As filed with the Securities and Exchange Commission on June 26, 2015
Securities Act File No. 333- 203653
Investment Company Act File No. 811-05410
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
(Check Appropriate box or boxes)
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Registration Statement Under The Securities Act Of 1933 |
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Pre-Effective Amendment No. 1 |
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Post-Effective Amendment No. |
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and/or |
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Registration Statement Under The Investment Company Act Of 1940 |
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Amendment No. 104 |
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(Check appropriate box or boxes) |
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VOYA PRIME RATE TRUST
(Exact Name of Registrant Specified in Charter)
7337 E. Doubletree Ranch Road, Suite 100
Scottsdale, AZ 85258
(Address of Principal Executive Offices)
Registrants Telephone Number, Including Area Code: (800) 992-0180
Huey P. Falgout, Jr.
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With copies to:
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Approximate Date of Proposed Offering:
As soon as practical after the effective date of this Registration Statement .
If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x
It is proposed that this filing will become effective:
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When declared effective pursuant to Section 8(c) of the Securities Act of 1933. |
Calculation of Registration Fee Under the Securities Act of 1933
Title of Securities Being
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Amount Being
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Proposed Maximum
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Proposed Maximum
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Amount of
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Shares of Beneficial Interest, without par value |
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25,000,000 |
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$ |
5.90 |
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$ |
147,500,000 |
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17,139.50 |
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(1) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(d) under the Securities Act of 1933, based on net asset value per share as of June 19, 2015. This Registration Statement carries forward 24,328,692 shares of common stock that were previously registered pursuant to Registrants Registration Statement on Form N-2 (File No. 333-180985) filed on June 27, 2012 (the Prior Registration Statement) and which remain unsold as of the filing date of this Registration Statement (the Unsold Securities). In addition to the Unsold Securities, Registrant is registering 671,308 shares of common stock for a proposed maximum aggregate offering price of $3,960,717.20. |
(2) |
Pursuant to Rule 415(a)(6) of the Securities and Exchange Commissions Rules and Regulations under the Securities Act of 1933, as amended (the Securities Act), the Unsold Securities are included in this Registration Statement. A registration fee amount of $16,059.27, was paid with respect to the Unsold Securities in connection with the Prior Registration Statement and is being applied to offset the registration fee currently due on the Unsold Securities pursuant to Rule 415(a)(6) under the Securities Act, resulting in a net registration fee amount of $1080.23 transmitted prior to filing. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such dates as the Commission, acting pursuant to said Section 8(a), may determine.
VOYA PRIME RATE TRUST
(Registrant)
25,000,000 Common Shares
CONTENTS OF REGISTRATION STATEMENT
This Registration Statement consists of the following papers and documents:
* Cover Sheet
* Contents of Registration Statement
* Voya Prime Rate Trust 25,000,000 Common Shares Prospectus dated June 30, 2015
* Voya Prime Rate Trust 5,000,000 and 25,000,000 Common Shares Statement of Additional Information dated June 30, 2015
* Part C
* Signature Page
• | Voya Prime Rate Trust |
• | 25,000,000 Common Shares |
• | elect at least two trustees at all times; and |
• | elect a majority of the trustees at any time when dividends on any series of Preferred Shares are unpaid for two full years. |
• | less rigorous regulatory, accounting, and reporting requirements than U.S. borrowers; |
• | differing legal systems and laws relating to creditors' rights; |
• | the potential inability to enforce legal judgments; |
• | economic adversity that would result if the value of the borrower's non-U.S. dollar denominated revenues and assets were to fall because of fluctuations in currency values; and |
• | the potential for political, social, and economic adversity in the foreign borrower's country. |
Shareholder Transaction Expenses: | |
Shareholder Reinvestment Program Fees | None |
Privately Negotiated Transactions: | |
Sales Load (as a percentage of offering price) | 3.00% |
Annual Expenses (as a percentage of average net assets attributable to Common Shares): | |
Management Fees 1 | 1.50% |
Interest Expense on Borrowed Funds | 0.48% |
Other Operating Expenses 2 | 0.16% |
Total Annual Expenses | 2.14% |
Fee Waivers/Reimbursements/Recoupment 3 | None |
Net Annual Expenses | 2.14% |
1 | Pursuant to the investment management agreement with the Trust, the Adviser is paid a fee of 1.05% of the Trust's Managed Assets. For the description of “Managed Assets,” please see “Description of the Trust – Adviser/Sub-Adviser” earlier in this Prospectus. The portion of the management fee attributable to the advisory services is 0.80% and the portion of the management fee attributable to the administrative services is 0.25%. |
2 | Other Operating Expenses are estimated amounts for the current fiscal year and do not include the expenses of borrowing. |
3 | The Adviser is contractually obligated to limit expenses of the Trust at a rate of 1.05% of average daily Managed Assets plus 0.15% of average daily net assets through July 1, 2016. The limitation does not extend to interest, taxes, investment-related costs, leverage expenses, extraordinary expenses, and Acquired Fund Fees and Expenses. The limitation is subject to possible recoupment by the adviser within 36 months of the waiver or reimbursement. Termination or modification of this obligation requires approval by the Trust’s board. |
1 Year | 3 Years | 5 Years | 10 Years | |||
You would pay the following expenses on a $1,000 investment, assuming a 5% annual return and borrowings by the Trust in an aggregate amount equal to 30% of its Managed Assets. | $ | 51.28 | 97.02 | 147.23 | 293.98 |
Per Share Operating Performance |
Total Investment
Return (1) |
Ratios to average
net assets |
Supplemental
data |
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Net asset value, beginning of
year or period |
Net investment income (loss) | Net realized and unrealized gain (loss) | Distribution to Preferred Shareholders |
Change in net asset value from
Share offerings |
Total from investment operations |
Distributions to Common Shareholders
from net investment income |
Distributions from return of capital | Total distributions | Net asset value, end of year or period |
Closing market price, end of
year or period |
Total Investment Return at
net asset value (2) |
Total Investment Return at closing
market price (3) |
Expenses, prior to fee waivers and/or
recoupments, if any (4) |
Expenses (before interest and other fees
related to revolving credit facility) (4) |
Expenses, net of fee waivers and/or
recoupments, if any (4) |
Net investment income (loss) (4) | Net assets, end of year or period | Portfolio Turnover | ||||||||||||||||||||
Year or period ended | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ($) | ($) | (%) | (%) | (%) | (%) | (%) | (%) | ($000's) | % | |||||||||||||||||||
02-28-15 | 6.08 | 0.33 | (0.13) | — | — | 0.20 | (0.35) | — | (0.35) | 5.93 | 5.49 | 3.83 | (0.44) | 2.10 | 1.64 | 2.09 | 5.58 | 876,412 | 68 | |||||||||||||||||||
02-28-14 | 6.02 | 0.40 | 0.07 | — | — | 0.47 | (0.40) | (0.01) | (0.41) | 6.08 | 5.87 | 8.15 | (4.04) | 2.15 | 1.65 | 2.15 | 6.47 | 898,254 | 96 | |||||||||||||||||||
02-28-13 | 5.79 | 0.46 | 0.19 | — | — | 0.65 | (0.42) | — | (0.42) | 6.02 | 6.55 | 11.72 | 27.73 | 2.14 | 1.63 | 2.14 | 7.76 | 887,047 | 93 | |||||||||||||||||||
02-29-12 | 6.08 | 0.35 | (0.32) | (0.00) * | — | 0.03 | (0.32) | — | (0.32) | 5.79 | 5.51 | 0.81 | (3.11) | 2.20 | 1.67 | 2.20 | 6.07 | 851,278 | 81 | |||||||||||||||||||
02-28-11 | 5.72 | 0.30 | 0.38 | (0.00) * | — | 0.68 | (0.30) | (0.02) | (0.32) | 6.08 | 6.02 | 12.32 | 7.09 | 1.93 | 1.59 | 1.93 | 4.87 | 893,661 | 60 | |||||||||||||||||||
02-28-10 | 3.81 | 0.28 | 1.95 | (0.00) * | — | 2.23 | (0.32) | — | (0.32) | 5.72 | 5.94 | 60.70 | 81.66 | 1.99 (6) | 1.77 (6) | 1.93 | 5.56 | 830,785 | 38 | |||||||||||||||||||
02-28-09 | 6.11 | 0.46 | (2.29) | (0.06) | — | (1.89) | (0.41) | — | (0.47) | 3.81 | 3.50 | (31.93) (5) | (32.03) (5) | 3.01 | 1.95 | 3.01 | 7.86 | 552,840 | 10 | |||||||||||||||||||
02-29-08 | 7.65 | 0.75 | (1.57) | (0.16) | — | (0.98) | (0.56) | — | (0.72) | 6.11 | 5.64 | (13.28) | (17.25) | 4.36 | 2.20 | 4.36 | 10.35 | 886,976 | 60 | |||||||||||||||||||
02-28-07 | 7.59 | 0.71 | 0.06 | (0.16) | — | 0.61 | (0.55) | — | (0.71) | 7.65 | 7.40 | 8.85 | 13.84 | 4.62 | 2.21 | 4.62 | 9.42 | 1,109,539 | 60 | |||||||||||||||||||
02-28-06 | 7.47 | 0.57 | 0.12 | (0.11) | — | 0.58 | (0.46) | — | (0.57) | 7.59 | 7.02 | 8.53 | (0.82) | 4.27 | 2.33 | 4.27 | 7.71 | 1,100,671 | 81 |
(1) | Total investment return calculations are attributable to common shares. |
(2) | Total investment return at net asset value has been calculated assuming a purchase at net asset value at the beginning of each period and a sale at net asset value at the end of each period and assumes reinvestment of dividends, capital gain distributions and return of capital distributions/allocations, if any, in accordance with the provisions of the dividend reinvestment plan. |
(3) | Total investment return at market value has been calculated assuming a purchase at market value at the beginning of each period and a sale at market value at the end of each period and assumes reinvestment of dividends, capital gain distributions, and return of capital/allocations, if any, in accordance with the provisions of the dividend reinvestment plan. |
(4) | The Adviser has agreed to limit expenses excluding interest, taxes, brokerage commission, leverage expenses, other investment related costs and extraordinary expenses, subject to possible recoupment by the Adviser within three years to 1.05% of Managed Assets plus 0.15% of average daily net assets. |
(5) | There was no impact on total return due to payments by affiliates. |
(6) | Includes excise tax fully reimbursed by the Investment Adviser. |
* | Amount is more than $(0.005). |
Ratios to average to average net assets
plus borrowings |
Supplemental data | |||||||||||||||||||||
Expenses (before interest and other fees
related to revolving credit facility) |
Expenses, prior to fee waivers and/or
recoupments, if any |
Expenses, net of fee waivers and/or
recoupments, if any |
Net investment income (loss) |
Preferred Shares - Aggregate amount
outstanding |
Liquidation and market value per share
of Preferred Shares |
Asset coverage inclusive of Preferred
Shares and debt per share (a) |
Borrowings at end of period | Asset coverage per $1,000 of debt (a) | Average borrowings |
Common shares outstanding at end of
year or period |
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Year or period ended | (%) | (%) | (%) | (%) | ($000's) | ($) | ($) | ($000's) | ($) | ($000's) | ($000's) | |||||||||||
02-28-15 | 1.16 | 1.49 | 1.48 | 3.95 | — | — | 4 | 323,500 | 3,709 | 362,490 | 147,788 | |||||||||||
02-28-14 | 1.15 | 1.50 | 1.50 | 4.51 | — | — | 3 | 407,000 | 3,207 | 387,979 | 147,788 | |||||||||||
02-28-13 | 1.17 | 1.53 | 1.53 | 5.55 | — | — | 3 | 370,600 | 3,394 | 345,145 | 147,427 | |||||||||||
02-29-12 | 1.24 | 1.64 | 1.64 | 4.51 | — | — | 3 | 364,000 | 3,339 | 293,444 | 147,116 | |||||||||||
02-28-11 | 1.39 | 1.68 | 1.68 | 4.26 | 100,000 | 25,000 | 102,850 | 187,000 | 6,314 | 122,641 | 146,954 | |||||||||||
02-28-10 | 1.67 (1) | 1.87 (1) | 1.81 | 5.23 | 200,000 | 25,000 | 98,400 | 83,000 | 13,419 | 46,416 | 145,210 | |||||||||||
02-28-09 | 1.54 | 2.37 | 2.37 | 6.21 | 225,000 | 25,000 | 70,175 | 81,000 | 10,603 | 227,891 | 145,178 | |||||||||||
02-29-08 | 1.60 | 3.17 | 3.17 | 7.53 | 450,000 | 25,000 | 53,125 | 338,000 | 4,956 | 391,475 | 145,094 | |||||||||||
02-28-07 | 1.56 | 3.25 | 3.25 | 6.63 | 450,000 | 25,000 | 62,925 | 281,000 | 6,550 | 459,982 | 145,033 | |||||||||||
02-28-06 | 1.58 | 2.90 | 2.90 | 5.24 | 450,000 | 25,000 | 55,050 | 465,000 | 4,335 | 509,178 | 145,033 |
(a) | Asset coverage ratios, for fiscal year periods beginning after 2011, is presented to represent the coverage availability to each $1,000 of borrowings. Asset coverage ratios, for periods prior to fiscal 2009, represented the coverage available for both the borrowings and Preferred Shares expressed in relation to each $1,000 of borrowings and Preferred Shares liquidation value outstanding. The Asset coverage ratio per $1,000 of debt for periods subsequent to fiscal 2008, is presented to represent |
the coverage available to each $1,000 of borrowings before consideration of any Preferred Shares liquidation price, while the Asset coverage inclusive of Preferred Shares, presents the coverage available to both borrowings and Preferred Shares, expressed in relation to the per share liquidation price of the Preferred Shares. | |
(1) | Includes excise tax fully reimbursed by the Investment Adviser. |
Price($) | NAV($) |
Premium/(Discount)
To NAV(%) |
Reported
NYSE Volume |
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Calendar Quarter Ended | High | Low | High | Low | High | Low | |
June 30, 2012 | 5.83 | 5.43 | 5.88 | 5.71 | (0.17) | (5.40) | 33,720,800 |
September 30, 2012 | 6.20 | 5.68 | 5.95 | 5.77 | 4.20 | (2.22) | 35,701,000 |
December 31, 2012 | 6.34 | 5.84 | 5.96 | 5.90 | 6.55 | (1.18) | 29,910,900 |
March 31, 2013 | 6.79 | 6.27 | 6.06 | 5.93 | 12.83 | 4.49 | 35,043,000 |
June 30, 2013 | 6.90 | 6.06 | 6.13 | 6.00 | 13.86 | 0.33 | 40,032,700 |
September 30, 2013 | 6.26 | 5.88 | 6.06 | 5.97 | 4.17 | (1.82) | 30,276,700 |
December 31, 2013 | 6.17 | 5.75 | 6.06 | 5.99 | 2.16 | (4.96) | 30,785,500 |
March 31, 2014 | 5.96 | 5.71 | 6.10 | 6.03 | (1.65) | (5.93) | 28,772,900 |
June 30, 2014 | 5.81 | 5.65 | 6.08 | 6.03 | (3.81) | (6.61) | 30,213,600 |
September 30, 2014 | 5.73 | 5.44 | 6.07 | 5.95 | (5.13) | (9.15) | 29,479,300 |
December 31, 2014 | 5.48 | 5.24 | 5.96 | 5.78 | (6.81) | (11.09) | 36,566,500 |
March 31, 2015 | 5.60 | 5.22 | 5.95 | 5.82 | (5.88) | (10.43) | 28,446,500 |
1. | Senior Loans. Under normal market conditions, at least 80% of the Trust's net assets (plus borrowings for investment purposes) will be invested in Senior Loans. This investment policy may be changed without shareholder approval so long as the Trust provides its shareholders with at least 60 days' prior notice of any changes in this investment policy. Under normal market conditions, the Trust invests at least 80% of its assets in Senior Loans made to corporations or other business entities organized under U.S. or Canadian law and that are domiciled in the United States and in U.S. territories and possessions or Canada. |
The Senior Loans in which the Trust invests either hold the most senior position in the capital structure of the borrower, hold an equal ranking with other senior debt, or have characteristics (such as a senior position secured by liens on a borrower's assets) that the Adviser or Sub-Adviser believes justify treatment as senior debt. These Senior Loans are typically below investment-grade credit quality. Investments rated below investment-grade (or of similar quality if unrated) are commonly known as high-yielding, high risk investments or as “junk” investments. | |
The Trust typically makes its investments in Senior Loans by purchasing a portion of the overall loan, i.e., the Trust becomes one of a number of lenders investing in the loan. The Trust may also make its investments in Senior Loans through the use of derivative instruments such as participations, credit-linked notes, credit default swaps, and total return swaps as long as the reference obligation for any such instrument is a Senior Loan. Investments through the use of such derivative instruments involve counterparty risk, i.e., the risk that the party from which such instrument is purchased will not perform as agreed. The Trust seeks to minimize such counterparty risk by purchasing such investments only from large, well established and highly rated counterparties. | |
2. | Other Investments. Under normal market conditions, the Trust may invest up to 20% of its total assets, measured at the time of investment, in a combination of one or more of the following types of investments (“Other Investments”): |
• | loans to borrowers organized or located in countries outside the United States and outside U.S. territories and possessions or Canada; |
• | unsecured floating rate loans, notes, and other debt instruments; |
• | floating rate subordinated loans; |
• | tranches of floating rate asset-backed securities, including structured notes; |
• | corporate debt securities; |
• | executing repurchase and reverse repurchase agreements; and |
• | equity securities incidental to investments in loans. |
3. | Cash and Short-Term Instruments. Under normal market conditions, the Trust may invest in cash and/or short-term instruments. During periods when, in the opinion of the Adviser or Sub-Adviser, a temporary defensive posture in the market is appropriate, the Trust may hold up to 100% of its assets in cash and/or short-term instruments. |
4. | Other Investment Strategies. The Trust may lend its portfolio securities, on a short-term or long-term basis, in an amount equal to up to 33 1 ⁄ 3 % of its total assets. |
1. | Industry Concentration. The Trust may invest in any industry. The Trust may not invest more than 25% of its total assets, measured at the time of investment, in any single industry. |
2. | Borrower Diversification. The Trust is diversified, as such term is defined in the 1940 Act. A diversified fund may not, as to 75% of its total assets, invest more than 5% of its total assets in any one issuer and may not purchase more than 10% of the outstanding voting securities of any one issuer (other than securities issues or guaranteed |
by the U. S. government or any of its agencies or instrumentalities, or other investment companies). The Trust will consider the borrower on a loan, including a loan participation, to be the issuer of such loan. With respect to no more than 25% of its total assets, the Trust may make investments that are not subject to the foregoing restrictions. |
1. | Limitations on currencies. The Trust's investments must be denominated in U.S. dollars, provided that the Trust may invest up to 15% of its total assets in investments denominated in the OECD currencies (including the euro), other than the U.S. dollar. The Trust will engage in currency exchange transactions to seek to hedge, as closely as practicable, 100% of the economic impact to the Trust arising from foreign currency fluctuations. |
2. | Maturity. Although the Trust has no restrictions on portfolio maturity, under normal market conditions, at least 80% of the Trust's total assets will be invested in assets with remaining maturities of one to ten years. The maximum maturity on any loan in which the Trust can invest is ten years. |
3. | Limitations on Other Investments. The Trust may also invest up to 20% of its total assets, measured at the time of investment, in Other Investments. The following additional limitations apply to Other Investments: |
• | Unsecured Debt Instruments. The Trust may not invest in unsecured floating rate loans, notes, and other debt instruments, in an aggregate amount that exceeds 20% of the Trust's total assets, measured at the time of investment. |
• | Equities. The Trust may acquire equity securities only as an incident to the purchase or ownership of a loan or in connection with a reorganization of a borrower or its debt. |
• | Subordinated Loans. The Trust may not invest in floating rate subordinated loans, whether or not secured, in an aggregated amount that exceeds 5% of its total assets, measured at the time of investment. |
4. | Investment Quality; Credit Analysis. Loans in which the Trust invests generally are rated below investment-grade credit quality or are unrated. In acquiring a loan, the Adviser or Sub-Adviser will consider some or all of the following factors concerning the borrower: ability to service debt from internally generated funds; adequacy of liquidity and working capital; appropriateness of capital structure; leverage consistent with industry norms; historical experience of achieving business and financial projections; the quality and experience of management; and adequacy of collateral coverage. The Adviser or Sub-Adviser performs its own independent credit analysis of each borrower. In so doing, the Adviser or Sub-Adviser may utilize information and credit analyses from agents that originate or administer loans, other lenders investing in a loan, and other sources. The Adviser or Sub-Adviser also may communicate directly with management of the borrowers. These analyses continue on a periodic basis for any Senior Loan held by the Trust. See “Risk Factors and Special Considerations - Credit Risk on Senior Loans.” |
5. | Use of Leverage. The Trust may borrow money and issue Preferred Shares to the fullest extent permitted by the 1940 Act. See “Investment Objective and Policies - Policy on Borrowing” and “Investment Objective and Policies - Policy on Issuance of Preferred Shares.” |
6. | Short-term Instruments. Short-term instruments in which the Trust invests may include: (i) commercial paper rated A-1 by Standard and Poor's Ratings Services (“S&P”) or P-1 by Moody's Investors Service, Inc. (“Moody's”), or of comparable quality as determined by the Adviser or Sub-Adviser; (ii) certificates of deposit, bankers' acceptances, and other bank deposits and obligations; and (iii) securities issued or guaranteed by the U.S. government, its agencies, or instrumentalities. |
Annual Expenses Without Borrowings
(as a percentage of net assets attributable to Common Shares) |
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Management Fees (as a percentage of Managed Assets) 1 | 1.05% |
Other Operating Expenses 2 | 0.16% |
Total Annual Expenses | 1.21% |
Fee Waivers/Reimbursements/Recoupment 3 | None |
Net Annual Expenses | 1.21% |
1 | Pursuant to the investment management agreement with the Trust, the Adviser is paid a fee of 1.05% of the Trust’s Managed Assets. For the description of “Managed Assets,” please see “Description of the Trust – Adviser/Sub-Adviser” earlier in this Prospectus. The portion of the management fee attributable to the advisory services is 0.80% and the portion of the management fee attributable to the administrative services is 0.25%. |
2 | Other Operating Expenses are estimated amounts for the current fiscal year and do not include the expenses of borrowing. |
3 | The Adviser is contractually obligated to limit expenses of the Trust at a rate of 1.05% of average daily Managed Assets plus 0.15% of average daily net assets through July 1, 2016. The limitation does not extend to interest, taxes, investment-related costs, leverage expenses, extraordinary expenses, and Acquired Fund Fees and Expenses. The limitation is subject to possible recoupment by the adviser within 36 months of the waiver or reimbursement. Termination or modification of this obligation requires approval by the Trust’s board. |
Assumed Portfolio Return, net of expenses 1 | -10% | -5% | 0% | 5% | 10% |
Corresponding Return to Common Shareholders 2 | -14.77% | -7.63% | -0.48% | 6.66% | 13.80% |
1 | The Assumed Portfolio Return is required by regulation of the SEC and is not a prediction of, and does not represent, the projected or actual performance of the Trust. |
2 | In order to compute the Corresponding Return to Common Shareholders, the Assumed Portfolio Return is multiplied by the total value of the Trust's assets at the beginning of the Trust's fiscal year to obtain an assumed return to the Trust. From this amount, all interest accrued during the year is subtracted to determine the return available to shareholders. The return available to shareholders is then divided by the total value of the Trust's net assets attributable to Common Shares as of the beginning of the fiscal year to determine the Corresponding Return to Common Shareholders. |
• | Debt obligations are valued using an evaluated price provided by an independent pricing service. Evaluated prices provided by the pricing service may be determined without exclusive reliance on quoted prices, and may reflect factors such as institution-size trading in similar groups of securities, developments related to specific securities, benchmark yield, quality, type of issue, coupon rate, maturity individual trading characteristics and other market data. |
• | Securities traded in the over-the-counter market are valued based on prices provided by independent pricing services or market makers. |
• | Options not listed on an exchange are valued by an independent source using an industry accepted model, such as Black-Scholes. |
• | Centrally cleared swap agreements are valued using a price provided by the central counterparty clearinghouse. |
• | Over-the-counter swap agreements are valued using a price provided by an independent pricing service. |
• | Forward foreign currency contracts are valued utilizing current and forward rates obtained from an independent pricing service. Such prices from the third party pricing service are for specific settlement periods and the Trust’s forward foreign currency contracts are valued at an interpolated rate between the closest preceding and subsequent period reported by the independent pricing service. |
• | Securities for which market prices are not provided by any of the above methods may be valued based upon quotes furnished by brokers. |
Title of Class |
Number
Authorized |
Number Held By
the Trust for its Own Account |
Number
Outstanding |
Common Shares | unlimited | 0 | 147,787,680.648 |
TABLE OF CONTENTS | |
Page | |
Introduction and Glossary
|
1 |
History of the Trust
|
3 |
Supplemental Description of Fund Investments and Risks
|
4 |
Portfolio Turnover
|
10 |
Fundamental and Non-Fundamental Investment Restrictions
|
10 |
Management of the Trust
|
12 |
Code of Ethics
|
25 |
Principal Shareholders and Control Persons
|
25 |
Proxy Voting Procedures and Guidelines
|
25 |
Adviser
|
26 |
Expenses
|
27 |
Expense Limitations
|
27 |
Sub-Adviser
|
27 |
Principal Underwriter
|
29 |
Other Service Providers
|
30 |
Portfolio Transactions
|
30 |
Shareholder Reinvestment Program
|
33 |
Federal Taxation
|
34 |
Financial Statements
|
38 |
Appendix A – Proxy Voting Procedures and Guidelines | A-1 |
1940 Act File No. | 811-05410 |
PRO-PL1F-25M | (0615-063015) |
1. | issue senior securities, except insofar as the Fund may be deemed to have issued a senior security by reason of: (i) entering into certain interest rate hedging transactions; (ii) entering into reverse repurchase agreements; (iii) borrowing money in an amount permitted under the 1940 Act, including the rules, regulations, interpretations thereunder, and any exemptive relief provided by the SEC; or (iv) issuing a class or classes of preferred shares in an amount not exceeding 50%, or such other percentage permitted by law, of the Fund’s total assets less all liabilities and indebtedness not represented by senior securities; |
2. | invest more than 25% of its total assets in any industry; |
3. | invest in marketable warrants other than those acquired in conjunction with Senior Loans and such warrants will not constitute more than 5% of its assets; |
4. | make investments in any one issuer other than U.S. government securities if, immediately after such purchase or acquisition, more than 5% of the value of the Fund’s total assets would be invested in such issuer, or the Fund would own more than 25% of any outstanding issue, except that up to 25% of the Fund’s total assets may be invested without regard to the foregoing restrictions. For the purpose of the foregoing restriction, the Fund will consider the borrower of a Senior Loan to be the issuer of such Senior Loan. In addition, with respect to a Senior Loan under which the Fund does not have privity with the borrower or would not have a direct cause of action against the borrower in the event of the failure of the borrower to pay scheduled principal or interest, the Fund will also separately meet the foregoing requirements and consider each interpositioned bank (a lender from which the Fund acquires a Senior Loan) to be an issuer of the Senior Loan; |
5. | act as an underwriter of securities, except to the extent that it may be deemed to act as an underwriter in certain cases when disposing of its portfolio investments or acting as an agent or one of a group of co-agents in originating Senior Loans; |
6. | purchase or sell equity securities (except that the Fund may, incidental to the purchase or ownership of an interest in a Senior Loan, or as part of a borrower reorganization, acquire, sell and exercise warrants and/or acquire or sell other equity securities), real estate, real estate mortgage loans, commodities, commodity futures contracts, or oil or gas exploration or development programs; or sell short, purchase or sell straddles, spreads, or combinations thereof, or write put or call options; |
7. | make loans of money or property to any person, except that the Fund: (i) may make loans to corporations or other business entities, or enter into leases or other arrangements that have the characteristics of a loan; (ii) may lend portfolio instruments; and (iii) may acquire securities subject to repurchase agreements; |
8. | purchase shares of other investment companies, except in connection with a merger, consolidation, acquisition or reorganization; or |
9. | make investments on margin or hypothecate, mortgage, or pledge any of its assets except for the purpose of securing borrowings as described above in connection with the issuance of senior securities and then only in an amount up to 33 1/3% (50% in the case of the issuance of a preferred class of shares), or such other percentage permitted by law, of the value of the Fund’s total assets (including, with respect to borrowings, the amount borrowed) less all liabilities other than borrowings (or, in the case of the issuance of senior securities, less all liabilities and indebtedness not represented by senior securities). |
Name, Address and Age | Position(s) Held with the Trust | Term of Office and Length of Time Served 1 | Principal Occupation(s) During the Past 5 Years | Number of Funds in the Fund Complex Overseen by Trustees 2 | Other Board Positions Held by Trustees |
Independent Trustees | |||||
Colleen D. Baldwin
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 55 |
Trustee | October 2007 – Present | President, Glantuam Partners, LLC, a business consulting firm (January 2009 – Present). | 157 | DSM/Dentaquest, Boston MA (February 2014 – Present). |
John V. Boyer
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 61 |
Chairperson
Trustee |
January 2014 – Present
January 2005 – Present |
President and Chief Executive Officer, Bechtler Arts Foundation, an arts and education foundation (January 2008 – Present). | 157 | None. |
Patricia W. Chadwick
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 66 |
Trustee | January 2006 – Present | Consultant and President, Ravengate Partners LLC, a consulting firm that provides advice regarding financial markets and the global economy (January 2000 – Present). | 157 | Wisconsin Energy Corporation (June 2006 – Present) and The Royce Funds (35 funds) (December 2009 – Present). |
Albert E. DePrince, Jr.
