          except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans and LC Exposure, the amount of the Commitment or Loans and LC Exposure of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than U.S. $5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and is continuing;

 

(B)           each partial assignment of any Commitments or Loans and LC Exposure shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement in respect of such Commitments, Loans and LC Exposure;

 

(C)           the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption in substantially the form of Exhibit A hereto, together with a processing and recordation fee of U.S. $3,500 (which fee shall not be payable in connection with an assignment to a Lender or to an Affiliate of a Lender) (for which the Borrower and the Guarantors shall not be obligated); and

 

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(D)          the assignee, if it shall not already be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

 

(iii)          Effectiveness of Assignments .  Subject to acceptance and recording thereof pursuant to paragraph (c) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03 with respect to facts and circumstances occurring prior to the effective date of such assignment).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section.

 

(c)           Maintenance of Registers by Administrative Agent .  The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in New York City a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “ Registers ” and each individually, a “ Register ”).  The entries in the Registers shall be conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat each Person whose name is recorded in the Registers pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Registers shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

(d)           Acceptance of Assignments by Administrative Agent .  Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

 

(e)           Participations .  Any Lender may, with the consent of the Borrower (such consent not to be unreasonably withheld or delayed), sell participations to one or

 

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more banks or other entities (a “ Participant ”) in all or a portion of such Lender’s rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Commitments and the Loans and LC Disbursements owing to it); provided that (i) such Lender’s obligations under this Agreement and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Loan Documents and to approve any amendment, modification or waiver of any provision of this Agreement or any other Loan Document; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant.  Subject to paragraph (f) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.16(d) as though it were a Lender hereunder.

 

(f)            Limitations on Rights of Participants .  A Participant shall not be entitled to receive any greater payment under Section 2.13, 2.14 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent.  A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 2.15 as though it were a Lender and in the case of a Participant claiming exemption for portfolio interest under Section 871(h) or 881(c) of the Code, the applicable Lender shall provide the Borrower with satisfactory evidence that the participation is in registered form and shall permit the Borrower to review such register as reasonably needed for the Borrower to comply with its obligations under applicable laws and regulations.

 

(g)           Certain Pledges .  Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any such pledge or assignment to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.

 

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(h)                                  No Assignments to the Borrower or Affiliates .  Anything in this Section to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan or LC Exposure held by it hereunder to the Borrower or any of its Affiliates or Subsidiaries without the prior consent of each Lender.

 

SECTION 9.05.  Survival .  All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated.  The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

 

SECTION 9.06.  Counterparts; Integration; Effectiveness; Electronic Execution .

 

(a)                                   Counterparts; Integration; Effectiveness .  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract between and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page to this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

 

(b)                                  Electronic Execution of Assignments .  The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be,

 

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to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

SECTION 9.07.  Severability .  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

 

SECTION 9.08.  Right of Setoff .  If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured.  The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.

 

SECTION 9.09.  Governing Law; Jurisdiction; Etc .

 

(a)                                   Governing Law .  This Agreement shall be construed in accordance with and governed by the law of the State of New York.

 

(b)                                  Submission to Jurisdiction .  The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Nothing in this Agreement shall affect any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against the Borrower or its properties in the courts of any jurisdiction.

 

111



 

(c)                                   Waiver of Venue .  The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

(d)                                  Service of Process .  Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.  Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

 

SECTION 9.10.  WAIVER OF JURY TRIAL .  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

 

SECTION 9.11.  Judgment Currency .  This is an international loan transaction in which the specification of Dollars or any Foreign Currency, as the case may be (the “ Specified Currency ”), and payment in New York City or the country of the Specified Currency, as the case may be (the “ Specified Place ”), is of the essence, and the Specified Currency shall be the currency of account in all events relating to Loans denominated in the Specified Currency.  The payment obligations of the Borrower under this Agreement shall not be discharged or satisfied by an amount paid in another currency or in another place, whether pursuant to a judgment or otherwise, to the extent that the amount so paid on conversion to the Specified Currency and transfer to the Specified Place under normal banking procedures does not yield the amount of the Specified Currency at the Specified Place due hereunder.  If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in the Specified Currency into another currency (the “ Second Currency ”), the rate of exchange that shall be applied shall be the rate at which in accordance with normal banking procedures the Administrative Agent could purchase the Specified Currency with the Second Currency on the Business Day next preceding the day on which such judgment is rendered.  The obligation of the Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under any other Loan Document (in this Section called an “ Entitled

 

112



 

Person ”) shall, notwithstanding the rate of exchange actually applied in rendering such judgment, be discharged only to the extent that on the Business Day following receipt by such Entitled Person of any sum adjudged to be due hereunder in the Second Currency such Entitled Person may in accordance with normal banking procedures purchase and transfer to the Specified Place the Specified Currency with the amount of the Second Currency so adjudged to be due; and the Borrower hereby, as a separate obligation and notwithstanding any such judgment, agrees to indemnify such Entitled Person against, and to pay such Entitled Person on demand, in the Specified Currency, the amount (if any) by which the sum originally due to such Entitled Person in the Specified Currency hereunder exceeds the amount of the Specified Currency so purchased and transferred.

 

SECTION 9.12.  Headings .  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

 

SECTION 9.13.  Treatment of Certain Information; Confidentiality .

 

(a)                                   Treatment of Certain Information .  The Borrower acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrower or one or more of its Subsidiaries (in connection with this Agreement or otherwise) by any Lender or by one or more subsidiaries or affiliates of such Lender and the Borrower hereby authorizes each Lender to share any information delivered to such Lender by the Borrower and its Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender to enter into this Agreement, to any such subsidiary or affiliate, it being understood that any such subsidiary or affiliate receiving such information shall be bound by the provisions of paragraph (b) of this Section as if it were a Lender hereunder.  Such authorization shall survive the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.

 

(b)                                  Confidentiality .  Each of the Administrative Agent, the Lenders and the Issuing Bank agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and other representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested by any regulatory authority purporting to have jurisdiction over it or its Affiliates (including any self-regulatory authority), (iii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iv) to any other party hereto, (v) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to (x) any assignee of or Participant in, or

 

113



 

any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (y) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (vii) with the consent of the Borrower or (viii) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the Issuing Bank or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower.

 

For purposes of this Section, “ Information ” means all information received from the Borrower or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries or any of their respective businesses or any Portfolio Investment, other than any such information that is available to the Administrative Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to disclosure by the Borrower or any of its Subsidiaries, provided that, in the case of information received from the Borrower or any of its Subsidiaries after the Restatement Effective Date, such information is clearly identified at the time of delivery as confidential.  Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

 

SECTION 9.14.  USA PATRIOT Act .  Each Lender hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), 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 said Act.

 

SECTION 9.15.  First Amendment .  The waiver set forth in Section 3 of the First Amendment shall apply, mutatis mutandis, to the Excluded Entities and this Agreement as if more fully set forth herein.

 

SECTION 9.16.  Amendment to Security Agreement .  The definition of “Secured Party” as set forth in Section 1.02 of the Guarantee and Security Agreement is hereby amended in its entirety as follows:

 

Secured Party ” means, collectively, the Lenders, the Administrative Agent, each Designated Indebtedness Holder, each Financing Agent, each holder of any Hedging Agreement Obligations and the Collateral Agent.

 

SECTION 9.17.  Amendment to Intercreditor Agreement .  By its signature below, each Lender authorizes and instructs the Collateral Agent to enter into the First Amendment to Intercreditor Agreement in substantially the form attached hereto as Exhibit H.

 

114



 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

 

 

 

ARES CAPITAL CORPORATION

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Title:

Chief Financial Officer

 

115



 

 

LENDERS

 

 

 

JPMORGAN CHASE BANK, N.A.,

individually, as Issuing Bank and as Administrative Agent

 

 

 

 

 

By:

/s/ Jeanne O’Connell Horn

 

 

Title:

Vice President

 

116



 

 

BANK OF AMERICA, N.A.

 

 

 

 

 

By:

/s/ Christopher Choi

 

 

Title:   Vice President

 

117



 

 

SUNTRUST BANK

 

 

 

 

 

By:

/s/ William Christensen

 

 

Title:   Director

 

118



 

 

BANK OF MONTREAL, Chicago Branch

 

 

 

 

 

By:

/s/ Catherine Grycz

 

 

Title:   Vice President

 

119



 

 

UBS LOAN FINANCE LLC

 

 

 

 

 

By:

/s/ Marie Haddad

 

 

Title:   Associate Director

 

 

 

 

 

By:

/s/ Mary E. Evans

 

 

Title:   Associate Director

 

120



 

 

DEUTSCHE BANK AG NEW YORK BRANCH

 

 

 

 

 

By:

/s/ Robert Chesley

 

 

Title:   Director

 

 

 

 

 

By:

/s/ Michael Campites

 

 

Title:  Vice President

 

121



 

 

MORGAN STANLEY BANK, N.A.

 

 

 

 

 

By:

/s/ Ryan Vetsch

 

 

Title:   Authorized Signatory

 

122



 

 

CITY NATIONAL BANK, NA

 

 

 

 

 

By:

/s/ Brandon L. Feitelson

 

 

Title:   Vice President

 

123



 

 

BRANCH BANKING AND TRUST COMPANY

 

 

 

 

 

By:

/s/ Gregory Drabik

 

 

Title:   Vice President

 

124


 

Exhibit 10.2

 

EXECUTION COPY

 

 

U.S. $400,000,000

 

AMENDED AND RESTATED SALE AND SERVICING AGREEMENT

 

Dated as of January 22, 2010

 

Among

 

ARES CAPITAL CP FUNDING LLC,
as the Borrower

 

and

 

ARES CAPITAL CORPORATION,
as the Servicer and the Transferor

 

and

 

WACHOVIA BANK, NATIONAL ASSOCIATION,
as the Note Purchaser

 

and

 

WELLS FARGO SECURITIES, LLC,
as the Agent

 

and

 

U.S. BANK NATIONAL ASSOCIATION,
as the Collateral Custodian, Trustee and the Bank

 

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I.

DEFINITIONS

2

 

 

 

Section 1.01

 

Certain Defined Terms

2

 

 

 

 

Section 1.02

 

Other Terms

40

 

 

 

 

Section 1.03

 

Computation of Time Periods

40

 

 

 

ARTICLE II.

THE FACILITY

40

 

 

 

Section 2.01

 

Variable Funding Note and Advances

40

 

 

 

 

Section 2.02

 

Procedure for Advances

41

 

 

 

 

Section 2.03

 

[Reserved]

42

 

 

 

 

Section 2.04

 

Remittance Procedures

42

 

 

 

 

Section 2.05

 

Instructions to the Trustee and the Bank

45

 

 

 

 

Section 2.06

 

Borrowing Base Deficiency Payments

46

 

 

 

 

Section 2.07

 

Substitution and Sale of Loan Assets; Affiliate Transactions

46

 

 

 

 

Section 2.08

 

Payments and Computations, Etc.

52

 

 

 

 

Section 2.09

 

Fees

53

 

 

 

 

Section 2.10

 

Increased Costs; Capital Adequacy

53

 

 

 

 

Section 2.11

 

Taxes

54

 

 

 

 

Section 2.12

 

Collateral Assignment of Agreements

55

 

 

 

 

Section 2.13

 

Grant of a Security Interest

56

 

 

 

 

Section 2.14

 

Evidence of Debt

56

 

 

 

 

Section 2.15

 

Survival of Representations and Warranties

56

 

 

 

 

Section 2.16

 

Release of Loan Assets

56

 

 

 

 

Section 2.17

 

Treatment of Amounts Paid by the Borrower

57

 

 

 

 

Section 2.18

 

Prepayment; Termination

57

 

 

 

 

Section 2.19

 

Extension of Stated Maturity Date

58

 

 

 

 

Section 2.20

 

Collections and Allocations

59

 

 

 

 

Section 2.21

 

Reinvestment of Principal Collections

60

 

 

 

ARTICLE III.

CONDITIONS PRECEDENT

61

 

 

 

Section 3.01

 

Conditions Precedent to Effectiveness

61

 

 

 

 

Section 3.02

 

Conditions Precedent to All Advances

61

 

 

 

 

Section 3.03

 

Advances Do Not Constitute a Waiver

63

 

i



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 3.04

 

Conditions to Pledges of Loan Assets

63

 

 

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

65

 

 

 

Section 4.01

 

Representations and Warranties of the Borrower

65

 

 

 

 

Section 4.02

 

Representations and Warranties of the Borrower Relating to the Agreement and the Collateral Portfolio

73

 

 

 

 

Section 4.03

 

Representations and Warranties of the Servicer

74

 

 

 

 

Section 4.04

 

Representations and Warranties of the Trustee

78

 

 

 

 

Section 4.05

 

Representations and Warranties of the Note Purchaser

79

 

 

 

 

Section 4.06

 

Representations and Warranties of the Collateral Custodian

79

 

 

 

ARTICLE V.

GENERAL COVENANTS

80

 

 

 

Section 5.01

 

Affirmative Covenants of the Borrower

80

 

 

 

 

Section 5.02

 

Negative Covenants of the Borrower

86

 

 

 

 

Section 5.03

 

Affirmative Covenants of the Servicer

89

 

 

 

 

Section 5.04

 

Negative Covenants of the Servicer

94

 

 

 

 

Section 5.05

 

Affirmative Covenants of the Trustee

95

 

 

 

 

Section 5.06

 

Negative Covenants of the Trustee

96

 

 

 

 

Section 5.07

 

Affirmative Covenants of the Collateral Custodian

96

 

 

 

 

Section 5.08

 

Negative Covenants of the Collateral Custodian

96

 

 

 

ARTICLE VI.

ADMINISTRATION AND SERVICING OF CONTRACTS

97

 

 

 

Section 6.01

 

Appointment and Designation of the Servicer

97

 

 

 

 

Section 6.02

 

Duties of the Servicer

99

 

 

 

 

Section 6.03

 

Authorization of the Servicer

101

 

 

 

 

Section 6.04

 

Collection of Payments; Accounts

102

 

 

 

 

Section 6.05

 

Realization Upon Loan Assets

103

 

 

 

 

Section 6.06

 

Servicing Compensation

104

 

 

 

 

Section 6.07

 

Payment of Certain Expenses by Servicer

104

 

 

 

 

Section 6.08

 

Reports to the Agent; Account Statements; Servicing Information

104

 

 

 

 

Section 6.09

 

Annual Statement as to Compliance

106

 

 

 

 

Section 6.10

 

Annual Independent Public Accountant’s Servicing Reports

106

 

 

 

 

Section 6.11

 

The Servicer Not to Resign

107

 

ii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

 

ARTICLE VII.

EVENTS OF DEFAULT

107

 

 

 

 

 

Section 7.01

Events of Default

107

 

 

 

 

 

Section 7.02

Additional Remedies of the Agent

110

 

 

 

 

ARTICLE VIII.

INDEMNIFICATION

114

 

 

 

 

 

Section 8.01

Indemnities by the Borrower

114

 

 

 

 

 

Section 8.02

Indemnities by Servicer

117

 

 

 

 

 

Section 8.03

Legal Proceedings

118

 

 

 

 

 

Section 8.04

After-Tax Basis

119

 

 

 

 

ARTICLE IX.

THE AGENT

119

 

 

 

 

 

Section 9.01

The Agent

119

 

 

 

 

ARTICLE X.

TRUSTEE

122

 

 

 

 

 

Section 10.01

Designation of Trustee

122

 

 

 

 

 

Section 10.02

Duties of Trustee

122

 

 

 

 

 

Section 10.03

Merger or Consolidation

124

 

 

 

 

 

Section 10.04

Trustee Compensation

124

 

 

 

 

 

Section 10.05

Trustee Removal

125

 

 

 

 

 

Section 10.06

Limitation on Liability

125

 

 

 

 

 

Section 10.07

Trustee Resignation

126

 

 

 

 

ARTICLE XI.

MISCELLANEOUS

126

 

 

 

 

 

Section 11.01

Amendments and Waivers

126

 

 

 

 

 

Section 11.02

Notices, Etc.

127

 

 

 

 

 

Section 11.03

No Waiver; Remedies

130

 

 

 

 

 

Section 11.04

Binding Effect; Assignability; Multiple Note Purchasers

130

 

 

 

 

 

Section 11.05

Term of This Agreement

130

 

 

 

 

 

Section 11.06

GOVERNING LAW; JURY WAIVER

131

 

 

 

 

 

Section 11.07

Costs, Expenses and Taxes

131

 

 

 

 

 

Section 11.08

No Proceedings

132

 

 

 

 

 

Section 11.09

Recourse Against Certain Parties

132

 

 

 

 

 

Section 11.10

Execution in Counterparts; Severability; Integration

133

 

 

 

 

 

Section 11.11

Consent to Jurisdiction; Service of Process

133

 

iii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 11.1

2

Characterization of Conveyances Pursuant to the Purchase and Sale Agreements

134

 

 

 

 

Section 11.1

3

Confidentiality

135

 

 

 

 

Section 11.1

4

Non-Confidentiality of Tax Treatment

137

 

 

 

 

Section 11.1

5

Waiver of Set Off

137

 

 

 

 

Section 11.1

6

Headings and Exhibits

137

 

 

 

 

Section 11.1

7

Breaches of Representations, Warranties and Covenants

137

 

 

 

 

Section 11.1

8

Assignments of Loan Assets

137

 

 

 

 

Section 11.1

9

Affirmation

138

 

 

 

 

Section 11.2

0

Back-Up Servicer Removal

138

 

 

 

ARTICLE XII.

COLLATERAL CUSTODIAN

138

 

 

 

Section 12.0

1

Designation of Collateral Custodian

138

 

 

 

 

Section 12.0

2

Duties of Collateral Custodian

139

 

 

 

 

Section 12.0

3

Merger or Consolidation

141

 

 

 

 

Section 12.0

4

Collateral Custodian Compensation

141

 

 

 

 

Section 12.0

5

Collateral Custodian Removal

142

 

 

 

 

Section 12.0

6

Limitation on Liability

142

 

 

 

 

Section 12.0

7

Collateral Custodian Resignation

143

 

 

 

 

Section 12.0

8

Release of Documents

143

 

 

 

 

Section 12.0

9

Return of Required Loan Documents

144

 

 

 

 

Section 12.1

0

Access to Certain Documentation and Information Regarding the Collateral Portfolio; Audits of Servicer

144

 

 

 

 

Section 12.1

1

Custodian as Agent of Trustee

145

 

iv



 

LIST OF SCHEDULES AND EXHIBITS

 

SCHEDULES

 

 

 

SCHEDULE I

Conditions Precedent Documents

SCHEDULE II

Prior Names, Tradenames, Fictitious Names and “Doing Business As” Names

SCHEDULE III

Eligibility Criteria

SCHEDULE IV

Agreed-Upon Procedures For Independent Public Accountants

SCHEDULE V

Loan Asset Schedule

SCHEDULE VI

Original Loan Assets

SCHEDULE VII

Disclosed Matters

 

 

EXHIBITS

 

 

 

EXHIBIT A

Form of Approval Notice

EXHIBIT B

Form of Assignment of Mortgage

EXHIBIT C

Form of Borrowing Base Certificate

EXHIBIT D

Form of Disbursement Request

EXHIBIT E

Form of Joinder Supplement

EXHIBIT F

Form of Notice of Borrowing

EXHIBIT G

Form of Notice of Reduction (Reduction of Advances Outstanding)

EXHIBIT H

Form of Notice of Reduction (Reduction of Maximum Facility Amount)

EXHIBIT I

Form of Variable Funding Note

EXHIBIT J

Form of Notice and Request for Consent

EXHIBIT K

Form of Certificate of Closing Attorneys

EXHIBIT L

Form of Servicing Report

EXHIBIT M

Form of Servicer’s Certificate (Servicing Report)

EXHIBIT N

Form of Release of Required Loan Documents

EXHIBIT O

Form of Transferee Letter

EXHIBIT P

Form of Power of Attorney for Servicer

EXHIBIT Q

Form of Power of Attorney for Borrower

EXHIBIT R

Form of Servicer’s Certificate (Loan Asset Register)

 

i



 

This AMENDED AND RESTATED SALE AND SERVICING AGREEMENT is made as of January 22, 2010, among:

 

(1)            ARES CAPITAL CP FUNDING LLC, a Delaware limited liability company (together with its successors and assigns in such capacity, the “ Borrower ”);

 

(2)            ARES CAPITAL CORPORATION, a Maryland corporation, as the Servicer (as defined herein) and the Transferor (as defined herein);

 

(3)            WACHOVIA BANK, NATIONAL ASSOCIATION, as the Note Purchaser (as defined herein);

 

(4)            WELLS FARGO SECURITIES, LLC, as agent for the Note Purchaser (“ Agent ”); and

 

(5)            U.S. BANK NATIONAL ASSOCIATION (“ U.S. Bank ”), as the Trustee (together with its successors and assigns in such capacity, the “ Trustee ”), the Bank (as defined herein) and the Collateral Custodian (together with its successors and assigns in such capacity, the “ Collateral Custodian ”).

 

PRELIMINARY STATEMENT

 

WHEREAS, certain parties hereto were party to a Sale and Servicing Agreement, dated as of November 3, 2004, by and among the Servicer, as the servicer, the Transferor, as the originator, the Borrower, as the borrower, Ares CP Funding II LLC, as the guarantor, Variable Funding Capital Company LLC (“ VFCC ”), as a conduit purchaser, the Note Purchaser, as an institutional purchaser, Wells Fargo Securities, LLC (f/k/a Wachovia Capital Markets, LLC) (together with its successors and assigns, “ WFS ”), as the administrative agent and as the purchaser agent for VFCC, Ares Capital CP Funding II, as the guarantor (the “ Guarantor ”) the Trustee, as the trustee, and Lyon Financial Services, Inc. d/b/a U.S. Bank Portfolio Services (“ Lyon ”), as the backup servicer (as amended, restated, supplemented or modified prior to the date hereof, the “ Original Agreement ”);

 

WHEREAS, the parties hereto no longer desire to maintain a backup servicer,  and, pursuant to Section 11.20 , the parties hereto hereby agree that Lyon is released from and shall have no further rights or obligations under this Agreement;

 

WHEREAS, VFCC, as a conduit purchaser under the Original Agreement, acknowledges that it has been paid in full all amounts previously owed to it and the parties hereto acknowledge and agree that VFCC is hereby released from and shall have no further rights or obligations under this Agreement;

 

WHEREAS, the Guarantor and the parties hereto hereby agree that the Guarantor is released from and shall have no further rights or obligations under this Agreement;

 

WHEREAS, the parties hereto hereby amend and restate the Original Agreement;

 



 

WHEREAS, the Note Purchaser has agreed, on the terms and conditions set forth herein, to provide a secured revolving credit facility which shall provide for Advances under the Variable Funding Note from time to time in an aggregate principal amount not to exceed the Borrowing Base;

 

WHEREAS, the proceeds of the Advances will be used to finance the Borrower’s purchase, on a “true sale” basis, of Eligible Loan Assets from the Equityholder and the Equityholder’s purchase, on a “true sale” basis, of Eligible Loan Assets from the Transferor, approved by the Agent, pursuant to the Second Tier Purchase and Sale Agreement between the Borrower and the Equityholder and the First Tier Purchase and Sale Agreement between the Equityholder and the Transferor, respectively.

 

NOW THEREFORE, based upon the foregoing Preliminary Statement, the parties agree as follows:

 

ARTICLE I.

DEFINITIONS

 

SECTION 1.01                        Certain Defined Terms .

 

(a)            Certain capitalized terms used throughout this Agreement are defined above or in this Section 1.01 .

 

(b)            As used in this Agreement and the exhibits and schedules thereto (each of which is hereby incorporated herein and made a part hereof), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):

 

1940 Act ” means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.

 

Account Transition Deadline ” means 90 days after the Restatement Date.

 

Accreted Interest ” means interest accrued on a Loan Asset that is added to the principal amount of such Loan Asset instead of being paid as interest as it accrues.

 

Acquisition ” means the outstanding acquisition by Ares Capital Corporation of 100% of the outstanding capital stock of Allied Capital Corporation announced on October 26, 2009.

 

Action ” has the meaning assigned to that term in Section 8.03 .

 

Additional Amount ” has the meaning assigned to that term in Section 2.11(a) .

 

Adjusted Borrowing Value ” means for any Loan Asset, for any date of determination, an amount equal to the lowest of: (i) the Outstanding Balance of such Loan Asset at such time, (ii) the Advance Date Assigned Value of such Loan Asset multiplied by the

 

2



 

principal balance of such Loan Asset (exclusive of Accreted Interest), and (iii) the Assigned Value of such Loan Asset at such time multiplied by the principal balance of such Loan Asset (exclusive of Accreted Interest); provided that the parties hereby agree that the Adjusted Borrowing Value of any Loan Asset that is no longer an Eligible Loan Asset shall be zero.

 

Advance ” means each loan advanced by the Note Purchaser to the Borrower on an Advance Date pursuant to Article II .

 

Advance Date ” means, with respect to any Advance, the date on which such Advance is made.

 

Advance Date Assigned Value ” means, (a) with respect to any Loan Asset acquired by the Borrower on or after the Restatement Date, the value (expressed as a percentage of the principal balance of such Loan Asset (exclusive of Accreted Interest)) equal to the lower of (i) the amount paid by the Equityholder to acquire such Loan Asset from the Transferor and by the Borrower to acquire such Loan Asset from the Equityholder (in each case, expressed exclusive of accrued interest) or (ii) the value determined by the Agent, in its sole reasonable discretion and (b) with respect to any Original Loan Asset, the “Advance Date Assigned Value” for such Original Loan Asset set forth on Schedule VI hereto.

 

Advances Outstanding ” means, at any time, the sum of the principal amounts of Advances loaned to the Borrower for the initial and any subsequent borrowings pursuant to Sections 2.01 and 2.02 as of such time, reduced by the aggregate Available Collections received and distributed as repayment of principal amounts of Advances outstanding pursuant to Section 2.04 at or prior to such time and any other amounts received by the Note Purchaser to repay the principal amounts of Advances outstanding pursuant to Section 2.18 or otherwise at or prior to such time; provided that the principal amounts of Advances outstanding shall not be reduced by any Available Collections or other amounts if at any time such Available Collections or other amounts are rescinded or must be returned for any reason.

 

Affected Party ” has the meaning assigned to that term in Section 2.10 .

 

Affiliate ” when used with respect to a Person, means any other Person controlling, controlled by or under common control with such Person. For the purposes of this definition, “control,” when used with respect to any specified Person, means the power to vote 20% or more of the voting securities of such Person or to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided that for purposes of determining whether any Loan Asset is an Eligible Loan Asset or for purposes of Section 5.01(b)(xix) , the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common Financial Sponsor.

 

Agent ” means WFS, in its capacity as agent for the Note Purchaser, together with its successors and assigns, including any successor appointed pursuant to Article IX .

 

Agented Note ” means any Loan Asset (i) originated as a part of a syndicated loan transaction that has been closed (without regard to any contemporaneous or subsequent

 

3



 

syndication of such Loan Asset) prior to such Loan Asset becoming part of the Collateral Portfolio and (ii) with respect to which, upon an assignment of the note under the Purchase and Sale Agreements to the Borrower, the Borrower, as assignee of the note, will have all of the rights but none of the obligations of the Transferor with respect to such note and the Underlying Collateral.

 

Agreement ” means this Amended and Restated Sale and Servicing Agreement, as the same may be amended, restated, supplemented and/or otherwise modified from time to time hereafter.

 

Applicable Law ” means for any Person all existing and future laws, rules, regulations (including proposed, temporary and final income tax regulations), statutes, treaties, codes, ordinances, permits, certificates, orders, licenses of and interpretations by any Governmental Authority which are applicable to such Person (including, without limitation, predatory lending laws, usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Federal Reserve Board’s Regulations “B” and “Z”, the Servicemembers Civil Relief Act of 2003 and state adaptations of the National Consumer Act and of the Uniform Consumer Credit Code and all other consumer credit laws and equal credit opportunity and disclosure laws) and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi-judicial tribunal or agency of competent jurisdiction.

 

Applicable Percentage ” means (a) with respect to any First Lien Loan Asset, 65%, (b) with respect to any First Lien Last Out Loan Asset, 55%, (c) with respect to any Second Lien Loan Asset, 35%, (d) with respect to any Subordinated Loan Asset, 30%.

 

Applicable Spread ” means, for any date of determination, the percentage set forth in the table below corresponding to the Ares Rating then in effect on such date. In the event that the Yield Rate is calculated utilizing the Base Rate, the percent corresponding to the Base Rate column shall apply, and in the event that the Yield Rate is calculated utilizing LIBOR, the percent corresponding to the LIBOR column shall apply.

 

Ares Rating

(S&P/ Fitch/Moody’s)

 

Category

 

Base Rate

 

LIBOR

 

Greater than BBB/BBB/Baa2

 

1.25

%

2.25

%

Equal to BBB/BBB/Baa2

 

1.75

%

2.75

%

Equal to BBB-/BBB-/Baa3

 

2.25

%

3.25

%

Less than BBB-/BBB-/Baa3

 

2.75

%

3.75

%

 

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For purposes of the foregoing, (i) if any of S&P, Fitch or Moody’s shall not have in effect an Ares Rating for Ares (other than by reason of the circumstances referred to in the penultimate sentence of this definition) or if Ares shall have voluntarily elected to terminate its arrangement with any rating agency for the ongoing rating of itself, then such rating agency shall be deemed to have established the lowest Ares Rating; (ii) if the Ares Ratings established or deemed to have been established by S&P, Fitch and Moody’s shall fall within different Categories (such term, as used in this definition, shall have the meaning set forth in the above chart), the Applicable Spread shall be based on the lower of the two highest ratings unless, at such time, only two of the applicable rating agencies shall have in effect an Ares Rating for Ares ((x) without giving effect to any deemed rating pursuant to clause (i)  and (y) other than by reason of the circumstances referred to in the penultimate sentence of this definition) and one of the two ratings is two or more Categories lower than the other, in which case the Applicable Spread shall be determined by reference to the Category next above that of the lower of the two Ares Ratings; and (iii) if the Ares Ratings established or deemed to have been established by S&P, Fitch and Moody’s shall be changed (other than as a result of a change in the rating system of S&P, Fitch or Moody’s), such change shall be effective as of the date on which it is first announced by the applicable rating agency.  Each change in the Applicable Spread shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change.  If the rating system of S&P, Fitch or Moody’s shall change, or if any such rating agency shall cease to be in the business of rating corporate debt obligations, Ares (1) may, to the extent that only one of the rating agencies rating’s system has changed or has ceased to be in the business of rating corporate debt obligations, or (2) shall, to the extent that more than one of the rating agency’s rating’s systems has changed or has ceased to be in the business of rating corporate debt obligations, negotiate with the Agent in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Spread shall be determined by reference to the rating most recently in effect prior to such change or cessation; provided that if Ares shall not elect to negotiate with the Agent to amend this definition pursuant to clause (1)  of the foregoing, the affected rating agency shall be deemed to have established the lowest Ares Rating.  If any Ares Rating is on-watch, such on-watch status will be disregarded for purposes of determining the Applicable Spread.

 

Approval Notice ” means, with respect to any Eligible Loan Asset, the written notice, in substantially the form attached hereto as Exhibit A , evidencing the approval by the Agent, in its sole discretion, of the conveyance of such Eligible Loan Asset by the Transferor to the Equityholder pursuant to the terms of the First Tier Purchase and Sale Agreement and by the Equityholder to the Borrower pursuant to the terms of the Second Tier Purchase and Sale Agreement and the Assignments by which the Transferor effects such conveyance.

 

Approved Valuation Firm ” shall mean each of (i) Houlihan Lokey Howard & Zukin, (ii) Lincoln International LLC (f/k/a Lincoln Partners LLC), (iii) Duff & Phelps Corp. and (iv) Valuation Research Corporation, and any other nationally recognized valuation firm approved by the Agent in its sole reasonable discretion.

 

Ares ” means Ares Capital Corporation.

 

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Ares LIBOR Rate ”  means, with respect to any Loan Asset, the definition of “LIBOR Rate” or any comparable definition in the Loan Agreement for each such Loan Asset, and in any case that “LIBOR Rate” or such comparable definition is not defined in such Loan Agreement, the rate per annum appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, as the rate for Dollar deposits with a one-month, a two-month or a three-month maturity, as applicable, as and when determined in accordance with the applicable Loan Agreement.

 

Ares Prime Rate ” means, with respect to any Loan Asset, the definition of “Prime Rate” or any comparable definition in the Loan Agreement for each such Loan Asset, and in any case that “Prime Rate” or such comparable definition is not defined in such Loan Agreement, the rate designated by certain reference lenders in the applicable Loan Agreement from time to time as its prime rate in the United States, such rate to change as and when the designated rate changes; provided that the Ares Prime Rate is not intended to be lowest rate of interest charged by Ares in connection with extensions of credit to debtors.

 

Ares Rating ” means, with respect to Ares, (a) in the case of S&P, Ares’s long term counterparty rating, (b) in the case of Fitch, Ares’s long-term issuer default rating and (c) in the case of Moody’s, Ares’s issuer rating.

 

Asset Coverage Ratio ” means the ratio, determined on a consolidated basis, without duplication, in accordance with GAAP, of (a) the fair market value of the total assets of Ares and its Subsidiaries as required by, and in accordance with, the 1940 Act and any orders of the Securities and Exchange Commission issued to Ares, to be determined by the Board of Directors of Ares and reviewed by its auditors, less all liabilities (other than Indebtedness, including Indebtedness hereunder) of Ares and its Subsidiaries, to (b) the aggregate amount of Indebtedness of Ares and its Subsidiaries.

 

Assigned Documents ” has the meaning assigned to that term in Section 2.12 .

 

Assigned Value ” means, with respect to each Loan Asset, as of any date of determination and expressed as a percentage of the principal balance of such Loan Asset (exclusive of Accreted Interest), the Advance Date Assigned Value of such Loan Asset, subject to the following terms (it being understood that, as of the Restatement Date, the “Assigned Value” of each of the Original Loan Assets shall be the value set forth as the “Current Assigned Value” for such Original Loan Asset in Schedule VI hereto):

 

(a)           If a Value Adjustment Event of the type described in clauses (ii) , (iv)  or (vi)  of the definition thereof with respect to such Loan Asset occurs, the Assigned Value of such Loan Asset will be zero.

 

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(b)           If a Value Adjustment Event of the type described in clauses (i) , (iii)  or (v)  of the definition thereof with respect to such Loan Asset occurs, “Assigned Value” may be amended by the Agent, in its sole reasonable discretion; provided that (a) the Assigned Value of any Priced Loan Asset shall not be less than the price quoted therefor (if any) by such pricing service as selected by the Agent and (b) the Assigned Value shall not be based upon the practices set forth in FASB Statement No. 157 or any pronouncement, statement, rule or amendment with respect to GAAP-mandated mark-to-market requirements, but rather shall be based on the amortized cost adjusted for any credit impairment of such Loan Asset.  In the event the Borrower disagrees with the Agent’s determination of the Assigned Value of a Loan Asset, the Borrower may (at its expense) retain any Approved Valuation Firm to value such Loan Asset and if the value determined by such firm is greater than the Agent’s determination of the Assigned Value, such firm’s valuation shall become the Assigned Value of such Loan Asset; provided that the Assigned Value of such Loan Asset shall be the value assigned by the Agent until such firm has determined its value.  The value determined by such firm shall be based on the amortized cost adjusted for any credit impairment of such Loan Asset.  The Assigned Value of any Loan Asset may be increased at the sole reasonable discretion of the Agent upon improvement in the Net Leverage Ratio or the Interest Coverage Ratio of such Loan Asset, as the case may be, as part of a Value Adjustment Event; provided that such Assigned Value may not increase above the Advance Date Assigned Value. The Agent shall promptly notify the Servicer of any change effected by the Agent of the Assigned Value of any Loan Asset.

 

Assignment of Mortgage ” means an assignment of the Mortgage, notice of transfer or equivalent instrument in recordable form sufficient under the laws of the jurisdiction wherein the related mortgaged property is located to effect the assignment of the Mortgage to the Trustee, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering the Loan Assets secured by mortgaged properties located in the same jurisdiction, if permitted by Applicable Law, substantially in the form of Exhibit B .

 

Assignments ” means the First Tier Loan Assignment and the Second Tier Loan Assignment.

 

Attached Equity ” means, with respect to any Loan Asset, any stock, partnership or membership interest, beneficial interest or other equity security, warrant, option, or any right, including, without limitation, any registration right, with respect to the foregoing received by the Transferor in connection with the origination or acquisition of such Loan Asset.

 

Available Collections ” means, with respect to any Loan Asset, all Principal Collections, all Interest Collections, all proceeds of any sale or disposition with respect to such Loan Asset, cash proceeds or other funds received by the Borrower or the Servicer with respect to any Underlying Collateral (including from any guarantors), all other amounts on deposit in the Collection Account from time to time, and all proceeds of Permitted Investments with respect to the Controlled Accounts; provided that, for the avoidance of doubt, “Available Collections” shall not include amounts on deposit in the Unfunded Exposure Account which do not represent proceeds of Permitted Investments.

 

Average Life ” means, for any Loan Asset, as of any date of determination, the number determined by multiplying the amount of each Scheduled Payment of principal to be

 

7



 

paid after such date of determination by the number of years (rounded to the nearest hundredth) from such date of determination until such Scheduled Payment of principal is due.

 

Bank ” means U.S. Bank, in its capacity as the “Bank” pursuant to each of the Collection Account Agreement and the Unfunded Exposure Account Agreement.

 

Bankruptcy Code ” means Title 11, United States Code, 11 U.S.C. §§ 101 et   seq ., as amended from time to time.

 

Bankruptcy Event ” shall be deemed to have occurred with respect to a Person if either:

 

(i)            a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up, or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or all or substantially all of its assets under any Bankruptcy Laws, or any similar action with respect to such Person, in each case, under any law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of 60 consecutive days; or an order for relief in respect of such Person shall be entered in an involuntary case under the federal bankruptcy laws or other similar laws now or hereafter in effect; or

 

(ii)           such Person shall commence a voluntary case or other proceeding under any Bankruptcy Laws now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for such Person or all or substantially all of its assets under any Bankruptcy Laws, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due, or, if a corporation or similar entity, its board of directors or members shall vote to implement any of the foregoing.

 

Bankruptcy Laws ” means the Bankruptcy Code and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, or similar debtor relief laws from time to time in effect affecting the rights of creditors generally.

 

Bankruptcy Proceeding ” means a n y case, action or proceeding before any court or other Governmental Authority relating to any Bankruptcy Event.

 

Base Rate ” means, on any date, a fluctuating per annum interest rate equal to the higher of (a) the Prime Rate or (b) the Federal Funds Rate plus 0.5%.

 

Benefit Plan ” means any “employee pension benefit plan” as defined in Section 3(2) of ERISA in respect of which the Borrower or any ERISA Affiliate of the Borrower is, or at any time during the preceding six years was, an “employer” as defined in Section 3(5) of ERISA.

 

Borrower ” has the meaning assigned to that term in the preamble hereto.

 

8



 

Borrowing Base ” means, as of any date of determination, an amount equal to the lesser of:

 

(a)           the aggregate sum of (i) for each Eligible Loan Asset as of such date, the aggregate sum of the products of (A) the Applicable Percentage for each such Eligible Loan Asset as of such date and (B) the aggregate Adjusted Borrowing Value of each such Eligible Loan Asset as of such date, plus (ii) the amount on deposit in the Principal Collection Account as of such date minus (iii) the Unfunded Exposure Equity Shortfall; or

 

(b)           (i) the aggregate Adjusted Borrowing Value of all Eligible Loan Assets as of such date minus (ii) the Large Obligor Exposure Amount, plus (iii) the amount on deposit in the Principal Collection Account as of such date minus (iv) the Unfunded Exposure Equity Shortfall; or

 

(c)           the Maximum Facility Amount minus the Unfunded Exposure Amount;

 

provided that, for the avoidance of doubt, any Loan Asset which at any time is no longer an Eligible Loan Asset shall not be included in the calculation of “Borrowing Base.”

 

Borrowing Base Certificate ” means a certificate setting forth the calculation of the Borrowing Base as of the applicable date of determination substantially in the form of Exhibit C hereto, prepared by the Servicer.

 

Borrowing Base Deficiency ” means, as of any date of determination, the extent to which the aggregate Advances Outstanding on such date exceeds the Borrowing Base.

 

Breakage Fee ” means, for Advances which are repaid (in whole or in part) on any date other than a Payment Date, the breakage costs, if any, related to such repayment, it hereby being understood that the amount of any loss, costs or expense payable by the Borrower to the Note Purchaser as Breakage Fee shall be determined in the Note Purchaser’s reasonable discretion based upon the assumption that the Note Purchaser funded its loan commitment in the London Interbank Eurodollar market and using any reasonable attribution or averaging methods which the Note Purchaser deems appropriate and practical.

 

Business Day ” means a day of the year other than (i) Saturday or a Sunday or (ii) any other day on which commercial banks in New York, New York or the city in which the offices of the Trustee are authorized or required by applicable law, regulation or executive order to close; provided , that, if any determination of a Business Day shall relate to an Advance bearing interest at LIBOR, the term “Business Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.  For avoidance of doubt, if the offices of the Trustee are authorized by applicable law, regulation or executive order to close but remain open, such day shall not be a “Business Day”.

 

Capital Lease Obligations ” means, with respect to any entity, the obligations of such entity to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such entity under

 

9



 

GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

Change of Control ” shall be deemed to have occurred if any of the following occur:

 

(a)           the Management Agreement shall fail to be in full force and effect;

 

(b)           the creation or imposition of any Lien on any limited liability company membership interest in the Borrower (other than pursuant to the Pledge Agreement);

 

(c)           the failure by the Transferor to own 100% of the limited liability company membership interests in the Equityholder;

 

(d)           the failure by the Equityholder to own 100% of the limited liability company membership interests in the Borrower; or

 

(e)           the dissolution, termination or liquidation in whole or in part, transfer or other disposition, in each case, of all or substantially all of the assets of, Ares.

 

Clearing Agency ” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act.

 

Closing Date ” means November 3, 2004.

 

Code ” means the Internal Revenue Code of 1986, as amended.

 

Collateral Custodian ” means U.S. Bank, not in its individual capacity, but solely as collateral custodian pursuant to the terms of this Agreement.

 

Collateral Custodian Expenses ” means the custodial expenses set forth in the Trustee and Collateral Custodian Fee Letter and any other accrued and unpaid fees, expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower or the Servicer to the Collateral Custodian under the Transaction Documents.

 

Collateral Custodian Fees ” means the custodial fees set forth in the Trustee and Collateral Custodian Fee Letter, as such fee letter may be amended, restated, supplemented and/or otherwise modified from time to time.

 

Collateral Custodian Termination Notice ” has the meaning assigned to that term in Section 12.05 .

 

Collateral Portfolio ” means all right, title, and interest (whether now owned or hereafter acquired or arising, and wherever located) of the Borrower in the property identified below in clauses (i)  through (iv)  and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit

 

10



 

accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions, or other property consisting of, arising out of, or related to any of the following (in each case excluding the Retained Interest and the Excluded Amounts):

 

(i)            the Loan Assets, and all monies due or to become due in payment under such Loan Assets on and after the related Cut-Off Date, including, but not limited to, all Available Collections, but excluding any related Attached Equity;

 

(ii)           the Portfolio Assets with respect to the Loan Assets referred to in clause (i) ;

 

(iii)          the Controlled Accounts and all Permitted Investments purchased with funds on deposit in the Controlled Accounts; and

 

(iv)          all income and Proceeds of the foregoing.

 

Collection Account ” means a trust account (account number 787456-200 at the Bank) in the name of the Borrower for the benefit of and under the sole dominion and control of the Trustee for the benefit of the Secured Parties; provided , that the funds deposited therein (including any interest and earnings thereon) from time to time shall constitute the property and assets of the Borrower, and the Borrower shall be solely liable for any Taxes payable with respect to the Collection Account.

 

Collection Account Agreement ” means that certain Amended and Restated Securities Account Control Agreement, dated the Closing Date and amended and restated as of the Restatement Date, among the Borrower, the Servicer, the Bank, the Agent and the Trustee, which agreement relates to the Collection Account, as such agreement may from time to time be amended, supplemented or otherwise modified in accordance with the terms thereof.

 

Collection Date ” means the date on which the aggregate outstanding principal amount of the Advances have been repaid in full and all Yield and Fees and all other Obligations have been paid in full, and the Borrower shall have no further right to request any additional Advances.

 

Commitment Percentage ” has the meaning assigned to that term in Section 11.04(b) .

 

Concentration Account ”:  means the account maintained at the Concentration Account Bank, subject to the Intercreditor Agreement, named “Ares Capital CP Funding LLC Concentration Account”, with the account number 787456-700.

 

Concentration Account Bank ”: means U.S. Bank National Association, a national banking association.

 

Controlled Accounts ” means the Collection Account and the Unfunded Exposure Account.

 

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Credit Policy ” means the written credit policies and procedures manual of the Transferor provided to the Agent on the Closing Date, as such credit policies and procedures manual may be as amended or supplemented from time to time in accordance with this Agreement.

 

Cut-Off Date ” means, with respect to each Loan Asset, the date such Loan Asset is Pledged hereunder. For the avoidance of doubt, the Cut-Off Date any Loan Assets held by the Borrower prior to the Restatement Date shall be the “Cut-Off Date” as defined in the Original Agreement.

 

Default Funding Rate ” means a floating interest rate per annum equal to 5.0% plus LIBOR; provided that (i) if the Note Purchaser shall have notified the Agent that a Eurodollar Disruption Event has occurred, the Default Funding Rate shall be equal to the Base Rate plus 5.0% until the Note Purchaser shall have notified the Agent that such Eurodollar Disruption Event has ceased, at which time the Default Funding Rate shall again be equal to LIBOR for such date plus 5.0%.

 

Delayed Draw Loan Asset ” means a Loan Asset that is fully committed on the initial funding date of such Loan Asset and is required to be fully funded in one or more installments on draw dates to occur within one year of the initial funding of such Loan Asset but which, once all such installments have been made, has the characteristics of a Term Loan Asset.

 

Determination Date ” means the last day of each calendar month.

 

Disbursement Request ” means a disbursement request from the Borrower to the Agent and the Trustee in the form attached hereto as Exhibit D in connection with a disbursement request from the Unfunded Exposure Account in accordance with Section 2.04(d)  or a disbursement request from the Principal Collection Account in accordance with Section 2.21 , as applicable.

 

Disclosed Matters ” means the actions, suits and proceedings disclosed or referenced in Schedule VII ; provided that such matters to the extent relating to Allied Capital Corporation and its Subsidiaries or the Acquisition (set forth on the “pro forma schedule” to Schedule VII ) may be updated on or prior to the date of the Acquisition with the written consent of the Agent.

 

EBITDA ” means, with respect to any period and any Loan Asset, the meaning of “EBITDA”, “Adjusted EBITDA” or any comparable definition in the Loan Agreement for each such Loan Asset, and in any case that “EBITDA”, “Adjusted EBITDA” or such comparable definition is not defined in such Loan Agreement, an amount, for the principal obligor on such Loan Asset and any of its parents or Subsidiaries that are obligated pursuant to the Loan Agreement for such Loan Asset (determined on a consolidated basis without duplication in accordance with GAAP) equal to earnings from continuing operations for such period plus interest expense, income taxes and unallocated depreciation and amortization for such period (to the extent deducted in determining earnings from continuing operations for such period), and any other item the Borrower and the Agent mutually deem to be appropriate.

 

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Eligible Bid ” means a bid made in good faith (and acceptable as a valid bid in the Agent’s reasonable discretion) by a bidder for all or any portion of the Collateral Portfolio in connection with a sale of the Collateral Portfolio in whole or in part pursuant to Section 7.02(i) .

 

Eligible Loan Asset ” means, at any time, a Loan Asset in respect of which each of the representations and warranties contained in Section 4.02 and Schedule III hereto is true and correct.

 

Eligible Repurchase Obligations ” means repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States, in either case entered into with a depository institution or trust company (acting as principal) described in clause (iii)(b)  of the definition of Permitted Investments.

 

Environmental Laws ” means any and all foreign, federal, state and local laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations (with the force of law) and orders of courts or Governmental Authorities, relating to the protection of human health or the environment, including, but not limited to, requirements pertaining to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing, permitting, investigation or remediation of Hazardous Materials.  Environmental Laws include, without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq .), the Hazardous Material Transportation Act (49 U.S.C. § 331 et seq .), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq .), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq .), the Safe Drinking Water Act (42 U.S.C. § 300, et seq .), the Environmental Protection Agency’s regulations relating to underground storage tanks (40 C.F.R. Parts 280 and 281), and the Occupational Safety and Health Act (29 U.S.C. § 651 et seq .), and the rules and regulations thereunder, each as amended or supplemented from time to time.

 

Equity Security ” means (i) any equity security or any other security that is not eligible for purchase by the Borrower as a Loan Asset, (ii) any security purchased as part of a “unit” with a Loan Asset and that itself is not eligible for purchase by the Borrower as a Loan Asset, and (iii) any obligation that, at the time of commitment to acquire such obligation, was eligible for purchase by the Borrower as a Loan Asset but that, as of any subsequent date of determination, no longer is eligible for purchase by the Borrower as a Loan Asset, for so long as such obligation fails to satisfy such requirements.

 

Equityholder ” means Ares Capital CP Funding Holdings LLC, a Delaware limited liability company, which owns 100% of the equity interests in the Borrower.

 

ERISA ” means the United States Employee Retirement Income Security Act of 1974, as amended from time to time.

 

ERISA Affiliate ” means (a) any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower, (b) a trade or business (whether or not incorporated) under common control (within

 

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the meaning of Section 414(c) of the Code) with the Borrower, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Borrower, any corporation described in clause (a)  above or any trade or business described in clause (b)  above.

 

Eurodollar Disruption Event ” means the occurrence of any of the following: (a) the Note Purchaser shall have notified the Agent of a determination by the Note Purchaser or any of its assignees or participants that it would be contrary to law or to the directive of any central bank or other Governmental Authority (whether or not having the force of law) to obtain United States dollars in the London interbank market to fund any Advance, (b) the Note Purchaser shall have notified the Agent of the inability, for any reason, of the Note Purchaser or any of its assignees or participants to determine LIBOR, (c) the Note Purchaser shall have notified the Agent of a determination by the Note Purchaser or any of its assignees or participants that the rate at which deposits of United States dollars are being offered to the Note Purchaser or any of its assignees or participants in the London interbank market does not accurately reflect the cost to the Note Purchaser or such assignee or such participant of making, funding or maintaining any Advance or (d) the Note Purchaser shall have notified the Agent of the inability of the Note Purchaser or any of its assignees or participants to obtain United States dollars in the London interbank market to make, fund or maintain any Advance.

 

Event of Default ” has the meaning assigned to that term in Section 7.01 .

 

Excepted Persons ” has the meaning assigned to that term in Section 11.13(a) .

 

Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

 

Excluded Amounts ” means (a) any amount received in the Collection Account with respect to any Loan Asset included as part of the Collateral Portfolio, which amount is attributable to the payment of any Tax, fee or other charge imposed by any Governmental Authority on such Loan Asset or on any Underlying Collateral and (b) any amount received in the Collection Account or other Controlled Account representing (i) any amount representing a reimbursement of insurance premiums, (ii) any escrows relating to Taxes, insurance and other amounts in connection with Loan Assets which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under a Loan Agreement, (iii) any amount received in the Collection Account with respect to any Loan Asset retransferred or substituted for upon the occurrence of a Warranty Event or that is otherwise replaced by a Substitute Eligible Loan Asset, or that is otherwise sold or transferred by the Borrower pursuant to Section 2.07 , to the extent such amount is attributable to a time after the effective date of such replacement or sale and (iv) any amounts paid in respect of Attached Equity.

 

Excluded Taxes ” has the meaning assigned to that term in Section 2.11(a) .

 

Exposure Amount ” means, as of any date of determination, with respect to any Delayed Draw Loan Asset or Revolving Loan Asset, the excess, if any, of (i) the maximum commitment of the Borrower under the terms of the applicable Loan Agreement to make advances (and, for the avoidance of doubt, the Borrower’s commitment in respect of a Loan Asset as to which the commitment to make additional advances has been terminated shall be

 

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zero) over (ii) the outstanding principal balance of such Loan Asset on such date of determination.

 

Exposure Amount Shortfall ” has the meaning assigned to that term in Section 2.02(f) .

 

Facility Maturity Date ” means the earliest to occur of (i) the Stated Maturity Date, (ii) the date of the declaration, or automatic occurrence, of the Facility Maturity Date pursuant to Section 7.01 , (iii) the Collection Date and (iv) the occurrence of the termination of this Agreement pursuant to Section 2.18 hereof.

 

FDIC ” means the Federal Deposit Insurance Corporation, and any successor thereto.

 

Federal Funds Rate ” means, for any period, a fluctuating interest per annum rate equal, for each day during such period, to the weighted average of the overnight federal funds rates as in Federal Reserve Board Statistical Release H.15(519) or any successor or substitute publication selected by the Agent (or, if such day is not a Business Day, for the next preceding Business Day), or, if for any reason such rate is not available on any day, the rate determined, in the sole discretion of the Agent, to be the rate at which overnight federal funds are being offered in the national federal funds market at 9:00 a.m. on such day.

 

Fee Letter ” has the meaning assigned to that term in Section 2.09 .

 

Fees ” has the meaning assigned to that term in Section 2.09 .

 

Financial Asset ” has the meaning specified in Section 8-102(a)(9) of the UCC.

 

Financial Sponsor ” means any Person, including any Subsidiary of such Person, whose principal business activity is acquiring, holding, and selling investments (including controlling interests) in otherwise unrelated companies that each are distinct legal entities with separate management, books and records and bank accounts, whose operations are not integrated with one another and whose financial condition and creditworthiness are independent of the other companies so owned by such Person.

 

First Lien Last Out Loan Asset ” means any Loan Asset that (i) is secured by a valid and perfected first priority Lien on all of the Obligor’s assets constituting Underlying Collateral for the Loan Asset, subject to any “permitted liens” as defined in the applicable Loan Agreement for such Loan Asset or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary, (ii) has a Loan-to-Value Ratio not greater than 65%, and (iii) is not by its terms (and is not expressly permitted by its terms to become) subordinate in right of payment to any other obligation for borrowed money of the Obligor of such Loan Asset, other than with respect to the liquidation of such Obligor or such Underlying Collateral.

 

First Lien Loan Asset ” means any Loan Asset that (i) is secured by a valid and perfected first priority Lien on all of the Obligor’s assets constituting Underlying Collateral for the Loan Asset, subject to any “permitted liens” as defined in the applicable Loan Agreement for

 

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such Loan Asset or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary, (ii) has a Loan-to-Value Ratio not greater than 60%, and (iii) provides that the payment obligation of the Obligor on such Loan Asset is either senior to, or pari passu with, all other Indebtedness of such Obligor.

 

First Tier Loan Assignment ” has the meaning set forth in the First Tier Purchase and Sale Agreement.

 

First Tier Purchase and Sale Agreement ” means that certain Amended and Restated Purchase and Sale Agreement, dated as of the Closing Date and amended and restated as of the Restatement Date, between the Transferor, as the seller, and the Equityholder, as the purchaser, as amended, modified, waived, supplemented, restated or replaced from time to time.

 

Fitch ” means Fitch, Inc. or any successor thereto.

 

Fixed Rate Loan Asset ” means a Loan Asset other than a Floating Rate Loan Asset.

 

Floating Rate Loan Asset ” means a Loan Asset under which the interest rate payable by the Obligor thereof is based on the Ares Prime Rate or Ares LIBOR Rate, plus some specified interest percentage in addition thereto, and which provides that such interest rate will reset immediately upon any change in the related Ares Prime Rate or Ares LIBOR Rate.

 

GAAP ” means generally accepted accounting principles as in effect from time to time in the United States.

 

Governmental Authority ” means, with respect to any Person, any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person.

 

Hazardous Materials ” means all materials subject to any Environmental Law, including, without limitation, materials listed in 49 C.F.R. § 172.010, materials defined as hazardous pursuant to § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, flammable, explosive or radioactive materials, hazardous or toxic wastes or substances, lead-based materials, petroleum or petroleum distillates or asbestos or material containing asbestos, polychlorinated biphenyls, radon gas, urea formaldehyde and any substances classified as being “in inventory”, “usable work in process” or similar classification that would, if classified as unusable, be included in the foregoing definition.

 

Highest Required Investment Category ” means (i)  with respect to ratings assigned by Moody’s, “Aa2” or “P-1” for one month instruments, “Aa2” and “P-1” for three month instruments, “Aa3” and “P-1” for six month instruments and “Aa2” and “P-1” for instruments with a term in excess of six months, (ii) with respect to rating assigned by S&P, “A-1” for short-term instruments and “A” for long-term instruments, and (iii) with respect to rating assigned by Fitch (if such investment is rated by Fitch), “F-1+” for short-term instruments and “AAA” for long-term instruments.

 

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Indebtedness ” means:

 

(i)                                      with respect to any Obligor under any Loan Asset, for the purposes of the definition of the Interest Coverage Ratio and the Net Leverage Ratio, the meaning of “Indebtedness” or any comparable definition in the Loan Agreement for each such Loan Asset, and in any case that “Indebtedness” or such comparable definition is not defined in such Loan Agreement, without duplication, (a) all obligations of such entity for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such entity evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such entity under conditional sale or other title retention agreements relating to property acquired by such entity, (d) all obligations of such entity in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (e) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such entity, whether or not the indebtedness secured thereby has been assumed, (f) all guarantees by such entity of indebtedness of others, (g) all Capital Lease Obligations of such entity, (h) all obligations, contingent or otherwise, of such entity as an account party in respect of letters of credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such entity in respect of bankers’ acceptances; and

 

(ii)                                   for all other purposes, with respect to any Person at any date, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices) or that is evidenced by a note, bond, debenture or similar instrument or other evidence of indebtedness customary for indebtedness of that type, (b) all obligations of such Person under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (c) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (e) all indebtedness, obligations or liabilities of that Person in respect of derivatives, and (f) all obligations under direct or indirect guaranties in respect of obligations (contingent or otherwise) to purchase or otherwise acquire, or to otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kind referred to in clauses (a)  through (e)  of this clause (ii) .

 

Indemnified Amounts ” has the meaning assigned to that term in Section 8.01 .

 

Indemnified Party ” has the meaning assigned to that term in Section 8.01 .

 

Indemnifying Party ” has the meaning assigned to that term in Section 8.03 .

 

Independent Director ” means a natural person who, (A) for the five-year period prior to his or her appointment as Independent Director, has not been, and during the continuation of his or her service as Independent Director is not: (i) an employee, director, stockholder, member, manager, partner or officer of the Borrower, the Equityholder or any of their respective Affiliates (other than his or her service as an Independent Director of the Borrower or other Affiliates that are structured to be “bankruptcy remote”); (ii) a customer or

 

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supplier of the Borrower, the Equityholder or any of their Affiliates (other than his or her service as an Independent Director of the Borrower); or (iii) any member of the immediate family of a person described in (i) or (ii), and (B) has, (i) prior experience as an Independent Director for a corporation or limited liability company whose charter documents required the unanimous consent of all Independent Directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (ii) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.

 

Indorsement ” has the meaning specified in Section 8-102(a)(11) of the UCC, and “ Indorsed ” has a corresponding meaning.

 

Initial Advance ” means the first Advance made pursuant to Article II .

 

Initial Extension ” has the meaning assigned to that term in Section 2.19 .

 

Initial Payment Date ” means the 15 th  day of April 2010 (or if such day is not a Business Day, the next succeeding Business Day).

 

Instrument ” has the meaning specified in Section 9-102(a)(47) of the UCC.

 

Insurance Policy ” means, with respect to any Loan Asset, an insurance policy covering liability and physical damage to, or loss of, the Underlying Collateral.

 

Insurance Proceeds ” means any amounts received on or with respect to a Loan Asset under any Insurance Policy or with respect to any condemnation proceeding or award in lieu of condemnation which is neither required to be used to restore, improve or repair the related real estate nor required to be paid to the Obligor under the Loan Agreement.

 

Intercreditor Agreement ” means that certain Amended and Restated Intercreditor and Concentration Account Agreement, dated as of December 28, 2005, by and among the Servicer, the Trustee, the Concentration Account Bank, JPMorgan, the Note Purchaser and each securitization agent that from time to time executes a joinder thereto, as amended, modified, waived, supplemented or restated from time to time.

 

Interest ” means, with respect to any period and any Loan Asset, for the Obligor on such Loan Asset and any of its parents or Subsidiaries that are obligated under the Loan Agreement for such Loan Asset (determined on a consolidated basis without duplication in accordance with GAAP), the meaning of “Interest” or any comparable definition in the Loan Agreement for each such Loan Asset and in any case that “Interest” or such comparable definition is not defined in such Loan Agreement, all interest in respect of Indebtedness (including the interest component of any payments in respect of Capital Lease Obligations) accrued or capitalized during such period (whether or not actually paid during such period).

 

Interest Collection Account ” means a sub-account (account number 787456-201 at the Bank) of the Collection Account into which Interest Collections shall be segregated.

 

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Interest Collections ” means, (i) with respect to any Loan Asset, all payments and collections attributable to interest on such Loan Asset, including, without limitation, all scheduled payments of interest and payments of interest relating to principal prepayments, all guaranty payments attributable to interest and proceeds of any liquidations, sales, dispositions or securitizations attributable to interest on such Loan Asset and (ii) amendment fees, late fees, waiver fees or other amounts received in respect of Loan Assets.

 

Interest Coverage Ratio ” means, with respect to any Loan Asset for any Relevant Test Period, the meaning of “Interest Coverage Ratio” or any comparable definition in the Loan Agreement for each such Loan Asset, and in any case that “Interest Coverage Ratio” or such comparable definition is not defined in such Loan Agreement, the ratio of (a) EBITDA to (b) Interest.

 

Joinder Supplement ” means an agreement among the Borrower, a Note Purchaser and the Agent in the form of Exhibit E to this Agreement (appropriately completed) delivered in connection with a Person becoming a Note Purchaser hereunder after the Restatement Date.

 

JPMorgan ” has the meaning specified in the definition of “JPMorgan Loan Documents”.

 

JPMorgan Loan Documents ” means (i) that certain Amended and Restated Senior Secured Revolving Credit Agreement dated as of January 22, 2010 between Ares, the lenders party thereto and JPMorgan Chase Bank, N.A. (“ JPMorgan ”), (ii) that certain Guarantee and Security Agreement, dated as of December 28, 2005, between Ares and JPMorgan and (iii) that certain Guarantee and Security Agreement Confirmation, dated as of January 22, 2010, between Ares and JPMorgan, each as amended, modified, waived, supplemented or restated from time to time.

 

Large Obligor Exposure Amount ” means, as of any date of determination, an amount equal to the sum of the Adjusted Borrowing Values of all Eligible Loan Assets attributable to the three (3) Obligors having the largest Obligor concentration; such Obligor concentrations to be determined by summing, for each Obligor, the Adjusted Borrowing Values for all Eligible Loan Assets of such Obligor on such date of determination.

 

LIBOR ” means, for any day during the Remittance Period, with respect to any Advance (or portion thereof) (a) the rate per annum appearing on Reuters Screen LIBOR01 Page (or any successor or substitute page) as the London interbank offered rate for deposits in dollars at approximately 11:00 a.m., London time, for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, for a one-month maturity; and (b) if no rate specified in clause (a)  of this definition so appears on Reuters Screen LIBOR01 Page (or any successor or substitute page), the interest rate per annum at which dollar deposits of $5,000,000 and for a one-month maturity are offered by the principal London office of Wachovia in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, for such day.

 

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Lien ” means any mortgage or deed of trust, pledge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, claim, preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale, lease or other title retention agreement, sale subject to a repurchase obligation, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing) or the filing of or agreement to give any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction.

 

Lien Release Dividend ” has the meaning assigned to that term in Section 2.07(d) .

 

Lien Release Dividend Date ” means the date specified by the Borrower, which date may be any Business Day, provided written notice is given in accordance with Section 2.07(d) .

 

Loan Agreement ” means the loan agreement, credit agreement or other agreement pursuant to which a Loan Asset has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Loan Asset or of which the holders of such Loan Asset are the beneficiaries.

 

Loan Asset ” means any loan originated or acquired by the Transferor in the ordinary course of its business, which loan includes, without limitation, (i) the Required Loan Documents and Loan Asset File, and (ii) all right, title and interest of the Transferor in and to the loan and any Underlying Collateral, but excluding, in each case, the Retained Interest, any Attached Equity and Excluded Amounts and which loan was (x) acquired from the Transferor by the Borrower prior to the Restatement Date pursuant to the Original Purchase and Sale Agreement or (y) acquired by the Borrower from the Equityholder under the Second Tier Purchase and Sale Agreement and by the Equityholder from the Transferor under the First Tier Purchase and Sale Agreement and owned by the Borrower on the initial Advance Date (as set forth on the Loan Asset Schedule delivered on the initial Advance Date) or acquired by the Borrower after the initial Advance Date pursuant to the delivery of the Loan Assignments and listed on Schedule I to such Loan Assignments, which Schedule I is in the possession of Ares Capital Funding LLC and includes specific accounts, instruments or general intangibles.

 

Loan Asset Checklist ” means an electronic or hard copy, as applicable, of a checklist delivered by or on behalf of the Borrower to the Collateral Custodian, for each Loan Asset, of (a) all Required Loan Documents to be included within the respective Loan Asset File, which shall specify (i) whether such document is an original or a copy and (ii) whether such Loan Asset is a Third Party Acquired Loan Asset.

 

Loan Asset File ” means, with respect to each Loan Asset, a file containing (a) each of the documents and items as set forth on the Loan Asset Checklist with respect to such Loan Asset and (b) duly executed originals (to the extent required by the Credit Policy and the Servicing Standard) and copies of any other Records relating to such Loan Assets and Portfolio Assets pertaining thereto.

 

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Loan Asset Register ” has the meaning assigned to that term in Section 5.03(l) .

 

Loan Asset Schedule ” means the schedule of Loan Agreements evidencing Loan Assets delivered by the Borrower to the Collateral Custodian and the Agent. Each such schedule shall set forth, as to any Eligible Loan Asset to be Pledged hereunder, the applicable information specified on Schedule V , which shall also be provided to the Collateral Custodian in electronic format acceptable to the Collateral Custodian.

 

Loan Assignments ” means, collectively, the First Tier Loan Assignment (as such term is defined in the First Tier Purchase and Sale Agreement) and the Second Tier Loan Assignment (as such term is defined in the Second Tier Purchase and Sale Agreement).

 

Loan-to-Value Ratio ” means, with respect to any Loan Asset, as of any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is equal to the commitment amount as provided in the applicable Loan Agreements of such Loan Asset plus the commitment amount of any other senior or pari passu Indebtedness of the related Obligor (including, in the case of Revolving Loan Assets and Delayed Draw Loan Assets, without duplication, the maximum availability thereof) and (ii) the denominator of which is equal to the enterprise value of the Underlying Collateral securing such Loan Asset (as determined by the Transferor in accordance with the Credit Policy and the Servicing Standard unless the Agent in its reasonable discretion disagrees with such determination, in which case the Agent shall determine the enterprise value of the Underlying Collateral).  In the event the Borrower disagrees with the Agent’s determination of the enterprise value of the Underlying Collateral, the Borrower may (at its expense) retain any Approved Valuation Firm to value such Underlying Collateral, and if the value determined by such firm is greater than the Agent’s determination of the enterprise value of the Underlying Collateral, such firm’s valuation shall become the enterprise value of such Underlying Collateral; provided that the enterprise value of such Underlying Collateral shall be the value assigned by the Agent until such firm has determined its value).

 

Lyon ” has the meaning assigned to that term in the Preliminary Statement.

 

Make-Whole Premium ” means (i) to the extent the Make-Whole Premium is required to be paid pursuant to this Agreement on or prior to the date which is one year following the Restatement Date, 3.00% of the Maximum Facility Amount or the amount by which the Maximum Facility Amount is reduced, as applicable, (ii) to the extent the Make-Whole Premium is required to be paid pursuant to this Agreement on or prior to the date which is two years following the Restatement Date but after the first anniversary of the Restatement Date, 2.00% of the Maximum Facility Amount or the amount by which the Maximum Facility Amount is reduced, as applicable, and (iii) to the extent the Make-Whole Premium is required to be paid pursuant to this Agreement on or prior to the date which is three years following the Restatement Date but after the second anniversary of the Restatement Date, 1.00% of the Maximum Facility Amount or the amount by which the Maximum Facility Amount is reduced, as applicable; provided that, in the foregoing clauses (i)  through (iii) , the Make-Whole Premium shall be calculated without giving effect to the proviso in the definition of “Maximum Facility Amount”.

 

Management Agreement ” means the Investment Advisory and Management Agreement, dated as of September 30, 2004 (amended as of June 1, 2006), between Ares Capital

 

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Corporation and Ares Capital Management LLC, as further amended, restated or otherwise modified from time to time.

 

Margin Stock ” means “margin stock” as such term is defined in Regulation T, U or X of the Federal Reserve Board.

 

Material Adverse Effect ” means, with respect to any event or circumstance, a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance or properties of the Transferor, the Servicer or the Borrower, (b) the validity, enforceability or collectability of this Agreement or any other Transaction Document or the validity, enforceability or collectability of the Loan Assets generally or any material portion of the Loan Assets, (c) the rights and remedies of the Trustee, the Agent, the Note Purchaser and the Secured Parties with respect to matters arising under this Agreement or any other Transaction Document, (d) the ability of each of the Borrower and the Servicer, to perform their respective obligations under this Agreement or any other Transaction Document, or (e) the status, existence, perfection, priority or enforceability of the Trustee’s, the Agent’s or the other Secured Parties’ lien on the Collateral Portfolio.

 

Material Modification ” means any amendment or waiver of, or modification or supplement to, a Loan Agreement governing a Loan Asset executed or effected on or after the Cut-Off Date for such Loan Asset (or, solely in the case of clause (d)(ii)(y) , a change to any loan senior to a Loan Asset) which:

 

(a)                                   reduces or forgives any or all of the principal amount due under such Loan Asset;

 

(b)                                  delays or extends the required or scheduled amortization in any way that increases the Average Life of such Loan Asset; provided that the Average Life of such Loan Asset may be increased by not more than 20% from its Average Life on the related Cut-Off Date if the Net Leverage Ratio of such Loan Asset is not more than 85% of the maximum established in the Net Leverage Ratio covenant of such Loan Asset;

 

(c)                                   waives one or more interest payments, permits any interest due in cash to be deferred or capitalized and added to the principal amount of such Loan Asset (other than any deferral or capitalization already allowed by the terms of the Loan Agreement of any PIK Loan Asset), or reduces the spread or coupon with respect to such Loan Asset; provided that such spread or coupon may be reduced a maximum of one time and by not more than 20% from the spread or coupon on the related Cut-Off Date; provided further that the Interest Coverage Ratio of such Loan Asset is greater than 2.0:1 at the time of such reduction;

 

(d)                                  (i) in the case of a First Lien Loan Asset, contractually or structurally subordinates such Loan Asset by operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or the granting of Liens (other than “permitted liens” as defined in the applicable Loan Agreement for such Loan Asset or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary) on any of the Underlying Collateral securing such Loan Asset or (ii) in the case of a First Lien Last Out Loan Asset, Second Lien Loan Asset or Subordinated Loan

 

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Asset, (x) contractually or structurally subordinates such Loan Asset to any obligation (other than any loan which existed at the Cut-Off Date for such Loan Asset which is senior to such Loan Asset) by operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or the granting of Liens (other than “permitted liens” as defined in the applicable Loan Agreement for such Loan Asset or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary) on any of the Underlying Collateral securing such Loan Asset or (y) increases the commitment amount of any loan senior to such Loan Asset and the Net Leverage Ratio of such Loan Asset increases by more than 0.5x as a result of such increase;

 

(e)                                   substitutes, alters or releases the Underlying Collateral securing such Loan Asset and each such substitution, alteration or release, as determined in the sole reasonable discretion of the Agent, materially and adversely affects the value of such Loan Asset;

 

(f)                                     provides additional funds to the Obligor of such Loan Asset with the intent of keeping that Loan Asset current; or

 

(g)                                  amends, waives, forbears, supplements or otherwise modifies (i) the meaning of “Net Leverage Ratio”, “Interest Coverage Ratio” or “Permitted Liens” or any respective comparable definitions in the Loan Agreement for such Loan Asset or (ii) any term or provision of such Loan Agreement referenced in or utilized in the calculation of the “Net Leverage Ratio”, “Interest Coverage Ratio” or “Permitted Liens” or any respective comparable definitions for such Loan Asset, in either case in a manner that, in the sole reasonable judgment of the Agent, is materially adverse to the Secured Parties.

 

Maximum Facility Amount ” means initially $400,000,000, as such amount may be reduced from time to time pursuant to Section 2.18(b) ; provided that at all times when an Event of Default has occurred, the Maximum Facility Amount shall mean the aggregate Advances Outstanding at such time.

 

Moody’s ” means Moody’s Investors Service, Inc. (or its successors in interest).

 

Mortgage ” means the mortgage, deed of trust or other instrument creating a Lien on an interest in real property securing a Loan Asset, including the assignment of leases and rents related thereto.

 

Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA that is or was at any time during the current year or the preceding five years contributed to by the Borrower or any ERISA Affiliate on behalf of its employees.

 

Net Leverage Ratio ” means, with respect to any Loan Asset for any Relevant Test Period, the meaning of “Net Leverage Ratio” or any comparable definition in the Loan Agreement for each such Loan Asset, and in any case that “Net Leverage Ratio” or such comparable definition is not defined in such Loan Agreement, the ratio of (a) Indebtedness minus Unrestricted Cash to (b) EBITDA.

 

Non-Usage Fee ” has the meaning ascribed thereto in the Fee Letter.

 

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Note Purchaser ” means, collectively, Wachovia and/or any other Person to whom the Note Purchaser assigns any part of its rights and obligations under this Agreement and the other Transaction Documents in accordance with the terms of Section 11.04 .

 

Noteless Loan Asset ” means a Loan Asset with respect to which the Loan Agreements (i) do not require the Obligor to execute and deliver a promissory note to evidence the indebtedness created under such Loan Asset or (ii) require any holder of the indebtedness created under such Loan Asset to affirmatively request a promissory note from the related Obligor.

 

Notice and Request for Consent ” has the meaning assigned to that term in Section 2.07(d)(i) .

 

Notice of Borrowing ” means an irrevocable written notice of borrowing from the Borrower to the Agent in the form attached hereto as Exhibit F .

 

Notice of Reduction ” means a notice of a reduction of the Advances Outstanding or a reduction of the Maximum Facility Amount, as applicable, pursuant to Section 2.18 , in the form attached hereto as Exhibit G or Exhibit H , as applicable.

 

Obligations ” means all present and future indebtedness and other liabilities and obligations (howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, or due or to become due) of the Borrower to the Note Purchaser, the Agent, the Bank, the Trustee or the Collateral Custodian arising under this Agreement and/or any other Transaction Document and shall include, without limitation, all liability for principal of and interest on the Advances, indemnifications and other amounts due or to become due by the Borrower to the Note Purchaser, the Agent or the Trustee under this Agreement and/or any other Transaction Document, including, without limitation, any Make-Whole Premium and costs and expenses payable by the Borrower to the Note Purchaser, the Agent, the Bank, the Trustee or the Collateral Custodian, including reasonable attorneys’ fees, costs and expenses, including without limitation, interest, fees and other obligations that accrue after the commencement of an insolvency proceeding (in each case whether or not allowed as a claim in such insolvency proceeding).

 

Obligor ” means, collectively, each Person obligated to make payments under a Loan Agreement, including any guarantor thereof.

 

Officer’s Certificate ” means a certificate signed by the president, the secretary, an assistant secretary, the chief financial officer or any vice president, as an authorized officer, of any Person.

 

Opinion of Counsel ” means a written opinion of counsel, which opinion and counsel are acceptable to the Agent in its sole discretion; provided that Latham & Watkins LLP, Richards Layton & Finger, P.A. and Venable LLP shall be considered acceptable counsel for purposes of this definition.

 

Optional Sale ” has the meaning assigned to that term in Section 2.07(c) .

 

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Optional Sale Date ” means any Business Day, provided 45 days’ prior written notice is given in accordance with Section 2.07(c) .

 

Original Agreement ” has the meaning assigned to that term in the Preliminary Statement.

 

Original Loan Asset ” means each Loan Asset acquired by the Borrower prior to the Restatement Date.

 

Original Purchase and Sale Agreement ” shall mean that certain Purchase and Sale Agreement, dated as of November 3, 2004, by and between the Transferor, as the seller, and the Borrower, as the Buyer, as amended and modified prior to the Restatement Date.

 

Outstanding Balance ” means, with respect to any Loan Asset as of any date of determination, the outstanding principal balance of any advances or loans made to the related Obligor pursuant to the related Loan Agreement as of such date of determination (exclusive of any interest and Accreted Interest).

 

Payment Date ” means the 15 th  day of each of January, April, July and October or, if such day is not a Business Day, the next succeeding Business Day, commencing on the 15 th  day of April 2010; provided , that the final Payment Date shall occur on the Collection Date.

 

Payment Duties ” has the meaning assigned to that term in Section 10.02(b)(i) .

 

Pension Plans ” has the meaning assigned to that term in Section 4.01(x) .