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 74 |
Trustee | May 2013 – Present | Retired. Formerly, Professor of Economics and Finance, Middle Tennessee State University (August 1991– July 2014); Dr. DePrince continued to hold a position with the university under a post-retirement contract through the end of 2014. | 157 | None. |
Name, Address and Age | Position(s) Held with the Trust | Term of Office and Length of Time Served 1 | Principal Occupation(s) During the Past 5 Years | Number of Funds in the Fund Complex Overseen by Trustees 2 | Other Board Positions Held by Trustees |
Peter S. Drotch
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 73 |
Trustee | October 2007 – Present | Retired. | 157 | First Marblehead Corporation (September 2003 – Present). |
Russell H. Jones
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 71 |
Trustee | May 2013 – Present | Retired. | 157 | None. |
Patrick W. Kenny
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 72 |
Trustee | January 2005 – Present | Retired. | 157 | Assured Guaranty Ltd. (April 2004 – Present). |
Joseph E. Obermeyer
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 57 |
Trustee | May 2013 – Present | President, Obermeyer & Associates, Inc., a provider of financial and economic consulting services (November 1999 – Present). | 157 | None. |
Sheryl K. Pressler
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 64 |
Trustee | January 2006 – Present | Consultant (May 2001 – Present). | 157 | None. |
Roger B. Vincent
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 69 |
Trustee | February 2002 – Present | Retired. Formerly, President, Springwell Corporation, a corporate finance firm (March 1989 – August 2011). | 157 | UGI Corporation (February 2006 – Present) and UGI Utilities, Inc. (February 2006 – Present). |
Trustee who is an “Interested Person” | |||||
Shaun Mathews
3
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 59 |
Trustee | June 2006 – Present | President and Chief Executive Officer, Voya Investments, LLC (November 2006 – Present). | 157 | Voya Capital Corporation, LLC and Voya Investments Distributor, LLC, (December 2005 – Present); Voya Funds Services, LLC, Voya Investments, LLC and Voya Investment Management, (March 2006 – Present); and Voya Investment Trust Co. (April 2009 – Present). |
1 | Trustees serve until their successors are duly elected and qualified. The tenure of each Trustee who is not an “interested person” as defined in the 1940 Act, of the Fund (as defined below, “Independent Trustee”) is subject to the Board’s retirement policy, which states that each duly elected or appointed Independent Trustee shall retire from and cease to be a member of the Board of Trustees at the close of business on December 31 of the calendar year in which the Independent |
Trustee attains the age of 75. A majority vote of the Board’s other Independent Trustees may extend the retirement date of an Independent Trustee if the retirement would trigger a requirement to hold a meeting of shareholders of the Trust under applicable law, whether for the purposes of appointing a successor to the Independent Trustee or otherwise complying under applicable law, in which case the extension would apply until such time as the shareholder meeting can be held or is no longer required (as determined by a vote of a majority of the other Independent Trustees). | |
2 | For the purposes of this table, “Fund Complex” means the Voya family of funds, including the following investment companies: Voya Asia Pacific High Dividend Equity Income Fund; Voya Balanced Portfolio, Inc.; Voya Emerging Markets High Dividend Equity Fund; Voya Equity Trust; Voya Funds Trust; Voya Global Advantage and Premium Opportunity Fund; Voya Global Equity Dividend and Premium Opportunity Fund; Voya Infrastructure, Industrials and Materials Fund; Voya Intermediate Bond Portfolio; Voya International High Dividend Equity Income Fund; Voya Investors Trust; Voya Money Market Portfolio; Voya Mutual Funds; Voya Natural Resources Equity Income Fund; Voya Partners, Inc.; Voya Prime Rate Trust; Voya Senior Income Fund; Voya Separate Portfolios Trust; Voya Series Fund, Inc.; Voya Strategic Allocation Portfolios, Inc.; Voya Variable Funds; Voya Variable Insurance Trust; Voya Variable Portfolios, Inc.; and Voya Variable Products Trust. The number of funds in the Fund Complex is as of May 31, 2015. |
3 | Mr. Mathews is deemed to be an “interested person” of the Trust, as defined in the 1940 Act, because of his current affiliation with any of the Voya funds, Voya Financial, Inc. or Voya Financial, Inc.’s affiliates. |
Name, Address and Age | Position(s) Held with the Trust | Term of Office and Length of Time Served 1 | Principal Occupation(s) During the Past 5 Years |
Shaun P. Mathews
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 59 |
President and Chief Executive Officer | November 2006 - Present | President and Chief Executive Officer, Voya Investments, LLC (November 2006 – Present). |
Michael J. Roland
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 57 |
Executive Vice President | February 2002 - Present | Managing Director and Chief Operating Officer, Voya Investments, LLC and Voya Funds Services, LLC (April 2012 – Present). Formerly, Chief Compliance Officer, Directed Services LLC and Voya Investments, LLC (March 2011 – December 2013); Executive Vice President and Chief Operating Officer, Voya Investments, LLC and Voya Funds Services, LLC (January 2007 – April 2012) and Chief Compliance Officer, Voya Family of Funds (March 2011 – February 2012). |
Stanley D. Vyner
230 Park Avenue New York, New York 10169 Age: 65 |
Executive Vice President
Chief Investment Risk Officer |
August 2003 - Present
September 2009 - Present |
Executive Vice President, Voya Investments, LLC (July 2000 – Present) and Chief Investment Risk Officer, Voya Investments, LLC (January 2003 – Present). |
Kevin M. Gleason
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 48 |
Chief Compliance Officer | February 2012 - Present | Senior Vice President and Chief Compliance Officer, Voya Investments, LLC (February 2012- Present). Formerly, Assistant General Counsel and Assistant Secretary, The Northwestern Mutual Life Insurance Company, (June 2004 – January 2012). |
Todd Modic
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 47 |
Senior Vice President, Chief/Principal Financial Officer and Assistant Secretary | March 2005 - Present | Senior Vice President, Voya Funds Services, LLC (March 2005 – Present). |
Name, Address and Age | Position(s) Held with the Trust | Term of Office and Length of Time Served 1 | Principal Occupation(s) During the Past 5 Years |
Daniel A. Norman
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 57 |
Senior Vice President
Treasurer |
April 1995 - Present | Senior Vice President and Group Head, Voya Investment Management Co. LLC (January 2000 – Present) |
William H. Rivoir III
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 64 |
Senior Vice President and Assistant Secretary | February 2001 - Present | Senior Vice President, Voya Investment Management Co. LLC (January 2004 – Present) |
Kimberly A. Anderson
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 50 |
Senior Vice President | November 2003 - Present | Senior Vice President, Voya Investments, LLC (October 2003 – Present). |
Jeffrey A. Bakalar
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 55 |
Senior Vice President | November 1999 - Present | Senior Vice President and Group Head, Voya Investment Management Co. LLC (January 2000 – Present) |
Julius Drelick III
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 48 |
Senior Vice President | July 2012 - Present | Senior Vice President – Fund Compliance, Voya Funds Services, LLC (June 2012 – Present); and Chief Compliance Officer of Directed Services LLC and Voya Investments, LLC (January 2014 – Present). Formerly, Vice President - Platform Product Management & Project Management, Voya Investments, LLC (April 2007 – June 2012). |
Elliot A. Rosen
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 62 |
Senior Vice President | May 2002 - Present | Senior Vice President, Voya Investment Management Co. LLC (February 1999 – Present) |
Robert Terris
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 45 |
Senior Vice President | May 2006 - Present | Senior Vice President, Head of Division Operations, Voya Funds Services, LLC (January 2006 – Present). |
Fred Bedoya
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 42 |
Vice President and Treasurer | September 2012 - Present | Vice President, Voya Funds Services, LLC (March 2012 – Present). Formerly, Assistant Vice President – Director, Voya Funds Services, LLC (March 2003 – March 2012). |
Maria M. Anderson
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 57 |
Vice President | September 2004 - Present | Vice President, Voya Funds Services, LLC (September 2004 – Present). |
Name, Address and Age | Position(s) Held with the Trust | Term of Office and Length of Time Served 1 | Principal Occupation(s) During the Past 5 Years |
Lauren D. Bensinger
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 61 |
Vice President | August 2003 - Present | Vice President, Voya Investments, LLC and Voya Funds Services, LLC (February 1996 – Present); Vice President, Voya Investments, LLC (October 2004 – Present); and Vice President and Money Laundering Reporting Officer, Voya Investments Distributor, LLC (April 2010 – Present). Anti-Money Laundering Compliance Officer, Voya Financial, Inc. (January 2013 – Present); Money Laundering Reporting Officer, Voya Investment Management Trust Co. (October 2012 – Present). Formerly, Chief Compliance Officer, Voya Investments Distributor, LLC (August 1995 – April 2010). |
Sara Donaldson
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 55 |
Vice President | September 2014 - Present | Vice President, Voya Funds Services, LLC (April 2014 – Present). Formerly, Director, Compliance, AXA Rosenberg Global Services, LLC (September 1997 – March 2014). |
Robyn L. Ichilov
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 47 |
Vice President | November 1997 - Present | Vice President, Voya Funds Services, LLC (November 1995 – Present) and Voya Investments, LLC (August 1997 – Present). Formerly, Treasurer, Voya Family of Funds (November 1999 – February 2012). |
Jason Kadavy
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 39 |
Vice President | September 2012 - Present | Vice President, Voya Funds Services, LLC (July 2007 – Present). |
Kimberly K. Springer
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 58 |
Vice President | March 2006 - Present | Vice President – Mutual Fund Product Development, Voya Investments, LLC (July 2012 – Present); Vice President, Voya Investment Management Voya Family of Funds (March 2010 – Present) and Vice President, Voya Funds Services, LLC (March 2006 - Present). Formerly Managing Paralegal, Registration Statements (June 2003 – July 2012). |
Name, Address and Age | Position(s) Held with the Trust | Term of Office and Length of Time Served 1 | Principal Occupation(s) During the Past 5 Years |
Craig Wheeler
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 46 |
Vice President | May 2013 - Present | Vice President – Director of Tax, Voya Funds Services, LLC (March 2013 – Present). Formerly, Assistant Vice President – Director of Tax, Voya Funds Services, LLC (March 2008 – February 2013). |
Huey P. Falgout, Jr.
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 51 |
Secretary | August 2003 - Present | Senior Vice President and Chief Counsel, Voya Investment Management – Mutual Fund Legal Department (March 2010 – Present). |
Paul A. Caldarelli
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 63 |
Assistant Secretary | June 2010 - Present | Vice President and Senior Counsel, Voya Investment Management – Mutual Fund Legal Department (March 2010 – Present). |
Theresa K. Kelety
7337 East Doubletree Ranch Road, Suite 100 Scottsdale, AZ 85258-2034 Age: 52 |
Assistant Secretary | August 2003 - Present | Vice President and Senior Counsel, Voya Investment Management – Mutual Fund Legal Department (March 2010 – Present). |
1 | The Officers hold office until the next annual meeting of the Board of Trustees and until their successors shall have been elected and qualified. |
Joint IRC | DE IRC | I/B/F IRC | |
Voya Prime Rate Trust | X |
Fund | Dollar Range of Equity Securities in each Fund as of December 31, 2014 | ||||
Colleen D. Baldwin | John V. Boyer | Patricia W. Chadwick | Albert E. DePrince, Jr. | Peter S. Drotch | |
Voya Prime Rate Trust | None | None | None | None | None |
Aggregate Dollar Range of Equity Securities in All Registered Investment Companies Overseen by Trustee in the Voya family of funds | Over $100,000 1 |
Over $100,000
Over $100,000 1 |
Over $100,000 | Over $100,000 1 | Over $100,000 |
1 | Includes the value of shares in which a Trustee has an indirect interest through a deferred compensation plan and/or a 401(K) plan. |
Name of Trustee | Name of Owners and Relationship to Trustee | Company | Title of Class | Value of Securities | Percentage of Class |
Colleen D. Baldwin | N/A | N/A | N/A | N/A | N/A |
John V. Boyer | N/A | N/A | N/A | N/A | N/A |
Patricia W. Chadwick | N/A | N/A | N/A | N/A | N/A |
Albert E. DePrince, Jr. | N/A | N/A | N/A | N/A | N/A |
Peter S. Drotch | N/A | N/A | N/A | N/A | N/A |
Russell H. Jones | N/A | N/A | N/A | N/A | N/A |
Patrick W. Kenny | N/A | N/A | N/A | N/A | N/A |
Joseph Obermeyer | N/A | N/A | N/A | N/A | N/A |
Sheryl K. Pressler | N/A | N/A | N/A | N/A | N/A |
Roger B. Vincent | N/A | N/A | N/A | N/A | N/A |
Fund | Aggregate Compensation | |||||
Colleen D. Baldwin | John V. Boyer | Patricia W. Chadwick | Albert E. DePrince, Jr. | Peter S. Drotch | J. Michael Earley 1 | |
Voya Prime Rate Trust | $2,639.63 | $3,177.11 | $2,642.09 | $2,409.03 | $2,409.03 | $2,603.25 |
Pension or Retirement Benefits Accrued as Part of Fund Expenses | N/A | N/A | N/A | N/A | N/A | N/A |
Estimated Annual Benefits Upon Retirement | N/A | N/A | N/A | N/A | N/A | N/A |
Total Compensation from the Fund and the Voya familiy of funds Paid to Trustees | $339,680.55 | $408,861.11 2 | $340,000.00 | $310,000.00 | $310,000.00 | $335,000.00 |
Fund | Aggregate Compensation | ||||
Russell H. Jones | Patrick W. Kenny | Joseph E. Obermeyer | Sheryl K. Pressler | Roger B. Vincent | |
Voya Prime Rate Trust | $2,590.91 | $2,603.25 | $2,627.29 | $2,914.00 | $2,432.63 |
Pension or Retirement Benefits Accrued as Part of Fund Expenses | N/A | N/A | N/A | N/A | N/A |
Estimated Annual Benefits Upon Retirement | N/A | N/A | N/A | N/A | N/A |
Total Compensation from the Fund and the Voya familiy of funds Paid to Trustees | $333,402.78 2 | $335,000.00 2 | $338,083.33 2 | $375,000.00 | $313,055.56 |
1 | Mr. Earley retired as a Trustee effective December 31, 2014. |
2 | During the fiscal year ended February 28, 2015, Messrs. Boyer, Jones, Kenny, and Obermeyer deferred $20,000.00, $69,000.00, $83,750.00, and $33,808.00, respectively, of their compensation from the Voya family of funds. |
Name of Fund | Class | Name and Address |
Percentage
of Class |
Percentage
of Fund |
Voya Prime Rate Trust | Beneficial Owner |
Cede & Co
PO Box 20 Bowling Green Station New York, NY 10274-0020 |
80.64% | 80.64% |
Voya Prime Rate Trust | Beneficial Owner |
Voya Prime Rate Trust
Treasury Account Attn: Voya Control Dept 4400 Computer Dr Westborough, MA 01581-1755 |
15.63% | 15.63% |
Fund | February 28, | ||
2015 | 2014 | 2013 | |
Voya Prime Rate Trust | |||
Management Fee (Prior to May 1, 2015) | $9,964,195 | $10,245,189 | $9,685,176 |
Administrative Services Fee (Prior to May 1, 2015) | $3,113,811 | $ 3,201,622 | $3,026,618 |
Management Fee including Administrative Services (effective May 1, 2015) | None | None | None |
Fund | February 28, | ||
2015 | 2014 | 2013 | |
Voya Prime Rate Trust | ($41,420) | None | None |
Sub-Adviser | Annual Sub-Advisory Fee |
Voya Investment Management Co. LLC (“Voya IM”) | 0.3600% |
Fund | February 28, | ||
2015 | 2014 | 2013 | |
Voya Prime Rate Trust | $4,483,887.63 | $4,610,335.43 | $4,358,336.64 |
Portfolio Manager | Registered Investment Companies | Other Pooled Investment Vehicles | Other Accounts | |||
Number of Accounts | Total Assets | Number of Accounts | Total Assets | Number of Accounts | Total Assets | |
Jeffrey A. Bakalar | 3 | $2,972,654,083 | 2 | $1,348,109,551 | 6 | $2,188,054,855 |
Daniel A. Norman | 3 | $2,972,654,083 | 23 | $9,518,315,455 | 8 | $6,662,574,818 |
Portfolio Manager | Dollar Range of Fund Shares Owned |
Jeffrey A. Bakalar | $50,001-$100,000 |
Daniel A. Norman | $500,001-$1,000,000 |
Fund | Amount | Character | Expiration Dates |
Voya Prime Rate Trust | $ (41,585,301.00) | Short-Term | 2017 |
$(125,812,939.00) | Short-Term | 2018 | |
$ (24,760,715.00) | Short-Term | 2019 | |
$ (14,998,121.00) | Long-Term | None | |
$ (207,157,076.00) | Total |
ACSC | Shares are depleted on a first-in, first-out basis with the cost basis calculated by multiplying the shares redeemed by the average cost per share on all shares purchased on or after January 1, 2012. |
FIFO (First In, First Out) | Oldest shares purchased are redeemed first. |
LIFO (Last In, First Out) | Most recent shares purchased are redeemed first. |
HIFO (Highest Cost In, First Out) | Shares with highest cost basis are redeemed first. |
LOFO (Lowest Cost In, First Out) | Shares with lowest cost basis are redeemed first. |
HILT (Highest Cost Long Term In, First Out) | Will redeem the long-term highest cost available shares first. |
HIST (Highest Cost Short Term In, First Out) | Will redeem the short-term highest cost available shares first. |
LILT (Lowest Cost Long Term In, First Out) | Will redeem the long-term lowest cost available shares first. |
LIST (Lowest Cost Short Term In, First Out) | Will redeem the short-term lowest cost available shares first. |
Specific Lot Depletion | The shares sold are specifically identified by you at the time of redemption. |
PROXY VOTING PROCEDURES AND GUIDELINES
VOYA FUNDS
VOYA INVESTMENTS, LLC
DIRECTED SERVICES LLC
Date Last Revised: May 21, 2015
Proxy Voting Procedures and Guidelines for the Voya Funds and Advisors
Introduction
The purpose of these Proxy Voting Procedures and Guidelines (the Procedures, the Guidelines) is to set forth the Board of Directors/Trustees of the Voya funds (the Board) instructions to Voya Investments, LLC and Directed Services LLC (each referred to as the Advisor and collectively the Advisors) for the voting of proxies for each fund the Board serves as Director/Trustee (the Funds).
The Board may elect to delegate proxy voting to a sub-advisor of the Funds and also approve the sub-advisors proxy policies and procedures for implementation on behalf of such Voya fund (a Sub-Advisor-Voted Fund). A Sub-Advisor-Voted Fund is not covered under these Procedures and Guidelines, except as described in the Reporting and Record Retention section below with respect to vote reporting requirements. However, they are covered by those sub-advisors proxy policies, provided that the Board has approved them.
These Procedures and Guidelines incorporate principals and guidance set forth in relevant pronouncements of the Securities and Exchange Commission (SEC) and its staff on the fiduciary duty of the Board to ensure that proxies are voted in a timely manner and that voting decisions are in the Funds beneficial owners best interest.
The Board, through these instructions, delegates to the Advisors Proxy Coordinator the responsibility to vote the Funds proxies in accordance with these Procedures and Guidelines on behalf of the Board. The Board further delegates to the Compliance Committee of the Board certain oversight duties regarding the Advisors functions as it pertains to the voting of the Funds proxies.
The Board directs the engagement of a Proxy Advisory Firm to be initially appointed and annually reviewed and approved by the Board. The Proxy Coordinator is responsible for overseeing the Proxy Advisory Firm and shall direct the Proxy Advisory Firm to vote proxies in accordance with the Guidelines.
These Procedures and Guidelines will be reviewed by the Boards Compliance Committee annually, and will be updated at such time as deemed appropriate. No change to these Procedures and Guidelines will be made except pursuant to Board direction. Non-material amendments, however, may be approved for immediate implementation by the Boards Compliance Committee, subject to ratification by the full board at its next regularly scheduled meeting.
Advisors Roles and Responsibilities
Proxy Coordinator
The Voya Proxy Coordinator shall direct the Proxy Advisory Firm to vote proxies on behalf of the Funds and the Advisors in connection with annual and special meetings of shareholders (except those regarding bankruptcy matters and/or related plans of reorganization).
The Proxy Coordinator is responsible for overseeing the Proxy Advisory Firm (as defined in the Proxy Advisory Firm section below) and voting the Funds proxies in accordance with the Procedures and Guidelines on behalf of the Funds and the Advisors. The Proxy Coordinator is authorized to direct the Proxy Advisory Firm to vote a Funds proxy in accordance with the Procedures and Guidelines. Responsibilities assigned to the Proxy Coordinator, or activities that support it, may be performed by such members of the Proxy Group (as defined in the Proxy Group section below) or employees of the Advisors affiliates as the Proxy Group deems appropriate.
The Proxy Coordinator is also responsible for identifying and informing Counsel (as defined in the Counsel section below) of potential conflicts between the proxy issuer and the Proxy Advisory Firm, the Advisors, the Funds principal underwriters, or an affiliated person of the Funds. The Proxy Coordinator will identify such potential conflicts of interest based on information the Proxy Advisory Firm periodically provides; client analyses, distributor, broker-dealer, and vendor lists; and information derived from other sources, including public filings.
Proxy Advisory Firm
The Proxy Advisory Firm is responsible for coordinating with the Funds custodians to ensure that all proxy materials received by the custodians relating to the portfolio securities are processed in a timely fashion. To the extent applicable, the Proxy Advisory Firm is required to provide research, analysis, and
vote recommendations under its Proxy Voting guidelines, as well as to produce vote recommendations and/or refer all proxies in accordance with the Guidelines.
Proxy Group
The members of the Proxy Group, which may include employees of the Advisors affiliates, are identified in Exhibit 1 , and may be amended from time to time at the Advisors discretion except that the Funds Chief Investment Risk Officer, the Funds Chief Compliance Officer, and the Funds Proxy Coordinator shall be members unless the Board determines otherwise.
Investment Professionals
The Funds sub-advisors and/or portfolio managers are each referred to herein as an Investment Professional and collectively, Investment Professionals. The Board encourages the Funds Investment Professionals to submit a recommendation to the Proxy Group regarding any proxy voting related proposal pertaining to the portfolio securities over which they have day-to-day portfolio management responsibility. Additionally, when requested, Investment Professionals are responsible for submitting a recommendation to the Proxy Group regarding proxy voting related proxy contests or mergers and acquisitions involving to the portfolio securities over which they have day-to-day portfolio management responsibility.
Counsel
A member of the mutual funds legal practice group of the Advisor (Counsel) is responsible for determining if a potential conflict of interest is in fact deemed a conflict of interest and notifying the Chair of the Compliance Committee.
Proxy Voting Procedures
Proxy Group Oversight
A minimum of four (4) members of the Proxy Group (or three (3) if one member of the quorum is either the Funds Chief Investment Risk Officer or Chief Compliance Officer) will constitute a quorum for purposes of taking action at any meeting of the Group.
The Proxy Group may meet in person or by telephone. The Proxy Group also may take action via electronic mail in lieu of a meeting, provided that the Proxy Coordinator follows the directions of a majority of a quorum responding via e-mail.
A Proxy Group meeting will be held whenever:
· The Proxy Coordinator receives a recommendation from an Investment Professional to vote a Funds proxy contrary to the Guidelines.
· The Proxy Advisory Firm has made no recommendation on a matter and the Procedures do not provide instruction.
· A matter requires case-by-case consideration, including those in which the Proxy Advisory Firms recommendation is deemed to be materially conflicted.
· The Proxy Coordinator requests the Proxy Groups input and vote recommendation on a matter.
In its discretion, the Proxy Group may provide the Proxy Coordinator with standing instructions to perform responsibilities assigned to the Proxy Group, or activities in support thereof, on its behalf, provided that such instructions do not contravene any requirements of these Procedures or the Guidelines.
If the Proxy Group has previously provided the Proxy Coordinator with standing instructions to vote in accordance with the Proxy Advisory Firms recommendation, these recommendations do not contravene any requirements of these Procedures or the Guidelines, and no issue of conflict must be considered, the Proxy Coordinator may implement the instructions without calling a Proxy Group meeting.
For each proposal referred to the Proxy Group, it will review:
· The relevant Procedures and Guidelines,
· The recommendation of the Proxy Advisory Firm, if any,
· The recommendation of the Investment Professional(s), if any,
· Other resources that any Proxy Group member deems appropriate to aid in a determination of a recommendation.
Vote Instruction
The vote of a simple majority of the voting members present will determine any matter submitted to a vote. Tie votes will be resolved by securing the vote of members not present at the meeting; provided, however, that the Proxy Coordinator will ensure compliance with all applicable voting and conflict of interest procedures, and will use best efforts to secure votes from as many absent members as may reasonably be accomplished, and to provide such members with a substantially similar level of relevant information as that provided at the in-person meeting.
In the event a tie vote cannot be resolved, or in the event that the vote remains a tie, the Proxy Coordinator will refer the vote to the Compliance Committee Chair for vote determination.
In the event a tie vote cannot be timely resolved in connection with a voting deadline, the Proxy Coordinator will vote in accordance with the Proxy Advisory Firms recommendation.
A member of the Proxy Group may abstain from voting on any given matter, provided that the member does not participate in the Proxy Group discussion(s) in connection with the vote determination. If abstention results in the loss of quorum, the process for resolving tie votes will be observed.
If the Proxy Group recommends that a Fund vote contrary to the Guidelines, the Proxy Group will follow the Out-of-Guidelines procedures.
The Proxy Group may vote contrary to the Guidelines based on a recommendation from an Investment Professional.
Vote Determination and Execution
These Procedures and Guidelines specify how the Funds generally will vote with respect to the proposals indicated. Unless otherwise noted, the Proxy Group instructs the Proxy Coordinator, on behalf of the Advisors, to vote in accordance with these Procedures and Guidelines.
Within-Guidelines Votes: Votes in Accordance with the Guidelines
In the event the Proxy Group and, where applicable, an Investment Professional participating in the voting process, recommend a vote Within Guidelines, the Proxy Group will instruct the Proxy Advisory Firm, through the Proxy Coordinator, to vote in this manner.
Out-of-Guidelines Votes:
· Votes Contrary to the Procedures and Guidelines
· Proxy Advisory Firm Does not Provide a Recommendation and the Guidelines do not provide voting instruction
A vote would be considered Out-of-Guidelines if the:
· Proxy Group or an Investment Professional recommends that a Fund vote contrary to the Guidelines.
· Procedures and Guidelines provides no instruction and the Proxy Advisory Firm has made no recommendation on a matter.
A vote will not be deemed to be Out-of-Guidelines if the Investment Professionals recommendation is contrary to these Procedures and Guidelines and/or the Proxy Advisorys Firm recommendation, and when the Guidelines stipulate that primary consideration will be given to input from the Investment Professional.
Routine Matters
Upon instruction from the Proxy Coordinator, the Proxy Advisory Firm will submit a vote in accordance with these Procedures and Guidelines where there is a clear policy ( e.g. , For, Against, Withhold, or Abstain) on a proposal.
Matters Requiring Case-by-Case Consideration
The Proxy Coordinator will provide the Proxy Advisory Firm with the appropriate information from these Procedures and Guidelines to specify how the Funds generally will vote. The Proxy Advisory Firm will review proxy materials based on these Procedures and Guidelines and will refer proxy proposals accompanied by its written analysis and vote recommendation to the Proxy Coordinator when these Procedures and Guidelines indicate case-by-case. Additionally, the Proxy Advisory Firm will refer any
proxy proposal to the Proxy Coordinator for instructions as if it were a matter requiring case-by-case consideration under circumstances where the application of these Procedures and Guidelines is unclear or appears to involve unusual or controversial issues.
Upon receipt of a referral from the Proxy Advisory Firm, the Proxy Coordinator may solicit additional research or clarification from the Proxy Advisory Firm, Investment Professional(s), or other sources.
The Proxy Coordinator will review matters requiring a case-by-case consideration to determine if the Proxy Group had previously provided the Proxy Coordinator with standing vote instructions in accordance with the Proxy Advisory Firms recommendation, or a provision within the Guidelines is applicable based on prior voting history.
If a matter requires input and vote determination from the Proxy Group, the Proxy Coordinator will forward the Proxy Advisory Firms analysis and recommendation, the Proxy Coordinators recommendation and/or any research obtained from the Investment Professional(s), the Proxy Advisory Firm, or any other source to the Proxy Group. The Proxy Group may consult with the Proxy Advisory Firm and/or Investment Professional(s) as appropriate.
The Proxy Coordinator will use best efforts to convene a Proxy Group meeting with respect to all matters requiring its consideration. In the event quorum requirements cannot be timely met in connection with a voting deadline, it is the policy of the Funds and Advisors to vote in accordance with the Proxy Advisory Firms recommendation.
Non-Votes: Votes in which No Action is Taken
The Proxy Group may recommend that a Fund refrain from voting under certain circumstances including:
· The economic effect on shareholders interests or the value of the portfolio holding is indeterminable or insignificant, e.g. , proxies in connection with fractional shares, securities no longer held in the portfolio of a Voya fund or proxies being considered on behalf of a Fund that is no longer in existence.
· The cost of voting a proxy outweighs the benefits, e.g. , certain international proxies, particularly in cases when share blocking practices may impose trading restrictions on the relevant portfolio security.
In such cases, the Proxy Group may instruct the Proxy Advisory Firm, through the Proxy Coordinator, not to vote such proxy. The Proxy Group may provide the Proxy Coordinator with standing instructions on parameters that would dictate a Non-Vote without the Proxy Groups review of a specific proxy.
Further, Counsel may permit the Proxy Coordinator to abstain from voting any proposal that is subject to a material conflict, provided such abstention does not have the same effect as an against vote, and therefore has no effect on the outcome of the vote.
The Proxy Coordinator will make reasonable efforts to secure and vote all other proxies for the Funds, particularly in markets where shareholders rights are limited.
Matters Requiring Further Consideration
Referrals to the Compliance Committee
If a vote is deemed Out-of-Guidelines and Counsel has determined that a material conflict of interest appears to exist with respect to the party or parties ( i.e . Proxy Advisory Firm, the Advisors, underwriters, affiliates, any participating Proxy Group member, or any Investment Professional(s)) participating in the voting process, the Proxy Coordinator will refer the vote to the Compliance Committee Chair.
If an Investment Professional discloses a potential conflict of interest, and Counsel determines that the conflict of interest appears to exist, the proposal will also be referred to the Compliance Committee for review.
The Compliance Committee will be provided all recommendations (including Investment Professional(s)), analyses, research, and Conflicts Reports and any other written materials used to establish whether a conflict of interest exists, and will instruct the Proxy Coordinator how such referred proposals should be voted.
The Proxy Coordinator will use best efforts to refer matters to the Compliance Committee for its consideration in a timely manner. In the event any such matter cannot be referred to or considered by the
Compliance Committee in a timely manner, the Compliance Committees standing instruction is to vote Within Guidelines.
Consultation with Compliance Committee
The Proxy Coordinator may consult the Compliance Committee Chair for guidance on behalf of the Committee if application of these Procedures and Guidelines is unclear or in connection with any unusual or controversial issue or a recommendation received from an Investment Professional.
The Compliance Committee will receive a report detailing proposals that were voted Out-of-Guidelines, Within Guidelines if the Investment Professionals recommendation was not acted on, or was referred to the Compliance Committee.
Conflicts of Interest
The Advisors shall act in the Funds beneficial owners best interests and strive to avoid conflicts of interest.
Conflicts of interest can arise, for example, in situations where:
· The issuer is a vendor whose products or services are material to the Voya Funds, the Advisors or their affiliates.
· The issuer is an entity participating to a material extent in the distribution of the Voya Funds
· The issuer is a significant executing broker dealer;
· Any individual that participates in the voting process for the Funds including an Investment Professional, a member of the Proxy Group, an employee of the Advisors, or Director/ Trustee of the Board serves as a director or officer of the issuer; or,
· The issuer is Voya Financial.
Potential Conflicts with a Proxy Issuer
The Proxy Coordinator is responsible for identifying and informing Counsel of potential conflicts with the proxy issuer. In addition to obtaining potential conflict of interest information described in the Roles and Responsibilities section above, members of the Proxy Group are required to disclose to the Proxy Coordinator any potential conflicts of interests prior to discussing the Proxy Advisory Firms recommendation.
The Proxy Group member will advise the Proxy Coordinator in the event a Proxy Group member believes that a potential or perceived conflict of interest exists that may preclude him/her from making a vote determination in the best interests of the Funds beneficial owners. The Proxy Group member may elect to recuse himself/herself from consideration of the relevant proxy or ask the Proxy Coordinator to solicit the opinion of Counsel on the matter, recusing himself/herself only in the event Counsel determines that a material conflict of interest exists. If recusal, whether voluntary or pursuant to Counsels findings, does not occur prior to the members participation in any Proxy Group discussion of the relevant proxy, any Out-of-Guidelines Vote determination is subject to the Compliance Committee referral process. Should members of the Proxy Group verbally disclose a potential conflict of interest, they are required to complete a Conflict of Interest Report, which will be reviewed by Counsel.
Investment Professionals are also required to complete a Conflict of Interest Report or confirm in writing that they do not have any potential conflicts of interests when submitting a vote recommendation to the Proxy Coordinator.
The Proxy Coordinator gathers and analyzes the information provided by the Proxy Advisory Firm, the Advisors, the Funds principal underwriters, affiliates of the Funds, members Proxy Group, Investment Professionals, and the Directors and Officers of the Funds. Counsel will document such potential material conflicts of interest on a consolidated basis as appropriate.
The Proxy Coordinator will instruct the Proxy Advisory Firm to vote the proxy as recommended by the Proxy Group if Counsel determines that a material conflict of interest does not appear to exist with respect a proxy issuer, any participating Proxy Group member, or any participating Investment Professional(s).
Compliance Committee Oversight
The Proxy Coordinator will refer a proposal to the Funds Compliance Committee if the Proxy Group recommends an Out-of-Guidelines Vote, and Counsel has determined that a material conflict of interest appears to exist in order that the conflicted party(ies) have no opportunity to exercise voting discretion over a Funds proxy.
The Proxy Coordinator will refer the proposal to the Compliance Committee Chair, forwarding all information relevant to the Compliance Committees review, including the following or a summary of its contents:
· The applicable Procedures and Guidelines
· The Proxy Advisory Firm recommendation
· The Investment Professional(s)s recommendation, if available
· Any resources used by the Proxy Group in arriving at its recommendation
· Counsels findings
· Conflicts Report(s) and/or any other written materials establishing whether a conflict of interest exists
In the event a member of the Funds Compliance Committee believes he/she has a conflict of interest that would preclude him/her from making a vote determination in the best interests of the applicable Funds beneficial owners, the Compliance Committee member will advise the Compliance Committee Chair and recuse himself/herself with respect to the relevant proxy determinations.
Conflicts Reports
Investment Professionals, the Proxy Advisory Firm, and members of the Compliance Committee, the Proxy Group, and the Proxy Coordinator are required to disclose any potential conflicts of interest and/or confirm they do not have a conflict of interest in connection with their participation in the voting process for portfolio securities. The Conflicts Report should describe any known relationships of either a business or personal nature that Counsel has not previously assessed, which may include communications with respect to the referral item, but excluding routine communications with or submitted to the Proxy Coordinator or Investment Professional(s) on behalf of the subject company or a proponent of a shareholder proposal.
The Conflicts Report should also include written confirmation that the Investment Professional based the recommendation in connection with an Out-of-Guidelines Vote or under circumstances where a conflict of interest exists solely on the investment merits of the proposal and without regard to any other consideration.
Completed Conflicts Reports should be provided to the Proxy Coordinator as soon as possible and may be submitted to the Proxy Coordinator verbally, provided the Proxy Coordinator completes the Conflicts Report, and the submitter reviews and approves the Conflict Report in writing.
The Proxy Coordinator will forward all Conflicts Reports to Counsel for review. Upon review, Counsel will provide the Proxy Coordinator with a brief statement regarding whether or not a material conflict of interest is present.
Counsel will document such potential conflicts of interest on a consolidated basis as appropriate rather than maintain individual Conflicts Reports.
Assessment of the Proxy Advisory Firm
The Proxy Coordinator, on behalf of the Board and the Advisors, will assess if the Proxy Advisory Firm:
· Is independent from the Advisors
· Has resources that indicate it can competently provide analysis of proxy issues
· Can make recommendations in an impartial manner and in the best interests of the Funds and their beneficial owners
· Has adequate compliance policies and procedures to:
· Ensure that its proxy voting recommendations are based on current and accurate information
· Identify and address conflicts of interest.
The Proxy Coordinator will utilize, and the Proxy Advisory Firm will comply with, such methods for completing the assessment as the Proxy Coordinator may deem reasonably appropriate. The Proxy
Advisory Firm will also promptly notify the Proxy Coordinator in writing of any material change to information previously provided to the Proxy Coordinator in connection with establishing the Proxy Advisory Firms independence, competence, or impartiality.
Information provided in connection with the Proxy Advisory Firms potential conflict of interest will be forwarded to Counsel for review. Counsel will review such information and advise the Proxy Coordinator as to whether a material concern exists and if so, determine the most appropriate course of action to eliminate such concern.
Voting Funds of Funds, Investing Funds and Feeder Funds
Funds that are Funds-of-Funds will echo vote their interests in underlying mutual funds, which may include mutual funds other than the Voya funds indicated on Voyas website (www.voyainvestments.com). Meaning that, if the Fund-of-Funds must vote on a proposal with respect to an underlying investment company, the Fund-of-Funds will vote its interest in that underlying fund in the same proportion all other shareholders in the underlying investment company voted their interests.
However, if the underlying fund has no other shareholders, the Fund-of-Funds will vote as follows:
· If the Fund-of-Funds and the underlying fund are being solicited to vote on the same proposal ( e.g. , the election of fund directors/trustees), the Fund-of-Funds will vote the shares it holds in the underlying fund in the same proportion as all votes received from the holders of the Fund-of-Funds shares with respect to that proposal.
· If the Fund-of-Funds is being solicited to vote on a proposal for an underlying fund ( e.g. , a new Sub-Advisor to the underlying fund), and there is no corresponding proposal at the Fund-of-Funds level, the Board will determine the most appropriate method of voting with respect to the underlying fund proposal.
An Investing Fund ( e.g ., any Voya fund), while not a Fund-of-Funds will have the foregoing Fund-of-Funds procedure applied to any Investing Fund that invests in one or more underlying funds. Accordingly:
· Each Investing Fund will echo vote its interests in an underlying fund, if the underlying fund has shareholders other than the Investing Fund.
· In the event an underlying fund has no other shareholders, and the Investing Fund and the underlying fund are being solicited to vote on the same proposal, the Investing Fund will vote its interests in the underlying fund in the same proportion as all votes received from the holders of its own shares on that proposal.
· In the event an underlying fund has no other shareholders, and there is no corresponding proposal at the Investing Fund level, the Board will determine the most appropriate method of voting with respect to the underlying fund proposal.
A fund that is a Feeder Fund in a master-feeder structure passes votes requested by the underlying master fund to its shareholders. Meaning that, if the master fund solicits the Feeder Fund, the Feeder Fund will request instructions from its own shareholders, either directly or, in the case of an insurance-dedicated Fund, through an insurance product or retirement plan, as to how it should vote its interest in an underlying master fund.
When a Voya fund is a feeder in a master-feeder structure, proxies for the portfolio securities owned by the master fund will be voted pursuant to the master funds proxy voting policies and procedures. As such, except as described in the Reporting and Record Retention section below, Feeder Funds will not be subject to these Procedures and Guidelines.
Securities Lending
Many of the Funds participate in securities lending arrangements to generate additional revenue for the Fund. Accordingly, the Fund will not be able to vote securities that are on loan under these types of arrangements. However, under certain circumstances, for voting issues that may have a significant impact on the investment, the Proxy Group or Proxy Coordinator may request to recall securities that are on loan if they determine that the benefit of voting outweighs the costs and lost revenue to the Fund and the administrative burden of retrieving the securities.
Investment Professionals may also deem a vote is material in the context of the portfolio(s) they manage. Therefore, they may request that lending activity on behalf of their portfolio(s) with respect to the relevant security be reviewed by the Proxy Group and considered for recall and/or restriction. The Proxy Group will give primary consideration to relevant Investment Professional input in its determination of whether a given proxy vote is material and the associated security accordingly restricted from lending. The determination that a vote is material in the context of a Funds portfolio will not mean that such vote is considered material across all Funds voting at that meeting. In order to recall or restrict shares on a timely basis for material voting purposes, the Proxy Coordinator, on behalf of the Proxy Group, will use best efforts to consider, and when appropriate, to act upon, such requests on a timely basis. Requests to review lending activity in connection with a potentially material vote may be initiated by any relevant Investment Professional and submitted for the Proxy Groups consideration at any time.
Reporting and Record Retention
Reporting by the Funds
Annually, as required, each Fund and each Sub-Advisor-Voted Fund will post its proxy voting record, or a link to the prior one-year period ending on June 30 th on the Voya Funds website. The proxy voting record for each Fund and each Sub-Advisor-Voted Fund will also be available on Form N-PX in the EDGAR database on the website of the Securities and Exchange Commission (SEC). For any Voya fund that is a feeder in a master/feeder structure, no proxy voting record related to the portfolio securities owned by the master fund will be posted on the Voya funds website or included in the Funds Form N-PX; however, a cross-reference to the master funds proxy voting record as filed in the SECs EDGAR database will be included in the Funds Form N-PX and posted on the Voya funds website. If an underlying master fund solicited any Feeder Fund for a vote during the reporting period, a record of the votes cast by means of the pass-through process described above will be included on the Voya funds website and in the Feeder Funds Form N-PX.
Reporting to the Compliance Committee
At each regularly scheduled quarterly Compliance Committee meeting, the Compliance Committee will receive a report from the Proxy Coordinator indicating each proxy proposal, or a summary of such proposals, that was:
1. Voted Out-of-Guidelines, including any proposals voted Out-of-Guidelines as a result of special circumstances raised by an Investment Professional;
2. Voted Within Guidelines in cases when the Proxy Group did not agree with an Investment Professionals recommendation;
3. Referred to the Compliance Committee for determination.
The report will indicate the name of the company, the substance of the proposal, a summary of the Investment Professionals recommendation, where applicable, and the reasons for voting, or recommending, an Out-of-Guidelines Vote or, in the case of (2) above, a Within-Guidelines Vote.
Reporting by the Proxy Coordinator on behalf of the Advisor
The Advisor will maintain the records required by Rule 204-2(c)(2), as may be amended from time to time, including the following:
· A copy of each proxy statement received regarding a Funds portfolio securities. Such proxy statements the issuers send are available either in the SECs EDGAR database or upon request from the Proxy Advisory Firm.
· A record of each vote cast on behalf of a Fund.
· A copy of any Advisor-created document that was material to making a proxy vote decision, or that memorializes the basis for that decision.
· A copy of written requests for Fund proxy voting information and any written response thereto or to any oral request for information on how the Advisor voted proxies on behalf of a Fund.
· A record of all recommendations from Investment Professionals to vote contrary to the Guidelines,
· All proxy questions/recommendations that have been referred to the Compliance Committee, and all applicable recommendations, analyses, research, Conflict Reports, and vote determinations.
All proxy voting materials and supporting documentation will be retained for a minimum of six years, the first two years in the Advisors office.