 

Permitted Investments ” means negotiable instruments or securities or other investments that (i) except in the case of demand or time deposits, investments in money market funds and Eligible Repurchase Obligations, are represented by instruments in bearer or registered form or ownership of which is represented by book entries by a Clearing Agency or by a Federal Reserve Bank in favor of depository institutions eligible to have an account with such Federal Reserve Bank who hold such investments on behalf of their customers, (ii) as of any date of determination, mature by their terms on or prior to the Business Day preceding the next Payment Date, and (iii) evidence:

 

(a)                                   direct obligations of, and obligations fully guaranteed as to full and timely payment by, the United States (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States);

 

(b)                                  demand deposits, time deposits or certificates of deposit of depository institutions or trust companies incorporated under the laws of the United States or any state thereof and subject to supervision and examination by federal or state banking or depository institution authorities; provided, that at the time of the Borrower’s investment or contractual commitment to invest therein, the commercial paper, if any, and short-term unsecured debt obligations (other than such obligation whose rating is based on the credit of a Person other than such institution or trust company) of such depository institution or trust company shall have a credit rating from Fitch and each Rating Agency in the Highest Required Investment Category granted by Fitch and such Rating Agency;

 

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(c)                                   commercial paper, or other short term obligations, having, at the time of the Borrower’s investment or contractual commitment to invest therein, a rating in the Highest Required Investment Category granted by each Rating Agency and Fitch;

 

(d)                                  demand deposits, time deposits or certificates of deposit that are fully insured by the FDIC and either have a rating on their certificates of deposit or short-term deposits from Moody’s and S&P of “P-1” and “A-1”, respectively, and if rated by Fitch, from Fitch of “F-1+”;

 

(e)                                   notes that are payable on demand or bankers’ acceptances issued by any depository institution or trust company referred to in clause (b)  above;

 

(f)                                     investments in taxable money market funds or other regulated investment companies having, at the time of the Borrower’s investment or contractual commitment to invest therein, a rating of the Highest Required Investment Category from each Rating Agency and Fitch (if rated by Fitch);

 

(g)                                  time deposits (having maturities of not more than 90 days) by an entity the commercial paper of which has, at the time of the Borrower’s investment or contractual commitment to invest therein, a rating of the Highest Required Investment Category granted by each Rating Agency and Fitch; or

 

(h)                                  Eligible Repurchase Obligations with a rating acceptable to the Rating Agencies and Fitch, which in the case of S&P, shall be “A-1” and in the case of Fitch shall be “F-1+”.

 

The Trustee may pursuant to the direction of the Servicer or the Agent, as applicable, purchase or sell to itself or an Affiliate, as principal or agent, the Permitted Investments described above.

 

Permitted Liens ” means any of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced (a) Liens for state, municipal or other local Taxes if such Taxes shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of such Person, (b) Liens imposed by law, such as materialmen’s, warehousemen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens, arising by operation of law in the ordinary course of business for sums that are not overdue or are being contested in good faith and (c) Liens granted pursuant to or by the Transaction Documents.

 

Permitted Refinancing ” means any refinancing transaction undertaken by the Transferor, the Borrower or an Affiliate of the Transferor that is secured, directly or indirectly, by any Loan Asset currently or formerly included in the Collateral Portfolio or any portion thereof or any interest therein released from the Lien of this Agreement.

 

Permitted Securitization ” means any private or public term or conduit securitization transaction (a) undertaken by the Transferor, the Borrower or an Affiliate of the Transferor, that is secured, directly or indirectly, by any Loan Asset currently or formerly

 

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included in the Collateral Portfolio or any portion thereof or any interest therein released from the Lien of this Agreement, including, without limitation, any collateralized loan obligation or collateralized debt obligation offering or other asset securitization and (b) in the case of a term securitization in which the Transferor or an Affiliate thereof or underwriter or placement agent has agreed to purchase or place 100% of the equity and non-investment grade tranches of notes issued in such term securitization transaction.  For the avoidance of doubt, notwithstanding any agreement by the Transferor or an Affiliate to purchase or place 100% of the equity in such term securitization transaction, any such party agreeing to so purchase or place may designate other Persons as purchasers of such equity provided such party or parties remain primarily liable therefor if such designees fail to purchase or place in connection with the closing date of such term securitization and/or, after the closing of such term securitization, may transfer equity it purchases at the closing thereof.

 

Person ” means an individual, partnership, corporation (including a statutory or business trust), limited liability company, joint stock company, trust, unincorporated association, sole proprietorship, joint venture, government (or any agency or political subdivision thereof) or other entity.

 

PIK Loan Asset ” means a Loan Asset which provides for a portion of the interest that accrues thereon to be added to the principal amount of such Loan Asset for some period of the time prior to such Loan Asset requiring the current cash payment of such previously capitalized interest, which cash payment shall be treated as an Interest Collection at the time it is received.

 

Pledge ” means the pledge of any Eligible Loan Asset or other Portfolio Asset pursuant to Article II .

 

Pledge Agreement ” means that certain Pledge Agreement, dated as of the Restatement Date, between the Equityholder, as pledgor, and the Trustee, as pledgee, as such Pledge Agreement may from time to time be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

 

Portfolio Assets ” means all Loan Assets owned by the Borrower, together with all proceeds thereof and other assets or property related thereto, including all right, title and interest of the Borrower in and to:

 

(a)                                   any amounts on deposit in any cash reserve, collection, custody or lockbox accounts securing the Loan Assets;

 

(b)                                  all rights with respect to the Loan Assets to which the Transferor is entitled as lender under the applicable Loan Agreement;

 

(c)                                   the Controlled Accounts and the Concentration Account, to the extent amounts on deposit therein or credited thereto relate to the Collateral Portfolio, together with all cash and investments in each of the foregoing other than amounts earned on investments therein;

 

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(d)                                  any Underlying Collateral securing a Loan Asset and all Recoveries related thereto, all payments paid in respect thereof and all monies due, to become due and paid in respect thereof accruing after the applicable Cut-Off Date and all liquidation proceeds;

 

(e)                                   all Required Loan Documents, the Loan Asset Files related to any Loan Asset, any Records, and the documents, agreements, and instruments included in the Loan Asset Files or Records;

 

(f)                                     all Insurance Policies with respect to any Loan Asset;

 

(g)                                  all Liens, guaranties, indemnities, warranties, letters of credit, accounts, bank accounts and property subject thereto from time to time purporting to secure or support payment of any Loan Asset, together with all UCC financing statements, mortgages or similar filings signed or authorized by an Obligor relating thereto;

 

(h)                                  the Purchase and Sale Agreements (including, without limitation, rights of recovery of the Borrower against the Equityholder and the Transferor) and the assignment to the Trustee, for the benefit of the Secured Parties, of all UCC financing statements filed by the Borrower against the Equityholder and filed by the Equityholder against the Transferor under or in connection with the Purchase and Sale Agreements;

 

(i)                                      all records (including computer records) with respect to the foregoing; and

 

(j)                                      all collections, income, payments, proceeds and other benefits of each of the foregoing.

 

Priced Loan Asset ” means any Loan Asset that has an observable quote from LoanX Mark-It Partners or Loan Pricing Corporation, or from another pricing service selected by the Agent in its sole discretion.

 

Prime Rate ” means the rate announced by Wachovia from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes.  The Prime Rate is not intended to be the lowest rate of interest charged by Wachovia or any other specified financial institution in connection with extensions of credit to debtors.

 

Principal Collection Account ” means a sub-account (account number 787456-202 at the Bank) of the Collection Account into which Principal Collections shall be segregated.

 

Principal Collections ” means any deposits by the Borrower in accordance with Section 2.06(a)(i)  or Section 2.07(e)(i)  or, with respect to any Loan Asset, all amounts received which are not Interest Collections, including, without limitation, all Recoveries, all Insurance Proceeds, all scheduled payments of principal and principal prepayments and all guaranty payments and proceeds of any liquidations, sales, dispositions or securitizations, in each case, attributable to the principal of such Loan Asset; provided that, for the avoidance of doubt, “Principal Collections” shall not include amounts on deposit in the Unfunded Exposure Account or amounts withdrawn pursuant to Section 2.21 .

 

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Proceeds ” means, with respect to any Collateral Portfolio, all property that is receivable or received when such Collateral Portfolio is collected, sold, liquidated, foreclosed, exchanged, or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes all rights to payment with respect to any insurance relating to such Collateral Portfolio.

 

Purchase and Sale Agreements ” means the First Tier Purchase and Sale Agreement and the Second Tier Purchase and Sale Agreement.

 

Rating Agency ” means each of S&P, Moody’s and Fitch.

 

Records ” means all documents relating to the Loan Assets, including books, records and other information executed in connection with the origination or acquisition of the Collateral Portfolio or maintained with respect to the Collateral Portfolio and the related Obligors that the Borrower, the Transferor or the Servicer have generated, in which the Borrower, the Transferor or the Equityholder have acquired an interest pursuant to the Purchase and Sale Agreements or in which the Borrower, the Transferor or the Equityholder have otherwise obtained an interest.

 

Recoveries ” means, as of the time any Underlying Collateral with respect to any Loan Asset subject to clauses (ii)  or (iv)  of the definition of “Value Adjustment Event”, as applicable, is sold, discarded or abandoned (after a determination by the Servicer that such Underlying Collateral has little or no remaining value) or otherwise determined to be fully liquidated by the Servicer in accordance with the Credit Policy and the Servicing Standard, the proceeds from the sale of the Underlying Collateral, the proceeds of any related Insurance Policy, any other recoveries with respect to such Loan Asset, as applicable, the Underlying Collateral, and amounts representing late fees and penalties, net of any amounts received that are required under such Loan Asset, as applicable, to be refunded to the related Obligor.

 

Register ” has the meaning assigned to that term in Section 2.14 .

 

Release Date ” has the meaning set forth in Section 2.07(e) .

 

Relevant Test Period ” means, with respect to any Loan Asset, the relevant test period for the calculation of Net Leverage Ratio or Interest Coverage Ratio, as applicable, for such Loan Asset in the Loan Agreements or, if no such period is provided for therein, for Obligors delivering monthly financing statements, each period of the last 12 consecutive reported calendar months, and for Obligors delivering quarterly financing statements, each period of the last four consecutive reported fiscal quarters of the principal Obligor on such Loan Asset; provided that with respect to any Loan Asset for which the relevant test period is not provided for in the Loan Agreement, if an Obligor is a newly-formed entity as to which 12 consecutive calendar months have not yet elapsed, “Relevant Test Period” shall initially include the period from the date of formation of such Obligor to the end of the twelfth calendar month or fourth fiscal quarter (as the case may be) from the date of formation, and shall subsequently include each period of the last 12 consecutive reported calendar months or four consecutive reported fiscal quarters (as the case may be) of such Obligor.

 

Remittance Period ” means, (i) as to the Initial Payment Date, the period beginning on January 1, 2010 and ending on, and including, the Determination Date immediately

 

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preceding such Payment Date and (ii) as to any subsequent Payment Date, the period beginning on the first day after the most recently ended Remittance Period and ending on, and including, the Determination Date immediately preceding such Payment Date, or, with respect to the final Remittance Period, the Collection Date.

 

Replacement Servicer ” has the meaning assigned to that term in Section 6.01(c) .

 

Reporting Date ” means the date that is two Business Days prior to the 15 th  of each calendar month (unless in such month a Payment Date occurs, in which case two Business Days prior to such Payment Date), commencing February, 2010.

 

Required Loan Documents ” means, for each Loan Asset, originals (except as otherwise indicated) of the following documents or instruments, all as specified on the related Loan Asset Checklist:

 

(a)                                   (i) other than in the case of a Noteless Loan Asset, the original or, if accompanied by an original “lost note” affidavit and indemnity, a copy of, the underlying promissory note, endorsed by the Borrower or the prior holder of record either in blank or to the Trustee (and evidencing an unbroken chain of endorsements from each prior holder thereof evidenced in the chain of endorsements either in blank or to the Trustee, subject to Section 11.18 ), with any endorsement to the Trustee to be in the following form: “U.S. Bank National Association, as Trustee for the Secured Parties”, and (ii) in the case of a Noteless Loan Asset (x) a copy of each transfer document or instrument relating to such Noteless Loan Asset evidencing the assignment of such Noteless Loan Asset to the Transferor and from the Transferor to the Borrower (or, in the case of Third Party Acquired Loan Assets purchased by the Transferor from third parties, from such third party directly to the Borrower as provided in Section 11.18 ) and from the Borrower either to the Trustee or in blank, and (y) a copy of the Loan Asset Register with respect to such Noteless Loan Asset, as described in Section 5.03(l)(ii) ;

 

(b)                                  originals or copies of each of the following, to the extent applicable to the related Loan Asset; any related loan agreement, credit agreement, note purchase agreement, security agreement (if separate from any Mortgage), sale and servicing agreement, acquisition agreement, subordination agreement, intercreditor agreement or similar instruments, guarantee, Insurance Policy, assumption or substitution agreement or similar material operative document, in each case together with any amendment or modification thereto, as set forth on the Loan Asset Checklist;

 

(c)                                   if any Loan Asset is secured by a Mortgage, in each case as set forth in the Loan Asset Checklist:

 

(i)                                      either (i) the original Mortgage, the original assignment of leases and rents, if any, and the originals of all intervening assignments, if any, of the Mortgage and assignments of leases and rents with evidence of recording thereon, (ii) copies thereof certified by the Servicer, by closing counsel or by a title company or escrow company to be true and complete copies thereof where the originals have been transmitted for recording until such time as the originals are returned by the public recording office; provided that, solely for purposes of the Review Criteria, the Collateral

 

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Custodian shall have no duty to ascertain whether any certification set forth in this subsection (c)(ii) has been received, other than a certification which has been clearly delineated as being provided by the Servicer or (iii) copies certified by the public recording offices where such documents were recorded to be true and complete copies thereof in those instances where the public recording offices retain the original or where the original recorded documents are lost; and

 

(ii)                                   other than with respect to any Agented Note, to the extent the Borrower is the sole lender under the Loan Agreement, an Assignment of Mortgage and of any other material recorded security documents (including any assignment of leases and rents) in recordable form, executed by the Borrower or the prior holder of record, in blank or to the Trustee (and evidencing an unbroken chain of assignments from the prior holder of record to the Trustee), with any assignment to the Trustee to be in the following form: “U.S. Bank National Association, as Trustee for the Secured Parties”;

 

(d)                                  with respect to any Loan Asset originated by the Transferor and with respect to which the Transferor acts as administrative agent (or in a comparable capacity), either (i) copies of the UCC-1 Financing Statements, if any, and any related continuation statements, each showing the Obligor as debtor and the Trustee as total assignee or showing the Obligor, as debtor and the Transferor as secured party and each with evidence of filing thereon, or (ii) copies of any such financing statements certified by the Servicer to be true and complete copies thereof in instances where the original financing statements have been sent to the appropriate public filing office for filing, in each case as set forth in the Loan Asset Checklist.

 

Required Note Purchasers ” has the meaning assigned to that term in Section 11.01(a) .

 

Required Reports ” means, collectively, the Servicing Report required pursuant to Section 6.08(b) , the Servicer’s Certificate required pursuant to Section 6.08(c) , the financial statements of the Servicer required pursuant to Section 6.08(d) , the tax returns of the Borrower and the Servicer required pursuant to Section 6.08(e) , the financial statements and valuation reports of each Obligor required pursuant to Section 6.08(f) , the annual statements as to compliance required pursuant to Section 6.09 , and the annual independent public accountant’s report required pursuant to Section 6.10 .

 

Responsible Officer ” means, with respect to any Person, any duly authorized officer of such Person with direct responsibility for the administration of this Agreement and also, with respect to a particular matter, any other duly authorized officer of such Person to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

Restatement Date ” shall mean January 22, 2010.

 

Restricted Junior Payment ” means (i) any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Borrower now or hereafter outstanding, except a dividend paid solely in interests of that class of membership interests or in any junior class of membership interests of the Borrower; (ii) any redemption, retirement,

 

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sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of membership interests of the Borrower now or hereafter outstanding, (iii) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire membership interests of the Borrower now or hereafter outstanding, and (iv) any payment of management fees by the Borrower (except for reasonable management fees to the Transferor or its Affiliates in reimbursement of actual management services performed).  For the avoidance of doubt, (x) payments and reimbursements due to the Servicer in accordance with this Agreement or any other Transaction Document do not constitute Restricted Junior Payments, and (y) distributions by the Borrower to holders of its membership interests of Loan Assets or of cash or other proceeds relating thereto which have been substituted by the Borrower in accordance with this Agreement shall not constitute Restricted Junior Payments.

 

Retained Interest ” means, with respect to any Agented Note that is transferred to the Borrower, (i) all of the obligations, if any, of the agent(s) under the documentation evidencing such Agented Note and (ii) the applicable portion of the interests, rights and obligations under the documentation evidencing such Agented Note that relate to such portion(s) of the indebtedness that is owned by another lender.

 

Review Criteria ” has the meaning assigned to that term in Section 12.02(b)(i) .

 

Revolving Loan Asset ” means a Loan Asset that is a line of credit or contains an unfunded commitment arising from an extension of credit by the Transferor to an Obligor, pursuant to the terms of which amounts borrowed may be repaid and subsequently reborrowed.

 

S&P ” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc. (or its successors in interest).

 

Scheduled Payment ” means each scheduled payment of principal and/or interest required to be made by an Obligor on the related Loan Asset, as adjusted pursuant to the terms of the related Loan Agreement.

 

Second Extension ” has the meaning assigned to that term in Section 2.19 .

 

Second Lien Loan Asset ” means any Loan Asset that (i) is secured by a valid and perfected second priority security interest on all of the Obligor’s assets constituting Underlying Collateral for the Loan Asset (whether or not there is also a security interest of a higher or lower priority in additional collateral), subject to any “permitted liens” as defined in the applicable Loan Agreement for such Loan Asset or such comparable definition if “permitted liens” is not defined therein, so long as such definition is reasonable and customary, (ii) with respect to priority of payment obligations is pari passu with the indebtedness of the holder with the first priority security interest except after an event of default thereunder, (iii) pursuant to an intercreditor agreement between the Borrower and the holder of such first priority security interest, the amount of the indebtedness covered by such first priority security interest is limited (in terms of aggregate dollar amount or percent of outstanding principal or both), and (iv) has a Loan-to-Value Ratio of not greater than 70%.

 

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Second Tier Loan Assignment ” has the meaning set forth in the Second Tier Purchase and Sale Agreement.

 

Second Tier Purchase and Sale Agreement ” means that certain Second Tier Purchase and Sale Agreement, dated as of the Restatement Date, between the Equityholder, as the seller, and the Borrower, as the purchaser, as amended, modified, waived, supplemented, restated or replaced from time to time.

 

Secured Party ” means each of the Agent, the Note Purchaser (together with its successors and assigns), the Trustee and the Collateral Custodian.

 

Securities Act ” means the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

 

Servicer ” means at any time the Person then authorized, pursuant to Section 6.01 to service, administer, and collect on the Loan Assets and exercise rights and remedies in respect of the same.

 

Servicer Termination Event ” means the occurrence of any one or more of the following events:

 

(a)                                   any failure by the Servicer to make any payment, transfer or deposit into the Collection Account (including, without limitation, with respect to bifurcation and remittance of Interest Collections and Principal Collections) or the Unfunded Exposure Account, as required by this Agreement or any Transaction Document which continues unremedied for a period of two Business Days;

 

(b)                                  any failure on the part of the Servicer duly to (i) observe or perform in any material respect any other covenants or agreements of the Servicer set forth in this Agreement or the other Transaction Documents to which the Servicer is a party (including, without limitation, any material delegation of the Servicer’s duties that is not permitted by Section 6.01 of this Agreement) or (ii) comply in any material respect with the Credit Policy and the Servicing Standard regarding the servicing of the Collateral Portfolio and in each case the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (x) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Agent or the Trustee and (y) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;

 

(c)                                   the failure of the Servicer to make any payment when due (after giving effect to any related grace period) under one or more agreements for borrowed money to which it is a party in an aggregate amount in excess of United States $7,500,000, individually or in the aggregate, or the occurrence of any event or condition that has resulted in the acceleration of such amount of recourse debt whether or not waived;

 

(d)                                  a Bankruptcy Event shall occur with respect to the Servicer;

 

(e)                                   the Servicer consents to or otherwise permits to occur, without the prior written consent of the Agent, any material amendment, modification, change, supplement or

 

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rescission (any of the foregoing an “amendment” for purposes of this clause (e) ) of or to the Credit Policy and the Servicer fails to receive the written consent of the Agent within 10 Business Days after notice of such amendment has been delivered to the Agent (which notice shall be delivered by the Servicer within seven Business Days after the effectiveness of such amendment); provided that no such written consent shall be required in the case of an amendment which was mandated by any Applicable Law or Governmental Authority;

 

(f)                                     Ares or an Affiliate thereof shall cease to be the Servicer;

 

(g)                                  at any time, Ares fails to maintain the Asset Coverage Ratio at greater than or equal to 2:1;

 

(h)                                  Ares permits Shareholders’ Equity at the last day of any of its fiscal quarter to be less than the greater of (i) 40% of the total assets of the Servicer and its Subsidiaries as at the last day of such fiscal quarter (determined on a consolidated basis, without duplication, in accordance with GAAP) and (ii) $300,000,000 plus 25% of the net proceeds of the sale of equity interests by the Servicer and its Subsidiaries after the Restatement Date;

 

(i)                                      any change in the management of the Servicer (whether by resignation, termination, disability, death or lack of day-to-day management) relating to any three of Michael Arougheti, R. Kipp deVeer, Mitchell Goldstein, Eric Beckman and Michael Smith (or other individuals acceptable to the Agent), or any failure by any three of the aforementioned Persons to provide active and material participation in the Servicer’s daily activities including, but not limited to, general management, underwriting, and the credit approval process and credit monitoring activities, and a reputable, experienced individual reasonably satisfactory to the Agent has not been appointed within 30 days of such event; provided that time relating to an individual’s vacation within the Servicer’s employee policy and customary industry standards shall not constitute lack of day-to-day management or failure to provide active and material participation in the Servicer’s daily activities.  The Agent deems each of John Kissick, Anthony Ressler, Bennett Rosenthal, David Sachs, Gregory Margolies, David Kaplan and Seth Brufsky to be an acceptable, experienced appointee for purposes of replacing any of the individuals described in the preceding sentence;

 

(j)                                      any failure by the Servicer to deliver (i) any required Servicing Report on or before the date occurring two Business Days after the date such report is required to be made or given, as the case may be or (ii) any other Required Reports hereunder on or before the date occurring five Business Days after the date such report is required to be made or given, as the case may be, in each case under the terms of this Agreement;

 

(k)                                   any representation, warranty or certification made by the Servicer in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which has a Material Adverse Effect on the Agent or any of the Secured Parties and continues to be unremedied for a period of 30 days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Servicer by the Agent or the Trustee and (ii) the date on which a Responsible Officer of the Servicer acquires knowledge thereof;

 

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(l)                                      any financial or other information reasonably requested by the Agent, the Note Purchaser or the Trustee is not provided as requested within a reasonable amount of time following such request;

 

(m)                                the rendering against the Servicer of one or more final judgments, decrees or orders for the payment of money in excess of United States $25,000,000, individually or in the aggregate, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without such judgment, decree or order being vacated, stayed or discharged during such 60 day period;

 

(n)                                  other than the Acquisition, any change in the control of the Servicer that takes the form of either a merger or consolidation that does not comply with the provisions of Section 5.04(a)  of this Agreement;

 

(o)                                  the occurrence of the Facility Maturity Date;

 

(p)                                  an Affiliate of the Servicer fails to be the Equityholder;  or

 

(q)                                  any other event which has caused, or which may cause, a Material Adverse Effect on the assets, liabilities, financial condition, business or operations of the Servicer or the ability of the Servicer to meet its obligations under the Transaction Documents to which it is a party.

 

Servicer Termination Notice ” has the meaning assigned to that term in Section 6.01(b) .

 

Servicer’s Certificate ” has the meaning assigned to that term in Section 6.08(c) .

 

Servicing Fees ” means the fee payable to the Servicer on each Payment Date in arrears in respect of each Remittance Period, which fee shall be equal to the product of (i) 0.50%, (ii) the arithmetic mean of the aggregate outstanding principal balance of the Collateral Portfolio on the first day and on the last day of the related Remittance Period and (iii) the actual number of days in such Remittance Period divided by 360.

 

Servicing File ” means, for each Loan Asset, (a) copies of each of the Required Loan Documents and (b) any other portion of the Loan Asset File which is not part of the Required Loan Documents.

 

Servicing Report ” has the meaning assigned to that term in Section 6.08(b) .

 

Servicing Standard ” means, with respect to any Loan Assets included in the Collateral Portfolio, to service and administer such Loan Assets on behalf of the Secured Parties in accordance with Applicable Law, the terms of this Agreement, the Loan Agreements, all customary and usual servicing practices for loans like the Loan Assets and, to the extent consistent with the foregoing, (i) if the Servicer is the originator or an Affiliate thereof, the higher of: (A) in a manner which the Servicer believes to be consistent with the practices and procedures followed by institutional servicers of national standing relating to assets of the nature and character of the Loan Assets, and (B) the same care, skill, prudence and diligence with

 

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which the Servicer services and administers loans for its own account or for the account of others, and (ii) if the Servicer is not the originator or an Affiliate thereof, the same care, skill, prudence and diligence with which the Servicer services and administers loans for its own account or for the account of others.

 

Shareholders’ Equity ” means, at any date, the amount determined on a consolidated basis, without duplication, in accordance with GAAP, of shareholders equity for the Servicer and its Subsidiaries at such date.

 

State ” means one of the fifty states of the United States or the District of Columbia.

 

Stated Maturity Date ” means January 22, 2013 or such later date as is agreed to in writing by the Borrower, the Servicer, the Agent and the Note Purchaser pursuant to Section 2.19 .

 

Subordinated Loan Asset ” means any Loan Asset that (i) is not a First Lien Loan Asset, First Lien Last Out Loan Asset or Second Lien Loan Asset and (ii) has a Loan-to-Value Ratio not greater than 75%.

 

Subsidiary ” means with respect to a person, a corporation, partnership or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such person.

 

Substitute Eligible Loan Asset ” means each Eligible Loan Asset Pledged by the Borrower to the Trustee, on behalf of the Secured Parties, pursuant to Section 2.07(a)  or Section 2.07(e)(ii) .

 

Taxes ” means any present or future taxes, levies, imposts, duties, charges, assessments or fees of any nature (including interest, penalties, and additions thereto) that are imposed by any Governmental Authority.

 

Term Loan Asset ” means a Loan Asset that is a term loan that has been fully funded and does not contain any unfunded commitment on the part of the Transferor arising from an extension of credit by the Transferor to an Obligor.

 

Third Party Acquired Loan Asset ” means any Loan Asset purchased by the Transferor from third parties not Affiliated with the Transferor and then sold from the Transferor to the Equityholder pursuant to the First Tier Purchase and Sale Agreement and from the Equityholder to the Borrower pursuant to the Second Tier Purchase and Sale Agreement.

 

Transaction Documents ” means this Agreement, the Variable Funding Note, the Purchase and Sale Agreements, the Collection Account Agreement, the Unfunded Exposure Account Agreement, the Intercreditor Agreement, the Trustee and Collateral Custodian Fee

 

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Letter, the Fee Letter, the Pledge Agreement and each document, instrument or agreement related to any of the foregoing.

 

Transferee Letter ” has the meaning assigned to that term in Section 11.04(a) .

 

Transferor ” means Ares, in its capacity as the transferor hereunder and as the seller under the First Tier Purchase and Sale Agreement, together with its successors and assigns in such capacity.

 

Trustee ” has the meaning assigned to that term in the preamble hereto.

 

Trustee Expenses ” means the trustee expenses set forth in the Trustee and Collateral Custodian Fee Letter and any other accrued and unpaid fees, expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower or the Servicer to the Trustee under the Transaction Documents.

 

Trustee and Collateral Custodian Fee Letter ” means the Trustee and Collateral Custodian Fee Letter, dated as of the Restatement Date, between the Trustee, the Collateral Custodian, the Borrower, the Servicer and the Agent, as such letter may be amended, modified, supplemented, restated or replaced from time to time.

 

Trustee Fees ” means the trustee fees set forth in the Trustee and Collateral Custodian Fee Letter, as such fee letter may be amended, restated, supplemented and/or otherwise modified from time to time.

 

Trustee Termination Notice ” has the meaning assigned to that term in Section 10.05 .

 

U.S. Bank ” has the meaning assigned to that term in the preamble hereto.

 

UCC ” means the Uniform Commercial Code as from time to time in effect in the specified jurisdiction.

 

Underlying Collateral ” means, with respect to a Loan Asset, any property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Loan Asset, as applicable, including, without limitation, mortgaged property and/or a pledge of the stock, membership or other ownership interests in the related Obligor and all proceeds from any sale or other disposition of such property or other assets.

 

Unfunded Exposure Account ” means a special trust account (account number 787456-702 at the Bank) in the name of the Borrower and under the sole dominion and control of the Trustee for the benefit of the Secured Parties; provided , that the funds deposited therein (including any interest and earnings thereon) from time to time shall constitute the property and assets of the Borrower and the Borrower shall be solely liable for any Taxes payable with respect to the Unfunded Exposure Account.

 

Unfunded Exposure Account Agreement ” means that certain Unfunded Exposure Account Agreement, dated the Restatement Date, among the Borrower, the Servicer,

 

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the Bank, the Agent, and the Trustee, which agreement relates to the Unfunded Exposure Account, as such agreement may from time to time be amended, supplemented or otherwise modified in accordance with the terms thereof.

 

Unfunded Exposure Amount ” means, at any time, the amount, if any, by which (i) the aggregate Exposure Amount exceeds (ii) the aggregate amount on deposit in the Unfunded Exposure Account.

 

Unfunded Exposure Equity Amount ” means, on any date of determination, an amount equal to (a) the Exposure Amount multiplied by (b) the difference of (i) 100% minus (ii) the Applicable Percentage.

 

Unfunded Exposure Equity Shortfall ” means, on any date of determination, an amount equal to the excess, if any, of the Unfunded Exposure Equity Amount over the amount on deposit in the Unfunded Exposure Account.

 

United States ” means the United States of America.

 

Unmatured Event of Default ” means any event that, if it continues uncured, will, with lapse of time, notice or lapse of time and notice, constitute an Event of Default.

 

Unrestricted Cash ” the meaning of “Unrestricted Cash” or any comparable definition in the Loan Agreements for each Loan Asset, and in any case that “Unrestricted Cash” or such comparable definition is not defined in such Loan Agreement, all cash available for use for general corporate purposes and not held in any reserve account or legally or contractually restricted for any particular purposes or subject to any lien (other than blanket liens permitted under or granted in accordance with such Loan Agreement).

 

Value Adjustment Event ” means, with respect to any Loan Asset, the occurrence of any one or more of the following events after the related Cut-Off Date:

 

(i)                                      (x) The Interest Coverage Ratio for any Relevant Test Period with respect to such Loan Asset is less than 90% of the Interest Coverage Ratio with respect to such Loan Asset as calculated on the applicable Cut-Off Date, or (y) the Net Leverage Ratio for any Relevant Test Period of the related Obligor with respect to such Loan Asset is more than 0.50x higher than such Net Leverage Ratio as calculated on the applicable Cut-Off Date;

 

(ii)                                   an Obligor payment default under any Loan Asset (after giving effect to any applicable grace or cure periods, but in any case not to exceed five Business Days, in accordance with the Loan Agreement);

 

(iii)                                any other Obligor default under any Loan Asset (after giving effect to any applicable grace or cure periods in accordance with the Loan Agreement);

 

(iv)                               a Bankruptcy Event with respect to the related Obligor;

 

(v)                                  the occurrence of a Material Modification (in accordance with clauses (b) - (c)  or clauses (e) - (g)  of the definition thereof) with respect to such Loan Asset; or

 

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(vi)                               the occurrence of a Material Modification (in accordance with clauses (a)  or (d)  of the definition thereof) with respect to such Loan Asset.

 

Variable Funding Note ” has the meaning assigned to such term in Section 2.01(a) .

 

Wachovia ” means Wachovia Bank, National Association, a national banking association, in its individual capacity, and its successors and assigns.

 

Wachovia Variable Funding Certificate ” has the meaning assigned to that term in Section 2.01(a) .

 

Wachovia Variable Funding Note ” has the meaning assigned to that term in Section 2.01(a) .

 

Warranty Event ” means, as to any Loan Asset, the discovery that as of the related Cut-Off Date for such Loan Asset there existed a breach of any representation or warranty relating to such Loan Asset, whether pursuant to this Agreement (as amended and restated) or, with respect to any Original Loan Asset, pursuant to the Original Agreement, as applicable (other than any representation or warranty that the Loan Asset satisfies the criteria of the definition of Eligible Loan Asset) and the failure of Borrower to cure such breach, or cause the same to be cured, within 30 days after the earlier to occur of the Borrower’s receipt of notice thereof from the Agent or the Borrower becoming aware thereof.

 

Warranty Loan Asset ” means any Loan Asset that fails to satisfy any criteria of the definition of Eligible Loan Asset as of the Cut-Off Date for such Loan Asset (or, with respect to any Original Loan Asset, such Loan Asset failed to satisfy any criteria of the definition of “Eligible Loan” as defined in the Original Agreement as of the Cut-Off Date for such Loan Asset) or a Loan Asset with respect to which a Warranty Event has occurred; provided that, any Loan Asset approved by the Agent in accordance with Section 11 of Schedule III on the applicable Cut-Off Date shall not be a Warranty Loan Asset due to the failure of such Loan Asset to satisfy the requirements of Section 11 of Schedule III on any date thereafter .

 

WFS ” has the meaning assigned to that term in the Preliminary Statement.

 

Yield ” means with respect to any Remittance Period, the sum for each day in such Remittance Period determined in accordance with the following formula:

 

YR x L
D

 

where:                                                                                      YR                                 =                                          the Yield Rate applicable on such day;

 

L                                          =                                          the Advances Outstanding on such day; and

 

D                                        =                                          360 or, to the extent the Yield Rate is the Base Rate, 365 or 366 days, as applicable;

 

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provided that (i) no provision of this Agreement shall require the payment or permit the collection of Yield in excess of the maximum permitted by Applicable Law and (ii) Yield shall not be considered paid by any distribution if at any time such distribution is later required to be rescinded by the Note Purchaser to the Borrower or any other Person for any reason including, without limitation, such distribution becoming void or otherwise avoidable under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code.

 

Yield Rate ” means, as of any date of determination, an interest rate per annum equal to LIBOR for such date plus the Applicable Spread; provided that (i) if the Note Purchaser shall have notified the Agent that a Eurodollar Disruption Event has occurred, the Yield Rate shall be equal to the Base Rate plus the Applicable Spread until the Note Purchaser shall have notified the Agent that such Eurodollar Disruption Event has ceased, at which time the Yield Rate shall again be equal to LIBOR for such date plus the Applicable Spread and (ii) if any Event of Default has occurred, the Yield Rate shall be increased to the Default Funding Rate, effective as of the date of the occurrence of such Event of Default, and shall remain at the Default Funding Rate following the occurrence of such Event of Default.

 

SECTION 1.02                                                                     Other Terms . All accounting terms used but not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and used but not specifically defined herein, are used herein as defined in such Article 9 .

 

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” each mean “to but excluding.”

 

ARTICLE II.

THE FACILITY

 

SECTION 2.01                                                                     Variable Funding Note and Advances .

 

(a)                                   Variable Funding Note . The Borrower has heretofore delivered or shall, on the Restatement Date (and on the terms and subject to the conditions hereinafter set forth), deliver to the Note Purchaser at the address set forth in Section 11.02 , a duly executed variable funding note (the “ Variable Funding Note ”), in substantially the form of Exhibit I , in an aggregate face amount equal to $400,000,000, and otherwise duly completed. Interest shall accrue on the Variable Funding Note, and the Variable Funding Note shall be payable, as described herein. The amount of “Advances Outstanding” (as defined in the Original Agreement) held by Wachovia (as an institutional purchaser party to the Original Agreement) and outstanding as of the Restatement Date, as evidenced by that certain Third Amended, Restated and Substituted Variable Funding Certificate issued to Wachovia pursuant to the Original Agreement (the “ Wachovia Variable Funding Certificate ”), shall be deemed to constitute Advances Outstanding of Wachovia (as the Note Purchaser hereunder) on the Restatement Date under the Variable Funding Note issued to Wachovia pursuant to this Section 2.01(a)  (the

 

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Wachovia Variable Funding Note ”).  For the avoidance of doubt, the Wachovia Variable Funding Note shall amend and restate the Wachovia Variable Funding Certificate and shall continue, but shall not constitute payment upon or novation of, the outstanding balance on the Wachovia Variable Funding Certificate.

 

(b)                                  Advances . On the terms and conditions hereinafter set forth, the Note Purchaser shall make Advances under the Variable Funding Note to the Borrower secured by Eligible Loan Assets from time to time during the period from the Closing Date until the Facility Maturity Date. Under no circumstances shall the Note Purchaser make any Advance if after giving effect to such Advance and the addition to the Collateral Portfolio of the Eligible Loan Assets being acquired by the Borrower using the proceeds of such Advance, (i) an Event of Default has occurred or would result therefrom or an Unmatured Event of Default exists or would result therefrom or (ii) the aggregate Advances Outstanding would exceed the Borrowing Base.

 

(c)                                   Notations on Variable Funding Note . The Agent is hereby authorized to enter on a schedule attached to the Variable Funding Note a notation (which may be computer generated) with respect to each Advance under the Variable Funding Note made by the Note Purchaser of:  (i) the date and principal amount thereof, and (ii) each repayment of principal thereof, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded.  The failure of the Agent to make any such notation on the schedule attached to any Variable Funding Note shall not limit or otherwise affect the obligation of the Borrower to repay the Advances in accordance with their respective terms as set forth herein.

 

SECTION 2.02                                                                     Procedure for Advances .

 

(a)                                   Until the occurrence of the Facility Maturity Date, the Note Purchaser will make Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.

 

(b)                                  Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent, with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:

 

(i)                                      the aggregate amount of such Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f) , the amount of such Advance must be at least equal to $500,000;

 

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(ii)                                   the proposed date of such Advance;

 

(iii)                                a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and

 

(iv)                               the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable.

 

On the date of each Advance, the Note Purchaser shall, upon satisfaction of the applicable conditions set forth in Article III , make available to the Borrower on the applicable Advance Date in same day funds, the amount of such Advance, by payment into the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f) , the Note Purchaser shall remit the Advance equal to the Exposure Amount Shortfall in same day funds to the Unfunded Exposure Account.

 

(c)                                   The Advances shall bear interest at the Yield Rate.

 

(d)                                  Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein, the Borrower may borrow, repay or prepay and reborrow Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.

 

(e)                                   Determinations by the Note Purchaser of the existence of any Eurodollar Disruption Event (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.

 

(f)                                     Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, upon the occurrence of an Event of Default, the amount on deposit in the Unfunded Exposure Account is less than the aggregate Exposure Amount, the Borrower shall request an Advance in the amount of such shortfall (the “ Exposure Amount Shortfall ”).  Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), the Note Purchaser shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b) , notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02 ).

 

SECTION 2.03                                                                     [Reserved ]

 

SECTION 2.04                                                                     Remittance Procedures . The Servicer, as agent for the Agent and the Note Purchaser, shall instruct the Trustee and, if the Servicer fails to do so, the Agent may instruct the Trustee, to apply funds on deposit in the Controlled Accounts as described in this Section 2.04 .

 

(a)                                   Interest Payments Absent an Event of Default . So long as no Event of Default has occurred and, in any case, prior to the declaration, or automatic occurrence, of the Facility Maturity Date, the Servicer shall, and if the Servicer fails to do so the Agent may, on

 

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each Payment Date, direct the Trustee to transfer Interest Collections held by the Bank in the Collection Account which were received in the immediately prior Remittance Period, in accordance with the Servicing Report, to the following Persons in the following amounts and priority:

 

(i)                                      FIRST, pari passu to (a) the Trustee, in payment in full of all accrued Trustee Fees and all Trustee Expenses, and (b) the Collateral Custodian, in payment in full of all accrued Collateral Custodian Fees and Collateral Custodian Expenses; provided that amounts payable to the Trustee for Trustee Expenses and Collateral Custodian for Collateral Custodian Expenses pursuant to the foregoing clauses (a)  and (b)  shall not exceed $40,000 for any Payment Date and SECOND to the Servicer, in payment in full of all accrued Servicing Fees;

 

(ii)                                   to the Agent, for the benefit of the Note Purchaser, all Yield and the Non-Usage Fee that is accrued and unpaid as of the last day of the related Remittance Period;

 

(iii)                                to the Agent, for the benefit of the Note Purchaser, the Agent or the Collateral Custodian as applicable, all accrued and unpaid fees, expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower to the Agent, the Note Purchaser or the Collateral Custodian under the Transaction Documents;

 

(iv)                               to pay the outstanding Advances to the extent required to satisfy any outstanding Borrowing Base Deficiency;

 

(v)                                  to pay the Advances Outstanding, together with any applicable Make-Whole Premium, in connection with any complete refinancing or termination of this Agreement in accordance with Section 2.18(b) ;

 

(vi)                               to pay any other amounts due (other than with respect to the repayment of Advances) under this Agreement and the other Transaction Documents (including any indemnity amounts due from the Borrower hereunder and thereunder);

 

(vii)                            to the Servicer, in respect of all reasonable expenses (except allocated overhead) incurred during the immediately ended Remittance Period in connection with the performance of its duties hereunder or paid on behalf of the Borrower, plus any outstanding deferred reimbursement amount plus interest thereon as further set forth in Section 6.07 ; and

 

(viii)                         to the Borrower, any remaining amounts.

 

(b)                                  Principal Payments Absent an Event of Default .  So long as no Event of Default has occurred and, in any case, prior to the declaration, or automatic occurrence, of the Facility Maturity Date, the Servicer shall, and if the Servicer fails to do so the Agent may, on each Payment Date, direct the Trustee to transfer Principal Collections held by the Bank in the Collection Account which were received in the immediately prior Remittance Period, in

 

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accordance with the Servicing Report, to the following Persons in the following amounts and priority:

 

(i)                                      to pay amounts due under Section 2.04(a)(i)  through (iv) , to the extent not paid thereunder;

 

(ii)                                   in the event the Borrowing Base is less than $200,000,000 after giving effect to any distributions on that day, to pay the Advances Outstanding until paid in full;

 

(iii)                                to pay the Advances Outstanding, together with any applicable Make-Whole Premium, in connection with any complete refinancing or termination of this Agreement in accordance with Section 2.18(b) ;

 

(iv)                               to pay any other amounts due (other than with respect to the repayment of Advances) under this Agreement and the other Transaction Documents (including any indemnity amounts due from the Borrower hereunder and thereunder);

 

(v)                                  to the Servicer, in respect of all reasonable expenses (except allocated overhead) incurred during the immediately ended Remittance Period in connection with the performance of its duties hereunder or paid on behalf of the Borrower, plus any outstanding deferred reimbursement amount plus interest thereon as further set forth in Section 6.07 ; and

 

(vi)                               to the Borrower, any remaining amounts.

 

(c)                                   Payment Date Transfers Upon the Occurrence of an Event of Default . If an Event of Default has occurred or, in any case, after the declaration, or automatic occurrence, of the Facility Maturity Date, the Servicer shall, and if the Servicer fails to do so the Agent may, on each Payment Date, direct the Trustee to transfer collected funds held by the Bank in the Collection Account which were received in the immediately prior Remittance Period, in accordance with the Servicing Report, to the following Persons in the following amounts and priority:

 

(i)                                      FIRST, pari passu to (a) the Trustee, in payment in full of all accrued Trustee Fees and all Trustee Expenses, and (b) the Collateral Custodian, in payment in full of all accrued Collateral Custodian Fees and Collateral Custodian Expenses; provided that amounts payable to the Trustee for Trustee Expenses and Collateral Custodian for Collateral Custodian Expenses pursuant to the foregoing clauses (a)  and (b)  shall not exceed $40,000 for any Payment Date and SECOND to the Servicer, in payment in full of all accrued Servicing Fees;

 

(ii)                                   to the Agent, for the benefit of the Note Purchaser, all accrued and unpaid Yield and the Non-Usage Fee as of the last day of the related Remittance Period;

 

(iii)                                to the Unfunded Exposure Account in an amount necessary to cause the amount on deposit in the Unfunded Exposure Account to equal the Exposure Amount;

 

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(iv)                               to the Agent, for the benefit of the Note Purchaser, the Agent or the Collateral Custodian, as applicable, all accrued and unpaid fees, expenses (including reasonable attorneys’ fees, costs and expenses) and indemnity amounts payable by the Borrower to the Agent, the Note Purchaser or the Collateral Custodian under the Transaction Documents;

 

(v)                                  to pay the Advances, until paid in full;

 

(vi)                               to pay any other amounts due under this Agreement and the other Transaction Documents (including any indemnity amounts due from the Borrower hereunder and thereunder);

 

(vii)                            to the Servicer, in respect of all reasonable expenses (except allocated overhead) incurred during the immediately ended Remittance Period in connection with the performance of its duties hereunder or paid on behalf of the Borrower, plus any outstanding deferred reimbursement amount plus interest thereon as further set forth in Section 6.07 ; and

 

(viii)                         to the Borrower, any remaining amounts.

 

(d)                                  Unfunded Exposure Account . Funds on deposit in the Unfunded Exposure Account as of any date of determination may be withdrawn to fund draw requests of the relevant Obligors under any Revolving Loan Asset or Delayed Draw Loan Asset; provided that, until an Event of Default has occurred, the amount withdrawn to fund such draw request shall not create any Borrowing Base Deficiency. Any such draw request made by an Obligor, along with wiring instructions for the applicable Obligor, shall be forwarded by the Borrower or the Servicer to the Trustee (with a copy to the Agent) in the form of a Disbursement Request, and the Trustee shall instruct the Bank to fund such draw request in accordance with the Loan Agreement pertaining to such Revolving Loan Asset or Delayed Draw Loan Asset. Until an Event of Default has occurred, any amounts on deposit in the Unfunded Exposure Account which exceed the Unfunded Exposure Equity Amount as of any date of determination shall be deposited into the Principal Collection Account as Principal Collections. On and after the occurrence of an Event of Default, any amounts on deposit in the Unfunded Exposure Account which exceed the Exposure Amount as of any date of determination shall be deposited into the Principal Collection Account as Principal Collections.

 

(e)                                   Insufficiency of Funds . For the sake of clarity, the parties hereby agree that if the funds on deposit in the Collection Account are insufficient to pay any amounts due and payable on a Payment Date or otherwise, the Borrower shall nevertheless remain responsible for, and shall pay when due, all amounts payable under this Agreement and the other Transaction Documents in accordance with the terms of this Agreement and the other Transaction Documents.

 

SECTION 2.05                                                                     Instructions to the Trustee and the Bank . All instructions and directions given to the Trustee or the Bank by the Servicer, the Borrower or the Agent pursuant to Section 2.04 shall be in writing (including instructions and directions transmitted to the Trustee or the Bank by telecopy or e-mail), and such written instructions and directions shall be

 

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delivered with a written certification that such instructions and directions are in compliance with the provisions of Section 2.04 . The Servicer and the Borrower shall promptly transmit to the Agent by telecopy or e-mail a copy of all instructions and directions given to the Trustee or the Bank by such party pursuant to Section 2.04 . The Agent shall promptly transmit to the Servicer and the Borrower by telecopy or e-mail a copy of all instructions and directions given to the Trustee or the Bank by the Agent, pursuant to Section 2.04 . In the event the Trustee or the Bank receives instructions from the Servicer or the Borrower which conflict with any instructions received by the Agent, the Trustee or the Bank, as applicable, shall rely on and follow the instructions given by the Agent; provided that the Trustee or Bank, as applicable, shall promptly provide notification to the Servicer or the Borrower of such conflicting instructions; provided , further , that any such failure on the part of the Trustee to deliver such notice shall not render such action by the Trustee invalid.

 

SECTION 2.06                                                                     Borrowing Base Deficiency Payments .

 

(a)                                   In addition to any other obligation of the Borrower to cure any Borrowing Base Deficiency pursuant to the terms of this Agreement, if, on any day prior to the Collection Date, any Borrowing Base Deficiency exists, then the Borrower shall, within five Business Days from the date of such Borrowing Base Deficiency, eliminate such Borrowing Base Deficiency in its entirety by effecting one or more of the following actions in order to eliminate such Borrowing Base Deficiency as of such date of determination: (i) deposit cash in United States dollars into the Principal Collection Account, (ii) repay Advances (together with any Breakage Fees and all accrued and unpaid costs and expenses of the Agent and Note Purchaser, in each case in respect of the amount so prepaid), and/or (iii) subject to the approval of the Agent, in its sole discretion (and the Agent shall use reasonable efforts to give such approval in a timely fashion), Pledge additional Eligible Loan Assets.

 

(b)                                  No later than 2:00 p.m. on the Business Day prior to the proposed repayment of Advances or Pledge of additional Eligible Loan Assets pursuant to Section 2.06(a) , the Borrower (or the Servicer on its behalf) shall deliver (i) to the Agent (with a copy to the Trustee and the Collateral Custodian), notice of such repayment or Pledge and a duly completed Borrowing Base Certificate, updated to the date such repayment or Pledge is being made and giving pro forma effect to such repayment or Pledge, and (ii) to the Agent, if applicable, a description of any Eligible Loan Asset and each Obligor of such Eligible Loan Asset to be Pledged and added to the updated Loan Asset Schedule.  Any notice pertaining to any repayment or any Pledge pursuant to this Section 2.06 shall be irrevocable.

 

SECTION 2.07                                                                     Substitution and Sale of Loan Assets; Affiliate Transactions .

 

(a)                                   Substitutions . The Borrower may, with the consent of the Agent in its sole discretion, replace any Loan Asset as a Loan Asset so long as (i) no event has occurred, or would result from such substitution, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such substitution, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided that the Borrower may effect a substitution as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Unmatured Event of Default arising therefrom) so long as immediately after giving effect to such substitution and any other sale or transfer substantially contemporaneous therewith, such Borrowing Base Deficiency

 

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shall be cured or closer to being cured and (ii) simultaneously therewith, the Borrower Pledges (in accordance with all of the terms and provisions contained herein) a Substitute Eligible Loan Asset.

 

(b)                                  Discretionary Sales . The Borrower shall be permitted to sell Loan Assets to Persons other than the Transferor or its Affiliates from time to time; provided that (i) the proceeds of such sale shall be deposited into the Collection Account to be disbursed in accordance with Section 2.04 hereof, (ii) no event has occurred, or would result from such sale, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such sale, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided that the Borrower may sell Loan Assets as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Unmatured Event of Default arising therefrom) so long as the Agent shall approve of such sale and, immediately after giving effect to such sale and any other substitution or transfer substantially contemporaneous therewith, the Borrowing Base Deficiency shall be cured or closer to being cured and (iii) the prior written consent of the Agent shall be required if such Loan Asset is sold for an amount which is less than the Adjusted Borrowing Value.

 

(c)                                   Optional Sales . On any Optional Sale Date the Borrower shall have the right to prepay all or a portion of the Advances Outstanding in connection with the sale and assignment by the Borrower of all or a portion of the Loan Assets, as the case may be in connection with a Permitted Securitization or a Permitted Refinancing (each, an “ Optional Sale ”), subject to the following terms and conditions:

 

(i)                                      The Borrower shall have given the Agent (with a copy to the Trustee and the Collateral Custodian) at least 45 days’ prior written notice of its intent to effect an Optional Sale in connection with a Permitted Securitization or a Permitted Refinancing, and the Agent shall have delivered to the Borrower its prior written consent (in its sole discretion) to such Optional Sale, unless such 45 days’ notice requirement is waived or reduced by the Agent; provided that no such consent will be required for any Optional Sale of any Loan Asset at a price equal to or greater than the Adjusted Borrowing Value of such Loan Asset as of the date of the Optional Sale to the extent that the aggregate Outstanding Balance of all Loan Assets sold pursuant to this proviso (taking into account the proposed sale) during the 12-month period immediately preceding and including the proposed date of such sale does not exceed 15% of the highest aggregate Outstanding Balance of any month during such 12-month period;

 

(ii)                                   Unless an Optional Sale is to be effected on a Payment Date (in which case the relevant calculations with respect to such Optional Sale shall be reflected on the applicable Servicing Report), the Servicer shall deliver to the Agent (with a copy to the Trustee and the Collateral Custodian) a certificate and evidence to the reasonable satisfaction of the Agent (which evidence may consist solely of a certificate from the Servicer) that the Borrower shall have sufficient funds on the related Optional Sale Date to effect the contemplated Optional Sale in accordance with this Agreement.  In effecting an Optional Sale, the Borrower may use the Proceeds of sales of the Loan Assets to repay all or a portion of the Obligations;

 

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(iii)                                no Event of Default has occurred, or would result from such Optional Sale, and no Unmatured Event of Default or Borrowing Base Deficiency exists or would result from such Optional Sale; and

 

(iv)                               on the related Optional Sale Date, the Borrower shall have deposited into the Collection Account, in immediately available funds, the proceeds of such Optional Sale, which shall at least equal the aggregate Adjusted Borrowing Value of the Loan Assets being sold.

 

(d)                                  Lien Release Dividend .  Notwithstanding any provision contained in this Agreement to the contrary, provided no Event of Default has occurred and no Unmatured Event of Default exists, on a Lien Release Dividend Date, the Borrower may dividend to the Equityholder and the Equityholder may dividend to the Transferor a portion of those Loan Assets that were sold by the Transferor to the Equityholder and by the Equityholder to the Borrower, or portions thereof (each, a “ Lien Release Dividend ”), subject to the following terms and conditions, as certified by the Borrower and the Transferor to the Agent (with a copy to the Trustee and the Collateral Custodian):

 

(i)                                      The Borrower and the Transferor shall have given the Agent, with a copy to the Trustee and the Collateral Custodian, at least five Business Days prior written notice requesting that the Note Purchaser consent to the effectuation of a Lien Release Dividend, in the form of Exhibit J hereto (a “ Notice and Request for Consent ”), which consent shall be given in the sole and absolute discretion of the Note Purchaser; provided that, if the Note Purchaser shall not have responded to the Notice and Request for Consent by 11:00 a.m. on the day that is one Business Day prior to the proposed Lien Release Dividend Date, the Note Purchaser shall be deemed not to have given its consent;

 

(ii)                                   On any Lien Release Dividend Date, no more than four Lien Release Dividends shall have been made during the 12-month period immediately preceding the proposed Lien Release Dividend Date;

 

(iii)                                After giving effect to the Lien Release Dividend on the Lien Release Dividend Date, (A) no Borrowing Base Deficiency, Event of Default or Unmatured Event of Default shall exist, (B) the representations and warranties contained in Sections 4.01 and 4.02 hereof shall continue to be correct in all material respects, except to the extent relating to an earlier date, (C) the eligibility of any Loan Asset remaining as part of the Collateral Portfolio after the Lien Release Dividend will be redetermined as of the Lien Release Dividend Date, (D) no claim shall have been asserted or proceeding commenced challenging the enforceability or validity of any of the Required Loan Documents and (E) there shall have been no material adverse change as to the Servicer or the Borrower;

 

(iv)                               Such Lien Release Dividend must be in compliance with Applicable Law and may not (A) be made with the intent to hinder, delay or defraud any creditor of the Borrower or (B) leave the Borrower, immediately after giving effect to the Lien Release Dividend, (x) insolvent, (y) with insufficient funds to pay its obligations as

 

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and when they become due or (z) with inadequate capital for its present and anticipated business and transactions;

 

(v)                                  On or prior to the Lien Release Dividend Date, the Borrower shall have (A) delivered to the Agent, with a copy to the Trustee and the Collateral Custodian, a list specifying all Loan Assets or portions thereof to be transferred pursuant to such Lien Release Dividend and the Agent shall have approved same in its sole discretion and (B) obtained all authorizations, consents and approvals required to effectuate the Lien Release Dividend;

 

(vi)                               A portion of a Loan Asset may be transferred pursuant to a Lien Release Dividend provided that (A) such transfer does not have an adverse effect on the portion of such Loan Asset remaining as a part of the Collateral Portfolio, any other aspect of the Collateral Portfolio, the Note Purchaser, the Agent or any other Secured Party and (B) a new promissory note (other than with respect to a Noteless Loan Asset) for the portion of the Loan Asset remaining as a part of the Collateral Portfolio has been executed, and the original thereof has been endorsed to the Trustee and delivered to the Collateral Custodian;

 

(vii)                            Each Loan Asset, or portion thereof, as applicable, shall be transferred at a value equal to the Outstanding Balance thereof, exclusive of any accrued and unpaid interest or Accreted Interest thereon;

 

(viii)                         The Borrower shall deliver a Borrowing Base Certificate (including a calculation of the Borrowing Base after giving effect to such Lien Release Dividend) to the Agent; and

 

(ix)                                 The Borrower shall have paid in full an aggregate amount equal to the sum of all amounts due and owing to the Agent, the Note Purchaser, the Trustee or the Collateral Custodian, as applicable, under this Agreement and the other Transaction Documents, to the extent accrued to such date (including, without limitation, Breakage Fees) with respect to the Loan Assets to be transferred pursuant to such Lien Release Dividend and incurred in connection with the transfer of such Loan Assets pursuant to such Lien Release Dividend; and

 

(x)                                    The Borrower and the Servicer (on behalf of the Borrower) shall pay the reasonable legal fees and expenses of the Agent, the Note Purchaser, the Trustee and the Collateral Custodian in connection with any Lien Release Dividend (including, but not limited to, expenses incurred in connection with the release of the Lien of the Trustee, on behalf of the Secured Parties, and any other party having an interest in the Loan Assets in connection with such Lien Release Dividend).

 

(e)                                   Repurchase or Substitution of Warranty Loan Assets .  If on any day a Loan Asset is (or becomes) a Warranty Loan Asset, no later than 10 Business Days following the earlier of knowledge by the Borrower of such Loan Asset becoming a Warranty Loan Asset or receipt by the Borrower from the Agent or the Servicer of written notice thereof, the Borrower shall either:

 

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(i)                                      make a deposit to the Collection Account (for allocation pursuant to Section 2.04 ) in immediately available funds in an amount equal to the Advance Date Assigned Value multiplied by the principal balance of such Loan Asset (exclusive of Accreted Interest), any expenses or fees with respect to such Loan Asset and costs and damages incurred by the Agent or by any Note Purchaser in connection with any violation by such Loan Asset of any predatory or abusive lending law which is an Applicable Law (a notification regarding the amount of such expenses or fees to be provided by the Agent to the Borrower); provided that the Agent shall have the right to determine whether the amount so deposited is sufficient to satisfy the foregoing requirements; or

 

(ii)                                   with the prior written consent of the Agent, in its sole discretion, substitute for such Warranty Loan Asset a Substitute Eligible Loan Asset.

 

Upon confirmation of the deposit of the amounts set forth in Section 2.07(e)(i)  into the Collection Account or the delivery by the Borrower of a Substitute Eligible Loan Asset for each Warranty Loan Asset (the date of such confirmation or delivery, the “ Release Date ”), such Warranty Loan Asset and related Portfolio Assets shall be removed from the Collateral Portfolio and, as applicable, the Substitute Eligible Loan Asset and related Portfolio Assets shall be included in the Collateral Portfolio.  On the Release Date of each Warranty Loan Asset, the Trustee, for the benefit of the Secured Parties, shall automatically and without further action be deemed to release to the Borrower, without recourse, representation or warranty, all the right, title and interest and any Lien of the Trustee, for the benefit of the Secured Parties in, to and under the Warranty Loan Asset and any related Portfolio Assets and all future monies due or to become due with respect thereto.

 

(f)                                     Conditions to Sales, Substitutions and Repurchases . Any sales, substitutions or repurchases effected pursuant to Sections 2.07(a) , (b) , (c)  or (e)  shall be subject to the satisfaction of the following conditions (as certified in writing to the Agent and Trustee by the Borrower):

 

(i)                                      the Borrower shall deliver a Borrowing Base Certificate to the Agent in connection with such sale, substitution or repurchase;

 

(ii)                                   the Borrower shall deliver a list of all Loan Assets to be sold, substituted, repurchased;

 

(iii)                                no selection procedures adverse to the interests of the Agent or the Note Purchaser were utilized by the Borrower in the selection of the Loan Assets to be sold, repurchased or substituted;

 

(iv)                               the Borrower shall give one Business Day’s notice of such sale (other than in the case of an Optional Sale), substitution or repurchase;

 

(v)                                  the Borrower shall notify the Agent of any amount to be deposited into the Collection Account in connection with any sale, substitution or repurchase;

 

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(vi)                               the representations and warranties contained in Sections 4.01 , 4.02 and 4.03 hereof shall continue to be correct in all material respects, except to the extent relating to an earlier date;

 

(vii)                            any repayment of Advances Outstanding in connection with any sale, substitution or repurchase of Loan Assets hereunder shall comply with the requirements set forth in Section 2.18 ;

 

(viii)                         the Borrower and Servicer (on behalf of the Borrower) shall agree to pay the reasonable legal fees and expenses of the Agent, the Note Purchaser, the Trustee and the Collateral Custodian in connection with any such sale, substitution or repurchase (including, but not limited to, expenses incurred in connection with the release of the Lien of the Trustee on behalf of the Secured Parties and any other party having an interest in the Loan Asset in connection with such sale, substitution or repurchase); and

 

(ix)                                 other than in the case of Section 2.07(e)  and solely in the event that Ares or an Affiliate is no longer the Servicer and the Facility Maturity Date has not yet occurred (or, in the case of the declaration of the Facility Maturity Date that arises solely pursuant to Section 7.01(d)  due solely to the occurrence of an event described in clauses (g)  or (h)  of the definition of “Servicer Termination Event” or clause (o)  of the definition of “Servicer Termination Event” (to the extent arising solely due to the occurrence of an event described in clauses (g)  or (h)  of the definition thereof), until on or after the earlier of (x) the date that is twelve months after the occurrence of such Facility Maturity Date or (y) the occurrence of a Facility Maturity Date for any other reason other than an event described in clauses (g)  or (h)  of the definition of “Servicer Termination Event” or clause (o)  of the definition of “Servicer Termination Event” (to the extent arising solely due to the occurrence of an event described in clauses (g)  or (h)  of the definition thereof), the Borrower shall have consented to such sale or substitution.

 

(g)                                  Affiliate Transactions . Notwithstanding anything to the contrary set forth herein or in any other Transaction Document, neither the Equityholder nor the Transferor shall reacquire from the Borrower and the Borrower shall not transfer to the Equityholder, the Transferor or to Affiliates of the Transferor or the Equityholder, and none of the Transferor, the Equityholder nor any Affiliates thereof will have a right or ability to purchase, the Loan Assets without the prior written consent of the Agent, except in the case of repurchases of Loan Assets by the Equityholder pursuant to Section 6.1 of the Second Tier Purchase and Sale Agreement and by the Transferor pursuant to Section 6.1 of the First Tier Purchase and Sale Agreement.  For the avoidance of doubt, nothing in this clause (g)  shall prohibit the Borrower or the Equityholder, respectively, from transferring or distributing its Loan Assets to the holders of its equity or Affiliates, as applicable, in accordance with Section 2.07(a) , 2.07(c) , 2.07(d)  or 2.07(e)  herein.

 

(h)                                  Limitations on Sales, Substitutions and Repurchases .

 

(i)                                      The Outstanding Balance of all Loan Assets subject to clauses (ii) , (iv)  or (vi)  of the definition of “Value Adjustment Event” which were included in all Lien Release Dividends or substituted by the Borrower pursuant to Section 2.07(a) , in each case during the 12-month period immediately preceding the proposed Lien Release

 

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Dividend Date or date of substitution, as applicable, does not exceed 10% of the highest aggregate Outstanding Balance of any month during such 12-month period (or such lesser number of months as shall have elapsed as of such date). Any Lien Release Dividend or substitution of a “Delinquent Loan” or a “Charged-Off Loan” (as each such term is defined in the Original Agreement) effected pursuant to the Original Agreement during the 12-month period immediately preceding the date of determination shall be included in this calculation.

 

(ii)                                   The Outstanding Balance of all Loan Assets (other than Warranty Loan Assets) sold pursuant to Section 2.07(b) , sold without the consent of the Agent in accordance with Section  2.07(c)  (in each case, other than Loan Assets subject to clauses (ii) , (iv)  or (vi)  of the definition of “Value Adjustment Event”), substituted pursuant to Section 2.07(a) or released pursuant to Section 2.07(d)  during the 12-month period immediately preceding the proposed date of sale, substitution or Lien Release Dividend (or such lesser number of months as shall have elapsed as of such date) does not exceed 20% of the highest aggregate Outstanding Balance of any month during such 12-month period (or such lesser number of months as shall have elapsed as of such date). Any “Discretionary Sale”, “Optional Sale”, “Substitute Loan” or “Lien Release Dividend” (as each such term is defined in the Original Agreement) effected pursuant to the Original Agreement during the 12-month period immediately preceding the date of determination shall be included in this calculation.

 

(iii)                                Rule 3a-7 .  Notwithstanding anything in this Section 2.07 , the Borrower shall not, and the Servicer shall not on the Borrower’s behalf, purchase, sell or substitute any Loan Asset with the primary purpose of recognizing gain or decreasing losses on such Loan Asset or in any manner that would cause the Borrower not to be in compliance with the requirements of Rule 3a-7 under the 1940 Act.

 

SECTION 2.08                                                                     Payments and Computations, Etc .

 

(a)                                   All amounts to be paid or deposited by the Borrower or the Servicer hereunder shall be paid or deposited in accordance with the terms hereof no later than 5:00 p.m. (New York City time) on the day when due in lawful money of the United States in immediately available funds to the Collection Account or such other account as is designated by the Agent. The Borrower or the Servicer, as applicable, shall, to the extent permitted by Applicable Law, pay to the Secured Parties interest on all amounts not paid or deposited when due (taking into account any grace period provided for herein) to any of the Secured Parties hereunder at the Default Funding Rate, payable on demand, from the date of such nonpayment until such amount is paid in full (as well after as before judgment); provided , that such interest rate shall not at any time exceed the maximum rate permitted by Applicable Law. Any Obligation hereunder shall not be reduced by any distribution of any portion of Available Collections if at any time such distribution is rescinded or required to be returned by the Note Purchaser to the Borrower or any other Person for any reason. All computations of interest and all computations of Yield and other fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first but excluding the last day) elapsed, other than calculations with respect to the Base Rate, which shall be based on a year consisting of 365 or 366 days, as applicable.

 

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(b)                                  Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of Yield or any fee payable hereunder, as the case may be.

 

(c)                                   If any Advance requested by the Borrower and approved by the Note Purchaser and the Agent pursuant to Section 2.02 is not for any reason whatsoever, except as a result of the gross negligence or willful misconduct of, or failure to fund such Advance on the part of, the Note Purchaser, the Agent or an Affiliate thereof, made or effectuated, as the case may be, on the date specified therefor, the Borrower shall indemnify the Note Purchaser against any loss, cost or expense incurred by the Note Purchaser related thereto (other than any such loss, cost or expense solely due to the gross negligence or willful misconduct or failure to fund such Advance on the part of the Note Purchaser, the Agent or an Affiliate thereof), including, without limitation, any loss (including cost of funds and reasonable out-of-pocket expenses), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Note Purchaser to fund Advances or maintain the Advances. The Note Purchaser shall provide to the Borrower documentation setting forth the amounts of any loss, cost or expense referred to in the previous sentence, such documentation to be conclusive absent manifest error.

 

SECTION 2.09                                                                     Fees . The Borrower shall pay the Note Purchaser (either directly or through the Agent) certain fees (the “ Fees ”) in the amounts and on the dates set forth in a fee letter, dated the Closing Date and amended and restated on the Restatement Date, among the Borrower, Ares, the Agent and the Note Purchaser (as further amended, modified, supplemented or restated from time to time, the “ Fee Letter ”).

 

SECTION 2.10                                                                     Increased Costs; Capital Adequacy .

 

(a)                                   If, due to either (i) the introduction of or any change following the Restatement Date (including, without limitation, any change by way of imposition or increase of reserve requirements) in or in the interpretation, administration or application following the Restatement Date of any Applicable Law (including, without limitation, any law or regulation resulting in any interest payments paid to the Note Purchaser under this Agreement being subject to any Tax, except for Taxes on the overall net income of the Note Purchaser), in each case whether foreign or domestic or (ii) the compliance with any guideline or request following the Restatement Date from any central bank or other Governmental Authority (whether or not having the force of law), there shall be any increase in the cost to the Agent, the Note Purchaser, or any Affiliate, successor or assign thereof (each of which shall be an “ Affected Party ”) of agreeing to make or making, funding or maintaining any Advance (or any reduction of the amount of any payment (whether of principal, interest, fee, compensation or otherwise) to any Affected Party hereunder), as the case may be, the Borrower shall, from time to time, after written demand by the Agent (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), on behalf of such Affected Party, pay to the Agent, on behalf of such Affected Party, additional amounts sufficient to compensate such Affected Party for such increased costs or reduced payments within 10 days after such demand; provided , that the amounts payable under this Section 2.10 shall be without duplication of amounts payable under Section 2.11 and shall not include any Excluded Taxes.

 

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(b)                                  If either (i) the introduction of or any change following the Restatement Date in or in the interpretation, administration or application following the Restatement Date of any law, guideline, rule or regulation, directive or request or (ii) the compliance by any Affected Party with any law, guideline, rule, regulation, directive or request following the Restatement Date, from any central bank, any Governmental Authority or agency, including, without limitation, compliance by an Affected Party with any request or directive regarding capital adequacy, has or would have the effect of reducing the rate of return on the capital of any Affected Party, as a consequence of its obligations hereunder or any related document or arising in connection herewith or therewith to a level below that which any such Affected Party could have achieved but for such introduction, change or compliance (taking into consideration the policies of such Affected Party with respect to capital adequacy), by an amount deemed by such Affected Party to be material, then, from time to time, after demand by such Affected Party (which demand shall be accompanied by a statement setting forth in reasonable detail the basis for such demand), the Borrower shall pay the Agent on behalf of such Affected Party such additional amounts as will compensate such Affected Party for such reduction.

 

(c)                                   In determining any amount provided for in this Section 2.10 , the Affected Party may use any reasonable averaging and attribution methods. The Agent, on behalf of any Affected Party making a claim under this Section 2.10 , shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of such additional or increased costs, which certificate shall be conclusive absent manifest error.

 

SECTION 2.11                                                                     Taxes .

 

(a)                                   All payments made by an Obligor in respect of a Loan Asset and all payments made by the Borrower or made by the Servicer on behalf of the Borrower under this Agreement will be made free and clear of and without deduction or withholding for or on account of any Taxes.  If any Taxes are required to be withheld from any amounts payable to any Indemnified Party, then the amount payable to such Person will be increased (the amount of such increase, the “ Additional Amount ”) such that every net payment made under this Agreement after withholding for or on account of any Taxes (including, without limitation, any Taxes on such increase) is not less than the amount that would have been paid had no such deduction or withholding been made.  The foregoing obligation to pay Additional Amounts with respect to payments required to be made by the Borrower or Servicer under this Agreement will not, however, apply with respect to Taxes imposed on or measured by net income or franchise Taxes imposed on any Indemnified Party by a taxing jurisdiction in which any such Person is organized, conducts business or is paying Taxes (as the case may be) (“ Excluded Taxes ”).

 

(b)                                  The Borrower will indemnify, from funds available to it pursuant to Section 2.04 (and to the extent the funds available for indemnification provided by the Borrower is insufficient the Servicer, on behalf of the Borrower, will indemnify) each Indemnified Party for the full amount of Taxes payable by such Person in respect of Additional Amounts and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto.  All payments in respect of this indemnification shall be made within 10 days from the date a written invoice therefor is delivered to the Borrower.

 

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(c)                                   Within 30 days after the date of any payment by the Borrower or by the Servicer on behalf of the Borrower of any Taxes, the Borrower or the Servicer, as applicable, will furnish to the Agent and the Note Purchaser at the applicable address set forth on this Agreement, appropriate evidence of payment thereof.

 

(d)                                  If any assignee of the Note Purchaser is not created or organized under the laws of the United States or a political subdivision thereof, such Note Purchaser shall deliver to the Borrower, with a copy to the Agent, (i) within 15 days after becoming an assignee hereunder, two (or such other number as may from time to time be prescribed by Applicable Law) duly completed copies of IRS Form W-8BEN or Form W-8ECI (or any successor forms or other certificates or statements that may be required from time to time by the relevant United States taxing authorities or Applicable Law), as appropriate, to permit the Borrower to make payments hereunder for the account of such Note Purchaser without deduction or withholding of United States federal income or similar Taxes and (ii) upon the obsolescence of or after the occurrence of any event requiring a change in, any form or certificate previously delivered pursuant to this Section 2.11(d) , copies (in such numbers as may from time to time be prescribed by Applicable Law or regulations) of such additional, amended or successor forms, certificates or statements as may be required under Applicable Law to permit the Borrower or the Servicer to make payments hereunder for the account of such Lender without deduction or withholding of United States federal income or similar Taxes.

 

(e)                                   If, in connection with an agreement or other document providing liquidity support, credit enhancement or other similar support to the Note Purchaser in connection with this Agreement or the funding or maintenance of Advances hereunder, the Note Purchaser is required to compensate a bank or other financial institution in respect of Taxes under circumstances similar to those described in this Section 2.11 , then, within 10 days after demand by each applicable Note Purchaser, the Servicer shall pay (or to the extent the Servicer does not make such payment the Borrower shall pay) to the Note Purchaser such additional amount or amounts as may be necessary to reimburse the Note Purchaser for any amounts paid by them.

 

Without prejudice to the survival of any other agreement of the Borrower and the Servicer hereunder, the agreements and obligations of the Borrower and the Servicer contained in this Section 2.11 shall survive the termination of this Agreement.

 

SECTION 2.12                                                                     Collateral Assignment of Agreements . The Borrower hereby collaterally assigns to the Trustee, for the benefit of the Secured Parties, all of the Borrower’s right and title to and interest in, to and under (but not any obligations under) the Purchase and Sale Agreements (and any UCC financing statements filed under or in connection therewith), the Loan Agreements related to each Loan Asset, all other agreements, documents and instruments evidencing, securing or guarantying any Loan Asset and all other agreements, documents and instruments related to any of the foregoing but excluding any Excluded Amounts, Retained Interest or Attached Equity (the “ Assigned Documents ”). In furtherance and not in limitation of the foregoing, the Borrower hereby collaterally assigns to the Trustee, for the benefit of the Secured Parties, its right to indemnification under Article IX of each Purchase and Sale Agreement.  The Borrower confirms that until the Collection Date the Trustee on behalf of the Secured Parties shall have the sole right to enforce the Borrower’s rights and remedies under the Purchase and Sale Agreements and any UCC financing statements filed under or in

 

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connection therewith for the benefit of the Secured Parties. The parties hereto agree that such collateral assignment to the Trustee, for the benefit of the Secured Parties, shall terminate upon the Collection Date.

 

SECTION 2.13                                                                     Grant of a Security Interest . To secure the prompt, complete and indefeasible payment in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations and the performance by the Borrower of all of the covenants and obligations to be performed by it pursuant to this Agreement and each other Transaction Document, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent, the Borrower hereby (a) collaterally assigns and pledges to the Trustee, on behalf of the Secured Parties, and (b) grants a security interest to the Trustee, on behalf of the Secured Parties, in all of the Borrower’s right, title and interest in, to and under (but none of the obligations under) all of the Collateral Portfolio, whether now existing or hereafter arising or acquired by the Borrower, and wherever the same may be located. For the avoidance of doubt, the Collateral Portfolio shall not include any Excluded Amounts, and the Borrower does not hereby assign, pledge or grant a security interest in any such amounts. Anything herein to the contrary notwithstanding, (a) the Borrower shall remain liable under the Collateral Portfolio to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Trustee, for the benefit of the Secured Parties, of any of its rights in the Collateral Portfolio shall not release the Borrower from any of its duties or obligations under the Collateral Portfolio, and (c) none of the Agent, the Trustee or the Note Purchaser (nor its successors and assigns) shall have any obligations or liability under the Collateral Portfolio by reason of this Agreement, nor shall the Agent, the Trustee, or the Note Purchaser (nor its successors and assigns) be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

 

SECTION 2.14                                                                     Evidence of Debt . The Agent shall maintain, solely for this purpose as the agent of the Borrower, at its address referred to in Section 11.02 a copy of each assignment and acceptance agreement and participation agreement delivered to and accepted by it and a register for the recordation of the names and addresses and interests of the Note Purchasers (the “ Register ”). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Agent and each Note Purchaser shall treat each person whose name is recorded in the Register as a Note Purchaser under this Agreement for all purposes of this Agreement. The Register shall be available for inspection by the Borrower or any Note Purchaser at any reasonable time and from time to time upon reasonable prior notice.

 

SECTION 2.15                                                                     Survival of Representations and Warranties . It is understood and agreed that the representations and warranties set forth in Sections 4.01 , 4.02 and 4.03 are made and are true and correct on the date of this Agreement and on each Cut-Off Date unless such representations and warranties are made as of a specific date.

 

SECTION 2.16                                                                     Release of Loan Assets .