Records Maintained by the Proxy Advisory Firm
The Proxy Advisory Firm will retain a record of all proxy votes handled by the Proxy Advisory Firm. Such record must reflect all the information required to be disclosed in a Funds Form N-PX pursuant to Rule 30b1-4 under the Investment Company Act. In addition, the Proxy Advisory Firm is responsible for maintaining copies of all proxy statements received by issuers and to promptly provide such materials to the Advisor upon request.
PROXY VOTING GUIDELINES
Introduction
Proxies must be voted in the best interest of the Funds beneficial owners. The Guidelines summarize the Funds positions on various issues of concern to investors, and give an indication of how Fund securities will be voted on proposals dealing with particular issues. Nevertheless, the Guidelines are not exhaustive, do not include all potential voting issues, and proposals may be addressed, as necessary, on a CASE-BY-CASE basis rather than according to the Guidelines.
These Guidelines apply to securities of publicly traded companies and to those of privately held companies if publicly available disclosure permits such application. All matters for which such disclosure is not available shall be considered CASE-BY-CASE .
The Board encourages Investment Professionals to submit a recommendation to the Proxy Group regarding proxy voting related to the portfolio securities over which they have day-to-day portfolio management responsibility. Recommendations from the Investment Professionals may be submitted or requested in connection with any proposal and are likely to be requested with respect to proxies for private equity or fixed income securities and/or proposals related to merger transactions/corporate restructurings, proxy contests, or unusual or controversial issues.
These policies may be overridden in any case as provided for in the Procedures. Similarly, the Procedures provide that proposals whose Guidelines prescribe a firm voting position may instead be considered on a CASE-BY-CASE basis when unusual or controversial circumstances so dictate.
Interpretation and application of these Guidelines is not intended to supersede any law, regulation, binding agreement, or other legal requirement to which an issuer may be or become subject. No proposal shall be supported whose implementation would contravene such requirements.
General Policies
In cases receiving CASE-BY-CASE consideration, including cases not specifically provided for under these Guidelines, the Funds policy is to vote in accordance with the recommendation provided by the Funds Proxy Advisory Firm.
Further, the Funds policy is to vote in accordance with the Proxy Advisory Firms recommendation when such recommendation aligns with the recommendation of the relevant companys management or management has made no recommendation. However, this policy will not apply to CASE-BY-CASE proposals for which a contrary recommendation from the relevant Investment Professional(s) is being utilized.
Investment Professionals input will be given primary consideration with respect to CASE-BY-CASE proposals being considered on behalf of the relevant Fund if they involve merger transactions/corporate restructurings, proxy contests, fixed income or private equity securities, or unusual or controversial issues.
The Funds policy is to not support proposals that would impose a negative impact on existing rights of the Funds beneficial owners to the extent that any positive impact would not be deemed sufficient to outweigh removal or diminution of such rights. Depending on the relevant market, appropriate opposition may be expressed as an ABSTAIN, AGAINST, or WITHHOLD vote.
International Policies
Companies incorporated outside the U.S. are subject to the foregoing U.S. Guidelines if they are listed on a U.S. exchange and treated as a U.S. domestic issuer by the SEC. Where applicable, certain U.S. Guidelines may also be applied to companies incorporated outside the U.S., e.g. , companies with a significant base of U.S. operations and employees. However, the following provide for differing regulatory and legal requirements, market practices, and political and economic systems existing in various international markets.
Funds will vote AGAINST international proxy proposals when the Proxy Advisory Firm recommends
voting AGAINST such proposal because relevant disclosure by the company, or the time provided for consideration of such disclosure, is inadequate.
The Funds will consider proposals that are associated with a firm AGAINST vote on a CASE-BY-CASE basis if the Proxy Advisory Firm recommends their support when:
· The company or market transitions to better practices ( e.g ., having committed to new regulations or governance codes);
· The market standard is stricter than the Funds guidelines; or
· It is the more favorable choice when shareholders must choose between alternate proposals.
Proposal Specific Policies
As mentioned above, these policies may be overridden in any case as provided for in the Procedures. Similarly, the Procedures provide that proposals whose Guidelines prescribe a firm voting position may instead be considered on a CASE-BY-CASE basis when unusual or controversial circumstances so dictate.
Proxy Contests:
Consider votes in contested elections on a CASE-BY-CASE basis, with primary consideration given to input from the relevant Investment Professional(s).
Reimburse Proxy Solicitation Expenses
Consider Shareholder proposals to reimburse proxy solicitation expenses on a CASE-BY-CASE basis; vote FOR if the Funds supports the associated director candidates.
Uncontested Proxies:
1- The Board of Directors
Overview
The Funds will lodge disagreement with a companys policies or practices by withholding support from the relevant proposal rather than from the director nominee(s) to which the Proxy Advisory Firm assigns a correlation. Support will be withheld from directors deemed responsible for governance shortfalls. If the director(s) are not standing for election (e.g., the board is classified), support will not be withheld from others in their stead. When a determination is made to withhold support due to concerns other than those related to an individual directors independence or actions, responsibility may be attributed to the entire board, a committee, or an individual (such as the CEO or committee chair), taking into consideration whether the desired effect is to send a message or to remove the director from service.
The Funds will vote FOR directors in connection with issues raised by the Proxy Advisory Firm if the director did not serve on the board or relevant committee during the majority of the time period relevant to the concerns cited by the Proxy Advisory Firm.
Vote with the Proxy Advisory Firms recommendation when more candidates are presented than available seats and no other provisions under these Guidelines apply.
In cases where a director holds more than one board seat and corresponding votes, manifested as one seat as a physical person plus an additional seat as a representative of a legal entity, generally vote with the Proxy Advisory Firms recommendation to withhold support from the legal entity and vote on the physical person.
Vote with the Proxy Advisory Firms recommendation to withhold support from directors for whom support has become moot since the time the individual was nominated ( e.g. , due to death, disqualification, or determination not to accept appointment).
Independence
Determination of Independence
The Fund will consider the relevant country or market listing exchange and the Proxy Advisory Firms standards with respect to determining director independence. These standards provide that, to be considered independent, a director shall have no material connection to the company other than the board seat.
Although the Funds may agree with the Proxy Advisory Firms independence standards, such agreement shall not dictate that a Funds vote will be cast according to the Proxy Advisory Firms corresponding recommendation. Further, the application of Guidelines in connection with such standards will apply only when the directors level of independence can be ascertained based on available disclosure. Note: Non-voting directors ( e.g. , director emeritus or advisory director) shall be excluded from calculations with respect to majority board independence.
Board Independence
The Funds policy is that a board should be majority independent or meet the applicable independence requirements of the relevant country or market listing exchange (collectively defined as Independence Requirements). Therefore, the Funds will consider non-independent directors standing for election on a CASE-BY-CASE basis when the full board does not meet the Independence Requirements .
· WITHHOLD support from the fewest non-independent directors whose removal would achieve the Independence Requirements across the remaining board, except that support may be withheld from additional directors whose relative level of independence cannot be differentiated.
· WITHHOLD support from all non-independent directors, including the founder, chairman, or CEO, if the number required to achieve the Independence Requirements is equal to or greater than the number of non-independent directors standing for election.
· Vote FOR non-independent directors in the role of CEO, and when appropriate, founder or chairman, and determine support for other non-independent directors based on the qualifications and contributions of the director as well as the Funds voting precedent for assessing relative independence to management ( e.g. , insiders holding senior executive positions are deemed less independent than affiliated outsiders with a transactional or advisory relationship to the company).
· However, WITHHOLD support from such non-independent directors as described above if they are members of the audit or remuneration (compensation) committees.
· WITHHOLD support from non-independent director or bundled slates if the boards independence cannot be ascertained due to inadequate disclosure.
· WITHHOLD support from bundled slates which include non-independent directors and where the boards independence does not meet the applicable independence requirements of the relevant listing exchange
Consider non-independent directors on a CASE-BY-CASE basis when the Proxy Advisory Firm has raised concerns regarding diminished shareholder value as evidenced by a significant drop in share price, voting with Proxy Advisory Firms recommendation AGAINST such directors when few, if any, outside directors are present on the board AND:
· The founding family has retained undue influence over the company despite a history of scandal or problematic controls; and
· The directors have engaged in protectionist activities such as introduction of a poison pill or preferential and/or dilutive share issuances; or
· Evidence exists regarding compliance or accounting shortfalls.
For companies in Japan , generally follow the Proxy Advisory Firms recommendations in furtherance of greater board independence and minority shareholder protections, including to WITHHOLD support from:
At all companies :
· The top executive(s) if the board does not include at least one outside director.
At companies with controlling shareholders :
· The top executive(s) if the board does not include at least two independent directors.
At companies with a three-committee structure :
· Non-independent outside directors if the board is not majority independent.
· Non-independent directors serving on the nominating committee if the board does not include at least two independent directors.
However, v ote FOR the top executive at companies in Japan if the only reason the Proxy Advisory Firms Withhold recommendation is due to the company underperforming in terms of capital efficiency; i.e., when the company has posted average return on equity (ROE) of less than five percent over the last five fiscal years.
For companies in Italy presenting multiple slates of directors ( voto di lista ), WITHHOLD support from all slates until director names are disclosed, and upon disclosure, follow the Proxy Advisory Firms standards for assessing which slate is best suited to represent shareholder interests.
WITHHOLD support from directors or slates of directors when they are presented in a manner not aligned with the Independence Requirements, market best practice and/or regulation, including:
· Bundled slates of directors ( e.g. , Canada , France , Hong Kong , or Spain );
· Simultaneous reappointment of retiring directors ( e.g. , South Africa );
· In markets with term lengths capped by regulation or market practice, directors whose terms exceed the caps or are not disclosed; or
· Directors whose names are not disclosed in advance of the meeting or far enough in advance relative to voting deadlines to make an informed voting decision.
Consider self-nominated or shareholder-nominated director candidates on a CASE-BY-CASE basis, with voting decisions generally based on the Proxy Advisory Firms approach to evaluating such candidates, except that:
· An unqualified candidate will not be supported simply to effect a protest vote;
· A candidate will not be supported if the candidates agenda is not in line with the long-term best interests of the company; and
· Cases of multiple self-nominated candidates may be considered as a proxy contest if similar issues are raised ( e.g. , potential change in control).
Key Committee Independence
WITHHOLD support from non-independent directors if:
· They sit on the audit or remuneration (compensation) committee,
· The full board serves as the audit or remuneration (compensation) committee, or
· The company does not have an audit or remuneration (compensation) committee.
WITHHOLD support from audit or remuneration (compensation) committee slates that include non-independent directors in the election.
Vote FOR non-independent directors who sit on the nominating committee, provided that such committee meets the Independence Requirements, and is not a member of the audit or remuneration (compensation) committee.
Vote FOR nominating committee slates that include non-independent directors in the election as long as the non-independent directors are not members of the audit or remuneration (compensation) committees.
Vote FOR non-independent directors if the full board serves as the nominating committee only (not as the audit or remuneration (compensation) committees) OR has not created the nominating committee, provided that the company is in compliance with all provisions of the listing exchange in connection with performance of relevant functions ( e.g. , performance of relevant functions by a majority of independent directors in lieu of the formation of a separate committee).
Consider on a CASE-BY-CASE basis the non-independent directors if the company is not in compliance with all required provisions of the listing exchange.
Vote AGAINST proposals that permit non-board members to serve on the audit, remuneration (compensation), or nominating committee, provided that bundled slates may be supported if no slate nominee serves on the relevant committee(s) except where best market practice otherwise dictates.
Consider other concerns regarding committee members on a CASE-BY-CASE basis.
Shareholder Proposals Regarding Board/Key Committee Independence
Director Independence
Vote AGAINST shareholder proposals seeking to redefine director independence or directors specific roles ( e.g. , responsibilities of the lead director).
Majority Independent Board
Vote AGAINST shareholder proposals asking that more than a simple majority of directors be independent.
Increase Key Committee Independence
Vote AGAINST shareholder proposals asking that the independence of the nominating committee be greater than that required by the country or market listing exchange.
Board Composition
Attendance
WITHHOLD support from a director who, during both of the most recent two years, attended less than 75 percent of the board and committee meetings during the directors period of service without a valid reason for the absences.
Vote FOR in connection with attendance issues for directors who have served on the board for less than the two most recent years.
WITHHOLD support if two-year attendance cannot be ascertained from available disclosure.
The two-year attendance policy shall be applied to attendance of statutory auditors at Japanese companies.
Over-boarding
Vote FOR directors without regard to over-boarding issues, unless when in conjunction with attendance issues during the most recent year. Consider such circumstances on a CASE-BY-CASE basis.
Vote AGAINST shareholder proposals limiting the number of public company boards on which a director may serve.
Chairman / CEO
Vote FOR directors without regard to recommendations that the position of chairman should be separate from that of CEO, or should otherwise required to be independent, unless other concerns requiring CASE-BY-CASE consideration are raised ( e.g ., former CEOs proposed as board chairmen in markets, such as the United Kingdom , for which best practice recommends against such practice).
Vote AGAINST shareholder proposals requiring that the positions of chairman and CEO be held separately, unless significant corporate governance concerns have been cited. Consider such circumstances on a CASE-BY-CASE basis.
Cumulative/Net Voting Markets ( e.g., Russia )
When cumulative or net voting applies, generally follow the Proxy Advisory Firms approach to vote FOR nominees asserted by the issuer to be independent, irrespective of audit committee membership, even if independence disclosure or criteria fall short of the Proxy Advisory Firms standards.
Board Accountability
Compensation Practices ( U.S. and Canada )
It is the Funds policy that matters of compensation are best determined by an independent board and compensation committee. Therefore support may be withheld from compensation committee members whose actions or disclosure do not appear to support compensation practices aligned with the best
interests of the company and its shareholders.
The Funds generally will lodge disagreement with a companys compensation policies or practices by withholding support from the relevant proposal rather than from the compensation committee members. However, where applicable, votes on compensation committee members in connection with compensation practices should be considered on a CASE-BY-CASE basis:
· Say on pay . If shareholders have been provided with an advisory vote on executive compensation (say on pay), and practices not supported under these Guidelines (provisions under Section 2. Compensation) have been identified, the Funds will align with the Proxy Advisory Firm when a vote AGAINST the say on pay proposal has been recommended in lieu of withholding support from certain nominees for compensation concerns. Companies receiving negative recommendations on both compensation committee members and say on pay (or shareholders have not been provided with a say on pay) regarding issues not otherwise supported by these Guidelines will be considered on a CASE-BY-CASE basis.
· Say on pay responsiveness . Compensation committee members opposed by the Proxy Advisory Firm for failure to sufficiently address compensation concerns evidenced by significant opposition to the most recent say on pay vote will be considered on a CASE-BY-CASE basis, factoring in the following:
· If the most recent say on pay vote received majority opposition and the company has not demonstrated an adequate level of responsiveness, WITHHOLD support from the compensation committee chair.
· If the most recent say on pay vote passed but received significant opposition, vote FOR the compensation committee members if a Fund voted FOR that say on pay or did not have voting rights on that proposal. If a Fund voted AGAINST the say on pay and the company has not demonstrated an adequate level of responsiveness, vote WITHHOLD support from the compensation committee chair.
· If the compensation committee chair is not standing for election under circumstances meriting the chairs opposition, WITHHOLD support from the other compensation committee members. If no compensation committee members are standing for election, consider other directors on a CASE-BY-CASE basis.
· Say on frequency . If the Proxy Advisory Firm opposes directors because the company has implemented a say on pay schedule that is less frequent than the frequency most recently preferred by at least a plurality of shareholders, WITHHOLD support from the compensation committee chair. If the compensation committee chair is not standing for election, WITHHOLD support from the other compensation committee members. If no compensation committee members are standing for election, consider other directors on a CASE-BY-CASE basis.
· Tenure . Vote FOR compensation committee members who did not serve on the compensation committee during the majority of the time period relevant to the concerns cited by the Proxy Advisory Firm.
· Repricing . If the Proxy Advisory Firm recommends withholding support from compensation committee members in connection with their failure to seek, or acknowledge, a shareholder vote on plans to reprice, replace, buy back, or exchange options, WITHHOLD support from such directors. (Note: cancellation of options would not be considered an exchange unless the cancelled options were re-granted or expressly returned to the plan reserve for reissuance.)
· Commitments . Vote FOR compensation committee members receiving an adverse recommendation due to problematic pay practices if the company makes a public commitment ( e.g. , via a Form 8-K filing) to rectify the practice on a going-forward basis. However, consider on a CASE-BY-CASE basis if the company does not rectify the practice by the following years annual general meeting.
· Burn Rate Commitment . If burn rate commitment issues are raised , consider compensation committee members on a CASE-BY-CASE basis, taking into account factors such as burn rate history and issuers rationale and disclosure.
· Other . If the Proxy Advisory Firm has raised other considerations regarding poor compensation
practices, consider compensation committee members on a CASE-BY-CASE basis.
For all other markets , consider remuneration committee members on a CASE-BY-CASE basis if the Proxy Advisory Firm recommends withholding support from directors in connection with remuneration practices not otherwise supported by these Guidelines (provisions under Section 2. Compensation) , including cases in which the issuer has not followed market practice by submitting a resolution on executive compensation.
Accounting Practices
Vote FOR audit committee members, or the companys CEO or CFO if nominated as directors, who did not serve on the committee or did not have responsibility over the relevant financial function, during the majority of the time period relevant to the concerns cited.
Consider the companys CEO and CFO, if nominated as directors, and audit committee members on a CASE-BY-CASE basis if poor accounting practice concerns are raised . Vote FOR if the company has not yet had a full year to remediate the concerns since the time they were identified or if the company has taken adequate steps to remediate the concerns cited, which would typically include removing or replacing the responsible executives, and if the concerns are not re-occurring.
WITHHOLD support from audit committee members if the company has failed to disclose auditors fees broken down by category.
WITHHOLD support from the relevant proposal (provisions under Section 3. Auditor Ratification) rather than from the audit committee members if there are concerns regarding a companys non-audit fees.
Problematic Actions
When the Proxy Advisory Firm recommends withholding support due to assessment that a director acted in bad faith or against shareholder interests in connection with a major transaction, such as a merger or acquisition, or due to other material failures or problematic actions, consider on a CASE-BY-CASE basis, factoring in the merits of the directors performance, rationale, and disclosure provided.
If the Proxy Advisory Firm cites concerns regarding actions in connection with a directors service on another board , vote FOR the director if the company has provided adequate rationale regarding the appropriateness of the director to serve on the board under consideration.
When the Proxy Advisory Firm recommends withholding support from any director due to share pledging concerns, consider on a CASE-BY-CASE basis, factoring in the pledged amount, unwind time, and any historical concerns being raised. Responsibility will be assigned to the pledgor, where the pledged amount and unwind time are deemed significant and, therefore, an unnecessary risk to the company.
Consider directors for whom scandals or internal controls concerns have been raised on a CASE-BY-CASE basis, supporting the directors or slates of directors unless:
· The scandal or shortfall in controls took place at the company, or an affiliate, for which the director is being considered;
· Culpability can be attributed to the director ( e.g. , director manages or audits the relevant function); and
· The director has been directly implicated, with resulting arrest and criminal charge or regulatory sanction.
Anti-Takeover Measures
Consider on a CASE-BY-CASE basis any director responsible for implementing excessive anti-takeover measures, including failure to remove restrictive poison pill features or to ensure a pills expiration or timely submission to shareholders for vote, unless a company has implemented a policy that should reasonably prevent abusive use of its poison pill. WITHHOLD support from the board chair or, if not standing for election, the lead director. If neither is standing for election, WITHHOLD support from all continuing directors.
Consider on a CASE-BY-CASE basis any directors where the company has failed to opt out of a state law requiring companies to implement a staggered board structure. WITHHOLD support from the board chair, or if not standing for election, lead director. If neither is standing for election, WITHHOLD support from all continuing directors when the company:
· Demonstrates sustained poor stock performance (measured by one- and three-year total shareholder returns); and
· Has a non-shareholder-approved poison pill in place, without provisions to redeem or seek approval in a reasonable period of time; or
· Maintains a dual class capital structure, imposes a supermajority vote requirement, or has authority to issue blank check preferred stock.
Performance Test for Directors
Consider directors failing the Proxy Advisory Firms performance test, which includes market-based and operating performance measures, on a CASE-BY-CASE basis. WITHHOLD support from the board chair, or if not standing for election, lead director. If neither is standing for election, WITHHOLD support from all continuing directors in cases where the directors have received a negative recommendation due to sustained poor stock performance ( measured by one- and three-year total shareholder returns) combined with multiple takeover defenses/entrenchment devices if the company:
· Is a controlled company or has a non-shareholder-approved poison pill in place, without provisions to redeem or seek approval in a reasonable period of time; or
· Maintains a dual class capital structure, imposes a supermajority vote requirement, or has authority to issue blank check preferred stock.
Sustained poor stock performance combined with other takeover defenses/ entrenchment devices will be considered on a CASE-BY-CASE basis.
Board Responsiveness
Consider on a CASE-BY-CASE basis any director where the company has failed to implement a majority-approved shareholder proposal. Vote FOR if the shareholder proposal has been reasonably addressed or the Funds Guidelines or voting record did not support the relevant proposal or issue. WITHHOLD support from the board chair, or, if not standing for election, from all continuing directors, if the shareholder proposal at issue is supported under these Guidelines and the board has not disclosed a credible rationale for not implementing the proposal.
In the U.S. , proposals seeking shareholder ratification of a poison pill may be deemed reasonably addressed if the company has implemented a policy that should reasonably prevent abusive use of the pill.
If the board has not acted upon a director not receiving shareholder support representing a majority of the votes cast at the previous annual meeting, consider directors on a CASE-BY-CASE basis. Vote FOR directors when:
· The issue relevant to the majority negative vote has been adequately addressed or cured, which may include disclosure of the boards rationale; or
· The Funds Guidelines or voting record do not support the relevant proposal or issue causing the majority negative vote.
If the above provisions have not been satisfied, WITHHOLD support from the chair of the nominating committee, or if not standing for election, consider other directors on a CASE-BY-CASE basis.
BoardRelated Proposals
Classified/Declassified Board Structure
Vote AGAINST proposals to classify the board unless the proposal represents an increased frequency of a directors election in the staggered cycle (e.g., seeking to move from a three-year cycle to a two-year cycle). Vote FOR proposals to repeal classified boards and to elect all directors annually.
Board Structure
Vote FOR management proposals to adopt or amend board structures or policies, except consider such proposals on a CASE-BY-CASE basis if the board is not majority independent, corporate governance concerns have been identified, or the proposal may result in a material reduction in shareholders rights.
Vote AGAINST shareholder proposals to impose new board structures or policies, except consider such proposals on a CASE-BY-CASE basis if the board is not majority independent and corporate governance
concerns have been identified.
For companies in Japan , generally follow the Proxy Advisory Firms approach to proposals seeking a board structure that would provide greater independence oversight of management and the board.
Board Size
Vote FOR proposals that seek to fix the size of the board or designate a range for its size.
Vote AGAINST proposals that give management the ability to alter the size of the board outside of a specified range without shareholder approval.
Board Size (International)
Vote FOR proposals seeking a board range if the range is reasonable in the context of market practice and anti-takeover considerations. Proposed article amendments in this regard will be considered on a CASE-BY-CASE basis.
Director and Officer Indemnification and Liability Protection
Proposals on director and officer indemnification and liability protection should be evaluated on a CASE-BY-CASE basis, using Delaware law as the standard.
Vote AGAINST proposals to limit or eliminate entirely directors and officers liability in connection with monetary damages for violating the duty of care.
Vote AGAINST indemnification proposals that would expand coverage beyond legal expenses to acts that are more serious violations of fiduciary obligation, such as negligence.
Director and Officer Indemnification and Liability Protection (International)
Vote in accordance with the Proxy Advisory Firms standards for indemnification and liability protection for officers and directors, voting AGAINST overly broad provisions.
Discharge of Management/Supervisory Board Members
Vote FOR management proposals seeking the discharge of management and supervisory board members (including when the proposal is bundled), unless concerns are raised about the past actions of the companys auditors or directors, or legal or regulatory action is being taken against the board by other shareholders.
Vote FOR such proposals in connection with remuneration practices otherwise supported under these Guidelines or as a means of expressing disapproval of broader practices of the company or its board.
Establish Board Committee
Vote FOR shareholder proposals that seek creation of an audit, compensation, or nominating committee of the board, unless the committee in question is already in existence or the company claims an exemption of the listing exchange ( e.g. , committee functions are served by a majority of independent directors).
Vote AGAINST shareholder proposals requesting creation of additional board committees or offices, except as otherwise provided for herein.
Filling Board Vacancies / Removal of Directors
Vote AGAINST proposals that provide that directors may be removed only for cause.
Vote FOR proposals to restore shareholder ability to remove directors with or without cause.
Vote AGAINST proposals that provide that only continuing directors may elect replacements to fill board vacancies.
Vote FOR proposals that permit shareholders to elect directors to fill board vacancies.
Stock Ownership Requirements
Vote AGAINST shareholder proposals requiring directors to own a minimum amount of company stock in order to qualify as a director or to remain on the board.
Term Limits / Retirement Age
Vote FOR management proposals and AGAINST shareholder proposals limiting the tenure of outside
directors or imposing a mandatory retirement age for outside directors (unless the proposal seeks to relax existing standards).
2- Compensation
Frequency of Advisory Votes on Executive Compensation
Vote FOR proposals seeking an annual say on pay and AGAINST those seeking a less frequent.
Proposals to Provide an Advisory Vote on Executive Compensation ( Canada )
Vote FOR , with a preference for an ANNUAL vote.
Executive Pay Evaluation
Advisory Votes on Executive Compensation (Say on Pay) and Remuneration Reports
Vote FOR management proposals seeking ratification of the companys executive compensation structure unless the program includes practices or features not supported under these Guidelines, and the proposal receives a negative recommendation from the Proxy Advisory Firm.
Listed below are examples of compensation practices and provisions, and respective consideration treatment under the Guidelines, factoring in whether the company has provided reasonable rationale/disclosure for such factors or the proposal as a whole.
Consider on a CASE-BY-CASE basis:
· Single Trigger Equity Provisions
· Short-Term Investment Plans where the board has exercised discretion to exclude extraordinary items.
· Long-Term Incentive Plans where executives already hold significant equity positions.
· Long-Term Incentive Plans where the vesting period is too short
· Pay Practices (or combination of practices) that appear to have created a misalignment between CEO pay and performance with regard to shareholder value.
· Excessive levels of discretionary bonuses, recruitment awards, retention awards, non-compete payments, severance/termination payments, perquisites (unreasonable levels in context of total compensation or purpose of the incentive awards or payouts).
Vote AGAINST :
· Provisions that permit repricing, replacement, buy back, or exchange options. (Note: cancellation of options would not be considered an exchange unless the cancelled options were re-granted or expressly returned to the plan reserve for reissuance.)
· Retesting in connection with achievement of performance hurdles.
· Compensation structures that unreasonably insulate pay from performance conditions.
· Single Trigger Cash Severance Provisions in new or materially amended plans, contracts, or payments that do not require an actual change in control in order to be triggered, or such provisions that are maintained in agreements previously opposed by a Fund.
· Named executives officers have material input into setting their pay.
· Short-Term Incentive Plans where treatment of payout factors has been inconsistent ( e.g. , exclusion of losses but not gains).
· Long-Term Incentive Plans that are inadequately aligned with shareholders because the performance period being measured within the vesting cycle is too short.
· Long-Term Incentive Plans that lack an appropriate equity component ( e.g., overly cash-based plans).
· For companies in international markets, plans provide for contract or notice periods or severance/termination payments that exceed market practices, e.g., relative to multiple of annual compensation.
Equity-Based and Other Incentive Plans
Equity Compensation
Votes with respect to compensation and employee benefit plans, or the issuance of shares in connection with such plans, should be determined on a CASE-BY-CASE basis. If the Proxy Advisory Firm issues a
negative recommendation and one of the reasons provided below is found to be true for the plan or issuance in question, vote AGAINST the plan or issuance:
Plan Cost
· Vote AGAINST if the plan exceeds recommended cost ( U.S. or Canada ).
· Vote AGAINST if a cost or dilution assessment may not be possible due to the method of disclosing shares allocated to the plan(s).
Dilution
Vote AGAINST if the plan exceeds recommended burn rates and/or dilution limits, including cases in which dilution cannot be fully assessed ( e.g. , due to inadequate disclosure).
Repricing or Replacement of Options
· Vote AGAINST plans that:
· Permit repricing of stock options, or any form or alternative to repricing, without shareholder approval,
· Include provisions that permit repricing, replacement, or exchange transactions that do not meet recommended criteria, or
· Give the board sole discretion to approve option repricing, replacement, or exchange programs.
· Consider on a CASE-BY-CASE basis specific proposals to reprice options.
Discounts
Vote AGAINST if there are deep or near-term discounts (or the equivalent, such as dividend equivalents on unexercised options) to executives or directors.
Vesting or Performance Periods
Vote AGAINST if the plan includes vesting or performance periods that do not meet recommended standards.
Vesting upon Change in Control
Vote AGAINST if the plan provides for vesting upon change in control if deemed to evidence a potential conflict of interest or anti-takeover device or if the change in control definition is too liberal.
Retesting
Vote AGAINST if the plan provides for retesting in connection with achievement of performance hurdles.
Misalignment between CEO Pay and Performance
Vote AGAINST if the proposed awards further misaligns the CEO pay and performance with regard to shareholder value, including where pay appears unreasonably insulated from performance conditions and/or awards under the plan are concentrated among named executive officers.
Plans Administered by Potential Grant Recipients
Vote AGAINST .
Awards to Outside Directors
Vote AGAINST if the plan provides for retirement benefits or equity incentive awards to outside directors if not in line with market practice.
Financial Assistance/Loans to Participants
Vote AGAINST if the plan permits financial assistance to executives, directors, subsidiaries, affiliates, or related parties that is not in line with market practice.
Long-Term Incentive Plans
Vote AGAINST long-term incentive plans that are inadequately aligned with shareholders because the performance period is too short or they lack an appropriate equity component.
· In cases where executives already hold significant equity positions, these proposals will be reviewed on a CASE-BY-CASE basis.
Overly Liberal Change in Control Definition
Vote AGAINST . (This refers to plans that would reward recipients even if the event does not result in an actual change in control or results in a change in control but does not terminate the employment relationship.)
Inadequate Performance or Vesting Criteria
These proposals will be reviewed on a CASE-BY-CASE basis.
Post-Employment Vesting or Exercise of Options
Vote AGAINST if deemed inappropriate.
Eliminate Existing Shareholder Approval Requirements for Material Plan Changes
Vote AGAINST , unless the company has provided a reasonable rationale and/or adequate disclosure regarding the requested changes.
Material Amendments to Plans
Vote AGAINST if the plan allows plan administrators to make material amendments without shareholder approval unless adequate prior disclosure has been provided.
Amendment Procedures for Equity Compensation Plans and Employee Stock Purchase Plans (ESPPs) (Toronto Stock Exchange Issuers)
Vote AGAINST if the amendment procedures do not preserve shareholder approval rights.
Contract or Notice Periods or Severance/Termination Payments
Vote AGAINST if the plan provides for contract or notice periods or severance/termination payments that exceed market practice, e.g. , relative to multiples of annual compensation.
Stock Option Plans for Independent Internal Statutory Auditors ( Japan )
Vote AGAINST .
Matching Share Plans
Vote AGAINST if the matching share plan that does not meet recommended standards, considering holding period, discounts, dilution, participation, purchase price, and performance criteria.
Employee Stock Purchase Plans
Consider CASE-BY-CASE with voting decisions generally based on the Proxy Advisory Firms approach to evaluating such proposals.
Capital Issuances in Support of Employee Stock Purchase Plans
Consider CASE-BY-CASE with voting decisions generally based on the Proxy Advisory Firms approach to evaluating such proposals.
OBRA-Related Compensation Proposals
Plans Intended to Qualify for Favorable Tax Treatment under Section 162(m) of OBRA
Vote AGAINST if a potential recipient under the plan(s) sits on the committee that exercises discretion over the related compensation awards. Vote FOR plans in cases where the only concern cited is lack of board independence, provided that the board meets the independence requirements of the relevant listing exchange. Consider other concerns CASE-BY-CASE .
Amendments that Place a Cap on Annual Grants or Amend Administrative Features to Comply with Section 162(m) of OBRA
Vote FOR .
Amendments to Add Performance-Based Goals to Comply with Section 162(m) of OBRA
Vote FOR , unless the amendments are clearly inappropriate.
Amendments to Increase Shares and Retain Tax Deductions under OBRA
Consider on a CASE-BY-CASE basis.
Approval of Cash or Cash-and-Stock Bonus Plans to Exempt the Compensation from Taxes under Section 162(m) of OBRA
Vote FOR , with primary consideration given to managements assessment that such plan meets the requirements for exemption of performance-based compensation. However, consider on a CASE-BY-
CASE basis when broader compensation concerns exist.
Implement 401(k) Employee Benefit Plans for Employees
Vote FOR .
Director Compensation
Non-Executive Director Cash Compensation
Factor in the merits of the rationale and disclosure provided. Vote FOR if the amount is not excessive, there is no evidence of abuse, the recipients overall compensation appears reasonable, the administrating committee meets exchange or market standards for independence, and other significant market standards are met. Otherwise, consider on a CASE-BY-CASE basis.
Non-Executive Director Equity Compensation
Consider on a CASE-BY-CASE basis.
Bonus Payments ( Japan )
Vote FOR if all payments are for directors or auditors who have served as executives of the company, and against if any payments are for outsiders. Otherwise, consider on a CASE-BY-CASE basis.
Bonus Payments Scandals
Vote AGAINST bonus proposals for retiring directors or continuing directors or auditors when culpability can be attributed to the nominee, unless bundled with bonuses for a majority of directors or auditors a Fund is voting FOR.
Severance Agreements
Vesting of Equity Awards upon Change in Control
Vote FOR management proposals seeking a specific treatment ( e.g. , double trigger or pro-rata) of equity that vests upon change in control, unless evidence exists of abuse in historical compensation practices.
Vote AGAINST shareholder proposals regarding the treatment of equity if:
· The change in control cash severance provisions are double-triggered; and
· The company has provided a reasonable rationale regarding the treatment of equity.
Executive Severance or Termination Arrangements, Including those Related to Executive Recruitment or Retention
Vote FOR such compensation arrangements if:
· The primary concerns raised would not result in a negative vote, under these Guidelines, on a management say on pay proposal, the relevant board or committee member(s);
· The company has provided adequate rationale and/or disclosure; or
· Support is recommended as a condition to a major transaction such as a merger.
Single Trigger Cash Severance Provisions
Vote AGAINST new or materially amended plans, contracts, or payments that include single trigger change in control cash severance provisions or do not require an actual change in control in order to be triggered.
Compensation-Related Shareholder Proposals
Double Triggers
Vote FOR shareholder proposals seeking double triggers on change in control cash severance provisions.
Executive and Director Compensation
Unless evidence exists of abuse in historical compensation practices, vote AGAINST shareholder proposals that seek to impose new compensation structures or policies.
Holding Periods
Vote AGAINST shareholder proposals requiring mandatory periods for officers and directors to hold company stock.
Submit Parachute Arrangements for Shareholder Ratification
Vote FOR (with parachutes defined as compensation arrangements related to termination that specify change in control events). Consider on a CASE-BY-CASE basis if the proposal does not include unduly restrictive or arbitrary provisions such as advance approval requirements.
Submit Severance and Termination Payments for Shareholder Ratification
Vote FOR shareholder proposals to submit executive severance agreements for shareholder ratification, if such proposals specify change in control events, Supplemental Executive Retirement Plans, or deferred executive compensation plans, or if ratification is required by the listing exchange.
3- Audit-Related
Auditor Ratification
Except in cases of poor accounting practices or fees for non-audit services exceed 50 percent of total auditor fees, vote FOR management proposals to ratify auditors.
In the U.S. and Canada , vote FOR ; however, consider on a CASE-BY-CASE basis if the Proxy Advisory Firm cites poor accounting practices including:
· T otal non-audit fees exceed the total of audit fees, audit-related fees, and tax compliance and preparation fees ( i.e ., non-audit services exceed 50 percent of total auditor fees) . For purposes of this review, fees deemed to be reasonable, non-recurring exceptions to the non-audit fee category ( e.g. , significant, one-time events such as those related to an IPO) shall be excluded.
· The company has failed to disclose the auditors fees broken down by category.
Vote AGAINST if the company has failed to disclose auditors fees.
Vote FOR shareholder proposals asking the company to present its auditor annually for ratification.
For all other markets , follow the Proxy Advisory Firms standards.
Consider on a CASE-BY-CASE basis if:
· The Proxy Advisory Firm raises questions of disclosure or auditor independence;
· Fees for non-audit services exceed 50 percent of total auditor fees and the company has not provided adequate rationale regarding the non-audit fees.
Vote AGAINST if the company has failed to disclose auditors fees.
Remuneration of Auditors
Vote FOR , unless there is evidence of excessive compensation relative to the size and nature of the company.
Auditor Independence
Consider shareholder proposals asking companies to prohibit their auditors from engaging in non-audit services (or capping the level of non-audit services) on a CASE-BY-CASE basis.
Audit Firm Rotation
Vote AGAINST shareholder proposals asking for mandatory audit firm rotation.
Indemnification of Auditors
Vote AGAINST the indemnification of auditors.
Independent Statutory Auditors ( Japan )
Vote AGAINST if the candidate is affiliated ( e.g. , if the nominee has worked a significant portion of his career for the company, its main bank, or one of its top shareholders.)
Consider on a CASE-BY-CASE basis bundled slates of directors.
Consider on a CASE-BY-CASE basis cases where multiple slates of statutory auditors are presented.
Vote AGAINST incumbent directors at companies implicated in scandals or exhibiting poor internal controls.
Statutory Auditors Remuneration
Vote FOR as long as the amount is not excessive (e.g., significant increases should be supported by
adequate rationale and disclosure), there is no evidence of abuse, the recipients overall compensation appears reasonable, and the board and/or responsible committee meet exchange or market standards for independence.
4- Shareholder Rights and Defenses
Advance Notice for Shareholder Proposals
Vote FOR management proposals related to advance notice period requirements, provided that the period requested is in accordance with applicable law and no material governance concerns have been identified in connection with the company.
Amendments to Corporate Documents
Except to align with legislative or regulatory changes or when support is recommended by the Proxy Advisory Firm or relevant Investment Professional(s), vote AGAINST proposals seeking to remove shareholder approval requirements or otherwise remove or diminish shareholder rights, e.g. , by:
· Adding restrictive provisions;
· Removing provisions or moving them to portions of the charter not requiring shareholder approval; or
· In corporate structures such as holding companies, removing provisions in an active subsidiarys charter that provide voting rights to parent company shareholders.
This policy would also apply to proposals seeking to amend or approve corporate agreements that the Proxy Advisory Firm recommends AGAINST because a similar reduction in shareholder rights is requested.
Vote AGAINST proposals for charter amendments that support board entrenchment or may be used as an anti-takeover device (or to further anti-takeover conditions), particularly if the proposal is bundled or the board is classified.
Vote FOR proposals seeking charter or bylaw amendments to remove anti-takeover provisions.
Appraisal Rights
Vote FOR proposals to restore, or provide shareholders with, rights of appraisal.
Article and Bylaw Amendments
Consider on a CASE-BY-CASE basis all proposals seeking adoption of, or amendments to, the articles of association, bylaws, or related board policies.
Vote FOR the proposal if:
· The change or policy is editorial in nature;
· Shareholder rights are protected;
· There is negligible or positive impact on shareholder value;
· Management provides adequate reasons for the amendments or the Proxy Advisory Firm otherwise supports managements position;
· It seeks to discontinue and/or delist a form of the companys securities when the relevant Fund does not hold the affected security type;
· Notice or disclosure requirements are reasonable; or
· The company is required to do so by law (if applicable).
Vote AGAINST the proposal if:
· It removes or lowers quorum requirements for board or shareholder meetings below levels recommended by the Proxy Advisory Firm;
· Restrict shareholders ability to vote on directors;
· It reduces relevant disclosure to shareholders;
· It seeks to align the articles with provisions of another proposal not supported by these Guidelines;
· It is not supported under these Guidelines, is presented within a bundled proposal, and the negative impact, on balance, outweighs any positive impact; or
· It imposes a negative impact on existing shareholder rights, including rights of the Funds, or
diminishes accountability to shareholders to the extent that any positive impact would not be deemed to be sufficient to outweigh removal or diminution of such rights.
With respect to article amendments for Japanese companies:
· Vote FOR management proposals to amend a companys articles to expand its business lines.
· Vote FOR management proposals to amend a companys articles to provide for an expansion or reduction in the size of the board, unless the expansion/reduction is clearly disproportionate to the growth/decrease in the scale of the business or raises anti-takeover concerns.
· If anti-takeover concerns exist, vote AGAINST management proposals, including bundled proposals, to amend a companys articles to authorize the Board to vary the annual meeting record date or to otherwise align them with provisions of a takeover defense.
· Follow the Proxy Advisory Firms guidelines with respect to management proposals regarding amendments to authorize share repurchases at the boards discretion, voting AGAINST proposals unless there is little to no likelihood of a creeping takeover or constraints on liquidity (free float of shares is low), and where the company is trading at below book value or is facing a real likelihood of substantial share sales; or where this amendment is bundled with other amendments which are clearly in shareholders interest.
Majority Voting Standard
Vote FOR proposals seeking election of directors by the affirmative vote of the majority of votes cast in connection with a meeting of shareholders, provided they contain a plurality carve-out for contested elections, and provided such standard does not conflict with state law in which the company is incorporated.
Vote FOR amendments to corporate documents or other actions promoting a majority standard. (See also Section 8. Mutual Fund Proxies.)
Cumulative Voting
Vote FOR shareholder proposals to restore or permit cumulative voting.
Vote AGAINST management proposals to eliminate cumulative voting if:
· The company is controlled;
· Maintains a classified board of directors; or
· Maintains a dual class voting structure.
Proposals may be supported irrespective of classification if a company plans to declassify its board or adopt a majority voting standard.
Confidential Voting
Vote FOR management proposals to adopt confidential voting.
Vote FOR shareholder proposals that request companies to adopt confidential voting, use independent tabulators, and use independent inspectors of election as long as the proposals include clauses for proxy contests as follows:
· In the case of a contested election, management should be permitted to request that the dissident group honor its confidential voting policy.
· If the dissidents agree, the policy remains in place.
· If the dissidents do not agree, the confidential voting policy is waived.
Fair Price Provisions
Consider proposals to adopt fair price provisions on a CASE-BY-CASE basis.
Vote AGAINST fair price provisions with shareholder vote requirements greater than a majority of disinterested shares.
Poison Pills
Consider on a CASE-BY-CASE basis management proposals to approve or ratify a poison pill or any plan or charter amendment ( e.g. , investment restrictions) that can reasonably be construed as an anti-takeover measure, with voting decisions based on the Proxy Advisory Firms approach to evaluating such proposals, considering factors such as rationale, trigger level, and sunset provisions. Votes will be cast in
a manner that seeks to preserve shareholder value and the right to consider a valid offer, voting AGAINST management proposals in connection with poison pills or anti-takeover activities (e.g., disclosure requirements or issuances, transfers, or repurchases) that do not meet the Proxy Advisory Firms standards.
DO NOT VOTE AGAINST director remuneration in connection with poison pill considerations raised.
Vote FOR shareholder proposals that ask a company to submit its poison pill for shareholder ratification, or to redeem its pill in lieu thereof, unless:
· Shareholders have approved adoption of the plan;
· A policy has already been implemented by the company that should reasonably prevent abusive use of the pill; or
· The board had determined that it was in the best interest of shareholders to adopt a pill without delay, provided that such plan would be put to shareholder vote within twelve months of adoption or expire, and if not approved by a majority of the votes cast, would immediately terminate.
Consider on a CASE-BY-CASE basis shareholder proposals to redeem a companys poison pill.
Proxy Access
Consider on a CASE-BY-CASE basis proposals to provide shareholders with access to managements proxy material in order to nominate their own candidates(s) to the board, factoring in considerations such as whether significant or multiple corporate governance concerns have been identified.
Vote FOR management proposals also supported by the Proxy Advisory Firm.
Quorum Requirements
Consider on a CASE-BY-CASE basis proposals to lower quorum requirements for shareholder meetings below a majority of the shares outstanding.
Reincorporation Proposals
Consider proposals to change a companys state of incorporation on a CASE-BY-CASE basis. Vote FOR management proposals not assessed as:
· A potential takeover defense; or
· A significant reduction of minority shareholder rights that outweigh the aggregate positive impact, but if so assessed, weighing managements rationale for the change.
Vote FOR management reincorporation proposals upon which another key proposal, such as a merger transaction, is contingent if the other key proposal is also supported.
Vote AGAINST shareholder reincorporation proposals not also supported by the company.
Shareholder Advisory Committees
Consider on a CASE-BY-CASE basis proposals to establish a shareholder advisory committee.
Shareholder Ability to Call Special Meetings
Vote FOR shareholder proposals that provide shareholders with the ability to call special meetings when either of the:
· Company does not currently permit shareholders to do so;
· Existing ownership threshold is greater than 25 percent; or
· Sole concern relates to a net-long position requirement.
Written Consent
Vote AGAINST shareholder proposals seeking the right to act by written consent if the company:
· Permits shareholders to call special meetings;
· Does not impose supermajority vote requirements; and
· Has otherwise demonstrated its accountability to shareholders ( e.g. , the company has reasonably addressed majority-supported shareholder proposals).
Consider management proposals to eliminate the right to act by written consent on a CASE-BY-CASE basis, voting FOR if the above conditions are present.
Vote FOR shareholder proposals seeking the right to act by written consent if the above conditions are not present.
Consider management proposals to permit shareholders to call special meetings on a CASE-BY-CASE basis.
State Takeover Statutes
Consider on a CASE-BY-CASE basis proposals to opt-in or out of state takeover statutes (including control share acquisition statutes, control share cash-out statutes, freezeout provisions, fair price provisions, stakeholder laws, poison pill endorsements, severance pay and labor contract provisions, anti-greenmail provisions, and disgorgement provisions).
Supermajority Shareholder Vote Requirement
Vote AGAINST proposals to require a supermajority shareholder vote and FOR proposals to lower supermajority shareholder vote requirements.
Consider on a CASE-BY-CASE basis if the company has shareholder(s) with significant ownership levels and the retention of existing supermajority requirements in order to protect minority shareholder interests.
Time-Phased Voting
Vote AGAINST proposals to implement, and FOR proposals to eliminate, time-phased or other forms of voting that do not promote a one share, one vote standard.
Unequal Voting Rights
Vote AGAINST dual-class exchange offers and dual-class recapitalizations.
White Squire Placements
Vote FOR shareholder proposals to require approval of blank check preferred stock issues for other than general corporate purposes.
5- Capital and Restructuring
Consider management proposals to make changes to the capital structure not otherwise addressed under these Guidelines on a CASE-BY-CASE basis, voting with the Proxy Advisory Firms recommendation unless a contrary recommendation from the relevant Investment Professional(s) is utilized.
Capital
Common Stock Authorization
Consider proposals to increase the number of shares of common stock authorized for issuance on a CASE-BY-CASE basis. The Proxy Advisory Firms proprietary approach of determining appropriate thresholds will be utilized in evaluating such proposals. In cases where the requests are above the allowable threshold, a company-specific qualitative review ( e.g. , considering rationale and prudent historical usage) will be utilized.
Vote FOR proposals within the Proxy Advisory Firms allowable thresholds, or those in excess but meeting Proxy Advisory Firms qualitative standards, to authorize capital increases, unless the company states that the stock may be used as a takeover defense.
Vote FOR proposals to authorize capital increases exceeding the Proxy Advisory Firms thresholds when a companys shares are in danger of being delisted or if a companys ability to continue to operate as a going concern is uncertain.
Notwithstanding the above, vote AGAINST :
· Proposals to increase the number of authorized shares of a class of stock if the issuance which the increase is intended to service is not supported under these Guidelines ( e.g. , merger or acquisition proposals).
· Nonspecific proposals authorizing excessive discretion to a board.
Dual Class Capital Structures
Vote AGAINST :
· Proposals to create or perpetuate dual class capital structures unless supported by the Proxy Advisory Firm ( e.g. , to avert bankruptcy or generate non-dilutive financing, and not designed to increase the voting power of an insider or significant shareholder).
· Proposals to increase the number of authorized shares of the class of stock that has superior voting rights in companies that have dual class capital structures.
However, consider such proposals CASE-BY-CASE if:
· Bundled with favorable proposal(s);
· Approval of such proposal(s) is a condition of such favorable proposal(s); or
· Part of a recapitalization for which support is recommended by the Proxy Advisory Firm or relevant Investment Professional (s).