 

(a)                                   The Borrower may obtain the release of (i) any Loan Asset (and the related Portfolio Assets pertaining thereto) released pursuant to a Lien Release Dividend, sold or

 

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substituted in accordance with the applicable provisions of Section 2.07 or liquidated in accordance with Section 6.05 and 12.08(a)  and any Portfolio Assets pertaining to such Loan Asset and (ii) any Collateral Portfolio that expires by its terms and all amounts in respect thereof have been paid in full by the related Obligor and deposited in the Collection Account. The Trustee, for the benefit of the Secured Parties, shall at the sole expense of the Servicer, execute such documents and instruments of release as may be prepared by the Servicer on behalf of the Borrower, give notice of such release to the Collateral Custodian (in the form of Exhibit N ) and take other such actions as shall reasonably be requested by the Borrower to effect such release of the Lien created pursuant to this Agreement. Upon receiving such notification by the Trustee as described in the immediately preceding sentence, the Collateral Custodian shall deliver the Required Loan Documents to the Borrower.

 

(b)                                  Promptly after the Collection Date has occurred, the Note Purchaser and the Agent, in accordance with their respective interests, shall release to the Borrower, for no consideration but at the sole expense of the Borrower, their respective remaining interests in the Portfolio Assets, free and clear of any Lien resulting solely from an act by the Trustee, Note Purchaser or the Agent but without any other representation or warranty, express or implied, by or recourse against the Note Purchaser or the Agent.

 

SECTION 2.17                                                                     Treatment of Amounts Paid by the Borrower . Amounts paid by the Borrower pursuant to Section 2.07 on account of Loan Assets shall be treated as payments of Principal Collections or Interest Collections, as applicable, on Loan Assets hereunder.

 

SECTION 2.18                                                                     Prepayment; Termination .

 

(a)                                   Except as expressly permitted or required herein, including, without limitation, any repayment necessary to cure a Borrowing Base Deficiency, Advances may only be prepaid in whole or in part at the option of the Borrower at any time by delivering a Notice of Reduction at least one Business Day prior to such reduction (which notice shall include a Borrowing Base Certificate) and upon payment in full of any Breakage Fees and other accrued and unpaid costs and expenses of Agent and Note Purchaser related to such prepayment; provided that no such reduction shall be given effect unless (i) sufficient funds have been remitted to pay all such amounts in full, as determined by the Agent, in its sole discretion and (ii) no event would result from such prepayment which would constitute an Event of Default or an Unmatured Event of Default. Any notice relating to any repayment pursuant to this Section 2.18(a)  shall be irrevocable.

 

(b)                                  Notwithstanding any other provision hereof, the Borrower shall not terminate this Agreement or any other Transaction Document or reduce the Maximum Facility Amount prior to the date which is five Business Days prior to the Stated Maturity Date without the Agent’s prior written consent, which consent may be withheld in the Agent’s sole discretion; provided , that (i) upon three Business Days’ prior written notice to the Agent, and only so long as no Event of Default has occurred and no Unmatured Event of Default exists, the Borrower may terminate this Agreement upon payment in full of all outstanding Advances, all accrued and unpaid Yield, any Breakage Fees, all accrued and unpaid costs and expenses of Agent and Note Purchaser, payment of the Make-Whole Premium and payment of all other Obligations and (ii) with the prior written consent of the Agent, the Borrower may reduce the Maximum Facility

 

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Amount upon payment in full of the Make-Whole Premium and delivery of a Notice of Reduction at least one Business Day prior to such reduction; provided, further that no Event of Default or Unmatured Event of Default would result from such reduction in the Maximum Facility Amount. Any termination of this Agreement shall be subject to Section 11.05 .

 

(c)                                   Notwithstanding anything to the contrary in Section 2.18(b) , no Make-Whole Premium shall be payable by the Borrower in the event that either (i)(x) the Obligations are refinanced by the proceeds of any other financing of the Transferor or any of its Affiliates by any of the Agent or any of their respective Affiliates or (y) the Agent or any of their respective Affiliates enters into another credit facility or other financing with the Transferor or any of its Affiliates substantially concurrently with the termination of this Agreement ( provided that in either case of clause (x) or clause (y) above, the aggregate commitments of such financing shall equal or exceed the Advances Outstanding on such date, and the Agent or their respective Affiliates hold at least 51% of the aggregate commitments of such replacement or other financing), (ii) as of any date of determination, the Agent has not approved greater than 33% of the Eligible Loan Assets submitted by the Borrower for approval prior to such date, such percentage to be calculated based on the number of Eligible Loan Assets reviewed; provided, that only Eligible Loan Assets with respect to which the Borrower has provided the Agent with all of the information reasonably requested by the Agent to make such approval determination for such Eligible Loan Asset; provided, further , that at least 15 Eligible Loan Assets that meet the criteria of the foregoing proviso must have been reviewed for this clause (ii) to apply. For the avoidance of doubt, any reference to “Eligible Loan Asset” in this Section 2.18(c) shall include Loan Assets which are not “Eligible Loan Assets” solely due to the failure to satisfy clause 11 of Schedule III to this Agreement or (iii) this Agreement is terminated within five Business Days prior to the Stated Maturity Date.

 

(d)                                  The Borrower hereby acknowledges and agrees that the Make-Whole Premium constitutes additional consideration for the Note Purchaser to enter into this Agreement.

 

SECTION 2.19                                                                     Extension of Stated Maturity Date .  The Borrower may, within 60 days but not less than 45 days prior to the Stated Maturity Date, make a request to extend the date set forth in the definition of “Stated Maturity Date” for an additional period of one year. The Stated Maturity Date may be extended by one year by mutual agreement among the Agent, the Note Purchaser, the Borrower and the Servicer (such extension, the “ Initial Extension ”). Following such Initial Extension, the Borrower may, within 60 days but not less than 45 days prior to the Stated Maturity Date (as revised by the Initial Extension), make a request to extend the date set forth in the definition of “Stated Maturity Date” (as revised by the Initial Extension) for an additional period of one year. The Stated Maturity Date (as revised by the Initial Extension) may be extended by one year upon the mutual agreement among the Agent, the Note Purchaser, the Borrower and the Servicer (such extension, the “ Second Extension ”). The effectiveness of either the Initial Extension or the Second Extension shall be conditioned upon the payment of the Additional Structuring Fee (as defined in the Fee Letter) to the Agent for the Agent’s own account, in immediately available funds. The Borrower confirms that the Note Purchaser and the Agent, in their sole and absolute discretion, without regard to the value or performance of the Loan Assets or any other factor, may elect not to extend the Stated Maturity Date.

 

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SECTION 2.20                                                                     Collections and Allocations .

 

(a)                                   The Servicer shall promptly identify any collections received as being on account of Interest Collections, Principal Collections or other Available Collections and shall transfer, or cause to be transferred, all Available Collections received in the Concentration Account or received directly by it to the Collection Account by the close of business on the second Business Day after such Collections are received.  Within fifteen days following the Restatement Date, the Servicer shall instruct all Obligors to remit Interest Collections and Principal Collections directly to the Collection Account. Upon the transfer of Available Collections to the Collection Account, the Servicer shall segregate Principal Collections and Interest Collections and transfer the same to the Principal Collection Account and the Interest Collection Account, respectively.  The Servicer shall further include a statement as to the amount of Principal Collections and Interest Collections on deposit in the Principal Collection Account and the Interest Collection Account on each Reporting Date in the Servicing Report delivered pursuant to Section 6.08(b) .

 

(b)                                  On the Cut-Off Date with respect to any Loan Asset, the Servicer will deposit into the Collection Account all Available Collections received in respect of Eligible Loan Assets being transferred to and included as part of the Collateral Portfolio on such date.

 

(c)                                   With the prior written consent of the Agent (a copy of which will be provided by the Servicer to the Trustee), the Servicer may withdraw from the Collection Account any deposits thereto constituting Excluded Amounts if the Servicer has, prior to such withdrawal and consent, delivered to the Agent a report setting forth the calculation of such Excluded Amounts in form and substance satisfactory to the Agent in its sole discretion.

 

(d)                                  Prior to notice of exclusive control, the Servicer shall, pursuant to written instruction (which may be in the form of standing instructions), direct the Trustee to invest, or cause the investment of, funds on deposit in the Controlled Accounts in Permitted Investments, from the date of this Agreement until the Collection Date. Absent any such written instruction, such funds shall not be invested. A Permitted Investment acquired with funds deposited in any Controlled Account shall mature not later than the Business Day immediately preceding any Payment Date, and shall not be sold or disposed of prior to its maturity unless the Servicer determines there is a substantial risk of material deterioration of such Permitted Investment, in its commercially reasonable discretion. All such Permitted Investments shall be registered in the name of the Bank or its nominee for the benefit of the Agent or Trustee, and otherwise comply with assumptions of the legal opinions of Latham & Watkins LLP dated the Restatement Date and delivered in connection with this Agreement. All income and gain realized from any such investment, as well as any interest earned on deposits in any Controlled Account shall be distributed in accordance with the provisions of Article II hereof. In the event the Borrower or Servicer direct the funds to be invested in investments which are not Permitted Investments, the Borrower shall deposit in the Collection Account or the Unfunded Exposure Account, as the case may be (with respect to investments made hereunder of funds held therein), an amount equal to the amount of any actual loss incurred, in respect of any such investment, immediately upon realization of such loss. None of the Bank, the Trustee, the Agent or the Note Purchaser shall be liable for the amount of any loss incurred, in respect of any investment, or lack of investment, of funds held in any Controlled Account.

 

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(e)                                   Until the Collection Date, the Borrower shall have no rights of direction or withdrawal, with respect to amounts held in any Controlled Account, except to the extent explicitly set forth in Section 2.04 or Section 2.21 .

 

SECTION 2.21                                                                     Reinvestment of Principal Collections .

 

On the terms and conditions hereinafter set forth as certified in writing to the Trustee and Agent, prior to the Facility Maturity Date, the Servicer may, to the extent of any Principal Collections on deposit in the Principal Collection Account:

 

(a)                                   withdraw such funds for the purpose of reinvesting in additional Eligible Loan Assets to be Pledged hereunder; provided that the following conditions are satisfied:

 

(i)                                      all conditions precedent set forth in Section 3.04 have been satisfied;

 

(ii)                                   no Event of Default has occurred, or would result from such withdrawal and reinvestment, and no Unmatured Event of Default or Borrowing Base Deficiency exists or would result from such withdrawal and reinvestment;

 

(iii)                                the representations and warranties contained in Sections 4.01 , 4.02 and 4.03 hereof shall continue to be correct in all material respects, except to the extent relating to an earlier date;

 

(iv)                               the Servicer provides same day written notice to the Agent and the Trustee by facsimile or email (to be received no later than 1:00 p.m. on such day) of the request to withdraw Principal Collections and the amount of such request;

 

(v)                                  the notice required in clause (iv)  above shall be accompanied by a Disbursement Request and a Borrowing Base Certificate, each executed by the Borrower and a Responsible Officer of the Servicer; and

 

(vi)                               the Trustee provides to the Agent by facsimile (to be received no later than 1:30 p.m. on that same day) a statement reflecting the total amount on deposit as of the opening of business on such day in the Principal Collection Account; or

 

(b)                                  withdraw such funds for the purpose of making payments in respect of the Advances Outstanding at such time in accordance with and subject to the terms of Section 2.18 .

 

Upon the satisfaction of the applicable conditions set forth in this Section 2.21 (as certified by the Borrower to the Trustee and the Agent), the Trustee will release funds from the Principal Collection Account to the Servicer in an amount not to exceed the lesser of (A) the amount requested by the Servicer and (B) the amount on deposit in the Principal Collection Account on such day.

 

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ARTICLE III.

 

CONDITIONS PRECEDENT

 

SECTION 3.01                                                                     Conditions Precedent to Effectiveness .

 

(a)                                   This Agreement shall be effective upon satisfaction of the conditions precedent that:

 

(i)                                      all reasonable up-front expenses and fees (including legal fees and any fees required under the Fee Letter) that are invoiced at or prior to the Restatement Date shall have been paid in full;

 

(ii)                                   (x) payment in full of all Indebtedness owed to Wachovia Bank, National Association pursuant to the JPMorgan Loan Documents and (y) the closing of the amended JPMorgan Loan Documents, to the reasonable satisfaction of the Agent;

 

(iii)                                any and all information submitted to the Note Purchaser by the Borrower, the Transferor, the Equityholder or the Servicer or any of their Affiliates is true, accurate, complete in all material respects and not misleading in any material respect;

 

(iv)                               the Note Purchaser shall have received, all documentation and other information requested by the Note Purchaser in its sole discretion and/or required by regulatory authorities with respect to the Borrower, the Transferor and the Servicer under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, all in form and substance reasonably satisfactory to the Note Purchaser;

 

(v)                                  the Agent shall have received on or before the date of such Advance the items listed in Schedule I hereto, each in form and substance satisfactory to the Agent and the Note Purchaser;

 

(vi)                               the Agent and Note Purchaser have received approval from their internal credit committee and all other necessary approvals, as required by the Agent, in its sole discretion; and

 

(vii)                            no material adverse effect on the business, assets, financial conditions or performance of the Servicer and its subsidiaries, including the Borrower, on a consolidated basis, has occurred.

 

(b)                                  By its execution and delivery of this Agreement, each of the Borrower and Servicer hereby certifies that, and the Agent hereby acknowledges that, each of the conditions precedent to the effectiveness of this Agreement set forth in this Section 3.01 have been satisfied.

 

SECTION 3.02                                                                     Conditions Precedent to All Advances . Each Advance (including the Initial Advance, except as explicitly set forth below) to the Borrower from the Note Purchaser shall be subject to the further conditions precedent that:

 

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(a)                                   On the Advance Date of such Advance, the following statements shall be true and correct, and the Borrower by accepting any amount of such Advance shall be deemed to have certified that:

 

(i)                                      the Servicer (on behalf of the Borrower) shall have delivered to the Agent (with a copy to the Collateral Custodian and copies of the Notice of Borrowing and Borrowing Base Certificate to the Trustee only) no later than 5:00 p.m. on the date that is one Business Day prior to the related Advance Date: (A) a Notice of Borrowing, (B) a Borrowing Base Certificate, (C) a Loan Asset Schedule and (D) except with respect to an Advance under Section 2.02(f) , Loan Assignments in the form of Exhibit A to the Purchase and Sale Agreements (including Schedule I thereto) and containing such additional information as may be reasonably requested by the Agent;

 

(ii)                                   except with respect to an Advance under Section 2.02(f) , the Borrower shall have delivered to the Collateral Custodian (with a copy to the Agent), no later than 2:00 p.m. one Business Day prior to the related Advance Date, a faxed or e-mailed copy of the duly executed original promissory notes of the Loan Assets (and, in the case of any Noteless Loan Asset, a fully executed assignment agreement) and if any Loan Assets are closed in escrow, a certificate (in the form of Exhibit K ) from the closing attorneys of such Loan Assets certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Asset Checklist and the Required Loan Documents to be in the possession of the Collateral Custodian within five Business Days of any related Advance Date as to any Loan Assets;

 

(iii)                                the representations and warranties contained in Sections 4.01 , 4.02 and 4.03 are true and correct in all material respects, and (except with respect to an Advance required by Section 2.02(f) ) there exists no breach of any covenant contained in Sections 5.01 , 5.02 , 5.03 and 5.04 before and after giving effect to the Advance to take place on such Advance Date and to the application of proceeds therefrom, on and as of such day as though made on and as of such date (other than any representation and warranty that is made as of a specific date);

 

(iv)                               on and as of such Advance Date, after giving effect to such Advance and the addition to the Collateral Portfolio of the Eligible Loan Assets being acquired by the Borrower using the proceeds of such Advance (except with respect to an Advance required by Section 2.02(f) ), the Advances Outstanding does not exceed the Borrowing Base;

 

(v)                                  no Event of Default has occurred, or would result from such Advance, and no Unmatured Event of Default or Borrowing Base Deficiency exists or would result from such Advance;

 

(vi)                               no event has occurred and is continuing, or would result from such Advance, which constitutes a Servicer Termination Event or any event which, if it continues uncured, will, with notice or lapse of time, constitute a Servicer Termination Event;

 

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(vii)                            since the Closing Date, no material adverse change has occurred in the ability of the Servicer, Transferor, the Equityholder or the Borrower to perform its obligations under any Transaction Document;

 

(viii)                         no Liens exist in respect of Taxes which are prior to the lien of the Trustee on the Eligible Loan Assets to be Pledged on such Advance Date; and

 

(ix)                                 all terms and conditions of each Purchase and Sale Agreement required to be satisfied in connection with the assignment of each Eligible Loan Asset being Pledged hereunder on such Advance Date (and the Portfolio Assets related thereto), including, without limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Trustee, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in such Eligible Loan Assets and the Portfolio Assets related thereto and the proceeds thereof shall have been made, taken or performed, and with respect to each Eligible Loan Asset so assigned pursuant to each Purchase and Sale Agreement, the Transferor and the Equityholder shall not have been subject to any Change of Control since the Restatement Date, other than a Change of Control previously approved by the Agent in writing.

 

(b)                                  The Agent shall have approved in its sole and absolute discretion each of the Eligible Loan Assets identified in the applicable Loan Asset Schedule for inclusion in the Collateral Portfolio on the applicable Advance Date.

 

(c)                                   No Applicable Law shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Advances by the Note Purchaser or the proposed Pledge of Eligible Loan Assets in accordance with the provisions hereof.

 

(d)                                  Except with respect to an Advance required by Section 2.02(f) , the Facility Maturity Date has not yet occurred.

 

The failure of the Borrower to satisfy any of the foregoing conditions precedent in respect of any Advance shall give rise to a right of the Agent and the Note Purchaser, which right may be exercised at any time on the demand of the Note Purchaser, to rescind the related Advance and direct the Borrower to pay to the Agent for the benefit of the Note Purchaser an amount equal to the Advances made during any such time that any of the foregoing conditions precedent were not satisfied.

 

SECTION 3.03                                                                     Advances Do Not Constitute a Waiver . No Advance made hereunder shall constitute a waiver of any condition to the Note Purchaser’s obligation to make such an advance unless such waiver is in writing and executed by the Note Purchaser.

 

SECTION 3.04                                                                     Conditions to Pledges of Loan Assets . Each Pledge of an additional Eligible Loan Asset pursuant to Section 2.06 , a Substitute Eligible Loan Asset pursuant to Section 2.07(a)  or (e) , an additional Eligible Loan Asset pursuant to Section 2.21 or

 

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any other Pledge of a Loan Asset hereunder shall be subject to the further conditions precedent that (as certified to the Trustee by the Borrower):

 

(a)                                   the Servicer (on behalf of the Borrower) shall have delivered to the Agent (with a copy to the Collateral Custodian and copies of the Notice of Borrowing and Borrowing Base Certificate to the Trustee only) no later than 5:00 p.m. on the date that is one Business Day prior to the related Cut-Off Date: (A) a Borrowing Base Certificate, (B) a Loan Asset Schedule and (C) Loan Assignments in the form of Exhibit A to the Purchase and Sale Agreements (including Schedule I thereto) and containing such additional information as may be reasonably requested by the Agent;

 

(b)                                  the Borrower shall have delivered to the Collateral Custodian (with a copy to the Agent), no later than 2:00 p.m. one Business Day prior to the related Cut-Off Date, a faxed or e-mailed copy of the duly executed original promissory notes of the Loan Assets (and, in the case of any Noteless Loan Asset, a fully executed assignment agreement) and if any Loan Assets are closed in escrow, a certificate (in the form of Exhibit K ) from the closing attorneys of such Loan Assets certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Borrower shall cause the Loan Asset Checklist and the Required Loan Documents to be in the possession of the Collateral Custodian within five Business Days of any related Cut-Off Date as to any Loan Assets;

 

(c)                                   no Liens exist in respect of Taxes which are prior to the lien of the Trustee on the Eligible Loan Assets to be Pledged on such Cut-Off Date;

 

(d)                                  all terms and conditions of each Purchase and Sale Agreement required to be satisfied in connection with the assignment of each Eligible Loan Asset being Pledged hereunder on such Cut-Off Date (and the Portfolio Assets related thereto), including, without limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Trustee, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in such Eligible Loan Assets and the Portfolio Assets related thereto and the proceeds thereof shall have been made, taken or performed;

 

(e)                                   the Agent shall have approved in its sole and absolute discretion each of the Eligible Loan Assets identified in the applicable Loan Asset Schedule for inclusion in the Collateral Portfolio on the applicable Cut-Off Date;

 

(f)                                     no Event of Default has occurred, or would result from such Pledge, and no Unmatured Event of Default exists, or would result from such Pledge (other than, with respect to any Pledge of an Eligible Loan Asset necessary to cure a Borrowing Base Deficiency in accordance with Section 2.06 or 2.07 , an Unmatured Event of Default arising solely pursuant to such Borrowing Base Deficiency); and

 

(g)                                  the representations and warranties contained in Sections 4.01 , 4.02 and 4.03 are true and correct in all material respects, and there exists no breach of any covenant contained in Sections 5.01 , 5.02 , 5.03 and 5.04 before and after giving effect to the Pledge to

 

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take place on such Cut-Off Date, on and as of such day as though made on and as of such date (other than any representation and warranty that is made as of a specific date).

 

ARTICLE IV.

 

REPRESENTATIONS AND WARRANTIES

 

SECTION 4.01                                                                     Representations and Warranties of the Borrower .  The Borrower hereby represents and warrants, as of the Restatement Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each Payment Date and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made:

 

(a)                                   Organization, Good Standing and Due Qualification .  The Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware (subject to Section 5.02(r) ) and has the power and all licenses necessary to own its assets and to transact the business in which it is engaged and is duly qualified and in good standing under the laws of each jurisdiction where the transaction of such business or its ownership of the Loan Assets and the Collateral Portfolio requires such qualification.

 

(b)                                  Power and Authority; Due Authorization; Execution and Delivery .  The Borrower has the power, authority and legal right to make, deliver and perform this Agreement and each of the Transaction Documents to which it is a party and all of the transactions contemplated hereby and thereby, and has taken all necessary action to authorize the execution, delivery and performance of this Agreement and each of the Transaction Documents to which it is a party, and to grant to the Trustee, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral Portfolio on the terms and conditions of this Agreement, subject only to Permitted Liens.

 

(c)                                   Binding Obligation .  This Agreement and each of the Transaction Documents to which the Borrower is a party constitutes the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with their respective terms, except as the enforceability hereof and thereof may be limited by Bankruptcy Laws and by general principles of equity (whether such enforceability is considered in a proceeding in equity or at law).

 

(d)                                  All Consents Required .  No consent of any other party and no consent, license, approval or authorization of, or registration or declaration with, any Governmental Authority, bureau or agency is required in connection with the execution, delivery or performance by the Borrower of this Agreement or any Transaction Document to which it is a party or the validity or enforceability of this Agreement or any such Transaction Document or the Loan Assets or the transfer of an ownership interest or security interest in such Loan Assets, other than such as have been met or obtained and are in full force and effect.

 

(e)                                   No Violation .  The execution, delivery and performance of this Agreement and all other agreements and instruments executed and delivered or to be executed and delivered pursuant hereto or thereto in connection with the Pledge of the Collateral Portfolio will not (i) create any Lien on the Collateral Portfolio other than Permitted Liens or (ii) violate any

 

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Applicable Law or the certificate of formation or limited liability company agreement of the Borrower or (iii) violate any contract or other agreement to which the Borrower is a party or by which the Borrower or any property or assets of the Borrower may be bound.

 

(f)                                     No Proceedings .  There is no litigation or administrative proceeding or investigation pending or, to the knowledge of the Borrower, threatened against the Borrower or any properties of the Borrower, before any Governmental Authority (i) asserting the invalidity of this Agreement or any other Transaction Document to which the Borrower is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Borrower is a party or (iii) seeking any determination or ruling that could reasonably be expected to have Material Adverse Effect.

 

(g)                                  Selection Procedures .  In selecting the Loan Assets to be Pledged pursuant to this Agreement, no selection procedures were employed which are intended to be adverse to the interests of the Note Purchaser.

 

(h)                                  Bulk Sales .  The grant of the security interest in the Collateral Portfolio by the Borrower to the Trustee, for the benefit of the Secured Parties, pursuant to this Agreement, is in the ordinary course of business for the Borrower and is not subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.

 

(i)                                      Pledge of Collateral Portfolio .  Except as otherwise expressly permitted by the terms of this Agreement, no item of Collateral Portfolio has been sold, transferred, assigned or pledged by the Borrower to any Person, other than as contemplated by Article II and the Pledge of such Collateral Portfolio to the Trustee, for the benefit of the Secured Parties, pursuant to the terms of this Agreement.

 

(j)                                      Indebtedness .  The Borrower has no Indebtedness or other indebtedness, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (i) Indebtedness incurred under the terms of the Transaction Documents and (ii) Indebtedness incurred pursuant to certain ordinary business expenses arising pursuant to the transactions contemplated by this Agreement and the other Transaction Documents.

 

(k)                                   Sole Purpose .  The Borrower has been formed solely for the purpose of engaging in transactions of the types contemplated by this Agreement, and has not engaged in any business activity other than the negotiation, execution and to the extent applicable, performance of this Agreement and the transactions contemplated by the Transaction Documents.

 

(l)                                      No Injunctions .  No injunction, writ, restraining order or other order of any nature adversely affects the Borrower’s performance of its obligations under this Agreement or any Transaction Document to which the Borrower is a party.

 

(m)                                Taxes .  The Borrower has filed or caused to be filed (on a consolidated basis or otherwise) on a timely basis all tax returns (including, without limitation, all foreign, federal, state, local and other tax returns) required to be filed by it, is not liable for Taxes payable by any other Person and has paid or made adequate provisions for the payment of all Taxes, assessments and other governmental charges due and payable from the Borrower except for

 

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those Taxes being contested in good faith by appropriate proceedings and in respect of which it has established proper reserves on its books. No Tax lien or similar adverse claim has been filed, and no claim is being asserted, with respect to any such Tax, assessment or other governmental charge. Any Taxes, fees and other governmental charges due and payable by the Borrower, as applicable, in connection with the execution and delivery of this Agreement and the other Transaction Documents and the transactions contemplated hereby or thereby have been paid or shall have been paid if and when due.

 

(n)                                  Location .  The Borrower’s location (within the meaning of Article 9 of the UCC) is Delaware. The chief executive office of the Borrower (and the location of the Borrower’s records regarding the Collateral Portfolio (other than those delivered to the Collateral Custodian)) is located at the address set forth under its name in Section 11.02 (or at such other address as shall be designated by such party in a written notice to the other parties hereto).

 

(o)                                  Tradenames .  Except as permitted hereunder, the Borrower’s legal name is as set forth in this Agreement. Except as permitted hereunder, the Borrower has not changed its name since its formation; does not have tradenames, fictitious names, assumed names or “doing business as” names other than as disclosed on Schedule II hereto (as such schedule may be updated from time to by the Agent upon receipt of a notice delivered to the Agent pursuant to Section 5.02(r) ); the Borrower’s only jurisdiction of formation is Delaware, and, except as permitted hereunder, the Borrower has not changed its jurisdiction of formation.

 

(p)                                  Solvency .  The Borrower is not the subject of any Bankruptcy Proceedings or Bankruptcy Event. The Borrower is solvent, and the transactions under this Agreement and any other Transaction Document to which the Borrower is a party do not and will not render the Borrower insolvent. The Borrower is paying its debts as they become due (subject to any applicable grace period); and the Borrower, after giving effect to the transactions contemplated hereby, will have adequate capital to conduct its business.

 

(q)                                  No Subsidiaries .  The Borrower has no Subsidiaries other than in connection with retaining equity pursuant to Section 6.05 .

 

(r)                                     Value Given .  The Borrower has given fair consideration and reasonably equivalent value to the Equityholder in exchange for the purchase of the Loan Assets (or any number of them) from the Equityholder pursuant to the Second Tier Purchase and Sale Agreement. No such transfer has been made for or on account of an antecedent debt owed by the Borrower to the Equityholder and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.

 

(s)                                   Reports Accurate .  All Servicer’s Certificates, Servicing Reports, Notices of Borrowing, Borrowing Base Certificates and other written or electronic information, exhibits, financial statements, documents, books, records or reports furnished by the Servicer to the Agent, the Trustee, the Note Purchaser or the Collateral Custodian in connection with this Agreement are, as of their date, accurate, true and correct; provided that, solely with respect to written or electronic information furnished by the Servicer which was provided to the Servicer from an Obligor with respect to a Loan Asset, such information need only be accurate, true and correct to the knowledge of the Servicer; provided, further, that the foregoing proviso shall not

 

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apply to any information presented in a Servicer’s Certificate, Servicing Report, Notice of Borrowing or Borrowing Base Certificate.

 

(t)                                     Exchange Act Compliance; Regulations T, U and X .  None of the transactions contemplated herein or in the other Transaction Documents (including, without limitation, the use of proceeds from the sale of the Collateral Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. The Borrower does not own or intend to carry or purchase, and no proceeds from the Advances will be used to carry or purchase, any “margin stock” within the meaning of Regulation U or to extend “purpose credit” within the meaning of Regulation U.

 

(u)                                  No Adverse Agreements .  There are no agreements in effect adversely affecting the rights of the Borrower to make, or cause to be made, the grant of the security interest in the Collateral Portfolio contemplated by Section 2.13 .

 

(v)                                  Event of Default/Unmatured Event of Default .  No event has occurred which constitutes an Event of Default, and no event has occurred and is continuing which constitutes an Unmatured Event of Default (other than any Event of Default or Unmatured Event of Default which has previously been disclosed to the Agent as such).

 

(w)                                Credit Policy and Servicing Standard .  Each of the Loan Assets was underwritten or acquired and is being serviced in conformance with the standard underwriting, credit, collection, operating and reporting procedures and systems of the Servicer or the Transferor.

 

(x)                                    ERISA .  The present value of all benefits vested under all “employee pension benefit plans,” as such term is defined in Section 3 of ERISA, maintained by the Borrower or any ERISA Affiliate of the Borrower, or in which employees of the Borrower or any ERISA Affiliate of the Borrower are entitled to participate, as from time to time in effect (the “ Pension Plans ”), does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual valuation date). No prohibited transactions, failure to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, withdrawals or reportable events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Borrower to any material tax, penalty or other liability.  No notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.

 

(y)                                  Allocation of Charges .  There is not any agreement or understanding between the Servicer and the Borrower (other than as expressly set forth herein or as consented to by the Agent), providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges; provided that

 

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it is understood and acknowledged that the Borrower will be consolidated with the Servicer for tax purposes.

 

(z)                                    Broker-Dealer .  The Borrower is not a broker-dealer or subject to the Securities Investor Protection Act of 1970, as amended.

 

(aa)                             Concentration Account . On or prior to the Account Transition Deadline, the Concentration Account and the Collection Account are the only accounts to which Obligors have been instructed by the Borrower, or the Servicer on the Borrower’s behalf, to send Principal Collections and Interest Collections on the Collateral Portfolio. After the Account Transition Deadline, the Collection Account is the only account to which Obligors have been instructed by the Borrower, or the Servicer on the Borrower’s behalf, to send Principal Collections and Interest Collections on the Collateral Portfolio. Except as contemplated by the Intercreditor Agreement, the Borrower has not granted any Person other than the Agent and the Trustee an interest in the Concentration Account.  The Concentration Account is subject only to the interests of the parties to the Intercreditor Agreement. The Borrower has not granted any Person other than the Trustee, for the benefit of the Secured Parties, an interest in the Collection Account.

 

(bb)                           Second Tier Purchase and Sale Agreement .  The Second Tier Purchase and Sale Agreement and the Second Tier Loan Assignments contemplated therein are the only agreements pursuant to which the Borrower acquires the Collateral Portfolio. The Original Purchase and Sale Agreement was the only agreement pursuant to which the Borrower acquired the Collateral Portfolio prior to the Restatement Date.

 

(cc)                             Investment Company Act .  The Borrower is not required to register as an “investment company” under the provisions of the 1940 Act.

 

(dd)                           Compliance with Law .  The Borrower has complied in all material respects with all Applicable Law to which it may be subject, and no item of the Collateral Portfolio contravenes any Applicable Law (including, without limitation, all applicable predatory and abusive lending laws, laws, rules and regulations relating to licensing, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy).

 

(ee)                             Collections .  The Borrower acknowledges that all Available Collections received by it or its Affiliates with respect to the Collateral Portfolio Pledged hereunder are held and shall be held in trust for the benefit of the Trustee, on behalf of the Secured Parties until deposited into the Collection Account within two Business Days after receipt as required herein.

 

(ff)                                 Set-Off, etc .  No Loan Asset has been compromised, adjusted, extended, satisfied, subordinated, rescinded, set-off or modified by the Borrower, the Transferor, the Equityholder or the Obligor thereof, and no Collateral Portfolio is subject to compromise, adjustment, extension, satisfaction, subordination, rescission, set-off, counterclaim, defense, abatement, suspension, deferment, deduction, reduction, termination or modification, whether arising out of transactions concerning the Collateral Portfolio or otherwise, by the Borrower, the Transferor, the Equityholder or the Obligor with respect thereto, except, in each case, for amendments, extensions and modifications, if any, to such Collateral Portfolio otherwise

 

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permitted pursuant to Section 6.04(a)  of this Agreement and in accordance with the Credit Policy and the Servicing Standard.

 

(gg)                           Full Payment .  As of the applicable Cut-Off Date thereof, the Borrower has no knowledge of any fact which should lead it to expect that any Loan Asset will not be paid in full.

 

(hh)                           Environmental .  With respect to each item of Underlying Collateral as of the applicable Cut-Off Date for the Loan Asset related to such Underlying Collateral, to the actual knowledge of a Responsible Officer of the Borrower: (a) the related Obligor’s operations comply in all material respects with all applicable Environmental Laws; (b) none of the related Obligor’s operations is the subject of a federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (c) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment.  As of the applicable Cut-Off Date for the Loan Asset related to such Underlying Collateral, none of the Borrower, the Transferor, the Equityholder nor the Servicer has received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does any such Person have knowledge or reason to believe that any such notice will be received or is being threatened.

 

(ii)                                   USA PATRIOT Act .  Neither the Borrower nor any Affiliate of the Borrower is (i) a country, territory, organization, person or entity named on an Office of Foreign Asset Control (OFAC) list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e. , a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.

 

(jj)                                   Confirmation from Transferor and Equityholder .  The Borrower has received in writing from the Transferor and the Equityholder confirmation that the Transferor and the Equityholder will not cause the Borrower to file a voluntary bankruptcy petition under the Bankruptcy Code.

 

(kk)                             Accuracy of Representations and Warranties .  Each representation or warranty by the Borrower contained herein or in any certificate or other document furnished by the Borrower pursuant hereto or in connection herewith is true and correct in all material respects. The Borrower hereby reaffirms each representation and warranty made pursuant to the Original Agreement and represents and warrants that each such representation and warranty was, as of its date, true and correct in all material respects and that, immediately prior to this amendment and restatement of this Agreement, there existed no breach of any covenant or

 

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agreement of the Original Agreement. For the avoidance of doubt, the Borrower hereby agrees that any such breach of any representation, warranty, covenant or agreement of the Borrower under the Original Agreement prior to the Restatement Date shall be treated as a breach of a representation or warranty under this Section 4.01 .

 

(ll)                                 Reaffirmation of Representations and Warranties .  On each day that any Advance is made hereunder, the Borrower shall be deemed to have certified that all representations and warranties described in Section 4.01 and Section 4.02 are correct on and as of such day as though made on and as of such day, except for any such representations or warranties which are made as of a specific date.

 

(mm)                     Security Interest .

 

(i)                                    This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Collateral Portfolio in favor of the Trustee, on behalf of the Secured Parties, which security interest is prior to all other Liens (except for Permitted Liens), and is enforceable as such against creditors of and purchasers from the Borrower;

 

(ii)                                 the Collateral Portfolio is comprised of “instruments”, “security entitlements”, “general intangibles”, “tangible chattel paper”, “accounts”, “certificated securities”, “uncertificated securities”, “securities accounts”, “deposit accounts”, “supporting obligations” or “insurance” (each as defined in the applicable UCC), real property and/or such other category of collateral under the applicable UCC as to which the Borrower has complied with its obligations under this Section 4.01(mm) ;

 

(iii)                              with respect to Collateral Portfolio that constitute “security entitlements”:

 

a.                                        all of such security entitlements have been credited to one of the Controlled Accounts and the securities intermediary for each Controlled Account has agreed to treat all assets credited to such Controlled Account as “financial assets” within the meaning of the applicable UCC;

 

b.                                       the Borrower has taken all steps necessary to cause the securities intermediary to identify in its records the Borrower, for the benefit of the Secured Parties, as the Person having a security entitlement against the securities intermediary in each of the Controlled Accounts; and

 

c.                                        the Controlled Accounts are not in the name of any Person other than the Borrower, subject to the lien of the Trustee, for the benefit of the Secured Parties.  The securities intermediary of any Controlled Account which is a “securities account” under the UCC has agreed to comply with the entitlement orders and instructions of the Borrower, the Servicer and the Trustee (acting at the direction of the Agent) in accordance with the Transaction Documents, including causing cash to be invested in Permitted Investments; provided that, upon the delivery of a notice of exclusive control under the Collection Account Agreement or Unfunded Exposure Account Agreement by the Trustee (acting at the direction

 

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of the Agent), the securities intermediary has agreed to only follow the entitlement orders and instructions of the Trustee, on behalf of the Secured Parties, including with respect to the investment of cash in Permitted Investments.

 

(iv)                               all Controlled Accounts constitute “securities accounts” or “deposit accounts” as defined in the applicable UCC;

 

(v)                                  with respect to any Controlled Account which constitutes a “deposit account” as defined in the applicable UCC, the Borrower, the Bank and the Trustee, on behalf of the Secured Parties, have entered into an account control agreement which permits the Trustee on behalf of the Secured Parties to direct disposition of the funds in such deposit account;

 

(vi)                               the Borrower owns and has good and marketable title to (or with respect to assets securing any Loan Assets, a valid security interest in) the Collateral Portfolio free and clear of any Lien (other than Permitted Liens) of any Person;

 

(vii)                            the Borrower has received all consents and approvals required by the terms of any Loan Asset to the granting of a security interest in the Loan Assets hereunder to the Trustee, on behalf of the Secured Parties;

 

(viii)                         the Borrower has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in the Collateral Portfolio and that portion of the Loan Assets in which a security interest may be perfected by filing granted to the Trustee, on behalf of the Secured Parties, under this Agreement; provided that filings in respect of real property shall not be required;

 

(ix)                                 other than as expressly permitted by the terms of this Agreement and the security interest granted to the Trustee, on behalf of the Secured Parties, pursuant to this Agreement, the Borrower has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Collateral Portfolio.  The Borrower has not authorized the filing of and is not aware of any financing statements against the Borrower that include a description of collateral covering the Collateral Portfolio other than any financing statement (A) relating to the security interests granted to the Borrower under the Second Tier Purchase and Sale Agreement, or (B) relating to the closing of a Permitted Securitization contemplated by Section 2.07(c) , or (C) that has been terminated and/or fully and validly assigned to the Trustee on or prior to the Closing Date. The Borrower is not aware of the filing of any judgment or Tax lien filings against the Borrower;

 

(x)                                    all original executed copies of each underlying promissory note or copies of each Loan Asset Register, as applicable, that constitute or evidence each Loan Asset has been, or subject to the delivery requirements contained herein, will be delivered to the Collateral Custodian;

 

(xi)                                 other than in the case of Noteless Loan Assets, the Borrower has received, or subject to the delivery requirements contained herein will receive, a written

 

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acknowledgment from the Collateral Custodian that the Collateral Custodian, as the bailee of the Trustee, is holding the underlying promissory notes that constitute or evidence the Loan Assets solely on behalf of and for the Trustee, for the benefit of the Secured Parties; provided that the acknowledgement of the Collateral Custodian set forth in Section 12.11 may serve as such acknowledgement;

 

(xii)                              none of the underlying promissory notes, or Loan Asset Registers, as applicable, that constitute or evidence the Loan Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Trustee, on behalf of the Secured Parties;

 

(xiii)                           with respect to any Collateral Portfolio that constitutes a “certificated security,” such certificated security has been delivered to the Collateral Custodian, on behalf of the Secured Parties and, if in registered form, has been specially Indorsed to the Trustee, for the benefit of the Secured Parties, or in blank by an effective Indorsement or has been registered in the name of the Trustee, for the benefit of the Secured Parties, upon original issue or registration of transfer by the Borrower of such certificated security; and

 

(xiv)                          with respect to any Collateral Portfolio that constitutes an “uncertificated security”, that the Borrower shall cause the issuer of such uncertificated security to register the Trustee, on behalf of the Secured Parties, as the registered owner of such uncertificated security.

 

SECTION 4.02                                                                     Representations and Warranties of the Borrower Relating to the Agreement and the Collateral Portfolio .  The Borrower hereby represents and warrants, as of the Restatement Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each Payment Date and any date which Loan Assets are Pledged hereunder and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made:

 

(a)                                   Valid Transfer and Security Interest . This Agreement constitutes a grant of a security interest in all of the Collateral Portfolio to the Trustee, for the benefit of the Secured Parties, which upon the delivery of the Required Loan Documents to the Collateral Custodian, the crediting of Loan Assets to the Controlled Accounts and the filing of the financing statements, shall be a valid and first priority perfected security interest in the Loan Assets forming a part of the Collateral Portfolio and in that portion of the Loan Assets in which a security interest may be perfected by filing subject only to Permitted Liens.  Neither the Borrower nor any Person claiming through or under Borrower shall have any claim to or interest in the Controlled Accounts and, if this Agreement constitutes the grant of a security interest in such property, except for the interest of the Borrower in such property as a debtor for purposes of the UCC.

 

(b)                                  Eligibility of Collateral Portfolio . As of the Restatement Date, each Cut-Off Date and each Advance Date, (i) the Loan Asset Schedule and the information contained in each Notice of Borrowing, is an accurate and complete listing of all the Loan Assets contained in the Collateral Portfolio as of the related Cut-Off Date and the information contained therein with

 

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respect to the identity of such item of Collateral Portfolio and the amounts owing thereunder is true and correct as of the related Cut-Off Date, (ii) each Loan Asset designated on any Borrowing Base Certificate as an Eligible Loan Asset and each Loan Asset included as an Eligible Loan Asset in any calculation of Borrowing Base or Borrowing Base Deficiency is an Eligible Loan Asset and (iii) with respect to each item of Collateral Portfolio, all consents, licenses, approvals or authorizations of or registrations or declarations of any Governmental Authority or any Person required to be obtained, effected or given by the Borrower in connection with the transfer of a security interest in each item of Collateral Portfolio to the Trustee, for the benefit of the Secured Parties, have been duly obtained, effected or given and are in full force and effect.

 

(c)                                   No Fraud . Each Loan Asset was originated without any fraud or material misrepresentation by the Transferor or, to the best of the Borrower’s knowledge, on the part of the Obligor.

 

(d)                                  Reaffirmation of Representations and Warranties . The Borrower hereby reaffirms that each representation and warranty made pursuant to Section 4.02 of the Original Agreement and represents and warrants that each such representation and warranty was, as of its date, true and correct in all material respects. For the avoidance of doubt, the Borrower hereby agrees that any such breach of any representation or warranty made by the Borrower under Section 4.02 of the Original Agreement prior to the Restatement Date shall be treated as a breach of a representation or warranty under this Section 4.02 , including, without limitation, for purposes of the Borrower’ obligation to repurchase Warranty Loan Assets.

 

SECTION 4.03                                                                     Representations and Warranties of the Servicer .  The Servicer hereby represents and warrants, as of the Restatement Date, as of each applicable Cut-Off Date, as of each applicable Advance Date, as of each Payment Date and as of each other date provided under this Agreement or the other Transaction Documents on which such representations and warranties are required to be (or deemed to be) made:

 

(a)                                   Organization and Good Standing .  The Servicer has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Maryland (except as such jurisdiction is changed as permitted hereunder), with all requisite corporate power and authority to own or lease its properties and to conduct its business as such business is presently conducted and to enter into and perform its obligations pursuant to this Agreement.

 

(b)                                  Due Qualification .  The Servicer is duly qualified to do business as a corporation and is in good standing as a corporation, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its property and or the conduct of its business requires such qualification, licenses or approvals.

 

(c)                                   Power and Authority; Due Authorization; Execution and Delivery .  The Servicer (i) has all necessary power, authority and legal right to (a) execute and deliver this Agreement and the other Transaction Documents to which it is a party, (b) carry out the terms of the Transaction Documents to which it is a party, and (ii) has duly authorized by all necessary corporate action the execution, delivery and performance of this Agreement and the other Transaction Documents to which it is a party.  This Agreement and each other Transaction

 

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Document to which the Servicer is a party have been duly executed and delivered by the Servicer.

 

(d)                                  Binding Obligation .  This Agreement and each other Transaction Document to which the Servicer is a party constitutes a legal, valid and binding obligation of the Servicer enforceable against the Servicer in accordance with its respective terms, except as such enforceability may be limited by Bankruptcy Laws and general principles of equity (whether considered in a suit at law or in equity).

 

(e)                                   No Violation .  The consummation of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof and thereof will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Servicer’s articles of incorporation or by-laws or any contractual obligation of the Servicer, (ii) result in the creation or imposition of any Lien upon any of the Servicer’s properties pursuant to the terms of any such contractual obligation, other than this Agreement, or (iii) violate any Applicable Law.

 

(f)                                     No Proceedings .  There is no litigation, proceeding or investigation pending or, to the knowledge of the Servicer, threatened against the Servicer, before any Governmental Authority (i) asserting the invalidity of this Agreement or any other Transaction Document to which the Servicer is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or any other Transaction Document to which the Servicer is a party or (iii) other than the Disclosed Matters, seeking any determination or ruling that could reasonably be expected to have Material Adverse Effect. Since the Restatement Date, there has been no change in the status of the Disclosed Matters (after giving effect to any update of the Disclosed Matters in accordance with the definition thereof) that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

 

(g)                                  All Consents Required .  All approvals, authorizations, consents, orders, licenses or other actions of any Person or of any Governmental Authority (if any) required for the due execution, delivery and performance by the Servicer of this Agreement and any other Transaction Document to which the Servicer is a party have been obtained.

 

(h)                                  Reports Accurate .  No Borrowing Base Certificate, information, exhibit, financial statement, document, book, record or report furnished by the Servicer to the Agent, the Trustee, the Note Purchaser or the Collateral Custodian in connection with this Agreement is inaccurate in any material respect as of the date it is dated, and no such document contains any material misstatement of fact or omits to state a material fact or any fact necessary to make the statements contained therein not misleading; provided that, solely with respect to written or electronic information furnished by the Servicer which was provided to the Servicer from an Obligor with respect to a Loan Asset, such information need only be accurate, true and correct to the knowledge of the Servicer; provided, further, that the foregoing proviso shall not apply to any information presented in a Servicer’s Certificate, Servicing Report, Notice of Borrowing or Borrowing Base Certificate.

 

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(i)                                      Credit Policy and Servicing Standard .  The Servicer has complied in all material respects with (i) the Credit Policy with regard to the origination and underwriting of the Loan Assets and (ii) the Servicing Standard with regard to the servicing of the Loan Assets.

 

(j)                                      Collections .  The Servicer acknowledges that all Available Collections received by it or its Affiliates with respect to the Collateral Portfolio transferred or Pledged hereunder are held and shall be held in trust for the benefit of the Secured Parties until deposited into the Collection Account within two Business Days from receipt as required herein.

 

(k)                                   Bulk Sales .  The execution, delivery and performance of this Agreement do not require compliance with any “bulk sales” act or similar law by the Servicer.

 

(l)                                      Solvency .  The Servicer is not the subject of any Bankruptcy Proceedings or Bankruptcy Event.  The transactions under this Agreement and any other Transaction Document to which the Servicer is a party do not and will not render the Servicer not solvent.

 

(m)                                Taxes .  The Servicer has filed or caused to be filed all tax returns that are required to be filed by it.  The Servicer has paid or made adequate provisions for the payment of all Taxes and all assessments made against it or any of its property (other than any amount of Tax the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of the Servicer), and no Tax lien has been filed and, to the Servicer’s knowledge, no claim is being asserted, with respect to any such Tax, assessment or other charge.

 

(n)                                  Exchange Act Compliance; Regulations T, U and X .  None of the transactions contemplated herein or the other Transaction Documents (including, without limitation, the use of the Proceeds from the sale of the Collateral Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.

 

(o)                                  Security Interest .  The Servicer will take all steps necessary to ensure that the Borrower has granted a security interest (as defined in the UCC) to the Trustee, for the benefit of the Secured Parties, in the Collateral Portfolio, which is enforceable in accordance with Applicable Law upon execution and delivery of this Agreement.  Upon the filing of UCC-1 financing statements naming the Trustee as secured party and the Borrower as debtor, the Trustee, for the benefit of the Secured Parties, shall have a valid and first priority perfected security interest in the Loan Assets and that portion of the Collateral Portfolio in which a security interest may be perfected by filing (except for any Permitted Liens).  All filings (including, without limitation, such UCC filings) as are necessary for the perfection of the Secured Parties’ security interest in the Loan Assets and that portion of the Collateral Portfolio in which a security interest may be perfected by filing have been (or prior to the applicable Advance will be) made.

 

(p)                                  ERISA .  The present value of all benefits vested under all Pension Plans does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual valuation date).  No prohibited transactions, failure to meet the minimum funding standard set forth in Section 302(a) of ERISA

 

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and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, withdrawals or reportable events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Servicer to any material tax, penalty or other liability.  No notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer, a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.

 

(q)                                  USA PATRIOT Act .  Neither the Servicer nor any Affiliate of the Servicer is (i) a country, territory, organization, person or entity named on an OFAC list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e ., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.

 

(r)                                     Environmental .  With respect to each item of Underlying Collateral, to the actual knowledge of a Responsible Officer of the Servicer:  (a) the related Obligor’s operations comply in all material respects with all applicable Environmental Laws; (b) none of the related Obligor’s operations is the subject of a Federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (c) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment. The Servicer has not received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does the Servicer, have knowledge or reason to believe that any such notice will be received or is being threatened.

 

(s)                                   No Injunctions .  No injunction, writ, restraining order or other order of any nature adversely affects the Servicer’s performance of its obligations under this Agreement or any Transaction Document to which the Servicer is a party.

 

(t)                                     Concentration Account . On or prior to the Account Transition Deadline, the Concentration Account and the Collection Account are the only accounts to which Obligors have been instructed by the Servicer on the Borrower’s behalf to send Available Collections on the Collateral Portfolio. After the Account Transition Deadline, the Collection Account is the only account to which Obligors have been instructed by the Servicer on the Borrower’s behalf to send Available Collections on the Collateral Portfolio. Except as contemplated by the Intercreditor Agreement, the Servicer has not granted any Person other than the Agent and the Trustee an interest in the Concentration Account.  The Concentration Account is subject only to the interests of the parties to the Intercreditor Agreement.

 

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(u)                                  Allocation of Charges .  There is not any agreement or understanding between the Servicer and the Borrower (other than as expressly set forth herein or as consented to by the Agent), providing for the allocation or sharing of obligations to make payments or otherwise in respect of any taxes, fees, assessments or other governmental charges; provided that it is understood and acknowledged that the Borrower will be consolidated with the Servicer for tax purposes.

 

(v)                                  Servicer Termination Event .  No event has occurred which constitutes a Servicer Termination Event (other than any Servicer Termination Event which has previously been disclosed to the Agent as such).

 

(w)                                Broker-Dealer .  The Servicer is not a broker-dealer or subject to the Securities Investor Protection Act of 1970, as amended.

 

(x)                                    Compliance with Applicable Law . The Servicer has complied in all material respects with all Applicable Law to which it may be subject, and no Loan Asset in the Collateral Portfolio contravenes in any respect any Applicable Law.

 

(y)                                  Reaffirmation of Representations and Warranties .  The Servicer hereby reaffirms that each representation and warranty made pursuant to the Original Agreement and represents and warrants that each such representation and warranty was, as of its date, true and correct in all material respects and that, immediately prior to this amendment and restatement of this Agreement, there existed no breach of any covenant or agreement of the Servicer under the Original Agreement prior to the Restatement Date. For the avoidance of doubt, the Servicer hereby agrees that any such breach of any representation, warranty, covenant or agreement under the Original Agreement shall be treated as a breach of a representation or warranty under this Section 4.03 .

 

SECTION 4.04                                                                     Representations and Warranties of the Trustee .  The Trustee in its individual capacity and as Trustee represents and warrants as follows:

 

(a)                                   Organization; Power and Authority .  It is a duly organized and validly existing national banking association in good standing under the laws of the United States.  It has full corporate power, authority and legal right to execute, deliver and perform its obligations as Trustee under this Agreement.

 

(b)                                  Due Authorization .  The execution and delivery of this Agreement and the consummation of the transactions provided for herein have been duly authorized by all necessary association action on its part, either in its individual capacity or as Trustee, as the case may be.

 

(c)                                   No Conflict .  The execution and delivery of this Agreement, the performance of the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with, result in any breach of its articles of incorporation or bylaws or any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Trustee is a party or by which it or any of its property is bound.

 

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(d)                                  No Violation .  The execution and delivery of this Agreement, the performance of the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with or violate, in any material respect, any Applicable Law.

 

(e)                                   All Consents Required .  All approvals, authorizations, consents, orders or other actions of any Person or Governmental Authority applicable to the Trustee, required in connection with the execution and delivery of this Agreement, the performance by the Trustee of the transactions contemplated hereby and the fulfillment by the Trustee of the terms hereof have been obtained.

 

(f)                                     Validity, Etc .  The Agreement constitutes the legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms, except as such enforceability may be limited by applicable Bankruptcy Laws and general principles of equity (whether considered in a suit at law or in equity).

 

SECTION 4.05                                                                     Representations and Warranties of the Note Purchaser .  The Note Purchaser hereby represents and warrants that it is (a) either a Qualified Institutional Buyer under Rule 144A of the Securities Act or an institutional “Accredited Investor” as defined in Rule (1)-501(a)(1)-(3) or (7) under the Securities Act and (b) a “qualified purchaser” under the 1940 Act.

 

SECTION 4.06                                                                     Representations and Warranties of the Collateral Custodian .  The Collateral Custodian in its individual capacity and as Collateral Custodian represents and warrants as follows:

 

(a)                                   Organization; Power and Authority .  It is a duly organized and validly existing national banking association in good standing under the laws of the United States.  It has full corporate power, authority and legal right to execute, deliver and perform its obligations as Collateral Custodian under this Agreement.

 

(b)                                  Due Authorization .  The execution and delivery of this Agreement and the consummation of the transactions provided for herein have been duly authorized by all necessary association action on its part, either in its individual capacity or as Collateral Custodian, as the case may be.

 

(c)                                   No Conflict .  The execution and delivery of this Agreement, the performance of the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with, result in any breach of its articles of incorporation or bylaws or any of the material terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under any indenture, contract, agreement, mortgage, deed of trust, or other instrument to which the Collateral Custodian is a party or by which it or any of its property is bound.

 

(d)                                  No Violation .  The execution and delivery of this Agreement, the performance of the transactions contemplated hereby and the fulfillment of the terms hereof will not conflict with or violate, in any material respect, any Applicable Law.

 

(e)                                   All Consents Required .  All approvals, authorizations, consents, orders or other actions of any Person or Governmental Authority applicable to the Collateral Custodian, required in connection with the execution and delivery of this Agreement, the performance by

 

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the Collateral Custodian of the transactions contemplated hereby and the fulfillment by the Collateral Custodian of the terms hereof have been obtained.

 

(f)                                     Validity, Etc .  The Agreement constitutes the legal, valid and binding obligation of the Collateral Custodian, enforceable against the Collateral Custodian in accordance with its terms, except as such enforceability may be limited by applicable Bankruptcy Laws and general principles of equity (whether considered in a suit at law or in equity).

 

ARTICLE V.

 

GENERAL COVENANTS

 

SECTION 5.01                                                                     Affirmative Covenants of the Borrower .

 

From the Closing Date until the Collection Date:

 

(a)                                   Organizational Procedures and Scope of Business .  The Borrower will observe all organizational procedures required by its certificate of formation, limited liability company agreement and the laws of its jurisdiction of formation. Without limiting the foregoing, the Borrower will limit the scope of its business to: (i) the acquisition of Eligible Loan Assets and the ownership and management of the Portfolio Assets and the related assets in the Collateral Portfolio; (ii) the sale, transfer or other disposition of Loan Assets as and when permitted under the Transaction Documents; (iii) entering into and performing under the Transaction Documents; (iv) consenting or withholding consent as to proposed amendments, waivers and other modifications of the Loan Agreements to the extent not in conflict with the terms of this Agreement or any other Transaction Document; (v) exercising any rights (including but not limited to voting rights and rights arising in connection with a Bankruptcy Event with respect to an Obligor or the consensual or non-judicial restructuring of the debt or equity of an Obligor) or remedies in connection with the Loan Assets and participating in the committees (official or otherwise) or other groups formed by creditors of an Obligor to the extent not in conflict with the terms of this Agreement or any other Transaction Document; and (vi) to engage in any activity and to exercise any powers permitted to limited liability companies under the laws of the State of Delaware that are related to the foregoing and necessary, convenient or advisable to accomplish the foregoing.

 

(b)                                  Special Purpose Entity Requirements .  The Borrower will at all times:  (i) maintain at least one Independent Director; (ii) maintain its own separate books and records and bank accounts; (iii) hold itself out to the public and all other Persons as a legal entity separate from the Equityholder and any other Person (although, in connection with certain advertising and marketing, the Borrower may be identified as a Subsidiary of Ares); (iv) have a Board of Directors separate from that of the Equityholder and any other Person; (v) file its own tax returns, if any, as may be required under Applicable Law, to the extent (1) not part of a consolidated group filing a consolidated return or returns or (2) not treated as a division for tax purposes of another taxpayer, and pay any Taxes so required to be paid under Applicable Law in accordance with the terms of this Agreement; (vi) except as contemplated by the Transaction Documents, not commingle its assets with assets of any other Person; (vii) conduct its business

 

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in its own name and strictly comply with all organizational formalities to maintain its separate existence (although, in connection with certain advertising and marketing, the Borrower may be identified as a Subsidiary of Ares); (viii) maintain separate financial statements, except to the extent that the Borrower’s financial and operating results are consolidated with those of Ares in consolidated financial statements; (ix) pay its own liabilities only out of its own funds; (x) maintain an arm’s-length relationship with its Affiliates and the Equityholder; (xi) pay the salaries of its own employees, if any; (xii) not hold out its credit or assets as being available to satisfy the obligations of others; (xiii) maintain separate office space (which may be a separately identified area in office space shared with one or more Affiliates of the Borrower) and allocate fairly and reasonably any overhead for shared office space; (xiv) use separate stationery, invoices and checks (although, in connection with certain advertising and marketing, the Borrower may be identified as a Subsidiary of Ares); (xv) except as expressly permitted by this Agreement, not pledge its assets as security for the obligations of any other Person; (xvi) correct any known misunderstanding regarding its separate identity; (xvii) maintain adequate capital in light of its contemplated business purpose, transactions and liabilities and pay its operating expenses and liabilities from its own assets; (xviii) cause its Board of Directors to meet at least annually or act pursuant to written consent and keep minutes of such meetings and actions and observe in all material respects all other Delaware limited liability company formalities; (xix) not acquire the obligations or any securities of its Affiliates; and (xx) cause the directors, officers, agents and other representatives of the Borrower to act at all times with respect to the Borrower consistently and in furtherance of the foregoing and in the best interests of the Borrower. Where necessary, the Borrower will obtain proper authorization from its members for limited liability company action.

 

(c)                                   Preservation of Company Existence .  The Borrower will maintain its limited liability company existence in good standing under the laws of its jurisdiction of formation and will promptly obtain and thereafter maintain qualifications to do business as a foreign limited liability company in any other state in which it does business and in which it is required to so qualify under Applicable Law.

 

(d)                                  Compliance with Legal Opinions .  The Borrower shall take all other actions necessary to maintain the accuracy of the factual assumptions set forth in the legal opinions of Latham & Watkins LLP, as special counsel to the Borrower, issued in connection with the Purchase and Sale Agreements and relating to the issues of substantive consolidation and true sale of the Loan Assets.

 

(e)                                   Deposit of Collections .  The Borrower shall promptly (but in no event later than two Business Days after receipt) deposit or cause to be deposited into the Collection Account any and all Available Collections received by the Borrower, the Servicer or any of their Affiliates.

 

(f)                                     Disclosure of Purchase Price .  The Borrower shall disclose to the Agent and the Note Purchaser the purchase price for each Loan Asset proposed to be transferred to the Equityholder and then to the Borrower pursuant to the terms of the Purchase and Sale Agreements.

 

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(g)                                  Obligor Defaults .  The Borrower shall give, or shall cause Servicer to give, notice to the Agent and the Note Purchaser within two Business Days of the Borrower’s, the Transferor’s or the Servicer’s actual knowledge of the occurrence of any default by an Obligor under any Loan Asset.

 

(h)                                  Required Loan Documents .  The Borrower shall deliver to the Collateral Custodian a hard copy of the Required Loan Documents and the Loan Asset Checklist pertaining to each Loan Asset within five Business Days of the Cut-Off Date pertaining to such Loan Asset.

 

(i)                                      Taxes .  The Borrower will file or cause to be filed its tax returns and pay any and all Taxes imposed on it or its property as required by the Transaction Documents (except as contemplated in Section 4.01(m) ).

 

(j)                                      Notice of Event of Default .  The Borrower shall notify the Agent of the occurrence of any Event of Default under this Agreement promptly upon obtaining actual knowledge of such event. In addition, no later than two Business Days following the Borrower’s knowledge or notice of the occurrence of any Event of Default, the Borrower will provide to the Agent a written statement of a Responsible Officer of the Borrower setting forth the details of such event and the action that the Borrower proposes to take with respect thereto.

 

(k)                                   Notice of Material Events .  The Borrower shall, promptly upon becoming aware thereof, notify the Agent of any event or other circumstance that is reasonably likely to have a Material Adverse Effect.

 

(l)                                      Notice of Income Tax Liability .  The Borrower shall furnish to the Agent telephonic or facsimile notice within 10 Business Days (confirmed in writing within five Business Days thereafter) of the receipt of revenue agent reports or other written proposals, determinations or assessments of the Internal Revenue Service or any other taxing authority which propose, determine or otherwise set forth positive adjustments (i) to the Tax liability of Ares or any “affiliated group” (within the meaning of Section 1504(a)(l) of the Code) of which Ares is a member in an amount equal to or greater than $25,000,000 in the aggregate, or (ii) to the Tax liability of the Borrower itself in an amount equal to or greater than $1,000,000 in the aggregate.  Any such notice shall specify the nature of the items giving rise to such adjustments and the amounts thereof.

 

(m)                                Notice of Auditors’ Management Letters .  The Borrower shall promptly notify the Agent after the receipt of any auditors’ management letters received by the Borrower or by its accountants.

 

(n)                                  Notice of Breaches of Representations and Warranties under this Agreement .  The Borrower shall promptly notify the Agent if any representation or warranty set forth in Section 4.01 or Section 4.02 was incorrect at the time it was given or deemed to have been given and at the same time deliver to the Trustee, the Agent and the Note Purchaser a written notice setting forth in reasonable detail the nature of such facts and circumstances.  In particular, but without limiting the foregoing, the Borrower shall notify the Agent in the manner set forth in the preceding sentence before any Cut-Off Date of any facts or circumstances within the knowledge of the Borrower which would render any of the said representations and

 

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warranties untrue at the date when such representations and warranties were made or deemed to have been made.

 

(o)                                  Notice of Breaches of Representations and Warranties under the Purchase and Sale Agreements .  The Borrower confirms and agrees that the Borrower will, upon receipt of notice or discovery thereof, promptly send to the Agent and the Trustee a notice of (i) any breach of any representation, warranty, agreement or covenant under either of the Purchase and Sale Agreements or (ii) any event or occurrence that, upon notice, or upon the passage of time or both, would constitute such a breach, in each case, promptly upon learning thereof

 

(p)                                  Notice of Proceedings .  The Borrower shall notify the Agent, as soon as possible and in any event within three Business Days, after the Borrower receives notice or obtains knowledge thereof, of any settlement of, material judgment (including a material judgment with respect to the liability phase of a bifurcated trial) in or commencement of any material labor controversy, material litigation, material action, material suit or material proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Collateral Portfolio, the Transaction Documents, the Trustee’s, for the benefit of the Secured Parties, interest in the Collateral Portfolio, or the Borrower, the Servicer, the Equityholder or the Transferor or any of their Affiliates. For purposes of this Section 5.01(p) , (i) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Collateral Portfolio, the Transaction Documents, the Trustee’s, for the benefit of the Secured Parties, interest in the Collateral Portfolio, or the Borrower or the Equityholder in excess of $1,000,000 shall be deemed to be material and (ii) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Servicer or the Transferor or any of their Affiliates (other than the Borrower or the Equityholder) in excess of $25,000,000 shall be deemed to be material.

 

(q)                                  Notice of ERISA Reportable Events .  The Borrower shall promptly notify the Agent after receiving notice of any “reportable event” (as defined in Title IV of ERISA, other than an event for which the reporting requirements have been waived by regulations) with respect to the Borrower (or any Affiliate thereof), a copy of such notice.

 

(r)                                     Notice of Accounting Changes .  As soon as possible and in any event within three Business Days after the effective date thereof, the Borrower will provide to the Agent notice of any change in the accounting policies of the Borrower.

 

(s)                                   Additional Documents .  The Borrower shall provide the Agent with copies of such documents as the Agent may reasonably request evidencing the truthfulness of the representations set forth in this Agreement.

 

(t)                                     Protection of Security Interest .  With respect to the Collateral Portfolio acquired by the Borrower, the Borrower will (i) with respect to the Collateral Portfolio acquired on and after the Restatement Date, acquire such Collateral Portfolio pursuant to and in accordance with the terms of the Second Tier Purchase and Sale Agreement, (ii) (at the expense of the Servicer, on behalf of the Borrower) take all action necessary to perfect, protect and more fully evidence the Borrower’s ownership of such Collateral Portfolio free and clear of any Lien other than the Lien created hereunder and Permitted Liens, including, without limitation, (a) with

 

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respect to the Loan Assets and that portion of the Collateral Portfolio in which a security interest may be perfected by filing, filing and maintaining (at the expense of the Servicer, on behalf of the Borrower), effective financing statements against the Equityholder in all necessary or appropriate filing offices, (including any amendments thereto or assignments thereof) and filing continuation statements, amendments or assignments with respect thereto in such filing offices, (including any amendments thereto or assignments thereof) and (b) executing or causing to be executed such other instruments or notices as may be necessary or appropriate, (iii) (at the expense of the Servicer, on behalf of the Borrower) take all action necessary to cause a valid, subsisting and enforceable first priority perfected security interest, subject only to Permitted Liens, to exist in favor of the Trustee (for the benefit of the Secured Parties) in the Borrower’s interests in all of the Collateral Portfolio being Pledged hereunder including the filing of a UCC financing statement in the applicable jurisdiction adequately describing the Collateral Portfolio (which may include an “all asset” filing), and naming the Borrower as debtor and the Trustee as the secured party, and filing continuation statements, amendments or assignments with respect thereto in such filing offices, (including any amendments thereto or assignments thereof), (iv) permit the Agent or its agents or representatives to visit the offices of the Borrower during normal office hours and upon reasonable advance notice examine and make copies of all documents, books, records and other information concerning the Collateral Portfolio and discuss matters related thereto with any of the officers or employees of the Borrower having knowledge of such matters, and (v) take all additional action that the Agent or the Trustee may reasonably request to perfect, protect and more fully evidence the respective first priority perfected security interests of the parties to this Agreement in the Collateral Portfolio, or to enable the Agent or the Trustee to exercise or enforce any of their respective rights hereunder.

 

(u)                                  Liens . The Borrower will promptly notify the Agent of the existence of any Lien on the Collateral Portfolio (other than Permitted Liens) and the Borrower shall defend the right, title and interest of the Trustee, for the benefit of the Secured Parties, in, to and under the Collateral Portfolio against all claims of third parties.

 

(v)                                  Other Documents .  At any time from time to time upon prior written request of the Agent, at the sole expense of the Borrower, the Borrower will promptly and duly execute and deliver such further instruments and documents and take such further actions as the Agent may reasonably request for the purposes of obtaining or preserving the full benefits of this Agreement including the first priority security interest (subject only to Permitted Liens) granted hereunder and of the rights and powers herein granted (including, among other things, authorizing the filing of such UCC financing statements as the Agent may request).

 

(w)                                Compliance with Law.   The Borrower shall at all times comply in all material respects with all Applicable Law applicable to Borrower or any of its assets (including, without limitation, Environmental Laws, and all federal securities laws), and Borrower shall do or cause to be done all things necessary to preserve and maintain in full force and effect its legal existence, and all licenses material to its business.

 

(x)                                    Proper Records .  The Borrower shall at all times keep proper books of records and accounts in which full, true and correct entries shall be made of its transactions in accordance with GAAP.

 

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(y)                                  Satisfaction of Obligations .  The Borrower shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all its material obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves with respect thereto have been provided on the books of the Borrower.

 

(z)                                    Performance of Covenants .  The Borrower shall observe, perform and satisfy all the material terms, provisions, covenants and conditions required to be observed, performed or satisfied by it, and shall pay when due all costs, fees and expenses required to be paid by it, under the Transaction Documents. The Borrower shall pay and discharge all Taxes, levies, liens and other charges on it or its assets and on the Collateral Portfolio that, in each case, in any manner would create any lien or charge upon the Collateral Portfolio, except for any such Taxes as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided.

 

(aa)                             Tax Treatment .  The Borrower, the Transferor, the Equityholder and the Note Purchaser shall treat the Advances advanced hereunder as indebtedness of the Borrower (or, so long as the Borrower is treated as a disregarded entity for U.S. federal income tax purposes, as indebtedness of the entity of which it is considered to be a part) for U.S. federal income tax purposes and to file any and all tax forms in a manner consistent therewith.

 

(bb)                           Maintenance of Records .  The Borrower will maintain records with respect to the Collateral Portfolio and the conduct and operation of its business with no less a degree of prudence than if the Collateral Portfolio were held by the Borrower for its own account and will furnish the Agent, upon the reasonable request by the Agent, information with respect to the Collateral Portfolio and the conduct and operation of its business.

 

(cc)                             Obligor Notification Forms .  The Borrower shall furnish the Trustee and the Agent with an appropriate power of attorney to send (at the Agent’s discretion on the Trustee’s behalf, after the occurrence or declaration of the Facility Maturity Date but subject to the proviso in Section 7.02(a) ) Obligor notification forms to give notice to the Obligors of the Trustee’s interest in the Collateral Portfolio and the obligation to make payments as directed by the Agent on the Trustee’s behalf.

 

(dd)                           Officer’s Certificate .  On each anniversary of the date of this Agreement, the Borrower shall deliver an Officer’s Certificate, in form and substance acceptable to the Agent, providing (i) a certification, based upon a review and summary of UCC search results, that there is no other interest in the Collateral Portfolio perfected by filing of a UCC financing statement other than in favor of the Trustee and (ii) a certification, based upon a review and summary of tax and judgment lien searches satisfactory to the Agent, that there is no other interest in the Collateral Portfolio based on any tax or judgment lien.

 

(ee)                             Continuation Statements . The Borrower shall, not earlier than six months and not later than three months prior to the fifth anniversary of the date of filing of the financing statement referred to in Schedule I hereto or any other financing statement filed pursuant to this Agreement or in connection with any Advance hereunder, unless the Collection Date shall have occurred:

 

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(i)                                      authorize and deliver and file or cause to be filed an appropriate continuation statement with respect to such financing statement; and

 

(ii)                                   deliver or cause to be delivered to the Trustee and the Agent an opinion of the counsel for the Borrower, in form and substance reasonably satisfactory to the Agent, confirming and updating the opinion delivered pursuant to Schedule I with respect to perfection and otherwise to the effect that the security interest hereunder continues to be an enforceable and perfected security interest, subject to no other Liens of record except as specified therein, provided herein or otherwise permitted hereunder, which opinion may contain usual and customary assumptions, limitations and exceptions.

 

SECTION 5.02                                                                     Negative Covenants of the Borrower .

 

From the Closing Date until the Collection Date:

 

(a)                                   Special Purpose Entity Requirements .  Except as otherwise permitted by this Agreement, the Borrower shall not (i) guarantee any obligation of any Person, including any Affiliate; (ii) engage, directly or indirectly, in any business, other than the actions required or permitted to be performed under the Transaction Documents; (iii) incur, create or assume any Indebtedness, other than Indebtedness incurred under the Transaction Documents and arising in connection with ordinary business expenses arising pursuant to the transactions contemplated by this Agreement and the other Transaction Documents; (iv) make or permit to remain outstanding any loan or advance to, or own or acquire any stock or securities (other than any equity or other securities retained pursuant to Section 6.05 ) of, any Person, except that the Borrower may invest in those Loan Assets and other investments permitted under the Transaction Documents and may make any advance required or expressly permitted to be made pursuant to any provisions of the Transaction Documents and permit the same to remain outstanding in accordance with such provisions; (v) fail to pay its debts and liabilities from its assets when due; (vi) create, form or otherwise acquire any Subsidiaries or (vii) release, sell, transfer, convey or assign any Loan Asset unless in accordance with the Transaction Documents.

 

(b)                                  Requirements for Material Actions .  The Borrower shall not fail to provide that the unanimous consent of all members (including the consent of the Independent Director(s)) is required for the Borrower to (i) dissolve or liquidate, in whole or part, or institute proceedings to be adjudicated bankrupt or insolvent, (ii) institute or consent to the institution of bankruptcy or insolvency proceedings against it, (iii) file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy or insolvency, (iv) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Borrower, (v) make any assignment for the benefit of the Borrower’s creditors, (vi) admit in writing its inability to pay its debts generally as they become due, or (vii) take any action in furtherance of any of the foregoing.

 

(c)                                   Protection of Title .  The Borrower shall not take any action which would directly or indirectly impair or adversely affect Borrower’s title to the Collateral Portfolio.

 

(d)                                  Transfer Limitations .  The Borrower shall not transfer, assign, convey, grant, bargain, sell, set over, deliver or otherwise dispose of, or pledge or hypothecate, directly or

 

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indirectly, any interest in the Collateral Portfolio to any person other than the Trustee for the benefit of the Secured Parties, or engage in financing transactions or similar transactions with respect to the Collateral Portfolio with any person other than the Agent and the Note Purchaser, in each case, except as otherwise expressly permitted by the terms of this Agreement.

 

(e)                                   Liens .  The Borrower shall not create, incur or permit to exist any lien, encumbrance or security interest in or on any of the Collateral Portfolio subject to the security interest granted by the Borrower pursuant to this Agreement, other than Permitted Liens.

 

(f)                                     Organizational Documents .  The Borrower shall not modify or terminate any of the organizational or operational documents of the Borrower without the prior written consent of the Agent.

 

(g)                                  Adverse Claims .  Subject to the terms of the Intercreditor Agreement, the Borrower will not create, or participate in the creation of, or permit to exist, any Liens in relation to the Concentration Account other than as disclosed to the Agent and the Trustee and existing as of the date of this Agreement.

 

(h)                                  Merger, Acquisitions, Sales, etc .  The Borrower shall not change its organizational structure, enter into any transaction of merger or consolidation or amalgamation, or asset sale (other than pursuant to Section 2.07 ), or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) without the prior written consent of the Agent.

 

(i)                                      Use of Proceeds .  The Borrower shall not use the proceeds of any Advance other than to finance the purchase by the Borrower from the Equityholder on a “true sale” basis, of Collateral Portfolio pursuant to the terms of the Second Tier Purchase and Sale Agreement.

 

(j)                                      Limited Assets .  The Borrower shall not hold or own any assets that are not part of the Collateral Portfolio other than with respect to any assets released from the Lien of the Trustee hereunder following (i) a substitution effected in accordance with Section 2.07(a) (so long as the Borrower has Pledged a Substitute Eligible Loan Asset in connection therewith), (ii) an Optional Sale in connection with a Permitted Refinancing effected in accordance with Section 2.07(c) , (iii) a Lien Release Dividend effected in accordance with Section 2.07(d) or (iv) a repurchase or substitution of a Warranty Loan Asset effected in accordance with Section 2.07(e) .

 

(k)                                   Tax Treatment .  The Borrower shall not elect to be treated as a corporation for U.S. federal income tax purposes and shall take all reasonable steps necessary to avoid being treated as a corporation for U. S. federal income tax purposes.

 

(l)                                      Extension or Amendment of Collateral Portfolio .  The Borrower will not, except as otherwise permitted in Section 6.04(a) of this Agreement and in accordance with the Credit Policy and the Servicing Standard, extend, amend or otherwise modify the terms of any Loan Asset (including the Underlying Collateral).

 

(m)                                Second Tier Purchase and Sale Agreement .  The Borrower will not amend, modify, waive or terminate any provision of the Second Tier Purchase and Sale Agreement without the prior written consent of the Agent.

 

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(n)                                  Restricted Junior Payments .  The Borrower shall not make any Restricted Junior Payment, except that, so long as no Event of Default or Unmatured Event of Default has occurred or would result therefrom, the Borrower may declare and make distributions to its member on its membership interests.

 

(o)                                  ERISA Matters .  The Borrower will not (a) engage, and will exercise its best efforts not to permit any ERISA Affiliate to engage, in any prohibited transaction (within the meaning of ERISA Section 406(a) or (b) or Code Section 4975) for which an exemption is not available or has not previously been obtained from the United States Department of Labor, (b) fail to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, (c) fail to make any payments to a Multiemployer Plan that the Borrower or any ERISA Affiliate may be required to make under the agreement relating to such Multiemployer Plan or any law pertaining thereto, (d) terminate any Benefit Plan so as to result, directly or indirectly in any liability to the Borrower, or (e) permit to exist any occurrence of any reportable event described in Title IV of ERISA with respect to any Pension Plan, other than an event for which reporting requirements have been waived by regulations.