Consider management proposals to eliminate or make changes to dual class capital structures on a CASE-BY-CASE basis, voting with the Proxy Advisory Firms recommendation.
Vote FOR shareholder proposals to eliminate dual class capital structures unless the relevant Fund owns a class with superior voting rights.
General Share Issuances ( International )
Consider specific issuance requests on a CASE-BY-CASE basis based on the proposed use and the companys rationale.
Vote AGAINST requests to reissue repurchased shares unless a related general issuance request is supported.
Voting decisions to determine support for general issuance requests (with or without preemptive rights), or related requests to repurchase and reissue shares, shall be based on the following, as identified by the Proxy Advisory Firm:
· Their amount relative to currently issued capital;
· Appropriate volume and duration parameters; and
· Market-specific considerations ( e.g. , priority right protections in France , reasonable levels of dilution and discount in Hong Kong ).
Vote AGAINST proposals to issue shares (with or without preemptive rights), convertible bonds, or warrants, to grant rights to acquire shares, or to amend the corporate charter relative to such issuances or grants when concerns have been identified by the Proxy Advisory Firm with respect to:
· Inadequate disclosure;
· Inadequate restrictions on discounts;
· Failure to meet the Proxy Advisory Firms standards for general issuance requests; or
· Authority to refresh share issuance amounts without prior shareholder approval.
Vote AGAINST nonspecific proposals authorizing excessive discretion to a board.
Increases in Authorized Capital ( International )
Unless otherwise provided for herein, voting decisions should be based on the Proxy Advisory Firms approach, as follows.
Vote FOR :
· Nonspecific proposals, including bundled proposals, to increase authorized capital up to 100 percent over the current authorization unless the increase would leave the company with less than 30 percent of its new authorization outstanding.
· Specific proposals to increase authorized capital, unless:
· The specific purpose of the increase (such as a share-based acquisition or merger) does not meet these Guidelines for the purpose being proposed; or
· The increase would leave the company with less than 30 percent of its new authorization outstanding after adjusting for all proposed issuances.
Vote AGAINST proposals to adopt unlimited capital authorizations or the proposal allows the board excessive discretion.
Preemptive Rights
Consider on a CASE-BY-CASE basis shareholder proposals that seek preemptive rights or management proposals that seek to eliminate them. In evaluating proposals on preemptive rights, consider the size of a company and the characteristics of its shareholder base.
Adjustments to Par Value of Common Stock
Vote FOR management proposals to reduce the par value of common stock, unless doing so raises other concerns not otherwise supported under these Guidelines.
Preferred Stock
Utilize the Proxy Advisory Firms approach for evaluating issuances or authorizations of preferred stock, taking into account the Proxy Advisory Firms support of special circumstances, such as mergers or acquisitions, as well as the following criteria:
Consider proposals to increase the number of shares of preferred stock authorized for issuance on a CASE-BY-CASE basis. This approach incorporates both qualitative and quantitative measures, including a review of:
· Past performance ( e.g. , board governance, shareholder returns and historical share usage); and
· The current request ( e.g. , rationale, whether shares are blank check and declawed, and dilutive impact as determined through the Proxy Advisory Firms proprietary model for assessing appropriate thresholds).
Vote AGAINST proposals authorizing the issuance of preferred stock or creation of new classes of preferred stock with unspecified voting, conversion, dividend distribution, and other rights (blank check preferred stock).
Vote FOR proposals to issue or create blank check preferred stock in cases when the company expressly states that the stock will not be used as a takeover defense.
Vote AGAINST where the company expressly states that, or fails to disclose whether, the stock may be used as a takeover defense.
Vote FOR proposals to authorize or issue preferred stock in cases where the company specifies the voting, dividend, conversion, and other rights of such stock and the terms of the preferred stock appear reasonable.
Consider on a CASE-BY-CASE basis proposals to increase the number of blank check preferred shares after analyzing the number of preferred shares available for issue given a companys industry and performance in terms of shareholder returns.
Preferred Stock ( International )
Voting decisions should generally be based on the Proxy Advisory Firms approach, including:
· Vote FOR the creation of a new class of preferred stock or issuances of preferred stock up to 50 percent of issued capital unless the terms of the preferred stock would adversely affect the rights of existing shareholders.
· Vote FOR the creation/issuance of convertible preferred stock as long as the maximum number of common shares that could be issued upon conversion meets the Proxy Advisory Firms guidelines on equity issuance requests.
· Vote AGAINST the creation of:
(1) a new class of preference shares that would carry superior voting rights to the common shares, or
(2) blank check preferred stock, unless the board states that the authorization will not be used to thwart a takeover bid.
Shareholder Proposals Regarding Blank Check Preferred Stock
Vote FOR shareholder proposals to have blank check preferred stock placements, other than those shares issued for the purpose of raising capital or making acquisitions in the normal course of business, submitted for shareholder ratification.
Share Repurchase Programs
Vote FOR management proposals to institute open-market share repurchase plans in which all
shareholders may participate on equal terms, but vote AGAINST plans with terms favoring selected parties.
Vote FOR management proposals to cancel repurchased shares.
Vote AGAINST proposals for share repurchase methods lacking adequate risk mitigation or exceeding appropriate volume or duration parameters for the market.
Consider shareholder proposals seeking share repurchase programs on a CASE-BY-CASE basis, with input from the relevant Investment Professional(s) to be given primary consideration.
Stock Distributions: Splits and Dividends
Vote FOR management proposals to increase common share authorization for a stock split, provided that the increase in authorized shares falls within the Proxy Advisory Firms allowable thresholds.
Reverse Stock Splits
Consider on a CASE-BY-CASE basis management proposals to implement a reverse stock split.
In the event the split constitutes a capital increase effectively exceeding the Proxy Advisory Firms allowable threshold because the request does not proportionately reduce the number of shares authorized, consider managements rationale and/or disclosure, voting FOR , but not supporting additional requests for capital increases on the same agenda.
Allocation of Income and Dividends ( International )
With respect to Japanese companies, consider management proposals concerning allocation of income and the distribution of dividends, including adjustments to reserves to make capital available for such purposes, on a CASE-BY-CASE basis, voting with the Proxy Advisory Firms recommendations to support such proposals unless:
· The dividend payout ratio has been consistently below 30 percent without adequate explanation; or
· The payout is excessive given the companys financial position.
Vote FOR such proposals by companies in other markets.
Vote AGAINST proposals where companies are seeking to establish or maintain disparate dividend distributions between stockholders of the same share class ( e.g ., long-term stockholders receiving a higher dividend ratio (Loyalty Dividends)).
In any market, in the event multiple dividend proposals are on the same agenda, consider on a CASE-BY-CASE basis.
Stock (Scrip) Dividend Alternatives ( International )
Vote FOR most stock (scrip) dividend proposals, but vote AGAINST proposals that do not allow for a cash option unless management demonstrates that the cash option is harmful to shareholder value.
Tracking Stock
Consider the creation of tracking stock on a CASE-BY-CASE basis, with primary consideration given to input from the relevant Investment Professional(s).
Capitalization of Reserves ( International )
Vote FOR proposals to capitalize the companys reserves for bonus issues of shares or to increase the par value of shares, unless concerns not otherwise supported under these Guidelines are raised by the Proxy Advisory Firm.
Debt Instruments and Issuance Requests ( International )
Vote AGAINST proposals authorizing excessive discretion to a board to issue or set terms for debt instruments ( e.g. , commercial paper).
Vote FOR debt issuances for companies when the gearing level (current debt-to-equity ratio) is between zero and 100 percent.
Consider on a CASE-BY-CASE basis proposals where the issuance of debt will result in the gearing level being greater than 100 percent, or for which inadequate disclosure precludes calculation of the gearing level, comparing any such proposed debt issuance to industry and market standards, and with voting
decisions based on the Proxy Advisory Firms approach to evaluating such requests.
Debt Restructurings
Consider on a CASE-BY-CASE basis proposals to increase common and/or preferred shares and to issue shares as part of a debt restructuring plan.
Financing Plans ( International )
Vote FOR the adoption of financing plans if they are in the best economic interests of shareholders.
Investment of Company Reserves ( International )
Consider proposals on a CASE-BY-CASE basis.
Restructuring
Mergers and Acquisitions
Vote FOR a proposal not typically supported under these Guidelines if a key proposal, such as a merger transaction, is contingent upon its support and a vote FOR is recommended by the Proxy Advisory Firm or relevant Investment Professional(s).
Votes on mergers and acquisitions will be reviewed a CASE-BY-CASE basis with voting decisions based on the Proxy Advisory Firms approach to evaluating such proposals if no input is provided by the relevant Investment Professional(s).
Corporate Restructurings
Votes on corporate restructuring proposals should be considered on a CASE-BY-CASE basis. Such proposals include, but are not limited to:
· Demergers
· Minority squeezeouts
· Leveraged buyouts
· Spinoffs
· Liquidations
· Dispositions
· Divestitures
· Asset sales
Waiver on Tender-Bid Requirement ( International )
Consider proposals on a CASE-BY-CASE basis seeking a waiver for a major shareholder or concert party from the requirement to make a buyout offer to minority shareholders, voting FOR when little concern of a creeping takeover exists and the company has provided a reasonable rationale for the request.
Related Party Transactions ( International )
Consider related party transactions on a CASE-BY-CASE basis.
Vote FOR approval of such transactions unless the agreement requests a strategic move outside the companys charter, contains unfavorable or high-risk terms ( e.g. , deposits without security interest or guaranty), or is deemed likely to have a negative impact on director or related party independence.
6- Environmental and Social Issues
Environmental and Social Proposals
Boards of directors and company management are responsible for guiding the corporation in connection with matters that are most often the subject of shareholder proposals on environmental and social issues. Such matters may include:
· Ensuring that the companies they oversee comply with applicable legal, regulatory and ethical standards;
· Effectively managing risk, and
· Assessing and addressing matters that may have a financial impact on shareholder value.
The Funds will vote in accordance with the boards recommendation on such proposals based on the
guidelines below.
The Funds will vote AGAINST shareholder proposals seeking to:
· Dictate corporate conduct;
· Impose excessive costs or restrictions;
· Duplicate policies already substantially in place; or
· Release information that would not help a shareholder evaluate an investment in the corporation as an economic matter.
Certain instances will be considered CASE-BY-CASE . If it appears that both:
(1) The stewardship has fallen short as evidenced by the companys failure to align its actions and disclosure with market practice and that of its peers; or the companys having been subject to significant controversies, litigation, fines, or penalties in connection with the relevant issue; and
(2) The issue is material to the company.
Approval of Donations (International)
Vote FOR proposals if they are for single- or multi-year authorities and prior disclosure of amounts is provided. Otherwise, vote AGAINST such proposals.
7- Routine/Miscellaneous
Routine Management Proposals
Vote FOR routine management proposals unless the Proxy Advisory Firm recommends voting AGAINST, prompting a CASE-BY-CASE consideration.
Authority to Call Shareholder Meetings on Less than 21 Days Notice
For companies in the United Kingdom , consider on a CASE-BY-CASE basis, factoring in whether the company has provided clear disclosure of its compliance with any hurdle conditions for the authority imposed by applicable law and has historically limited its use of such authority to time-sensitive matters.
Approval of Financial Statements and Director and Auditor Reports (International)
Vote AGAINST if there are concerns regarding inadequate disclosure, remuneration arrangements (including severance/termination payments exceeding local standards for multiples of annual compensation), or consulting agreements with non-executive directors.
Consider on a CASE-BY-CASE basis if there are other concerns regarding severance/termination payments.
Vote AGAINST if there is concern about the companys financial accounts and reporting, including related party transactions.
Vote AGAINST board-issued reports receiving a negative recommendation from the Proxy Advisory Firm due to concerns regarding independence of the board or the presence of non-independent directors on the audit committee.
Vote FOR if the only reason for a negative recommendation by the Proxy Advisory Firm is to express disapproval of broader practices of the company or its board.
Other Business
Vote AGAINST proposals for Other Business, unless the company has provided adequate disclosure regarding the matters to be raised under Other Business. Consider such instances CASE-BY-CASE .
Adjournment
These items often appear on the same agenda as a primary proposal, such as a merger or corporate restructuring.
· Vote FOR when the primary proposal is also supported.
· If there is no primary proposal, vote FOR if all other proposals are supported and AGAINST if all other proposals are opposed.
· Consider other circumstances on a CASE-BY-CASE basis.
Changing Corporate Name
Vote FOR proposals requesting a change in corporate name.
Multiple Proposals
Multiple proposals of a similar nature presented as options to the course of action favored by management may all be voted FOR , provided that:
· Support for a single proposal is not operationally required;
· No one proposal is deemed superior in the interest of the Fund(s); and
· Each proposal would otherwise be supported under these Guidelines.
Vote AGAINST any proposals that would otherwise be opposed under these Guidelines.
Bundled Proposals
Vote FOR if all of the bundled items are supported by these Guidelines.
Vote AGAINST if one or more items are not supported by these Guidelines, and if the Proxy Advisory Firm deems the negative impact, on balance, to outweigh any positive impact.
Moot Proposals
This instruction is in regard to items for which support has become moot (e.g., an incentive grant to a person no longer employed by the company); WITHHOLD support if recommended by the Proxy Advisory Firm.
8- Mutual Fund Proxies
Approving New Classes or Series of Shares
Vote FOR the establishment of new classes or series of shares.
Hire and Terminate Sub-Advisors
Vote FOR management proposals that authorize the board to hire and terminate sub-advisors.
Master-Feeder Structure
Vote FOR the establishment of a master-feeder structure.
Establish Director Ownership Requirement
Vote AGAINST shareholder proposals for the establishment of a director ownership requirement.
The matters below should be examined on a CASE-BY-CASE basis:
· Election of Directors
· Converting Closed-end Fund to Open-end Fund
· Proxy Contests
· Investment Advisory Agreements
· Preferred Stock Proposals
· 1940 Act Policies
· Changing a Fundamental Restriction to a Non-fundamental Restriction
· Change Fundamental Investment Objective to Non-fundamental
· Name Rule Proposals
· Disposition of Assets/Termination/Liquidation
· Changes to the Charter Document
· Changing the Domicile of a Fund
· Change in Funds Sub-classification
· Distribution Agreements
· Mergers
· Reimburse Shareholder for Expenses Incurred
· Terminate the Investment Advisor
· Majority Voting Proposals.
Exhibit 1 Proxy Group
Name |
|
Title or Affiliation |
|
|
|
Stanley D. Vyner |
|
Chief Investment Risk Officer and Executive Vice President, Voya Investments, LLC |
|
|
|
Julius A. Drelick III, CFA |
|
Senior Vice President, Head of Fund Compliance, Voya Funds Services, LLC |
|
|
|
Kevin M. Gleason |
|
Senior Vice President, Voya Investment Management LLC; and Chief Compliance Officer of the Voya Family of Funds, |
|
|
|
Todd Modic |
|
Senior Vice President, Voya Funds Services, LLC and Voya Investments, LLC; and Chief Financial Officer of the Voya Family of Funds |
|
|
|
Maria Anderson |
|
Vice President, Fund Compliance, Voya Funds Services, LLC |
|
|
|
Sara Donaldson |
|
Proxy Coordinator for the Voya Family of Funds and Vice President, Proxy Voting, Voya Funds Services, LLC |
|
|
|
Harley Eisner |
|
Vice President, Financial Analysis, Voya Funds Services, LLC |
|
|
|
Evan Posner, Esq. |
|
Vice President and Counsel, Voya Family of Funds |
|
|
|
Andrew Schlueter |
|
Vice President, Mutual Funds Operations, Voya Funds Services LLC |
|
|
|
Kristin Lynch* |
|
Assistant Vice President, Office of the Chief Compliance Officer, Voya Investment Management LLC |
Effective as of May 21, 2015
*Non-voting member
PART C
OTHER INFORMATION
Voya Prime Rate Trust
(25,000,000 Common Shares)
Item 25. Financial Statements and Exhibits
1. Financial Statements
Contained in Part A:
Financial Highlights for the years ended February 28, 2015, February 28 2014, and 2013, February 29, 2012, February 28, 2011, 2010, and 2009, February 29, 2008, February 28, 2007, and 2006.
Financial Statements are incorporated in Part B by reference to Registrants February 28, 2015 annual shareholder report (audited).
2. Exhibits
(a) 1. Agreement and Declaration of Trust dated December 2, 1987 Incorporated herein by reference to Amendment No. 20 to Registrants Registration Statement under the Investment Company Act of 1940 (the 1940 Act) on Form N-2 (File No. 811-5410), filed on September 16, 1996.
(i) Amendment to the Agreement and Declaration of Trust dated March 26, 1996 and effective April 12, 1996 Incorporated herein by reference to Amendment No. 20 to Registrants Registration Statement under the Investment Company Act of 1940 (the 1940 Act) on Form N-2 (File No. 811-5410), filed on September 16, 1996.
(ii) Amendment to the Agreement and Declaration of Trust dated October 23, 1998 and effective November 16, 1998 Incorporated herein by reference to Amendment No. 29 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on December 2, 1998.
(iii) Amendment to the Agreement and Declaration of Trust dated October 20, 2000 and effective October 20, 2000 Incorporated herein by reference to Amendment No. 38 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on October 23, 2000.
(iv) Amendment to the Agreement and Declaration of Trust dated February 20, 2002 and effective March 1, 2002 Incorporated herein by reference to Amendment No. 45 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on April 30, 2002.
(v) Amendment to the Agreement and Declaration of Trust dated June 11, 2010 Incorporated herein by reference to Amendment No. 85 to the
Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on April 27, 2011.
(vi) Amendment to the Agreement and Declaration of Trust dated January 23, 2014 Incorporated herein by reference to Amendment No. 100 to the Registrants Registration Statement under the 1940 Act on Form N-2 (filed No. 811-5410), filed on June 24, 2014.
(b) 1. By-Laws adopted at a meeting of the Board of Trustees on December 2, 1987 Incorporated herein by reference to Amendment No. 69 to Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 29, 2007.
(i) Amendment dated June 18, 1997 to By-Laws, amends paragraph 3.5 and 3.6 of Article 3 Incorporated herein by reference to Amendment No. 24 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on November 7, 1997.
(ii) Amendment adopted on August 2, 1999 to By-Laws amends Section 11.5 of Article 11 Incorporated herein by reference to Amendment No. 33 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on May 9, 2000.
(iii) Amendment adopted on July 26, 2000 to By-Laws, amends Section 11.1 and 11.3 of Article 11 I Incorporated herein by reference to Amendment No. 38 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on October 23, 2000.
(iv) Amendment adopted on November 10, 2005 to By-Laws, amends Section 11.5 of Article 11.1 Incorporated herein by reference to Amendment No. 69 to Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 29, 2007.
(c) Not Applicable
(d) Not Applicable
(e) Shareholder Reinvestment Program effective November, 2009 Incorporated herein by reference to Amendment No. 102 to the Registrants Registration Statement under the 1940 Act on Form N-2 (filed No. 811-5410), filed on April 24, 2015.
(f) Not Applicable
(g) 1. Amended and Restated Investment Management Agreement between Voya Investments, LLC and Voya Prime Rate Trust dated November 28, 2014, as amended and restated May 1, 2015 Filed herein.
2. Sub-Advisory Agreement between Voya Investments, LLC and Voya Investment Management Co. LLC dated November 28, 2014 Incorporated herein by
reference to Amendment No. 102 to the Registrants Registration Statement under the 1940 Act on Form N-2 (filed No. 811-5410), filed on April 24, 2015.
(h) 1. Distribution Agreement between Voya Prime Rate Trust and Voya Investments Distributor, LLC (25 Million Shares) dated November 18, 2014 Incorporated herein by reference to Amendment No. 102 to the Registrants Registration Statement under the 1940 Act on Form N-2 (filed No. 811-5410), filed on April 24, 2015.
(i) Not Applicable
(j) 1. Custodian and Investment Accounting Agreement between Registrant and State Street Bank and Trust Company effective November 1, 2001 Incorporated herein by reference to Amendment No. 58 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on June 28, 2004.
(i) First Amendment dated March 1, 2002 to the Custodian and Investment Accounting Agreement Incorporated herein by reference to Amendment No. 58 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on June 28, 2004.
(ii) Amended and Restated Exhibit A effective November 22, 2002 with respect to the Custodian and Investment Accounting Agreement Incorporated herein by reference to Amendment No. 58 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on June 28, 2004.
(iii) Second Amendment dated October 1, 2007 to the Custodian and Investment Accounting Agreement Incorporated herein by reference to Amendment No. 73 to Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 27, 2008.
(iv) Third Amendment dated August 2, 2010 to the Custodian and Investment Accounting Agreement Incorporated herein by reference to Amendment No. 85 to the Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on April 27, 2011.
2. Fee Allocation Agreement (FT Interactive) dated August 21, 2003 Incorporated herein by reference to Amendment No. 58 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on June 28, 2004.
(i) Amended Schedule A dated May 2013 to the FT Fee Allocation Agreement Incorporated herein by reference to Amendment No. 96 to the Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 21, 2013.
3. Amended and Restated Proxy Agent Fee Allocation Agreement dated January 1, 2008 amends and restates the Proxy Agent Allocation Agreement dated August 21, 2003 Incorporated herein by reference to Amendment No. 92 to the Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 27, 2012.
(i) Amended Schedule A dated May 2013 to the Amended and Restated ISS Proxy Agent Fee Allocation Agreement Incorporated herein by reference to Amendment No. 96 to the Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 21, 2013.
(ii) Schedule B dated June 30, 2003 to Amended and Restated ISS Proxy Agent Fee Allocation Agreement Incorporated herein by reference to Amendment No. 69 to Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 29, 2007.
4. Allocation Agreement Fidelity Bond made May 24, 2002 Incorporated herein by reference to Amendment No. 58 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on June 28, 2004.
(i) Amended Schedule A dated May 2007 with respect to the Allocation Agreement (Blanket Bond) dated January 2005 Incorporated herein by reference to Amendment No. 69 to Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 29, 2007.
5. Allocation Agreement Directors & Officers Liability made May 24, 2002 Incorporated herein by reference to Amendment No. 58 to Registrants Registration Statement under the 1940 Act on Form N-2 (File No. 811-5410), filed on June 28, 2004.
(i) Amended Schedule A dated September 12, 2013 with respect to the Allocation Agreement Directors & Officers Liability Incorporated herein by reference to Amendment No. 100 to the Registrants Registration Statement under the 1940 Act on Form N-2 (filed No. 811-5410), filed on June 24, 2014.
6. Transfer Agency Services Agreement dated February 25, 2009 PNC Global Investment Servicing (U.S.) Inc., (PNC) and Voya Prime Rate Trust Incorporated herein by reference to Amendment No. 79 to Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on August 13, 2009.
(i) Amended Schedule A dated February 9, 2015 to the Transfer Agency Services Agreement between PNC Global Investment Servicing (U.S.) Inc. and Voya Prime Rate Trust Filed herein.
(ii) Amendment dated February 8, 2011 to Transfer Agency Services Agreement between BNY Mellon Investment Servicing (US) Inc. (formerly, PNC) and Voya Prime Rate Trust Incorporated herein by reference to Amendment No. 87 to the Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 28, 2011.
(k) 1. Credit Agreement between Voya Prime Rate Trust and State Street Bank and Trust Company, and The Bank of Nova Scotia dated July 23, 2012 Filed herein.
(i) First Amendment dated July 22, 2013 to the Credit Agreement dated July 23, 2012 Filed herein.
(ii) Amended and Restated Revolving Note dated July 22, 2013 between Voya Prime Rate Trust and State Street Bank and Trust Company Filed herein.
(iii) Amended and Restated Revolving Note dated July 22, 2013 between Voya Prime Rate Trust and The Bank of Nova Scotia Filed herein.
(iv) Second Amendment dated July 21, 2014 to the Credit Agreement dated July 23, 2012 Filed herein.
2. Expense Limitation Agreement effective November 18, 2014 between Voya Investments, LLC and Voya Prime Rate Trust Incorporated herein by reference to Amendment No. 102 to the Registrants Registration Statement under the 1940 Act on Form N-2 (filed No. 811-5410), filed on April 24, 2015.
(l) 1. Opinion of Ropes & Gray LLP Filed herein.
(m) Not Applicable
(n) 1. Consent of Ropes & Gray LLP Filed herein.
2. Consent of KPMG LLP Filed herein.
(o) Not Applicable
(p) Certificate of Initial Capital Incorporated herein by reference to Pre-Effective Amendment No. 1 to Registrants initial registration statement on form N-2 (File No. 33-18886), filed on January 22, 1988.