 

(p)                                  Instructions to Obligors .  On or prior to the Account Transition Deadline, the Borrower will not make any change, or permit the Servicer to make any change, in its instructions to Obligors regarding payments to be made with respect to the Collateral Portfolio to the Concentration Account (other than the instructions directing Obligors to make payments directly to the Collection Account), unless the Agent has consented to such change (such consent not to be unreasonably withheld or delayed). After the Account Transition Deadline, the Borrower will not make any change, or permit the Servicer to make any change, in its instructions to Obligors regarding payments to be made with respect to the Collateral Portfolio to the Collection Account, unless the Agent has consented to such change (such consent not to be unreasonably withheld or delayed, it being understood that any such account to which the Obligors may be instructed to make payments shall be subject to an account control agreement which provides the Trustee with a first priority perfected security interest in such account, as evidenced by an Opinion of Counsel reasonably acceptable to the Agent).

 

(q)                                  Taxable Mortgage Pool Matters .  The sum of the Outstanding Balances of all Loan Assets owned by the Borrower and that are principally secured by an interest in real property (within the meaning of Treasury Regulation Section 301.7701(i)-1(d)(3)) shall not at any time exceed 35% of the aggregate Outstanding Balance of all Loan Assets.

 

(r)                                     Change of Jurisdiction, Location, Names or Location of Loan Asset Files . The Borrower shall not change the jurisdiction of its formation, make any change to its corporate name or use any tradenames, fictitious names, assumed names, “doing business as” names or other names (other than those listed on Schedule II hereto, as such schedule may be revised from time to time to reflect name changes and name usage permitted under the terms of this Section 5.02(r) after compliance with all terms and conditions of this Section 5.02(r) related thereto) unless, prior to the effective date of any such change in the jurisdiction of its formation, name change or use, the Borrower receives prior written consent from the Agent of such change and delivers to the Agent such financing statements as the Agent may request to reflect such name change or use, together with such Opinions of Counsel and other documents and instruments as

 

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the Agent may request in connection therewith.  The Borrower will not change the location of its chief executive office unless prior to the effective date of any such change of location, the Borrower notifies the Agent of such change of location in writing. The Borrower will not move, or consent to the Collateral Custodian or the Servicer moving, the Loan Asset Files from the location thereof on the Restatement Date, unless 30 days prior to the effective date of any such move, the Borrower notifies the Agent of such move in writing.

 

(s)                                   Allocation of Charges .  There will not be any agreement or understanding between the Servicer and the Borrower (other than as expressly set forth herein or as consented to by the Agent), providing for the allocation or sharing of obligations to make payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges; provided that it is understood and acknowledged that the Borrower will be consolidated with the Servicer for tax purposes.

 

(t)                                     Deposits to Special Accounts .  On or prior to the Account Transition Deadline, except as otherwise contemplated by the Intercreditor Agreement, the Borrower will not deposit or otherwise credit, or cause to be so deposited or credited, to the Concentration Account cash or cash proceeds other than Available Collections in respect of the Collateral Portfolio. After the Account Transition Deadline, the Borrower will not deposit or otherwise credit, or cause to be so deposited or credited, to the Collection Account cash or cash proceeds other than Available Collections in respect of the Collateral Portfolio.

 

(u)                                  Changes in Payment Instructions to Obligors .  On or prior to the Account Transition Deadline, the Borrower will not add or terminate any bank as a Concentration Account Bank or the Concentration Account (as defined herein), unless the Agent has consented to such addition or termination (which consent shall not be unreasonably withheld or delayed) and has received duly executed copies of the Intercreditor Agreement (incorporating appropriate amendments), with each new Concentration Account Bank being a party thereto.

 

SECTION 5.03                                                                     Affirmative Covenants of the Servicer .

 

From the Closing Date until the Collection Date:

 

(a)                                   Compliance with Law .  The Servicer will comply in all material respects with all Applicable Law, including those with respect to servicing the Collateral Portfolio or any part thereof pursuant to the terms hereof.

 

(b)                                  Preservation of Company Existence .  The Servicer will preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect.

 

(c)                                   Obligations and Compliance with Collateral Portfolio .  The Servicer will duly fulfill and comply with all obligations on the part of the Borrower to be fulfilled or complied with under or in connection with the administration of each item of Collateral Portfolio and will do nothing to impair the rights of the Trustee, for the benefit of the Secured Parties, or of the Secured Parties in, to and under the Collateral Portfolio.  It is understood and agreed that

 

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the Servicer does not hereby assume any obligations of the Borrower in respect of any Advances or assume any responsibility for the performance by the Borrower of any of its obligations hereunder or under any other agreement executed in connection herewith that would be inconsistent with the limited recourse undertaking of the Servicer, in its capacity as seller, under Section 2.1(e) of the First Tier Purchase and Sale Agreement.

 

(d)                                  Keeping of Records and Books of Account .

 

(i)                                      The Servicer will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Collateral Portfolio in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Collateral Portfolio and the identification of the Collateral Portfolio.

 

(ii)                                   The Servicer shall permit the Agent or its respective agents or representatives, to visit the offices of the Servicer during normal office hours and upon reasonable advance notice and examine and make copies of all documents, books, records and other information concerning the Collateral Portfolio and the Servicer’s servicing thereof and discuss matters related thereto with any of the officers or employees of the Servicer having knowledge of such matters.

 

(iii)                                The Servicer will on or prior to the Restatement Date, mark its master data processing records and other books and records relating to the Collateral Portfolio with a legend, acceptable to the Agent describing (i) the sale of the Collateral Portfolio (A) from the Transferor to the Equityholder and (B) from the Equityholder to the Borrower and (ii) the Pledge from the Borrower to the Trustee, for the benefit of the Secured Parties.

 

(e)                                   Preservation of Security Interest .  The Servicer (at its own expense, on behalf of the Borrower) will file such financing and continuation statements and any other documents that may be required by any law or regulation of any Governmental Authority to preserve and protect fully the first priority perfected security interest of the Trustee, for the benefit of the Secured Parties, in, to and under the Loan Assets and that portion of the Collateral Portfolio in which a security interest may be perfected by filing.

 

(f)                                     Credit Policy .  The Servicer will (i) comply in all material respects with the Credit Policy and the Servicing Standard in regard to the Collateral Portfolio, and (ii) furnish to the Agent, prior to its effective date, prompt written notice of any changes in the Credit Policy.  The Servicer will not agree to or otherwise permit to occur any change in the Credit Policy that could have a Material Adverse Effect without the prior written consent of the Agent; provided that, no consent shall be required from the Agent in connection with any change mandated by Applicable Law or a Governmental Authority as evidenced by an Opinion of Counsel to that effect delivered to the Agent.

 

(g)                                  Events of Default .  The Servicer will provide the Agent (with a copy to the Trustee) with immediate written notice of the occurrence of each Event of Default and each

 

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Unmatured Event of Default of which the Servicer has knowledge or has received notice.  In addition, no later than two Business Days following the Servicer’s knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default, the Servicer will provide to the Trustee and the Agent a written statement of the chief financial officer or chief accounting officer of the Servicer setting forth the details of such event and the action that the Servicer proposes to take with respect thereto.

 

(h)                                  Taxes .  The Servicer will file its tax returns and pay any and all Taxes imposed on it or its property as required under the Transaction Documents (except as contemplated by Section 4.03(m) ).

 

(i)                                      Other .  The Servicer will promptly furnish to the Trustee and the Agent such other information, documents, records or reports respecting the Collateral Portfolio or the condition or operations, financial or otherwise, of the Borrower or the Servicer as the Trustee and the Agent may from time to time reasonably request in order to protect the interests of the Agent, the Trustee or Secured Parties under or as contemplated by this Agreement.

 

(j)                                      Proceedings Related to the Borrower, the Transferor and the Servicer and the Transaction Documents .  The Servicer shall notify the Agent as soon as possible and in any event within three Business Days after any executive officer of the Servicer receives notice or obtains knowledge thereof of any settlement of, judgment (including a judgment with respect to the liability phase of a bifurcated trial) in or commencement of any labor controversy, litigation, action, suit or proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that could reasonably be expected to have a Material Adverse Effect on the Borrower, the Transferor or the Servicer (or any of their Affiliates) or the Transaction Documents. Solely for purposes of this Section 5.03(j) , (i) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Transaction Documents or the Borrower in excess of $1,000,000 shall be deemed to be expected to have such a Material Adverse Effect and (ii) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Servicer or the Transferor or any of their Affiliates (other than the Borrower) in excess of $25,000,000 shall be deemed to be expected to have such a Material Adverse Effect.

 

(k)                                   Deposit of Collections . The Servicer shall promptly (but in no event later than two Business Days after receipt) deposit or cause to be deposited into the Collection Account any and all Available Collections received by the Borrower, the Servicer or any of their Affiliates.

 

(l)                                      Loan Asset Register .

 

(i)                                      The Servicer shall maintain, or cause to be maintained, with respect to each Noteless Loan Asset a register (which may be in physical or electronic form and readily identifiable as the loan asset register) (each, a “ Loan Asset Register ”) in which it will record, or cause to be recorded, (v) the amount of such Noteless Loan Asset, (w) the amount of any principal or interest due and payable or to become due and payable from the Obligor thereunder, (x) the amount of any sum in respect of such Noteless Loan

 

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Asset received from the Obligor, (y) the date of origination of such Noteless Loan Asset and (z) the maturity date of such Noteless Loan Asset.

 

(ii)                                   At any time a Noteless Loan Asset is included as part of the Collateral Portfolio pursuant to this Agreement, the Servicer shall deliver to the Agent, the Trustee and the Collateral Custodian a copy of the related Loan Asset Register, together with a certificate of a Responsible Officer of the Servicer (in the form of Exhibit R ) certifying to the accuracy of such Loan Asset Register as of the applicable Cut-Off Date.

 

(m)                                Special Purpose Entity Requirements .  The Servicer shall take such actions as are necessary to cause the Borrower to be in compliance with the special purpose entity requirements set forth in Sections 5.01(a) and (b) and 5.02(a) and (b) .

 

(n)                                  Accounting Changes .  As soon as possible and in any event within three Business Days after the effective date thereof, the Servicer will provide to the Agent notice of any change in the accounting policies of the Servicer.

 

(o)                                  Proceedings Related to the Collateral Portfolio .  The Servicer shall notify the Agent as soon as possible and in any event within three Business Days after any Responsible Officer of the Servicer receives notice or has actual knowledge of any settlement of, judgment (including a judgment with respect to the liability phase of a bifurcated trial) in or commencement of any labor controversy, litigation, action, suit or proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that could reasonably be expected to have a Material Adverse Effect on the interests of the Trustee or the Secured Parties in, to and under the Collateral Portfolio. Solely, for purposes of this Section 5.03(o) , any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Collateral Portfolio or the Trustee’s or the Secured Parties’ interest in the Collateral Portfolio that may reduce the value of the Collateral Portfolio in excess of $2,500,000 or more shall be deemed to be expected to have such a Material Adverse Effect.

 

(p)                                  Compliance with Legal Opinions . The Servicer shall take all other actions necessary to maintain the accuracy of the factual assumptions set forth in the legal opinions of Latham & Watkins LLP, as special counsel to the Servicer, issued in connection with the Transaction Documents and relating to the issues of substantive consolidation and true sale of the Loan Assets.

 

(q)                                  Instructions to Agents and Obligors . The Servicer shall direct, or shall cause the Transferor or the Equityholder to direct, any agent or administrative agent for any Loan Asset to remit all payments and collections with respect to such Loan Asset, and, if applicable, to direct the Obligor with respect to such Loan Asset to remit all such payments and collections with respect to such Loan Asset directly to (i) on or prior to the Account Transition Deadline, the Concentration Account or the Collection Account and (ii) after the Account Transition Deadline, the Collection Account. The Borrower and the Servicer shall take commercially reasonable steps to ensure, and shall cause the Transferor or the Equityholder to take commercially reasonable steps to ensure, that only funds constituting payments and collections relating to Loan Assets shall be deposited into the Collection Account.

 

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(r)                                     Capacity as Servicer . The Servicer will ensure that, at all times when it is dealing with or in connection with the Loan Assets in its capacity as Servicer, it holds itself out as Servicer, and not in any other capacity.

 

(s)                                   Notice of Breaches of Representations and Warranties under the Purchase and Sale Agreements .  The Servicer confirms and agrees that the Servicer will, upon receipt of notice or discovery thereof, promptly send to the Agent and the Trustee a notice of (i) any breach of any representation, warranty, agreement or covenant under either of the Purchase and Sale Agreements or (ii) any event or occurrence that, upon notice, or upon the passage of time or both, would constitute such a breach, in each case, promptly upon learning thereof

 

(t)                                     Audits . Prior to the Restatement Date and periodically thereafter at the discretion of the Agent, the Servicer shall allow the Agent (during normal office hours and upon reasonable advance notice) to review the Servicer’s collection and administration of the Collateral Portfolio in order to assess compliance by the Servicer with the Credit Policy and the Servicing Standard, as well as with the Transaction Documents and to conduct an audit of the Collateral Portfolio and Required Loan Documents in conjunction with such a review.  Such review shall be reasonable in scope and shall be completed in a reasonable period of time.

 

(u)                                  Notice of Breaches of Representations and Warranties under this Agreement .  The Servicer shall promptly, upon receipt of notice or discovery thereof, notify the Agent if any representation or warranty set forth in Section 4.03 was incorrect at the time it was given or deemed to have been given and at the same time deliver to the Trustee, the Agent and the Note Purchaser a written notice setting forth in reasonable detail the nature of such facts and circumstances.  In particular, but without limiting the foregoing, the Servicer shall notify the Agent in the manner set forth in the preceding sentence before any Cut-Off Date of any facts or circumstances within the knowledge of the Servicer which would render any of the said representations and warranties untrue at the date when such representations and warranties were made or deemed to have been made.

 

(v)                                  Insurance Policies . The Servicer has caused, and will cause, to be performed any and all acts reasonably required to be performed to preserve the rights and remedies of the Trustee and the Secured Parties in any Insurance Policies applicable to Loan Assets (to the extent the Servicer or an Affiliate of the Servicer is the agent or servicer under the applicable Loan Agreement) including, without limitation, in each case, any necessary notifications of insurers, assignments of policies or interests therein, and establishments of co-insured, joint loss payee and mortgagee rights in favor of the Trustee and the Secured Parties; provided that, unless the Borrower is the sole lender under such Loan Agreement, the Servicer shall only take such actions that are customarily taken by or on behalf of a lender in a syndicated loan facility to preserve the rights of such lender.

 

(w)                                Concentration Account .  The Servicer will maintain exclusive ownership, dominion and control (subject to the terms of the Intercreditor Agreement) of the Concentration Account and shall not grant the right to take dominion and control of the Concentration Account to any Person, except to the Agent as contemplated by this Agreement and except as otherwise contemplated by the Intercreditor Agreement.

 

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SECTION 5.04                                                                     Negative Covenants of the Servicer .

 

From the Closing Date until the Collection Date:

 

(a)                                   Mergers, Acquisition, Sales, etc .  Other than the Acquisition, the Servicer will not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless the Servicer is the surviving entity and unless:

 

(i)                                      the Servicer has delivered to the Agent an Officer’s Certificate and an Opinion of Counsel each stating that any such consolidation, merger, conveyance or transfer and any supplemental agreement executed in connection therewith comply with this Section 5.04 and that all conditions precedent herein provided for relating to such transaction have been complied with and, in the case of the Opinion of Counsel, that such supplemental agreement is legal, valid and binding with respect to the Servicer and such other matters as the Agent may reasonably request;

 

(ii)                                   the Servicer shall have delivered notice of such consolidation, merger, conveyance or transfer to the Agent;

 

(iii)                                after giving effect thereto, no Event of Default or Servicer Termination Event or event that with notice or lapse of time would constitute either an Event of Default or a Servicer Termination Event shall have occurred; and

 

(iv)                               the Agent shall have consented in writing to such consolidation, merger, conveyance or transfer.

 

(b)                                  Change of Name or Location of Loan Asset Files .  The Servicer shall not (x) change its name, move the location of its principal place of business and chief executive office, change the offices where it keeps records concerning the Collateral Portfolio from the address set forth under its name in Section 11.02 , or change the jurisdiction of its formation, or (y) move, or consent to the Collateral Custodian moving, the Required Loan Documents and Loan Asset Files from the location thereof on the initial Advance Date, unless the Servicer has given at least 30 days’ written notice to the Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to continue the first priority perfected security interest of the Trustee, for the benefit of the Secured Parties, in the Collateral Portfolio.

 

(c)                                   Change in Payment Instructions to Obligors .  On or prior to the Account Transition Deadline, the Servicer will not make any change in its instructions to Obligors regarding payments to be made with respect to the Collateral Portfolio to the Concentration Account (other than the instructions directing Obligors to make payments directly to the Collection Account), unless the Agent has consented to such change (such consent not to be unreasonably withheld or delayed).  After the Account Transition Deadline, the Servicer will not make any change in its instructions to Obligors regarding payments to be made with respect to the Collateral Portfolio to the Collection Account, unless the Agent has consented to such change (such consent not to be unreasonably withheld or delayed, it being understood that any such account to which the Obligors may be instructed to make payments shall be subject to an account

 

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control agreement which provides the Trustee with a first priority perfected security interest in such account, as evidenced by an Opinion of Counsel reasonably acceptable to the Agent).

 

(d)                                  Extension or Amendment of Loan Assets .  The Servicer will not, except as otherwise permitted in Section 6.04(a) , extend, amend or otherwise modify the terms of any Loan Asset (including the Underlying Collateral).

 

(e)                                   Taxable Mortgage Pool Matters .  The Servicer will manage the portfolio and advise the Borrower with respect to purchases from the Equityholder so as to not at any time allow the sum of the Outstanding Balances of all Loan Assets owned by the Borrower and that are principally secured by an interest in real property (within the meaning of Treasury Regulation Section 301.7701(i)-1(d)(3)) to exceed 35% of the aggregate Outstanding Balance of all Loan Assets.

 

(f)                                     Allocation of Charges . There will not be any agreement or understanding between the Servicer and the Borrower (other than as expressly set forth herein or as consented to by the Agent), providing for the allocation or sharing of obligations to make payments or otherwise in respect of any Taxes, fees, assessments or other governmental charges; provided that it is understood and acknowledged that the Borrower will be consolidated with the Servicer for tax purposes.

 

(g)                                  Adverse Claims .  Subject to the terms of the Intercreditor Agreement, the Servicer will not create, or participate in the creation of, or permit to exist, any Liens in relation to the Concentration Account other than as disclosed to the Agent and the Trustee and existing as of the date of this Agreement.

 

(h)                                  Deposits to Special Accounts .  Except as otherwise contemplated by the Intercreditor Agreement, the Servicer will not deposit or otherwise credit, or cause to be so deposited or credited, to the Concentration Account cash or cash proceeds other than Available Collections in respect of the Collateral Portfolio.

 

(i)                                      Changes in Payment Instructions to Obligors .  The Servicer will not add or terminate any bank as a Concentration Account Bank or the Concentration Account (as defined herein) or make any change, or permit the Servicer to make any change, in its instructions to Obligors regarding payments to be made with respect to the Collateral Portfolio to the Concentration Account Bank (other than instructions directing the Obligors to make payments directly to the Collection Account), unless the Agent has consented to such addition, termination or change (which consent shall not be unreasonably withheld or delayed) and has received duly executed copies of the Intercreditor Agreement (incorporating appropriate amendments), with each new Concentration Account Bank being a party thereto.

 

SECTION 5.05                                                                     Affirmative Covenants of the Trustee .

 

From the Closing Date until the Collection Date:

 

(a)                                   Compliance with Law .  The Trustee will comply in all material respects with all Applicable Law.

 

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(b)                                  Preservation of Existence .  The Trustee will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation and qualify and remain qualified in good standing in each jurisdiction where failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.06                                                                     Negative Covenants of the Trustee .

 

From the Closing Date until the Collection Date, the Trustee will not make any changes to the Trustee Fees without the prior written approval of the Agent.

 

SECTION 5.07                                                                     Affirmative Covenants of the Collateral Custodian .

 

From the Closing Date until the Collection Date:

 

(a)                                   Compliance with Law .  The Collateral Custodian will comply in all material respects with all Applicable Law.

 

(b)                                  Preservation of Existence .  The Collateral Custodian will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation and qualify and remain qualified in good standing in each jurisdiction where failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect.

 

(c)                                   Location of Required Loan Documents .  Subject to Article XII of this Agreement, the Required Loan Documents shall remain at all times in the possession of the Collateral Custodian at the address set forth under its name in Section 11.02 unless notice of a different address is given in accordance with the terms hereof or unless the Agent agrees to allow certain Required Loan Documents to be released to the Servicer on a temporary basis in accordance with the terms hereof, except as such Required Loan Documents may be released pursuant to the terms of this Agreement.

 

SECTION 5.08                                                                     Negative Covenants of the Collateral Custodian .

 

From the Closing Date until the Collection Date:

 

(a)                                   Required Loan Documents .  The Collateral Custodian will not dispose of any documents constituting the Required Loan Documents in any manner that is inconsistent with the performance of its obligations as the Collateral Custodian pursuant to this Agreement and will not dispose of any Collateral Portfolio except as contemplated by this Agreement.

 

(b)                                  No Changes in Collateral Custodian Fees .  The Collateral Custodian will not make any changes to the Collateral Custodian Fees without the prior written approval of the Agent.

 

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ARTICLE VI.

 

ADMINISTRATION AND SERVICING OF CONTRACTS

 

SECTION 6.01                                                                     Appointment and Designation of the Servicer .

 

(a)                                   Initial Servicer .  The Borrower, the Note Purchaser and the Agent hereby appoint Ares, pursuant to the terms and conditions of this Agreement, as Servicer, with the authority to service, administer and exercise rights and remedies, on behalf of the Borrower, in respect of the Collateral Portfolio. Until the Agent gives Ares a Servicer Termination Notice, Ares hereby accepts such appointment and agrees to perform the duties and responsibilities of the Servicer pursuant to the terms hereof. The Servicer and the Borrower hereby acknowledge that the Agent and the Secured Parties are third party beneficiaries of the obligations undertaken by the Servicer hereunder.

 

(b)                                  Servicer Termination Notice .  The Borrower, the Servicer, the Note Purchaser, and the Agent hereby agree that, upon the occurrence of a Servicer Termination Event, the Agent, by written notice to the Servicer (with a copy to the Trustee) (a “ Servicer Termination Notice ”), may terminate all of the rights, obligations, power and authority of the Servicer under this Agreement. On and after the receipt by the Servicer of a Servicer Termination Notice pursuant to this Section 6.01(b) , the Servicer shall continue to perform all servicing functions under this Agreement until the date specified in the Servicer Termination Notice or otherwise specified by the Agent in writing or, if no such date is specified in such Servicer Termination Notice or otherwise specified by the Agent, until a date mutually agreed upon by the Servicer and the Agent and shall be entitled to receive, to the extent of funds available therefor pursuant to Section 2.04 , the Servicing Fees therefor until such date. After such date, the Servicer agrees that it will terminate its activities as Servicer hereunder in a manner that the Agent believes will facilitate the transition of the performance of such activities to a successor Servicer, and the successor Servicer shall assume each and all of the Servicer’s obligations to service and administer the Collateral Portfolio, on the terms and subject to the conditions herein set forth, and the Servicer shall use its best efforts to assist the successor Servicer in assuming such obligations.

 

(c)                                   Appointment of Replacement Servicer .  At any time following the delivery of a Servicer Termination Notice, the Agent may, at its discretion, (i) appoint Wachovia as Servicer under this Agreement and, in such case, all authority, power, rights and obligations of the Servicer shall pass to and be vested in Wachovia or (ii) appoint a new Servicer (the “ Replacement Servicer ”), which appointment shall take effect upon the Replacement Servicer accepting such appointment by a written assumption in a form satisfactory to the Agent in its sole discretion. In the event that Wachovia or a Replacement Servicer has not accepted its appointment at the time when the Servicer ceases to act as Servicer, the Agent shall petition a court of competent jurisdiction to appoint any established financial institution, having a net worth of not less than United States $50,000,000 and whose regular business includes the servicing of Collateral Portfolio, as the Replacement Servicer hereunder.

 

(d)                                  Liabilities and Obligations of Replacement Servicer . Upon its appointment, Wachovia or the Replacement Servicer, as applicable, shall be the successor in all

 

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respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to Wachovia or the Replacement Servicer, as applicable; provided , that Wachovia or Replacement Servicer, as applicable, shall have (i) no liability with respect to any action performed by the terminated Servicer prior to the date that Wachovia or Replacement Servicer, as applicable, becomes the successor to the Servicer or any claim of a third party based on any alleged action or inaction of the terminated Servicer, (ii) no obligation to perform any advancing obligations, if any, of the Servicer unless it elects to in its sole discretion, (iii) no obligation to pay any Taxes required to be paid by the Servicer ( provided that Wachovia or Replacement Servicer, as applicable, shall pay any income Taxes for which it is liable), (iv) no obligation to pay any of the fees and expenses of any other party to the transactions contemplated hereby, and (v) no liability or obligation with respect to any Servicer indemnification obligations of any prior Servicer, including the original Servicer.  The indemnification obligations of Wachovia or the Replacement Servicer, as applicable, upon becoming a Replacement Servicer, are expressly limited to those arising on account of its failure to act in good faith and with reasonable care under the circumstances.  In addition, Wachovia or Replacement Servicer, as applicable, shall have no liability relating to the representations and warranties of the Servicer contained in Section 4.03 .

 

(e)                                   Authority and Power . All authority and power granted to the Servicer under this Agreement shall automatically cease and terminate upon termination of this Agreement and shall pass to and be vested in the Borrower and, without limitation, the Borrower is hereby authorized and empowered to execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other instruments, and to do and accomplish all other acts or things necessary or appropriate to effect the purposes of such transfer of servicing rights.  The Servicer agrees to cooperate with the Borrower in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing of the Collateral Portfolio.

 

(f)                                     Subcontracts . The Servicer may, with the prior written consent of the Agent, subcontract with any other Person for servicing, administering or collecting the Collateral Portfolio; provided , that (i) the Servicer shall select any such Person with reasonable care and shall be solely responsible for the fees and expenses payable to any such Person, (ii) the Servicer shall not be relieved of, and shall remain liable for, the performance of the duties and obligations of the Servicer pursuant to the terms hereof without regard to any subcontracting arrangement and (iii) any such subcontract shall be terminable upon the occurrence of a Servicer Termination Event.

 

(g)                                  Servicing Programs .  In the event that the Servicer uses any software program in servicing the Collateral Portfolio that it licenses from a third party, the Servicer shall use its best efforts to obtain, either before the Closing Date or as soon as possible thereafter, whatever licenses or approvals are necessary to allow the Agent or the Servicer to use such program and to allow the Servicer to assign such licenses to Wachovia or to any other Replacement Servicer appointed as provided in this Agreement.

 

(h)                                  Waiver .  The Borrower acknowledges that the Agent or any of its Affiliates may act as the Trustee and/or the Servicer, and the Borrower waives any and all claims

 

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against the Note Purchaser, the Trustee and the Servicer relating in any way to the custodial or collateral administration functions having been performed by the Agent or any of its Affiliates in accordance with the terms and provisions (including the standard of care) set forth in the Transaction Documents.

 

SECTION 6.02                                                                     Duties of the Servicer .

 

(a)                                   Duties .  The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect on the Collateral Portfolio from time to time, all in accordance with Applicable Law and the Servicing Standard.  Without limiting the foregoing, the duties of the Servicer shall include the following:

 

(i)                                      supervising the Collateral Portfolio, including communicating with Obligors, providing consents and waivers, enforcing and collecting on the Collateral Portfolio and otherwise managing the Collateral Portfolio on behalf of the Borrower;

 

(ii)                                   maintaining all necessary servicing records with respect to the Collateral Portfolio and providing such reports to the Agent (with a copy to the Trustee and the Collateral Custodian) in respect of the servicing of the Collateral Portfolio (including information relating to its performance under this Agreement) as may be required hereunder or as the Agent may reasonably request;

 

(iii)                                maintaining and implementing administrative and operating procedures (including, without limitation, an ability to recreate servicing records evidencing the Collateral Portfolio in the event of the destruction of the originals thereof) and keeping and maintaining all documents, books, records and other information reasonably necessary or advisable for the collection of the Collateral Portfolio;

 

(iv)                               promptly delivering to the Agent, the Trustee or the Collateral Custodian, from time to time, such information and servicing records (including information relating to its performance under this Agreement) as the Agent or the Trustee may from time to time reasonably request;

 

(v)                                  identifying each Loan Asset clearly and unambiguously in its servicing records to reflect that such Loan Asset is owned by the Borrower and that the Borrower is Pledging a security interest therein to the Secured Parties pursuant to this Agreement;

 

(vi)                               notifying the Agent of any material action, suit, proceeding, dispute, offset, deduction, defense or counterclaim (1) that is or is threatened to be asserted by an Obligor with respect to any Loan Asset (or portion thereof) of which it has knowledge or has received notice; or (2) that could reasonably be expected to have a Material Adverse Effect;

 

(vii)                            providing the prompt written notice to the Agent, prior to the effective date thereof, of any proposed changes in the Credit Policy;

 

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(viii)                         using its best efforts to maintain the perfected security interest of the Trustee, for the benefit of the Secured Parties, in the Collateral Portfolio;

 

(ix)                                 maintaining the Loan Asset File with respect to Loan Assets included as part of the Collateral Portfolio; provided that, so long as the Servicer is in possession of any Required Loan Documents, the Servicer will hold such Required Loan Documents in a fireproof safe or fireproof file cabinet;

 

(x)                                    directing the Trustee to make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04 ;

 

(xi)                                 directing the sale or substitution of Collateral Portfolio in accordance with Section 2.07 ;

 

(xii)                              providing administrative assistance to the Borrower with respect to the purchase and sale of and payment for the Loan Assets;

 

(xiii)                           instructing the Obligors and the administrative agents on the Loan Assets to make payments directly into the Collection Account established and maintained with the Trustee;

 

(xiv)                          delivering the Loan Asset Files and the Loan Asset Schedule to the Collateral Custodian; and

 

(xv)                             complying with such other duties and responsibilities as may be required of the Servicer by this Agreement.

 

It is acknowledged and agreed that in circumstances in which a Person other than the Borrower, the Transferor (so long as the Transferor is also the Servicer) or the Servicer acts as lead agent with respect to any Loan Asset, the Servicer shall perform its servicing duties hereunder only to the extent a lender under the related loan syndication Loan Agreements has the right to do so. Notwithstanding anything to the contrary contained herein, it is acknowledged and agreed that the performance by the Servicer of its duties hereunder shall be limited insofar as such performance would conflict with or result in a breach of any of the express terms of the related Loan Agreements; provided that the Servicer shall (a) provide prompt written notice to the Agent upon becoming aware of such conflict or breach, (b) have determined that there is no other commercially reasonable performance that it could render consistent with the express terms of the Loan Agreements which would result in all or a portion of the servicing duties being performed in accordance with this Agreement, and (c) undertake all commercially reasonable efforts to mitigate the effects of such non-performance including performing as much of the servicing duties as possible and performing such other commercially reasonable and/or similar duties consistent with the terms of the Loan Agreements.

 

(b)                                  Notwithstanding anything to the contrary contained herein, the exercise by the Agent, the Trustee and the Secured Parties of their rights hereunder shall not release the Servicer, the Transferor or the Borrower from any of their duties or responsibilities with respect to the Collateral Portfolio.  The Secured Parties, the Agent and the Trustee shall not have any

 

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obligation or liability with respect to any Collateral Portfolio, nor shall any of them be obligated to perform any of the obligations of the Servicer hereunder.

 

(c)                                   Any payment by an Obligor in respect of any indebtedness owed by it to the Transferor or the Borrower shall, except as otherwise specified by such Obligor or otherwise required by contract or law and unless otherwise instructed by the Agent, be applied as a collection of a payment by such Obligor (starting with the oldest such outstanding payment due) to the extent of any amounts then due and payable thereunder before being applied to any other receivable or other obligation of such Obligor.

 

SECTION 6.03                                                                     Authorization of the Servicer .

 

(a)                                   Each of the Borrower, the Agent and the Note Purchaser hereby authorizes the Servicer (including any successor thereto) to take any and all reasonable steps in its name and on its behalf necessary or desirable in the determination of the Servicer and not inconsistent with the sale of the Collateral Portfolio by the Transferor to the Equityholder and the Equityholder to the Borrower under the Purchase and Sale Agreements and, thereafter, the Pledge by the Borrower to the Trustee on behalf of the Secured Parties hereunder, to collect all amounts due under any and all Collateral Portfolio, including, without limitation, endorsing any of their names on checks and other instruments representing Interest Collections and Principal Collections, executing and delivering any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Collateral Portfolio and, after the delinquency of any Collateral Portfolio and to the extent permitted under and in compliance with Applicable Law, to commence proceedings with respect to enforcing payment thereof, to the same extent as the Transferor could have done if it had continued to own such Collateral Portfolio.  The Transferor, the Borrower and the Trustee on behalf of the Secured Parties shall furnish the Servicer (and any successors thereto) with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder, and shall cooperate with the Servicer to the fullest extent in order to ensure the collectability of the Collateral Portfolio.  In no event shall the Servicer be entitled to make the Secured Parties, the Agent, the Trustee or the Note Purchaser a party to any litigation without such party’s express prior written consent, or to make the Borrower a party to any litigation (other than any routine foreclosure or similar collection procedure) without the Agent’s consent.

 

(b)                                  After the declaration of the Facility Maturity Date but subject to the proviso in Section 7.02(a) , at the direction of the Agent, the Servicer shall take such action as the Agent may deem necessary or advisable to enforce collection of the Collateral Portfolio; provided , that the Agent may, at any time that an Event of Default has occurred, notify any Obligor with respect to any Collateral Portfolio of the assignment of such Collateral Portfolio to the Trustee on behalf of the Secured Parties and direct that payments of all amounts due or to become due be made directly to the Agent or any servicer, collection agent or account designated by the Agent and, upon such notification and at the expense of the Borrower, the Agent may enforce collection of any such Collateral Portfolio, and adjust, settle or compromise the amount or payment thereof.

 

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SECTION 6.04                                                                     Collection of Payments; Accounts .

 

(a)                                   Collection Efforts, Modification of Collateral Portfolio .  The Servicer will use its best efforts to collect or cause to be collected, all payments called for under the terms and provisions of the Loan Assets included in the Collateral Portfolio as and when the same become due in accordance with the Credit Policy and the Servicing Standard.  The Servicer may not waive, modify or otherwise vary any provision of an item of Collateral Portfolio in a manner that would impair the collectability of the Collateral Portfolio or in any manner contrary to the Credit Policy or the Servicing Standard.

 

(b)                                  Acceleration .  If required by the Credit Policy or if consistent with the Servicing Standard, the Servicer shall accelerate or vote to accelerate, as applicable, the maturity of all or any Scheduled Payments and other amounts due under any Loan Asset promptly after such Loan Asset becomes defaulted.

 

(c)                                   Taxes and other Amounts .  The Servicer will use its best efforts to collect all payments with respect to amounts due for Taxes, assessments and insurance premiums relating to each Loan Asset to the extent required to be paid to the Borrower for such application under the Loan Agreement and remit such amounts to the appropriate Governmental Authority or insurer as required by the Loan Agreements.

 

(d)                                  Payments to Concentration Account .  (i) On or prior to the Account Transition Deadline, the Servicer shall have instructed all Obligors to make all payments in respect of the Collateral Portfolio directly to the Concentration Account or Collection Account on or before the applicable Cut-Off Date and (ii) after the Account Transition Deadline, the Servicer shall have instructed all Obligors to make all payments in respect of the Collateral Portfolio directly to the Collection Account on or before the applicable Cut-Off Date; provided that the Servicer is not required to so instruct any Obligor which is solely a guarantor unless and until the Servicer calls on the related guaranty.

 

(e)                                   Controlled Accounts . Each of the parties hereto hereby agrees that (i) each Controlled Account is intended to be a “securities account” or “deposit account” within the meaning of the UCC and (ii) except as otherwise expressly provided herein and in the Collection Account Agreement or Unfunded Exposure Account Agreement, as applicable, prior to the delivery of a notice of exclusive control, the Borrower, the Servicer and the Trustee (acting at the direction of the Agent) shall be entitled to exercise the rights that comprise each Financial Asset held in each Controlled Account which is a securities account and have the right to direct the disposition of funds in any Controlled Account which is a deposit account; provided that after the delivery of a notice of exclusive control, such rights shall be exclusively held by the Trustee (acting at the direction of the Agent).  Each of the parties hereto hereby agrees to cause the securities intermediary that holds any money or other property for the Borrower in a Controlled Account that is a securities account to agree with the parties hereto that (A) the cash and other property (subject to Section 6.04(f) below with respect to any property other than investment property, as defined in Section 9-102(a)(49) of the UCC) is to be treated as a Financial Asset under Article 8 of the UCC and (B) regardless of any provision in any other agreement, for purposes of the UCC, with respect to the Controlled Accounts, New York shall be deemed to be the Bank’s jurisdiction (within the meaning of Section 9-304 of the UCC) and the securities intermediary’s jurisdiction (within the meaning of Section 8-110 of the UCC). All securities or other property underlying any Financial Assets credited to the Controlled Accounts in the form

 

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of securities or instruments shall be registered in the name of the Bank or if in the name of the Borrower or the Trustee, Indorsed to the Bank, Indorsed in blank, or credited to another securities account maintained in the name of the Bank, and in no case will any Financial Asset credited to the Controlled Accounts be registered in the name of the Borrower, payable to the order of the Borrower or specially Indorsed to the Borrower, except to the extent the foregoing have been specially Indorsed to the Bank or Indorsed in blank.

 

(f)                                     Loan Agreements .  Notwithstanding any term hereof (or any term of the UCC that might otherwise be construed to be applicable to a “securities intermediary” as defined in the UCC) to the contrary, none of the Trustee, the Collateral Custodian nor any securities intermediary shall be under any duty or obligation in connection with the acquisition by the Borrower, or the grant by the Borrower to the Trustee, of any Loan Asset in the nature of a loan or a participation in a loan to examine or evaluate the sufficiency of the documents or instruments delivered to it by or on behalf of the Borrower under the related Loan Agreements, or otherwise to examine the Loan Agreements, in order to determine or compel compliance with any applicable requirements of or restrictions on transfer (including without limitation any necessary consents).  The Collateral Custodian shall hold any Instrument delivered to it evidencing any Loan Asset granted to the Trustee hereunder as custodial agent for the Trustee in accordance with the terms of this Agreement.

 

(g)                                  Adjustments .  If (i) the Servicer makes a deposit into the Collection Account in respect of a Interest Collection or Principal Collection of a Loan Asset and such Interest Collection or Principal Collection was received by the Servicer in the form of a check that is not honored for any reason or (ii) the Servicer makes a mistake with respect to the amount of any Interest Collection or Principal Collection and deposits an amount that is less than or more than the actual amount of such Interest Collection or Principal Collection, the Servicer shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check or mistake.  Any Scheduled Payment in respect of which a dishonored check is received shall be deemed not to have been paid.

 

SECTION 6.05                                                                     Realization Upon Loan Assets .  The Servicer will use reasonable efforts consistent with the Servicing Standard to foreclose upon or repossess, as applicable, or otherwise comparably convert the ownership of any Underlying Collateral relating to a defaulted Loan Asset as to which no satisfactory arrangements can be made for collection of delinquent payments.  In addition, the Servicer may, consistent with the Servicing Standard, sell or otherwise transfer, or if it deems advisable to maximize recoveries, hold any equity or other securities received by the Borrower in connection with a default, workout, restructuring or plan of reorganization or similar event under a Loan Asset. The Servicer will comply with the Servicing Standard and Applicable Law in realizing upon such Underlying Collateral, and employ practices and procedures including reasonable efforts consistent with the Servicing Standard to enforce all obligations of Obligors foreclosing upon, repossessing and causing the sale of such Underlying Collateral at public or private sale in circumstances other than those described in the preceding sentence.  Without limiting the generality of the foregoing, unless the Agent has specifically given instruction to the contrary, the Servicer may cause the sale of any such Underlying Collateral to the Servicer or its Affiliates for a purchase price equal to the then fair market value thereof, any such sale to be evidenced by a certificate of a Responsible Officer of the Servicer delivered to the Agent setting forth the Loan Asset, the Underlying Collateral, the

 

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sale price of the Underlying Collateral and certifying that such sale price is the fair market value of such Underlying Collateral.  In any case in which any such Underlying Collateral has suffered damage, the Servicer will not expend funds in connection with any repair or toward the foreclosure or repossession of such Underlying Collateral unless it reasonably determines that such repair and/or foreclosure or repossession will increase the Recoveries by an amount greater than the amount of such expenses.  The Servicer will remit to the Collection Account the Recoveries received in connection with the sale or disposition of Underlying Collateral relating to a defaulted Loan Asset.

 

SECTION 6.06                                                                     Servicing Compensation .  As compensation for its activities hereunder and reimbursement for its expenses, the Servicer shall be entitled to be paid the Servicing Fees and reimbursed its reasonable expenses as provided in Section 2.04 .

 

SECTION 6.07                                                                     Payment of Certain Expenses by Servicer .  The Servicer will be required to pay all expenses incurred by it in connection with its activities under this Agreement, including fees and disbursements of its independent accountants, Taxes imposed on the Servicer, expenses incurred by the Servicer in connection with payments and reports pursuant to this Agreement, and all other fees and expenses not expressly stated under this Agreement for the account of the Borrower. The Servicer, on behalf of the Borrower, will be required to pay all reasonable fees and expenses owing to any bank or trust company in connection with this Agreement or the maintenance of the Controlled Accounts and the Concentration Account.  The Borrower will reimburse the Servicer for any reasonable expenses incurred hereunder or on behalf of the Borrower, subject to the availability of funds pursuant to Section 2.04 ; provided , that, to the extent funds are not so available on any Payment Date to reimburse such expenses incurred during the immediately ended Remittance Period, such reimbursement amount shall be deferred and payable on the next Payment Date on which funds are available therefor pursuant to Section 2.04 and such deferred reimbursement amount shall bear interest beginning on the Payment Date immediately following the Remittance Period in which such expenses were incurred until paid at an annual rate equal to the Yield Rate.  For the avoidance of doubt, the Servicer shall remain liable for, and shall pay in accordance with the terms hereof, all expenses payable by it as set forth in this Section 6.07 or otherwise under this Agreement, notwithstanding any failure of the Servicer to be reimbursed on any Payment Date due to the insufficiency of funds. Following realization of the Collateral Portfolio and distribution of proceeds in the manner provided in Section 2.04 , any claims of the Servicer against the Borrower in respect of any deferred reimbursement amount or otherwise shall be extinguished and shall not thereafter revive.

 

SECTION 6.08                                                                     Reports to the Agent; Account Statements; Servicing Information .

 

(a)                                   Notice of Borrowing . On each Advance Date and on each reduction of Advances Outstanding pursuant to Section 2.18 , the Borrower (and the Servicer on its behalf) will provide a Notice of Borrowing or a Notice of Reduction, as applicable, and a Borrowing Base Certificate, each updated as of such date, to the Agent (with a copy to the Trustee).

 

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(b)                                  Servicing Report .

 

(i)                                      On each Reporting Date, the Servicer will provide to the Borrower, the Agent and the Trustee, a monthly statement including (x) a Borrowing Base calculated as of the most recent Determination Date and (y) a summary prepared with respect to each Obligor and with respect to each Loan Asset for such Obligor prepared as of the most recent Determination Date that will be required to set forth only (A) calculations of the Net Leverage Ratio and the Interest Coverage Ratio for each such Loan Asset for the most recently ended Relevant Test Period for each such Loan Asset and (B) whether or not each such Loan Asset shall have become subject to a Material Modification (such monthly statement, a “ Servicing Report ”), with respect to related calendar month signed by a Responsible Officer of the Servicer and the Borrower and substantially in the form of Exhibit L .

 

(ii)                                   On each Reporting Date that includes a Payment Date in the same month, in addition to the information provided under clause (i) above, the Servicer will provide to the Borrower, the Agent and the Trustee in such monthly statement, (x) the Interest Collections received during the immediately preceding Remittance Period and available for distribution pursuant as of such Payment Date, (y) the Principal Collections received during the immediately preceding Remittance Period and available for distribution as of such Payment Date, and (z) the dollar amount to be distributed on such Payment Date at each level of priority pursuant to Section 2.04 .

 

(c)                                   Servicer’s Certificate .  Together with each Servicing Report, the Servicer shall submit to the Agent and the Trustee a certificate substantially in the form of Exhibit M (a “ Servicer’s Certificate ”), signed by a Responsible Officer of the Servicer, which shall include a certification by such Responsible Officer that no Event of Default or Unmatured Event of Default has occurred.

 

(d)                                  Financial Statements .  The Servicer will submit to the Agent and the Trustee, (i) within 45 days after the end of each of its fiscal quarters (excluding the fiscal quarter ending on the date specified in clause (ii) ), commencing March 31, 2010, consolidated unaudited financial statements of the Servicer for the most recent fiscal quarter, and (ii) within 90 days after the end of each fiscal year, commencing with the fiscal year ended December 31, 2009, consolidated audited financial statements of the Servicer, audited by a firm of nationally recognized independent public accountants, as of the end of such fiscal year.

 

(e)                                   Tax Returns .  Upon demand by the Agent, the Servicer shall deliver, copies of all federal, state and local tax returns and reports filed by the Borrower, the Equityholder and the Servicer, or in which the Borrower, the Equityholder or Servicer was included on a consolidated or combined basis (excluding sales, use and similar Taxes).

 

(f)                                     Obligor Financial Statements; Valuation Reports; Other Reports .  The Servicer will deliver to the Agent and the Trustee, with respect to each Obligor, (i) to the extent received by the Borrower and/or the Servicer pursuant to the Loan Agreement, the complete financial reporting package with respect to such Obligor and with respect to each Loan Asset for such Obligor (including any covenant compliance certificates with respect to such Obligor and with respect to each Loan Asset for such Obligor) provided to the Borrower and/or the Servicer either monthly or quarterly, as the case may be, by such Obligor, which delivery shall be made

 

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within 45 days (or such longer period as specified in the Loan Agreement) after the end of each such month or such Obligor’s fiscal quarters, as applicable (excluding the last month or fiscal quarter, as applicable, of each such Obligor’s fiscal year), and within 90 days (or such longer period as specified in the Loan Agreement) after the end of each such Obligor’s fiscal year, and (ii) a quarterly update to the “tear sheet” prepared by the Servicer with respect to such Obligor and with respect to each Loan Asset for such Obligor, which delivery shall be made within 45 days (or such longer period as specified in the Loan Agreement) after the end of each such Obligor’s fiscal quarters (excluding the last fiscal quarter of each such Obligor’s fiscal year) and within 90 days (or such longer period as specified in the Loan Agreement) after the end of each such Obligor’s fiscal year.  The Servicer will promptly deliver to the Agent, upon reasonable request and to the extent received by the Borrower and/or the Servicer, all other documents and information required to be delivered by the Obligors to the Borrower with respect to any Loan Asset included in the Collateral Portfolio.

 

(g)                                  Amendments to Loan Assets .  The Servicer will deliver to the Agent and the Collateral Custodian a copy of any material amendment, restatement, supplement, waiver or other modification to the Loan Agreement of any Loan Asset (along with any internal documents prepared by the Servicer and provided to its investment committee in connection with such amendment, restatement, supplement, waiver or other modification) within 10 Business Days of the effectiveness of such amendment, restatement, supplement, waiver or other modification.

 

(h)                                  Website Access to Information .  Notwithstanding anything to the contrary contained herein, information required to be delivered or submitted to any Secured Party pursuant to Section 5.03(i) and this Article VI shall be deemed to have been delivered on the date on which such information is posted on an IntraLinks (or other replacement) website to which the Agent has access.

 

SECTION 6.09                                                                     Annual Statement as to Compliance .  The Servicer will provide to the Agent and the Trustee within 90 days following the end of each fiscal year of the Servicer, commencing with the fiscal year ending on December 31, 2010, a fiscal report signed by a Responsible Officer of the Servicer certifying that (a) a review of the activities of the Servicer, and the Servicer’s performance pursuant to this Agreement, for the fiscal period ending on the last day of such fiscal year has been made under such Person’s supervision and (b) the Servicer has performed or has caused to be performed in all material respects all of its obligations under this Agreement throughout such year and no Servicer Termination Event has occurred. With respect to the Original Agreement, the Servicer will provide to the Agent and the Trustee within 90 days following the end of the fiscal year of the Servicer for 2009, a fiscal report signed by a Responsible Officer of the Servicer certifying that (a) a review of the activities of the Servicer, and the Servicer’s performance pursuant to the Original Agreement, for the fiscal period ending on the last day of such fiscal year has been made under such Person’s supervision and (b) the Servicer has performed or has caused to be performed in all material respects all of its obligations under the Original Agreement throughout such year and no “Servicer Default” (as defined in the Original Agreement) has occurred.

 

SECTION 6.10                                                                     Annual Independent Public Accountant’s Servicing Reports .  The Servicer will cause a firm of nationally recognized independent public accountants (who may also render other services to the Servicer) to furnish to the Agent and the Trustee within 90 days

 

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following the end of each fiscal year of the Servicer, commencing with the fiscal year ending on December 31, 2010, a report covering such fiscal year to the effect that such accountants have applied certain agreed-upon procedures (a copy of which procedures are attached hereto as Schedule IV , it being understood that the Servicer and the Agent will provide an updated Schedule IV reflecting any further amendments to such Schedule IV prior to the issuance of the first such agreed-upon procedures report, a copy of which shall replace the then existing Schedule IV ) to certain documents and records relating to the Collateral Portfolio under any Transaction Document, compared the information contained in the Servicing Reports and the Servicer’s Certificates delivered during the period covered by such report with such documents and records and that no matters came to the attention of such accountants that caused them to believe that such servicing was not conducted in compliance with this Article VI , except for such exceptions as such accountants shall believe to be immaterial and such other exceptions as shall be set forth in such statement. With respect to the Original Agreement the Servicer will cause a firm of nationally recognized independent public accountants (who may also render other services to the Servicer) to furnish to the Agent and the Trustee within 90 days following the end of the fiscal year of the Servicer for 2009, a report covering such fiscal year to the effect that such accountants have applied certain agreed-upon procedures (a copy of which procedures were attached to the Original Agreement as Schedule V ) to certain documents and records relating to the Collateral Portfolio under any Transaction Document in effect immediately prior to the Restatement Date, compared the information contained in the Servicing Reports and the Servicer’s Certificates delivered during the period covered by such report with such documents and records and that no matters came to the attention of such accountants that caused them to believe that such servicing was not conducted in compliance with Article VI of the Original Agreement, except for such exceptions as such accountants shall believe to be immaterial and such other exceptions as shall be set forth in such statement.

 

SECTION 6.11                                                                     The Servicer Not to Resign .  The Servicer shall not resign from the obligations and duties hereby imposed on it except upon the Servicer’s determination that (i) the performance of its duties hereunder is or becomes impermissible under Applicable Law and (ii) there is no reasonable action that the Servicer could take to make the performance of its duties hereunder permissible under Applicable Law.  Any such determination permitting the resignation of the Servicer shall be evidenced as to clause (i) above by an Opinion of Counsel to such effect delivered to the Agent.  No such resignation shall become effective until a Replacement Servicer shall have assumed the responsibilities and obligations of the Servicer in accordance with Section 6.02 .

 

ARTICLE VII.

 

EVENTS OF DEFAULT

 

SECTION 7.01                                                                     Events of Default .  If any of the following events (each, an “ Event of Default ”) shall occur:

 

(a)                                   the Borrower, the Equityholder or the Transferor defaults in making any payment required to be made under one or more agreements for borrowed money to which it is a party in an aggregate principal amount in excess of (x) $1,000,000 for the Borrower or the Equityholder or (y) $7,500,000 for the Transferor and any such failure continues unremedied for

 

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two Business Days and such default is not cured within the applicable cure period, if any, provided for under such agreement; or

 

(b)                                  any failure on the part of the Borrower, the Equityholder or the Transferor duly to observe or perform in any material respect any other covenants or agreements of the Borrower, the Equityholder or the Transferor set forth in this Agreement or the other Transaction Documents to which the Borrower, the Equityholder or the Transferor is a party and the same continues unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Borrower, the Equityholder or the Transferor by the Agent or Trustee and (ii) the date on which the Borrower, the Equityholder or the Transferor acquires knowledge thereof; or

 

(c)                                   the occurrence of a Bankruptcy Event relating to the Transferor, the Equityholder or the Borrower; or

 

(d)                                  the occurrence of a Servicer Termination Event (subject to the applicable cure periods set forth in the definition of “ Servicer Termination Event ”); or

 

(e)                                   (1) the rendering of one or more final judgments, decrees or orders by a court or arbitrator of competent jurisdiction for the payment of money in excess individually or in the aggregate of $25,000,000, against the Transferor, or $1,000,000, against the Borrower or the Equityholder, and the continuance of such judgment, decree or order unsatisfied and in effect for any period of more than 60 consecutive days without such judgment, decree or order being vacated, stayed or discharged during such 60 day period or (2) the Transferor, the Equityholder or the Borrower shall have made payments of amounts in excess of $25,000,000 (in the case of the Transferor) or $1,000,000 (in the case of the Borrower or the Equityholder), in the settlement of any litigation, claim or dispute (excluding payments made from insurance proceeds); or

 

(f)                                     either the Borrower or the Equityholder shall cease to be an Affiliate of the Transferor or shall fail to qualify as a bankruptcy-remote entity based upon customary criteria such that reputable counsel could no longer render a substantive nonconsolidation opinion with respect thereto; or

 

(g)                                  (1)                                   any Transaction Document, or any lien or security interest granted thereunder, shall (except in accordance with its terms), in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of the Borrower, the Equityholder, the Transferor, or the Servicer,

 

(2)                                   the Borrower, the Transferor, the Equityholder, the Servicer or any other party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of any Transaction Document or any lien or security interest thereunder, or

 

(3)                                   any security interest securing any obligation under any Transaction Document shall, in whole or in part, cease to be a first priority perfected security interest except as otherwise expressly permitted to be released in accordance with the applicable Transaction Document; or

 

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(h)                                  the Advances Outstanding on any day exceeds the Borrowing Base and has not been remedied in accordance with Section 2.06 ; provided that, during the period of time that such event remains unremedied, any payments required to be made by the Servicer on a Payment Date shall be made under Section 2.04(c) ; or

 

(i)                                      failure on the part of the Borrower, the Equityholder, the Transferor or the Servicer to make any payment or deposit (including, without limitation, with respect to bifurcation and remittance of Interest Collections and Principal Collections or any other payment or deposit required to be made by the terms of the Transaction Documents, including, without limitation, to any Secured Party, Affected Party or Indemnified Party) required by the terms of any Transaction Document (other than Section 2.06 ) on the day such payment or deposit is required to be made and the same continues unremedied for two Business Days; or

 

(j)                                      the Borrower or the Equityholder shall become required to register as an “investment company” within the meaning of the 1940 Act or the arrangements contemplated by the Transaction Documents shall require registration as an “investment company” within the meaning of the 1940 Act; or

 

(k)                                   the Internal Revenue Service shall file notice of a lien pursuant to Section 6323 of the Code with regard to any assets of the Borrower, the Equityholder or the Transferor and such lien shall not have been released within five Business Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien pursuant to Section 4068 of ERISA with regard to any of the assets of the Borrower, the Equityholder or the Transferor and such lien shall not have been released within five Business Days; or

 

(l)                                      any Change of Control shall occur; or

 

(m)                                any representation, warranty or certification made by the Borrower, the Equityholder or the Transferor in any Transaction Document or in any certificate delivered pursuant to any Transaction Document shall prove to have been incorrect when made, which has a Material Adverse Effect on the Secured Parties and continues to be unremedied for a period of 30 days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Borrower, the Equityholder or the Transferor by the Agent or Trustee and (ii) the date on which a Responsible Officer of the Borrower, the Equityholder or the Transferor acquires knowledge thereof; or

 

(n)                                  failure to pay, on the Facility Maturity Date, the outstanding principal of all outstanding Advances, if any, and all Yield and all Fees accrued and unpaid thereon together with all other Obligations, including, but not limited to, any Make-Whole Premium; or

 

(o)                                  an event has occurred which constitutes an Event of Default under and pursuant to the terms of the Pledge Agreement;  or

 

(p)                                  (i) failure of the Borrower or the Equityholder to maintain at least one Independent Director, which failure is not cured within ten Business Days or (ii) the removal of any Independent Director of the Borrower or the Equityholder without “cause” (as such term is defined in the organizational document of the Borrower) or without giving prior written notice to the Agent, each as required in the organizational documents of the Borrower; or

 

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(q)                                  the Borrower ceases to have a valid, perfected ownership interest in all of the Collateral Portfolio; or

 

(r)                                     the Transferor fails to transfer to Equityholder or the Equityholder fails to transfer to the Borrower the applicable Loan Assets and the related Portfolio Assets on an Advance Date ( provided that the Note Purchaser shall have funded the related Advance) unless the related Advance is repaid in full with accrued and unpaid Yield thereon within five Business Days; or

 

(s)                                   either of the Borrower or the Equityholder makes any assignment or attempted assignment of their respective rights or obligations under this Agreement or any other Transaction Document without first obtaining the specific written consent of the Agent, which consent may be withheld by the Agent in the exercise of its sole and absolute discretion;

 

then the Agent, with the consent of the Note Purchaser, may, by notice to the Borrower, declare the Facility Maturity Date to have occurred; provided , that, in the case of any event described in Section 7.01(c) above, the Facility Maturity Date shall be deemed to have occurred automatically upon the occurrence of such event. Upon any such declaration or automatic occurrence, (i) the Borrower shall cease purchasing Loan Assets from the Equityholder under the Second Tier Purchase and Sale Agreement and the Equityholder shall cease purchasing Loan Assets from the Transferor under the First Tier Purchase and Sale Agreement, (ii) at the option of the Note Purchaser in its sole discretion, the Note Purchaser may declare the Variable Funding Note to be immediately due and payable in full (without presentment, demand, protest or notice of any kind all of which are hereby waived by the Borrower) and any other Obligations to be immediately due and payable, and (iii) all proceeds and distributions in respect of the Portfolio Assets shall be distributed as described in Section 2.04(c) ( provided that the Borrower shall in any event remain liable to pay such Advances and all such amounts and Obligations immediately in accordance with Section 2.04(e) hereof). In addition, upon any such declaration or upon any such automatic occurrence, the Trustee, on behalf of the Secured Parties and at the direction of the Agent, shall have, in addition to all other rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and other Applicable Law, which rights shall be cumulative. Without limiting any obligation of the Servicer hereunder, the Borrower confirms and agrees that the Trustee, on behalf of the Secured Parties and at the direction of the Agent, (or any designee thereof, including, without limitation, the Servicer), following an Event of Default, shall, at its option, have the sole right to enforce the Borrower’s rights and remedies under each Assigned Document, but without any obligation on the part of the Agent, the Note Purchaser or any of their respective Affiliates to perform any of the obligations of the Borrower under any such Assigned Document. If any Event of Default shall have occurred, the Yield Rate shall be increased to the Default Funding Rate, effective as of the date of the occurrence of such Event of Default, and shall apply after the occurrence of such Event of Default.

 

SECTION 7.02                                                                     Additional Remedies of the Agent .

 

(a)                                   If, (i) upon the Note Purchaser’s declaration that the Advances made to the Borrower hereunder are immediately due and payable pursuant to Section 7.01 upon the occurrence of an Event of Default, or (ii) on the Facility Maturity Date (other than a Facility

 

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Maturity Date occurring pursuant to clause (iv) of the definition thereof prior to an Event of Default), the aggregate outstanding principal amount of the Advances, all accrued and unpaid Fees and Yield and any other Obligations are not immediately paid in full, then the Trustee (acting as directed by the Agent) or the Agent, in addition to all other rights specified hereunder, shall have the right, in its own name and as agent for the Note Purchaser, to immediately sell (at the Servicer’s expense) in a commercially reasonable manner, in a recognized market (if one exists) at such price or prices as the Agent may reasonably deem satisfactory, any or all of the Collateral Portfolio and apply the proceeds thereof to the Obligations; provided , that notwithstanding anything to the contrary herein or in any other Transaction Document, in the case of the declaration of the Facility Maturity Date that arises solely pursuant to Section 7.01(d) due solely to the occurrence of an event described in clauses (g) or (h) of the definition of “Servicer Termination Event” or clause (o) of the definition of “Servicer Termination Event” (to the extent arising solely due to the occurrence of an event described in clauses (g) or (h) of the definition thereof), the Trustee and the Agent (as applicable) may not order the assembly or liquidation of the Collateral Portfolio, or take any action or exercise any power of attorney furnished hereunder in connection with such assembly or liquidation, until on or after the earlier of (x) the date that is twelve (12) months after the occurrence of such Facility Maturity Date or (y) the occurrence of a Facility Maturity Date for any other reason other than an event described in clauses (g) or (h) of the definition of “Servicer Termination Event” or clause (o) of the definition of “Servicer Termination Event” (to the extent arising solely due to the occurrence of an event described in clauses (g) or (h) of the definition thereof).

 

(b)                                  The parties recognize that it may not be possible to sell all of the Collateral Portfolio on a particular Business Day, or in a transaction with the same purchaser, or in the same manner because the market for the assets constituting the Collateral Portfolio may not be liquid. Accordingly, the Agent may elect, in its sole discretion, the time and manner of liquidating any of the Collateral Portfolio, and nothing contained herein shall obligate the Agent to liquidate any of the Collateral Portfolio on the date the Note Purchaser declares the Advances made to the Borrower hereunder to be immediately due and payable pursuant to Section 7.01 or to liquidate all of the Collateral Portfolio in the same manner or on the same Business Day.

 

(c)                                   If the Trustee (acting as directed by the Agent) or the Agent proposes to sell the Collateral Portfolio or any part thereof in one or more parcels at a public or private sale, at the request of the Trustee or the Agent, as applicable, the Borrower and the Servicer shall make available to (i) the Agent, on a timely basis, all information (including any information that the Borrower and the Servicer is required by law or contract to be kept confidential) relating to the Collateral Portfolio subject to sale, including, without limitation, copies of any disclosure documents, contracts, financial statements of the applicable Obligors, covenant certificates and any other materials requested by the Agent, and (ii) each prospective bidder, on a timely basis, all reasonable information relating to the Collateral Portfolio subject to sale, including, without limitation, copies of any disclosure documents, contracts, financial statements of the applicable Obligors, covenant certificates and any other materials reasonably requested by each such bidder; provided that with respect to this clause (ii) , neither the Borrower nor the Servicer shall be required to disclose to each such bidder any information which it is required by law or contract to be kept confidential.

 

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(d)                                  Each of the Borrower and the Servicer agrees, to the full extent that it may lawfully so agree, that neither it nor anyone claiming through or under it will set up, claim or seek to take advantage of any appraisement, valuation, stay, extension or redemption law now or hereafter in force in any locality where any Collateral Portfolio may be situated in order to prevent, hinder or delay the enforcement or foreclosure of this Agreement, or the absolute sale of any of the Collateral Portfolio or any part thereof, or the final and absolute putting into possession thereof, immediately after such sale, of the purchasers thereof, and each of the Borrower and the Servicer, for itself and all who may at any time claim through or under it, hereby waives, to the full extent that it may be lawful so to do, the benefit of all such laws, and any and all right to have any of the properties or assets constituting the Collateral Portfolio marshaled upon any such sale, and agrees that the Trustee, or the Agent on its behalf, or any court having jurisdiction to foreclose the security interests granted in this Agreement may sell the Collateral Portfolio as an entirety or in such parcels as the Trustee or such court may determine.

 

(e)                                   Any amounts received from any sale or liquidation of the Collateral Portfolio pursuant to this Section 7.02 in excess of the Obligations will be applied in accordance with the provisions of Section 2.04(c) , or as a court of competent jurisdiction may otherwise direct.

 

(f)                                     The Agent and the Note Purchaser shall have, in addition to all the rights and remedies provided herein and provided by applicable federal, state, foreign, and local laws (including, without limitation, the rights and remedies of a secured party under the UCC of any applicable state, to the extent that the UCC is applicable, and the right to offset any mutual debt and claim), all rights and remedies available to the Note Purchaser at law, in equity or under any other agreement between the Note Purchaser and the Borrower.

 

(g)                                  Except as otherwise expressly provided in this Agreement, no remedy provided for by this Agreement shall be exclusive of any other remedy, each and every remedy shall be cumulative and in addition to any other remedy, and no delay or omission to exercise any right or remedy shall impair any such right or remedy or shall be deemed to be a waiver of any Event of Default.

 

(h)                                  Each of the Borrower and the Servicer hereby irrevocably appoints each of the Trustee and the Agent its true and lawful attorney (with full power of substitution) in its name, place and stead and at is expense, in connection with the enforcement of the rights and remedies after the occurrence of an Event of Default, and as provided for in this Agreement, including without limitation the following powers:  (a) to give any necessary receipts or acquittance for amounts collected or received hereunder, (b) to make all necessary transfers of the Collateral Portfolio in connection with any such sale or other disposition made pursuant hereto, (c) to execute and deliver for value all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition, the Borrower and the Servicer hereby ratifying and confirming all that such attorney (or any substitute) shall lawfully do hereunder and pursuant hereto, and (d) to sign any agreements, orders or other documents in connection with or pursuant to any Transaction Document. Nevertheless, if so requested by the Trustee or the Agent, the Borrower shall ratify and confirm any such sale or other disposition by executing and delivering to the Trustee or the Agent or all proper bills of sale, assignments, releases and other instruments as may be designated in any such request; provided that, for the

 

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avoidance of doubt, no right under any power of attorney furnished under this Section 7.02(h) may be exercised until after the occurrence of an Event of Default.

 

(i)                                      (1)                                   If the Trustee (acting as directed by the Agent) or the Agent elects to sell the Collateral Portfolio in whole, but not in part, at a public or private sale, the Borrower may exercise its right of first refusal to repurchase the Collateral Portfolio, in whole but not in part, prior to such sale at a purchase price that is not less than the amount of the Obligations as of the date of such proposed sale.  The Borrower’s right of first refusal shall terminate not later than 4:00 p.m. on the second Business Day following the Business Day on which the Borrower receives notice of the Trustee’s or the Agent’s election to sell such Collateral Portfolio, such notice to attach copies of all Eligible Bids received by the Trustee or the Agent in respect of such Collateral Portfolio.

 

(2)                                   If the Trustee (acting as directed by the Agent) or the Agent elects to sell less than all of the Collateral Portfolio in one or more parcels at a public or private sale, the Borrower may exercise its right of first refusal to repurchase such portion of the Collateral Portfolio prior to such sale at a purchase price of not less than the highest Eligible Bid received in respect of such portion of the Collateral Portfolio as of the date of such proposed sale, as notified by the Trustee or the Agent to the Borrower.  The Borrower’s right of first refusal shall terminate not later than 4:00 p.m. on the Business Day on which the Borrower receives notice of the Trustee’s or the Agent’s election to sell such portion of the Collateral Portfolio, if such notice is delivered by 12:00 p.m. on such Business Day; provided that if such notice is delivered after 12:00 p.m. on the Business Day on which the Borrower receives such notice, or if the highest Eligible Bid received in respect of such portion of the Collateral Portfolio is greater than $25,000,000, the Borrower’s right of first refusal shall terminate not later than 12:00 p.m. on the following Business Day.

 

(3)                                   If the Borrower elects not to exercise its right of first refusal as provided in clauses (1) or (2) above, the Trustee (acting as directed by the Agent) or the Agent shall sell such Collateral Portfolio or portion thereof for a purchase price equal to the highest of the Eligible Bids then received.  For the avoidance of doubt, any determination of the highest Eligible Bid shall only consider bids for the same parcels of the Collateral Portfolio.

 

(4)                                   It is understood that the Borrower may submit its bid for the Collateral Portfolio or any portion thereof as a combined bid with the bids of other members of a group of bidders, and shall have the right to find bidders to bid on the Collateral Portfolio or any portion thereof.

 

(5)                                   It is understood that the Borrower’s right of first refusal shall apply to each proposed sale of the same parcel of the Collateral Portfolio.

 

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ARTICLE VIII.

 

INDEMNIFICATION

 

SECTION 8.01                                                                     Indemnities by the Borrower .

 

(a)                                   Without limiting any other rights which the Agent, the Note Purchaser, the Trustee, the Bank, the Collateral Custodian or any of their respective Affiliates may have hereunder or under Applicable Law, the Borrower hereby agrees to indemnify the Agent, the Note Purchaser, the Trustee, the Bank, the Collateral Custodian and each of their respective Affiliates, assigns, officers, directors, employees and agents (each, an “ Indemnified Party ” for purposes of this Article VIII ) from and against any and all damages, losses, claims, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “ Indemnified Amounts ”), awarded against or actually incurred by such Indemnified Party arising out of or as a result of this Agreement or in respect of any of the Collateral Portfolio, excluding, however, Indemnified Amounts to the extent resulting solely from (a) gross negligence, bad faith or willful misconduct on the part of an Indemnified Party or (b) Loan Assets which are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):

 

(i)                                      any Loan Asset treated as or represented by the Borrower to be an Eligible Loan Asset which is not at the applicable time an Eligible Loan Asset, or the purchase by any party or origination of any Loan Asset which violates Applicable Law;

 

(ii)                                   reliance on any representation or warranty made or deemed made by the Borrower, the Servicer (if Ares or one of its Affiliates is the Servicer) or any of their respective officers under or in connection with this Agreement or any Transaction Document, which shall have been false or incorrect in any material respect when made or deemed made or delivered;

 

(iii)                                the failure by the Borrower or the Servicer (if Ares or one of its Affiliates is the Servicer) to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, or with any Applicable Law with respect to any item of Collateral Portfolio, or the nonconformity of any item of Collateral Portfolio with any such Applicable Law;

 

(iv)                               the failure to vest and maintain vested in the Trustee, for the benefit of the Secured Parties, a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or at any time thereafter;

 

(v)                                  on each Business Day prior to the Collection Date, the occurrence of a Borrowing Base Deficiency and the same continues unremedied for five Business Days;

 

(vi)                               the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Law with respect to any Loan Assets included

 

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in the Collateral Portfolio or the other Portfolio Assets related thereto, whether at the time of any Advance or at any subsequent time;

 

(vii)                            any dispute, claim, offset or defense (other than the discharge in bankruptcy of an Obligor) to the payment of any Loan Asset included in the Collateral Portfolio (including, without limitation, a defense based on such Loan Asset (or the Loan Agreement evidencing such Loan Asset) not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms), or any other claim resulting from the sale of the merchandise or services related to such Collateral Portfolio or the furnishing or failure to furnish such merchandise or services;

 

(viii)                         any failure of the Borrower or the Servicer (if Ares or one of its Affiliates is the Servicer) to perform its duties or obligations in accordance with the provisions of the Transaction Documents to which it is a party or any failure by Ares, the Borrower or any Affiliate thereof to perform its respective duties under any Collateral Portfolio;

 

(ix)                                 any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Borrower or the Transferor to qualify to do business or file any notice or business activity report or any similar report;

 

(x)                                    any action taken by the Borrower or the Servicer in the enforcement or collection of the Collateral Portfolio;

 

(xi)                                 any products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort arising out of or in connection with the Underlying Collateral or services that are the subject of any Collateral Portfolio;

 

(xii)                              any claim, suit or action of any kind arising out of or in connection with Environmental Laws including any vicarious liability;

 

(xiii)                           the failure by the Borrower to pay when due any Taxes for which the Borrower is liable, including, without limitation, sales, excise or personal property Taxes payable in connection with the Collateral Portfolio;

 

(xiv)                          any repayment by the Agent, the Note Purchaser or a Secured Party of any amount previously distributed in payment of Advances or payment of Yield or Fees or any other amount due hereunder, in each case which amount the Agent, the Note Purchaser or a Secured Party believes in good faith is required to be repaid;

 

(xv)                             except with respect to funds held in the Concentration Account on or prior to the Account Transition Deadline, the commingling by the Borrower or the Servicer of payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;

 

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(xvi)                          any investigation, litigation or proceeding related to this Agreement (or the Transaction Documents), or the use of proceeds of Advances or the Collateral Portfolio, or the administration of the Loan Assets by the Borrower or the Servicer (unless such administration is carried out by Wachovia or any of its Affiliates in the capacity of the Servicer, if applicable);

 

(xvii)                       any failure by the Borrower to give reasonably equivalent value to the Equityholder in consideration for the transfer by the Equityholder to the Borrower of any item of Collateral Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code;

 

(xviii)                    the use of the proceeds of any Advance in a manner other than as provided in this Agreement and the Transaction Documents;

 

(xix)                            any failure of the Borrower, the Servicer or any of their respective agents or representatives to remit to the Collection Account within two Business Days of receipt, payments and collections with respect to the Collateral Portfolio remitted to the Borrower, the Servicer or any such agent or representative (other than such a failure on the part of Wachovia or any of its Affiliates in the capacity of Servicer, if applicable); and/or

 

(xx)                               the failure of any Concentration Account Bank to remit any amounts held in a Concentration Account pursuant to the instructions of the Servicer or the Agent (to the extent such Person is entitled to give such instructions in accordance with the terms hereof and of the Intercreditor Agreement) whether by reason of the exercise of set-off rights or otherwise.

 

(b)                                  Any amounts subject to the indemnification provisions of this Section 8.01 shall be paid by the Borrower to the Agent on behalf of the applicable Indemnified Party within five Business Days following the Agent’s written demand therefor on behalf of the applicable Indemnified Party (and the Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Agent of such amounts). The Agent, on behalf of any Indemnified Party making a request for indemnification under this Section 8.01 , shall submit to the Borrower a certificate setting forth in reasonable detail the basis for and the computations of the Indemnified Amounts with respect to which such indemnification is requested, which certificate shall be conclusive absent demonstrable error.

 

(c)                                   If for any reason the indemnification provided above in this Section 8.01 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless in respect of any losses, claims, damages or liabilities, then the Borrower or the Servicer, as the case may be, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Borrower or the Servicer, as the case may be, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.

 

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(d)                                  If the Borrower has made any payments in respect of Indemnified Amounts to the Agent on behalf of an Indemnified Party pursuant to this Section 8.01 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Borrower, without interest.

 

(e)                                   The obligations of the Borrower under this Section 8.01 shall survive the resignation or removal of the Agent, the Note Purchaser, the Servicer, the Trustee or the Collateral Custodian and the termination of this Agreement.

 

SECTION 8.02                                                                     Indemnities by Servicer .

 

(a)                                   Without limiting any other rights which any Indemnified Party may have hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party from and against any and all Indemnified Amounts, awarded against or incurred by any Indemnified Party as a consequence of any of the following, excluding, however, Indemnified Amounts to the extent resulting from gross negligence, bad faith or willful misconduct on the part of any Indemnified Party claiming indemnification hereunder:

 

(i)                                      the inclusion, in any computations made by it in connection with any Borrowing Base Certificate or other report prepared by it hereunder, of any Loan Assets which were not Eligible Loan Assets as of the date of any such computation;

 

(ii)                                   reliance on any representation or warranty made or deemed made by the Servicer or any of its officers under or in connection with this Agreement or any other Transaction Document, any Servicing Report, Servicer’s Certificate or any other information or report delivered by or on behalf of the Servicer pursuant hereto, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;

 

(iii)                                the failure by the Servicer to comply with (A) any term, provision or covenant contained in this Agreement or any other Transaction Document, or any other agreement executed in connection with this Agreement, or (B) any Applicable Law applicable to it with respect to any Portfolio Assets;

 

(iv)                               any litigation, proceedings or investigation against the Servicer;

 

(v)                                  any action or inaction by the Servicer that causes the Trustee, for the benefit of the Secured Parties, not to have a first priority perfected security interest in the Collateral Portfolio, free and clear of any Lien other than Permitted Liens, whether existing at the time of the related Advance or any time thereafter;

 

(vi)                               except as permitted by this Agreement and the Intercreditor Agreement, the commingling by the Servicer of payments and collections required to be remitted to the Collection Account or the Unfunded Exposure Account with other funds;

 

(vii)                            any failure of the Servicer or any of its agents or representatives (including, without limitation, agents, representatives and employees of such Servicer acting pursuant to authority granted under Section 6.01 hereof) to remit to Collection

 

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Account, payments and collections with respect to Loan Assets remitted to the Servicer or any such agent or representative within two Business Days of receipt;

 

(viii)                         the failure by the Servicer to perform any of its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document or errors or omissions related to such duties; and/or

 

(ix)                                 any of the events or facts giving rise to a breach of any of the Servicer’s representations, warranties, agreements and/or covenants set forth in Article IV Article V or Article VI or this Agreement.

 

(b)                                  Any Indemnified Amounts shall be paid by the Servicer to the Agent, for the benefit of the applicable Indemnified Party, within five Business Days following receipt by the Servicer of the Agent’s written demand therefor (and the Agent shall pay such amounts to the applicable Indemnified Party promptly after the receipt by the Agent of such amounts).

 

(c)                                   If the Servicer has made any indemnity payments to the Agent, on behalf of an Indemnified Party pursuant to this Section 8.02 and such Indemnified Party thereafter collects any of such amounts from others, such Indemnified Party will promptly repay such amounts collected to the Servicer, without interest.

 

(d)                                  The Servicer shall have no liability for making indemnification hereunder to the extent any such indemnification constitutes recourse for uncollectible or uncollected Loan Assets.

 

(e)                                   The obligations of the Servicer under this Section 8.02 shall survive the resignation or removal of the Agent, the Note Purchaser, the Trustee or the Collateral Custodian and the termination of this Agreement.

 

(f)                                     Any indemnification pursuant to this Section 8.02 shall not be payable from the Collateral Portfolio.

 

Each applicable Indemnified Party shall deliver to the Indemnifying Party under Section 8.01 and Section 8.02 , within a reasonable time after such Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by such Indemnified Party relating to the claim giving rise to the Indemnified Amounts.

 

SECTION 8.03                                                                     Legal Proceedings .  In the event an Indemnified Party becomes involved in any action, claim, or legal, governmental or administrative proceeding (an “ Action ”) for which it seeks indemnification hereunder, the Indemnified Party shall promptly notify the other party or parties against whom it seeks indemnification (the “ Indemnifying Party ”) in writing of the nature and particulars of the Action; provided that its failure to do so shall not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure has a material adverse effect on the Indemnifying Party. Upon written notice to the Indemnified Party acknowledging in writing that the indemnification provided hereunder applies to the Indemnified Party in connection with the Action (subject to the exclusion in the first sentence of Section 8.01 , the first sentence of Section 8.02 or Section 8.02(d) , as applicable), the Indemnifying Party may assume the defense of the Action at its expense with counsel reasonably acceptable to the

 

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Indemnified Party. The Indemnified Party shall have the right to retain separate counsel in connection with the Action, and the Indemnifying Party shall not be liable for the legal fees and expenses of the Indemnified Party after the Indemnifying Party has done so; provided that if the Indemnified Party determines in good faith that there may be a conflict between the positions of the Indemnified Party and the Indemnifying Party in connection with the Action, or that the Indemnifying Party is not conducting the defense of the Action in a manner reasonably protective of the interests of the Indemnified Party, the reasonable legal fees and expenses of the Indemnified Party shall be paid by the Indemnifying Party; provided , further , that the Indemnifying Party shall not, in connection with any one Action or separate but substantially similar or related Actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees or expenses of more than one separate firm of attorneys (and any required local counsel) for such Indemnified Party, which firm (and local counsel, if any) shall be designated in writing to the Indemnifying Party by the Indemnified Party. If the Indemnifying Party elects to assume the defense of the Action, it shall have full control over the conduct of such defense; provided that the Indemnifying Party and its counsel shall, as reasonably requested by the Indemnified Party or its counsel, consult with and keep them informed with respect to the conduct of such defense. The Indemnifying Party shall not settle an Action without the prior written approval of the Indemnified Party unless such settlement provides for the full and unconditional release of the Indemnified Party from all liability in connection with the Action. The Indemnified Party shall reasonably cooperate with the Indemnifying Party in connection with the defense of the Action.

 

SECTION 8.04                                                                     After-Tax Basis .  Indemnification under Section 8.01 and 8.02 shall be in an amount necessary to make the Indemnified Party whole after taking into account any Tax consequences to the Indemnified Party of the receipt of the indemnity provided hereunder, including the effect of such Tax or refund on the amount of Tax measured by net income or profits that is or was payable by the Indemnified Party.

 

ARTICLE IX.

THE AGENT

 

SECTION 9.01                                                                     The Agent .

 

(a)                                   Each Secured Party hereby appoints and authorizes the Agent as its agent hereunder and hereby further authorizes the Agent to appoint additional agents to act on its behalf and for the benefit of each Secured Party.  Each Secured Party further authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are delegated to the Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto.  With respect to other actions which are incidental to the actions specifically delegated to the Agent hereunder, the Agent shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Note Purchaser; provided that the Agent shall not be required to take any action hereunder if the taking of such action, in the reasonable determination of the Agent, shall be in violation of any Applicable Law or contrary to any provision of this Agreement or shall expose the Agent to liability hereunder or otherwise.  In the event the Agent requests the

 

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consent of the Note Purchaser pursuant to the foregoing provisions and the Agent does not receive a consent (either positive or negative) from such Person within ten Business Days of such Person’s receipt of such request, then such Note Purchaser shall be deemed to have declined to consent to the relevant action.

 

(b)                                  The Borrower irrevocably authorizes the Agent and appoints the Agent as its attorney-in-fact to act on behalf of the Borrower (i) to file financing statements necessary or desirable in the Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Secured Parties in the Collateral Portfolio and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Collateral Portfolio as a financing statement in such offices as the Agent in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Secured Parties in the Collateral Portfolio.  This appointment is coupled with an interest and is irrevocable.

 

(c)                                   If the Borrower or the Servicer, as applicable, fails to perform any of its agreements or obligations under Section 5.01(t) , Section 5.02(r)  or Section 5.03(e) , the Agent may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the expenses of the Agent incurred in connection therewith shall be payable by the Borrower or the Servicer (on behalf of the Borrower), as applicable, upon the Agent’s demand therefor.

 

(d)                                  Notwithstanding any provision to the contrary elsewhere in this Agreement, the Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with the Note Purchaser, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise exist against the Agent.

 

(e)                                   Neither the 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 as Agent under or in connection with this Agreement or any of the other Transaction Documents, except for its or their own gross negligence or willful misconduct. Without limiting the foregoing, the Agent:  (i) may consult with legal counsel (including counsel for the Borrower or the Transferor), 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 and shall not be responsible for any statements, warranties or representations made in or in connection with this Agreement; (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 or any of the other Transaction Documents on the part of the Borrower, the Transferor, or the Servicer or to inspect the property (including the books and records) of the Borrower, the Transferor, or the Servicer; (iv) shall not be responsible for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any of the other Transaction Documents 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 of the other Transaction Documents by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing

 

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(which may be by facsimile) believed by it to be genuine and signed or sent by the proper party or parties.

 

(f)                                     Each Secured Party acknowledges that it has, independently and without reliance upon the Agent, or any of the Agent’s Affiliates, and based upon such documents and information as it has deemed appropriate, made its own evaluation and decision to enter into this Agreement and the other Transaction Documents to which it is a party.  Each Secured Party also acknowledges that it will, independently and without reliance upon the Agent, or any of the Agent’s Affiliates, and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions in taking or not taking action under this Agreement and the other Transaction Documents to which it is a party.

 

(g)                                  The Note Purchaser agrees to indemnify the Agent (to the extent not reimbursed by the Borrower or the Servicer) 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 Agent in any way relating to or arising out of this Agreement or any of the other Transaction Documents, or any action taken or omitted by the Agent hereunder or thereunder; provided that the Note Purchaser shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent’s gross negligence or willful misconduct. Without limitation of the foregoing, the Note Purchaser agrees to reimburse the Agent promptly upon demand for any out-of-pocket expenses (including counsel fees) incurred by the Agent in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement and the other Transaction Documents, to the extent that such expenses are incurred in the interests of or otherwise in respect of the Note Purchaser hereunder and/or thereunder and to the extent that the Agent is not reimbursed for such expenses by the Borrower or the Servicer.

 

(h)                                  The Agent may resign at any time, effective upon the appointment and acceptance of a successor Agent as provided below, by giving at least five days’ written notice thereof to the Note Purchaser and the Borrower and may be removed at any time with cause by the Note Purchaser.  Upon any such resignation or removal, the Note Purchaser shall appoint a successor Agent.  The Note Purchaser agrees that it shall not unreasonably withhold or delay its approval of the appointment of a successor Agent; provided that any successor Agent which is not an Affiliate of WFS shall be subject to the prior consent of the Borrower.  If no such successor Agent shall have been so appointed, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation or the removal of the retiring Agent, then the retiring Agent may, on behalf of the Secured Parties, appoint a successor Agent which successor Agent shall be either (i) a commercial bank organized under the laws of the United States or of any state thereof and have a combined capital and surplus of at least $50,000,000 or (ii) an Affiliate of such a bank.  Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under this Agreement.  After any retiring Agent’s resignation or removal hereunder as Agent, the provisions of this Article IX

 

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shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.

 

(i)                                      Unless specifically allocated to a specific Note Purchaser pursuant to the terms of this Agreement, all amounts received by the Agent on behalf of the Note Purchaser shall be paid by the Agent to each Note Purchaser in accordance with such Note Purchaser’s respective Commitment Percentage, on the Business Day received by the Agent, unless such amounts are received after 12:00 noon on such Business Day, in which case the Agent shall use its reasonable efforts to pay such amounts to the Note Purchaser on such Business Day, but, in any event, shall pay such amounts to such Note Purchaser not later than the following Business Day.

 

ARTICLE X.

TRUSTEE

 

SECTION 10.01                                                               Designation of Trustee.

 

(a)                                   Initial Trustee .  The role of Trustee shall be conducted by the Person designated as Trustee hereunder from time to time in accordance with this Section 10.01 .  Until the Agent shall give to U.S. Bank a Trustee Termination Notice, U.S. Bank is hereby appointed as, and hereby accepts such appointment and agrees to perform the duties and obligations of, Trustee pursuant to the terms hereof.

 

(b)                                  Successor Trustee .  Upon the Trustee’s receipt of a Trustee Termination Notice from the Agent of the designation of a successor Trustee pursuant to the provisions of Section 10.05 , the Trustee agrees that it will terminate its activities as Trustee hereunder.

 

(c)                                   Secured Party .  The Agent and the Note Purchaser hereby appoint U.S. Bank, in its capacity as Trustee hereunder, as their agent for the purposes of perfection of a security interest in the Collateral Portfolio.  U.S. Bank, in its capacity as Trustee hereunder, hereby accepts such appointment and agrees to perform the duties set forth in Section 10.02(b) .

 

SECTION 10.02                                                               Duties of Trustee .

 

(a)                                   Appointment .  The Borrower and the Agent each hereby appoints U.S. Bank to act as Trustee, for the benefit of the Secured Parties.  The Trustee hereby accepts such appointment and agrees to perform the duties and obligations with respect thereto set forth herein.

 

(b)                                  Duties .  On or before the initial Advance Date, and until its removal pursuant to Section 10.05 , the Trustee shall perform, on behalf of the Secured Parties, the following duties and obligations:

 

(i)                                      The Trustee shall make payments pursuant to the terms of the Servicing Report in accordance with Section 2.04 (the “ Payment Duties ”).

 

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(ii)                                   The Trustee shall provide to the Servicer a copy of all written notices and communications identified as being sent to it in connection with the Loan Assets and the other Collateral Portfolio held hereunder which it receives from the related Obligor, participating bank and/or agent bank.  In no instance shall the Trustee be under any duty or obligation to take any action on behalf of the Servicer in respect of the exercise of any voting or consent rights, or similar actions, unless it receives specific written instructions from the Servicer, prior to the occurrence of an Event of Default or the Agent, after the occurrence of Event of Default, in which event the Trustee shall vote, consent or take such other action in accordance with such instructions.

 

(c)                                   (i)                                      The Agent and each Secured Party further authorizes the Trustee to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Transaction Documents as are expressly delegated to the Trustee by the terms hereof and thereof, together with such powers as are reasonably incidental thereto.  In furtherance, and without limiting the generality of the foregoing, each Secured Party hereby appoints the Trustee (acting at the direction of the Agent) as its agent to execute and deliver all further instruments and documents, and take all further action that the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including, without limitation, the execution by the Trustee as secured party/assignee of such financing or continuation statements, or amendments thereto or assignments thereof, relative to all or any of the Loan Assets now existing or hereafter arising, and such other instruments or notices, as may be necessary or appropriate for the purposes stated hereinabove.  Nothing in this Section 10.02(c)  shall be deemed to relieve the Borrower or the Servicer of their respective obligations to protect the interest of the Trustee (for the benefit of the Secured Parties) in the Collateral Portfolio, including to file financing and continuation statements in respect of the Collateral Portfolio in accordance with Section 5.01(t) .

 

(ii)                                   The Agent may direct the Trustee to take any such incidental action hereunder.  With respect to other actions which are incidental to the actions specifically delegated to the Trustee hereunder, the Trustee shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Trustee shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Trustee, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Trustee to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto).  In the event the Trustee requests the consent of the Agent and the Trustee does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.

 

(iii)                                Except as expressly provided herein, the Trustee shall not be under any duty or obligation to take any affirmative action to exercise or enforce any power, right or remedy available to it under this Agreement (x) unless and until (and to the

 

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extent) expressly so directed by the Agent or (y) prior to the Facility Maturity Date (and upon such occurrence, the Trustee shall act in accordance with the written instructions of the Agent pursuant to clause (x)).  The Trustee shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Trustee, or the Agent.  The Trustee shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Trustee has knowledge of such matter or written notice thereof is received by the Trustee.

 

(d)                                  If, in performing its duties under this Agreement, the Trustee is required to decide between alternative courses of action, the Trustee may request written instructions from the Agent as to the course of action desired by it.  If the Trustee does not receive such instructions within two Business Days after it has requested them, the Trustee may, but shall be under no duty to, take or refrain from taking any such courses of action.  The Trustee shall act in accordance with instructions received after such two Business Day period except to the extent it has already, in good faith, taken or committed itself to take, action inconsistent with such instructions.  The Trustee shall be entitled to rely on the advice of legal counsel and independent accountants in performing its duties hereunder and shall be deemed to have acted in good faith if it acts in accordance with such advice.

 

(e)                                   Concurrently herewith, the Agent directs the Trustee and the Trustee is authorized to enter into the Pledge Agreement, Collection Account Agreement and Unfunded Exposure Account Agreement.  For the avoidance of doubt, all of the Trustee’s rights, protections and immunities provided herein shall apply to the Trustee for any actions taken or omitted to be taken under the Pledge Agreement, Collection Account Agreement and Unfunded Exposure Account Agreement in such capacity.

 

SECTION 10.03                                                               Merger or Consolidation .

 

Any Person (i) into which the Trustee may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Trustee shall be a party, or (iii) that may succeed to the properties and assets of the Trustee substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Trustee hereunder, shall be the successor to the Trustee under this Agreement without further act of any of the parties to this Agreement.

 

SECTION 10.04                                                               Trustee Compensation .

 

As compensation for its Trustee activities hereunder, the Trustee shall be entitled to the Trustee Fees and Trustee Expenses from the Borrower as set forth in the Trustee and Collateral Custodian Fee Letter.  The Trustee shall be entitled to receive the Trustee Fees and Trustee Expenses to the extent of funds available therefor pursuant to the provision of Section 2.04 ; provided, that, for the avoidance of doubt, to the extent funds are not so available on any Payment Date to pay such fees or reimburse such expenses incurred during the immediately ended Remittance Period, such payment or reimbursement amount shall be deferred and payable on the next Payment Date on which funds are available therefor pursuant to Section 2.04 .  The

 

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Trustee’s entitlement to receive the Trustee Fees shall cease on the earlier to occur of:  (i) its removal as Trustee pursuant to Section 10.05 or (ii) the termination of this Agreement.

 

SECTION 10.05                                                               Trustee Removal .

 

The Trustee may be removed, with or without cause, by the Agent by notice given in writing to the Trustee (the “ Trustee Termination Notice ”); provided , notwithstanding its receipt of a Trustee Termination Notice, the Trustee shall continue to act in such capacity until a successor Trustee has been appointed and has agreed to act as Trustee hereunder; provided that the Trustee shall continue to receive compensation of its fees and expenses in accordance with Section 10.04 above while so serving as the Trustee prior to a successor Trustee being appointed.

 

SECTION 10.06                                                               Limitation on Liability .

 

(a)                                   The Trustee may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, letter, telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties.  The Trustee may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Agent or (b) the verbal instructions of the Agent.

 

(b)                                  The Trustee may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(c)                                   The Trustee shall not be liable for any error of judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the negligent performance of its Payment Duties.

 

(d)                                  The Trustee makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Collateral Portfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral Portfolio.  The Trustee shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.

 

(e)                                   The Trustee shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Trustee.

 

(f)                                     The Trustee shall not be required to expend or risk its own funds in the performance of its duties hereunder.

 

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(g)                                  It is expressly agreed and acknowledged that the Trustee is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral Portfolio.

 

(h)                                  Subject in all cases to the last sentence of Section 2.05 , in case any reasonable question arises as to its duties hereunder, the Trustee may, prior to the occurrence of an Event of Default or the Facility Maturity Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or the Facility Maturity Date, request instructions from the Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from the Servicer or the Agent, as applicable.  The Trustee shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Agent.  In no event shall the Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

(i)                                      The Trustee shall not be liable for the acts or omissions of the Collateral Custodian under this Agreement and shall not be required to monitor the performance of the Collateral Custodian.  Notwithstanding anything herein to the contrary, unless appointed as successor Collateral Custodian hereunder, the Trustee shall have no duty to perform any of the duties of the Collateral Custodian under this Agreement.

 

SECTION 10.07                                                               Trustee Resignation .

 

The Trustee may resign at any time by giving not less than 90 days written notice thereof to the Agent and with the consent of the Agent, which consent shall not be unreasonably withheld.  Upon receiving such notice of resignation, the Agent shall promptly appoint a successor trustee or trustees by written instrument, in duplicate, executed by the Agent, one copy of which shall be delivered to the Trustee so resigning and one copy to the successor trustee or trustees, together with a copy to the Borrower, Servicer and Collateral Custodian.  If no successor trustee shall have been appointed and an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 45 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. Notwithstanding anything herein to the contrary, the Trustee may not resign prior to a successor Trustee being appointed.

 

ARTICLE XI.

MISCELLANEOUS

 

SECTION 11.01                                                               Amendments and Waivers .

 

(a)                                   Except as provided in Section 11.01(b) , no amendment or modification of any provision of this Agreement shall be effective without the written agreement of the Borrower, the Servicer, the Trustee, the Bank, the Agent, the Collateral Custodian and Note Purchasers having in excess of 50% of the Commitment Percentage (the “ Required Note Purchasers ”), and no termination or waiver of any provision of this Agreement or consent to any

 

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departure therefrom by the Borrower or the Servicer shall be effective without the written concurrence of the Agent and Required Note Purchasers. Any waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.  For the avoidance of doubt, in the event that an Event of Default has occurred but has been waived unconditionally and in its entirety in accordance with the terms hereof, such Event of Default shall be deemed to have not “occurred” and references to “after the occurrence of an Event of Default” shall be inapplicable for all purposes in this Agreement or any of the Transaction Documents, except to the extent otherwise provided for in the relevant waiver; provided that any waiver which by its terms becomes effective upon certain conditions precedent being met will not be considered a conditional waiver solely due to the existence of such conditions precedent if all such conditions precedent to effectiveness have been satisfied.

 

(b)                                  Notwithstanding the provisions of Section 11.01(a) , the written consent of Note Purchasers having 100% of the Commitment Percentage shall be required for any amendment, modification or waiver (i) reducing any outstanding Advances, or the Yield thereon, (ii) postponing any date for any payment of any Advance, or the Yield thereon, (iii) modifying the provisions of this Section 11.01 , (iv) increasing the Maximum Facility Amount or (v) extending the Stated Maturity Date.

 

SECTION 11.02                                                               Notices, Etc . All notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile communication and communication by e-mail) and faxed, e-mailed or delivered, to each party hereto, at its address set forth under its name below or at such other address as shall be designated by such party in a written notice to the other parties hereto:

 

If to the Borrower:

 

Ares Capital CP Funding LLC
2000 Avenue of the Stars, 12th Floor
Los Angeles, California 90067
Attention: General Counsel and Chief Financial Officer
Facsimile No.:  (310) 201-4197
Confirmation No.: (310) 201-4205

and

 

Ares Capital CP Funding LLC
280 Park Avenue, 22nd Floor East
New York, New York 10017
Attention: General Counsel and Chief Financial Officer
Facsimile No.: (212) 750-1777
Confirmation No.: (212) 750-7300

 

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If to the Servicer:

 

Ares Capital Corporation
c/o Ares Management LLC
2000 Avenue of the Stars, 12th Floor
Los Angeles, California 90067
Attention: General Counsel and Chief Financial Officer
Facsimile No.: (310) 201-4197; (310) 201-4189
Confirmation No.: (310) 201-4205; (310) 201-4204

 

and

 

Ares Capital Corporation
280 Park Avenue, 22nd Floor East
New York, New York 10017
Attention: Michael J. Arougheti and Raymond Wright
Facsimile No.: (212) 750-1777
Confirmation No.: (212) 750-7300

 

If to the Transferor:

 

Ares Capital Corporation
c/o Ares Management LLC
2000 Avenue of the Stars, 12th Floor
Los Angeles, California 90067
Attention: General Counsel and Chief Financial Officer
Facsimile No.: (310) 201-4197; (310) 201-4189
Confirmation No.: (310) 201-4205; (310) 201-4204

 

and

 

Ares Capital Corporation
280 Park Avenue, 22nd Floor East
New York, New York 10017
Attention: Michael J. Arougheti and Raymond Wright
Facsimile No.: (212) 750-1777
Confirmation No.: (212) 750-7300

 

If to the Agent:

 

Wells Fargo Securities, LLC
One Wachovia Center, Mail Code:  NC0600
Charlotte, North Carolina 28288

 

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Attention: Kevin Sunday
Facsimile No.: (704) 715-0067
Confirmation No: (704) 374-6230

 

If to the Note Purchaser:

 

Wachovia Bank, National Association
One Wachovia Center, Mail Code:  NC0600
Charlotte, North Carolina 28288
Attention: Kevin Sunday
Facsimile No.: (704) 715-0067
Confirmation No: (704) 374-6230

 

If to the Trustee:

 

U.S. Bank National Association
One Federal Street, Third Floor
Boston, Massachusetts 02110
Attention: Corporate Trust / CDO Unit — Ares Capital CP Funding
Facsimile No: (866) 738-6062

 

If to the Bank:

 

U.S. Bank National Association
One Federal Street, Third Floor
Boston, Massachusetts 02110
Attention: Corporate Trust / CDO Unit — Ares Capital CP Funding
Facsimile No: (866) 738-6062

 

If to the Collateral Custodian:

 

U.S. Bank National Association
as the Collateral Custodian
1719 Range Way
Florence, SC 29501
Attention: Sandra Farrow
Facsimile No.: 843-673-0162

 

Notices and communications by facsimile and e-mail shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent by other means shall be effective when received.

 

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SECTION 11.03                                                               No Waiver; Remedies . No failure on the part of the Agent, the Trustee or the Note Purchaser to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.

 

SECTION 11.04                                                               Binding Effect; Assignability; Multiple Note Purchasers .

 

(a)                                   This Agreement shall be binding upon and inure to the benefit of the Borrower, the Servicer, the Agent, the Note Purchaser, the Trustee, the Bank, the Collateral Custodian and their respective successors and permitted assigns. The Note Purchaser and its successors and assigns may assign (i) this Agreement and the Note Purchaser’s rights and obligations hereunder and interest herein in whole or in part (including by way of the sale of participation interests therein) and/or (ii) any Advance (or portion thereof) or any Variable Funding Note (or any portion thereof) to any Person; provided that the Note Purchaser and any successor and assign shall only assign its rights and obligations hereunder to an Affiliate of Wachovia and that such assignee executes and delivers to the Servicer, the Borrower and the Agent a fully-executed Transferee Letter substantially in the form of Exhibit O hereto (a “ Transferee Letter ”) and a fully-executed Joinder Supplement. None of the Borrower, the Equityholder, the Transferor or the Servicer may assign any of its rights and obligations hereunder or under any Transaction Document or any interest herein or in any Transaction Document without the prior written consent of the Note Purchaser and the Agent.

 

(b)                                  Whenever the term “ Note Purchaser ” is used herein, it shall mean Wachovia and/or each of its assignees; provided that each such party shall have a pro rata share of the rights and obligations of the Note Purchaser hereunder in such percentage amount (the “ Commitment Percentage ”) as shall be obtained by dividing such party’s commitment to fund Advances hereunder by the total commitment of all parties to fund Advances hereunder. Unless otherwise specified herein, any right at any time of the Note Purchaser to enforce any remedy, or instruct the Agent to take (or refrain from taking) any action hereunder, shall be exercised by the Agent only upon direction by the Required Note Purchasers at such time.

 

(c)                                   Notwithstanding any other provision of this Section 11.04 , the Note Purchaser may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest) under this Agreement to secure obligations of the Note Purchaser to a Federal Reserve Bank, without notice to or consent of the Borrower or the Agent; provided that no such pledge or grant of a security interest shall release the Note Purchaser from any of its obligations hereunder, or substitute any such pledgee or grantee for the Note Purchaser as a party hereto.

 

SECTION 11.05                                                               Term of This Agreement . This Agreement, including, without limitation, the Borrower’s obligation to observe its covenants set forth in Articles V and VI and the Servicer’s obligation to observe its covenants set forth in Articles V and VI , shall remain in full force and effect until the Collection Date; provided that the rights and remedies with respect to any breach of any representation and warranty made or deemed made by the Borrower or the Servicer pursuant to Articles III and IV and the indemnification and payment provisions of Article VIII and Article XI and the provisions of Section 11.07 , Section 11.08 and Section 11.09

 

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shall be continuing and shall survive any termination of this Agreement. Notwithstanding anything herein to the contrary, the Collection Date will be deemed to have occurred upon payment in full of all Obligations pursuant to clause (i) of the first proviso of Section 2.18(b)  or pursuant to Section 2.18(c)(i) .

 

SECTION 11.06                                                               GOVERNING LAW; JURY WAIVER . THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER .

 

SECTION 11.07                                                               Costs, Expenses and Taxes .

 

(a)                                   In addition to the rights of indemnification granted to the Trustee, the Bank, the Agent, the Note Purchaser, the Collateral Custodian and its Affiliates under Section 8.01 and Section 8.02 hereof, each of the Borrower, the Servicer and the Transferor agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Agent, the Note Purchaser, the Trustee, the Bank and the Collateral Custodian incurred in connection with the preparation, execution, delivery, administration (including periodic auditing), renewal, amendment or modification of, or any waiver or consent issued in connection with, this Agreement, the Transaction Documents and the other documents to be delivered hereunder or in connection herewith, including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent, the Note Purchaser, the Trustee, the Bank and the Collateral Custodian with respect thereto and with respect to advising the Agent, the Note Purchaser, the Trustee, the Bank and the Collateral Custodian as to their respective rights and remedies under this Agreement and the other documents to be delivered hereunder or in connection herewith, and all out-of-pocket costs and expenses, if any (including reasonable counsel fees and expenses), incurred by the Agent, the Note Purchaser, the Trustee, the Bank or the Collateral Custodian in connection with the enforcement of this Agreement or any Transaction Document by such Person and the other documents to be delivered hereunder or in connection herewith.

 

(b)                                  The Borrower, the Servicer and the Transferor shall pay on demand any and all stamp, sales, excise and other Taxes and fees payable or determined to be payable to any Governmental Authority in connection with the execution, delivery, filing and recording of this Agreement, the other documents to be delivered hereunder or any other Transaction Document or the funding or maintenance of Advances hereunder.

 

(c)                                   The Servicer and the Transferor shall pay on demand all other reasonable out-of-pocket costs, expenses and Taxes (excluding Taxes imposed on or measured by net income) incurred by the Agent, the Note Purchaser, the Trustee, the Collateral Custodian and the Bank, including, without limitation, all costs and expenses incurred by the Agent and the Note Purchaser in connection with periodic audits of the Borrower’s, the Transferor’s or the Servicer’s books and records.

 

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(d)                                  For the avoidance of doubt, except with respect to the costs and expenses to be paid to the Trustee and the Collateral Custodian, costs and expenses to be paid pursuant to this Section 11.07 shall exclude all allocable overhead costs and expenses.

 

SECTION 11.08                                                               No Proceedings . Each of the Servicer and the Transferor agree that it will not institute against, or join any other Person in instituting against, the Borrower any proceedings of the type referred to in the definition of Bankruptcy Event so long as there shall not have elapsed one year and one day (or such longer preference period as shall then be in effect) since the Collection Date.

 

SECTION 11.09                                                               Recourse Against Certain Parties .

 

(a)                                   No recourse under or with respect to any obligation, covenant or agreement (including, without limitation, the payment of any fees or any other obligations) of the Agent or any Secured Party as contained in this Agreement or any other agreement, instrument or document entered into by the Agent or any Secured Party pursuant hereto or in connection herewith shall be had against any administrator of the Agent or any Secured Party or any incorporator, affiliate, stockholder, officer, employee or director of the Agent or any Secured Party or of any such administrator, as such, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of each party hereto contained in this Agreement and all of the other agreements, instruments and documents entered into by the Agent or any Secured Party pursuant hereto or in connection herewith are, in each case, solely the corporate obligations of such party (and nothing in this Section 11.09 shall be construed to diminish in any way such corporate obligations of such party), and that no personal liability whatsoever shall attach to or be incurred by any administrator of the Agent or any Secured Party or any incorporator, stockholder, affiliate, officer, employee or director of the Note Purchaser or the Agent or of any such administrator, as such, or any of them, under or by reason of any of the obligations, covenants or agreements of the Agent or any Secured Party contained in this Agreement or in any other such instruments, documents or agreements, or are implied therefrom, and that any and all personal liability of every such administrator of the Agent or any Secured Party and each incorporator, stockholder, affiliate, officer, employee or director of the Agent or any Secured Party or of any such administrator, or any of them, for breaches by the Agent or any Secured Party of any such obligations, covenants or agreements, which liability may arise either at common law or in equity, by statute or constitution, or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement.

 

(b)                                  Notwithstanding any contrary provision set forth herein, no claim may be made by the Borrower, the Transferor, the Equityholder or the Servicer or any other Person against the Agent or any Secured Party or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect to any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Borrower, the Transferor, the Equityholder and the Servicer each hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected.

 

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(c)                                   No obligation or liability to any Obligor under any of the Loan Assets is intended to be assumed by the Agent or any Secured Party under or as a result of this Agreement and the transactions contemplated hereby.

 

(d)                                  The provisions of this Section 11.09 shall survive the termination of this Agreement.

 

SECTION 11.10                                                               Execution in Counterparts; Severability; Integration . This Agreement 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 when taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by e-mail in portable document format (.pdf) or facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. In the event that any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. This Agreement and any agreements or letters (including fee letters) executed in connection herewith contains the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings other than any fee letter delivered by the Servicer to the Agent and the Note Purchaser.

 

SECTION 11.11                                                               Consent to Jurisdiction; Service of Process .

 

(a)                                   Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in New York City in any action or proceeding arising out of or relating to the Transaction Documents, and each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. The parties hereto hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(b)                                  Each of the Borrower and the Servicer agrees that service of process may be effected by mailing a copy thereof by registered or certified mail, postage prepaid, to the Borrower or the Servicer, as applicable, at its address specified in Section 11.02 or at such other address as the Agent shall have been notified in accordance herewith. Nothing in this Section 11.11 shall affect the right of the Note Purchaser or the Agent to serve legal process in any other manner permitted by law.

 

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SECTION 11.12                                                               Characterization of Conveyances Pursuant to the Purchase and Sale Agreements .

 

(a)                                   It is the express intent of the parties hereto that the conveyance of the Eligible Loan Assets by the Transferor to the Equityholder and the Equityholder to the Borrower as contemplated by the Purchase and Sale Agreements be, and be treated for all purposes (other than accounting purposes and subject to the tax characterization of the Borrower and the Advances described in Section 5.01(aa) and Section 5.02(k)  hereof) as, a sale by the Transferor and the Equityholder, as applicable, of such Eligible Loan Assets. It is, further, not the intention of the parties that such conveyance be deemed a pledge of the Eligible Loan Assets by the Transferor to the Equityholder and the Equityholder to the Borrower to secure a debt or other obligation of the Transferor or Equityholder, as applicable. However, in the event that, notwithstanding the intent of the parties, the Eligible Loan Assets are held to continue to be property of the Transferor (in the case of the First Tier Purchase and Sale Agreement) or the Equityholder (in the case of the Second Tier Purchase and Sale Agreement), as applicable, then the parties hereto agree that: (i) each of the Purchase and Sale Agreements shall also be deemed to be a security agreement under Applicable Law; (ii) the transfer of the Eligible Loan Assets provided for in the First Tier Purchase and Sale Agreement shall be deemed to be a grant by the Transferor to the Equityholder of a first priority security interest (subject only to Permitted Liens) in all of the Transferor’s right, title and interest in and to the Eligible Loan Assets and all amounts payable to the holders of the Eligible Loan Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property; (iii) the transfer of the Original Loan Assets provided for in the Original Purchase and Sale Agreement shall be deemed to be a grant by the Transferor to the Borrower of a first priority security interest (subject only to Permitted Liens) in all of the Transferor’s right, title and interest in and to the Original Loan Assets and all amounts payable to the holders of the Original Loan Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property; (iv) the transfer of the Eligible Loan Assets provided for in the Second Tier Purchase and Sale Agreement shall be deemed to be a grant by the Equityholder to the Borrower of a first priority security interest (subject only to Permitted Liens) in all of such Equityholder’s right, title and interest in and to the Eligible Loan Assets and all amounts payable to the holders of the Eligible Loan Assets in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property; (v) the possession by the Borrower (or the Collateral Custodian on its behalf) of Loan Assets and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be, subject to clause (vi) , for purposes of perfecting the security interest pursuant to the UCC; and (vi) acknowledgements from Persons holding such property shall be deemed acknowledgements from custodians, bailees or agents (as applicable) of the Borrower for the purpose of perfecting such security interest under Applicable Law. The parties further agree that any assignment of the interest of the Borrower pursuant to any provision hereof shall also be deemed to be an assignment of any security interest created pursuant to the terms of the Purchase and Sale Agreements. The Borrower shall, to the extent consistent with this Agreement and the other

 

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Transaction Documents, take such actions as may be necessary to ensure that, if either of the Purchase and Sale Agreements were deemed to create a security interest in the Eligible Loan Assets, such security interest would be deemed to be a perfected security interest of first priority (subject only to Permitted Liens) under Applicable Law and will be maintained as such throughout the term of this Agreement.

 

(b)                                  It is the intention of each of the parties hereto that the Eligible Loan Assets conveyed by the Transferor to the Equityholder pursuant to the First Tier Purchase and Sale Agreement and by the Equityholder to the Borrower pursuant to the Second Tier Purchase and Sale Agreement and by the Transferor to the Borrower pursuant to the Original Purchase and Sale Agreement shall constitute assets owned by the Borrower and shall not be part of the Transferor’s estate or the Equityholder’s estate, as applicable, in the event of the filing of a bankruptcy petition by or against the Transferor or Equityholder, as applicable, under any bankruptcy or similar law.

 

(c)                                   The Borrower agrees to treat, and shall cause the Equityholder and the Transferor to treat, for all purposes (other than accounting purposes and subject to the tax characterization of the Borrower and the Advances described in Section 5.01(aa) and Section 5.02(k)  hereof) (x) the transactions effected by the First Tier Purchase and Sale Agreements as sales of assets to the Equityholder, (y) the transactions effected by the Second Tier Purchase and Sale Agreements as sales of assets to the Borrower and (z) the transactions effected by the Original Purchase and Sale Agreement as sales of the assets to the Borrower. The Borrower and the Servicer each hereby agree to cause each of the Transferor and the Equityholder, as applicable, to reflect in the Transferor’s or Equityholder’s financial records, as applicable, and to include a note in the publicly filed annual and quarterly financial statements of Ares indicating that: (i) assets related to transactions (including transactions pursuant to the Transaction Documents) that do not meet SFAS 140 requirements for accounting sale treatment are reflected in the consolidated balance sheet of Ares, as finance receivables pledged and non-recourse, secured borrowings and (ii) those assets are owned by a special purpose entity that is consolidated in the financial statements of Ares, and the creditors of that special purpose entity have received ownership and/or security interests in such assets and such assets are not intended to be available to the creditors of sellers (or any affiliate of the sellers) of such assets to that special purpose entity.

 

SECTION 11.13                                                               Confidentiality .

 

(a)                                   Each of the Agent, the Note Purchaser, the Servicer, the Trustee, the Borrower, the Bank, the Equityholder, the Transferor and the Collateral Custodian shall maintain and shall cause each of its employees and officers to maintain the confidentiality of the Agreement and all information with respect to the other parties, including all information regarding the business of the Borrower and the Servicer hereto and their respective businesses, and all information in connection with or related to the Loan Agreements (including but not limited to any information provided pursuant to Section 6.08 ), obtained by it or them in connection with the structuring, negotiating and execution of the transactions contemplated herein, except that each such party and its officers and employees may (i) disclose such information to its external accountants, investigators, auditors, attorneys or other agents, including any Approved Valuation Firm engaged by such party in connection with any due

 

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diligence or comparable activities with respect to the transactions and Loan Assets contemplated herein and the agents of such Persons (“ Excepted Persons ”); provided that each Excepted Person shall, as a condition to any such disclosure, agree for the benefit of the Agent, the Note Purchaser, the Servicer, the Trustee, the Borrower, the Bank, the Equityholder,  the Transferor and the Collateral Custodian that such information shall be used solely in connection with such Excepted Person’s evaluation of, or relationship with, the Borrower and its affiliates, (ii) disclose the existence of the Agreement, but not the financial terms thereof, (iii) disclose such information as is required by Applicable Law and (iv) disclose the Agreement and such information in any suit, action, proceeding or investigation (whether in law or in equity or pursuant to arbitration) involving any of the Transaction Documents for the purpose of defending itself, reducing its liability, or protecting or exercising any of its claims, rights, remedies, or interests under or in connection with any of the Transaction Documents.  Notwithstanding the foregoing provisions of this Section 11.13(a) , the Servicer may, subject to Applicable Law and the terms of any Loan Agreements, make available copies of the documents in the Servicing Files and such other documents it holds in its capacity as Servicer pursuant to the terms of this Agreement, to any of its creditors.  It is understood that the financial terms that may not be disclosed except in compliance with this Section 11.13(a)  include, without limitation, all fees and other pricing terms, and all Events of Default, Servicer Termination Events, and priority of payment provisions.

 

(b)                                  Anything herein to the contrary notwithstanding, the Borrower, the Equityholder and the Servicer each hereby consents to the disclosure of any nonpublic information with respect to it (i) to the Agent, the Note Purchaser,  the Trustee or the Collateral Custodian by each other, (ii) by the Agent, the Note Purchaser,  the Trustee and the Collateral Custodian to any prospective or actual assignee or participant of any of them provided such Person agrees to hold such information confidential, or (iii) by the Agent, the Note Purchaser, the Trustee and the Collateral Custodian to any provider of a surety, guaranty or credit or liquidity enhancement to the Note Purchaser, as applicable, and to any officers, directors, employees, outside accountants and attorneys of any of the foregoing, provided each such Person is informed of the confidential nature of such information.  In addition, the Note Purchaser, the Agent, the Trustee and the Collateral Custodian may disclose any such nonpublic information as required pursuant to any law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or proceedings (whether or not having the force or effect of law).

 

(c)                                   Notwithstanding anything herein to the contrary, the foregoing shall not be construed to prohibit (i) disclosure of any and all information that is or becomes publicly known; (ii) disclosure of any and all information (a) if required to do so by any applicable statute, law, rule or regulation, (b) to any government agency or regulatory body having or claiming authority to regulate or oversee any respects of the Note Purchaser’s, the Agent’s,  the Trustee’s or the Collateral Custodian’s business or that of their affiliates, (c) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which the Agent, the Note Purchaser or the Trustee or an officer, director, employer, shareholder or affiliate of any of the foregoing is a party, (d) in any preliminary or final offering circular, registration statement or contract or other document approved in advance by the Borrower, the Servicer, the Equityholder or the Transferor or (e) to any affiliate, independent or internal auditor, agent, employee or attorney of the Trustee or the Collateral Custodian having a need to know the same, provided that the disclosing party advises such

 

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recipient of the confidential nature of the information being disclosed; or (iii) any other disclosure authorized by the Borrower, Servicer, the Equityholder or the Transferor.

 

SECTION 11.14                                                               Non-Confidentiality of Tax Treatment .

 

All parties hereto agree that each of them and each of their employees, representatives, and other agents may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including, without limitation, opinions or other tax analyses) that are provided to any of them relating to such tax treatment and tax structure.  “Tax treatment” and “tax structure” shall have the same meaning as such terms have for purposes of Treasury Regulation Section 1.6011-4; provided that with respect to any document or similar item that in either case contains information concerning the tax treatment or tax structure of the transaction as well as other information, the provisions of this Section 11.14 shall only apply to such portions of the document or similar item that relate to the tax treatment or tax structure of the transactions contemplated hereby.

 

SECTION 11.15                                                               Waiver of Set Off .

 

Each of the parties hereto hereby waives any right of setoff it may have or to which it may be entitled under this Agreement from time to time against the Note Purchaser or its assets.

 

SECTION 11.16                                                               Headings and Exhibits .

 

The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof.  The schedules and exhibits attached hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.

 

SECTION 11.17                                                               Breaches of Representations, Warranties and Covenants .

 

For the avoidance of doubt, no breach or default of any representation, warranty or covenant contained in Sections 4.01 , 4.02 or 4.03 or 5.01 , 5.02 , 5.03 , 5.04 that does not constitute an Unmatured Event of Default or Event of Default shall be deemed to be a breach or default hereunder; provided that the foregoing shall not affect the definition of “Eligible Loan Asset”, the definition of “Warranty Event”, Sections 2.07(d) , 2.07(f) , 2.15 , 2.21 , 3.02(a) , 3.04(g) , 5.01(n) , 8.01 , 8.02 , 11.05 and the schedules and exhibits hereto.

 

SECTION 11.18                                                               Assignments of Loan Assets .

 

(a)                                   Notwithstanding anything to the contrary herein, solely for administrative convenience and solely in the case of Third Party Acquired Loan Assets, (i) for purposes of clause (a)(i) of the definition of “Required Loan Documents”, the chain of endorsements required therein by the third party to the Transferor, the Transferor to the Equityholder and the Equityholder to the Borrower may be satisfied by a direct endorsement from the applicable third party to the Borrower or (ii) delivery of the transfer documents or instruments required by clause (a)(ii) of the definition of “Required Loan Documents” may be satisfied by delivery of transfer

 

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documents or instruments evidencing the assignment of such Loan Asset by the applicable third party directly to the Borrower (and by the Borrower either to the Trustee or in blank).

 

(b)                                  Nothing in this Section 11.18 shall limit any requirement that all Loan Assets treated as or represented to be Eligible Loan Assets hereunder or in any Transaction Document be purchased by Borrower from the Equityholder pursuant to the Second Tier Purchase and Sale Agreement and by the Equityholder from the Transferor pursuant to the First Tier Purchase and Sale Agreement (as evidenced by the Assignments applicable to each Purchase and Sale Agreement) or any representations or warranties with respect to Loan Assets so purchased or the liabilities or recourse of the Transferor or Equityholder, as applicable, pertaining to such sales.

 

SECTION 11.19                                                               Affirmation .

 

Each of the parties hereto confirm, acknowledge and agree that this Agreement is an amendment and restatement of the Original Agreement and that the execution, delivery and performance of this Agreement does not create a novation of any indebtedness existing under the Original Agreement immediately prior to the amendment and restatement on the Restatement Date.  The Borrower confirms, acknowledges and agrees that this Agreement benefits from all collateral security executed in connection with the Original Agreement and that the “Obligations” are secured by, and benefit from, all collateral security and guarantees included in the Transaction Documents.  The Borrower hereby ratifies and confirms that all of the terms and conditions, representations and covenants contained in the Transaction Documents shall remain in full force and effect after giving effect to the execution and effectiveness of this Agreement.

 

SECTION 11.20                                                               Back-Up Servicer Removal .

 

Each of the parties hereto agree that Lyon shall no longer be a party to this Agreement and that Lyon is hereby released from and shall have no further rights or obligations under this Agreement. By its signature hereto, Lyon is acknowledging its removal as a party to this Agreement pursuant to this Section 11.20 and is not acknowledging or agreeing to any other provision of this Agreement.

 

ARTICLE XII.

COLLATERAL CUSTODIAN

 

SECTION 12.01                                                               Designation of Collateral Custodian .

 

(a)                                   Initial Collateral Custodian .  The role of Collateral Custodian with respect to the Required Loan Documents shall be conducted by the Person designated as Collateral Custodian hereunder from time to time in accordance with this Section 12.01 .  Until the Agent shall give to U.S. Bank a Collateral Custodian Termination Notice, U.S. Bank is hereby appointed as, and hereby accepts such appointment and agrees to perform the duties and obligations of, Collateral Custodian pursuant to the terms hereof.

 

(b)                                  Successor Collateral Custodian .  Upon the Collateral Custodian’s receipt of a Collateral Custodian Termination Notice from the Agent of the designation of a successor

 

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Collateral Custodian pursuant to the provisions of Section 12.05 , the Collateral Custodian agrees that it will terminate its activities as Collateral Custodian hereunder.

 

SECTION 12.02                                                               Duties of Collateral Custodian .

 

(a)                                   Appointment .  The Borrower and the Agent each hereby appoints U.S. Bank to act as Collateral Custodian, for the benefit of the Secured Parties.  The Collateral Custodian hereby accepts such appointment and agrees to perform the duties and obligations with respect thereto set forth herein.

 

(b)                                  Duties .  From the Closing Date until Restatement Date, the Collateral Custodian was in compliance with its custodial obligations under the Original Agreement in all material respects. From the Restatement Date until its removal pursuant to Section 12.05 , the Collateral Custodian shall perform, on behalf of the Secured Parties, the following duties and obligations:

 

(i)                                      The Collateral Custodian shall take and retain custody of the Required Loan Documents delivered by the Borrower pursuant to Section 3.02(a)  and Section 3.04(b)  hereof in accordance with the terms and conditions of this Agreement, all for the benefit of the Secured Parties.  Within five Business Days of its receipt of any Required Loan Documents, the related Loan Asset Schedule and a hard copy of the Loan Asset Checklist, the Collateral Custodian shall review the Required Loan Documents to confirm that (A) such Required Loan Documents have been properly executed and have no mutilated pages, (B) UCC and other filings (required by the Required Loan Documents) have been made, (C) if listed on the Loan Asset Checklist, an Insurance Policy exists with respect to any real or personal property constituting the Underlying Collateral, and (D) the related original balance (based on a comparison to the note or assignment agreement, as applicable), Loan Asset number and Obligor name, as applicable, with respect to such Loan Asset is referenced on the related Loan Asset Schedule (such items (A) through (D) collectively, the “ Review Criteria ”).  In order to facilitate the foregoing review by the Collateral Custodian, in connection with each delivery of Required Loan Documents hereunder to the Collateral Custodian, the Servicer shall provide to the Collateral Custodian a hard copy (which may be preceded by an electronic copy, as applicable) of the related Loan Asset Checklist which contains the Loan Asset information with respect to the Required Loan Documents being delivered, identification number and the name of the Obligor with respect to such Loan Asset.  Notwithstanding anything herein to the contrary, the Collateral Custodian’s obligation to review the Required Loan Documents shall be limited to reviewing such Required Loan Documents based on the information provided on the Loan Asset Checklist. If, at the conclusion of such review, the Collateral Custodian shall determine that (i) the original balance of the Loan Asset with respect to which it has received Required Loan Documents is less than as set forth on the Loan Asset Schedule, the Collateral Custodian shall notify the Agent and the Servicer of such discrepancy within one Business Day, or (ii) any Review Criteria is not satisfied, the Collateral Custodian shall within one Business Day notify the Servicer of such determination and provide the Servicer with a list of the non-complying Loan Assets and the applicable Review Criteria that they fail to satisfy. The Servicer shall have five Business Days after notice or knowledge thereof to

 

139



 

correct any non-compliance with any Review Criteria.  In addition, if requested in writing (in the form of Exhibit N ) by the Servicer and approved by the Agent within 10 Business Days of the Collateral Custodian’s delivery of such report, the Collateral Custodian shall return any Loan Asset which fails to satisfy a Review Criteria to the Borrower.  Other than the foregoing, the Collateral Custodian shall not have any responsibility for reviewing any Required Loan Documents. Notwithstanding anything to the contrary contained herein, the Collateral Custodian shall have no duty or obligation with respect to any Loan Asset checklist delivered to it in electronic form.

 

(ii)                                   In taking and retaining custody of the Required Loan Documents, the Collateral Custodian shall be deemed to be acting as the agent of the Secured Parties; provided that the Collateral Custodian makes no representations as to the existence, perfection or priority of any Lien on the Required Loan Documents or the instruments therein; and provided , further , that, the Collateral Custodian’s duties shall be limited to those expressly contemplated herein.

 

(iii)                                All Required Loan Documents shall be kept in fire resistant vaults, rooms or cabinets at the locations specified on the address of the Collateral Custodian in Section 11.02 , or at such other office as shall be specified to the Agent and the Servicer by the Collateral Custodian in a written notice delivered at least 30 days prior to such change.  All Required Loan Documents shall be placed together with an appropriate identifying label and maintained in such a manner so as to permit retrieval and access. The Collateral Custodian shall segregate the Required Loan Documents on its inventory system and will not commingle the physical Required Loan Documents with any other files of the Collateral Custodian other than those, if any, relating to Ares and its Affiliates and subsidiaries; provided , however , the Collateral Custodian shall segregate any commingled files upon written request of the Agent and the Borrower.

 

(iv)                               On the 12 th  calendar day of every month (or if such day is not a Business Day, the next succeeding Business Day), the Collateral Custodian shall provide a written report to the Agent and the Servicer (in a form mutually agreeable to the Agent and the Collateral Custodian) identifying each Loan Asset for which it holds Required Loan Documents and the applicable Review Criteria that any Loan Asset fails to satisfy.

 

(v)                                  In performing its duties, the Collateral Custodian shall use the same degree of care and attention as it employs with respect to similar collateral that it holds as collateral custodian for others.

 

(c)                                   (i)                                      The Collateral Custodian agrees to cooperate with the Agent and the Trustee and deliver any Required Loan Documents to the Trustee or Agent (pursuant to a written request in the form of Exhibit N ), as applicable, as requested in order to take any action that the Trustee or the Agent deems necessary or desirable in order to perfect, protect or more fully evidence the security interests granted by the Borrower hereunder, or to enable any of them to exercise or enforce any of their respective rights hereunder, including any rights arising with respect to Article VII . In the event the Collateral Custodian receives instructions from the Trustee, the Servicer or the Borrower which

 

140



 

conflict with any instructions received by the Agent, the Collateral Custodian shall rely on and follow the instructions given by the Agent.

 

(ii)                                   The Agent may direct the Collateral Custodian to take any such incidental action hereunder.  With respect to other actions which are incidental to the actions specifically delegated to the Collateral Custodian hereunder, the Collateral Custodian shall not be required to take any such incidental action hereunder, but shall be required to act or to refrain from acting (and shall be fully protected in acting or refraining from acting) upon the direction of the Agent; provided that the Collateral Custodian shall not be required to take any action hereunder at the request of the Agent, any Secured Parties or otherwise if the taking of such action, in the reasonable determination of the Collateral Custodian, (x) shall be in violation of any Applicable Law or contrary to any provisions of this Agreement or (y) shall expose the Collateral Custodian to liability hereunder or otherwise (unless it has received indemnity which it reasonably deems to be satisfactory with respect thereto).  In the event the Collateral Custodian requests the consent of the Agent and the Collateral Custodian does not receive a consent (either positive or negative) from the Agent within 10 Business Days of its receipt of such request, then the Agent shall be deemed to have declined to consent to the relevant action.

 

(iii)                                The Collateral Custodian shall not be liable for any action taken, suffered or omitted by it in accordance with the request or direction of any Secured Party, to the extent that this Agreement provides such Secured Party the right to so direct the Collateral Custodian, or the Agent.  The Collateral Custodian shall not be deemed to have notice or knowledge of any matter hereunder, including an Event of Default, unless a Responsible Officer of the Collateral Custodian has knowledge of such matter or written notice thereof is received by the Collateral Custodian.

 

SECTION 12.03                                                               Merger or Consolidation .

 

Any Person (i) into which the Collateral Custodian may be merged or consolidated, (ii) that may result from any merger or consolidation to which the Collateral Custodian shall be a party, or (iii) that may succeed to the properties and assets of the Collateral Custodian substantially as a whole, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Collateral Custodian hereunder, shall be the successor to the Collateral Custodian under this Agreement without further act of any of the parties to this Agreement.

 

SECTION 12.04                                                               Collateral Custodian Compensation .

 

As compensation for its Collateral Custodian activities hereunder, the Collateral Custodian shall be entitled to the Collateral Custodian Fees and Collateral Custodian Expenses from the Borrower as set forth in the Trustee and Collateral Custodian Fee Letter.  The Collateral Custodian shall be entitled to receive the Collateral Custodian Fees and Collateral Custodian Expenses to the extent of funds available therefor pursuant to the provision of Section 2. 04; provided, that, for the avoidance of doubt, to the extent funds are not so available on any Payment Date to pay such fees or reimburse such expenses incurred during the immediately

 

141



 

ended Remittance Period, such payment or reimbursement amount shall be deferred and payable on the next Payment Date on which funds are available therefor pursuant to Section 2.04 . The Collateral Custodian’s entitlement to receive the Collateral Custodian Fees shall cease on the earlier to occur of:  (i) its removal as Collateral Custodian pursuant to Section 12.05 , (ii) its resignation as Collateral Custodian pursuant to Section 12.07 of this Agreement or (iii) the termination of this Agreement.

 

SECTION 12.05                                                               Collateral Custodian Removal .

 

The Collateral Custodian may be removed, with or without cause, by the Agent by notice given in writing to the Collateral Custodian (the “ Collateral Custodian Termination Notice ”); provided , notwithstanding its receipt of a Collateral Custodian Termination Notice, the Collateral Custodian shall continue to act in such capacity until a successor Collateral Custodian has been appointed and has agreed to act as Collateral Custodian hereunder.

 

SECTION 12.06                                                               Limitation on Liability .

 

(a)                                   The Collateral Custodian may conclusively rely on and shall be fully protected in acting upon any certificate, instrument, opinion, notice, letter, telegram or other document delivered to it and that in good faith it reasonably believes to be genuine and that has been signed by the proper party or parties.  The Collateral Custodian may rely conclusively on and shall be fully protected in acting upon (a) the written instructions of any designated officer of the Agent or (b) the verbal instructions of the Agent.

 

(b)                                  The Collateral Custodian may consult counsel satisfactory to it and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion of such counsel.

 

(c)                                   The Collateral Custodian shall not be liable for any error of judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistakes of fact or law, or for anything that it may do or refrain from doing in connection herewith except in the case of its willful misconduct or grossly negligent performance or omission of its duties and in the case of the negligent performance of its duties in taking and retaining custody of the Required Loan Documents.

 

(d)                                  The Collateral Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Collateral Portfolio, and will not be required to and will not make any representations as to the validity or value (except as expressly set forth in this Agreement) of any of the Collateral Portfolio.  The Collateral Custodian shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.

 

(e)                                   The Collateral Custodian shall have no duties or responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against the Collateral Custodian.

 

142



 

(f)                                     The Collateral Custodian shall not be required to expend or risk its own funds in the performance of its duties hereunder.

 

(g)                                  It is expressly agreed and acknowledged that the Collateral Custodian is not guaranteeing performance of or assuming any liability for the obligations of the other parties hereto or any parties to the Collateral Portfolio.

 

(h)                                  Subject in all cases to the last sentence of Section 12.02(c)(i) , in case any reasonable question arises as to its duties hereunder, the Collateral Custodian may, prior to the occurrence of an Event of Default or the Facility Maturity Date, request instructions from the Servicer and may, after the occurrence of an Event of Default or the Facility Maturity Date, request instructions from the Agent, and shall be entitled at all times to refrain from taking any action unless it has received instructions from the Servicer or the Agent, as applicable.  The Collateral Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the instruction of the Agent.  In no event shall the Collateral Custodian be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Collateral Custodian has been advised of the likelihood of such loss or damage and regardless of the form of action.

 

SECTION 12.07                                                               Collateral Custodian Resignation .

 

Collateral Custodian may resign and be discharged from its duties or obligations hereunder, not earlier than 90 days after delivery to the Agent of written notice of such resignation specifying a date when such resignation shall take effect.  Upon the effective date of such resignation, or if the Agent gives Collateral Custodian written notice of an earlier termination hereof, Collateral Custodian shall (i) be reimbursed for any costs and expenses Collateral Custodian shall incur in connection with the termination of its duties under this Agreement and (ii) deliver all of the Required Loan Documents in the possession of Collateral Custodian to the Agent or to such Person as the Agent may designate to Collateral Custodian in writing upon the receipt of a request in the form of Exhibit N ; provided that the Borrower shall consent to any successor Collateral Custodian appointed by the Agent (such consent not to be unreasonably withheld). Notwithstanding anything herein to the contrary, the Collateral Custodian may not resign prior to a successor Collateral Custodian being appointed.

 

SECTION 12.08                                                               Release of Documents .

 

(a)                                   Release for Servicing .  From time to time and as appropriate for the enforcement or servicing of any of the Collateral Portfolio, the Collateral Custodian is hereby authorized (unless and until such authorization is revoked by the Agent), upon written receipt from the Servicer of a request for release of documents and receipt in the form annexed hereto as Exhibit N , to release to the Servicer within two Business Days of receipt of such request, the related Required Loan Documents or the documents set forth in such request and receipt to the Servicer.  All documents so released to the Servicer shall be held by the Servicer in trust for the benefit of the Trustee, on behalf of the Secured Parties in accordance with the terms of this Agreement.  The Servicer shall return to the Collateral Custodian the Required Loan Documents or other such documents (i) promptly upon the request of the Agent, or (ii) when the Servicer’s need therefor in connection with such foreclosure or servicing no longer exists, unless the Loan

 

143



 

Asset shall be liquidated, in which case, the Servicer shall deliver an additional request for release of documents to the Collateral Custodian and receipt certifying such liquidation from the Servicer to the Trustee, all in the form annexed hereto as Exhibit N .

 

(b)                                  Limitation on Release .  The foregoing provision with respect to the release to the Servicer of the Required Loan Documents and documents by the Collateral Custodian upon request by the Servicer shall be operative only to the extent that at any time the Trustee shall not have released to the Servicer active Required Loan Documents (including those requested) pertaining to more than 10 Loan Assets at the time being serviced by the Servicer under this Agreement.  Promptly after delivery to the Collateral Custodian of any request for release of documents, the Servicer shall provide notice of the same to the Agent.  Any additional Required Loan Documents or documents requested to be released by the Servicer may be released only upon written authorization of the Agent.  The limitations of this paragraph shall not apply to the release of Required Loan Documents to the Servicer pursuant to the immediately succeeding subsection.

 

(c)                                   Release for Payment .  Upon receipt by the Collateral Custodian of the Servicer’s request for release of documents and receipt in the form annexed hereto as Exhibit N (which certification shall include a statement to the effect that all amounts received in connection with such payment or repurchase have been credited to the Collection Account as provided in this Agreement), the Collateral Custodian shall promptly release the related Required Loan Documents to the Servicer.

 

SECTION 12.09                                                               Return of Required Loan Documents .

 

The Borrower may, with the prior written consent of the Agent (such consent not to be unreasonably withheld or delayed), require that the Collateral Custodian return each Required Loan Document (a) delivered to the Collateral Custodian in error or (b) released from the Lien of the Trustee hereunder pursuant to Section 2.16 , in each case by submitting to the Collateral Custodian and the Agent a written request in the form of Exhibit N hereto (signed by both the Borrower and the Agent) specifying the Collateral Portfolio to be so returned and reciting that the conditions to such release have been met (and specifying the Section or Sections of this Agreement being relied upon for such release).  The Collateral Custodian shall upon its receipt of each such request for return executed by the Borrower and the Agent promptly, but in any event within five Business Days, return the Required Loan Documents so requested to the Borrower.

 

SECTION 12.10                                                               Access to Certain Documentation and Information Regarding the Collateral Portfolio; Audits of Servicer .

 

The Collateral Custodian shall provide to the Agent access to the Required Loan Documents and all other documentation regarding the Collateral Portfolio including in such cases where the Agent is required in connection with the enforcement of the rights or interests of the Secured Parties, or by applicable statutes or regulations, to review such documentation, such access being afforded without charge but only (i) upon two Business Days prior written request, (ii) during normal business hours and (iii) subject to the Servicer’s and the Collateral Custodian’s normal security and confidentiality procedures.  Prior to the Restatement Date and periodically

 

144



 

thereafter at the discretion of the Agent, the Agent may review the Servicer’s collection and administration of the Collateral Portfolio in order to assess compliance by the Servicer with the Credit Policy and the Servicing Standard, as well as with this Agreement and may conduct an audit of the Collateral Portfolio, and Required Loan Documents in conjunction with such a review.  Such review shall be (subject to Section 5.03(d)(ii) ) reasonable in scope and shall be completed in a reasonable period of time.  Without limiting the foregoing provisions of this Section 12.10 , from time to time on request of the Agent, the Collateral Custodian shall permit certified public accountants or other auditors acceptable to the Agent to conduct, at the expense of the Servicer (on behalf of the Borrower), a review of the Required Loan Documents and all other documentation regarding the Collateral Portfolio.

 

SECTION 12.11                                                               Custodian as Agent of Trustee .

 

The Collateral Custodian agrees that, with respect to any Required Loan Documents at any time or times in its possession or held in its name, the Collateral Custodian shall be the agent and custodian of the Trustee, for the benefit of the Secured Parties, for purposes of perfecting (to the extent not otherwise perfected) the Trustee’s security interest in the Collateral Portfolio and for the purpose of ensuring that such security interest is entitled to first priority status under the UCC.

 

[Signature pages to follow.]

 

145



 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.

 

THE BORROWER:

ARES CAPITAL CP FUNDING LLC

 

 

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

THE SERVICER:

ARES CAPITAL CORPORATION

 

 

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

 

 

 

 

 

THE TRANSFEROR:

ARES CAPITAL CORPORATION

 

 

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

THE AGENT:

WELLS FARGO SECURITIES, LLC

 

 

 

 

 

 

 

By:

/s/ Jason Powers

 

 

Name: Jason Powers

 

 

Title: Director

 

 

 

 

 

 

THE NOTE PURCHASER:

WACHOVIA BANK, NATIONAL ASSOCIATION

 

 

 

 

 

 

 

By:

/s/ Kevin Sunday

 

 

Name: Kevin Sunday

 

 

Title: Director

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

THE TRUSTEE:

U.S. BANK NATIONAL ASSOCIATION

 

 

 

 

 

 

 

By:

/s/ John T. Edwards

 

 

Name: John T. Edwards

 

 

Title: Assistant Vice President

 

 

 

 

 

 

THE BANK:

U.S. BANK NATIONAL ASSOCIATION

 

 

 

 

 

 

 

By:

/s/ John T. Edwards

 

 

Name: John T. Edwards

 

 

Title: Assistant Vice President

 

 

 

 

 

 

THE COLLATERAL CUSTODIAN:

U.S. BANK NATIONAL ASSOCIATION

 

 

 

 

 

 

 

By:

/s/ John T. Edwards

 

 

Name: John T. Edwards

 

 

Title: Assistant Vice President

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

 

 

Agreed and Acknowledged:

 

 

 

 

 

VARIABLE FUNDING CAPITAL COMPANY LLC, as a Conduit Purchaser under the Original Agreement

 

 

 

 

 

 

By:

Wells Fargo Securities, LLC (f/k/a Wachovia Capital Markets, LLC), as attorney-in-fact

 

 

 

 

 

 

 

By:

/s/ Haojin Wu

 

 

Name: Haojin Wu

 

 

Title: Vice President

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

Agreed and Acknowledged:

 

 

 

 

 

 

ARES CAPITAL CP FUNDING II LLC, as the Guarantor under the Original Agreement

 

 

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

Agreed and Acknowledged Solely for Purposes of Section 11.20 :

 

 

 

 

LYON FINANCIAL SERVICES, INC. , d/b/a U.S. Bank Portfolio Services, not in its individual capacity but solely as Backup Servicer under the Original Agreement

 

 

 

 

 

 

 

By:

/s/ John Dockon

 

 

Name: John Dockon

 

 

Title: Senior Vice President

 

 

 

 

 

 

[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 



 

Agreed and Acknowledged:

 

 

 

WACHOVIA BANK, NATIONAL ASSOCIATION, as a Hedge Counterparty

 

 

 

 

 

 

 

By:

/s/ Kim V. Farr

 

 

Name: Kim V. Farr

 

 

Title: Director

 

Ares CP I Restated Facility

Amended and Restated Sale and Servicing Agreement

 


Exhibit 10.3

 

EXECUTION COPY

 

AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT

 

among

 

ARES CAPITAL CP FUNDING HOLDINGS LLC,

 

as the Purchaser

 

and

 

ARES CAPITAL CORPORATION,

 

as the Seller

 

 

Dated as of January 22, 2010

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I.

DEFINITIONS

1

 

 

 

Section 1.1.

General

1

 

 

 

Section 1.2.

Specific Terms

2

 

 

 

Section 1.3.

Other Terms

5

 

 

 

Section 1.4.

Computation of Time Periods

5

 

 

 

Section 1.5.

Certain References

5

 

 

 

ARTICLE II.

SALE AND PURCHASE OF THE ELIGIBLE LOAN ASSETS AND OTHER PORTFOLIO ASSETS

6

 

 

 

Section 2.1.

Sale and Purchase of the Eligible Loan Assets and the Other Portfolio Assets

6

 

 

 

Section 2.2.

Purchase Price

9

 

 

 

Section 2.3.

Payment of Purchase Price

9

 

 

 

Section 2.4.

Nature of the Sales

9

 

 

 

ARTICLE III.

CONDITIONS OF SALE AND PURCHASE

11

 

 

 

Section 3.1.

Conditions Precedent to Effectiveness

11

 

 

 

Section 3.2.

Conditions Precedent to All Purchases

13

 

 

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

14

 

 

 

Section 4.1.

Representations and Warranties of the Seller

14

 

 

 

Section 4.2.

Representations and Warranties of the Seller Relating to the Agreement and the Sale Portfolio

22

 

 

 

Section 4.3.

Representations and Warranties of the Purchaser

24

 

 

 

ARTICLE V.

COVENANTS OF THE SELLER

25

 

 

 

Section 5.1.

Protection of Title of the Purchaser

25

 

 

 

Section 5.2.

Affirmative Covenants of the Seller

28

 

 

 

Section 5.3.

Negative Covenants of the Seller

33

 

 

 

ARTICLE VI.

REPURCHASES AND SUBSTITUTION BY THE SELLER

35

 

 

 

Section 6.1.

Repurchase of Loan Assets

35

 

 

 

Section 6.2.

Substitution of Loan Assets

35

 

 

 

Section 6.3.

Repurchase Limitations

37

 

 

 

ARTICLE VII.

ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE SALE PORTFOLIO

37

 

i



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 7.1.

Rights of the Purchaser

37

 

 

 

Section 7.2.

Rights With Respect to Loan Asset Files

38

 

 

 

Section 7.3.

Notice to Trustee, Agent and Note Purchaser

38

 

 

 

ARTICLE VIII.

SELLER TERMINATION EVENTS

38

 

 

 

Section 8.1.

Seller Termination Events

38

 

 

 

Section 8.2.

Remedies

40

 

 

 

Section 8.3.

Survival of Certain Provisions

41

 

 

 

ARTICLE IX.

INDEMNIFICATION

41

 

 

 

Section 9.1.

Indemnification by the Seller

41

 

 

 

Section 9.2.

Assignment of Indemnities

44

 

 

 

ARTICLE X.

MISCELLANEOUS

45

 

 

 

Section 10.1.

Liability of the Seller

45

 

 

 

Section 10.2.

Limitation on Liability

45

 

 

 

Section 10.3.

Amendments; Limited Agency

45

 

 

 

Section 10.4.

Waivers; Cumulative Remedies

45

 

 

 

Section 10.5.

Notices

45

 

 

 

Section 10.6.

Merger and Integration

46

 

 

 

Section 10.7.

Severability of Provisions

47

 

 

 

Section 10.8.

GOVERNING LAW; JURY WAIVER

47

 

 

 

Section 10.9.

Consent to Jurisdiction; Service of Process

47

 

 

 

Section 10.10.

Costs, Expenses and Taxes

47

 

 

 

Section 10.11.

Counterparts

48

 

 

 

Section 10.12.

Bankruptcy Non-Petition and Limited Recourse; Claims

48

 

 

 

Section 10.13.

Binding Effect; Assignability

48

 

 

 

Section 10.14.

Waiver of Setoff

49

 

 

 

Section 10.15.

Headings and Exhibits

49

 

 

 

Section 10.16.

Rights of Inspection

49

 

 

 

Section 10.17.

Subordination

50

 

 

 

Section 10.18.

Breaches of Representations, Warranties and Covenants

50

 

 

 

Section 10.19.

Confidentiality

50

 

ii



 

TABLE OF CONTENTS

(continued)

 

 

 

Page

 

 

 

Section 10.20.

Assignments of Loan Assets

50

 

 

 

Section 10.21.

Assignment of Original Purchase and Sale Agreement

51

 

SCHEDULES AND EXHIBITS

 

Schedule I

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Sale Portfolio List

 

 

 

Exhibit A

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Form of First Tier Loan Assignment

Exhibit B

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Form of Officer’s Purchase Date Certificate

Exhibit C

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Form of Power of Attorney for Seller

 

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AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT

 

THIS AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT, dated as of January 22, 2010, among ARES CAPITAL CORPORATION, a Maryland corporation, as the seller (the “ Seller ”) and ARES CAPITAL CP FUNDING HOLDINGS LLC, a Delaware limited liability company, as the purchaser (the “ Purchaser ”).

 

W   I   T   N   E   S   S   E   T   H :

 

WHEREAS, the Seller, as seller, and Ares Capital CP Funding LLC, as buyer, were party to that certain Purchase and Sale Agreement, dated as of November 3, 2004 (as amended, restated, supplemented or modified to date, the “ Original Purchase and Sale Agreement ”);

 

WHEREAS, pursuant to Section 10.21 herein, Ares Capital CP Funding LLC  assigns all of its right, title and interest in the Original Purchase and Sale Agreement to Ares Capital CP Funding Holdings LLC, as the Purchaser hereunder, and the parties agree that Ares Capital CP Funding LLC shall no longer be party to this agreement;

 

WHEREAS, the parties hereto hereby amend and restate the Original Purchase and Sale Agreement;

 

WHEREAS, the Purchaser has agreed to Purchase (as hereinafter defined) from the Seller from time to time, and the Seller has agreed to Sell (as hereinafter defined) to the Purchaser from time to time, certain Loan Assets and Portfolio Assets (in each case, as hereinafter defined) related thereto on the terms set forth herein;

 

WHEREAS, it is contemplated that the Loan Assets and Portfolio Assets Purchased hereunder may be transferred by the Purchaser to the Borrower pursuant to the terms and conditions of the Second Tier Purchase and Sale Agreement and Pledged by the Borrower pursuant to the Amended and Restated Sale and Servicing Agreement (as defined herein) and the related Transaction Documents, to the Trustee, for the benefit of the Secured Parties; and

 

WHEREAS, the Seller agrees that all representations, warranties, covenants and agreements made by the Seller herein with respect to the Sale Portfolio shall also be for the benefit of any Secured Party.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Purchaser and the Seller, intending to be legally bound, hereby agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

Section 1.1.            General .  The specific terms defined in this Article include the plural as well as the singular.  Words herein importing a gender include the other gender. References

 



 

herein to “writing” include printing, typing, lithography and other means of reproducing words in visible form.  References to agreements and other contractual instruments include all subsequent amendments thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Agreement or the Amended and Restated Sale and Servicing Agreement (as hereinafter defined).  References herein to Persons include their successors and assigns permitted hereunder or under the Amended and Restated Sale and Servicing Agreement.  The terms “include” or “including” mean “include without limitation” or “including without limitation”.  The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision, and Article, Section, Schedule and Exhibit references, unless otherwise specified, refer to Articles and Sections of and Schedules and Exhibits to this Agreement.  Capitalized terms used herein but not defined herein shall have the respective meanings assigned to such terms in the Amended and Restated Sale and Servicing Agreement, provided that, if, within such definition in the Amended and Restated Sale and Servicing Agreement a further term is used which is defined herein, then such further term shall have the meaning given to such further term herein.

 

Section 1.2.            Specific Terms .  Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

 

Agreement ” means this Amended and Restated Purchase and Sale Agreement, as the same may be amended, restated, waived, supplemented and/or otherwise modified from time to time hereafter.

 

Amended and Restated Sale and Servicing Agreement ” means that certain Amended and Restated Sale and Servicing Agreement, amended and restated as of the Restatement Date, by and among Ares Capital CP Funding LLC, as the Borrower, the Seller, as the Servicer and the Transferor, Wachovia Bank, National Association, as the Note Purchaser, Wells Fargo Securities, LLC, as the Agent, U.S. Bank National Association, as the Trustee, the Bank and the Collateral Custodian, as such may be amended, restated, supplemented or otherwise modified from time to time pursuant to the terms thereof.

 

Early Termination ” has the meaning specified in Section 8.1 .

 

Facility Financing Statements ” has the meaning specified in Section 3.1(iv) .

 

First Tier Loan Assignment ” means (i) with respect to the Loan Assets transferred pursuant to the Original Purchase and Sale Agreement, each “Loan Assignment” pertaining thereto, as such term is defined in the Original Agreement and (ii) with respect to the Loan Assets transferred to the Purchaser on or after the Restatement Date, a First Tier Loan Assignment executed by the Seller, substantially in the form of Exhibit A attached hereto.

 

Indemnified Amounts ” has the meaning specified in Section 9.1 .

 

Indemnified Party ” has the meaning specified in Section 9.1 .

 

JPM Lien ” means the lien on the membership interests of the Purchaser created pursuant to the terms of that certain Senior Secured Revolving Credit Agreement dated as of

 

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December 28, 2005 between the Seller, the Lenders party thereto and JPMorgan Chase Bank, N.A., as amended, modified, waived, supplemented or restated from time to time.

 

Loan Asset ” means any loan listed on Schedule I hereto, which shall include any loan transferred to Ares CP Funding LLC pursuant to the Original Purchase and Sale Agreement, as the same may be amended, supplemented, restated or replaced from time to time.

 

Non-Consolidation/True Sale Opinion ” has the meaning specified in Section 4.1(kk) .

 

Original Loan Assets ” means all Loan Assets transferred to the Borrower pursuant to the Original Purchase and Sale Agreement.

 

Original Portfolio ” means all Original Loan Assets and all Portfolio Assets related thereto.

 

Portfolio Assets ” means all Loan Assets owned by the Seller, together with all proceeds thereof and other assets or property related thereto, including all right, title and interest of the Seller in and to:

 

(a)           any amounts on deposit in any cash reserve, collection, custody or lockbox accounts securing the Loan Assets;

 

(b)           all rights with respect to the Loan Assets to which the Seller is entitled as lender under the applicable Loan Agreement;

 

(c)           any Underlying Collateral securing a Loan Asset and all Recoveries related thereto, all payments paid in respect thereof and all monies due, to become due and paid in respect thereof accruing after the applicable Cut-Off Date and all liquidation proceeds;

 

(d)           all Required Loan Documents, the Loan Asset Files related to any Loan Asset, any Records, and the documents, agreements, and instruments included in the Loan Asset Files or Records;

 

(e)           all Insurance Policies with respect to any Loan Asset;

 

(f)            all Liens, guaranties, indemnities, warranties, letters of credit, accounts, bank accounts and property subject thereto from time to time purporting to secure or support payment of any Loan Asset, together with all UCC financing statements, mortgages or similar filings signed or authorized by an Obligor relating thereto;

 

(g)           all records (including computer records) with respect to the foregoing; and

 

(h)           all collections, income, payments, proceeds and other benefits of each of the foregoing.

 

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Purchase ” means a purchase by the Purchaser of an Eligible Loan Asset and the related Portfolio Assets from the Seller pursuant to Article II .

 

Purchase Date ” means, (i) with respect to each Original Loan Asset, the “Purchase Date” for such Loan Asset under the Original Purchase and Sale Agreement and (ii) with respect to any Loan Asset transferred to the Purchaser on or after the Restatement Date, the meaning specified in Section 2.1(b) .

 

Purchase Price ” means, (i) with respect to each Original Loan Asset, the “Purchase Price” for such Loan Asset under the Original Purchase and Sale Agreement and (ii) with respect to any Loan Asset transferred to the Purchaser on or after the Restatement Date, the meaning specified in Section 2.2 .

 

Purchaser ” has the meaning specified in the Preamble.

 

Purchaser Restricted Junior Payment ” means (i) any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Purchaser now or hereafter outstanding, except a dividend paid solely in interests of that class of membership interests or in any junior class of membership interests of the Purchaser; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of membership interests of the Purchaser now or hereafter outstanding, (iii) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire membership interests of the Purchaser now or hereafter outstanding, and (iv) any payment of management fees by the Purchaser (except for reasonable management fees to the Transferor or its Affiliates in reimbursement of actual management services performed).

 

Replaced Loan Asset ” has the meaning specified in Section 6.2(b)(i) .

 

Repurchase Price ” means, with respect to a Loan Asset to be repurchased pursuant to Article VI hereof, an amount equal to the Purchase Price less all Principal Collections received in respect of such Loan Asset from the Purchase Date to the date of repurchase hereunder.

 

Sale ” and “ Sell ” have the meanings specified in Section 2.1(a) , and the term “ Sold ” shall have the corresponding meaning.

 

Sale Portfolio ” means all right, title, and interest (whether now owned or hereafter acquired or arising, and wherever located) of the Seller in the property identified below in clauses (i)  through (iii)  and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions, or other property consisting of, arising out of, or related to any of the following (in each case excluding the Retained Interest and the Excluded Amounts):

 

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(i)            the Loan Assets, and all monies due or to become due in payment under such Loan Assets on and after the related Cut-Off Date, including, but not limited to, all Available Collections, but excluding any related Attached Equity;

 

(ii)           the Portfolio Assets with respect to the Loan Assets referred to in clause (i) ; and

 

(iii)          all income and Proceeds of the foregoing.