(q) Not Applicable
(r) 1. Voya Funds and Advisers Code of Ethics Amended January 1, 2015 Filed herein.
Item 26. Marketing Agreements
Not Applicable.
Item 27. Other Expenses of Issuance and Distribution
Not Applicable.
Item 28. Persons Controlled by or Under Common Control
Not Applicable.
Item 29. Number of Holders of Securities
(1) Title of Class |
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(2) Number of Record Holders
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Common Shares of beneficial interest, par value $0.01 per share |
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2,875 |
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Item 30. Indemnification
Registrants Agreement and Declaration of Trust generally provides that the Trust shall indemnify each of its Trustees and officers (including persons who serve at the Trusts request as directors, officers, or trustees of another organization in which the Trust has any interest as a shareholder, creditor, or otherwise) (Covered Persons) against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees reasonably incurred in connection with the defense or disposition of any action, suit, or other proceeding, whether civil or criminal, by reason of being or having been such a Covered Person except with respect to any matter as to which such Covered Person shall have been finally adjudicated: (a) not to have acted in good faith in the reasonable belief that such Covered Persons action was in the best interest of the Trust; or (b) to be liable to the Trust or its shareholders by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of duties involved in the conduct of such Covered Persons office.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to Trustees, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of the Registrant of expenses incurred or paid by a Trustee, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such Trustee, officer, or controlling person in connection with the securities being registered, the Registrant will submit, unless in the opinion of its counsel the matter has been settled by controlling precedent, to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Item 31. Business and Other Connections of Investment Adviser
Information as to the Trustees and officers of the Adviser, together with information as to any other business, profession, vocation, or employment of a substantial nature engaged in by the directors and officers of the Adviser in the last two years, is included in its application for registration as an investment adviser on Form ADV (File No. 801-48282) filed under the Investment Advisers Act of 1940, as amended (Advisers Act), and is incorporated herein by reference thereto.
Information as to the directors and officers of the sub-adviser, together with information as to any other business, profession, vocation, or employment of a substantial nature engaged in by the directors and
officers of the sub-adviser in the last two years, is included in its application for registration as an investment adviser on Form ADV for Voya Investment Management Co. LLC (File No. 801-9046) filed under the Investment Adviser Act of 1940, as amended, and is incorporated by reference thereto.
Item 32. Location of Accounts and Records
The amounts and records of the Registrant will be maintained at its office at 7337 E. Doubletree Ranch Road, Suite 100, Scottsdale, Arizona 85258, at the office of its sub-adviser, Voya Investment Management Co. LLC, 230 Park Avenue, New York, NY 10169, and at the office of its custodian, State Street Bank & Trust, 801 Pennsylvania, Kansas City, Missouri 64105.
Item 33. Management Services
Not Applicable.
Item 34. Undertakings
1. The Registrant undertakes to suspend the Offer until the prospectus is amended if: (a) subsequent to the effective date of this registration statement, the net asset value declines more than ten percent from its net asset value as of the effective date of this registration statement; or (b) the net asset value increases to an amount greater than the net proceeds as stated in the prospectus included in this registration statement.
2. Not Applicable.
3. Not Applicable.
4. The Registrant undertakes:
a. to file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement: (i) to include any prospectus required by Section 10(a)(3) of the 1933 Act; (ii) to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
b. that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof; and
c. to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and
d. Not Applicable
e. that, for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities, the undersigned Registrant undertakes
that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser: (i) any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act; (ii) the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and (iii) any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
5. a. The Registrant undertakes that for the purpose of determining any liability under the 1933 Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant under Rule 497(h) under the 1933 Act [17 CFR 230.497(h)] shall be deemed to be part of this Registration Statement as of the time it was declared effective; and
b. that for the purpose of determining any liability under the 1933 Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof.
6. The Registrant undertakes to send by first class mail or other means designed to ensure equally prompt delivery, within two business days of receipt of a written or oral request, any Statement of Additional Information.
SIGNATURES
Pursuant to requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Scottsdale and State of Arizona on the 26 th day of June, 2015.
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VOYA PRIME RATE TRUST |
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By: |
/s/ Huey P. Falgout, Jr. |
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Huey P. Falgout, Jr. |
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Secretary |
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated:
Signature |
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Title |
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Date |
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Interested Trustee and President and Chief Executive Officer |
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June 26, 2015 |
Shaun P. Mathews* |
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Senior Vice President, Chief/Principal Financial Officer |
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June 26, 2015 |
Todd Modic* |
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Trustee |
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June 26, 2015 |
Colleen D. Baldwin* |
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Trustee |
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June 26, 2015 |
John V. Boyer* |
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Trustee |
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June 26, 2015 |
Patricia W. Chadwick* |
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Trustee |
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June 26, 2015 |
Albert E. DePrince, Jr.* |
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Trustee |
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June 26, 2015 |
Peter S. Drotch* |
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Trustee |
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June 26, 2015 |
Russell H. Jones* |
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Trustee |
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June 26, 2015 |
Patrick W. Kenny* |
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Trustee |
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June 26, 2015 |
Joseph E. Obermeyer* |
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Trustee |
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June 26, 2015 |
Sheryl K. Pressler* |
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Trustee |
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June 26, 2015 |
Roger B. Vincent* |
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* By: |
/s/ Huey P. Falgout, Jr. |
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Huey P. Falgout, Jr. |
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Attorney-in-Fact** |
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** Powers of Attorney for Shaun P. Mathews, Todd Modic and each Trustee dated May 22, 2013 were filed as attachments to Amendment No. 96 to the Registrants Registration Statement under the 1940 Act on Form N-2 (file No. 811-5410), filed on June 21, 2013.
EXHIBIT INDEX
Voya Prime Rate Trust
(25,000,000 Common Shares)
EXHIBIT NUMBER |
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EXHIBIT NAME |
(2)(g)(1) |
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Amended and Restated Investment Management Agreement between Voya Investments, LLC and Voya Prime Rate Trust dated November 18, 2014, as amended and restated May 1, 2015 |
(2)(j)(6)(i) |
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Amended Schedule A dated February 9, 2015 to the Transfer Agency Services Agreement between BNY Mellon Investment Servicing (US) Inc. and Voya Prime Rate Trust |
(2)(k)(1) |
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Credit Agreement between Voya Prime Rate Trust and State Street Bank and Trust Company, and The Bank of Nova Scotia dated July 23, 2012 |
(2)(k)(1)(i) |
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First Amendment dated July 22, 2013 to the Credit Agreement dated July 23, 2012 |
(2)(k)(1)(ii) |
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Amended and Restated Revolving Note dated July 22, 2013 between Voya Prime Rate Trust and State Street Bank and Trust Company |
(2)(k)(1)(iii) |
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Amended and Restated Revolving Note dated July 22, 2013 between Voya Prime Rate Trust and The Bank of Nova Scotia |
(2)(k)(1)(iv) |
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Second Amendment dated July 21, 2014 to the Credit Agreement dated July 23, 2012 |
(2)(l)(1) |
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Opinion of Ropes & Gray LLP |
(2)(n)(1) |
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Consent of Ropes & Gray LLP |
(2)(n)(2) |
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Consent of KPMG LLP |
(2)(r)(1) |
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Voya Funds and Advisers Code of Ethics Amended January 1, 2015 |
(2)(g)(1)
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
VOYA PRIME RATE TRUST
AGREEMENT dated November 18, 2014, as amended and restated on May 1, 2015, between Voya Prime Rate Trust (the Fund), a Massachusetts business trust and Voya Investments, LLC (the Manager), a limited liability company organized and existing under the laws of the State of Arizona (the Agreement).
WHEREAS, the Fund is a closed-end management investment company, registered as such under the Investment Company Act of 1940, as amended (the 1940 Act); and
WHEREAS, the Manager is registered as an investment adviser under the Investment Advisers Act of 1940, and is engaged in the business of supplying investment advice, investment management and administrative services, as an independent contractor; and
WHEREAS, the Fund desires to retain the Manager to render advice and services pursuant to the terms and provisions of this Agreement, and the Manager is willing to furnish said advice and services.
NOW, THEREFORE, in consideration of the covenants and the mutual promises hereinafter set forth, the parties hereto, intending to be legally bound hereby, mutually agree as follows:
1 . Employment of Manager .
The Trust hereby employs the Manager and the Manager hereby accepts such employment, to render investment advice and investment management services with respect to the assets of the Trust (Advisory Services), and all administrative services reasonably necessary as of January 1, 2015 for the ordinary operation of the Trust (Administrative Services), subject to the supervision and direction of the Board of Trustees of the Trust (the Trustees), provided, however, that the Advisory Services and Administrative Services shall not include the services identified on Schedule A and, therefore, such services shall be deemed to be outside the scope of this Agreement.
The Manager shall, as part of its duties hereunder (i) furnish the Trust with advice and recommendations with respect to the investment of the Trusts assets and the purchase and sale of its portfolio securities, including the taking of such other steps as may be necessary to implement such advice and recommendations, (ii) furnish the Trust with reports, statements and other data on securities, economic conditions and other pertinent subjects which the Trusts Board of Trustees may request, (iii) permit its officers and employees to serve without compensation as Trustees of the Trust if elected to such positions and (iv) in general superintend and manage the investment of the Trust, subject to the ultimate supervision and direction to the Trusts Board of Trustees.
Subject to the approval of the Trustees of the Trust, the Manager is authorized to enter into sub-advisory agreements with other registered investment advisers to serve as investment sub-advisers, whether or not affiliated with the Manager (each a Sub-Adviser). The Manager will continue to have responsibility for all services furnished pursuant to any sub-advisory agreement. The Trust and the Manager understand and agree that the Manager may manage the Trust with one or more Sub-Advisers, which contemplates that the Manager will, among other things: (i) continually evaluate the performance of any Sub-Adviser to the Trust; and (ii) periodically make recommendations to the Trusts Trustees regarding the results of its evaluation and monitoring functions. The Trust recognizes that, subject to the approval of the Trustees of the Trust, a Sub-Advisers services may be terminated or modified and that the Manager may appoint a new Sub-Adviser for the Trust.
2. Best Judgment . The Manager shall use its best judgment and efforts in rendering the advice and services to the Fund, including the Advisory Services and the Administrative Services, as contemplated by this Agreement.
3. Exclusivity . The Manager shall, for all purposes herein, be deemed to be an independent contractor, and shall, unless otherwise expressly provided and authorized, have no authority to act for or represent the Fund in any way, or in any way be deemed an agent for the Fund. It is expressly understood and agreed that the Advisory Services and Administrative Services to be rendered by the Manager to the Fund under the provisions of this Agreement are not to be deemed exclusive, and the Manager shall be free to render similar or different services to others so long as its ability to render the services provided for in this Agreement shall not be impaired thereby.
4. Best Efforts . The Manager agrees to use its best efforts in the furnishing of such advice and recommendations to the Fund, in the preparation of reports and information, in the management of the Funds assets, and in the provision of Advisory Services and Administrative Services, all pursuant to this Agreement, and for this purpose the Manager shall, at its own expense, maintain such staff and employ or retain such personnel and consult with such other persons as it shall from time to time determine to be necessary to the performance of its obligations under this Agreement. Without limiting the generality of the foregoing, the staff and personnel of the Manager shall be deemed to include persons employed or retained by the Manager to furnish statistical, research, and other factual information, advice regarding economic factors and trends, information with respect to technical and scientific developments, and such other information, advice and assistance as the Manager may desire and request.
5. Statements and Reports . The Fund will from time to time furnish to the Manager detailed statements of the investments and assets of the Fund and information as to its investment objectives and needs, and will make available to the Manager such financial reports, proxy statements, legal and other information relating to its investments as may be in the possession of the Fund or available to it and such other information as the Manager may reasonably request.
6. Tender Offers . Whenever the Manager has determined that the Fund should tender securities pursuant to a tender offer solicitation, the Manager shall designate an affiliate as the tendering dealer so long as it is legally permitted to act in such capacity under the federal
securities laws and rules thereunder and the rules of any securities exchange or association of which such affiliate may be a member. Such affiliated dealer shall not be obligated to make any additional commitments of capital, expense or personnel beyond that already committed (other than normal periodic fees or payments necessary to maintain its corporate existence and membership in the National Association of Securities Dealers, Inc.) as of the date of this Agreement. This Agreement shall not obligate the Manager or such affiliate (i) to act pursuant to the foregoing requirement under any circumstances in which they might reasonably believe that liability might be imposed upon them as a result of so acting, or (ii) to institute legal or other proceedings to collect fees which may be considered to be due from others to it as a result of such a tender, unless the Fund shall enter into an agreement with such affiliate to reimburse it for all expenses connected with attempting to collect such fees, including legal fees and expenses and that portion of the compensation due to their employees which is attributable to the time involved in attempting to collect such fees.
7. Expenses .
(a) The Manager shall bear and pay the costs of rendering the services to be performed by it under this Agreement described on Schedule B attached hereto, as it may be revised from time to time to account for changes in the vendors paid.
(b) The Fund shall be responsible for all of the expenses of its operations, including, without limitation, the management fee payable hereunder and extraordinary expenses, such as litigation expenses.
(c) To the extent the Manager incurs any costs or performs any services which are an obligation of the Fund, as set forth in this Agreement, the Fund shall promptly reimburse the Manager for such costs and expenses. To the extent the services for which the Fund is obligated to pay are performed by the Manager, the Manager shall be entitled to recover from the Fund only to the extent of its costs for such services.
8. Delegation .
(a) The Manager may delegate the performance of certain Advisory Services, as described hereunder, to a Sub-Adviser.
(b) The Administrative Services provided hereunder may be furnished by any directors, officers or employees of the Manager or of affiliates of the Manager. The Manager may, at the expense of the Manager, retain the services of a third party as its delegate, under the Managers supervision, to provide in its stead any Administrative Service. Any such delegation of Advisory Services to a Sub-Adviser, or of Administrative Services to a third party, shall be subject to the approval of the Funds Board of Trustees.
(c) The Manager shall remain liable to the Fund for any Administrative Service delegated to a third party pursuant to this Section 8 to the same extent as if the Manager provided the services itself.
9. Oversight of Sub-Advisers . In the event that the Manager wishes to select others to render Advisory Services, the Manager shall analyze, select and recommend for consideration and approval by the Funds Board of Trustees investment advisory firms (however organized) to provide investment advice to the Fund, and, at the expense of the Manager, engage (which engagement may also be by the Fund) any such investment advisory firm to render investment advice and manage the investments of the Fund and the composition the Funds portfolio of securities and investments, including cash, and the purchase, retention and disposition thereof, or any offering thereof, in accordance with the Funds investment objective or objectives and policies as stated in the Funds registration statement, as may be supplemented or amended from time to time (the Registration Statement). The Manager shall take the following actions in respect of the performance by the Sub-Adviser of its obligations in respect of the Fund:
(a) Periodically monitor and evaluate the performance of the Sub-Advisers with respect to the investment objectives and policies of the Fund, including without limitation, perform periodic detailed analysis and review of the Sub-Advisers investment performance in respect of the Fund and in respect of other accounts managed by the Sub-Adviser with similar investment strategies;
(b) Prepare and present periodic reports to the Board of Trustees regarding the investment performance of the Sub-Adviser and other information regarding the Sub-Adviser, at such times and in such forms as the Board of Trustees may reasonably request;
(c) Review and consider any changes in the personnel of the Sub-Adviser responsible for performing the Sub-Advisers obligations and make appropriate reports to the Board of Trustees;
(d) Review and consider any changes in the ownership or senior management of the Sub-Adviser and make appropriate reports to the Board of Trustees;
(e) Perform periodic in-person or telephonic diligence meetings with representatives of the Sub-Adviser;
(f) Supervise Sub-Advisers with respect to the services that such Sub-Advisers provide under each Sub-Advisers Sub-Advisory Agreement;
(g) Assist the Board of Trustees and management of the Fund in developing and reviewing information with respect to the initial approval of the Sub-Adviser Agreement with the Sub-Adviser and annual consideration of the agreement thereafter;
(h) Monitor the Sub-Advisers for compliance with the investment objective or objectives, policies and restrictions of the Fund, the 1940 Act, Subchapter M of the Internal Revenue Code, and if applicable, regulations under such provisions, and other applicable law;
(i) If appropriate, analyze and recommend for consideration by the Funds Board of Trustees termination of a contract with a Sub-Adviser under which the Sub-Adviser provides investment advisory services to the Fund;
(j) Identify potential successors to or replacements of the Sub-Adviser or potential additional Sub-Advisers, perform appropriate due diligence, and develop and present to the Board of Trustees a recommendation as to any such successor, replacement, or additional Sub-Adviser;
(k) Designate and compensate from its own resources such personnel as the Manager may consider necessary or appropriate to the performance of its services hereunder; and
(l) Perform such other review and reporting functions as the Board of Trustees shall reasonably request consistent with this Agreement and applicable law.
10. Compensation .
(a) The Fund agrees to pay to the Manager, and the Manager agrees to accept, as full compensation for all Administrative Services and Advisory Services furnished or provided to the Fund and as full reimbursement for all expenses assumed by the Manager, a management fee equal to the amount specified for the Fund on Schedule C .
(b) The management fees shall be accrued daily by the Fund and paid to the Manager at the end of each calendar month.
(c) To the extent that the gross operating costs and expenses of the Fund (excluding any interest taxes, brokerage commissions, and, with the prior written approval of any state securities commission requiring same, any extraordinary expenses, such as litigation) exceed the allowable expense limitations of the state in which shares of the Fund are registered for sale having the most stringent expense reimbursement provisions, the Manager shall reimburse the Fund for the amount of such excess.
(d) The management fee payable by the Fund hereunder shall be reduced to the extent that an affiliate of the Manager has actually received cash payments of tender offer solicitation fees less certain costs and expenses incurred in connection therewith, as referred to in Section 7 herein.
11. Prohibition on Short Positions . The Manager agrees that neither it nor any of its officers or employees shall take any short position in the capital stock of the Fund. This prohibition shall not prevent the purchase of such shares by any of the officers and directors or bona fide employees of the Manager or any trust, pension, profit-sharing or other benefit plan for such persons or affiliates thereof, at a price not less than the net asset value thereof at the time of purchase, as allowed pursuant to rules promulgated under the 1940 Act, as amended.
12. Actions in Contravention of Organizational Documents . Nothing herein contained shall be deemed to require the Fund to take any action contrary to the Declaration of Trust or By-Laws of the Fund, or any applicable statute or regulation, or to relieve or deprive the Trustees of the Fund of its responsibility for and control of the conduct of the affairs of the Fund.
13. Liability of the Manager .
(a) Liability with respect to the Provision of Advisory Services.
(i) In the absence of willful misfeasance, bad faith, gross negligence, or reckless disregard of obligations or duties hereunder on the part of the Manager, the Manager shall not be subject to liability to the Fund, or to any shareholder of the Fund, for any act or omission in the course of, or connected with, rendering Advisory Services hereunder or for any losses that may be sustained in the purchase, holding or sale of any security by the Fund.
(ii) Notwithstanding the foregoing, the Manager agrees to reimburse the Fund for any and all costs, expenses, and counsel and Trustees fees reasonably incurred by the Fund in the preparation, printing and distribution of proxy statements, amendments to its Registration Statement, the holding of meetings of its shareholders or Trustees, the conduct of factual investigations, any legal or administrative proceedings (including any applications for exemptions or determinations by the Securities and Exchange Commission) which the Fund incurs as a result of action or inaction of the Manager or any of its shareholders where the action or inaction necessitating such expenditures: (1) is directly or indirectly related to any transactions or proposed transaction in the shares or control of the Manager or its affiliates (or litigation related to any pending or proposed future transaction in such shares or control) which shall have been undertaken without the prior, express approval of the Funds Trustees, or (2) is within the sole control of the Manager or any of its affiliates or any of their officers, directors, employees or shareholders. The Manager shall not be obligated pursuant to the provisions of this subsection 13(a)(ii), to reimburse the Fund for any expenditures related to the institution of an administrative proceeding or civil litigation by the Fund or by a Fund shareholder seeking to recover all or a portion of the proceeds derived by any shareholder of the Manager or any of its affiliates from the sale of his shares of the Manager, or similar matters. So long as this Agreement is in effect, the Manager shall pay to the Fund the amount due for expenses subject to this subsection 13(a)(ii) within thirty (30) days after a bill or statement has been received by the Fund therefor. This provision shall not be deemed to be a waiver of any claim the Fund may have or may assert against the Manager or others or costs, expenses, or damages heretofore incurred by the Fund for costs, expenses, or damages the Fund may hereafter incur which are not reimbursable to it hereunder.
(iii) No provision of this Agreement shall be construed to protect any director or officer of the Fund, or of the Manager, from liability in violation of Sections 17(h) and (i) of the 1940 Act.
(b) Liability with respect to the Provision of Administrative Services.
In providing the Administrative Services, the Manager may rely on information reasonably believed by it to be accurate and reliable. Except as may otherwise be required by the 1940 Act or the rules thereunder, neither the Manager nor its stockholders, officers, directors/trustees employees, or agents shall be subject to any liability for, or any damages, expenses, or losses incurred in connection with, any act or omission connected with or arising out of any Administrative Services rendered under this Agreement, except by reason of willful misfeasance, bad faith, or negligence in the performance of the Managers duties, or by reason of
reckless disregard of the Managers obligations and duties under this Agreement. The liability incurred by the Manager pursuant to this Section 13(b) with respect to a Fund in any year shall be limited to the revenues of the Manager derived from the Fund in that fiscal year of the Fund. The Manager shall look solely to the Funds property for satisfaction of claims of any nature against the Fund or a director, officer, employee or agent of the Fund individually arising in connection with the affairs of the Fund.
(c) Fund Disclosures.
(i) The Manager shall be responsible for preparing the Funds registration statements and supplements to the Funds prospectuses and statements of additional information (Disclosure Documents), and for filing or arranging for the filing of such Disclosure Documents with the Securities and Exchange Commission (SEC) and other federal and state regulatory authorities as may be required by applicable law.
(ii) Notwithstanding anything in Section 13 or elsewhere in this Agreement, the Manager shall exercise reasonable care consistent with a fiduciary duty in fulfilling its responsibilities under Section 13(c)(i) of this Agreement.
(iii) In the event of a claim, litigation, liability, or a regulatory action or investigation (collectively, a Disclosure Claim) that arises out of or is based upon the disclosure in a Disclosure Document for the Fund (including, but not limited to, a claim arising from an untrue statement or alleged untrue statement in a registration statement for the Fund or an omission or alleged omission of a material fact required to be stated therein or necessary to make statements made in a registration statement not misleading), the Manager shall indemnify and hold harmless the Fund and each individual who, during the term of this Agreement, serves or had served as a Trustee of the Fund who is not an interested person of the Fund, as such term is defined in the 1940 Act (an Independent Trustee), if such Disclosure Claim arises from the Managers failure or alleged failure to exercise reasonable care consistent with a fiduciary duty in the preparation or filing of the Funds Disclosure Documents for the loss, costs, or damages, including amounts paid in settlement with the written consent of the Manager, which consent shall not be unreasonably withheld, and including reasonable legal and other expenses, that arise from such Disclosure Claim.
(iv) In addition to the indemnification provided in Section 13(c)(iii) of this Agreement, the Manager agrees to indemnify and hold harmless the Independent Trustees for the costs of defense of a Disclosure Claim, including reasonable attorneys fees, regardless of whether such Disclosure Claim arises from the Managers failure or alleged failure to exercise reasonable care consistent with a fiduciary duty in the preparation of the Funds Disclosure Documents, subject to the Managers right to assume the defense of such Disclosure Claim pursuant to Section 13(c)(ix) of this Agreement.
(v) The parties expressly acknowledge that this Section 13(c) confers rights and remedies upon the Fund and each Independent Trustee, including the right to enforce the indemnification provided for in Sections 13(c)(iii) and 13(c)(iv) of this Agreement. The
obligation of the Manager to provide indemnification to the Fund and the Independent Trustees, as set forth in this Section 13(c), shall remain in effect after the termination of this Agreement.
(vi) The indemnification of the Fund provided for in Section 13(c)(iii) of this Agreement shall apply only to the extent that any loss to the Fund is not covered by insurance held by the Fund, and shall not apply if: (A) the disclosure giving rise to the Disclosure Claim was provided by or on behalf of an Independent Trustee for inclusion in the Funds Disclosure Documents; or (B) indemnification is not allowed under applicable law.