 

Schedule I ” means the schedule of all Original Loan Assets and the Sale Portfolio that is Sold by the Seller to the Purchaser on a Purchase Date, as supplemented on any subsequent Purchase Date by the “Schedule I” attached to the applicable First Tier Loan Assignment, and incorporated herein by reference, as such schedule may be supplemented and amended from time to time pursuant to the terms hereof, which schedule shall, together with all supplements and amendments thereto, be included in and made part of the Loan Asset Schedule attached to the Amended and Restated Sale and Servicing Agreement.

 

SEC ” has the meaning specified in Section 5.2(o)(i) .

 

 “ Seller Purchase Event ” means the occurrence of a breach of the Seller’s representations and warranties under Section 4.2 .

 

Seller Termination Event ” has the meaning specified in Section 8.1(a) .

 

Substitute Eligible Loan Asset ” has the meaning specified in Section 6.2(a) .

 

Substitution ” has the meaning specified in Section 6.2(a) .

 

Transfer Taxes ” means any tax, fee or governmental charge payable by the Purchaser, the Seller or any other Person to any federal, state or local government arising from or otherwise related to the Sale of any Loan Asset, the related Underlying Collateral (if any) and/or any other related Portfolio Assets from the Seller to the Purchaser under this Agreement (excluding taxes measured by net income).

 

Section 1.3.            Other Terms . All accounting terms used but not specifically defined herein shall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and used but not specifically defined herein, are used herein as defined in such Article 9.

 

Section 1.4.            Computation of Time Periods . Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

 

Section 1.5.            Certain References .  All references to the Outstanding Balance of a Loan Asset as of a Purchase Date shall refer to the close of business on such day.

 

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ARTICLE II.

 

SALE AND PURCHASE OF THE ELIGIBLE LOAN ASSETS
AND OTHER PORTFOLIO ASSETS

 

Section 2.1.            Sale and Purchase of the Eligible Loan Assets and the Other Portfolio Assets .  On or after the Restatement Date:

 

(a)           Subject to the terms and conditions of this Agreement, on and after the Restatement Date, the Seller hereby agrees to (i) sell, transfer and otherwise convey (collectively, “ Sell ” and any such sale, transfer and/or other conveyance, a “ Sale ”), from time to time, to the Purchaser, without recourse (except to the extent specifically provided herein), and the Purchaser hereby agrees to purchase, all right, title and interest of the Seller (whether now owned or hereafter acquired or arising, and wherever located) in and to certain Sale Portfolio designated by the Seller and (ii) transfer, or cause the deposit into, the Collection Account of all Available Collections received by the Seller on account of any Sale Portfolio hereunder on and after the Purchase Date with respect to such Sale Portfolio, in each case, within two Business Days of the receipt thereof.  The Seller hereby acknowledges that each Sale to the Purchaser hereunder is absolute and irrevocable, without reservation or retention of any interest whatsoever by the Seller.

 

(b)           The Seller shall on or prior to any Business Day prior to a Seller Termination Event (each a “ Purchase Date ”) execute and deliver to the Purchaser a proposed First Tier Loan Assignment identifying the Sale Portfolio to be Sold by the Seller to the Purchaser on such Purchase Date.  From and after such Purchase Date, the Sale Portfolio listed on Schedule I to the related First Tier Loan Assignment shall be deemed to be listed on Schedule I hereto and constitute part of the  Sale Portfolio hereunder.

 

(c)           On or before any Purchase Date with respect to the Sale Portfolio to be acquired by the Purchaser on such date, the Seller shall provide the Purchaser with an Officer’s Certificate, in the form of Exhibit B hereto, signed by a duly authorized Responsible Officer certifying, as of such Purchase Date, to each of the items in Section 4.2 .

 

(d)           On and after each Purchase Date hereunder and upon payment of the Purchase Price therefor, the Purchaser shall own the Sale Portfolio Sold by the Seller to the Purchaser on such Purchase Date, and the Seller shall not take any action inconsistent with such ownership and shall not claim any ownership interest in such Sale Portfolio.

 

(e)           Except as specifically provided in this Agreement, the Sale and Purchase of the Sale Portfolio under this Agreement shall be without recourse to the Seller; it being understood that the Seller shall be liable to the Purchaser for all representations, warranties, covenants and indemnities made by the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.

 

(f)            Neither the Purchaser nor any assignee of the Purchaser (including the Borrower and the Secured Parties) shall have any obligation or liability to any Obligor or client

 

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of the Seller (including any obligation to perform any obligation of the Seller, including with respect to any other related agreements) in respect of the Sale Portfolio (other than with respect to funding obligations to Obligors pursuant to the terms of the applicable Loan Agreement for Revolving Loan Assets and Delayed Draw Loan Assets, as applicable). No such obligation or liability is intended to be assumed by the Purchaser or any assignee of the Purchaser (including the Borrower and the Secured Parties) and any such assumption is expressly disclaimed. Without limiting the generality of the foregoing, the Sale of the Sale Portfolio by the Seller to the Purchaser pursuant to this Agreement does not constitute and is not intended to result in a creation or assumption by the Purchaser or any assignee of the Purchaser (including the Borrower and the Secured Parties), of any obligation of the Seller, as lead agent, collateral agent or paying agent under any Agented Note.

 

(g)           In connection with each Purchase of Sale Portfolio hereunder, the Seller shall cause to be delivered to the Collateral Custodian (with a copy to the Agent), no later than 2:00 p.m. one Business Day prior to the related Purchase Date, a faxed or e-mailed copy of the duly executed original promissory notes of the Loan Assets (and, in the case of any Noteless Loan Asset, a fully executed assignment agreement) and if any Loan Assets are closed in escrow, a certificate (in the form of Exhibit K to the Amended and Restated Sale and Servicing Agreement) from the closing attorneys of such Loan Assets certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Seller shall cause the Loan Asset Checklist and the Required Loan Documents to be in the possession of the Collateral Custodian within five Business Days after the related Purchase Date.

 

(h)           In accordance with the Amended and Restated Sale and Servicing Agreement, certain documents relating to Sale Portfolio shall be delivered to and held in trust by the Collateral Custodian for the benefit of the Purchaser and its assignees, and the Purchaser hereby instructs the Seller to cause such documents to be delivered to the Collateral Custodian.  Such delivery to the Collateral Custodian of such documents and the possession thereof by the Collateral Custodian is at the will of the Purchaser and its assignees and in a custodial capacity for their benefit only.

 

(i)            The Seller shall provide all information, and any other reasonable assistance, to the Servicer, the Collateral Custodian and the Trustee necessary for the Servicer, the Collateral Custodian and the Trustee, as applicable, to conduct the management, administration and collection of the Sale Portfolio Purchased hereunder in accordance with the terms of the Amended and Restated Sale and Servicing Agreement.

 

(j)            In connection with each Purchase of Sale Portfolio hereunder, the Seller hereby grants to each of the Purchaser and its assigns, the Agent, the Note Purchaser, the Trustee, the Collateral Custodian and the Servicer an irrevocable, non—exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Sale Portfolio, to the extent necessary to administer the Sale Portfolio, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that, should the consent of any licensor of such software be required for the grant of the license described herein to be effective or for the Purchaser to assign such licenses to the Servicer or any successor, the Seller hereby agrees that upon the request of the Purchaser or its assignees, the Agent, the Note Purchaser, the Collateral Custodian or the

 

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Trustee, the Seller shall use its best efforts to obtain the consent of such third—party licensor.  The license granted hereby shall be irrevocable until the Collection Date and shall terminate on the date this Agreement terminates in accordance with its terms.  The Seller (i) shall take such action reasonably requested by the Purchaser or the Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Purchaser and its assigns under the Second Tier Purchase and Sale Agreement and the Amended and Restated Sale and Servicing Agreement have an enforceable ownership or security interest, as applicable, in the Sale Portfolio Purchased by the Purchaser as contemplated by this Agreement, and (ii) shall use its commercially reasonable efforts to ensure that each of the Purchaser (and its assignees), the Agent, the Note Purchaser, the Trustee, the Collateral Custodian and the Servicer (or any successor) has an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Sale Portfolio and/or to recreate the related Loan Asset Files.

 

(k)           In connection with the Purchase by the Purchaser of Sale Portfolio as contemplated by this Agreement, the Seller further agrees that it shall, at its own expense, indicate clearly and unambiguously in its computer files on or prior to each Purchase Date, and its financial statements, that such Sale Portfolio has been purchased by the Purchaser in accordance with this Agreement.

 

(l)            The Seller further agrees to deliver to the Purchaser on or before each Purchase Date a computer file containing a true, complete and correct list of all Loan Assets to be Sold hereunder on such Purchase Date, identified by Obligor’s name and Outstanding Balance as of the related Cut—Off Date.  Such file or list shall be marked as Schedule I to the applicable First Tier Loan Assignment and shall be delivered to the Purchaser as confidential and proprietary, and is hereby incorporated into and made a part of Schedule I to this Agreement, as such Schedule I may be supplemented and amended from time to time.

 

(m)          The Seller shall, at all times, continue to fulfill its obligations under, and in strict conformance with the terms of all Loan Agreements (other than with respect to funding obligations to Obligors in connection with Revolving Loan Assets and Delayed Draw Loan Assets, as applicable) related to any Sale Portfolio purchased hereunder, including without limitation any obligations pertaining to any Retained Interest.

 

(n)           The Seller and the Purchaser each acknowledge with respect to itself that the representations and warranties of the Seller in Sections 4.1 and 4.2 hereof and of the Purchaser in Section 4.3 hereof, and the covenants of the Seller in Article V hereof, will run to and be for the benefit of the Purchaser, the Borrower and the Trustee (on behalf of the Secured Parties), and the Purchaser, the Borrower or the Trustee (on behalf of the Secured Parties) may enforce directly (without joinder of the Purchaser when enforcing against the Seller), the obligations of the Seller or the Purchaser, as applicable, with respect to breaches of such representations, warranties and covenants as set forth in the Second Tier Purchase and Sale Agreement or in this Agreement.

 

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Section 2.2.            Purchase Price .

 

The purchase price for each item of Sale Portfolio Sold to the Purchaser hereunder (the “ Purchase Price ”) shall be in a dollar amount equal to the fair market value of such Loan Asset as determined from time to time by the Seller and the Purchaser. Each of the Purchaser and the Seller hereby agree that the fair market value of each Loan Asset Sold hereunder as of the related Purchase Date shall not be less than the Advance Date Assigned Value thereof on the related Purchase Date multiplied by the principal balance of such Loan Asset (exclusive of Accreted Interest).

 

Section 2.3.            Payment of Purchase Price .

 

(a)           The Purchase Price for any Sale Portfolio Sold by the Seller to the Purchaser on any Purchase Date shall be paid in a combination of:  (i) immediately available funds; and (ii) if the Purchaser does not have sufficient funds to pay the full amount of the Purchase Price (after taking into account the proceeds the Purchaser expects to receive pursuant to the Second Tier Purchase and Sale Agreement), by means of a capital contribution by the Seller to the Purchaser.

 

(b)           The portion of such Purchase Price to be paid in immediately available funds shall be paid by wire transfer on the applicable Purchase Date to an account designated by the Seller on or before such Purchase Date or by means of proper accounting entries being entered upon the accounts and records of the Seller and the Purchaser on the applicable Purchase Date.

 

(c)           In connection with each delivery of a First Tier Loan Assignment, the Seller hereunder shall be deemed to have certified, with respect to the Sale Portfolio to be Sold by it on such day, that its representations and warranties contained in Sections 4.1 and 4.2 are true and correct in all material respects on and as of such day, with the same effect as though made on and as of such day (other than any representation or warranty that is made as of a specific date), that no Event of Default has occurred or would result therefrom and no Unmatured Event of Default exists or would result therefrom.

 

(d)           Upon the payment of the Purchase Price for any Purchase, title to the Sale Portfolio included in such Purchase shall vest in the Purchaser, whether or not the conditions precedent to such Purchase and the other covenants and agreements contained herein were in fact satisfied; provided that the Purchaser shall not be deemed to have waived any claim it may have under this Agreement for the failure by the Seller in fact to satisfy any such condition precedent, covenant or agreement.

 

Section 2.4.            Nature of the Sales .

 

(a)           It is the express intent of the parties hereto that the Sale of the Sale Portfolio by the Seller to the Purchaser hereunder and the transfer of the Original Loan Assets and Portfolio Assets related thereto from the Seller to the Borrower pursuant to the Original Purchase and Sale Agreement be, and be treated for all purposes (other than tax and accounting purposes) as an absolute sale by the Seller (free and clear of any Lien, security interest, charge or encumbrance other than Permitted Liens) of such Sale Portfolio. It is, further, not the intention of the parties that such Sale be deemed a pledge of the Sale Portfolio by the Seller to

 

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the Purchaser (or the Borrower under the Original Purchase and Sale Agreement) to secure a debt or other obligation of the Seller.  However, in the event that, notwithstanding the intent of the parties, the Sale Portfolio is held to continue to be property of the Seller, then the parties hereto agree that:  (i) this Agreement shall also be deemed to be a “security agreement” within the meaning of Article 9 of the UCC; (ii) the transfer of the Sale Portfolio (other than the Original Portfolio) provided for in this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a first priority security interest (subject only to Permitted Liens) in all of the Seller’s right, title and interest in and to the Sale Portfolio and all amounts payable to the holders of the Sale Portfolio in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of the Sale Portfolio together with all of the other obligations of the Seller hereunder; (iii)  the transfer of the Original Portfolio provided for in Original Purchase and Sale Agreement shall be deemed to be a grant by the Seller to the Borrower of a first priority security interest (subject only to Permitted Liens) in all of the Seller’s right, title and interest in and to the Original Portfolio and all amounts payable to the holders of the Original Portfolio in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of the Original Portfolio together with all of the other obligations of the Seller under the Original Purchase and Sale Agreement; (iv) the possession by the Purchaser or the Borrower (or the Collateral Custodian on behalf of the Trustee, for the benefit of the Secured Parties) of Sale Portfolio and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be, subject to clause (v) , for purposes of perfecting the security interest pursuant to the UCC; and (v) acknowledgements from Persons holding such property shall be deemed acknowledgements from custodians, bailees or agents (as applicable) of the Purchaser or the Borrower for the purpose of perfecting such security interest under Applicable Law.  The parties further agree in such event that any assignment of the interest of the Purchaser pursuant to any provision hereof shall also be deemed to be an assignment of any security interest created pursuant to the terms of this Agreement.  The Purchaser shall, to the extent consistent with this Agreement and the other Transaction Documents, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Sale Portfolio, such security interest would be deemed to be a perfected security interest of first priority (subject only to Permitted Liens) under Applicable Law and will be maintained as such throughout the term of this Agreement. The Purchaser shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative.

 

(b)           It is the intention of each of the parties hereto that the Sale Portfolio Sold by the Seller to the Purchaser pursuant to this Agreement or transferred by the Seller to the Borrower pursuant to the Original Purchase and Sale Agreement shall constitute assets owned by the Purchaser (or the Borrower, as applicable) and shall not be part of the Seller’s estate in

 

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the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy or similar law.

 

(c)           If any such Sale of the Sale Portfolio is deemed to be a pledge to secure a debt or other obligation of the Seller, the Purchaser may, to secure the Purchaser’s own borrowing under the Second Tier Purchase and Sale Agreement (to the extent that the transfer of the Sale Portfolio thereunder is deemed to be a pledge to secure a debt or other obligation of the Purchaser), repledge and reassign (i) all or a portion of the Sale Portfolio pledged to the Purchaser by the Seller and with respect to which the Purchaser has not released its security interest at the time of such pledge and assignment, and (ii) all proceeds thereof.  Such repledge and reassignment may be made by the Purchaser with or without a repledge and reassignment by the Purchaser of its rights under any agreement with the Seller, and without further notice to or acknowledgment from the Seller.

 

(d)           The Purchaser agrees to treat, and shall cause the Seller to treat, for all purposes (other than tax and accounting purposes), the transactions effected by this Agreement as sales of assets to the Purchaser (or the Borrower, as applicable). The Seller agrees to reflect in the Seller’s financial records and to include a note in the publicly filed annual and quarterly financial statements of Ares Capital Corporation indicating that: (i) assets related to transactions (including transactions pursuant to the Transaction Documents) that do not meet SFAS 140 requirements for accounting sale treatment are reflected in the consolidated balance sheet of Ares Capital Corporation as finance receivables pledged and non-recourse, secured borrowings and (ii) those assets are owned by a special purpose entity that is consolidated in the financial statements of Ares Capital Corporation, and the creditors of that special purpose entity have received ownership and/or security interests in such assets and such assets are not intended to be available to the creditors of sellers (or any affiliate of the sellers) of such assets to that special purpose entity.

 

ARTICLE III.

 

CONDITIONS OF SALE AND PURCHASE

 

Section 3.1.            Conditions Precedent to Effectiveness .  This Agreement shall be effective upon the satisfaction of the conditions precedent that the Purchaser shall have received on or before the Restatement Date, in form and substance satisfactory to the Purchaser, all of the following:

 

(i)            a copy of this Agreement duly executed by each of the parties hereto;

 

(ii)           a certificate of the Secretary or Assistant Secretary of the Seller, dated the Restatement Date, certifying (A) the names and true signatures of the incumbent officers of the Seller authorized to sign on behalf of the Seller this Agreement, the First Tier Loan Assignments and all other documents to be executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii) ), (B) 

 

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that the copy of the articles of incorporation of the Seller is a complete and correct copy and that such articles of incorporation have not been amended, modified or supplemented and are in full force and effect, (C) that the copy of the by-laws of the Seller are a complete and correct copy, and that such by-laws have not been amended, modified or supplemented and are in full force and effect, and (D) the resolutions of the board of directors of the Seller approving and authorizing the execution, delivery and performance by the Seller of this Agreement, the First Tier Loan Assignments and all other documents to be executed by the Seller hereunder or in connection herewith;

 

(iii)          a good standing certificate, dated as of a recent date for the Seller, issued by the Secretary of State of the Seller’s State of formation or incorporation, as applicable;

 

(iv)          filed, original copies of proper financing statements or amendments thereto (the “ Facility Financing Statements ”) describing the Sale Portfolio, and naming the Seller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s ownership interest in all Sale Portfolio;

 

(v)           copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;

 

(vi)          copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Restatement Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the State of Maryland, together with copies of such financing statements (none of which shall cover any Sale Portfolio);

 

(vii)         all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser and the Agent, and the Purchaser and the Agent shall have received from the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser and the Agent may have reasonably requested;

 

(viii)        any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Purchaser;

 

(ix)           the Seller shall have paid all fees required to be paid by it on the Restatement Date; and

 

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(x)            one or more favorable Opinions of Counsel from counsel to the Seller with respect to the perfection and enforceability of the security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.

 

Section 3.2.            Conditions Precedent to All Purchases .  Each Purchase to take place on a Purchase Date on or after the Restatement Date hereunder shall be subject to the further conditions precedent that:

 

(a)           The following statements shall be true:

 

(i)            The representations and warranties of the Seller contained in Sections 4.1 and 4.2 shall be true and correct on and as of such Purchase Date in all material respects, before and after giving effect to the Purchase to take place on such Purchase Date and to the application of proceeds therefrom, as though made on and as of such date (other than any representation and warranty that is made as of a specific date);

 

(ii)           The Seller is in compliance in all respects with each of its covenants and other agreements set forth herein;

 

(iii)          No Seller Termination Event (or event which, with the passage of time or the giving of notice, or both would constitute a Seller Termination Event) shall have occurred or would result from such Purchase;

 

(iv)          The Facility Maturity Date has not yet occurred; and

 

(v)           No Applicable Law shall prohibit or enjoin, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of any such Purchase by the Purchaser in accordance with the provisions hereof.

 

(b)           The Purchaser shall have received a duly executed and completed First Tier Loan Assignment along with a Schedule I that is true, accurate and complete in all respects as of the related Cut-Off Date.

 

(c)           The Seller shall have delivered to the Collateral Custodian on behalf of the Purchaser and any assignee thereof each item required to be contained in the Required Loan Documents and the Loan Asset Checklist of any of the Eligible Loan Assets or Portfolio Assets related thereto being acquired by the Purchaser within five Business Days of the related Purchase Date.

 

(d)           The Seller shall have taken all steps necessary under all Applicable Law in order to Sell to the Purchaser the Sale Portfolio being Purchased on such Purchase Date and, upon the Sale of such Sale Portfolio from the Seller to the Purchaser pursuant to the terms hereof, the Purchaser will have acquired good and marketable title to (subject to Section 10.20 ) and a valid and perfected ownership interest in such Sale Portfolio, free and clear of any Lien, security interest, charge or encumbrance (other than Permitted Liens); provided that if such item of Sale Portfolio contains a restriction of transferability, the applicable Loan Agreement provides that any consents necessary for future assignments shall not be unreasonably withheld

 

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by the applicable Obligor and/or agent, and the rights to enforce rights and remedies in respect of the same under the applicable Loan Agreement inure to the benefit of the holder of such Loan Asset (subject to the rights of any applicable agent or other lenders).

 

(e)           The Seller shall have received a copy of an Approval Notice executed by the Agent evidencing the approval of the Agent, in its sole and absolute discretion of the Sale to the Purchaser of the Eligible Loan Assets identified on Schedule I to the applicable First Tier Loan Assignment on the applicable Purchase Date.

 

ARTICLE IV.

 

REPRESENTATIONS AND WARRANTIES

 

Section 4.1.            Representations and Warranties of the Seller .  The Seller makes the following representations and warranties, on which the Purchaser relies in acquiring the Sale Portfolio Purchased hereunder, the Borrower relies in acquiring the Sale Portfolio under the Second Tier Purchase and Sale Agreement and each of the Secured Parties relies upon in entering into the Amended and Restated Sale and Servicing Agreement. As of each Purchase Date on or after the Restatement Date, the Seller represents and warrants to the Purchaser for the benefit of the Purchaser and each of its successors and assigns that:

 

(a)           Organization and Good Standing .  The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Maryland (subject to Section 5.1(f) ), with all requisite corporate power and authority to own or lease its properties and to conduct its business as such business is presently conducted, and had at all relevant times and now has all necessary power, authority and legal right to acquire and own the Sale Portfolio and to Sell such Sale Portfolio to the Purchaser hereunder.

 

(b)           Due Qualification .  The Seller is duly qualified to do business and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, licenses and/or approvals.

 

(c)           Power and Authority; Due Authorization; Execution and Delivery .  The Seller (i) has all necessary corporate power, authority and legal right to (a) execute and deliver this Agreement, each First Tier Loan Assignment and the other Transaction Documents to which it is a party and (b) carry out the terms of this Agreement, each First Tier Loan Assignment and the other Transaction Documents to which it is a party and (ii) has duly authorized by all necessary corporate action the execution, delivery and performance of this Agreement, each First Tier Loan Assignment and the other Transaction Documents to which it is a party and the sale and assignment of an ownership interest in the Sale Portfolio on the terms and conditions herein provided.  This Agreement, each First Tier Loan Assignment and each other Transaction Document to which the Seller is a party have been duly executed and delivered by the Seller.

 

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(d)           Valid Conveyance; Binding Obligations .  This Agreement, each First Tier Loan Assignment and the Transaction Documents to which the Seller is party have been and, in the case of each First Tier Loan Assignment delivered after the Restatement Date, will be, duly executed and delivered by the Seller, and this Agreement, together with the applicable First Tier Loan Assignment in each case, shall effect valid Sales of Sale Portfolio, enforceable against the Seller and creditors of and purchasers from the Seller, and this Agreement, each First Tier Loan Assignment and such Transaction Documents shall constitute legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, except as enforceability may be limited by Bankruptcy Laws and general principles of equity (whether such enforceability is considered in a proceeding in equity or at law).

 

(e)           No Violation .  The execution, delivery and performance of this Agreement, each First Tier Loan Assignment and all other agreements and instruments executed and delivered or to be executed and delivered by the Seller pursuant hereto or thereto in connection with the Sale of the Sale Portfolio will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Seller’s articles of incorporation or by-laws or any contractual obligation of the Seller, (ii) result in the creation or imposition of any Lien (other than Permitted Liens) upon any of the Seller’s properties pursuant to the terms of any such contractual obligation, other than this Agreement, or (iii) violate any Applicable Law.

 

(f)            No Proceedings .  There is no litigation, proceeding or investigation pending or, to the knowledge of the Seller, threatened against the Seller, before any Governmental Authority (i) asserting the invalidity of this Agreement, any First Tier Loan Assignment or any other Transaction Document to which the Seller is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, any First Tier Loan Assignment or any other Transaction Document to which the Seller is a party or (iii) other than the Disclosed Matters, seeking any determination or ruling that could reasonably be expected to have Material Adverse Effect. Since the Restatement Date, there has been no change in the status of the Disclosed Matters (after giving effect to any update of the Disclosed Matters in accordance with the definition thereof) that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect.

 

(g)           No Consents .  The Seller is not required to obtain the consent or approval of any other party or any consent, license, approval or authorization, or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or any First Tier Loan Assignment, except those which have been obtained.

 

(h)           State of Organization, Etc .  Except as permitted hereunder, the Seller’s legal name is as set forth in this Agreement. Except as permitted hereunder, the Seller has not changed its name since its formation; does not have tradenames, fictitious names, assumed names or “doing business as” names (other than names acquired in connection with the Acquisition). The chief executive office of the Seller (and the location of the Seller’s records regarding the Sale Portfolio (other than those delivered to the Collateral Custodian)) is at the address of the Seller set forth in Section 10.5 hereto.  The Seller’s only jurisdiction of formation

 

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is Maryland, and, except as permitted hereunder, the Seller has not changed its jurisdiction of formation.

 

(i)            Bulk Sales .  The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not require compliance with any “bulk sales” act or similar law by the Seller.

 

(j)            Solvency .  The Seller is not the subject of any Bankruptcy Proceedings or Bankruptcy Event. The Seller is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the other Transaction Documents.  The Seller, after giving effect to the transactions contemplated by this Agreement and the other Transaction Documents, will have an adequate amount of capital to conduct its business in the foreseeable future.

 

(k)           Selection Procedures .  No procedures believed by the Seller to be adverse to the interests of the Purchaser were utilized by the Seller in identifying and/or selecting the Eligible Loan Assets included in the Sale Portfolio.

 

(l)            Compliance with Laws .  The Seller has complied in all material respects with all Applicable Law to which it may be subject, and no Sale Portfolio contravenes any Applicable Law.

 

(m)          Taxes .  The Seller has filed or caused to be filed all tax returns that are required to be filed by it.  The Seller has paid or made adequate provisions for the payment of all taxes and all assessments made against it or any of its property (other than any amount of tax the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of the Seller), and no tax lien has been filed and, to the Seller’s knowledge, no claim is being asserted, with respect to any such tax, assessment or other charge.

 

(n)           Exchange Act Compliance; Regulations T, U and X .  None of the transactions contemplated herein or in the other Transaction Documents (including, without limitation, the use of the proceeds from the Sale of the Sale Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.  The Seller does not own or intend to carry or purchase, and no proceeds from the Sale of the Sale Portfolio will be used to carry or purchase, any Margin Stock or to extend “purpose credit” within the meaning of Regulation U.

 

(o)           First Tier Loan Assignments .  Each First Tier Loan Assignment is accurate in all respects.

 

(p)           No Liens, Etc .  The Sale Portfolio to be acquired by Purchaser hereunder is owned by the Seller free and clear of any Lien, security interest, charge or encumbrance (subject only to Permitted Liens), and the Seller has the full right, corporate power and lawful authority to Sell the same and interests therein and, upon the Sale thereof hereunder, the Purchaser will have acquired good and marketable title to (subject to Section 10.20 )  and a valid and perfected ownership interest in such Sale Portfolio, free and clear of any Lien, security

 

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interest, charge or encumbrance (subject only to Permitted Liens); provided that if such item of Sale Portfolio contains a restriction of transferability, the applicable Loan Agreement provides that any consents necessary for future assignments shall not be unreasonably withheld by the applicable Obligor and/or agent, and the rights to enforce rights and remedies in respect of the same under the applicable Loan Agreement inure to the benefit of the holder of such Loan Asset (subject to the rights of any applicable agent or other lenders). No effective financing statement reflecting the Seller or the Seller’s predecessor in interest, as a “Debtor”, or other instrument similar in effect covering all or any part of any Sale Portfolio Purchased hereunder is on file in any recording office, except such as may have been filed in favor of the Trustee as “Secured Party” or “Assignee”, in each case, for the benefit of the Secured Parties pursuant to the Amended and Restated Sale and Servicing Agreement.

 

(q)           Information True and Correct .  All information heretofore furnished by or on behalf of the Seller to the Purchaser or any assignee thereof in connection with this Agreement or any transaction contemplated hereby is true and complete and does not omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided that, solely with respect to written or electronic information furnished by the Seller which was provided to the Seller from an Obligor with respect to a Loan Asset, such information need only be accurate, true and correct to the knowledge of the Seller; provided further , that the foregoing proviso shall not apply to any information presented in a Servicer’s Certificate, Servicing Report, Notice of Borrowing or Borrowing Base Certificate.

 

(r)            ERISA Compliance .  The present value of all benefits vested under all Pension Plans does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual valuation date).  No prohibited transactions, failure to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, withdrawals or reportable events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Seller to any material tax, penalty or other liability.  No notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer, a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.

 

(s)           Investment Company Status .  The Seller is an “investment company” that has elected to be regulated as a “business development company” within the meaning of the 1940 Act. The Seller conducts its business and other activities in compliance in all material respects with the applicable provisions of the 1940 Act and any applicable rules, regulations or orders issued by the SEC thereunder.

 

(t)            Intent of The Seller .  The Seller has not sold, contributed, transferred, assigned or otherwise conveyed any interest in any Sale Portfolio to the Purchaser with any intent to hinder, delay or defraud any of the Seller’s creditors.

 

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(u)           Value Given .  The Seller has received reasonably equivalent value from the Purchaser in exchange for the Sale of such Sale Portfolio Sold hereunder. No such Sale has been made for or on account of an antecedent debt owed by the Seller and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.

 

(v)           Accounting .  Other than for tax and consolidated accounting purposes, the Seller will not account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than as a sale of the Sale Portfolio by the Seller to the Purchaser (or the Borrower, as applicable).

 

(w)          No Broker-Dealers .  The Seller is not a broker-dealer or subject to the Securities Investor Protection Act of 1970, as amended.

 

(x)            Special Purpose Entity .  The Purchaser is an entity with assets and liabilities separate and distinct from those of the Seller and any Affiliates thereof, and the Seller hereby acknowledges that the Agent, the Note Purchaser, the Borrower, the Trustee and the other Secured Parties are entering into the transactions contemplated by the Amended and Restated Sale and Servicing Agreement in reliance upon the Purchaser’s identity as a legal entity that is separate from the Seller and from each other Affiliate of the Seller.  Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, including, without limitation, all steps that the Agent, the Note Purchaser, the Borrower and the Trustee may from time to time reasonably request, to maintain the Purchaser’s identity as a separate legal entity and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate (other than for tax purposes). Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall take all reasonable steps to ensure that the Purchaser has not and will not take, refrain from taking, or fail to take (as applicable) any action described in Section 9(j) of its operating agreement.

 

(y)           Sale Agreement .  This Agreement and the First Tier Loan Assignments contemplated herein are the only agreements or arrangements pursuant to which the Seller Sells the Sale Portfolio Sold by it to the Purchaser.

 

(z)            Security Interest .

 

(i)            This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Sale Portfolio in favor of the Purchaser, which security interest is prior to all other Liens (except for Permitted Liens), and is enforceable as such against creditors of and purchasers from the Seller;

 

(ii)           the Loan Assets, along with the related Loan Asset Files, constitute either a “general intangible,” an “instrument,” an “account,” “securities entitlement,” “tangible chattel paper”, “certificated security,” “uncertificated security,” “supporting obligation,” or “insurance” (each as defined in the applicable UCC), real property and/or such other category of collateral under the applicable UCC as to which the Seller has complied with its obligations under this Section 4.1(z) .

 

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(iii)          the Seller owns and has good and marketable title to the Sale Portfolio (subject to Section 10.20 ) Sold by it to the Purchaser hereunder on such Purchase Date, free and clear of any Lien (other than Permitted Liens) of any Person;

 

(iv)          the Seller has received all consents and approvals required by the terms of any Loan Asset, to the Sale thereof and the granting of a security interest in the Loan Assets hereunder to the Purchaser;

 

(v)           the Seller has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in that portion of the Sale Portfolio in which a security interest may be perfected by filing granted hereunder to the Purchaser;  provided that filings in respect of real property shall not be required;

 

(vi)          other than (i) as expressly permitted by the terms of this Agreement and the Amended and Restated Sale and Servicing Agreement and (ii) the security interest granted to the Purchaser, the Seller has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Sale Portfolio.  The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the Sale Portfolio other than any financing statement (A) relating to the security interest granted to the Purchaser under this Agreement, (B) relating to the closing of a Permitted Securitization contemplated by Section 2.07(c) of the Amended and Restated Sale and Servicing Agreement or (C) that has been terminated and/or fully and validly assigned to the Trustee on or prior to the date hereof.  The Seller is not aware of the filing of any judgment or tax lien filings against the Seller;

 

(vii)         all original executed copies of each underlying promissory note or copies of each Loan Asset Register, as applicable, that constitute or evidence each Loan Asset have been, or subject to the delivery requirements contained herein, will be delivered to the Collateral Custodian;

 

(viii)        other than in the case of Noteless Loan Assets, the Seller has received, or subject to the delivery requirements herein will receive, a written acknowledgment from the Collateral Custodian that the Collateral Custodian, as the bailee of the Trustee, is holding the underlying promissory notes that constitute or evidence the Loan Assets solely on behalf of and for the Trustee, for the benefit of the Secured Parties; provided that the acknowledgement of the Collateral Custodian set forth in Section 13.11 of the Amended and Restated Sale and Servicing Agreement may serve as such acknowledgement;

 

(ix)           none of the underlying promissory notes or Loan Asset Registers, as applicable, that constitute or evidence the Loan Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Trustee, on behalf of the Secured Parties;

 

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(x)            with respect to any Sale Portfolio that constitutes a “certificated security”, such certificated security has been delivered to the Collateral Custodian, on behalf of the Secured Parties and, if in registered form, has been specifically Indorsed to the Trustee, for the benefit of the Secured Parties, or in blank by an effective Indorsement or has been registered in the name of the Trustee, for the benefit of the Secured Parties, upon original issue or registration or transfer by the Borrower of such certificated security; and

 

(xi)           with respect to any Sale Portfolio that constitutes an “uncertificated security”, that the Seller shall cause the issuer of such uncertificated security to register the Trustee, on behalf of the Secured Parties, as the registered owner of such uncertificated security.

 

(aa)         Credit Policy .  The Seller has complied in all material respects with the Credit Policy with respect to all of the Sale Portfolio.

 

(bb)         Notice to Agents and Obligors .  The Seller has directed any agent, administrative agent or Obligor for any Loan Asset to remit all payments and collections with respect to such Loan Asset directly to (i) the Concentration Account (solely prior to the Account Transition Deadline) or (ii) the Collection Account.

 

(cc)         Collections .  Prior to the Account Transition Deadline, the Concentration Account and the Collection Account are the only accounts to which Obligors have been instructed to send Interest Collections and Principal Collections on the Sale Portfolio.  After the Account Transition Deadline, the Collection Account is the only account to which Obligors have been instructed to send Interest Collections and Principal Collections on the Sale Portfolio. Except as contemplated by the Intercreditor Agreement, the Seller has not granted any Person other than the Agent and the Trustee an interest in the Concentration Account. The Seller acknowledges that all Interest Collections and Principal Collections received by it or its Affiliates with respect to the Sale Portfolio Purchased by the Purchaser as contemplated by this Agreement are held and shall be held in trust for the benefit of the Purchaser (or its assignees) until deposited into the Collection Account as required by the Amended and Restated Sale and Servicing Agreement.

 

(dd)         Set—Off, Etc .  No Sale Portfolio has been compromised, adjusted, extended, satisfied, subordinated, rescinded, set—off or modified by the Seller or the Obligor thereof, and no Sale Portfolio is subject to compromise, adjustment, extension, satisfaction, subordination, rescission, set—off, counterclaim, defense, abatement, suspension, deferment, deduction, reduction, termination or modification, whether arising out of transactions concerning the Sale Portfolio or otherwise, by the Seller or the Obligor with respect thereto, except for amendments, extensions or modifications to such Sale Portfolio otherwise permitted under Section 6.04(a) of the Amended and Restated Sale and Servicing Agreement and in accordance with the Credit Policy and the Servicing Standard.

 

(ee)         Full Payment .  As of the related Purchase Date thereof, the Seller has no knowledge of any fact which should lead it to expect that any Sale Portfolio will not be paid in full.

 

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(ff)           Ownership of the Purchaser .  The Seller owns, directly or indirectly, 100% of the membership interests of the Purchaser, free and clear of any Lien (other than the JPM Lien).  Such membership interests are validly issued, fully paid and non—assessable, and there are no options, warrants or other rights to acquire membership interests of the Purchaser.

 

(gg)         Confirmation from the Seller .  The Seller has provided written confirmation to the Purchaser that the Seller will not cause the Purchaser to file a voluntary petition under the Bankruptcy Code.

 

(hh)         Environmental . With respect to each item of Underlying Collateral as of the Cut-Off Date for the Loan Asset related to such Underlying Collateral, to the actual knowledge of a Responsible Officer of the Seller (a) the related Obligor’s operations comply in all material respects with all applicable Environmental Laws; (b) none of the related Obligor’s operations is the subject of a Federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (c) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment. As of the Cut-Off Date for the Loan Asset related to such Underlying Collateral, the Seller has not received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does the Seller have knowledge or reason to believe that any such notice will be received or is being threatened.

 

(ii)           USA PATRIOT Act .  Neither the Seller nor any Affiliate of the Seller is (i) a country, territory, organization, person or entity named on an Office of Foreign Asset Control (OFAC) list, (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.

 

(jj)           Seller Termination Event .  No event has occurred which constitutes a Seller Termination Event and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both would constitute a Seller Termination Event (other than as previously disclosed to the Agent as such).

 

(kk)         Opinion .  The statements of fact in the section heading “Assumptions” in the non-consolidation and true sale opinion (the “ Non-Consolidation/True Sale Opinion ”) of Latham & Watkins LLP, dated as of the Restatement Date are true and correct in all material respects.

 

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(ll)           Accuracy of Representations and Warranties .  Each representation or warranty by the Seller contained (i) herein or (ii) in any certificate or other document furnished by the Seller to the Purchaser or the Agent in writing pursuant hereto or in connection herewith is, as of its date, true and correct in all material respects.

 

(mm)       Representations and Warranties for Benefit of the Purchaser’s Assignees . The Seller hereby makes each representation and warranty contained in this Agreement and the other Transaction Documents to which it is a party and that have been executed and delivered on or prior to such Purchase Date to, and for the benefit of the Purchaser (and its assignees), the Agent, the Note Purchaser and the Trustee as if the same were set forth in full herein.

 

(nn)         Reaffirmation of Representations and Warranties under Original Purchase and Sale Agreement . The Seller hereby reaffirms each representation and warranty made pursuant to the Original Purchase and Sale Agreement and represents and warrants that each such representation and warranty was, as of its date, true and correct in all material respects and that, immediately prior to this amendment and restatement of this Agreement, there existed no breach of any covenant or agreement under the Original Purchase and Sale Agreement. For the avoidance of doubt, the Seller hereby agrees that any breach of any such representation, warranty, covenant or agreement under the Original Purchase and Sale Agreement prior to the Restatement Date shall be treated as a breach of a representation or warranty under this Section 4.1 .

 

It is understood and agreed that the representations and warranties provided in this Section 4.1 shall survive (x) the Sale of the Sale Portfolio to the Purchaser and (y) any subsequent transfer of the Sale Portfolio by the Purchaser (including a transfer under the Second Tier Purchase and Sale Agreement and grant of a first priority perfected security interest in, to and under the Sale Portfolio pursuant to the Amended and Restated Sale and Servicing Agreement by the Borrower). Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the other and to the Agent immediately upon obtaining knowledge of such breach.

 

Section 4.2.            Representations and Warranties of the Seller Relating to the Agreement and the Sale Portfolio .  The Seller makes the following representations and warranties, on which the Purchaser relies in acquiring the Sale Portfolio Purchased hereunder, the Borrower relies in acquiring the Sale Portfolio under the Second Tier Purchase and Sale Agreement and each of the Secured Parties relies upon in entering into the Amended and Restated Sale and Servicing Agreement. As of each Purchase Date on or after the Restatement Date, the Seller represents and warrants to the Purchaser for the benefit of the Purchaser and each of its successors and assigns that:

 

(a)           Binding Obligation, Valid Transfer and Security Interest .  This Agreement, together with the First Tier Loan Assignments, constitutes a valid transfer to the Purchaser of all right, title and interest in, to and under all Sale Portfolio, free and clear of any Lien of any Person claiming through or under the Seller or its Affiliates, except for Permitted Liens.  If the conveyances contemplated by this Agreement are determined to be a transfer for security, then this Agreement constitutes a grant of a security interest in all Sale Portfolio to the

 

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Purchaser which upon the delivery of the Required Loan Documents and the filing of the financing statements shall be a first priority perfected security interest in all Sale Portfolio, subject only to Permitted Liens.  Neither the Seller nor any Person claiming through or under the Seller shall have any claim to or interest in the Controlled Accounts; provided , if this Agreement constitutes only a grant of a security interest in such property, then  the Seller shall have the rights in such property as a debtor for purposes of the UCC.

 

(b)           Eligibility of Loan Assets .  As of each Purchase Date, (i)  Schedule I is an accurate and complete listing of all the Sale Portfolio as of the related Cut—Off Date and the information contained therein with respect to the identity of such Sale Portfolio and the amounts owing thereunder is true and correct as of the related Cut—Off Date, (ii) each item of the Sale Portfolio Purchased by the Purchaser hereunder is an Eligible Loan Asset, and (iii) with respect to each item of the Sale Portfolio all consents, licenses, approvals or authorizations of or registrations or declarations of any Governmental Authority or any Person required to be obtained, effected or given by the Seller in connection with the transfer of an ownership interest or security interest in each item of Sale Portfolio to the Purchaser have been duly obtained, effected or given and are in full force and effect.

 

(c)           No Fraud .  Each Eligible Loan Asset was originated without any fraud or material misrepresentation by the Seller or, to the best of the Seller’s knowledge, on the part of the Obligor.

 

(d)           Reaffirmation of Representations and Warranties under Original Purchase and Sale Agreement . The Seller hereby reaffirms each representation and warranty made pursuant to Section 4.2 of the Original Purchase and Sale Agreement and represents and warrants that each such representation and warranty was, as of its date, true and correct in all material respects. The Seller further represents and warrants that each condition precedent necessary to be satisfied for the transfer of Loan Assets pursuant to the Original Purchase and Sale Agreement were satisfied in all material respects as of the Purchase Date for each such Loan Asset. For the avoidance of doubt, the Seller hereby agrees that any breach of any representation or warranty under Section 4.2 of the Original Purchase and Sale Agreement prior to the Restatement Date shall be treated as a breach of a representation or warranty under this Section 4.2 , including, without limitation, for purposes of the Seller’s obligation to repurchase Loan Assets in the event of a Seller Purchase Event pursuant to Section 6.1 .

 

It is understood and agreed that the representations and warranties provided in this Section 4.2 shall survive (x) the Sale of the Sale Portfolio to the Purchaser, (y) any subsequent transfer of the Sale Portfolio by the Purchaser (including a transfer under the Second Tier Purchase and Sale Agreement and grant of a first priority perfected security interest in, to and under the Sale Portfolio pursuant to the Amended and Restated Sale and Servicing Agreement by the Borrower) and (z) the termination of this Agreement, the Second Tier Purchase and Sale Agreement and the Amended and Restated Sale and Servicing Agreement.  Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the other and to the Agent immediately upon obtaining knowledge of such breach.

 

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Section 4.3.            Representations and Warranties of the Purchaser .  The Purchaser makes the following representations and warranties, on which the Seller relies in selling Sale Portfolio to the Purchaser hereunder.  Such representations are made as of the execution and delivery of this Agreement, but shall survive until the Collection Date, the Sale of Sale Portfolio hereunder, the sale of the Sale Portfolio to the Borrower under the Second Tier Purchase and Sale Agreement, and the grant of a security interest in such Sale Portfolio by the Borrower to the Trustee, on behalf of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement.

 

(a)           Organization and Good Standing .  The Purchaser has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of Delaware or such other jurisdiction as permitted under the terms of the Transaction Documents, with the power and authority to own or lease its properties and to conduct its business as such properties are currently owned and such business is currently conducted, and had at all relevant times, and has, all necessary power, authority and legal right to acquire and own the Sale Portfolio.

 

(b)           Due Qualification .  The Purchaser is duly qualified to do business as a limited liability company in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, licenses and/or approvals.

 

(c)           Power and Authority; Due Authorization; Execution and Delivery . The Purchaser has all necessary power, authority and legal right to execute and deliver this Agreement and to carry out the terms hereof and to acquire the Sale Portfolio; and the execution, delivery and performance of this Agreement and all of the documents required pursuant hereto have been duly authorized by the Purchaser by all necessary limited liability company action.

 

(d)           No Consent Required .  The Purchaser is not required to obtain the consent of any other Person, or any consent, license, approval or authorization or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery or performance of this Agreement, each First Tier Loan Assignment and the Transaction Documents to which it is a party, except for such as have been obtained, effected or made.

 

(e)           Binding Obligation .  This Agreement constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject, as to enforceability, to applicable Bankruptcy Laws and general principles of equity.

 

(f)            No Violation .  The consummation of the transactions contemplated by this Agreement, each First Tier Loan Assignment and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof and thereof will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Purchaser’s certificate of formation, operating agreement or any contractual obligation of the Purchaser, (ii) result in the creation or imposition

 

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of any Lien (other than Permitted Liens) upon any of the Purchaser’s properties pursuant to the terms of any such contractual obligation, other than this Agreement, or (iii) violate any Applicable Law.

 

(g)           Value Given .  The Purchaser has given reasonably equivalent value to the Seller in exchange for the Sale of such Sale Portfolio, which amount the Purchaser hereby agrees is the fair market value of such Sale Portfolio. No such Sale has been made for or on account of an antecedent debt owed by the Seller and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.

 

(h)           No Proceedings .  No litigation or administrative proceeding of or before any court, tribunal or governmental body is presently pending or, to the knowledge of the Purchaser, threatened against the Purchaser or any properties of the Purchaser or with respect to this Agreement, any First Tier Loan Assignment or any other Transaction Document to which the Purchaser is a party, which, if adversely determined, could have a material adverse effect on the ability of the Purchaser to perform its obligations under this Agreement, any First Tier Loan Assignment or any Transaction Document to which the Purchaser is a party or any of the other applicable documents forming part of the Sale Portfolio.

 

(i)            Sale Agreement .  This Agreement and the First Tier Loan Assignments contemplated herein are the only agreements or arrangements pursuant to which the Purchaser Purchases the Sale Portfolio Sold to it by the Seller.

 

(j)            Investment Company Act .  The Purchaser is not required to register as an “investment company” under the provisions of the 1940 Act.

 

(k)           Compliance with Law . The Purchaser has complied in all material respects with all Applicable Law to which it may be subject, and no Sale Portfolio contravenes any Applicable Law.

 

(l)            Opinions .  The statements of fact in the section heading “Assumptions” in the Non-Consolidation/True Sale Opinion are true and correct in all material respects.

 

ARTICLE V.

COVENANTS OF THE SELLER

 

Section 5.1.            Protection of Title of the Purchaser .

 

(a)           On or prior to the Restatement Date, the Seller shall have filed or caused to be filed UCC-1 financing statements (or, if applicable, amendments thereto), naming the Seller as “Debtor/Seller”, naming the Purchaser as “Secured Party/Buyer”, and naming the Trustee, for the benefit of the Secured Parties, as “Total Assignee”, and describing the Sale Portfolio to be acquired by the Purchaser, with the office of the Secretary of State of the state of the jurisdiction of organization of the Seller.  From time to time thereafter, the Seller shall file such financing statements and cause to be filed such continuation statements, all in such manner and in such places as may be required by law (or deemed desirable by the Purchaser or any assignee thereof) to fully perfect, preserve, maintain and protect the ownership interest of the

 

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Purchaser under this Agreement, the ownership interest of the Borrower in the Loan Assets acquired under the Original Purchase and Sale Agreement (and Portfolio Assets relating thereto), the ownership interest of the Borrower under the Second Tier Purchase and Sale Agreement, and the security interest of the Trustee for the benefit of the Secured Parties under the Amended and Restated Sale and Servicing Agreement, in the Sale Portfolio, as the case may be, and in the proceeds thereof.  The Seller shall deliver (or cause to be delivered) to the Purchaser, the Trustee, the Collateral Custodian, the Servicer, the Note Purchaser and the Agent file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. The Seller agrees that it will from time to time, at its expense, take all actions, that the Purchaser, the Trustee or the Agent may reasonably request in order to perfect, protect or more fully evidence the Purchases hereunder (including the transfers by the Seller to the Borrower effected pursuant to the Original Purchase and Sale Agreement) and the security and/or interest granted in the Sale Portfolio, or to enable the Purchaser, the Trustee, the Agent or the Secured Parties to exercise and enforce their rights and remedies hereunder or under any Transaction Document.

 

(b)           On or prior to each Purchase Date hereunder, the Seller shall take all steps necessary under all Applicable Law in order to Sell to the Purchaser the Sale Portfolio being acquired by the Purchaser on such Purchase Date to the Purchaser so that, upon the Sale of such Sale Portfolio from the Seller to the Purchaser pursuant to the terms hereof on such Purchase Date, the Purchaser will have acquired good and marketable title to (subject to Section 10.20 ) and a valid and perfected ownership interest in such Sale Portfolio, free and clear of any Lien, security interest, charge or encumbrance or restrictions on transferability (subject only to Permitted Liens).  On or prior to each Purchase Date hereunder, the Seller shall take all steps required under Applicable Law in order for the Borrower to grant to the Trustee, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Sale Portfolio being Purchased by the Purchaser on such Purchase Date and, from time to time thereafter, the Seller shall take all such actions as may be required by Applicable Law to fully preserve, maintain and protect the Purchaser’s ownership interest (or the Borrower’s ownership interest, as applicable) in, and the Trustee’s first priority perfected security interest in (subject only to Permitted Liens), the Sale Portfolio which have been acquired by the Purchaser hereunder or transferred to the Borrower under the Original Purchase and Sale Agreement.

 

(c)           The Seller shall direct any agent or administrative agent for any Sale Portfolio originated or acquired by the Seller to remit all payments and collections with respect to such Sale Portfolio and direct the Obligor with respect to such Sale Portfolio to remit all such payments and collections directly to (i) solely prior to the Account Transition Deadline, the Concentration Account or (ii) the Collection Account. The Seller will not make any change, or permit the Servicer to make any change, in its instructions to Obligors regarding payments to be made to the Seller or the Servicer or payments to be made to the Concentration Account (other than instructions to remit payments to the Collection Account), unless the Purchaser and the Agent have consented to such change.  At all times prior to the Account Termination Deadline, the Seller shall cause the Concentration Account to be subject to the Intercreditor Agreement that is in full force and effect as of the date hereof.  The Seller shall direct or cause only funds constituting payments and collections relating to the Sale Portfolio to be deposited into the Collection Account. In the event any payments relating to any Sale Portfolio are remitted

 

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directly to the Seller or any Affiliate of the Seller, the Seller will remit (or will cause all such payments to be remitted) directly to the Collection Account within two Business Days following receipt thereof, and, at all times prior to such remittance, the Seller will itself hold or, if applicable, will cause such payments to be held in trust for the exclusive benefit of the Purchaser and its assignees.  Until so deposited, all such Interest Collections and Principal Collections shall be held in trust for the Purchaser or its assignees by the Seller.

 

(d)           At any time after the occurrence or declaration of the Facility Maturity Date, the Purchaser, the Trustee or the Agent may direct the Seller or the Servicer to notify the Obligors, at Seller’s expense, of the Purchaser’s (or its assigns) or the Secured Parties’ interest in the Sale Portfolio under this Agreement and may direct that payments of all amounts due or that become due under any or all of the Sale Portfolio be made directly to the Purchaser (or its assigns), the Trustee or the Agent.

 

(e)           The Seller shall, not earlier than six months and not later than three months prior to the fifth anniversary of the date of filing of the financing statement referred to in Section 3.1 or any other financing statement filed pursuant to this Agreement or in connection with any Purchase hereunder, unless the Collection Date shall have occurred:

 

(i)            file or cause to be filed an appropriate continuation statement with respect to such financing statement; and

 

(ii)           deliver or cause to be delivered to the Purchaser, the Trustee and the Agent an opinion of the counsel for Seller, in form and substance reasonably satisfactory to the Purchaser, the Trustee and the Agent, confirming and updating the opinion delivered pursuant to Section 3.1 with respect to perfection and otherwise to the effect that the security interest hereunder continues to be an enforceable and perfected security interest, subject to no other Liens of record except as specified therein, provided herein or otherwise permitted hereunder, which opinion may contain usual and customary assumptions, limitations and exceptions.

 

(f)            The Seller shall not (x) change its name, move the location of its principal place of business and chief executive office, change the offices where it keeps records concerning the Sale Portfolio from the address set forth under its name in Section 10.5 hereto, or change the jurisdiction of its formation, or (y) move, or consent to the Collateral Custodian moving, the Required Loan Documents and Loan Asset Files from the location required under the Transaction Documents, unless the Seller has given at least 30 days’ written notice to the Purchaser and the Agent and has taken all actions required under the UCC of each relevant jurisdiction in order to continue the first priority perfected security interest of the Purchaser in the Sale Portfolio, together with such Opinions of Counsel and other documents and instruments as the Agent may request in connection therewith.

 

(g)           The Seller shall at all times maintain each office from which it services Sale Portfolio and its principal executive office within the United States of America.

 

(h)           The Seller shall mark its master data processing records so that, from and after the time of Sale under this Agreement of Sale Portfolio to the Purchaser, the sale of Sale

 

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Portfolio to the Borrower under the Second Tier Purchase and Sale Agreement (or the transfer of the Original Portfolio from the Seller to the Borrower pursuant to the Original Purchase and Sale Agreement, as applicable) and the grant of a security interest in such Sale Portfolio by the Borrower to the Trustee for the benefit of the Secured Parties under the Amended and Restated Sale and Servicing Agreement, the Seller’s master data processing records (including archives) that refer to such Sale Portfolio shall indicate clearly that such Sale Portfolio has been Purchased by the Purchaser hereunder, transferred to the Borrower under the Second Tier Purchase and Sale Agreement (or transferred from the Seller to the Borrower pursuant to the Original Purchase and Sale Agreement, as applicable) and Pledged by the Borrower to the Trustee, on behalf of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement.  Indication of the Trustee’s security interest for the benefit of the Secured Parties in the Sale Portfolio shall be deleted from or modified on the Seller’s computer systems when, and only when, such Sale Portfolio shall be (i) paid off by the related Obligor, (ii) purchased or substituted by the Seller in accordance with Section 6.1 or 6.2 hereof or (iii) released by the Trustee pursuant to Section 2.16 of the Amended and Restated Sale and Servicing Agreement.

 

(i)            If the Seller fails to perform any of its obligations hereunder, the Purchaser, the Trustee or the Agent may (but shall not be required to) perform, or cause performance of, such obligation; and the Purchaser’s, the Trustee’s or the Agent’s costs and expenses incurred in connection therewith shall be payable by the Seller as provided in Section 9.1 . The Seller irrevocably authorizes the Purchaser, the Trustee or the Agent at any time and from time to time at the Purchaser’s, the Trustee’s or the Agent’s sole discretion and appoints the Purchaser, the Trustee and the Agent as its attorney—in—fact pursuant to a Power of Attorney substantially in the form of Exhibit C to act on behalf of the Seller (i) to file financing statements on behalf of the Seller, as debtor, necessary or desirable in the Purchaser’s, the Trustee’s or the Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Purchaser or the Trustee in the Sale Portfolio and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Sale Portfolio as a financing statement in such offices as the Purchaser, the Trustee or the Agent in their sole discretion deem necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Purchaser or  the Trustee in the Sale Portfolio.  This appointment is coupled with an interest and is irrevocable.

 

Section 5.2.            Affirmative Covenants of the Seller .

 

From the Closing Date until the Collection Date:

 

(a)           Compliance with Law .  The Seller will comply in all material respects with all Applicable Law, including those applicable to the Seller as a result of its interest in the Sale Portfolio or any part thereof.

 

(b)           Preservation of Company Existence .  The Seller will preserve and maintain its corporate existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a corporation in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect.

 

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(c)           Performance and Compliance with Sale Portfolio .  The Seller will, at its expense, timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Sale Portfolio and all other agreements related to such Sale Portfolio.

 

(d)           Keeping of Records and Books of Account .  The Seller will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Sale Portfolio in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all or any portion of the Sale Portfolio.

 

(e)           Separate Identity .  The Seller acknowledges that the Borrower, the Agent, the Trustee, the Note Purchaser and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Amended and Restated Sale and Servicing Agreement and the other Transaction Documents in reliance upon the Purchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller.  Therefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps including, without limitation, all steps that the Borrower, the Agent, the Trustee, the Note Purchaser and the other Secured Parties may from time to time reasonably request to maintain the Purchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate.  Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:

 

(i)            the Seller will take all other actions necessary on its part to ensure that the Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 9(j) of the limited liability company operating agreement of the Purchaser;

 

(ii)           the Seller shall maintain corporate records and books of account separate from those of the Purchaser;

 

(iii)          the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall not reflect in any way that the assets of the Purchaser, including, without limitation, the Sale Portfolio, could be available to pay creditors of the Seller or any other Affiliate of the Seller;

 

(iv)          the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;

 

(v)           the Seller shall maintain an arm’s—length relationship with the Purchaser and will not hold itself out as being liable for the debts of the Purchaser;

 

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(vi)          the Seller shall keep its assets and its liabilities wholly separate from those of the Purchaser;

 

(vii)         the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Purchaser are available to pay the obligations and debts of the Seller; and

 

(viii)        to the extent that the Seller services the Loan Assets and performs other services on the Purchaser’s behalf, the Seller will clearly identify itself as an agent for the Purchaser in the performance of such duties.

 

(f)            Credit Policy .  The Seller will (i) comply in all material respects with the Credit Policy in regard to the Sale Portfolio and (ii) furnish to the Purchaser, the Trustee, the Agent and the Note Purchaser, prior to its effective date, prompt written notice of any changes in the Credit Policy.

 

(g)           Taxes .  The Seller will file or cause to be filed its tax returns and pay any and all Taxes imposed on it or its property as required by the Transaction Documents (except as contemplated in Section 4.1(m) ).

 

(h)           Cooperation with Requests for Information or Documents .  The Seller will cooperate fully with all reasonable requests of the Purchaser and its assigns regarding the provision of any information or documents, necessary or desirable, including the provision of such information or documents in electronic or machine—readable format, to allow each of the Purchaser and its assignees to carry out their responsibilities under the Transaction Documents.

 

(i)            Payment, Performance and Discharge of Obligations .  The Seller will pay, perform and discharge all of its obligations and liabilities, including, without limitation, all taxes, assessments and governmental charges upon its income and properties, when due, unless and only to the extent that such obligations, liabilities, taxes, assessments and governmental charges shall be contested in good faith and by appropriate proceedings and that, to the extent required by GAAP, proper and adequate book reserves relating thereto are established by the Seller and then only to the extent that a bond is filed in cases where the filing of a bond is necessary to avoid the creation of a Lien against any of its properties.

 

(j)            Notices .  The Seller will furnish to the Purchaser, the Trustee, the Agent and the Note Purchaser:

 

(i)            Income Tax Liability .  Telephonic or facsimile notice within 10 Business Days (confirmed in writing within five Business Days thereafter) of the receipt of revenue agent reports or other written proposals, determinations or assessments of the Internal Revenue Service or any other taxing authority which propose, determine or otherwise set forth positive adjustments (i) to the Tax liability of the Seller or any “affiliated group” (within the meaning of Section 1504(a)(l) of the Code) of which the Seller is a member in an amount equal to or greater than $25,000,000 in the aggregate, or (ii) to the Tax liability of the Borrower in an amount equal to or greater than $1,000,000 in the aggregate.  Any such notice shall specify the nature of the items giving rise to such adjustments and the amounts thereof;

 

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(ii)           Auditors’ Management Letters .  Promptly after the receipt thereof, any auditors’ management letters that are received by the Seller or by its accountants;

 

(iii)          Representations and Covenants .  The Seller shall promptly, upon receipt of notice or discovery thereof, notify the Purchaser, the Trustee, the Agent and the Note Purchaser (i) if any representation or warranty set forth in Section 4.1 or Section 4.2 was incorrect at the time it was given or deemed to have been given or (ii) of the breach of any covenant under Section 5.1 , Section 5.2 or Section 5.3 and at the same time deliver to the Purchaser, the Trustee, the Agent and the Note Purchaser a written notice setting forth in reasonable detail the nature of such facts and circumstances. In particular, but without limiting the foregoing, the Seller shall notify the Purchaser, the Trustee, the Agent and the Note Purchaser in the manner set forth in the preceding sentence before any Purchase Date of any facts or circumstances within the knowledge of the Seller which would render any of the said representations and warranties untrue at the date when such representations and warranties were made or deemed to have been made;

 

(iv)          ERISA .  Promptly after receiving notice of any “reportable event” (as defined in Title IV of ERISA, other than an event for which the reporting requirements have been waived by regulations) with respect to the Seller (or any Affiliate thereof), a copy of such notice;

 

(v)           Proceedings . As soon as possible and in any event within three Business Days, after the Seller receives notice or obtains knowledge thereof, the Seller will provide the Purchaser and the Agent with notice of any settlement of, material judgment (including a material judgment with respect to the liability phase of a bifurcated trial) in or commencement of any material labor controversy, material litigation, material action, material suit or material proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Sale Portfolio, the Transaction Documents, the Trustee’s, for the benefit of the Secured Parties, interest in the Sale Portfolio, or the Borrower, the Seller, the Purchaser or any of their Affiliates. For purposes of this Section 5.2(j) , (i) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Sale Portfolio, the Transaction Documents, the Trustee’s, for the benefit of the Secured Parties, interest in the Sale Portfolio, or the Borrower or the Purchaser in excess of $1,000,000 shall be deemed to be material and (ii) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Seller or any of its Affiliates (other than the Borrower or the Purchaser) in excess of $25,000,000 shall be deemed to be material;

 

(vi)          Material Events .  Promptly upon becoming aware thereof, of any event or other circumstance that is reasonably likely to have a Material Adverse Effect;

 

(vii)         Events of Default .  The Seller will provide the Purchaser, the Agent, the Trustee and the Note Purchaser with immediate written notice of the occurrence of each Event of Default and each Unmatured Event of Default of which the Seller has knowledge or has received notice.  In addition, no later than two Business Days following the Seller’s knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default, the Seller will provide to the Purchaser, the

 

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Trustee, the Agent and the Note Purchaser a written statement of a Responsible Officer of the Seller setting forth the details of such event and the action that the Seller proposes to take with respect thereto; and

 

(viii)        Seller Termination Event and Seller Purchase Event . The Seller will provide the Purchaser, the Agent, the Trustee and the Note Purchaser with immediate written notice of the occurrence of each Seller Termination Event and each Seller Purchase Event of which the Seller has knowledge or has received notice.

 

(k)           Other .  The Seller will furnish to the Purchaser, the Trustee, the Agent and the Note Purchaser promptly, from time to time such other information, documents, records or reports respecting the Sale Portfolio or the condition or operations, financial or otherwise, of the Seller as the Purchaser, the Trustee, the Agent and the Note Purchaser may from time to time reasonably request in order to protect the interests of the Purchaser, the Agent, the Trustee, the Note Purchaser or the Secured Parties under or as contemplated by this Agreement and the other Transaction Documents.

 

(l)            Costs and Expenses .  The Seller shall pay all reasonable, documented costs and disbursements in connection with the performance of its obligations hereunder.

 

(m)          Annual Certificates .  On each anniversary of the Restatement Date, the Seller shall deliver an Officer’s Certificate, in form and substance acceptable to the Purchaser and the Agent, providing (i) a certification, based upon a review and summary of UCC search results reasonably satisfactory to the Purchaser and the Agent, that there is no other interest in the Sale Portfolio perfected by filing of a UCC financing statement other than in favor of the Purchaser and the Trustee pursuant to the terms of the Transaction Documents and (ii) a certification, based upon a review and summary of tax and judgment lien searches satisfactory to the Purchaser and the Agent, that there is no other interest in the Sale Portfolio based on any tax or judgment lien.

 

(n)           Opinion .  The Seller will comply in all material respects with any requirements for future action set forth in the section heading “Assumptions” in the Non-Consolidation/True Sale Opinion, with respect to the Transaction Documents.

 

(o)           Copies of Other Information .  The Seller will deliver to the Purchaser, the Trustee, the Agent and the Note Purchaser:

 

(i)            promptly, but in any event within ten Business Days after the filing thereof, a copy of (a) each report or other filing made by the Seller or any of its Affiliates with the Securities and Exchange Commission (the “ SEC ”) and required by the SEC to be delivered to the shareholders of the Seller or any such Affiliate, and (b) each report and final registration statement of the Seller or any Affiliate filed with the  SEC; and

 

(ii)           promptly, from time to time, such other information, documents, records or reports respecting the Sale Portfolio or the conditions or operations, financial or otherwise, of the Seller (including, without limitation, reports and notices relating to the Seller’s actions under and compliance with ERISA and the 1940 Act) as the Purchaser, the Agent or the Note Purchaser may from time to time request in order to

 

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perform their obligations hereunder or under any other Transaction Document or to protect the interests of the Purchaser under or as contemplated by this Agreement and the other Transaction Documents.

 

Section 5.3.            Negative Covenants of the Seller .

 

From the Closing Date until the Collection Date:

 

(a)           Sale Portfolio Not to be Evidenced by Instruments .  The Seller will take no action to cause any Sale Portfolio that is not, as of the related Purchase Date, as the case may be, evidenced by an instrument, to be so evidenced except in connection with the enforcement or collection of such Sale Portfolio.

 

(b)           Security Interests .  Except as otherwise permitted herein and in the Amended and Restated Sale and Servicing Agreement, the Seller will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any Sale Portfolio, whether now existing or hereafter transferred hereunder, or any interest, therein, and the Seller will not sell, pledge, assign or suffer to exist any Lien (except for Permitted Liens) on its interest in the Sale Portfolio.  The Seller will promptly notify the Purchaser, the Trustee, the Note Purchaser and the Agent of the existence of any Lien on any Sale Portfolio and the Seller shall defend the right, title and interest of the Purchaser and the Trustee, on behalf of the Secured Parties, in, to and under the Sale Portfolio against all claims of third parties; provided , that nothing in this Section 5.3(b)  shall prevent or be deemed to prohibit the Seller from suffering to exist Permitted Liens upon any of the Sale Portfolio.

 

(c)           Mergers, Acquisitions, Sales, Etc .  The Seller will not be a party to any merger or consolidation, or purchase or otherwise acquire any of the assets or any stock of any class of, or any partnership or joint venture interest in, any other Person, or sell, transfer, convey or lease substantially all of its assets, or sell or assign with or without recourse any Sale Portfolio or any interest therein (other than in the ordinary course of business or as permitted pursuant to this Agreement or the Transaction Documents).

 

(d)           Transfer of Purchaser Membership Interests .  Seller shall not transfer, pledge, participate or otherwise encumber its membership interests in the Purchaser without the prior written consent of the Agent and the delivery of an acceptable (in the Agent’s reasonable discretion) non-consolidation opinion (other than with respect to the JPM Lien).

 

(e)           Restricted Payments .  The Seller shall permit the Purchaser to make Purchaser Restricted Junior Payments, provided that after the occurrence of an Event of Default, the Purchaser may not make any Purchaser Restricted Junior Payment with respect to proceeds received by the Purchaser from the Seller with respect to claims hereunder, including, but not limited to indemnification claims pursuant to Article IX or repurchases pursuant to Section 6.1 .

 

(f)            Accounting of Purchases . Other than for tax and consolidated accounting purposes, the Seller will not account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than as a sale of the Loan Assets to the Purchaser.

 

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(g)           ERISA Matters .  The Seller will not (a) engage, and will exercise its best efforts not to permit any ERISA Affiliate to engage, in any prohibited transaction (within the meaning of ERISA Section 406(a) or (b) or Code Section 4975) for which an exemption is not available or has not previously been obtained from the United States Department of Labor, (b) fail to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, (c) fail to make any payments to a Multiemployer Plan that the Seller or any ERISA Affiliate may be required to make under the agreement relating to such Multiemployer Plan or any law pertaining thereto, (d) terminate any Benefit Plan so as to result, directly or indirectly in any liability to the Seller, or (e) permit to exist any occurrence of any reportable event described in Title IV of ERISA with respect to any Pension Plan other than an event for which the reporting requirements have been waived by regulations.

 

(h)           Extension or Amendment of Sale Portfolio .  The Seller will not, except as otherwise permitted in Section 6.04(a) of the Amended and Restated Sale and Servicing Agreement, extend, amend or otherwise modify, or permit the Servicer to extend, amend or otherwise modify, the terms of any Sale Portfolio.

 

(i)            Credit Policy .  The Seller will not agree to or otherwise permit to occur any change in the Credit Policy that could have a Material Adverse Effect without the prior written consent of the Agent; provided that no consent shall be required from the Agent in connection with any change mandated by Applicable Law or a Governmental Authority as evidenced by an Opinion of Counsel to that effect delivered to the Agent.

 

(j)            Limitation on Financing Activities .  The Seller shall not, directly or indirectly, advance or contribute to the Purchaser any funds pursuant to any financial accommodation. For the avoidance of doubt, this clause (j) shall not prohibit the Seller from contributing Loan Assets to the Purchaser as contemplated herein.

 

(k)           Organizational Documents .  The Seller will not cause or permit the Purchaser to amend, modify, waive or terminate any provision of the Purchaser’s operating agreement without the prior written consent of the Agent.

 

(l)            Adverse Claims .  The Seller will not create, or participate in the creation of, or permit to exist, any Liens in relation to the Concentration Account other than in accordance with the terms of the Intercreditor Agreement.

 

(m)          Deposits to Special Accounts .  Except as otherwise contemplated by the Intercreditor Agreement, the Seller will not deposit or otherwise credit, or cause to be so deposited or credited, to the Concentration Account cash or cash proceeds other than Principal Collections and Interest Collections in respect of the Sale Portfolio.

 

(n)           Changes in Payment Instructions to Obligors .  The Seller will not add or terminate any bank as a Concentration Account Bank or the Concentration Account (as defined herein) or make any change, or permit the Purchaser to make any change, in its instructions to Obligors regarding payments to be made with respect to the Sale Portfolio to the Concentration Account Bank (other than instructions to the Obligors to remit payments to the Collection

 

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Account), unless the Agent has consented to such addition, termination or change (which consent shall not be unreasonably withheld or delayed) and has received duly executed copies of the Intercreditor Agreement (incorporating appropriate amendments), with each new Concentration Account Bank being a party thereto.

 

ARTICLE VI.

REPURCHASES AND SUBSTITUTION BY THE SELLER

 

Section 6.1.            Repurchase of Loan Assets .  In the event of the occurrence of a Seller Purchase Event, the Seller will within 10 Business Days of the discovery by or notice (from any Person) to the Seller of the Seller Purchase Event, (i) purchase each Loan Asset hereunder which is affected by or related to such Seller Purchase Event from the Purchaser (or the Borrower, to the extent such Seller Purchase Event pertains to the Original Portfolio), and the Seller shall pay to the Purchaser or directly to the Borrower, as applicable, (by means of a deposit to the Collection Account, provided that the excess if any of the Repurchase Price of such Loan Asset over the amount equal to the Advance Date Assigned Value of such Loan Asset multiplied by the principal balance of such Loan Asset (exclusive of Accreted Interest) as of the date of repurchase shall be paid to the Purchaser as otherwise directed by the Purchaser) the Repurchase Price of such Loan Asset as of the date of the purchase thereof from the Purchaser or the Borrower, as applicable, or (ii) subject to the satisfaction of the conditions in Section 6.2 , substitute for such Loan Asset, a Substitute Eligible Loan Asset.  It is understood and agreed that the obligation of the Seller to purchase the Loan Assets or substitute a Substitute Eligible Loan Asset for the Loan Assets which are affected by or related to such Seller Purchase Event is not intended to, and shall not, constitute a guaranty of the collectability or payment of any Loan Asset which is not collected, not paid or uncollectible on account of the insolvency, bankruptcy or financial inability to pay of the related Obligor. Upon deposit in the Collection Account of the Repurchase Price for any Loan Asset purchased by the Seller, the Purchaser shall (and shall request the Trustee to), at the sole expense of the Seller,  take such steps as may be reasonably requested by the Seller in order to Sell to the Seller all of the Purchaser’s and the Trustee’s right, title and interest in and to such Loan Asset, without recourse, representation or warranty of any kind, except as to the absence of Liens, charges or encumbrances created by or arising solely as a result of actions of the Purchaser or the Trustee.  Such Sale shall be a sale outright, and not for security.

 

Section 6.2.            Substitution of Loan Assets .

 

(a)           The Seller shall have the right, but not the obligation, subject to the prior written consent of the Agent and the Purchaser, in their sole discretion, to substitute one or more Eligible Loan Assets (“ Substitute Eligible Loan Asset ”) for a Loan Asset (each such act, a “ Substitution ”).

 

(b)           The Substitution shall not occur unless the following conditions are satisfied as of the date of such Substitution:

 

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(i)            the Seller has recommended to the Purchaser and the Agent (with a copy to the Trustee and the Collateral Custodian) in writing that the Loan Asset to be replaced should be replaced (each, a “ Replaced Loan Asset ”);

 

(ii)           no event has occurred, or would result from such Substitution, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Substitution, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided that the Seller may effect a Substitution as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Unmatured Event of Default arising therefrom) so long as the Agent shall approve of such sale and immediately after giving effect to such Substitution and any other sale or transfer substantially contemporaneous therewith, such Borrowing Base Deficiency shall be cured or closer to being cured;

 

(iii)          each Substitute Eligible Loan Asset is an Eligible Loan Asset on the date of Substitution;

 

(iv)          solely in the case of Substitutions pursuant to this Section 6.2 undertaken because a Seller Purchase Event has occurred, the sum of the Outstanding Balances of such Substitute Eligible Loan Assets shall be equal or greater than the sum of the Advance Date Assigned Value of the Replaced Loan Assets multiplied by the principal balance thereof (exclusive of Accreted Interest);

 

(v)           all representations and warranties contained in Sections 4.1 and 4.2 shall be true and correct in all material respects as of the date of Substitution (other than any representation and warranty that is made as of a specific date);

 

(vi)          no selection procedures adverse to the interests of the Purchaser, the Agent, the Note Purchaser or the other Secured Parties were utilized by the Seller in the selection of the Loan Asset to be replaced by the Substitute Eligible Loan Asset;

 

(vii)         the Outstanding Balance of all Loan Assets subject to clauses (ii), (iv) or (vi) of the definition of “Value Adjustment Event” which were dividended from the Purchaser to the Seller in accordance with Section 2.07(d) of the Amended and Restated Sale and Servicing Agreement or substituted pursuant to this Section 6.2 , in each case during the 12-month period immediately preceding the proposed date of such Substitution does not exceed 10% of the highest aggregate Outstanding Balance of any month during such 12-month period (or such lesser number of months as shall have elapsed as of such date);

 

(viii)        the Outstanding Balance of all Loan Assets (other than Warranty Loan Assets), sold pursuant to Section 2.07(b) of the Amended and Restated Sale and Servicing Agreement, sold without the consent of the Agent in accordance with Section 2.07(c) of the Amended and Restated Sale and Servicing Agreement (in each case, other than Loan Assets subject to clauses (ii), (iv) or (vi) of the definition of “Value Adjustment Event”), substituted pursuant to this Section 6.2 or dividended from the Purchaser to the Seller in accordance with Section 2.07(d) of the Amended and Restated

 

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Sale and Servicing Agreement during the 12-month period immediately preceding the proposed date of Substitution does not exceed 20% of the highest aggregate Outstanding Balance of any month during such 12-month period (or such lesser number of months as shall have elapsed as of such date);

 

(ix)           each Loan Asset that is replaced pursuant to the terms of this Section 6.2 shall be substituted only with another Eligible Loan Asset that meets the foregoing conditions; and

 

(x)            all terms, provisions, representations, warranties and covenants hereunder with respect to Loan Assets that have been Sold by the Seller to the Purchaser hereunder shall apply equally to Substitute Eligible Loan Assets.

 

Section 6.3.            Repurchase Limitations .  The Seller and the Purchaser agree that the Seller and any Affiliate of the Seller may repurchase any Sale Portfolio only from the Purchaser in the case of a repurchase or Substitution of any Sale Portfolio pursuant to Sections 6.1 or 6.2 .

 

ARTICLE VII.

ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE SALE PORTFOLIO

 

Section 7.1.            Rights of the Purchaser .

 

(a)           After the occurrence or declaration of the Facility Maturity Date, the Seller hereby authorizes the Purchaser, the Servicer, the Trustee, the Agent, the Note Purchaser and/or their respective designees or assignees to take any and all steps in Seller’s name and on behalf of the Seller that the Purchaser, the Servicer, the Trustee, the Agent, the Note Purchaser and/or their respective designees or assignees determine are reasonably necessary or appropriate to collect all amounts due under any and all Sale Portfolio and to enforce or protect the Purchaser’s, the Trustee’s, the Agent’s and the Note Purchaser’s rights under this Agreement, including endorsing the name of the Seller on checks and other instruments representing Interest Collections and Principal Collections and enforcing such Sale Portfolio.

 

(b)           Except as set forth in Sections 6.1 and 6.2 with respect to the repurchase or Substitution of certain Loan Assets, the Purchaser shall have no obligation to account for, replace, substitute or return any Sale Portfolio to the Seller.  The Purchaser shall have no obligation to account for or to return Interest Collections or Principal Collections, or any interest or other finance charge collected pursuant thereto, to the Seller, irrespective of whether such Interest Collections and Principal Collections and charges are in excess of the Purchase Price for such Sale Portfolio.

 

(c)           The Purchaser shall have the right to further assign, transfer, deliver, hypothecate, subdivide or otherwise deal with the Sale Portfolio and all of the Purchaser’s right, title and interest in, to and under this Agreement, pursuant to the Second Tier Purchase and Sale Agreement or the Amended and Restated Sale and Servicing Agreement.

 

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(d)           The Purchaser shall have the sole right to retain any gains or profits created by buying, selling or holding the Sale Portfolio and shall have the sole risk of and responsibility for losses or damages created by such buying, selling or holding.

 

Section 7.2.            Rights With Respect to Loan Asset Files .

 

At any time when a Servicer other than Ares Capital Corporation has been designated pursuant to Section 6.01 of the Amended and Restated Sale and Servicing Agreement, the Seller shall, at the Purchaser’s, the Trustee’s, the Collateral Custodian’s,  the Agent’s or the Note Purchaser’s request, assemble all of the Loan Asset Files which evidence the Sale Portfolio originated by the Seller, or which are otherwise necessary or desirable to collect such Sale Portfolio, and make the same available to the Purchaser, the Trustee, the Collateral Custodian, the Agent or the Note Purchaser at a place selected by the Purchaser, the Trustee, the Collateral Custodian, the Agent, the Note Purchaser or their designee.

 

Section 7.3.            Notice to Trustee, Agent and Note Purchaser .

 

The Seller agrees that, concurrently with its delivery to the Purchaser, copies of all notices, reports, documents and other information required to be delivered by the Seller to the Purchaser hereunder shall be delivered by the Seller to the Trustee, the Agent and the Note Purchaser.

 

ARTICLE VIII.

SELLER TERMINATION EVENTS

 

Section 8.1.            Seller Termination Events .

 

(a)           If any of the following events (each a “ Seller Termination Event ”) shall have occurred:

 

(i)            the Seller shall fail to pay (A) any amount due pursuant to Section 6.1 in accordance with the provisions thereof and such failure shall continue unremedied for a period of five Business Days from the earlier of (1) the date any Responsible Officer of the Seller obtains knowledge of such failure and (2) the date the Seller receives notice of such failure from the Purchaser, the Servicer, the Trustee or the Agent or (B) any other amount required to be paid by the Seller hereunder within two Business Days of the date when due; or

 

(ii)           the Seller shall fail to observe or perform in any material respect any covenant or agreement applicable to it contained herein (other than as specified in paragraph (i)  of this Section 8.1 ); provided that no such failure shall constitute a Seller Termination Event under this paragraph (ii)  unless such failure shall continue unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Seller by the Agent, the Servicer, the Trustee or the Purchaser and (ii) the date on which the Seller acquires knowledge thereof; or

 

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(iii)                                any representation, warranty or certification made by the Seller in this Agreement or in any statement, record, certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a Material Adverse Effect on the Purchaser (or the Borrower, to the extent pertaining to any of the Original Portfolio) and continues to be unremedied for a period of 30 days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Seller by the Agent, the Trustee or the Purchaser and (ii) the date on which a Responsible Officer of the Seller acquires knowledge thereof; provided that a Seller Termination Event shall not be deemed to have occurred under this paragraph (iii)  based upon a Seller Purchase Event if the Seller shall have complied with the provisions of Section 6.1 in respect thereof; or

 

(iv)                               (A) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Seller in an involuntary case under the Bankruptcy Code or any other Bankruptcy Laws, which decree or order is not stayed or any other similar relief shall be granted under any applicable federal or state law now or hereafter in effect and shall not be stayed; (B) (1) any involuntary case is commenced against the Seller under any Bankruptcy Law now or hereafter in effect, a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Seller, or over all or a substantial part of the property of the Seller, shall have been entered, an interim receiver, trustee or other custodian of the Seller for all or a substantial part of the property of the Seller is involuntarily appointed, a warrant of attachment, execution or similar process is issued against any substantial part of the property of the Seller, and (2) any event referred to in clause (B)(1)  above continues for 60 days unless dismissed, bonded or disclosed; (C) the Seller shall at its request have a decree or an order for relief entered with respect to it or commence a voluntary case under any Bankruptcy Law now or hereafter in effect, or shall consent to the entry of a decree or an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such Bankruptcy Law, consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (D) the making by the Seller of any general assignment for the benefit of creditors; (E) the inability or failure of the Seller generally to pay its debts as such debts become due; or (F) the board of directors of the Seller authorizes action to approve any of the foregoing; or

 

(v)                                  the occurrence of (A) an Event of Default set forth in Section 7.01 of the Amended and Restated Sale and Servicing Agreement or (B) the Facility Maturity Date; or

 

(vi)                               the Seller has been terminated as Servicer following a Servicer Termination Event with respect to the Seller under the Amended and Restated Sale and Servicing Agreement; or

 

(vii)                            a notice of Lien shall have been filed by the Pension Benefit Guaranty Corporation against the Seller under Section 430(k) of the Code or Section 303(k) of ERISA for a failure to make a required installment or other payment to a plan

 

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to which Section 430(k) of the Code or Section 303(k) of ERISA applies unless there shall have been delivered to the Agent proof of release of such Lien; or

 

(viii)                         any Lien in an amount equal to or greater than $25,000,000 has been asserted against or imposed on, any real or personal property of the Seller pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(1), or any equivalent or comparable state law, relating to or arising from the costs of, response to, or investigation, remediation or monitoring of, any environmental contamination resulting from the current or past operations of the Seller; or

 

(ix)                                 a Federal tax notice of Lien, in an amount equal to or greater than $25,000,000, shall have been filed against the Seller unless there shall have been delivered to the Agent proof of release of such Lien;

 

then, (A) in the case of any Seller Termination Event described in paragraph (iv) , (v)(A) , (vii) , (viii)  or (ix)  above, the obligation of the Purchaser to Purchase Sale Portfolio from the Seller shall thereupon automatically terminate without further notice of any kind, which is hereby waived by the Seller, (B) in the case of any Seller Termination Event described in paragraph (v)(B)  above, the obligation of the Purchaser to Purchase Sale Portfolio from the Seller shall thereupon terminate without notice of any kind, which is hereby waived by the Seller unless both the Purchaser and the Seller agree in writing that such event shall not trigger an Early Termination (as hereinafter defined) hereunder, and (C) in the case of any other Seller Termination Event, so long as such Seller Termination Event shall be continuing, the Purchaser or the Agent may terminate its obligation to Purchase Sale Portfolio from the Seller by written notice to the Seller (any termination pursuant to clause (A) , (B)  or (C)  of this Article VIII is herein called an “ Early Termination ”); provided , that, in the event of any involuntary petition or proceeding as described in paragraphs (iv)(A)  and (iv)(B)  above, the Purchaser shall not Purchase Sale Portfolio from the Seller unless such involuntary petition or proceeding is dismissed, bonded or discharged within 60 days of the filing of such petition or the commencement of such proceeding.

 

Section 8.2.                                    Remedies .

 

(a)                                   If a Seller Termination Event has occurred, the Purchaser (and its assignees) shall have, in addition to all other rights and remedies under this Agreement or otherwise all of the rights and remedies provided to a secured creditor under the UCC of each applicable jurisdiction and other Applicable Law in respect thereto, which rights shall be cumulative.

 

(b)                                  The Seller agrees that, upon the occurrence of a Seller Termination Event under Section 8.1(a)(iv)  or Section 8.1(a)(v)(A)  the Purchaser, the Trustee or the Agent shall have the right to:

 

(i)                                      require the Seller to, and the Seller hereby agrees that it will at the Seller’s expense and upon request of the Purchaser, the Trustee or the Agent forthwith, assemble all or any part of the Sale Portfolio as directed by the Purchaser, the Trustee or

 

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the Agent and make the same available at a place to be designated by the Purchaser, the Trustee or the Agent; and

 

(ii)                                   without notice except as specified below, sell the Sale Portfolio or any part thereof in one or more parcels at a public or private sale, at any of the Trustee’s, the Purchaser’s or the Agent’s offices or elsewhere, for cash, or credit or for future delivery, and upon such other terms as the Purchaser, the Trustee or the Agent may deem commercially reasonable. The Seller agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to the Seller of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification.  The Purchaser, the Trustee or the Agent shall not be obligated to make any sale of Sale Portfolio regardless of notice of sale having been given.  The Purchaser, the Trustee or the Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.

 

Section 8.3.                                    Survival of Certain Provisions .

 

Notwithstanding any provision contained herein to the contrary, the Seller’s and the Purchaser’s representations, covenants and obligations set forth in Articles IV , V , VI , and VII , as applicable, create and constitute the continuing obligation of the parties hereto in accordance with its terms, and shall remain in full force and effect until the Collection Date; provided , that the rights and remedies with respect to any breach of any representation and warranty made or deemed made by the Seller pursuant to Articles III and IV and the provisions of Sections 6.1 and 6.2 , the rights and obligations under Article VII , the indemnification provisions of Article IX and the provisions of Sections 5.1 , 10.2 , 10.8 , 10.9 , 10.10 , 10.12 , 10.13 , 10.14 and 10.17 shall be continuing and shall survive any termination of this Agreement. For the avoidance of doubt, in the event that a Seller Termination Event has occurred but has been waived unconditionally and in its entirety in accordance with the terms hereof, such Seller Termination Event shall be deemed to have not “occurred” and references to “after the occurrence of a Seller Termination Event” shall be inapplicable for all purposes in this Agreement or any of the Transaction Documents, except to the extent otherwise provided for in the relevant waiver; provided that any waiver which by its terms becomes effective upon certain conditions precedent being met will not be considered a conditional waiver solely due to the existence of such conditions precedent if all such conditions precedent to effectiveness have been satisfied.

 

ARTICLE IX.

INDEMNIFICATION.

 

Section 9.1.                                    Indemnification by the Seller .

 

(a)                                   Without limiting any other rights which the Purchaser, any assignee of the Purchaser or any such Persons’ respective shareholders, officers, employees, agents, or

 

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Affiliates (each an “ Indemnified Party ”) may have hereunder or under Applicable Law, the Seller hereby agrees to indemnify any Indemnified Party from and against any and all costs, expenses, losses, damages, claims, and liabilities, including attorneys’ fees and disbursements (all of the foregoing, being collectively referred to as, “ Indemnified Amounts ”), awarded against or incurred by such Indemnified Party or other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of this Agreement excluding, however, (a) any such amounts resulting solely from any gross negligence, bad faith or willful misconduct on the part of the applicable Indemnified Party or (b) Loan Assets that are uncollectible due to the Obligor’s financial inability to pay. Without limiting the foregoing, the Seller shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):

 

(i)                                      any Person’s use, ownership or operation of any Underlying Collateral to the extent that such use, ownership or operation took place prior to the Purchase Date with respect to the related Sale Portfolio;

 

(ii)                                   any action taken by the Seller, other than in accordance with this Agreement, in respect of any portion of the Sale Portfolio;

 

(iii)                                any taxes (other than taxes based upon the net or gross income of an Indemnified Party and taxes that would constitute Excluded Amounts) that may at any time be asserted against any Indemnified Party with respect to the transactions contemplated in this Agreement, including, without limitation, any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, stamp or license taxes and costs and expenses in defending against the same, arising by reason of the acts to be performed by the Seller under this Agreement and imposed against such Indemnified Party.  Without limiting the foregoing, in the event that the Purchaser, the Trustee, the Collateral Custodian, the Bank, the Servicer, the Note Purchaser or the Agent receives actual notice of any Transfer Taxes arising out of the Sale of any Sale Portfolio from the Seller to the Purchaser under this Agreement, on written demand by such party, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Purchaser, the Trustee, the Collateral Custodian,  the Bank, the Servicer, the Note Purchaser and the Agent harmless, on an after-tax basis, from and against any and all such Transfer Taxes (it being understood that the Purchaser, the Trustee, the Collateral Custodian, the Bank, the Servicer, the Note Purchaser and the Agent shall have no contractual obligation to pay such Transfer Taxes);

 

(iv)                               the failure by the Seller to pay when due any Taxes due by the Seller for which the Seller is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Sale Portfolio;

 

(v)                                  the negligence, willful misconduct or bad faith of the Seller in the performance of its duties under this Agreement or by reason of reckless disregard of the Seller’s obligations and duties under this Agreement;

 

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(vi)                               any failure of the Seller to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Seller or any Affiliate thereof to perform its respective duties under any Sale Portfolio;

 

(vii)                            the failure of any Sale Portfolio to comply with all requirements of Applicable Law as of its Purchase Date;

 

(viii)                         the failure by the Seller to comply with all requirements of Section 6.1 hereof;

 

(ix)                                 the failure by the Seller to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, any Transaction Document or with any Applicable Law;

 

(x)                                    any representation or warranty made or deemed made by the Seller, or any of its officers, under or in connection with this Agreement or any other Transaction Document, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;

 

(xi)                                 the failure to vest and maintain vested in the Purchaser (or, with respect to the Original Portfolio, the Borrower) an undivided ownership interest in the Sale Portfolio, together with all Interest Collections and Principal Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Purchase or at any time thereafter;

 

(xii)                              the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Law with respect to any Sale Portfolio, whether at the time of any Purchase or at any subsequent time;

 

(xiii)                           any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment with respect to any Sale Portfolio (including, without limitation, a defense based on the Sale Portfolio not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms);

 

(xiv)                          any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Seller to qualify to do business or file any notice or business activity report or any similar report;

 

(xv)                             any action taken by the Seller in the enforcement or collection of any Sale Portfolio;

 

(xvi)                          any claim, suit or action of any kind arising out of or in connection with Environmental Laws including any vicarious liability;

 

43



 

(xvii)                       except with respect to funds held in the Concentration Account, the commingling of Interest Collections and Principal Collections on the Sale Portfolio at any time with other funds of the Seller;

 

(xviii)                    any investigation, litigation or proceeding related to this Agreement or the use of proceeds by the Seller or the security interest in the Sale Portfolio granted hereunder;

 

(xix)                            any failure by the Purchaser to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Purchaser of any item of the Sale Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code; or

 

(xx)                               the failure of the Seller or any of its agents or representatives to remit to the Purchaser Interest Collections and Principal Collections on the Sale Portfolio remitted to the Seller or any such agent or representative as provided in this Agreement.

 

(b)                                  Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Seller to the Indemnified Party within five Business Days following such Person’s demand therefor.

 

(c)                                   If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Seller, as the case may be, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.

 

(d)                                  Indemnification under this Section 9.1 shall be in an amount necessary to make the Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of the receipt of the indemnity provided hereunder, including the effect of such tax or refund on the amount of tax measured by net income or profits that is or was payable by the Indemnified Party.

 

(e)                                   The obligations of the Seller under this Section 9.1 shall survive the termination of this Agreement.

 

Section 9.2.                                    Assignment of Indemnities .

 

The Seller acknowledges that, pursuant to the Second Tier Purchase and Sale Agreement, the Purchaser shall assign its rights of indemnity hereunder to the Borrower, and pursuant to the Amended and Restated Sale and Servicing Agreement, the Borrower shall assign its rights of indemnity granted hereunder to the Trustee, on behalf of the Secured Parties.  Upon such assignment, (a) the Trustee, on behalf of the Secured Parties, shall have all rights of the Purchaser hereunder and may in turn assign such rights, and (b) the obligations of the Seller under this Section 9.2 shall inure to the Trustee, on behalf of the Secured Parties.  The Seller

 

44



 

agrees that, upon such assignment, the Trustee, on behalf of the Secured Parties, may enforce directly, without joinder of the Purchaser or the Borrower, the indemnities set forth in this Article IX .

 

ARTICLE X.

MISCELLANEOUS

 

Section 10.1.                              Liability of the Seller .  The Seller shall be liable in accordance herewith only to the extent of the obligations in this Agreement specifically undertaken by the Seller and with respect to its representations and warranties expressly set forth hereunder.

 

Section 10.2.                              Limitation on Liability .  Except with respect to any claim arising solely out of the willful misconduct or gross negligence of the Note Purchaser, the Trustee, the Agent or any other Secured Party, no claim may be made by the Seller or any other Person against the Note Purchaser, the Trustee, the Agent or any other Secured Party 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 of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Seller hereby waives, releases and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

Section 10.3.                              Amendments; Limited Agency .  Except as provided in this Section 10.3 , no amendment, waiver or other modification of any provision of this Agreement shall be effective unless signed by the Purchaser and the Seller and consented to in writing by the Agent and the Trustee. The Purchaser shall provide not less than ten Business Days’ prior written notice of any such amendment to the Agent, the Trustee and the Note Purchaser.

 

Section 10.4.                              Waivers; Cumulative Remedies .  No failure or delay on the part of the Purchaser (or any assignee thereof) or the Seller, in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other or future exercise thereof or the exercise of any other power, right or remedy. The powers, rights and remedies herein provided are cumulative and not exhaustive of any powers, rights and remedies provided by law. Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which it is given.

 

Section 10.5.                              Notices .  All demands, notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile communication and communication by e-mail in portable document format (.pdf)) and faxed, e-mailed or delivered, to each party hereto, at its address set forth under its name below or at such other address as shall be designated by such party in a written notice to the other parties hereto:

 

If to the Purchaser:

 

Ares Capital CP Funding Holdings LLC
2000 Avenue of the Stars, 12
th  Floor

45



 

Los Angeles, California 90067
Attention:  General Counsel and Chief Financial Officer
Facsimile No.:  (310) 201-4197
Confirmation No.:  (310) 201-4205

 

and

 

Ares Capital CP Funding Holdings LLC
280 Park Avenue, 22
nd  Floor East
New York, New York 10017
Attention:  General Counsel and Chief Financial Officer
Facsimile No.:  (212) 750-1777
Confirmation No.:  (212) 750-7300

 

If to the Seller:

 

Ares Capital Corporation
c/o Ares Management LLC
2000 Avenue of the Stars, 12
th  Floor
Los Angeles, California 90067
Attention:General Counsel and Chief
Financial Officer
Facsimile No.:  (310) 201-4197; (310) 201-4189
Confirmation No.:  (310) 201-4205; (310) 201-4204

 

and

 

Ares Capital Corporation
280 Park Avenue, 22
nd  Floor East
New York, New York 100017
Attention:Michael J. Arougheti and Raymond
Wright
Facsimile No:  (212) 750-1777
Confirmation No.:  (212) 750-7300

 

Notices and communications by facsimile and e-mail shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent by other means shall be effective when received.

 

Section 10.6.                              Merger and Integration .  Except as specifically stated otherwise herein, this Agreement, the Amended and Restated Sale and Servicing Agreement and the other Transaction Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement, the Amended and Restated Sale and Servicing Agreement and the Transaction Documents.  This Agreement may not be modified, amended, waived or supplemented except as provided herein.

 

46



 

Section 10.7.                              Severability of Provisions .  If any one or more of the covenants, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, provisions or terms shall be deemed severable from the remaining covenants, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.

 

Section 10.8.                              GOVERNING LAW; JURY WAIVER . THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER.

 

Section 10.9.                              Consent to Jurisdiction; Service of Process .

 

(a)                                   Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in New York City in any action or proceeding arising out of or relating to this Agreement, and each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court. The parties hereto hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding. The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(b)                                  Each of the Seller and the Purchaser agrees that service of process may be effected by mailing a copy thereof by registered or certified mail, postage prepaid, to the Seller or the Purchaser, as applicable, at its address specified in Section 10.5 . Nothing in this Section 10.9 shall affect the right of the Seller or the Purchaser to serve legal process in any other manner permitted by law.

 

Section 10.10.                        Costs, Expenses and Taxes .

 

(a)                                   In addition to the rights of indemnification granted to the Purchaser and its Affiliates and officers, directors, employees and agents thereof under Section 9.1 hereof, the Seller agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Purchaser or its assignees incurred in connection with the preparation, execution, delivery, enforcement, administration (including periodic auditing), renewal, amendment or modification of, or any waiver or consent issued in connection with, this Agreement and the other documents to be delivered hereunder or in connection herewith, including, without limitation, the reasonable fees and out—of—pocket expenses of counsel with respect thereto and with respect to advising the Purchaser or its assignees as to its rights and remedies under this Agreement and the other documents to be delivered hereunder or in connection herewith, and all out-of-pocket costs and expenses, if any (including reasonable counsel fees and expenses), incurred by the

 

47



 

Purchaser or its assignees in connection with the enforcement of this Agreement and the other documents to be delivered hereunder or in connection herewith.

 

(b)                                  The Seller shall pay on demand any and all stamp, sales, excise and other taxes and fees payable or determined to be payable to any Governmental Authority in connection with the execution, delivery, filing and recording of this Agreement and the other documents to be delivered hereunder.

 

(c)                                   The Seller shall pay on demand all other reasonable out-of-pocket costs, expenses and Taxes (excluding income taxes) incurred by the Purchaser or its assignees in connection with the execution, delivery, filing and recording of this Agreement and the other documents to be delivered hereunder, including, without limitation, all costs and expenses incurred by the Purchaser or its assignees in connection with periodic audits of the Seller’s books and records.

 

(d)                                  For the avoidance of doubt, costs and expenses to be paid pursuant to this Section 10.10 shall exclude all allocable overhead costs and expenses.

 

Section 10.11.                        Counterparts .  For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

Section 10.12.                        Bankruptcy Non-Petition and Limited Recourse; Claims . The Seller hereby agrees that it will not institute against, or join any other Person in instituting against, the Purchaser or the Borrower any Bankruptcy Proceeding so long as there shall not have elapsed one year and one day (or such longer preference period as shall then be in effect) since the Collection Date. The Seller hereby acknowledges that (i) the Purchaser has no assets other than the Sale Portfolio and the membership interests of the Borrower and the proceeds of such membership interests, (ii) the Purchaser shall, immediately upon Purchase hereunder, transfer the Sale Portfolio to the Borrower pursuant to the Second Tier Purchase and Sale Agreement, and (iii) Available Collections generated by the Sale Portfolio will be applied to payment of the Borrower’s obligations under the Amended and Restated Sale and Servicing Agreement. In addition, the Seller shall have no recourse for any amounts payable or any other obligations arising under this Agreement against any officer, member, director, employee, partner, Affiliate or security holder of the Purchaser or any of its successors or assigns.

 

Section 10.13.                        Binding Effect; Assignability .

 

(a)                                   This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

(b)                                  Notwithstanding anything to the contrary contained herein, this Agreement may not be assigned by the Purchaser or the Seller except as permitted by this Section 10.13 , the Second Tier Purchase and Sale Agreement or the Amended and Restated Sale and Servicing Agreement.  Simultaneously with the execution and delivery of this

 

48



 

Agreement, the Purchaser will transfer the Sale Portfolio purchased on and after the Restatement Date and all of its right, title and interest under this Agreement (including, for the avoidance of doubt, all rights pertaining to the Original Loan Assets transferred pursuant to the Original Purchase and Sale Agreement and the Portfolio Assets relating thereto) to the Borrower pursuant to the Second Tier Purchase and Sale Agreement, and the Borrower, pursuant to the Amended and Restated Sale and Servicing Agreement, will assign all of its right, title and interest in this Agreement to the Trustee, for the benefit of the Secured Parties, to which assignment the Seller hereby expressly consents.  Upon assignment, the Seller agrees to perform its obligations hereunder for the benefit of the Trustee, for the benefit of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement and the Trustee, in such capacity, shall be a third party beneficiary hereof.  The Trustee, for the benefit of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement upon such assignment may enforce the provisions of this Agreement, exercise the rights of the Purchaser and enforce the obligations of the Seller hereunder without joinder of the Purchaser or the Borrower.

 

Section 10.14.                        Waiver of Setoff .

 

(a)                                   The Seller’s obligations under this Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right the Seller might have against the Purchaser, the Agent, the Note Purchaser, the Trustee, the other Secured Parties or any assignee of such Persons, all of which rights are hereby waived by the Seller.

 

(b)                                  The Purchaser shall have the right to set—off against the Seller any amounts to which the Seller may be entitled hereunder and to apply such amounts to any claims the Purchaser may have against the Seller from time to time under this Agreement.  Upon any such set—off, the Purchaser shall give notice of the amount thereof and the reasons therefor to the Seller.

 

Section 10.15.                        Headings and Exhibits .  The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof. The schedules and exhibits attached hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.

 

Section 10.16.                        Rights of Inspection .  The Purchaser and its representatives and assigns may conduct at any reasonable time, with reasonable notice, and from time to time, and the Seller will fully cooperate with, a reasonable number of field examinations and audits of the inventory, the Loan Assets and business affairs of the Seller each calendar year.  Each such inspection shall be at the sole expense of the Seller.  The Purchaser and its representatives and successors and assigns acknowledge that in exercising the rights and privileges conferred in this Section 10.16 , it or its representatives or assigns may, from time to time, obtain knowledge of information, practices, books, correspondence and records of a confidential nature and in which the Seller has a proprietary interest.  The Purchaser and its representatives and successors and assigns agree that (i) they shall retain in strict confidence and shall use their best efforts to ensure that their representatives retain in strict confidence and will not disclose without the prior written consent of the Seller any or all of such information, practices, books, correspondence and records furnished to them and (ii) that they will not, and will use their best efforts to ensure that their

 

49



 

representatives and assigns will not, make any use whatsoever (other than for the purposes contemplated by this Agreement) of any of such information, practices, books, correspondence and records without the prior written consent of the Seller, unless such information is generally available to the public or is required by law to be disclosed.

 

Section 10.17.                        Subordination . After giving effect to any payment relating to any indebtedness, obligation or claim the Seller may from time to time hold or otherwise have against the Borrower or any assets or properties of the Borrower, whether arising hereunder or otherwise existing, the Borrowing Base at such time must exceed the Obligations owed by the Borrower to the Secured Parties under the Amended and Restated Sale and Servicing Agreement.  The Seller hereby agrees that at any time during which the condition set forth in the preceding sentence shall not be satisfied, the Seller shall be subordinate in right of payment to the prior payment of any indebtedness or obligation of the Borrower owing to the Note Purchaser, the Trustee, the Collateral Custodian, the Agent or any other Secured Party under the Amended and Restated Sale and Servicing Agreement.

 

Section 10.18.                        Breaches of Representations, Warranties and Covenants . For the avoidance of doubt, no breach or default of any representation, warranty or covenant contained in Sections 4.1 , 4.2 , 4.3, 5.1 , 5.2 , or 5.3 that does not constitute an “Unmatured Event of Default” under the Amended and Restated Sale and Servicing Agreement,  “Event of Default” under the Amended and Restated Sale and Servicing Agreement or Seller Termination Event under this Agreement shall be deemed to be a breach or default hereunder; provided that the foregoing shall not affect the definition of “Seller Purchase Event”, Sections 2.1(n) , 2.3(c) , 3.2(a) , 4.1(ll) , 4.1(mm) , 5.2(j)(iii) , 6.2(b) , 8.3 9.1 and the schedules and exhibits hereto.

 

Section 10.19.                        Confidentiality . Each of the parties hereto hereby agrees with the confidentiality provisions set forth in Sections 11.13 and 11.14 of the Amended and Restated Sale and Servicing Agreement.

 

Section 10.20.                        Assignments of Loan Assets .

 

(a)                                   Notwithstanding anything to the contrary herein, solely for administrative convenience and solely in the case of Third Party Acquired Loan Assets, (i) for purposes of clause (a)(i) of the definition of “Required Loan Documents” in the Amended and Restated Sale and Servicing Agreement, the chain of endorsements required therein by the third party to the Seller, the Seller to the Purchaser and the Purchaser to the Borrower may be satisfied by a direct endorsement from the applicable third party to the Borrower or (ii) delivery of the transfer documents or instruments required by clause (a)(ii) of the definition of “Required Loan Documents” may be satisfied by delivery of transfer documents or instruments evidencing the assignment of such Loan Asset by the applicable third party directly to the Borrower (and by the Borrower either to the Trustee or in blank).

 

(b)                                  Nothing in this Section 10.20 shall limit any requirement that all Loan Assets treated as or represented to be Eligible Loan Assets hereunder or in any Transaction Document be purchased by Borrower from the Purchaser pursuant to the Second Tier Purchase and Sale Agreement and by the Purchaser from the Seller pursuant to this Agreement (as evidenced by the Assignments applicable to each Purchase and Sale Agreement) or any

 

50



 

representations or warranties with respect to Loan Assets so purchased or the liabilities or recourse of the Seller or Purchaser, as applicable, pertaining to such sales.

 

Section 10.21.                        Assignment of Original Purchase and Sale Agreement .  Ares CP Funding LLC hereby assigns all of its right, title and interest as the buyer in the Original Purchase and Sale Agreement to Ares CP Funding Holdings LLC, which shall be the “Purchaser” hereunder. The parties hereto acknowledge such assignment and agree that (i) Ares CP Funding LLC shall no longer be a party hereto, (ii) the Sale Portfolio shall include the Original Portfolio, (iii) the Purchaser may enforce any rights of the Purchaser hereunder pertaining to the Original Portfolio (including, without limitation, any rights of the Purchaser pertaining to the Original Portfolio which would arise in the event the sale hereunder is re-characterized as a secured financing) and (iv) the Trustee, for the benefit of the Secured Parties, as an assignee of the Purchase hereunder, shall have all the rights and benefits that it would have with respect to the Original Portfolio had the Original Portfolio been sold from the Purchaser to the Seller hereunder and the Seller to the Borrower under the Second Tier Purchase and Sale Agreement on each Purchase Date with respect thereto, and the parties hereto agree to take such actions necessary to effectuate the foregoing clauses (i)  through (iv) .

 

[Signature pages to follow.]

 

51



 

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

 

 

ARES CAPITAL CP FUNDING HOLDINGS

 

     LLC, as the Purchaser

 

 

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

Ares CP I Restated Facility

First Tier Purchase and Sale Agreement

 



 

 

ARES CAPITAL CORPORATION,

 

     as the Seller

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

Ares CP I Restated Facility

First Tier Purchase and Sale Agreement

 



 

 

ACKNOWLEDGED AND AGREED:

 

 

 

 

 

ARES CAPITAL CP FUNDING LLC, as the Buyer under the Original Purchase and Sale Agreement

 

 

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 

Ares CP I Restated Facility

First Tier Purchase and Sale Agreement

 


Exhibit 10.4

 

EXECUTION COPY

 

SECOND TIER PURCHASE AND SALE AGREEMENT

 

among

 

ARES CAPITAL CP FUNDING LLC,

 

as the Purchaser

 

and

 

ARES CAPITAL CP FUNDING HOLDINGS LLC,

 

as the Seller

 

 

Dated as of January 22, 2010

 



 

TABLE OF CONTENTS

 

 

 

Page

 

 

 

ARTICLE I.

DEFINITIONS

1

 

 

 

Section 1.1.

General

1

Section 1.2.

Specific Terms

2

Section 1.3.

Other Terms

5

Section 1.4.

Computation of Time Periods

5

Section 1.5.

Certain References

5

 

 

 

ARTICLE II.

SALE AND PURCHASE OF THE ELIGIBLE LOAN ASSETS AND OTHER PORTFOLIO ASSETS

5

 

 

 

Section 2.1.

Sale and Purchase of the Eligible Loan Assets and the Other Portfolio Assets

5

Section 2.2.

Purchase Price

8

Section 2.3.

Payment of Purchase Price

8

Section 2.4.

Nature of the Sales

9

 

 

 

ARTICLE III.

CONDITIONS OF SALE AND PURCHASE

10

 

 

 

Section 3.1.

Conditions Precedent to Effectiveness

10

Section 3.2.

Conditions Precedent to All Purchases

11

 

 

 

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES

12

 

 

 

Section 4.1.

Representations and Warranties of the Seller

12

Section 4.2.

Representations and Warranties of the Seller Relating to the Agreement and the Sale Portfolio

20

Section 4.3.

Representations and Warranties of the Purchaser

21

 

 

 

ARTICLE V.

COVENANTS OF THE SELLER

23

 

 

 

Section 5.1.

Protection of Title of the Purchaser

23

Section 5.2.

Affirmative Covenants of the Seller

26

Section 5.3.

Negative Covenants of the Seller

30

 

 

 

ARTICLE VI.

REPURCHASES AND SUBSTITUTION BY THE SELLER

32

 

 

 

Section 6.1.

Repurchase of Loan Assets

32

Section 6.2.

Substitution of Loan Assets

32

Section 6.3.

Repurchase Limitations

34

 

 

 

ARTICLE VII.

ADDITIONAL RIGHTS AND OBLIGATIONS IN RESPECT OF THE SALE PORTFOLIO

34

 

 

 

Section 7.1.

Rights of the Purchaser

34

Section 7.2.

Notice to Trustee, Agent and Note Purchaser

35

 

 

 

ARTICLE VIII.

SELLER TERMINATION EVENTS

35

 

i



 

TABLE OF CONTENTS

(cont’d)

 

 

 

Page

 

 

 

Section 8.1.

Seller Termination Events

35

Section 8.2.

Remedies

37

Section 8.3.

Survival of Certain Provisions

38

 

 

 

ARTICLE IX.

INDEMNIFICATION

38

 

 

 

Section 9.1.

Indemnification by the Seller

38

Section 9.2.

Assignment of Indemnities

41

 

 

 

ARTICLE X.

MISCELLANEOUS

41

 

 

 

Section 10.1.

Liability of the Seller

41

Section 10.2.

Limitation on Liability

41

Section 10.3.

Amendments; Limited Agency

42

Section 10.4.

Waivers; Cumulative Remedies

42

Section 10.5.

Notices

42

Section 10.6.

Merger and Integration

43

Section 10.7.

Severability of Provisions

43

Section 10.8.

GOVERNING LAW; JURY WAIVER

43

Section 10.9.

Consent to Jurisdiction; Service of Process

43

Section 10.10.

Costs, Expenses and Taxes

44

Section 10.11.

Counterparts

44

Section 10.12.

Bankruptcy Non-Petition and Limited Recourse; Claims

45

Section 10.13.

Binding Effect; Assignability

45

Section 10.14.

Waiver of Setoff

45

Section 10.15.

Headings and Exhibits

46

Section 10.16.

Rights of Inspection

46

Section 10.17.

Subordination

46

Section 10.18.

Breaches of Representations, Warranties and Covenants

46

Section 10.19.

Confidentiality

46

Section 10.20.

Assignments of Loan Assets

47

 

SCHEDULES AND EXHIBITS

 

Schedule I

-

Sale Portfolio List

 

 

 

Exhibit A

-

Form of Second Tier Loan Assignment

Exhibit B

-

Form of Officer’s Purchase Date Certificate

Exhibit C

-

Form of Power of Attorney for Seller

 

ii



 

SECOND TIER PURCHASE AND SALE AGREEMENT

 

THIS SECOND TIER PURCHASE AND SALE AGREEMENT, dated as of January 22, 2010, among ARES CAPITAL CP FUNDING HOLDINGS LLC, a Delaware limited liability company, as the seller (the “ Seller ”) and ARES CAPITAL CP FUNDING LLC, a Delaware limited liability company, as the purchaser (the “ Purchaser ”).

 

W   I   T   N   E   S   S   E   T   H:

 

WHEREAS, the Seller acquired certain Loan Assets and Portfolio Assets (in each case, as hereinafter defined) related thereto pursuant to the terms of that certain Amended and Restated Purchase and Sale Agreement, dated as of the date hereof, by and between, the Seller, as the purchaser and Ares Capital Corporation, as the seller (such agreement as amended, modified, waived, supplemented or restated from time to time, the “ First Tier Purchase and Sale Agreement ”);

 

WHEREAS, the Purchaser has agreed to Purchase (as hereinafter defined) from the Seller from time to time, and the Seller has agreed to Sell (as hereinafter defined) to the Purchaser from time to time, certain Loan Assets and Portfolio Assets related thereto on the terms set forth herein;

 

WHEREAS, it is contemplated that the Loan Assets and Portfolio Assets Purchased hereunder may be Pledged by the Purchaser pursuant to the Amended and Restated Sale and Servicing Agreement (as defined herein) and the related Transaction Documents, to the Trustee, for the benefit of the Secured Parties; and

 

WHEREAS, the Seller agrees that all representations, warranties, covenants and agreements made by the Seller herein with respect to the Sale Portfolio shall also be for the benefit of any Secured Party.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter contained, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Purchaser and the Seller, intending to be legally bound, hereby agree as follows:

 

ARTICLE I.

 

DEFINITIONS

 

Section 1.1.             General .  The specific terms defined in this Article include the plural as well as the singular.  Words herein importing a gender include the other gender.  References herein to “writing” include printing, typing, lithography and other means of reproducing words in visible form.  References to agreements and other contractual instruments include all subsequent amendments thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Agreement or the Amended and Restated Sale and Servicing Agreement (as hereinafter defined).  References herein to Persons include their successors and assigns permitted hereunder or under the Amended and Restated Sale and Servicing Agreement.  The terms “include” or “including” mean “include without limitation” or

 



 

“including without limitation”.  The words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision, and Article, Section, Schedule and Exhibit references, unless otherwise specified, refer to Articles and Sections of and Schedules and Exhibits to this Agreement.  Capitalized terms used herein but not defined herein shall have the respective meanings assigned to such terms in the Amended and Restated Sale and Servicing Agreement, provided that, if, within such definition in the Amended and Restated Sale and Servicing Agreement a further term is used which is defined herein, then such further term shall have the meaning given to such further term herein.

 

Section 1.2.             Specific Terms .  Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:

 

Agreement ” means this Second Tier Purchase and Sale Agreement, as the same may be amended, restated, waived, supplemented and/or otherwise modified from time to time hereafter.

 

Amended and Restated Sale and Servicing Agreement ” means that certain Amended and Restated Sale and Servicing Agreement, amended and restated as of the Restatement Date, by and among the Purchaser, as the Borrower, Ares Capital Corporation, as the Servicer and the Transferor, Wachovia Bank, National Association, as the Note Purchaser, Wells Fargo Securities, LLC, as the Agent, U.S. Bank National Association, as the Trustee, the and the Collateral Custodian, as such may be amended, restated, supplemented or otherwise modified from time to time pursuant to the terms thereof.

 

Early Termination ” has the meaning specified in Section 8.1 .

 

Facility Financing Statements ” has the meaning specified in Section 3.1(iv) .

 

Indemnified Amounts ” has the meaning specified in Section 9.1 .

 

Indemnified Party ” has the meaning specified in Section 9.1 .

 

Loan Asset ” means any loan listed on Schedule I hereto, as the same may be amended, supplemented, restated or replaced from time to time.

 

Non-Consolidation/True Sale Opinion ” has the meaning specified in Section 4.1(kk) .

 

Portfolio Assets ” means all Loan Assets owned by the Seller, together with all proceeds thereof and other assets or property related thereto, including all right, title and interest of the Seller in and to:

 

(a)            any amounts on deposit in any cash reserve, collection, custody or lockbox accounts securing the Loan Assets;

 

(b)            all rights with respect to the Loan Assets to which the Seller is entitled as lender under the applicable Loan Agreement;

 

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(c)            any Underlying Collateral securing a Loan Asset and all Recoveries related thereto, all payments paid in respect thereof and all monies due, to become due and paid in respect thereof accruing after the applicable Cut-Off Date and all liquidation proceeds;

 

(d)            all Required Loan Documents, the Loan Asset Files related to any Loan Asset, any Records, and the documents, agreements, and instruments included in the Loan Asset Files or Records;

 

(e)            all Insurance Policies with respect to any Loan Asset;

 

(f)             all Liens, guaranties, indemnities, warranties, letters of credit, accounts, bank accounts and property subject thereto from time to time purporting to secure or support payment of any Loan Asset, together with all UCC financing statements, mortgages or similar filings signed or authorized by an Obligor relating thereto;

 

(g)            all records (including computer records) with respect to the foregoing; and

 

(h)            all collections, income, payments, proceeds and other benefits of each of the foregoing.

 

Purchase ” means a purchase by the Purchaser of an Eligible Loan Asset and the related Portfolio Assets from the Seller pursuant to Article II .

 

Purchase Date ” has the meaning specified in Section 2.1(b) .

 

Purchase Price ” has the meaning specified in Section 2.2 .

 

Purchaser ” has the meaning specified in the Preamble.

 

Purchaser Restricted Junior Payment ” means (i) any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Purchaser now or hereafter outstanding, except a dividend paid solely in interests of that class of membership interests or in any junior class of membership interests of the Purchaser; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of membership interests of the Purchaser now or hereafter outstanding, (iii) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire membership interests of the Purchaser now or hereafter outstanding, and (iv) any payment of management fees by the Purchaser (except for reasonable management fees to the Transferor or its Affiliates in reimbursement of actual management services performed).

 

Replaced Loan Asset ” has the meaning specified in Section 6.2(b)(i) .

 

Repurchase Price ” means, with respect to a Loan Asset to be repurchased pursuant to Article VI hereof, an amount equal to the Purchase Price less all Principal Collections received in respect of such Loan Asset from the Purchase Date to the date of repurchase hereunder.

 

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Sale ” and “ Sell ” have the meanings specified in Section 2.1(a) , and the term “ Sold ” shall have the corresponding meaning.

 

Sale Portfolio ” means all right, title, and interest (whether now owned or hereafter acquired or arising, and wherever located) of the Seller in the property identified below in clauses (i)  through (iv)  and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions, or other property consisting of, arising out of, or related to any of the following (in each case excluding the Retained Interest and the Excluded Amounts):

 

(i)             the Loan Assets, and all monies due or to become due in payment under such Loan Assets on and after the related Cut-Off Date, including, but not limited to, all Available Collections, but excluding any related Attached Equity;

 

(ii)            the Portfolio Assets with respect to the Loan Assets referred to in clause (i) ;

 

(iii)           all the Seller’s rights under the First Tier Purchase and Sale Agreement; and

 

(iv)           all income and Proceeds of the foregoing.

 

Schedule I ” means the schedule of all Sale Portfolio that is Sold by the Seller to the Purchaser on a Purchase Date, as supplemented on any subsequent Purchase Date by the “Schedule I” attached to the applicable Second Tier Loan Assignment, and incorporated herein by reference, as such schedule may be supplemented and amended from time to time pursuant to the terms hereof, which schedule shall, together with all supplements and amendments thereto, be included in and made part of the Loan Asset Schedule attached to the Amended and Restated Sale and Servicing Agreement.

 

Second Tier Loan Assignment ” means a Second Tier Loan Assignment executed by the Seller, substantially in the form of Exhibit A attached hereto.

 

Seller Purchase Event ” means the occurrence of a breach of the Seller’s representations and warranties under Section 4.2 .

 

Seller Termination Event ” has the meaning specified in Section 8.1(a) .

 

Substitute Eligible Loan Asset ” has the meaning specified in Section 6.2(a) .

 

Substitution ” has the meaning specified in Section 6.2(a) .

 

Transfer Taxes ” means any tax, fee or governmental charge payable by the Purchaser, the Seller or any other Person to any federal, state or local government arising from or otherwise related to the Sale of any Loan Asset, the related Underlying Collateral (if any) and/or

 

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any other related Portfolio Assets from the Seller to the Purchaser under this Agreement (excluding taxes measured by net income).

 

Section 1.3.             Other Terms .  All accounting terms used but not specifically defined herein shall be construed in accordance with GAAP.  All terms used in Article 9 of the UCC in the State of New York, and used but not specifically defined herein, are used herein as defined in such Article 9.

 

Section 1.4.             Computation of Time Periods .  Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”.

 

Section 1.5.             Certain References .  All references to the Outstanding Balance of a Loan Asset as of a Purchase Date shall refer to the close of business on such day.

 

ARTICLE II.

 

SALE AND PURCHASE OF THE ELIGIBLE LOAN ASSETS
AND OTHER PORTFOLIO ASSETS

 

Section 2.1.             Sale and Purchase of the Eligible Loan Assets and the Other Portfolio Assets .

 

(a)            Subject to the terms and conditions of this Agreement, on and after the Restatement Date, the Seller hereby agrees to (i) sell, transfer and otherwise convey (collectively, “ Sell ” and any such sale, transfer and/or other conveyance, a “ Sale ”), from time to time, to the Purchaser, without recourse (except to the extent specifically provided herein), and the Purchaser hereby agrees to purchase, all right, title and interest of the Seller (whether now owned or hereafter acquired or arising, and wherever located) in and to certain Sale Portfolio designated by the Seller and (ii) transfer, or cause the deposit into, the Collection Account of all Available Collections received by the Seller on account of any Sale Portfolio hereunder on and after the Purchase Date with respect to such Sale Portfolio, in each case, within two Business Days of the receipt thereof.  The Seller hereby acknowledges that each Sale to the Purchaser hereunder is absolute and irrevocable, without reservation or retention of any interest whatsoever by the Seller.

 

(b)            The Seller shall on or prior to any Business Day prior to a Seller Termination Event (each a “ Purchase Date ”) execute and deliver to the Purchaser a proposed Second Tier Loan Assignment identifying the Sale Portfolio to be Sold by the Seller to the Purchaser on such Purchase Date.  From and after such Purchase Date, the Sale Portfolio listed on Schedule I to the related Second Tier Loan Assignment shall be deemed to be listed on Schedule I hereto and constitute part of the Sale Portfolio hereunder.

 

(c)            On or before any Purchase Date with respect to the Sale Portfolio to be acquired by the Purchaser on such date, the Seller shall provide the Purchaser with an Officer’s Certificate, in the form of Exhibit B hereto, signed by a duly authorized Responsible Officer certifying, as of such Purchase Date, to each of the items in Section 4.2 .

 

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(d)            On and after each Purchase Date hereunder and upon payment of the Purchase Price therefor, the Purchaser shall own the Sale Portfolio Sold by the Seller to the Purchaser on such Purchase Date, and the Seller shall not take any action inconsistent with such ownership and shall not claim any ownership interest in such Sale Portfolio.

 

(e)            Except as specifically provided in this Agreement, the Sale and Purchase of the Sale Portfolio under this Agreement shall be without recourse to the Seller; it being understood that the Seller shall be liable to the Purchaser for all representations, warranties, covenants and indemnities made by the Seller pursuant to the terms of this Agreement, all of which obligations are limited so as not to constitute recourse to the Seller for the credit risk of the Obligors.

 

(f)             Neither the Purchaser nor any assignee of the Purchaser (including the Secured Parties) shall have any obligation or liability to any Obligor or client of the Seller (including any obligation to perform any obligation of the Seller, including with respect to any other related agreements) in respect of the Sale Portfolio (other than with respect to funding obligations to Obligors pursuant to the terms of the applicable Loan Agreement for Revolving Loan Assets and Delayed Draw Loan Assets, as applicable).  No such obligation or liability is intended to be assumed by the Purchaser or any assignee of the Purchaser (including the Secured Parties) and any such assumption is expressly disclaimed.  Without limiting the generality of the foregoing, the Sale of the Sale Portfolio by the Seller to the Purchaser pursuant to this Agreement does not constitute and is not intended to result in a creation or assumption by the Purchaser or any assignee of the Purchaser (including the Secured Parties), of any obligation of the Seller, as lead agent, collateral agent or paying agent under any Agented Note.

 

(g)            In connection with each Purchase of Sale Portfolio hereunder, the Seller shall cause to be delivered to the Collateral Custodian (with a copy to the Agent), no later than 2:00 p.m. one Business Day prior to the related Purchase Date, a faxed or e-mailed copy of the duly executed original promissory notes of the Loan Assets (and, in the case of any Noteless Loan Asset, a fully executed assignment agreement) and if any Loan Assets are closed in escrow, a certificate (in the form of Exhibit K to the Amended and Restated Sale and Servicing Agreement) from the closing attorneys of such Loan Assets certifying the possession of the Required Loan Documents; provided that, notwithstanding the foregoing, the Seller shall cause the Loan Asset Checklist and the Required Loan Documents to be in the possession of the Collateral Custodian within five Business Days after the related Purchase Date.

 

(h)            In accordance with the Amended and Restated Sale and Servicing Agreement, certain documents relating to Sale Portfolio shall be delivered to and held in trust by the Collateral Custodian for the benefit of the Purchaser and its assignees, and the Purchaser hereby instructs the Seller to cause such documents to be delivered to the Collateral Custodian.  Such delivery to the Collateral Custodian of such documents and the possession thereof by the Collateral Custodian is at the will of the Purchaser and its assignees and in a custodial capacity for their benefit only.

 

(i)             The Seller shall provide all information, and any other reasonable assistance, to the Servicer, the Collateral Custodian and the Trustee necessary for the Servicer, the Collateral Custodian and the Trustee, as applicable, to conduct the management,

 

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administration and collection of the Sale Portfolio Purchased hereunder in accordance with the terms of the Amended and Restated Sale and Servicing Agreement.

 

(j)             In connection with each Purchase of Sale Portfolio hereunder, the Seller hereby grants to each of the Purchaser and its assigns, the Agent, the Note Purchaser, the Trustee, the Collateral Custodian and the Servicer an irrevocable, non—exclusive license to use, without royalty or payment of any kind, all software used by the Seller to account for the Sale Portfolio, to the extent necessary to administer the Sale Portfolio, whether such software is owned by the Seller or is owned by others and used by the Seller under license agreements with respect thereto; provided that, should the consent of any licensor of such software be required for the grant of the license described herein to be effective or for the Purchaser to assign such licenses to the Servicer or any successor, the Seller hereby agrees that upon the request of the Purchaser or its assignees, the Agent, the Note Purchaser, the Collateral Custodian or the Trustee, the Seller shall use its best efforts to obtain the consent of such third—party licensor.  The license granted hereby shall be irrevocable until the Collection Date and shall terminate on the date this Agreement terminates in accordance with its terms.  The Seller (i) shall take such action reasonably requested by the Purchaser or the Agent, from time to time hereafter, that may be necessary or appropriate to ensure that the Purchaser and its assigns under the Amended and Restated Sale and Servicing Agreement have an enforceable ownership or security interest, as applicable, in the Sale Portfolio Purchased by the Purchaser as contemplated by this Agreement, and (ii) shall use its commercially reasonable efforts to ensure that each of the Purchaser (and its assignees), the Agent, the Note Purchaser, the Trustee, the Collateral Custodian and the Servicer (or any successor) has an enforceable right (whether by license or sublicense or otherwise) to use all of the computer software used to account for the Sale Portfolio and/or to recreate the related Loan Asset Files.

 

(k)            In connection with the Purchase by the Purchaser of Sale Portfolio as contemplated by this Agreement, the Seller further agrees that it shall, at its own expense, indicate clearly and unambiguously in its computer files on or prior to each Purchase Date, and its financial statements, that such Sale Portfolio has been purchased by the Purchaser in accordance with this Agreement.

 

(l)             The Seller further agrees to deliver to the Purchaser on or before each Purchase Date a computer file containing a true, complete and correct list of all Loan Assets to be Sold hereunder on such Purchase Date, identified by Obligor’s name and Outstanding Balance as of the related Cut—Off Date.  Such file or list shall be marked as Schedule I to the applicable Second Tier Loan Assignment and shall be delivered to the Purchaser as confidential and proprietary, and is hereby incorporated into and made a part of Schedule I to this Agreement, as such Schedule I may be supplemented and amended from time to time.

 

(m)           The Seller shall, at all times, continue to fulfill its obligations under, and in strict conformance with the terms of all Loan Agreements (other than with respect to funding obligations to Obligors in connection with Revolving Loan Assets and Delayed Draw Loan Assets, as applicable) related to any Sale Portfolio purchased hereunder, including without limitation any obligations pertaining to any Retained Interest.

 

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(n)            The Seller and the Purchaser each acknowledge with respect to itself that the representations and warranties of the Seller in Sections 4.1 and 4.2 hereof and of the Purchaser in Section 4.3 hereof, and the covenants of the Seller in Article V hereof, will run to and be for the benefit of the Purchaser and the Trustee (on behalf of the Secured Parties) and the Trustee (on behalf of the Secured Parties) may enforce directly (without joinder of the Purchaser when enforcing against the Seller), the obligations of the Seller or the Purchaser, as applicable, with respect to breaches of such representations, warranties and covenants as set forth in this Agreement.

 

Section 2.2.             Purchase Price .

 

The purchase price for each item of Sale Portfolio Sold to the Purchaser hereunder (the “ Purchase Price ”) shall be in a dollar amount equal to the fair market value of such Loan Asset as determined from time to time by the Seller and the Purchaser.  Each of the Purchaser and the Seller hereby agree that the fair market value of each Loan Asset Sold hereunder as of the related Purchase Date shall not be less than the Advance Date Assigned Value thereof on the related Purchase Date multiplied by the principal balance of such Loan Asset (exclusive of Accreted Interest).

 

Section 2.3.             Payment of Purchase Price .

 

(a)            The Purchase Price for any Sale Portfolio Sold by the Seller to the Purchaser on any Purchase Date shall be paid in a combination of:  (i) immediately available funds; and (ii) if the Purchaser does not have sufficient funds to pay the full amount of the Purchase Price (after taking into account the proceeds the Purchaser expects to receive pursuant to the Advances under the Amended and Restated Sale and Servicing Agreement), by means of a capital contribution by the Seller to the Purchaser.

 

(b)            The portion of such Purchase Price to be paid in immediately available funds shall be paid by wire transfer on the applicable Purchase Date to an account designated by the Seller on or before such Purchase Date or by means of proper accounting entries being entered upon the accounts and records of the Seller and the Purchaser on the applicable Purchase Date.

 

(c)            In connection with each delivery of a Second Tier Loan Assignment, the Seller hereunder shall be deemed to have certified, with respect to the Sale Portfolio to be Sold by it on such day, that its representations and warranties contained in Sections 4.1 and 4.2 are true and correct in all material respects on and as of such day, with the same effect as though made on and as of such day (other than any representation or warranty that is made as of a specific date), that no Event of Default has occurred or would result therefrom and no Unmatured Event of Default exists or would result therefrom.

 

(d)            Upon the payment of the Purchase Price for any Purchase, title to the Sale Portfolio included in such Purchase shall vest in the Purchaser, whether or not the conditions precedent to such Purchase and the other covenants and agreements contained herein were in fact satisfied; provided that the Purchaser shall not be deemed to have waived any claim it may have

 

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under this Agreement for the failure by the Seller in fact to satisfy any such condition precedent, covenant or agreement.

 

Section 2.4.             Nature of the Sales .

 

(a)            It is the express intent of the parties hereto that the Sale of the Sale Portfolio by the Seller to the Purchaser hereunder be, and be treated for all purposes (other than tax and accounting purposes) as an absolute sale by the Seller (free and clear of any Lien, security interest, charge or encumbrance other than Permitted Liens) of such Sale Portfolio.  It is, further, not the intention of the parties that such Sale be deemed a pledge of the Sale Portfolio by the Seller to the Purchaser to secure a debt or other obligation of the Seller.  However, in the event that, notwithstanding the intent of the parties, the Sale Portfolio is held to continue to be property of the Seller, then the parties hereto agree that:  (i) this Agreement shall also be deemed to be a “security agreement” within the meaning of Article 9 of the UCC; (ii) the transfer of the Sale Portfolio provided for in this Agreement shall be deemed to be a grant by the Seller to the Purchaser of a first priority security interest (subject only to Permitted Liens) in all of the Seller’s right, title and interest in and to the Sale Portfolio and all amounts payable to the holders of the Sale Portfolio in accordance with the terms thereof and all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including, without limitation, all amounts from time to time held or invested in the Controlled Accounts, whether in the form of cash, instruments, securities or other property, to secure the prompt and complete payment of a loan deemed to have been made in an amount equal to the aggregate Purchase Price of the Sale Portfolio together with all of the other obligations of the Seller hereunder; (iii) the possession by the Purchaser (or the Collateral Custodian on behalf of the Trustee, for the benefit of the Secured Parties) of Sale Portfolio and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be, subject to clause (iv) , for purposes of perfecting the security interest pursuant to the UCC; and (iv) acknowledgements from Persons holding such property shall be deemed acknowledgements from custodians, bailees or agents (as applicable) of the Purchaser for the purpose of perfecting such security interest under Applicable Law.  The parties further agree in such event that any assignment of the interest of the Purchaser pursuant to any provision hereof shall also be deemed to be an assignment of any security interest created pursuant to the terms of this Agreement.  The Purchaser shall, to the extent consistent with this Agreement and the other Transaction Documents, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Sale Portfolio, such security interest would be deemed to be a perfected security interest of first priority (subject only to Permitted Liens) under Applicable Law and will be maintained as such throughout the term of this Agreement.  The Purchaser shall have, in addition to the rights and remedies which it may have under this Agreement, all other rights and remedies provided to a secured creditor under the UCC and other Applicable Law, which rights and remedies shall be cumulative.

 

(b)            It is the intention of each of the parties hereto that the Sale Portfolio Sold by the Seller to the Purchaser pursuant to this Agreement shall constitute assets owned by the Purchaser and shall not be part of the Seller’s estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy or similar law.

 

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ARTICLE III.

 

CONDITIONS OF SALE AND PURCHASE

 

Section 3.1.             Conditions Precedent to Effectiveness .  This Agreement shall be effective upon the satisfaction of the conditions precedent that the Purchaser shall have received on or before the Restatement Date, in form and substance satisfactory to the Purchaser, all of the following:

 

(i)             a copy of this Agreement duly executed by each of the parties hereto;

 

(ii)            a certificate of the Secretary or Assistant Secretary of the Seller, dated the Restatement Date, certifying (A) the names and true signatures of the incumbent officers of the Seller authorized to sign on behalf of the Seller this Agreement, the Second Tier Loan Assignments and all other documents to be executed by the Seller hereunder or in connection herewith (on which certificate the Purchaser and its assignees may conclusively rely until such time as the Purchaser and such assignees shall receive from the Seller, a revised certificate meeting the requirements of this Section 3.1(ii) ), (B) that the copy of the certificate of formation of the Seller is a complete and correct copy and that such certificate of formation has not been amended, modified or supplemented and is in full force and effect, (C) that the copy of the amended and restated limited liability company agreement of the Seller is a complete and correct copy, and that such amended and restated limited liability company agreement has not been amended, modified or supplemented and is in full force and effect, and (D) the resolutions of the board of directors of the Seller approving and authorizing the execution, delivery and performance by the Seller of this Agreement, the Second Tier Loan Assignments and all other documents to be executed by the Seller hereunder or in connection herewith;

 

(iii)           a good standing certificate, dated as of a recent date for the Seller, issued by the Secretary of State of the Seller’s State of formation;

 

(iv)           filed, original copies of proper financing statements (the “ Facility Financing Statements ”) describing the Sale Portfolio, and naming the Seller as the “Debtor/Seller” and the Purchaser as “Secured Party/Buyer”, or other similar instruments or documents, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to perfect the Purchaser’s ownership interest in all Sale Portfolio;

 

(v)            copies of properly authorized termination statements or statements of release (on Form UCC-3) or other similar instruments or documents, if any, in form and substance sufficient for filing under the UCC or any comparable law of any and all jurisdictions as may be necessary to release all security interests and similar rights of any Person in the Sale Portfolio previously granted by the Seller;

 

(vi)           copies of tax and judgment lien searches in all jurisdictions reasonably requested by the Purchaser or its assignees and requests for information (or a

 

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similar UCC search report certified by a party acceptable to the Purchaser and its assigns), dated a date reasonably near to the Restatement Date, and with respect to such requests for information or UCC searches, listing all effective financing statements which name the Seller (under its present name and any previous name) as debtor and which are filed in the State of Delaware, together with copies of such financing statements (none of which shall cover any Sale Portfolio);

 

(vii)          all instruments in connection with the transactions contemplated by this Agreement shall be satisfactory in form and substance to the Purchaser and the Agent, and the Purchaser and the Agent shall have received from the Seller copies of all documents (including, without limitation, records of corporate proceedings, approvals and opinions) relevant to the transactions herein contemplated as the Purchaser and the Agent may have reasonably requested;

 

(viii)         any necessary third party consents to the closing of the transactions contemplated hereby, in form and substance satisfactory to the Purchaser;

 

(ix)            the Seller shall have paid all fees required to be paid by it on the Restatement Date; and

 

(x)             one or more favorable Opinions of Counsel from counsel to the Seller with respect to the perfection and enforceability of the security interest hereunder and such other matters as the Purchaser or any assignee thereof may reasonably request.

 

Section 3.2.             Conditions Precedent to All Purchases .  The Purchase to take place on the initial Purchase Date and each Purchase to take place on a subsequent Purchase Date hereunder shall be subject to the further conditions precedent that:

 

(a)            The following statements shall be true:

 

(i)             The representations and warranties of the Seller contained in Sections 4.1 and 4.2 shall be true and correct on and as of such Purchase Date in all material respects, before and after giving effect to the Purchase to take place on such Purchase Date and to the application of proceeds therefrom, as though made on and as of such date (other than any representation and warranty that is made as of a specific date);

 

(ii)            The Seller is in compliance in all respects with each of its covenants and other agreements set forth herein;

 

(iii)           No Seller Termination Event (or event which, with the passage of time or the giving of notice, or both would constitute a Seller Termination Event) shall have occurred or would result from such Purchase;

 

(iv)           The Facility Maturity Date has not yet occurred; and

 

(v)            No Applicable Law shall prohibit or enjoin, and no order, judgment or decree of any federal, state or local court or governmental body, agency or

 

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instrumentality shall prohibit or enjoin, the making of any such Purchase by the Purchaser in accordance with the provisions hereof.

 

(b)            The Purchaser shall have received a duly executed and completed Second Tier Loan Assignment along with a Schedule I that is true, accurate and complete in all respects as of the related Cut-Off Date.

 

(c)            The Seller shall have delivered to the Collateral Custodian on behalf of the Purchaser and any assignee thereof each item required to be contained in the Required Loan Documents and the Loan Asset Checklist of any of the Eligible Loan Assets or Portfolio Assets related thereto being acquired by the Purchaser within five Business Days of the related Purchase Date.

 

(d)            The Seller shall have taken all steps necessary under all Applicable Law in order to Sell to the Purchaser the Sale Portfolio being Purchased on such Purchase Date and, upon the Sale of such Sale Portfolio from the Seller to the Purchaser pursuant to the terms hereof, the Purchaser will have acquired good and marketable title to (subject to Section 10.20 ) and a valid and perfected ownership interest in such Sale Portfolio, free and clear of any Lien, security interest, charge or encumbrance (other than Permitted Liens); provided that if such item of Sale Portfolio contains a restriction of transferability, the applicable Loan Agreement provides that any consents necessary for future assignments shall not be unreasonably withheld by the applicable Obligor and/or agent, and the rights to enforce rights and remedies in respect of the same under the applicable Loan Agreement inure to the benefit of the holder of such Loan Asset (subject to the rights of any applicable agent or other lenders).

 

(e)            The Seller shall have received a copy of an Approval Notice executed by the Agent evidencing the approval of the Agent, in its sole and absolute discretion of the Sale to the Purchaser of the Eligible Loan Assets identified on Schedule I to the applicable Second Tier Loan Assignment on the applicable Purchase Date.

 

ARTICLE IV.

 

REPRESENTATIONS AND WARRANTIES

 

Section 4.1.             Representations and Warranties of the Seller .  The Seller makes the following representations and warranties, on which the Purchaser relies in acquiring the Sale Portfolio Purchased hereunder and each of the Secured Parties relies upon in entering into the Amended and Restated Sale and Servicing Agreement.  As of each Purchase Date, the Seller represents and warrants to the Purchaser for the benefit of the Purchaser and each of its successors and assigns that:

 

(a)            Organization and Good Standing .  The Seller has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware (subject to Section 5.1(f) ), with all requisite limited liability company power and authority to own or lease its properties and to conduct its business as such business is presently conducted, and had at all relevant times and now has all necessary power, authority and legal

 

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right to acquire and own the Sale Portfolio and to Sell such Sale Portfolio to the Purchaser hereunder.

 

(b)            Due Qualification .  The Seller is duly qualified to do business and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, licenses and/or approvals.

 

(c)            Power and Authority; Due Authorization; Execution and Delivery .  The Seller (i) has all necessary power, authority and legal right to (a) execute and deliver this Agreement, each Second Tier Loan Assignment and the other Transaction Documents to which it is a party and (b) carry out the terms of this Agreement, each Second Tier Loan Assignment and the other Transaction Documents to which it is a party and (ii) has duly authorized by all necessary limited liability company action the execution, delivery and performance of this Agreement, each Second Tier Loan Assignment and the other Transaction Documents to which it is a party and the sale and assignment of an ownership interest in the Sale Portfolio on the terms and conditions herein provided.  This Agreement, each Second Tier Loan Assignment and each other Transaction Document to which the Seller is a party have been duly executed and delivered by the Seller.

 

(d)            Valid Conveyance; Binding Obligations .  This Agreement, each Second Tier Loan Assignment and the Transaction Documents to which the Seller is party have been and, in the case of each Second Tier Loan Assignment delivered after the Restatement Date, will be, duly executed and delivered by the Seller, and this Agreement, together with the applicable Second Tier Loan Assignment in each case, shall effect valid Sales of Sale Portfolio, enforceable against the Seller and creditors of and purchasers from the Seller, and this Agreement, each Second Tier Loan Assignment and such Transaction Documents shall constitute legal, valid and binding obligations of the Seller enforceable against the Seller in accordance with their respective terms, except as enforceability may be limited by Bankruptcy Laws and general principles of equity (whether such enforceability is considered in a proceeding in equity or at law).

 

(e)            No Violation .  The execution, delivery and performance of this Agreement, each Second Tier Loan Assignment and all other agreements and instruments executed and delivered or to be executed and delivered by the Seller pursuant hereto or thereto in connection with the Sale of the Sale Portfolio will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Seller’s certificate of formation or limited liability company agreement or any contractual obligation of the Seller, (ii) result in the creation or imposition of any Lien (other than Permitted Liens) upon any of the Seller’s properties pursuant to the terms of any such contractual obligation, other than this Agreement, or (iii) violate any Applicable Law.

 

(f)             No Proceedings .  There is no litigation, proceeding or investigation pending or, to the knowledge of the Seller, threatened against the Seller, before any Governmental Authority (i) asserting the invalidity of this Agreement, any Second Tier Loan Assignment or any other Transaction Document to which the Seller is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, any

 

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Second Tier Loan Assignment or any other Transaction Document to which the Seller is a party or (iii) seeking any determination or ruling that could reasonably be expected to have a Material Adverse Effect.

 

(g)            No Consents .  The Seller is not required to obtain the consent or approval of any other party or any consent, license, approval or authorization, or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery, performance, validity or enforceability of this Agreement or any Second Tier Loan Assignment, except those which have been obtained.

 

(h)            State of Organization, Etc .  Except as permitted hereunder, the Seller’s legal name is as set forth in this Agreement.  Except as permitted hereunder, the Seller has not changed its name since its formation; does not have tradenames, fictitious names, assumed names or “doing business as” names.  The chief executive office of the Seller (and the location of the Seller’s records regarding the Sale Portfolio (other than those delivered to the Collateral Custodian)) is at the address of the Seller set forth in Section 10.5 hereto.  The Seller’s only jurisdiction of formation is Delaware, and, except as permitted hereunder, Seller has not changed its jurisdiction of formation.

 

(i)             Bulk Sales .  The execution, delivery and performance of this Agreement and the transactions contemplated hereby do not require compliance with any “bulk sales” act or similar law by the Seller.

 

(j)             Solvency .  The Seller is not the subject of any Bankruptcy Proceedings or Bankruptcy Event.  The Seller is solvent and will not become insolvent after giving effect to the transactions contemplated by this Agreement and the other Transaction Documents.  The Seller, after giving effect to the transactions contemplated by this Agreement and the other Transaction Documents, will have an adequate amount of capital to conduct its business in the foreseeable future.

 

(k)            Selection Procedures .  No procedures believed by the Seller to be adverse to the interests of the Purchaser were utilized by the Seller in identifying and/or selecting the Eligible Loan Assets included in the Sale Portfolio.

 

(l)             Compliance with Laws .  The Seller has complied in all material respects with all Applicable Law to which it may be subject, and no Sale Portfolio contravenes any Applicable Law.

 

(m)           Taxes .  The Seller has filed or caused to be filed all tax returns that are required to be filed by it.  The Seller has paid or made adequate provisions for the payment of all taxes and all assessments made against it or any of its property (other than any amount of tax the validity of which is currently being contested in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of the Seller), and no tax lien has been filed and, to the Seller’s knowledge, no claim is being asserted, with respect to any such tax, assessment or other charge.

 

(n)            Exchange Act Compliance; Regulations T, U and X .  None of the transactions contemplated herein or in the other Transaction Documents (including, without

 

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limitation, the use of the proceeds from the Sale of the Sale Portfolio) will violate or result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.  The Seller does not own or intend to carry or purchase, and no proceeds from the Sale of the Sale Portfolio will be used to carry or purchase, any Margin Stock or to extend “purpose credit” within the meaning of Regulation U.

 

(o)            Second Tier Loan Assignments .  Each Second Tier Loan Assignment is accurate in all respects.

 

(p)            No Liens, Etc .  The Sale Portfolio to be acquired by Purchaser hereunder is owned by the Seller free and clear of any Lien, security interest, charge or encumbrance (subject only to Permitted Liens), and the Seller has the full right, limited liability company power and lawful authority to Sell the same and interests therein and, upon the Sale thereof hereunder, the Purchaser will have acquired good and marketable title to (subject to Section 10.20) and a valid and perfected ownership interest in such Sale Portfolio, free and clear of any Lien, security interest, charge or encumbrance (subject only to Permitted Liens); provided that if such item of Sale Portfolio contains a restriction of transferability, the applicable Loan Agreement provides that any consents necessary for future assignments shall not be unreasonably withheld by the applicable Obligor and/or agent, and the rights to enforce rights and remedies in respect of the same under the applicable Loan Agreement inure to the benefit of the holder of such Loan Asset (subject to the rights of any applicable agent or other lenders).  No effective financing statement reflecting the Seller or the Seller’s predecessor in interest, as a “Debtor”, or other instrument similar in effect covering all or any part of any Sale Portfolio Purchased hereunder is on file in any recording office, except such as may have been filed in favor of the Trustee as “Secured Party” or “Assignee”, in each case, for the benefit of the Secured Parties pursuant to the Amended and Restated Sale and Servicing Agreement.

 

(q)            Information True and Correct .  All information heretofore furnished by or on behalf of the Seller to the Purchaser or any assignee thereof in connection with this Agreement or any transaction contemplated hereby is true and complete and does not omit to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading; provided that, solely with respect to written or electronic information furnished by the Seller which was provided to the Seller from an Obligor with respect to a Loan Asset, such information need only be accurate, true and correct to the knowledge of the Seller; provided further , that the foregoing proviso shall not apply to any information presented in a Servicer’s Certificate, Servicing Report, Notice of Borrowing or Borrowing Base Certificate.

 

(r)             ERISA Compliance .  The present value of all benefits vested under all Pension Plans does not exceed the value of the assets of the Pension Plan allocable to such vested benefits (based on the value of such assets as of the last annual valuation date).  No prohibited transactions, failure to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, withdrawals or reportable events have occurred with respect to any Pension Plans that, in the aggregate, could subject the Seller to any material tax, penalty or other liability.  No notice of intent to terminate a Pension Plan has been filed, nor has any Pension Plan been

 

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terminated under Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty Corporation instituted proceedings to terminate, or appoint a trustee to administer, a Pension Plan and no event has occurred or condition exists that might constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan.

 

(s)            Investment Company Status .  The Seller is not required to register as an “investment company” under the provisions of the 1940 Act.

 

(t)             Intent of the Seller .  The Seller has not sold, contributed, transferred, assigned or otherwise conveyed any interest in any Sale Portfolio to the Purchaser with any intent to hinder, delay or defraud any of the Seller’s creditors.

 

(u)            Value Given .  The Seller has received reasonably equivalent value from the Purchaser in exchange for the Sale of such Sale Portfolio Sold hereunder.  No such Sale has been made for or on account of an antecedent debt owed by the Seller and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.

 

(v)            Accounting .  Other than for tax and consolidated accounting purposes, the Seller will not account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than as a sale of the Sale Portfolio by the Seller to the Purchaser.

 

(w)           No Broker-Dealers .  The Seller is not a broker-dealer or subject to the Securities Investor Protection Act of 1970, as amended.

 

(x)             Special Purpose Entity .  The Purchaser is an entity with assets and liabilities separate and distinct from those of the Seller and any Affiliates thereof, and the Seller hereby acknowledges that the Agent, the Note Purchaser, the Trustee and the other Secured Parties are entering into the transactions contemplated by the Amended and Restated Sale and Servicing Agreement in reliance upon the Purchaser’s identity as a legal entity that is separate from the Seller and from each other Affiliate of the Seller.  Therefore, from and after the date of execution and delivery of this Agreement, the Seller shall take all reasonable steps, including, without limitation, all steps that the Agent, the Note Purchaser and the Trustee may from time to time reasonably request, to maintain the Purchaser’s identity as a separate legal entity and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof and not just a division of the Seller or any such other Affiliate (other than for tax purposes).  Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller shall take all reasonable steps to ensure that the Purchaser has not and will not take, refrain from taking, or fail to take (as applicable) any action described in Section 9(j) of its operating agreement and Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b) of the Amended and Restated Sale and Servicing Agreement.

 

(y)            Sale Agreement .  This Agreement and the Second Tier Loan Assignments contemplated herein are the only agreements or arrangements pursuant to which the Seller Sells the Sale Portfolio Sold by it to the Purchaser.

 

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(z)             Security Interest .

 

(i)             This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Sale Portfolio in favor of the Purchaser, which security interest is prior to all other Liens (except for Permitted Liens), and is enforceable as such against creditors of and purchasers from the Seller;

 

(ii)            the Loan Assets, along with the related Loan Asset Files, constitute either a “general intangible,” an “instrument,” an “account,” “securities entitlement,” “tangible chattel paper”, “certificated security,” “uncertificated security,” “supporting obligation,” or “insurance” (each as defined in the applicable UCC), real property and/or such other category of collateral under the applicable UCC as to which the Seller has complied with its obligations under this Section 4.1(z) .

 

(iii)           the Seller owns and has good and marketable title to the Sale Portfolio (subject to Section 10.20 ) Sold by it to the Purchaser hereunder on such Purchase Date, free and clear of any Lien (other than Permitted Liens) of any Person;

 

(iv)           the Seller has received all consents and approvals required by the terms of any Loan Asset, to the Sale thereof and the granting of a security interest in the Loan Assets hereunder to the Purchaser;

 

(v)            the Seller has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in that portion of the Sale Portfolio in which a security interest may be perfected by filing granted hereunder to the Purchaser;  provided that filings in respect of real property shall not be required;

 

(vi)           other than (i) as expressly permitted by the terms of this Agreement and the Amended and Restated Sale and Servicing Agreement and (ii) the security interest granted to the Purchaser, the Seller has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Sale Portfolio.  The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the Sale Portfolio other than any financing statement (A) relating to the security interest granted to the Purchaser under this Agreement, (B) relating to the closing of a Permitted Securitization contemplated by Section 2.07(c) of the Amended and Restated Sale and Servicing Agreement or (C) that has been terminated and/or fully and validly assigned to the Trustee on or prior to the date hereof.  The Seller is not aware of the filing of any judgment or tax lien filings against the Seller;

 

(vii)          all original executed copies of each underlying promissory note or copies of each Loan Asset Register, as applicable, that constitute or evidence each Loan Asset have been, or subject to the delivery requirements contained herein, will be delivered to the Collateral Custodian;

 

(viii)         other than in the case of Noteless Loan Assets, the Seller has received, or subject to the delivery requirements herein will receive, a written acknowledgment from the Collateral Custodian that the Collateral Custodian, as the

 

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bailee of the Trustee, is holding the underlying promissory notes that constitute or evidence the Loan Assets solely on behalf of and for the Trustee, for the benefit of the Secured Parties; provided that the acknowledgement of the Collateral Custodian set forth in Section 13.11 of the Amended and Restated Sale and Servicing Agreement may serve as such acknowledgement;

 

(ix)            none of the underlying promissory notes or Loan Asset Registers, as applicable, that constitute or evidence the Loan Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Trustee, on behalf of the Secured Parties;

 

(x)             with respect to any Sale Portfolio that constitutes a “certificated security”, such certificated security has been delivered to the Collateral Custodian, on behalf of the Secured Parties and, if in registered form, has been specifically Indorsed to the Trustee, for the benefit of the Secured Parties, or in blank by an effective Indorsement or has been registered in the name of the Trustee, for the benefit of the Secured Parties, upon original issue or registration or transfer by the Purchaser of such certificated security; and

 

(xi)            with respect to any Sale Portfolio that constitutes an “uncertificated security”, that the Seller shall cause the issuer of such uncertificated security to register the Trustee, on behalf of the Secured Parties, as the registered owner of such uncertificated security.

 

(aa)          Credit Policy .  The Seller has complied in all material respects with the Credit Policy with respect to all of the Sale Portfolio.

 

(bb)          Notice to Agents and Obligors .  The Seller has directed any agent, administrative agent or Obligor for any Loan Asset to remit all payments and collections with respect to such Loan Asset directly to (i) the Concentration Account (solely prior to the Account Transition Deadline) or (ii) the Collection Account.

 

(cc)          Collections .  The Concentration Account and the Collection Account are the only accounts to which Obligors have been instructed to send Interest Collections and Principal Collections on the Sale Portfolio Sold by the Seller.  After the Account Transition Deadline, the Collection Account is the only account to which Obligors have been instructed to send Interest Collections and Principal Collections on the Sale Portfolio Sold by the Seller.  The Seller acknowledges that all Interest Collections and Principal Collections received by it or its Affiliates with respect to the Sale Portfolio Purchased by the Purchaser as contemplated by this Agreement are held and shall be held in trust for the benefit of the Purchaser (or its assignees) until deposited into the Collection Account as required by the Amended and Restated Sale and Servicing Agreement.

 

(dd)          Set—Off, Etc .  No Sale Portfolio has been compromised, adjusted, extended, satisfied, subordinated, rescinded, set—off or modified by the Seller or the Obligor thereof, and no Sale Portfolio is subject to compromise, adjustment, extension, satisfaction, subordination, rescission, set—off, counterclaim, defense, abatement, suspension, deferment,

 

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deduction, reduction, termination or modification, whether arising out of transactions concerning the Sale Portfolio or otherwise, by the Seller or the Obligor with respect thereto, except for amendments, extensions or modifications to such Sale Portfolio otherwise permitted under Section 6.04(a) of the Amended and Restated Sale and Servicing Agreement and in accordance with the Credit Policy and the Servicing Standard.

 

(ee)          Full Payment .  As of the related Purchase Date thereof, the Seller has no knowledge of any fact which should lead it to expect that any Sale Portfolio will not be paid in full.

 

(ff)            Ownership of the Purchaser .  The Seller owns, directly or indirectly, 100% of the membership interests of the Purchaser, free and clear of any Lien (other than liens pursuant to the Pledge Agreement).  Such membership interests are validly issued, fully paid and non—assessable, and there are no options, warrants or other rights to acquire membership interests of the Purchaser.

 

(gg)          Confirmation from the Seller .  The Seller has provided written confirmation to the Purchaser that the Seller will not cause the Purchaser to file a voluntary petition under the Bankruptcy Code.

 

(hh)          Environmental .  With respect to each item of Underlying Collateral as of the Cut-Off Date for the Loan Asset related to such Underlying Collateral, to the actual knowledge of a Responsible Officer of the Seller (a) the related Obligor’s operations comply in all material respects with all applicable Environmental Laws; (b) none of the related Obligor’s operations is the subject of a Federal or state investigation evaluating whether any remedial action, involving expenditures, is needed to respond to a release of any Hazardous Materials into the environment; and (c) the related Obligor does not have any material contingent liability in connection with any release of any Hazardous Materials into the environment.  As of the Cut-Off Date for the Loan Asset related to such Underlying Collateral, the Seller has not received any written or verbal notice of, or inquiry from any Governmental Authority regarding, any violation, alleged violation, non-compliance, liability or potential liability regarding environmental matters or compliance with Environmental Laws with regard to any of the Underlying Collateral, nor does the Seller have knowledge or reason to believe that any such notice will be received or is being threatened.

 

(ii)            USA PATRIOT Act .  Neither the Seller nor any Affiliate of the Seller is (i) a country, territory, organization, person or entity named on an Office of Foreign Asset Control (OFAC) list, (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act, i.e ., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; or (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due to money laundering concerns.

 

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(jj)            Seller Termination Event .  No event has occurred which constitutes a Seller Termination Event and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both would constitute a Seller Termination Event (other than as previously disclosed to the Agent as such).

 

(kk)          Opinion .  The statements of fact in the section heading “Assumptions” in the non-consolidation and true sale opinion (the “ Non-Consolidation/True Sale Opinion ”) of Latham & Watkins LLP, dated as of the date hereof are true and correct in all material respects.

 

(ll)            Accuracy of Representations and Warranties .  Each representation or warranty by the Seller contained (i) herein or (ii) in any certificate or other document furnished by the Seller to the Purchaser or the Agent in writing pursuant hereto or in connection herewith is, as of its date, true and correct in all material respects.

 

(mm)        Representations and Warranties for Benefit of the Purchaser’s Assignees .  The Seller hereby makes each representation and warranty contained in this Agreement and the other Transaction Documents to which it is a party and that have been executed and delivered on or prior to such Purchase Date to, and for the benefit of the Purchaser (and its assignees), the Agent, the Note Purchaser and the Trustee as if the same were set forth in full herein.

 

It is understood and agreed that the representations and warranties provided in this Section 4.1 shall survive (x) the Sale of the Sale Portfolio to the Purchaser and (y) the grant of a first priority perfected security interest in, to and under the Sale Portfolio pursuant to the Amended and Restated Sale and Servicing Agreement by the Purchaser.  Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the other and to the Agent immediately upon obtaining knowledge of such breach.

 

Section 4.2.             Representations and Warranties of the Seller Relating to the Agreement and the Sale Portfolio .  The Seller makes the following representations and warranties, on which the Purchaser relies in acquiring the Sale Portfolio Purchased hereunder and each of the Secured Parties relies upon in entering into the Amended and Restated Sale and Servicing Agreement.  As of each Purchase Date, the Seller represents and warrants to the Purchaser for the benefit of the Purchaser and each of its successors and assigns that:

 

(a)            Binding Obligation, Valid Transfer and Security Interest .  This Agreement, together with the Second Tier Loan Assignments, constitutes a valid transfer to the Purchaser of all right, title and interest in, to and under all Sale Portfolio, free and clear of any Lien of any Person claiming through or under the Seller or its Affiliates, except for Permitted Liens.  If the conveyances contemplated by this Agreement are determined to be a transfer for security, then this Agreement constitutes a grant of a security interest in all Sale Portfolio to the Purchaser which upon the delivery of the Required Loan Documents and the filing of the financing statements shall be a first priority perfected security interest in all Sale Portfolio, subject only to Permitted Liens.  Neither the Seller nor any Person claiming through or under the Seller shall have any claim to or interest in the Controlled Accounts; provided if this Agreement constitutes only a grant of a security interest in such property, then  the Seller shall have the rights in such property as a debtor for purposes of the UCC.

 

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(b)            Eligibility of Loan Assets .  As of each Purchase Date, (i)  Schedule I is an accurate and complete listing of all the Sale Portfolio as of the related Cut—Off Date and the information contained therein with respect to the identity of such Sale Portfolio and the amounts owing thereunder is true and correct as of the related Cut—Off Date, (ii) each item of the Sale Portfolio Purchased by the Purchaser hereunder is an Eligible Loan Asset, and (iii) with respect to each item of the Sale Portfolio all consents, licenses, approvals or authorizations of or registrations or declarations of any Governmental Authority or any Person required to be obtained, effected or given by the Seller in connection with the transfer of an ownership interest or security interest in each item of Sale Portfolio to the Purchaser have been duly obtained, effected or given and are in full force and effect.

 

(c)            No Fraud .  Each Eligible Loan Asset was originated without any fraud or material misrepresentation by the Seller or, to the best of the Seller’s knowledge, on the part of the Obligor.

 

It is understood and agreed that the representations and warranties provided in this Section 4.2 shall survive (x) the Sale of the Sale Portfolio to the Purchaser, (y) the grant of a first priority perfected security interest in, to and under the Sale Portfolio pursuant to the Amended and Restated Sale and Servicing Agreement by the Purchaser and (z) the termination of this Agreement, the First Tier Purchase and Sale Agreement and the Amended and Restated Sale and Servicing Agreement.  Upon discovery by the Seller or the Purchaser of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof to the other and to the Agent immediately upon obtaining knowledge of such breach.

 

Section 4.3.             Representations and Warranties of the Purchaser .  The Purchaser makes the following representations and warranties, on which the Seller relies in selling Sale Portfolio to the Purchaser hereunder.  Such representations are made as of the execution and delivery of this Agreement, but shall survive until the Collection Date, the Sale of Sale Portfolio hereunder, and the grant of a security interest in such Sale Portfolio by the Purchaser to the Trustee, on behalf of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement.

 

(a)            Organization and Good Standing .  The Purchaser has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of Delaware or such other jurisdiction as permitted under the terms of the Transaction Documents, with the power and authority to own or lease its properties and to conduct its business as such properties are currently owned and such business is currently conducted, and had at all relevant times, and has, all necessary power, authority and legal right to acquire and own the Sale Portfolio.

 

(b)            Due Qualification .  The Purchaser is duly qualified to do business as a limited liability company in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, licenses and/or approvals.

 

(c)            Power and Authority; Due Authorization; Execution and Delivery .  The Purchaser has all necessary power, authority and legal right to execute and deliver this

 

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Agreement and to carry out the terms hereof and to acquire the Sale Portfolio; and the execution, delivery and performance of this Agreement and all of the documents required pursuant hereto have been duly authorized by the Purchaser by all necessary limited liability company action.

 

(d)            No Consent Required .  The Purchaser is not required to obtain the consent of any other Person, or any consent, license, approval or authorization or registration or declaration with, any governmental authority, bureau or agency in connection with the execution, delivery or performance of this Agreement, each Second Tier Loan Assignment and the Transaction Documents to which it is a party, except for such as have been obtained, effected or made.

 

(e)            Binding Obligation .  This Agreement constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms, subject, as to enforceability, to applicable Bankruptcy Laws and general principles of equity.

 

(f)             No Violation .  The consummation of the transactions contemplated by this Agreement, each Second Tier Loan Assignment and the other Transaction Documents to which it is a party and the fulfillment of the terms hereof and thereof will not (i) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time or both) a default under, the Purchaser’s certificate of formation, operating agreement or any contractual obligation of the Purchaser, (ii) result in the creation or imposition of any Lien (other than Permitted Liens) upon any of the Purchaser’s properties pursuant to the terms of any such contractual obligation, other than this Agreement, or (iii) violate any Applicable Law.

 

(g)            Value Given .  The Purchaser has given reasonably equivalent value to the Seller in exchange for the Sale of such Sale Portfolio, which amount the Purchaser hereby agrees is the fair market value of such Sale Portfolio.  No such Sale has been made for or on account of an antecedent debt owed by the Seller and no such transfer is or may be voidable or subject to avoidance under any section of the Bankruptcy Code.

 

(h)            No Proceedings .  No litigation or administrative proceeding of or before any court, tribunal or governmental body is presently pending or, to the knowledge of the Purchaser, threatened against the Purchaser or any properties of the Purchaser or with respect to this Agreement, any Second Tier Loan Assignment or any other Transaction Document to which the Purchaser is a party, which, if adversely determined, could have a material adverse effect on the ability of the Purchaser to perform its obligations under this Agreement, any Second Tier Loan Assignment or any Transaction Document to which the Purchaser is a party or any of the other applicable documents forming part of the Sale Portfolio.

 

(i)             Sale Agreement .  This Agreement and the Second Tier Loan Assignments contemplated herein are the only agreements or arrangements pursuant to which the Purchaser Purchases the Sale Portfolio Sold to it by the Seller.

 

(j)             Investment Company Act .  The Purchaser is not required to register as an “investment company” under the provisions of the 1940 Act.

 

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(k)            Compliance with Law .  The Purchaser has complied in all material respects with all Applicable Law to which it may be subject, and no Sale Portfolio contravenes any Applicable Law.

 

(l)             Opinions .  The statements of fact in the section heading “Assumptions” in the Non-Consolidation/True Sale Opinion are true and correct in all material respects.

 

ARTICLE V.

 

COVENANTS OF THE SELLER

 

Section 5.1.            Protection of Title of the Purchaser .

 

(a)            On or prior to the Restatement Date, the Seller shall have filed or caused to be filed UCC-1 financing statements, naming the Seller as “Debtor/Seller”, naming the Purchaser as “Secured Party/Buyer”, and naming the Trustee, for the benefit of the Secured Parties, as “Total Assignee”, and describing the Sale Portfolio to be acquired by the Purchaser, with the office of the Secretary of State of the state of the jurisdiction of organization of the Seller.  From time to time thereafter, the Seller shall file such financing statements and cause to be filed such continuation statements, all in such manner and in such places as may be required by law (or deemed desirable by the Purchaser or any assignee thereof) to fully perfect, preserve, maintain and protect the ownership interest of the Purchaser under this Agreement and the security interest of the Trustee for the benefit of the Secured Parties under the Amended and Restated Sale and Servicing Agreement, in the Sale Portfolio acquired by the Purchaser hereunder, as the case may be, and in the proceeds thereof.  The Seller shall deliver (or cause to be delivered) to the Purchaser, the Trustee, the Collateral Custodian, the Servicer, the Note Purchaser and the Agent file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing.  The Seller agrees that it will from time to time, at its expense, take all actions, that the Purchaser, the Trustee or the Agent may reasonably request in order to perfect, protect or more fully evidence the Purchases hereunder and the security and/or interest granted in the Sale Portfolio, or to enable the Purchaser, the Trustee, the Agent or the Secured Parties to exercise and enforce their rights and remedies hereunder or under any Transaction Document.

 

(b)            On or prior to each Purchase Date hereunder, the Seller shall take all steps necessary under all Applicable Law in order to Sell to the Purchaser the Sale Portfolio being acquired by the Purchaser on such Purchase Date to the Purchaser so that, upon the Sale of such Sale Portfolio from the Seller to the Purchaser pursuant to the terms hereof on such Purchase Date, the Purchaser will have acquired good and marketable title to (subject to Section 10.20 ) and a valid and perfected ownership interest in such Sale Portfolio, free and clear of any Lien, security interest, charge or encumbrance or restrictions on transferability (subject only to Permitted Liens).  On or prior to each Purchase Date hereunder, the Seller shall take all steps required under Applicable Law in order for the Purchaser to grant to the Trustee, for the benefit of the Secured Parties, a first priority perfected security interest (subject only to Permitted Liens) in the Sale Portfolio being Purchased by the Purchaser on such Purchase Date and, from time to time thereafter, the Seller shall take all such actions as may be required by Applicable Law to fully preserve, maintain and protect the Purchaser’s ownership interest in, and the Trustee’s first

 

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priority perfected security interest in (subject only to Permitted Liens), the Sale Portfolio which have been acquired by the Purchaser hereunder.

 

(c)            The Seller shall direct any agent or administrative agent for any Sale Portfolio originated or acquired by the Seller to remit all payments and collections with respect to such Sale Portfolio and direct the Obligor with respect to such Sale Portfolio to remit all such payments and collections directly to (i) solely prior to the Account Transition Deadline, the Concentration Account or (ii) the Collection Account.  The Seller will not make any change, or permit the Servicer to make any change, in its instructions to Obligors regarding payments to be made to the Seller or the Servicer or payments to be made to the Concentration Account (other than instructions to remit payments to the Collection Account), unless the Purchaser and the Agent have consented to such change.  At all times prior to the Account Termination Deadline, the Seller shall cause the Concentration Account to be subject to the Intercreditor Agreement that is in full force and effect as of the date hereof.  The Seller shall direct or cause only funds constituting payments and collections relating to the Sale Portfolio to be deposited into the Collection Account.  In the event any payments relating to any Sale Portfolio are remitted directly to the Seller or any Affiliate of the Seller, the Seller will remit (or will cause all such payments to be remitted) directly to the Collection Account within two Business Days following receipt thereof, and, at all times prior to such remittance, the Seller will itself hold or, if applicable, will cause such payments to be held in trust for the exclusive benefit of the Purchaser and its assignees.  Until so deposited, all such Interest Collections and Principal Collections shall be held in trust for the Purchaser or its assignees by the Seller.

 

(d)            At any time after the occurrence or declaration of the Facility Maturity Date, the Purchaser, the Trustee or the Agent may direct the Seller or the Servicer to notify the Obligors, at Seller’s expense, of the Purchaser’s (or its assigns) or the Secured Parties’ interest in the Sale Portfolio under this Agreement and may direct that payments of all amounts due or that become due under any or all of the Sale Portfolio be made directly to the Purchaser (or its assigns), the Trustee or the Agent.

 

(e)            The Seller shall, not earlier than six months and not later than three months prior to the fifth anniversary of the date of filing of the financing statement referred to in Section 3.1 or any other financing statement filed pursuant to this Agreement or in connection with any Purchase hereunder, unless the Collection Date shall have occurred:

 

(i)             file or cause to be filed an appropriate continuation statement with respect to such financing statement; and

 

(ii)            deliver or cause to be delivered to the Purchaser, the Trustee and the Agent an opinion of the counsel for Seller, in form and substance reasonably satisfactory to the Purchaser, the Trustee and the Agent, confirming and updating the opinion delivered pursuant to Section 3.1 with respect to perfection and otherwise to the effect that the security interest hereunder continues to be an enforceable and perfected security interest, subject to no other Liens of record except as specified therein, provided herein or otherwise permitted hereunder, which opinion may contain usual and customary assumptions, limitations and exceptions.

 

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(f)             The Seller shall not change the jurisdiction of its formation, make any change to its corporate name or use any tradenames, fictitious names, assumed names, “doing business as” names or other names unless, prior to the effective date of any such change in the jurisdiction of its formation, name change or use, the Seller receives prior written consent from the Agent of such change and delivers to the Purchaser and the Agent such financing statements as the Agent may request to reflect such name change or use, together with such Opinions of Counsel and other documents and instruments as the Agent may request in connection therewith.  The Seller will not change the location of its chief executive office unless prior to the effective date of any such change of location, the Seller notifies the Purchaser and the Agent of such change of location in writing.  The Seller will not move, or consent to the Collateral Custodian or the Servicer moving, the Required Loan Documents and Loan Asset Files from the location required under the Transaction Documents, unless 30 days prior to the effective date of any such move, the Seller notifies the Purchaser and the Agent of such move in writing.

 

(g)            The Seller shall at all times maintain each office from which it services Sale Portfolio and its principal executive office within the United States of America.

 

(h)            The Seller shall mark its master data processing records so that, from and after the time of Sale under this Agreement of Sale Portfolio to the Purchaser and the grant of a security interest in such Sale Portfolio by the Purchaser to the Trustee for the benefit of the Secured Parties under the Amended and Restated Sale and Servicing Agreement, the Seller’s master data processing records (including archives) that refer to such Sale Portfolio shall indicate clearly that such Sale Portfolio has been Purchased by the Purchaser hereunder and Pledged by the Purchaser to the Trustee, on behalf of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement.  Indication of the Trustee’s security interest for the benefit of the Secured Parties in the Sale Portfolio shall be deleted from or modified on the Seller’s computer systems when, and only when, such Sale Portfolio shall be (i) paid off by the related Obligor, (ii) purchased or substituted by the Seller in accordance with Section 6.1 or 6.2 hereof or (iii) released by the Trustee pursuant to Section 2.16 of the Amended and Restated Sale and Servicing Agreement.

 

(i)             If the Seller fails to perform any of its obligations hereunder, the Purchaser, the Trustee or the Agent may (but shall not be required to) perform, or cause performance of, such obligation; and the Purchaser’s, the Trustee’s or the Agent’s costs and expenses incurred in connection therewith shall be payable by the Seller as provided in Section 9.1 .  The Seller irrevocably authorizes the Purchaser, the Trustee or the Agent at any time and from time to time at the Purchaser’s, the Trustee’s or the Agent’s sole discretion and appoints the Purchaser, the Trustee and the Agent as its attorney—in—fact pursuant to a Power of Attorney substantially in the form of Exhibit C to act on behalf of the Seller (i) to file financing statements on behalf of the Seller, as debtor, necessary or desirable in the Purchaser’s, the Trustee’s or the Agent’s sole discretion to perfect and to maintain the perfection and priority of the interest of the Purchaser or the Trustee in the Sale Portfolio and (ii) to file a carbon, photographic or other reproduction of this Agreement or any financing statement with respect to the Sale Portfolio as a financing statement in such offices as the Purchaser, the Trustee or the Agent in their sole discretion deem necessary or desirable to perfect and to maintain the perfection and priority of the interests of the Purchaser or  the Trustee in the Sale Portfolio.  This appointment is coupled with an interest and is irrevocable.

 

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Section 5.2.             Affirmative Covenants of the Seller .

 

From the date hereof until the Collection Date:

 

(a)            Compliance with Law .  The Seller will comply in all material respects with all Applicable Law, including those applicable to the Seller as a result of its interest in the Sale Portfolio or any part thereof.

 

(b)            Preservation of Company Existence .  The Seller will preserve and maintain its limited liability company existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a limited liability company in each jurisdiction where the failure to preserve and maintain such existence, rights, franchises, privileges and qualification could reasonably be expected to have a Material Adverse Effect.

 

(c)            Performance and Compliance with Sale Portfolio .  The Seller will, at its expense, timely and fully perform and comply in all material respects with all provisions, covenants and other promises required to be observed by it under the Sale Portfolio and all other agreements related to such Sale Portfolio.

 

(d)            Keeping of Records and Books of Account .  The Seller will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Sale Portfolio in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all or any portion of the Sale Portfolio.

 

(e)            Separate Identity .  The Seller acknowledges that the Agent, the Trustee, the Note Purchaser and the other Secured Parties are entering into the transactions contemplated by this Agreement, the Amended and Restated Sale and Servicing Agreement and the other Transaction Documents in reliance upon the Purchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller.  Therefore, from and after the date of execution and delivery of this Agreement, the Seller will take all reasonable steps including, without limitation, all steps that the Agent, the Trustee, the Note Purchaser and the other Secured Parties may from time to time reasonably request to maintain the Purchaser’s identity as a legal entity that is separate from the Seller and each other Affiliate of the Seller and to make it manifest to third parties that the Purchaser is an entity with assets and liabilities distinct from those of the Seller and each other Affiliate thereof (other than for tax purposes) and not just a division of the Seller or any such other Affiliate.  Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Seller agrees that:

 

(i)             the Seller will take all other actions necessary on its part to ensure that the Purchaser is at all times in compliance with the criteria and the restrictions set forth in Section 9(j) of the limited liability company operating agreement of the Purchaser and Sections 5.01(a), 5.01(b), 5.02(a) and 5.02(b)  of the Amended and Restated Sale and Servicing Agreement;

 

(ii)            the Seller shall maintain corporate records and books of account separate from those of the Purchaser;

 

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(iii)           the annual financial statements of the Seller shall disclose the effects of the Seller’s transactions in accordance with GAAP and the annual financial statements of the Seller shall not reflect in any way that the assets of the Purchaser, including, without limitation, the Sale Portfolio, could be available to pay creditors of the Seller or any other Affiliate of the Seller;

 

(iv)           the resolutions, agreements and other instruments underlying the transactions described in this Agreement shall be continuously maintained by the Seller as official records;

 

(v)            the Seller shall maintain an arm’s—length relationship with the Purchaser and will not hold itself out as being liable for the debts of the Purchaser;

 

(vi)           the Seller shall keep its assets and its liabilities wholly separate from those of the Purchaser; and

 

(vii)          the Seller will avoid the appearance, and promptly correct any known misperception of any of the Seller’s creditors, that the assets of the Purchaser are available to pay the obligations and debts of the Seller.

 

(f)             Credit Policy .  The Seller will (i) comply in all material respects with the Credit Policy in regard to the Sale Portfolio and (ii) furnish to the Purchaser, the Trustee, the Agent and the Note Purchaser, prior to its effective date, prompt written notice of any changes in the Credit Policy.

 

(g)            Taxes .  The Seller will file or cause to be filed its tax returns and pay any and all Taxes imposed on it or its property as required by the Transaction Documents (except as contemplated in Section 4.1(m) ).

 

(h)            Cooperation with Requests for Information or Documents .  The Seller will cooperate fully with all reasonable requests of the Purchaser and its assigns regarding the provision of any information or documents, necessary or desirable, including the provision of such information or documents in electronic or machine—readable format, to allow each of the Purchaser and its assignees to carry out their responsibilities under the Transaction Documents.

 

(i)             Payment, Performance and Discharge of Obligations .  The Seller will pay, perform and discharge all of its obligations and liabilities, including, without limitation, all taxes, assessments and governmental charges upon its income and properties, when due, unless and only to the extent that such obligations, liabilities, taxes, assessments and governmental charges shall be contested in good faith and by appropriate proceedings and that, to the extent required by GAAP, proper and adequate book reserves relating thereto are established by the Seller and then only to the extent that a bond is filed in cases where the filing of a bond is necessary to avoid the creation of a Lien against any of its properties.

 

(j)             Notices .  The Seller will furnish to the Purchaser, the Trustee, the Agent and the Note Purchaser:

 

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(i)             Income Tax Liability .  Telephonic or facsimile notice within 10 Business Days (confirmed in writing within five Business Days thereafter) of the receipt of revenue agent reports or other written proposals, determinations or assessments of the Internal Revenue Service or any other taxing authority which propose, determine or otherwise set forth positive adjustments (i) to the Tax liability of Ares or any “affiliated group” (within the meaning of Section 1504(a)(l) of the Code) of which Ares is a member in an amount equal to or greater than $25,000,000 in the aggregate, or (ii) to the Tax liability of the Purchaser in an amount equal to or greater than $1,000,000 in the aggregate.  Any such notice shall specify the nature of the items giving rise to such adjustments and the amounts thereof;

 

(ii)            Auditors’ Management Letters .  Promptly after the receipt thereof, any auditors’ management letters that are received by the Seller or by its accountants;

 

(iii)           Representations and Covenants .  The Seller shall promptly, upon receipt of notice or discovery thereof, notify the Purchaser, the Trustee, the Agent and the Note Purchaser (i) if any representation or warranty set forth in Section 4.1 or Section 4.2 was incorrect at the time it was given or deemed to have been given or (ii) of the breach of any covenant under Section 5.1, Section 5.2 or Section 5.3 and at the same time deliver to the Purchaser, the Trustee, the Agent and the Note Purchaser a written notice setting forth in reasonable detail the nature of such facts and circumstances.  In particular, but without limiting the foregoing, the Seller shall notify the Purchaser, the Trustee, the Agent and the Note Purchaser in the manner set forth in the preceding sentence before any Purchase Date of any facts or circumstances within the knowledge of the Seller which would render any of the said representations and warranties untrue at the date when such representations and warranties were made or deemed to have been made;

 

(iv)           ERISA .  Promptly after receiving notice of any “reportable event” (as defined in Title IV of ERISA, other than an event for which the reporting requirements have been waived by regulations) with respect to the Seller (or any Affiliate thereof), a copy of such notice;

 

(v)            Proceedings .  As soon as possible and in any event within three Business Days, after the Seller receives notice or obtains knowledge thereof, the Seller will provide the Purchaser and the Agent with notice of any settlement of, material judgment (including a material judgment with respect to the liability phase of a bifurcated trial) in or commencement of any material labor controversy, material litigation, material action, material suit or material proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Sale Portfolio, the Transaction Documents, the Trustee’s, for the benefit of the Secured Parties, interest in the Sale Portfolio, or the Purchaser, the Servicer, the Seller or the Transferor or any of their Affiliates.  For purposes of this Section 5.2(j), (i) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Sale Portfolio, the Transaction Documents, the Trustee’s, for the benefit of the Secured Parties, interest in the Sale Portfolio, or the Purchaser or the Seller in excess of $1,000,000 shall be deemed to be material and (ii) any settlement, judgment, labor controversy, litigation, action, suit or proceeding affecting the Servicer or the Transferor

 

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or any of their Affiliates (other than the Purchaser or the Seller) in excess of $25,000,000 shall be deemed to be material;

 

(vi)           Material Events .  Promptly upon becoming aware thereof, of any event or other circumstance that is reasonably likely to have a Material Adverse Effect;

 

(vii)          Events of Default .  The Seller will provide the Purchaser, the Agent, the Trustee and the Note Purchaser with immediate written notice of the occurrence of each Event of Default and each Unmatured Event of Default of which the Seller has knowledge or has received notice.  In addition, no later than two Business Days following the Seller’s knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default, the Seller will provide to the Purchaser, the Trustee, the Agent and the Note Purchaser a written statement of a Responsible Officer of the Seller setting forth the details of such event and the action that the Seller proposes to take with respect thereto; and

 

(viii)         Seller Termination Event and Seller Purchase Event .  The Seller will provide the Purchaser, the Agent, the Trustee and the Note Purchaser with immediate written notice of the occurrence of each Seller Termination Event and each Seller Purchase Event of which the Seller has knowledge or has received notice.

 

(k)            Other .  The Seller will furnish to the Purchaser, the Trustee, the Agent and the Note Purchaser promptly, from time to time such other information, documents, records or reports respecting the Sale Portfolio or the condition or operations, financial or otherwise, of the Seller as the Purchaser, the Trustee, the Agent and the Note Purchaser may from time to time reasonably request in order to protect the interests of the Purchaser, the Agent, the Trustee, the Note Purchaser or the Secured Parties under or as contemplated by this Agreement and the other Transaction Documents.

 

(l)             Costs and Expenses .  The Seller shall pay all reasonable, documented costs and disbursements in connection with the performance of its obligations hereunder.

 

(m)           Annual Certificates .  On each anniversary of the Restatement Date, the Seller shall deliver an Officer’s Certificate, in form and substance acceptable to the Purchaser and the Agent, providing (i) a certification, based upon a review and summary of UCC search results reasonably satisfactory to the Purchaser and the Agent, that there is no other interest in the Sale Portfolio perfected by filing of a UCC financing statement other than in favor of the Purchaser and the Trustee pursuant to the terms of the Transaction Documents and (ii) a certification, based upon a review and summary of tax and judgment lien searches satisfactory to the Purchaser and the Agent, that there is no other interest in the Sale Portfolio based on any tax or judgment lien.

 

(n)            Opinion .  The Seller will comply in all material respects with any requirements for future action set forth in the section heading “Assumptions” in the Non-Consolidation/True Sale Opinion, with respect to the Transaction Documents.

 

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Section 5.3.             Negative Covenants of the Seller .

 

From the date hereof until the Collection Date:

 

(a)            Other Business .  Seller will not (i) engage in any business other than the transactions contemplated by the Transaction Documents, (ii) incur any Indebtedness, obligation, liability or contingent obligation of any kind other than pursuant to the Transaction Documents, or (iii) form any Subsidiary or make any investments in any other Person (other than the Purchaser and the Sale Portfolio).

 

(b)            Sale Portfolio Not to be Evidenced by Instruments .  The Seller will take no action to cause any Sale Portfolio that is not, as of the related Purchase Date, as the case may be, evidenced by an instrument, to be so evidenced except in connection with the enforcement or collection of such Sale Portfolio.

 

(c)            Security Interests .  Except as otherwise permitted herein and in the Amended and Restated Sale and Servicing Agreement, the Seller will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any Sale Portfolio Sold by the Seller to the Purchaser hereunder, whether now existing or hereafter transferred hereunder, or any interest, therein, and the Seller will not sell, pledge, assign or suffer to exist any Lien (except for Permitted Liens) on its interest in the Sale Portfolio Sold by the Seller to the Purchaser hereunder.  The Seller will promptly notify the Purchaser, the Trustee, the Note Purchaser and the Agent of the existence of any Lien on any Sale Portfolio and the Seller shall defend the right, title and interest of the Purchaser and the Trustee, on behalf of the Secured Parties, in, to and under the Sale Portfolio against all claims of third parties; provided , that nothing in this Section 5.3(c) shall prevent or be deemed to prohibit the Seller from suffering to exist Permitted Liens upon any of the Sale Portfolio.

 

(d)            Mergers, Acquisitions, Sales, Etc .  The Seller shall not change its organizational structure, enter into any transaction of merger or consolidation or amalgamation, or asset sale (other than pursuant to Section 2.07 of the Amended and Restated Sale and Servicing Agreement), or liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) without the prior written consent of the Agent.

 

(e)            Transfer of Purchaser Membership Interests . The Seller shall not transfer, pledge, participate or otherwise encumber its membership interests in the Purchaser without the prior written consent of the Agent and the delivery of an acceptable (in the Agent’s reasonable discretion) non-consolidation opinion (except pursuant to the terms of the Pledge Agreement).

 

(f)             Restricted Payments .  The Seller shall not cause or permit the Purchaser to make any Purchaser Restricted Junior Payment, except that, so long as no Event of Default has occurred or would result therefrom and no Unmatured Event of Default has occurred and is continuing or would result therefrom, the Purchaser may declare and make distributions to its member on its membership interests.

 

(g)            Accounting of Purchases .  Other than for tax and consolidated accounting purposes, the Seller will not account for or treat (whether in financial statements or otherwise) the transactions contemplated hereby in any manner other than as a sale of the Loan Assets to the Purchaser.

 

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(h)            ERISA Matters .  The Seller will not (a) engage, and will exercise its best efforts not to permit any ERISA Affiliate to engage, in any prohibited transaction (within the meaning of ERISA Section 406(a) or (b) or Code Section 4975) for which an exemption is not available or has not previously been obtained from the United States Department of Labor, (b) fail to meet the minimum funding standard set forth in Section 302(a) of ERISA and Section 412(a) of the Code with respect to any Benefit Plan other than a Multiemployer Plan, (c) fail to make any payments to a Multiemployer Plan that the Seller or any ERISA Affiliate may be required to make under the agreement relating to such Multiemployer Plan or any law pertaining thereto, (d) terminate any Benefit Plan so as to result, directly or indirectly in any liability to the Seller, or (e) permit to exist any occurrence of any reportable event described in Title IV of ERISA with respect to any Pension Plan other than an event for which the reporting requirements have been waived by regulations.

 

(i)             Extension or Amendment of Sale Portfolio .  The Seller will not, except as otherwise permitted in Section 6.04(a) of the Amended and Restated Sale and Servicing Agreement, extend, amend or otherwise modify, or permit the Servicer to extend, amend or otherwise modify, the terms of any Sale Portfolio.

 

(j)             Credit Policy .  The Seller will not agree to or otherwise permit to occur any change in the Credit Policy that could have a Material Adverse Effect without the prior written consent of the Agent; provided that no consent shall be required from the Agent in connection with any change mandated by Applicable Law or a Governmental Authority as evidenced by an Opinion of Counsel to that effect delivered to the Agent.

 

(k)            Limitation on Financing Activities .  The Seller shall not, directly or indirectly, advance or contribute to the Purchaser any funds pursuant to any financial accommodation.  For the avoidance of doubt, this clause (j)  shall not prohibit the Seller from contributing Loan Assets to the Purchaser as contemplated herein.

 

(l)             Organizational Documents .  The Seller will not cause or permit the Purchaser to amend, modify, waive or terminate any provision of the Purchaser’s operating agreement without the prior written consent of the Agent.

 

(m)           Tax Treatment .  The Seller shall not elect to be treated as a corporation for U.S. federal income tax purposes and shall take all reasonable steps necessary to avoid being treated as a corporation for U. S. federal income tax purposes.

 

(n)            Adverse Claims .  The Seller will not create, or participate in the creation of, or permit to exist, any Liens in relation to the Concentration Account other than in accordance with the terms of the Intercreditor Agreement.

 

(o)            Deposits to Special Accounts .  Except as otherwise contemplated by the Intercreditor Agreement, the Seller will not deposit or otherwise credit, or cause to be so deposited or credited, to the Concentration Account cash or cash proceeds other than Principal Collections and Interest Collections in respect of the Sale Portfolio.

 

(p)            Changes in Payment Instructions to Obligors .  The Seller will not add or terminate any bank as a Concentration Account Bank or the Concentration Account (as defined

 

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herein) or make any change, or permit the Purchaser to make any change, in its instructions to Obligors regarding payments to be made with respect to the Sale Portfolio to the Concentration Account Bank (other than instructions to Obligors to remit payments to the Collection Account), unless the Agent has consented to such addition, termination or change (which consent shall not be unreasonably withheld or delayed) and has received duly executed copies of the Intercreditor Agreement (incorporating appropriate amendments), with each new Concentration Account Bank being a party thereto.

 

ARTICLE VI.

REPURCHASES AND SUBSTITUTION BY THE SELLER

 

Section 6.1.             Repurchase of Loan Assets .  In the event of the occurrence of a Seller Purchase Event, the Seller will within 10 Business Days of the discovery by or notice (from any Person) to the Seller of the Seller Purchase Event, (i) purchase each Loan Asset hereunder which is affected by or related to such Seller Purchase Event from the Purchaser, and the Seller shall pay to the Purchaser (by means of a deposit to the Collection Account, provided that the excess if any of the Repurchase Price of such Loan Asset over the amount equal to the Advance Date Assigned Value of such Loan Asset multiplied by the principal balance of such Loan Asset (exclusive of Accreted Interest) as of the date of repurchase shall be paid to the Purchaser as otherwise directed by the Purchaser) the Repurchase Price of such Loan Asset as of the date of the purchase thereof from the Purchaser or (ii) subject to the satisfaction of the conditions in Section 6.2, substitute for such Loan Asset, a Substitute Eligible Loan Asset.  It is understood and agreed that the obligation of the Seller to purchase the Loan Assets or substitute a Substitute Eligible Loan Asset for the Loan Assets which are affected by or related to such Seller Purchase Event is not intended to, and shall not, constitute a guaranty of the collectability or payment of any Loan Asset which is not collected, not paid or uncollectible on account of the insolvency, bankruptcy or financial inability to pay of the related Obligor.  Upon deposit in the Collection Account of the Repurchase Price for any Loan Asset purchased by the Seller, the Purchaser shall (and shall request the Trustee to), at the sole expense of the Seller,  take such steps as may be reasonably requested by the Seller in order to Sell to the Seller all of the Purchaser’s and the Trustee’s right, title and interest in and to such Loan Asset, without recourse, representation or warranty of any kind, except as to the absence of Liens, charges or encumbrances created by or arising solely as a result of actions of the Purchaser or the Trustee.  Such Sale shall be a sale outright, and not for security.

 

Section 6.2.             Substitution of Loan Assets .

 

(a)            The Seller shall have the right, but not the obligation, subject to the prior written consent of the Agent and the Purchaser, in their sole discretion, to substitute one or more Eligible Loan Assets (“ Substitute Eligible Loan Asset ”) for a Loan Asset (each such act, a “ Substitution ”).

 

(b)            The Substitution shall not occur unless the following conditions are satisfied as of the date of such Substitution:

 

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(i)             the Seller has recommended to the Purchaser and the Agent (with a copy to the Trustee and the Collateral Custodian) in writing that the Loan Asset to be replaced should be replaced (each, a “ Replaced Loan Asset ”);

 

(ii)            no event has occurred, or would result from such Substitution, which constitutes an Event of Default and no event has occurred and is continuing, or would result from such Substitution, which constitutes an Unmatured Event of Default or a Borrowing Base Deficiency; provided that the Seller may effect a Substitution as necessary to facilitate a cure of a Borrowing Base Deficiency (and any Unmatured Event of Default arising therefrom) so long as the Agent shall approve of such sale and immediately after giving effect to such Substitution and any other sale or transfer substantially contemporaneous therewith, such Borrowing Base Deficiency shall be cured or closer to being cured;

 

(iii)           each Substitute Eligible Loan Asset is an Eligible Loan Asset on the date of Substitution;

 

(iv)           solely in the case of Substitutions pursuant to this Section 6.2 undertaken because a Seller Purchase Event has occurred, the sum of the Outstanding Balances of such Substitute Eligible Loan Assets shall be equal or greater than the sum of the Advance Date Assigned Value of the Replaced Loan Assets multiplied by the principal balance thereof (exclusive of Accreted Interest);

 

(v)            all representations and warranties contained in Sections 4.1 and 4.2 shall be true and correct in all material respects as of the date of Substitution (other than any representation and warranty that is made as of a specific date);

 

(vi)           no selection procedures adverse to the interests of the Purchaser, the Agent, the Note Purchaser or the other Secured Parties were utilized by the Seller in the selection of the Loan Asset to be replaced by the Substitute Eligible Loan Asset;

 

(vii)          the Outstanding Balance of all Loan Assets subject to clauses (ii) , (iv)  or (vi)  of the definition of “Value Adjustment Event” which were dividended from the Purchaser to the Seller in accordance with Section 2.07(d) of the Amended and Restated Sale and Servicing Agreement or substituted pursuant to this Section 6.2 , in each case during the 12-month period immediately preceding the proposed date of such Substitution does not exceed 10% of the highest aggregate Outstanding Balance of any month during such 12-month period (or such lesser number of months as shall have elapsed as of such date);

 

(viii)         the Outstanding Balance of all Loan Assets (other than Warranty Loan Assets), sold pursuant to Section 2.07(b) of the Amended and Restated Sale and Servicing Agreement, sold without the consent of the Agent in accordance with Section 2.07(c) of the Amended and Restated Sale and Servicing Agreement (in each case, other than Loan Assets subject to clauses (ii) , (iv)  or (vi)  of the definition of “Value Adjustment Event”), substituted pursuant to this Section 6.2 or dividended from the Purchaser to the Seller in accordance with Section 2.07(d) of the Amended and Restated

 

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Sale and Servicing Agreement during the 12-month period immediately preceding the proposed date of Substitution does not exceed 20% of the highest aggregate Outstanding Balance of any month during such 12-month period (or such lesser number of months as shall have elapsed as of such date);

 

(ix)            each Loan Asset that is replaced pursuant to the terms of this Section 6.2 shall be substituted only with another Eligible Loan Asset that meets the foregoing conditions; and

 

(x)             all terms, provisions, representations, warranties and covenants hereunder with respect to Loan Assets that have been Sold by the Seller to the Purchaser hereunder shall apply equally to Substitute Eligible Loan Assets.

 

Section 6.3.             Repurchase Limitations .  The Seller and the Purchaser agree that the Seller and any Affiliate of the Seller may repurchase any Sale Portfolio only from the Purchaser in the case of a repurchase or Substitution of any Sale Portfolio pursuant to Sections 6.1 or 6.2 .

 

ARTICLE VII.

ADDITIONAL RIGHTS AND OBLIGATIONS IN
RESPECT OF THE SALE PORTFOLIO

 

Section 7.1.            Rights of the Purchaser .

 

(a)            After the occurrence or declaration of the Facility Maturity Date, the Seller hereby authorizes the Purchaser, the Servicer, the Trustee, the Agent, the Note Purchaser and/or their respective designees or assignees to take any and all steps in Seller’s name and on behalf of the Seller that the Purchaser, the Servicer, the Trustee, the Agent, the Note Purchaser and/or their respective designees or assignees determine are reasonably necessary or appropriate to collect all amounts due under any and all Sale Portfolio and to enforce or protect the Purchaser’s, the Trustee’s, the Agent’s and the Note Purchaser’s rights under this Agreement, including endorsing the name of the Seller on checks and other instruments representing Interest Collections and Principal Collections and enforcing such Sale Portfolio.

 

(b)            Except as set forth in Sections 6.1 and 6.2 with respect to the repurchase or Substitution of certain Loan Assets, the Purchaser shall have no obligation to account for, replace, substitute or return any Sale Portfolio to the Seller.  The Purchaser shall have no obligation to account for or to return Interest Collections or Principal Collections, or any interest or other finance charge collected pursuant thereto, to the Seller, irrespective of whether such Interest Collections and Principal Collections and charges are in excess of the Purchase Price for such Sale Portfolio.

 

(c)            The Purchaser shall have the right to further assign, transfer, deliver, hypothecate, subdivide or otherwise deal with the Sale Portfolio and all of the Purchaser’s right, title and interest in, to and under this Agreement, pursuant to the Second Tier Purchase and Sale Agreement or the Amended and Restated Sale and Servicing Agreement.

 

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(d)            The Purchaser shall have the sole right to retain any gains or profits created by buying, selling or holding the Sale Portfolio and shall have the sole risk of and responsibility for losses or damages created by such buying, selling or holding.

 

Section 7.2.             Notice to Trustee, Agent and Note Purchaser .

 

The Seller agrees that, concurrently with its delivery to the Purchaser, copies of all notices, reports, documents and other information required to be delivered by the Seller to the Purchaser hereunder shall be delivered by the Seller to the Trustee, the Agent and the Note Purchaser.

 

ARTICLE VIII.

SELLER TERMINATION EVENTS

 

Section 8.1.            Seller Termination Events .

 

(a)            If any of the following events (each a “ Seller Termination Event ”) shall have occurred:

 

(i)             the Seller shall fail to pay (A) any amount due pursuant to Section 6.1 in accordance with the provisions thereof and such failure shall continue unremedied for a period of five Business Days from the earlier of (1) the date any Responsible Officer of the Seller obtains knowledge of such failure and (2) the date the Seller receives notice of such failure from the Purchaser, the Servicer, the Trustee or the Agent or (B) any other amount required to be paid by the Seller hereunder within two Business Days of the date when due; or

 

(ii)            the Seller shall fail to observe or perform in any material respect any covenant or agreement applicable to it contained herein (other than as specified in paragraph (i) of this Section 8.1 ); provided that no such failure shall constitute a Seller Termination Event under this paragraph (ii) unless such failure shall continue unremedied for a period of 30 days (if such failure can be remedied) after the earlier to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Seller by the Agent, the Trustee or the Purchaser and (ii) the date on which the Seller acquires knowledge thereof; or

 

(iii)           any representation, warranty or certification made by the Seller in this Agreement or in any statement, record, certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a Material Adverse Effect on the Purchaser and continues to be unremedied for a period of 30 days after the earlier to occur of (i) the date on which written notice of such incorrectness requiring the same to be remedied shall have been given to the Seller by the Agent, the Servicer, the Trustee or the Purchaser and (ii) the date on which a Responsible Officer of the Seller acquires knowledge thereof; provided that a Seller Termination Event shall not be deemed to have occurred under this paragraph (iii) based upon a Seller Purchase Event if the Seller shall have complied with the provisions of Section 6.1 in respect thereof; or

 

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(iv)           (A) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Seller in an involuntary case under the Bankruptcy Code or any other Bankruptcy Laws, which decree or order is not stayed or any other similar relief shall be granted under any applicable federal or state law now or hereafter in effect and shall not be stayed; (B) (1) any involuntary case is commenced against the Seller under any Bankruptcy Law now or hereafter in effect, a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer having similar powers over the Seller, or over all or a substantial part of the property of the Seller, shall have been entered, an interim receiver, trustee or other custodian of the Seller for all or a substantial part of the property of the Seller is involuntarily appointed, a warrant of attachment, execution or similar process is issued against any substantial part of the property of the Seller, and (2) any event referred to in clause (B)(1)  above continues for 60 days unless dismissed, bonded or disclosed; (C) the Seller shall at its request have a decree or an order for relief entered with respect to it or commence a voluntary case under any Bankruptcy Law now or hereafter in effect, or shall consent to the entry of a decree or an order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such Bankruptcy Law, consent to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property; (D) the making by the Seller of any general assignment for the benefit of creditors; (E) the inability or failure of the Seller generally to pay its debts as such debts become due; or (F) the board of directors of the Seller authorizes action to approve any of the foregoing; or

 

(v)            the occurrence of (A) an Event of Default set forth in Section 7.01 of the Amended and Restated Sale and Servicing Agreement or (B) the Facility Maturity Date; or

 

(vi)           a notice of Lien shall have been filed by the Pension Benefit Guaranty Corporation against the Seller under Section 430(k) of the Code or Section 303(k) of ERISA for a failure to make a required installment or other payment to a plan to which Section 430(k) of the Code or Section 303(k) of ERISA applies unless there shall have been delivered to the Agent proof of release of such Lien; or

 

(vii)          any Lien in an amount equal to or greater than $1,000,000 has been asserted against or imposed on, any real or personal property of the Seller pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(1), or any equivalent or comparable state law, relating to or arising from the costs of, response to, or investigation, remediation or monitoring of, any environmental contamination resulting from the current or past operations of the Seller; or

 

(viii)         a Federal tax notice of Lien, in an amount equal to or greater than $1,000,000, shall have been filed against the Seller unless there shall have been delivered to the Agent proof of release of such Lien;

 

then, (A) in the case of any Seller Termination Event described in paragraph (iv) , (v)(A) , (vi) , (vii)  or (viii)  above, the obligation of the Purchaser to Purchase Sale Portfolio from the Seller

 

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shall thereupon automatically terminate without further notice of any kind, which is hereby waived by the Seller, (B) in the case of any Seller Termination Event described in paragraph (v)(B)  above, the obligation of the Purchaser to Purchase Sale Portfolio from the Seller shall thereupon terminate without notice of any kind, which is hereby waived by the Seller unless both the Purchaser and the Seller agree in writing that such event shall not trigger an Early Termination (as hereinafter defined) hereunder, and (C) in the case of any other Seller Termination Event, so long as such Seller Termination Event shall be continuing, the Purchaser or the Agent may terminate its obligation to Purchase Sale Portfolio from the Seller by written notice to the Seller (any termination pursuant to clause (A) , (B)  or (C)  of this Article VIII is herein called an “ Early Termination ”); provided , that, in the event of any involuntary petition or proceeding as described in paragraphs (iv)(A)  and (iv)(B)  above, the Purchaser shall not Purchase Sale Portfolio from the Seller unless such involuntary petition or proceeding is dismissed, bonded or discharged within 60 days of the filing of such petition or the commencement of such proceeding.

 

Section 8.2.            Remedies .

 

(a)            If a Seller Termination Event has occurred, the Purchaser (and its assignees) shall have, in addition to all other rights and remedies under this Agreement or otherwise all of the rights and remedies provided to a secured creditor under the UCC of each applicable jurisdiction and other Applicable Law in respect thereto, which rights shall be cumulative.

 

(b)            The Seller agrees that, upon the occurrence of a Seller Termination Event under Section 8.1(a)(iv)  or Section 8.1(a)(v)(A)  the Purchaser, the Trustee or the Agent shall have the right to:

 

(i)             require the Seller to, and the Seller hereby agrees that it will at the Seller’s expense and upon request of the Purchaser, the Trustee or the Agent forthwith, assemble all or any part of the Sale Portfolio as directed by the Purchaser, the Trustee or the Agent and make the same available at a place to be designated by the Purchaser, the Trustee or the Agent; and

 

(ii)            without notice except as specified below, sell the Sale Portfolio or any part thereof in one or more parcels at a public or private sale, at any of the Trustee’s, the Purchaser’s or the Agent’s offices or elsewhere, for cash, or credit or for future delivery, and upon such other terms as the Purchaser, the Trustee or the Agent may deem commercially reasonable.  The Seller agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to the Seller of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification.  The Purchaser, the Trustee or the Agent shall not be obligated to make any sale of Sale Portfolio regardless of notice of sale having been given.  The Purchaser, the Trustee or the Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned.

 

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Section 8.3.            Survival of Certain Provisions .

 

Notwithstanding any provision contained herein to the contrary, the Seller’s and the Purchaser’s representations, covenants and obligations set forth in Articles IV , V , VI , and VII , as applicable, create and constitute the continuing obligation of the parties hereto in accordance with its terms, and shall remain in full force and effect until the Collection Date; provided , that the rights and remedies with respect to any breach of any representation and warranty made or deemed made by the Seller pursuant to Articles III and IV and the provisions of Sections 6.1 and 6.2 , the rights and obligations under Article VII , the indemnification provisions of Article IX and the provisions of Sections 5.1 , 10.2 , 10.8 , 10.9 , 10.10 , 10.12 , 10.13 , 10.14 and 10.17 shall be continuing and shall survive any termination of this Agreement.  For the avoidance of doubt, in the event that a Seller Termination Event has occurred but has been waived unconditionally and in its entirety in accordance with the terms hereof, such Seller Termination Event shall be deemed to have not “occurred” and references to “after the occurrence of a Seller Termination Event” shall be inapplicable for all purposes in this Agreement or any of the Transaction Documents, except to the extent otherwise provided for in the relevant waiver; provided that any waiver which by its terms becomes effective upon certain conditions precedent being met will not be considered a conditional waiver solely due to the existence of such conditions precedent if all such conditions precedent to effectiveness have been satisfied.

 

ARTICLE IX.

INDEMNIFICATION

 

Section 9.1.            Indemnification by the Seller .

 

(a)            Without limiting any other rights which the Purchaser, any assignee of the Purchaser or any such Persons’ respective shareholders, officers, employees, agents, or Affiliates (each an “ Indemnified Party ”) may have hereunder or under Applicable Law, the Seller hereby agrees to indemnify any Indemnified Party from and against any and all costs, expenses, losses, damages, claims, and liabilities, including attorneys’ fees and disbursements (all of the foregoing, being collectively referred to as, “ Indemnified Amounts ”), awarded against or incurred by such Indemnified Party or other non-monetary damages of any such Indemnified Party or any of them arising out of or as a result of this Agreement excluding, however, (a) any such amounts resulting solely from any gross negligence, bad faith or willful misconduct on the part of the applicable Indemnified Party or (b) Loan Assets that are uncollectible due to the Obligor’s financial inability to pay.  Without limiting the foregoing, the Seller shall indemnify each Indemnified Party for Indemnified Amounts relating to or resulting from any of the following (to the extent not resulting from the conditions set forth in (a) or (b) above):

 

(i)             any Person’s use, ownership or operation of any Underlying Collateral to the extent that such use, ownership or operation took place prior to the Purchase Date with respect to the related Sale Portfolio;

 

(ii)            any action taken by the Seller, other than in accordance with this Agreement, in respect of any portion of the Sale Portfolio;

 

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(iii)          any taxes (other than taxes based upon the net or gross income of an Indemnified Party and taxes that would constitute Excluded Amounts) that may at any time be asserted against any Indemnified Party with respect to the transactions contemplated in this Agreement, including, without limitation, any sales, gross receipts, general corporation, tangible or intangible personal property, privilege, stamp or license taxes and costs and expenses in defending against the same, arising by reason of the acts to be performed by the Seller under this Agreement and imposed against such Indemnified Party.  Without limiting the foregoing, in the event that the Purchaser, the Trustee, the Collateral Custodian, the Bank, the Servicer, the Note Purchaser or the Agent receives actual notice of any Transfer Taxes arising out of the Sale of any Sale Portfolio from the Seller to the Purchaser under this Agreement, on written demand by such party, or upon the Seller otherwise being given notice thereof, the Seller shall pay, and otherwise indemnify and hold the Purchaser, the Trustee, the Collateral Custodian,  the Bank, the Servicer, the Note Purchaser and the Agent harmless, on an after-tax basis, from and against any and all such Transfer Taxes (it being understood that the Purchaser, the Trustee, the Collateral Custodian, the Bank, the Servicer, the Note Purchaser and the Agent shall have no contractual obligation to pay such Transfer Taxes);

 

(iv)          the failure by the Seller to pay when due any Taxes due by the Seller for which the Seller is liable, including without limitation, sales, excise or personal property taxes payable in connection with the Sale Portfolio;

 

(v)           the negligence, willful misconduct or bad faith of the Seller in the performance of its duties under this Agreement or by reason of reckless disregard of the Seller’s obligations and duties under this Agreement;

 

(vi)          any failure of the Seller to perform its duties or obligations in accordance with the provisions of this Agreement or any of the other Transaction Documents to which it is a party or any failure by the Seller or any Affiliate thereof to perform its respective duties under any Sale Portfolio;

 

(vii)         the failure of any Sale Portfolio to comply with all requirements of Applicable Law as of its Purchase Date;

 

(viii)        the failure by the Seller to comply with all requirements of Section 6.1 hereof;

 

(ix)           the failure by the Seller to comply with any term, provision or covenant contained in this Agreement or any agreement executed in connection with this Agreement, any Transaction Document or with any Applicable Law;

 

(x)            any representation or warranty made or deemed made by the Seller, or any of its officers, under or in connection with this Agreement or any other Transaction Document, which shall have been false, incorrect or misleading in any material respect when made or deemed made or delivered;

 

(xi)           the failure to vest and maintain vested in the Purchaser an undivided ownership interest in the Sale Portfolio, together with all Interest Collections

 

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and Principal Collections, free and clear of any Lien (other than Permitted Liens) whether existing at the time of any Purchase or at any time thereafter;

 

(xii)          the failure to file, or any delay in filing, financing statements, continuation statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other Applicable Law with respect to any Sale Portfolio, whether at the time of any Purchase or at any subsequent time;

 

(xiii)         any dispute, claim, offset or defense (other than the discharge in bankruptcy of the Obligor) of the Obligor to the payment with respect to any Sale Portfolio (including, without limitation, a defense based on the Sale Portfolio not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms);

 

(xiv)        any inability to obtain any judgment in, or utilize the court or other adjudication system of, any state in which an Obligor may be located as a result of the failure of the Seller to qualify to do business or file any notice or business activity report or any similar report;

 

(xv)         any action taken by the Seller in the enforcement or collection of any Sale Portfolio;

 

(xvi)        any claim, suit or action of any kind arising out of or in connection with Environmental Laws including any vicarious liability;

 

(xvii)       except with respect to funds held in the Concentration Account, the commingling of Interest Collections and Principal Collections on the Sale Portfolio at any time with other funds of the Seller;

 

(xviii)      any investigation, litigation or proceeding related to this Agreement or the use of proceeds by the Seller or the security interest in the Sale Portfolio granted hereunder;

 

(xix)         any failure by the Purchaser to give reasonably equivalent value to the Seller in consideration for the transfer by the Seller to the Purchaser of any item of the Sale Portfolio or any attempt by any Person to void or otherwise avoid any such transfer under any statutory provision or common law or equitable action, including, without limitation, any provision of the Bankruptcy Code; or

 

(xx)          the failure of the Seller or any of its agents or representatives to remit to the Purchaser Interest Collections and Principal Collections on the Sale Portfolio remitted to the Seller or any such agent or representative as provided in this Agreement.

 

(b)           Any amounts subject to the indemnification provisions of this Section 9.1 shall be paid by the Seller to the Indemnified Party within five Business Days following such Person’s demand therefor.

 

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(c)           If for any reason the indemnification provided above in this Section 9.1 is unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party harmless, then the Seller shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by such Indemnified Party on the one hand and the Seller as the case may be, on the other hand but also the relative fault of such Indemnified Party as well as any other relevant equitable considerations.

 

(d)           Indemnification under this Section 9.1 shall be in an amount necessary to make the Indemnified Party whole after taking into account any tax consequences to the Indemnified Party of the receipt of the indemnity provided hereunder, including the effect of such tax or refund on the amount of tax measured by net income or profits that is or was payable by the Indemnified Party.

 

(e)           The obligations of the Seller under this Section 9.1 shall survive the termination of this Agreement.

 

Section 9.2.            Assignment of Indemnities .

 

The Seller acknowledges that, pursuant to the Amended and Restated Sale and Servicing Agreement, the Purchaser shall assign its rights of indemnity hereunder to the Trustee, on behalf of the Secured Parties.  Upon such assignment, (a) the Trustee, on behalf of the Secured Parties, shall have all rights of the Purchaser hereunder and may in turn assign such rights, and (b) the obligations of the Seller under this Section 9.2 shall inure to the Trustee, on behalf of the Secured Parties.  The Seller agrees that, upon such assignment, the Trustee, on behalf of the Secured Parties, may enforce directly, without joinder of the Purchaser, the indemnities set forth in this Article IX .

 

ARTICLE X.

 

MISCELLANEOUS

 

Section 10.1.          Liability of the Seller .  The Seller shall be liable in accordance herewith only to the extent of the obligations in this Agreement specifically undertaken by the Seller and with respect to its representations and warranties expressly set forth hereunder.

 

Section 10.2.          Limitation on Liability .  Except with respect to any claim arising solely out of the willful misconduct or gross negligence of the Note Purchaser, the Trustee, the Agent or any other Secured Party, no claim may be made by the Seller or any other Person against the Note Purchaser, the Trustee, the Agent or any other Secured Party 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 of liability arising out of or related to the transactions contemplated by this Agreement, or any act, omission or event occurring in connection therewith; and the Seller hereby waives, releases and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

 

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Section 10.3.          Amendments; Limited Agency .  Except as provided in this Section 10.3 , no amendment, waiver or other modification of any provision of this Agreement shall be effective unless signed by the Purchaser and the Seller and consented to in writing by the Agent and the Trustee.  The Purchaser shall provide not less than ten Business Days’ prior written notice of any such amendment to the Agent, the Trustee and the Note Purchaser.

 

Section 10.4.          Waivers; Cumulative Remedies .  No failure or delay on the part of the Purchaser (or any assignee thereof) or the Seller, in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other or future exercise thereof or the exercise of any other power, right or remedy.  The powers, rights and remedies herein provided are cumulative and not exhaustive of any powers, rights and remedies provided by law.  Any waiver of this Agreement shall be effective only in the specific instance and for the specific purpose for which it is given.

 

Section 10.5.          Notices .  All demands, notices and other communications hereunder shall, unless otherwise stated herein, be in writing (which shall include facsimile communication and communication by e-mail in portable document format (.pdf)) and faxed, e-mailed or delivered, to each party hereto, at its address set forth under its name below or at such other address as shall be designated by such party in a written notice to the other parties hereto:

 

If to Purchaser:

 

Ares Capital CP Funding LLC
2000 Avenue of the Stars, 12
th  Floor
Los Angeles, California 90067
Attention:  General Counsel and Chief Financial Officer
Facsimile No.:  (310) 201-4197
Confirmation No.:  (310) 201-4205

 

and

 

Ares Capital CP Funding LLC
280 Park Avenue, 22
nd  Floor East
New York, New York 10017
Attention:  General Counsel and Chief Financial Officer
Facsimile No.:  (212) 750-1777
Confirmation No.:  (212) 750-7300

 

If to Seller:

 

Ares Capital CP Funding Holdings LLC
2000 Avenue of the Stars, 12
th  Floor
Los Angeles, California 90067
Attention:  General Counsel and Chief Financial Officer

 

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Facsimile No.:  (310) 201-4197
Confirmation No.:  (310) 201-4205

 

and

 

Ares Capital CP Funding Holdings LLC
280 Park Avenue, 22
nd  Floor East
New York, New York 10017
Attention:  General Counsel and Chief Financial Officer
Facsimile No.:  (212) 750-1777
Confirmation No.:  (212) 750-7300

 

Notices and communications by facsimile and e-mail shall be effective when sent (and shall be followed by hard copy sent by regular mail), and notices and communications sent by other means shall be effective when received.

 

Section 10.6.          Merger and Integration .  Except as specifically stated otherwise herein, this Agreement, the Amended and Restated Sale and Servicing Agreement and the other Transaction Documents set forth the entire understanding of the parties relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement, the Amended and Restated Sale and Servicing Agreement and the Transaction Documents.  This Agreement may not be modified, amended, waived or supplemented except as provided herein.

 

Section 10.7.          Severability of Provisions .  If any one or more of the covenants, provisions or terms of this Agreement shall be for any reason whatsoever held invalid, then such covenants, provisions or terms shall be deemed severable from the remaining covenants, provisions or terms of this Agreement and shall in no way affect the validity or enforceability of the other provisions of this Agreement.

 

Section 10.8.          GOVERNING LAW; JURY WAIVER .  THIS AGREEMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.  EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER.

 

Section 10.9.          Consent to Jurisdiction; Service of Process .

 

(a)           Each party hereto hereby irrevocably submits to the non-exclusive jurisdiction of any New York State or Federal court sitting in New York City in any action or proceeding arising out of or relating to this Agreement, and each party hereto hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by law, in such Federal court.  The parties hereto hereby irrevocably waive, to the fullest extent they may effectively do so, the defense of

 

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an inconvenient forum to the maintenance of such action or proceeding.  The parties hereto agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

(b)           Each of the Seller and the Purchaser agrees that service of process may be effected by mailing a copy thereof by registered or certified mail, postage prepaid, to the Seller or the Purchaser, as applicable, at its address specified in Section 10.5 .  Nothing in this Section 10.9 shall affect the right of the Seller or the Purchaser to serve legal process in any other manner permitted by law.

 

Section 10.10.        Costs, Expenses and Taxes .

 

(a)           In addition to the rights of indemnification granted to the Purchaser and its Affiliates and officers, directors, employees and agents thereof under Section 9.1 hereof, the Seller agrees to pay on demand all reasonable out-of-pocket costs and expenses of the Purchaser or its assignees incurred in connection with the preparation, execution, delivery, enforcement, administration (including periodic auditing), renewal, amendment or modification of, or any waiver or consent issued in connection with, this Agreement and the other documents to be delivered hereunder or in connection herewith, including, without limitation, the reasonable fees and out—of—pocket expenses of counsel with respect thereto and with respect to advising the Purchaser or its assignees as to its rights and remedies under this Agreement and the other documents to be delivered hereunder or in connection herewith, and all out-of-pocket costs and expenses, if any (including reasonable counsel fees and expenses), incurred by the Purchaser or its assignees in connection with the enforcement of this Agreement and the other documents to be delivered hereunder or in connection herewith.

 

(b)           The Seller shall pay on demand any and all stamp, sales, excise and other taxes and fees payable or determined to be payable to any Governmental Authority in connection with the execution, delivery, filing and recording of this Agreement and the other documents to be delivered hereunder.

 

(c)           The Seller shall pay on demand all other reasonable out-of-pocket costs, expenses and Taxes (excluding income taxes) incurred by the Purchaser or its assignees in connection with the execution, delivery, filing and recording of this Agreement and the other documents to be delivered hereunder, including, without limitation, all costs and expenses incurred by the Purchaser or its assignees in connection with periodic audits of the Seller’s books and records.

 

(d)           For the avoidance of doubt, costs and expenses to be paid pursuant to this Section 10.10 shall exclude all allocable overhead costs and expenses.

 

Section 10.11.        Counterparts .  For the purpose of facilitating the execution of this Agreement and for other purposes, this Agreement may be executed simultaneously in any number of counterparts, each of which counterparts shall be deemed to be an original, and all of which counterparts shall constitute but one and the same instrument.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or e-mail in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

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Section 10.12.        Bankruptcy Non-Petition and Limited Recourse; Claims .  The Seller hereby agrees that it will not institute against, or join any other Person in instituting against, the Purchaser any Bankruptcy Proceeding so long as there shall not have elapsed one year and one day (or such longer preference period as shall then be in effect) since the Collection Date.  The Seller hereby acknowledges that (i) the Purchaser has no assets other than the Sale Portfolio, (ii) the Purchaser shall, immediately upon Purchase hereunder, grant a security interest in the Sale Portfolio to the Trustee, on behalf of the Secured Parties, pursuant to the Amended and Restated Sale and Servicing Agreement, and (iii) Available Collections generated by the Sale Portfolio will be applied to payment of the Purchaser’s obligations under the Amended and Restated Sale and Servicing Agreement.  In addition, the Seller shall have no recourse for any amounts payable or any other obligations arising under this Agreement against any officer, member, director, employee, partner, Affiliate or security holder of the Purchaser or any of its successors or assigns.

 

Section 10.13.        Binding Effect; Assignability .

 

(a)           This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

 

(b)           Notwithstanding anything to the contrary contained herein, this Agreement may not be assigned by the Purchaser or the Seller except as permitted by this Section 10.13 , the First Tier Purchase and Sale Agreement or the Amended and Restated Sale and Servicing Agreement.  The Seller hereby assigns all of its right, title and interest in the First Tier Purchase and Sale Agreement to the Purchaser.  Simultaneously with the execution and delivery of this Agreement, the Purchaser will assign all of its right, title and interest in this Agreement to the Trustee, for the benefit of the Secured Parties, to which assignment the Seller hereby expressly consents.  Upon assignment, the Seller agrees to perform its obligations hereunder for the benefit of the Trustee, for the benefit of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement and the Trustee, in such capacity, shall be a third party beneficiary hereof.  The Trustee, for the benefit of the Secured Parties, under the Amended and Restated Sale and Servicing Agreement upon such assignment may enforce the provisions of this Agreement, exercise the rights of the Purchaser and enforce the obligations of the Seller hereunder without joinder of the Purchaser.

 

Section 10.14.        Waiver of Setoff .

 

(a)           The Seller’s obligations under this Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right the Seller might have against the Purchaser, the Agent, the Note Purchaser, the Trustee, the other Secured Parties or any assignee of such Persons, all of which rights are hereby waived by the Seller.

 

(b)           The Purchaser shall have the right to set—off against the Seller any amounts to which the Seller may be entitled hereunder and to apply such amounts to any claims the Purchaser may have against the Seller from time to time under this Agreement.  Upon any such set—off, the Purchaser shall give notice of the amount thereof and the reasons therefor to the Seller.

 

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Section 10.15.        Headings and Exhibits .  The headings herein are for purposes of references only and shall not otherwise affect the meaning or interpretation of any provision hereof.  The schedules and exhibits attached hereto and referred to herein shall constitute a part of this Agreement and are incorporated into this Agreement for all purposes.

 

Section 10.16.        Rights of Inspection .  The Purchaser and its representatives and assigns may conduct at any reasonable time, with reasonable notice, and from time to time, and the Seller will fully cooperate with, a reasonable number of field examinations and audits of the inventory, the Loan Assets and business affairs of the Seller each calendar year.  Each such inspection shall be at the sole expense of the Seller.  The Purchaser and its representatives and successors and assigns acknowledge that in exercising the rights and privileges conferred in this Section 10.16 , it or its representatives or assigns may, from time to time, obtain knowledge of information, practices, books, correspondence and records of a confidential nature and in which the Seller has a proprietary interest.  The Purchaser and its representatives and successors and assigns agree that (i) they shall retain in strict confidence and shall use their best efforts to ensure that their representatives retain in strict confidence and will not disclose without the prior written consent of the Seller any or all of such information, practices, books, correspondence and records furnished to them and (ii) that they will not, and will use their best efforts to ensure that their representatives and assigns will not, make any use whatsoever (other than for the purposes contemplated by this Agreement) of any of such information, practices, books, correspondence and records without the prior written consent of the Seller, unless such information is generally available to the public or is required by law to be disclosed.

 

Section 10.17.        Subordination .  After giving effect to any payment relating to any indebtedness, obligation or claim the Seller may from time to time hold or otherwise have against the Purchaser or any assets or properties of the Purchaser, whether arising hereunder or otherwise existing, the Borrowing Base at such time must exceed the Obligations owed by the Purchaser to the Secured Parties under the Amended and Restated Sale and Servicing Agreement.  The Seller hereby agrees that at any time during which the condition set forth in the preceding sentence shall not be satisfied, the Seller shall be subordinate in right of payment to the prior payment of any indebtedness or obligation of the Purchaser owing to the Note Purchaser, the Trustee, the Collateral Custodian, the Agent or any other Secured Party under the Amended and Restated Sale and Servicing Agreement.

 

Section 10.18.        Breaches of Representations, Warranties and Covenants .  For the avoidance of doubt, no breach or default of any representation, warranty or covenant contained in Sections 4.1 , 4.2 , 4.3 , 5.1 , 5.2 or 5.3 that does not constitute an “Unmatured Event of Default” under the Amended and Restated Sale and Servicing Agreement,  “Event of Default” under the Amended and Restated Sale and Servicing Agreement or Seller Termination Event under this Agreement shall be deemed to be a breach or default hereunder; provided that the foregoing shall not affect the definition of “Seller Purchase Event”, Sections 2.1(n) , 2.3(c) , 3.2(a) , 4.1(ll) , 4.1(mm) , 5.2(j)(iii) , 6.2(b) , 8.3 9.1 and the schedules and exhibits hereto.

 

Section 10.19.        Confidentiality .  Each of the parties hereto hereby agrees with the confidentiality provisions set forth in Sections 11.13 and 11.14 of the Amended and Restated Sale and Servicing Agreement.

 

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Section 10.20.        Assignments of Loan Assets .

 

(a)           Notwithstanding anything to the contrary herein, solely for administrative convenience and solely in the case of Third Party Acquired Loan Assets, (i) for purposes of clause (a)(i)  of the definition of “Required Loan Documents” in the Amended and Restated Sale and Servicing Agreement, the chain of endorsements required therein by the third party to the Transferor, the Transferor to the Seller and the Seller to the Purchaser may be satisfied by a direct endorsement from the applicable third party to the Purchaser or (ii) delivery of the transfer documents or instruments required by clause (a)(ii)  of the definition of “Required Loan Documents” may be satisfied by delivery of transfer documents or instruments evidencing the assignment of such Loan Asset by the applicable third party directly to the Purchaser (and by the Purchaser either to the Trustee or in blank).

 

(b)           Nothing in this Section 10.20 shall limit any requirement that all Loan Assets treated as or represented to be Eligible Loan Assets hereunder or in any Transaction Document be purchased by the Purchaser from the Seller pursuant to this Agreement and by the Seller from the Transferor pursuant to the First Tier Purchase and Sale Agreement (as evidenced by the Assignments applicable to each Purchase and Sale Agreement) or any representations or warranties with respect to Loan Assets so purchased or the liabilities or recourse of the Seller or Purchaser, as applicable, pertaining to such sales.

 

[Signature pages to follow.]

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers as of the day and year first above written.

 

 

ARES CAPITAL CP FUNDING

 

 LLC, as the Purchaser

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 



 

 

ARES CAPITAL CP FUNDING HOLDINGS LLC, as the Seller

 

 

 

 

 

By:

/s/ Richard S. Davis

 

 

Name: Richard S. Davis

 

 

Title: Chief Financial Officer

 


Exhibit 99.1

 

ARES CAPITAL CORPORATION CLOSES ON TWO THREE-YEAR REVOLVING CREDIT FACILITIES TOTALLING APPROXIMATELY $1.1 BILLION IN COMMITMENTS

 

$690 Million Expanded Revolving Facility, $75 Million Subject
to Closing Allied Capital Acquisition

 

Newly Combined $400 Million CP Funding Revolving Facility Features Lower Pricing, No Amortization & Enhanced Flexibility

 

NEW YORK, NY—January 25, 2010—Ares Capital Corporation (NASDAQ:  ARCC) announced today that it has closed its newly expanded revolving credit facility (“New Revolving Facility”), increasing its size from $525 million to $690 million.  The New Revolving Facility will be comprised of $615 million in commitments on a stand-alone basis and an additional $75 million in commitments contingent upon the closing of its pending acquisition of Allied Capital Corporation.

 

Pricing on the New Revolving Facility increased from LIBOR plus 1.00% to LIBOR plus 3.00% and the New Revolving Facility will continue to be free of a LIBOR floor requirement.  The New Revolving Facility has a three-year term with a maturity date of January 22, 2013.

 

The New Revolving Facility was lead arranged by J.P. Morgan Securities Inc., Banc of America Securities LLC and SunTrust Robinson Humphrey, Inc.  Participants in the previous $525 million revolving credit facility substantially increased their commitments, representing $640 million out of the total $690 million in commitments.

 

In addition, Ares Capital also stated its intention to expand its New Revolving Facility as necessary with additional financial institutions through an accordion feature that would permit it to increase total capacity to a maximum of $897.5 million on a stand-alone basis, and a maximum of $1.05 billion upon the closing of its pending acquisition of Allied Capital Corporation.

 

In a separate transaction, Ares Capital also announced today that it combined its existing $225 million amortizing CP Funding Term Loan Facility with its existing $200 million CP Funding II Revolving Facility (the “CP Funding Facilities”), both with Wachovia Bank, National Association, an affiliate of Wells Fargo & Company, into a single $400 million CP Funding Revolving Facility—also with a new three-year term.  Pricing on the old CP Funding Facilities were LIBOR plus 3.5% and LIBOR plus 4.0%, respectively, and the pricing on the new CP Funding Revolving Facility that has no amortization requirements will be reduced to LIBOR plus 2.75%. The CP Funding Revolving Facility will also offer enhanced collateral flexibility.

 

“We are very pleased with the strong support shown by our existing bank group, in which they extended the maturity and provided a significant increase in capital available to us on an attractive cost-effective basis,” commented Richard Davis, Chief Financial Officer of Ares Capital.  “We are also excited to receive improved pricing, no required

 



 

amortization, and enhanced flexibility in our new CP Funding Revolving Facility with Wells Fargo.”

 

The above facilities when combined with Ares Capital’s $274 million in on balance sheet CLO Notes total over $1.3 billion of committed debt financing at a blended current cost of LIBOR plus 2.35% or approximately 2.6% at current market interest rates.

 

“We believe the significant expansion of capital from our existing bank group as well as the greater flexibility and improved terms received from Wells Fargo validate our solid investment performance and our well positioned portfolio,” commented Michael Arougheti, President of Ares Capital Corporation. “At a time when most finance companies have been forced to reduce debt or shrink their balance sheets, these facilities provide us with both the financial flexibility and the lower relative cost of capital that we desire in order to continue to grow our business profitability and complete our pending acquisition of Allied Capital Corporation.”

 

About Ares Capital Corporation

 

Ares Capital Corporation is a specialty finance company that provides integrated debt and equity financing solutions to U.S. middle-market companies.  Ares Capital Corporation invests primarily in first- and second-lien loans and mezzanine debt, which in some cases includes an equity component.  To a lesser extent, Ares Capital Corporation also makes equity investments.  Ares Capital Corporation is externally managed by Ares Capital Management LLC, an affiliate of Ares Management LLC, an SEC registered investment advisor and alternative asset investment management firm with approximately $33 billion of committed capital under management as of December 31, 2009.  Ares Capital Corporation is a closed-end, non-diversified management investment company that has elected to be regulated as a Business Development Company under the Investment Company Act of 1940. For additional information, please visit our website at www.arescapitalcorp.com.

 

FORWARD-LOOKING STATEMENTS

 

Statements included herein may constitute “forward-looking statements,” which relate to future events or our future performance or financial condition.  These statements are not guarantees of future performance, condition or results and involve a number of risks and uncertainties.  Actual results and condition may differ materially from those in the forward-looking statements as a result of a number of factors, including those described from time to time in Ares Capital Corporation’s filings with the Securities and Exchange Commission.  Ares Capital Corporation undertakes no duty to update any forward-looking statements made herein.

 

Ares Capital Investor Contact:

Carl G. Drake

(404) 814-5204