(vii) The indemnification of an Independent Trustee provided in Sections 13(c)(iii) and 13(c)(iv) of this Agreement shall apply only to the extent that any loss to the Independent Trustee is not covered by insurance held by the Fund or the Independent Trustee , and shall not apply if: (A) losses are actually indemnified by the Fund, consistent with the Funds organizational documents; (B) the disclosure giving rise to the Disclosure Claim was provided by or on behalf of an Independent Trustee for inclusion in the Funds Disclosure Documents; (C) losses are the result of willful misfeasance, bad faith, gross negligence or reckless disregard on the part of an Independent Trustee; or (D) indemnification is not allowed under applicable law.
(viii) The Manager shall not be liable for indemnification of an Independent Trustee under this Section 13(c) unless the Independent Trustee has notified the Manager in writing within a reasonable time after the summons or other first legal process giving information of the nature of the Disclosure Claim is served upon such Independent Trustee (or after such Independent Trustee shall have received notice of such service on any designated agent); provided, however, that notification of the Manager is not required if the Manager had actual knowledge about the nature of the Disclosure Claim. In the event of a request for indemnification from an Independent Trustee, the Manager shall pay advances to the fullest extent permissible under the 1940 Act and applicable state law.
(ix) In the event of a request for indemnification from the Fund or an Independent Trustee (Indemnified Party), the Manager shall be entitled, upon notice to the Indemnified Party, to assume the defense of any Disclosure Claim against the Indemnified Party, with counsel satisfactory to the Manager and the Indemnified Party.
(x) Sections 13(a) and 13(b) shall not apply to a claim for indemnification under this Section 13(c).
14. Term and Continuation . This Agreement shall become effective on the date first written above, subject to the condition that the Funds Trustees, including a majority of those Trustees who are not interested persons (as such term is defined in the 1940 Act) of the Manager, and the shareholders of the Fund, shall have approved this Agreement. Unless terminated as provided herein, the Agreement shall continue in full force and effect through November 17, 2016 , and shall continue from year to year thereafter so long as such continuation is approved at least annually by (i) the Trustees of the Fund or by the vote of a majority of the outstanding voting securities of the Fund, and (ii) the vote of a majority of the Trustees of the Fund who are not parties to this Agreement or interested persons thereof, cast in person at a meeting called for the purpose of voting on such approval.
15. Termination .
(a) This Agreement may be terminated at any time, without payment of any penalty, by the Trustees of the Fund or by vote of a majority of the outstanding voting securities of the Fund, upon sixty (60) days written notice to the Manager, and by the Manager upon sixty (60) days written notice to the Fund.
(b) This Agreement shall terminate automatically in the event of any transfer or assignment thereof, as defined in the 1940 Act, as amended.
16. Assignment . This Agreement may not be transferred, assigned, sold or in any manner hypothecated or pledged without the affirmative vote or written consent of the holders of a majority of the outstanding voting securities of the Fund.
17. Use of Name . It is understood that the name Voya Investments, LLC or any trademark, trade name, service mark, or logo, or any variation of such trademark, service mark, or logo of the Manager or its affiliates, including but not limited to the mark Voya ® (collectively, the Voya Marks) is the valuable property of the Manager and its affiliates, and that the Fund has the right to use such Voya Marks only so long as this Agreement or any subsequent agreement with the Manager in replacement of this Agreement shall continue with respect to such Fund. Upon termination of this Agreement without its replacement by a subsequent agreement, the Fund shall, as soon as is reasonably possible, discontinue all use of the Voya Marks and shall promptly amend its Fund to change its name (if such Voya Marks are included therein).
18. Applicable Law .
(a) If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule, or otherwise, the remainder of this Agreement shall not be affected thereby.
(b) The term majority of the outstanding voting securities of the Fund shall have the meaning as set forth in the 1940 Act, as amended.
(c) This Agreement shall be governed by the laws of the State of New York, provided that nothing herein shall be construed in a manner inconsistent with the 1940 Act, the Investment Advisors Act of 1940, or any rules or orders of the SEC thereunder.
19 . Limitation of Liability for Claims. The Manager is hereby expressly put on notice of the limitation of liability as set forth in the Funds Declaration of Trust (the Declaration) and agrees that the obligations assumed by the Fund pursuant to this Agreement shall be limited in all cases to the Fund and its assets, and the Manager shall not seek satisfaction of any such obligation from the shareholders of the Trust or from any trustee, officer, employee or agent of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their officers designated below as of the day and year first above written.
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VOYA PRIME RATE TRUST |
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By: |
/s/ Kimberly A. Anderson |
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Kimberly A. Anderson |
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Senior Vice President |
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VOYA INVESTMENTS, LLC |
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By: |
/s/ Todd Modic |
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Todd Modic |
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Senior Vice President |
SCHEDULE A
with respect to the
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
between
VOYA PRIME RATE TRUST
and
VOYA INVESTMENTS, LLC
EXCLUDED SERVICES
As set forth in Section 1 of this Agreement, the direct provision of the following services shall be deemed to be outside the scope of this Agreement.
1. Underwriting or distribution services of the sort provided by the underwriter or distributor to a Fund
2. Distribution or shareholder services provided to a Fund pursuant to a plan, whether or not adopted under Rule 12b-1 promulgated under the 1940 Act
3. Custody services such as those currently provided by The Bank of New York Mellon and State Street Bank
4. Fund accounting services of the sort currently provided by The Bank of New York Mellon and State Street Bank, inclusive of pricing services utilized by the fund accounting agents
5. Transfer agency and recordkeeping services provided by various brokers/dealers and other intermediaries
6. Transfer agency services such as those currently provided by The Bank of New York Mellon and Computershare Limited
7. Printing and postage for shareholder reports, prospectuses and statements of additional information such as is currently provided by Merrill Corporation, Universal Wilde, RR Donnelley & Sons Company and Broadridge Financial Solutions, Inc.
8. External counsel and legal services such as those currently provided to the Fund or to the Independent Trustees by Ropes & Gray LLP and K&L Gates LLP
9. Audits and semi-annual reviews of financial statements, prospectuses and Form N-14 filings such as those currently provided by KPMG LLP
10. Tax consulting services, review of tax compliance and other tax services such as those currently provided by KPMG LLP
11. Fair value pricing services such as those currently provided by Interactive Data Corporation
12. Proxy tabulation and solicitation services related to shareholder meetings for a Fund, such as those currently provided by Broadridge Financial Solutions, Inc. and/or Computershare Limited
13. Identifying and tracking services for wash sales activity such as those currently provided by Gainskeeper (Wolters Kluwer Financial Services, Inc.)
14. Brokerage services
15. Attribution and risk analysis services provided in support of the Chief Investment Risk Officer such as those currently provided by the Bank of New York-Wilshire Atlas/Axiom Attribution and Risk Analysis System
16. Recordkeeping services related to the Trustee deferred compensation plan such as those currently provided by Pen-Cal Administrators
17. Call center services related to phone representatives that service existing Fund shareholders of record such as those currently provided by The Bank of New York Mellon Services
18. Consultants hired at the request of the Board of Trustees to advise them
19. Administrative Services that are not reasonably necessary for the ordinary operation of each Fund as of January 1, 2015, but that may be required in the future.
SCHEDULE B
with respect to the
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
between
VOYA PRIME RATE TRUST
and
VOYA INVESTMENTS, LLC
EXPENSES
# |
|
EXPENSE
|
|
CURRENT
|
|
DESCRIPTION |
|
% Borne
|
|
ALLOCATION NOTE |
|
Allocated Expenses |
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||
1 |
|
General Services |
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KPMG LLP (17f-2 Audit Fees) |
|
Affiliated sub-custodian account test work |
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50 |
% |
|
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2 |
|
Fund Accounting/ Financial Reporting Services |
|
Morgan Stanley GICS Direct License |
|
Industry Classification for equity securities for financial reporting purposes |
|
50 |
% |
Voya funds portion is limited to a maximum of $40,000. |
|
3 |
|
Fund Accounting/ Financial Reporting Services |
|
RIMES Technologies Corporation |
|
Aggregated benchmark data (returns). Data is used in Voya funds annual and semi-annual reports and prospectuses. |
|
60 |
% |
|
|
4 |
|
Proxy Voting Services |
|
Institutional Shareholder Services (ISS, Inc.) |
|
Proxy Advisory Services and Voting Agent Service |
|
50 |
% |
|
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5 |
|
Proxy Voting Services |
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Farient |
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Proxy Analysis |
|
50 |
% |
|
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6 |
|
Finance Services |
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Bloomberg / Morningstar / NYSE / Strategic Insight / Institutional Investor / Etc. |
|
Market Data Service Providers (Non-CIRO usage) |
|
95 |
% |
Allocation to the Voya funds is based on Board usage/subscriptions. Only actual Board usage costs are allocated to the Voya funds. |
|
7 |
|
Industry Association Dues |
|
Investment Company Institute |
|
General membership fees |
|
90 |
% |
Voya funds portion is limited to a maximum of the fee paid by the Voya funds for Mutual Funds Directors Forum membership. |
|
# |
|
EXPENSE
|
|
CURRENT
|
|
DESCRIPTION |
|
% Borne
|
|
ALLOCATION NOTE |
|
Allocated Expenses, continued |
|
|
|
|
|
|
|
||||
8 |
|
Chief Investment Risk Officer(1) |
|
Chief Investment Risk Officer (CIRO) |
|
Costs associated with the CIRO function |
|
40 |
% |
Overhead(2) items are allocable to the Manager. |
|
9 |
|
Chief Compliance Officer(1) |
|
Office of the Chief Compliance Officer (CCO) |
|
CCO Function |
|
0 |
% |
Overhead(2) items are allocable to the Manager. |
|
Voya Expenses |
|
|
|
|
|
|
|
|
|||
10 |
|
General Services |
|
Confluence |
|
Software application to assist in monitoring the budgets and the accruals of expenses of mutual funds. |
|
100 |
% |
|
|
11 |
|
General Services |
|
Bonaire |
|
Electronic system for calculation of fund fees and payments to sub-advisers. Annual license cost. |
|
100 |
% |
|
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12 |
|
Fund Compliance |
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Albridge |
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Electronic system for Fund Compliance - monthly compliance checklist process. Annual license cost. |
|
100 |
% |
|
|
13 |
|
Fund Compliance |
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Bank of New York |
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Money Market Stress Testing |
|
100 |
% |
|
|
14 |
|
Proxy Voting Services |
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Institutional Shareholder Services (ISS, Inc.) |
|
Securities Class Action Service (SCAS) |
|
100 |
% |
|
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15 |
|
Proxy Voting Services |
|
Institutional Shareholder Services (ISS, Inc.) |
|
US & Global Custom Voting Agent Services / Vote Disclosure Services |
|
100 |
% |
|
|
(1) CIRO and CCO costs are considered extraordinary expenses and are therefore excluded from expenses that are subject to the Funds Expense Limitation Agreements.
(2) Overhead includes the costs associated with the following items; technology (except for Market Data Services and any IT Software expenses that are for the sole use of the CIRO or CCO); facilities; equipment; printing; and postage.
# |
|
EXPENSE
|
|
CURRENT
|
|
DESCRIPTION |
|
% Borne
|
|
ALLOCATION NOTE |
|
Voya Expenses, continued |
|
|
|
|
|
|
|
|
|||
16 |
|
Operational Services |
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Eagle Pace |
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Fund Data Warehouse - Annual License Agreement |
|
100 |
% |
|
|
17 |
|
Product Management/ Development Services |
|
The Bank of New York- Wilshire Atlas/Axiom Attribution and Risk Analysis System - Voya Use |
|
Attribution Analysis |
|
100 |
% |
|
|
18 |
|
Legal Services |
|
Dechert LLP (External Legal Fees) |
|
External counsel and legal services provided to Voya regarding Advisory/ Administrative Matters |
|
100 |
% |
|
|
19 |
|
Legal Services |
|
Voya Funds Services, LLC (Internal Legal Fees) |
|
Legal services for Management and the Voya funds performed by Internal Legal Staff |
|
100 |
% |
|
|
20 |
|
Legal Services |
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Diligent Boardbooks |
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Online Board Document Management System for Board Meeting Materials |
|
100 |
% |
|
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21 |
|
Legal Services |
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ARC System |
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Content Management System for Registration Statement Production |
|
100 |
% |
|
|
22 |
|
Legal Services |
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Abel Noser |
|
Trade Cost Analysis |
|
100 |
% |
|
|
23 |
|
Legal Services |
|
Board IQ / Ignites |
|
Industry Publications |
|
100 |
% |
|
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24 |
|
Advisory Services |
|
Manager or Sub-Adviser |
|
|
|
100 |
% |
|
|
SCHEDULE C
with respect to the
AMENDED AND RESTATED INVESTMENT MANAGEMENT AGREEMENT
between
VOYA PRIME RATE TRUST
and
VOYA INVESTMENTS, LLC
Series |
|
Annual Management Fee |
|
|
|
(as a percentage of Managed Assets*) |
|
Voya Prime Rate Trust |
|
1.05 |
% |
* Managed Assets shall mean the Funds average daily gross asset value, minus the sum of the Funds accrued and unpaid dividends on any outstanding preferred shares and accrued liabilities (other than liabilities for the principal amount of any borrowings incurred, commercial paper or notes issued by the Fund and the liquidation preference of any outstanding preferred shares.
(2)(j)(6)(i)
February 9, 2015
Attention: President
BNY Mellon Investment Servicing (US) Inc.
301 Bellevue Parkway
Wilmington, Delaware 19809
Dear Sir or Madam:
Pursuant to the Transfer Agency Services Agreement, dated February 25, 2009, as amended, between the Funds (as defined in the Agreement) and BNY Mellon Investment Servicing (US) Inc., formerly, PNC Global Investment Servicing (U.S.) Inc., as amended (the Agreement), we hereby notify you of our intention to retain you as Transfer Agent and Dividend Dispersing Agent to render such services to VY ® Goldman Sachs Bond Portfolio, Voya Retirement Solution 2060 Fund, Voya Index Solution 2060 Portfolio, and Voya Solution 2060 Portfolio (collectively, the Funds) , each a newly established series of Voya Variable Insurance Trust, Voya Separate Portfolios Trust, Voya Partners Inc., and Voya Partners Inc., respectively, effective on February 9, 2015, upon all of the terms and conditions set forth in the Agreement. Upon your acceptance, the Agreement will be modified to give effect to the foregoing by adding the above-mentioned Fund to the Amended Exhibit A of the Agreement. This Amended Exhibit A supersedes the previous Amended Exhibit A , dated August 6, 2014.
The Amended Exhibit A has also been updated: 1) to reflect the recent name changes for Voya International Value Equity Fund to Voya Global Value Advantage Fund, Voya Strategic Income Fund to Voya Strategic Income Opportunities Fund, and VY ® PIMCO Bond Portfolio to Voya Aggregate Bond Portfolio; and 2) to reflect the removal of Voya Global Opportunities Fund, because this series recently merged.
Please note that the SEC effective date of Voya Retirement Solution 2060 Fund is yet to be determined, but it is scheduled to be on October 1, 2015.
Please signify your acceptance to act as Transfer Agent and Dividend Disbursing Agent under the Agreement with respect to the Funds by signing below.
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Very sincerely, |
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By: |
/s/ Todd Modic |
|
|
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Todd Modic |
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Senior Vice President |
|
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Voya Funds Trust |
|
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Voya Mutual Funds |
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Voya Partners Inc. |
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Voya Separate Portfolios Trust |
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Voya Variable Insurance Trust |
|
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|
||
ACCEPTED AND AGREED TO: |
|
||
BNY Mellon Investment Servicing (US) Inc. |
|
||
|
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||
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By: |
/s/ Peter G. Rigopoulut |
|
|
Name: |
Peter G. Rigopoulut |
|
|
Title: |
VP Relationship Exec., Duly Authorized |
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AMENDED EXHIBIT A
(Dated: February 9, 2015)
THIS EXHIBIT A is Exhibit A to that certain Transfer Agency Services Agreement, dated as of February 25, 2009, between BNY Mellon Investment Servicing (US) Inc., formerly, PNC Global Investment Servicing (U.S.) Inc. and the Fund (the Agreement). For all purposes under the Agreement, the terms Fund and Portfolio shall refer to the following, respectively:
Voya Equity Trust
Voya Growth Opportunities Fund
Voya Large Cap Value Fund
Voya MidCap Opportunities Fund
Voya Multi-Manager Mid Cap Value Fund
Voya Real Estate Fund
Voya SmallCap Opportunities Fund
Voya Funds Trust
Voya Floating Rate Fund
Voya GNMA Income Fund
Voya High Yield Bond Fund
Voya Intermediate Bond Fund
Voya Short Term Bond Fund
Voya Strategic Income Opportunities Fund
Voya Investors Trust
VY ® BlackRock Inflation Protected Bond Portfolio
VY ® Clarion Global Real Estate Portfolio
VY ® Clarion Real Estate Portfolio
VY ® DFA World Equity Portfolio
VY ® FMR SM Diversified Mid Cap Portfolio
VY ® Franklin Income Portfolio
VY ® Franklin Mutual Shares Portfolio
VY ® Franklin Templeton Founding Strategy Portfolio
Voya Global Perspectives Portfolio
Voya Global Resources Portfolio
VY ® Invesco Growth and Income Portfolio
VY ® JPMorgan Emerging Markets Equity Portfolio
VY ® JPMorgan Small Cap Core Equity Portfolio
Voya Large Cap Growth Portfolio
Voya Large Cap Value Portfolio
Voya Limited Maturity Bond Portfolio
Voya Liquid Assets Portfolio
VY ® Morgan Stanley Global Franchise Portfolio
Voya Multi-Manager Large Cap Core Portfolio
Voya High Yield Portfolio
Voya Retirement Conservative Portfolio
Voya Retirement Growth Portfolio
Voya Retirement Moderate Growth Portfolio
Voya Retirement Moderate Portfolio
VY ® T. Rowe Price Capital Appreciation Portfolio
VY ® T. Rowe Price Equity Income Portfolio
VY ® T. Rowe Price International Stock Portfolio
VY ® Templeton Global Growth Portfolio
Voya U.S. Stock Index Portfolio
Voya Mutual Funds
Voya Diversified Emerging Markets Debt Fund
Voya Diversified International Fund
Voya Emerging Markets Equity Dividend Fund
Voya Global Bond Fund
Voya Global Equity Dividend Fund
Voya Global Natural Resources Fund
Voya Global Perspectives Fund
Voya Global Real Estate Fund
Voya Global Value Advantage Fund
Voya International Core Fund
Voya International Real Estate Fund
Voya Multi-Manager Emerging Markets Equity Fund
Voya Multi-Manager International Equity Fund
Voya Multi-Manager International Small Cap Fund
Voya Russia Fund
Voya Partners, Inc.
Voya Aggregate Bond Portfolio
VY ® American Century Small-Mid Cap Value Portfolio
VY ® Baron Growth Portfolio
VY ® Columbia Small Cap Value II Portfolio
VY ® Columbia Contrarian Core Portfolio
VY ® Fidelity ® VIP Contrafund ® Portfolio
VY ® Fidelity ® VIP Equity-Income Portfolio
VY ® Fidelity ® VIP Mid Cap Portfolio
Voya Global Bond Portfolio
Voya Index Solution 2015 Portfolio
Voya Index Solution 2020 Portfolio
Voya Index Solution 2025 Portfolio
Voya Index Solution 2030 Portfolio
Voya Index Solution 2035 Portfolio
Voya Index Solution 2040 Portfolio
Voya Index Solution 2045 Portfolio
Voya Index Solution 2050 Portfolio
Voya Index Solution 2055 Portfolio
Voya Index Solution 2060 Portfolio
Voya Index Solution Income Portfolio
VY ® Invesco Comstock Portfolio
VY ® Invesco Equity and Income Portfolio
VY ® JPMorgan Mid Cap Value Portfolio
VY ® Oppenheimer Global Portfolio
VY ® Pioneer High Yield Portfolio
Voya Solution 2015 Portfolio
Voya Solution 2020 Portfolio
Voya Solution 2025 Portfolio
Voya Solution 2030 Portfolio
Voya Solution 2035 Portfolio
Voya Solution 2040 Portfolio
Voya Solution 2045 Portfolio
Voya Solution 2050 Portfolio
Voya Solution 2055 Portfolio
Voya Solution 2060 Portfolio
Voya Solution Aggressive Portfolio
Voya Solution Moderately Aggressive Portfolio
Voya Solution Conservative Portfolio
Voya Solution Balanced Portfolio
Voya Solution Income Portfolio
Voya Solution Moderately Conservative Portfolio
VY ® T. Rowe Price Diversified Mid Cap Growth Portfolio
VY ® T. Rowe Price Growth Equity Portfolio
VY ® Templeton Foreign Equity Portfolio
Voya Prime Rate Trust
Voya Senior Income Fund
Voya Separate Portfolios Trust
Voya Emerging Markets Corporate Debt Fund
Voya Emerging Markets Hard Currency Debt Fund
Voya Emerging Markets Local Currency Debt Fund
Voya Investment Grade Credit Fund
Voya Retirement Solution 2020 Fund
Voya Retirement Solution 2025 Fund
Voya Retirement Solution 2030 Fund
Voya Retirement Solution 2035 Fund
Voya Retirement Solution 2040 Fund
Voya Retirement Solution 2045 Fund
Voya Retirement Solution 2050 Fund
Voya Retirement Solution 2055 Fund
Voya Retirement Solution 2060 Fund
Voya Retirement Solution Income Fund
Voya Securitized Credit Fund
Voya Variable Insurance Trust
VY ® Goldman Sachs Bond Portfolio
Voya Variable Products Trust
Voya International Value Portfolio
Voya MidCap Opportunities Portfolio
Voya SmallCap Opportunities Portfolio
Exhibit 99.(2)(k)(1)
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CREDIT AGREEMENT Dated as of July 23, 2012 among ING PRIME RATE TRUST, as the Borrower, STATE STREET BANK AND TRUST COMPANY, as Administrative Agent and Swing Line Lender, THE BANK OF NOVA SCOTIA, as Syndication Agent and THE OTHER LENDERS PARTY HERETO STATE STREET BANK AND TRUST COMPANY, as Sole Lead Arranger and Sole Book Manager A/75013152.6 |
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TABLE OF CONTENTS Page ARTICLE I 1.01 1.02 1.03 1.04 1.05 DEFINITIONS AND ACCOUNTING TERMS 1 Defined Terms 1 Other Interpretive Provisions 22 Accounting Terms. 23 Rounding 23 Times of Day 24 ARTICLE II 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 THE REVOLVING COMMITMENTS 24 Revolving Commitments 24 Borrowings, Conversions and Continuations of Loans 24 Swing Line Loans . 27 Voluntary Prepayments 30 Termination or Reduction of Aggregate Revolving Commitments 30 Repayment of Loans 31 Interest 31 Fees 32 Computation of Interest and Fees-Retroactive Adjustments of Applicable Rate 32 Evidence of Debt 33 Payments Generally; Administrative Agent's Clawback 33 Sharing of Payments by Lenders 35 Cash Collateral 36 Defaulting Lenders 37 2.10 2.11 2.12 2.13 2.14 ARTICLE III 3.01 3.02 3.03 3.04 3.05 3.06 3.07 TAXES, YIELD PROTECTION AND ILLEGALITY 39 Taxes 39 Illegality 42 Inability to Determine Rates 43 Increased Costs 44 Compensation for Losses 45 Mitigation Obligations; Replacement of Lenders 45 Survival 46 ARTICLE IV 4.01 4.02 CONDITIONS PRECEDENT TO BORROWINGS 46 Conditions of Initial Borrowing. 46 Conditions to all Borrowings 48 ARTICLE V 5.01 5.02 5.03 REPRESENTATIONS AND WARRANTIES 49 Existence, Qualification and Power 49 Authorization; No Contravention 49 Governmental Authorization; Other Consents 50 -1-N75013152.6 |
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TABLE OF CONTENTS (continued) Page 5.04 5.05 5.06 5.07 5.08 5.09 5.10 5.11 5.12 5.13 5.14 5.15 5.16 5.17 5.18 5.19 5.20 5.21 5.22 5.23 Binding Effect 50 Financial Statements; No Material Adverse Effect 50 Litigation 50 No Default 51 Ownership of Property; Liens 51 Environmental Matters 51 Taxes 51 Investment Policies and Investment Restrictions . 51 No Plans or Plan Liability 51 Subsidiaries 51 Margin Regulations; Investment Company Act 52 Disclosure 52 Compliance with Laws 52 Intellectual Property; Licenses, Etc 52 Solvency 53 Perfection of Security Interests in the Collateral 53 Business Locations 53 No Burdensome Restrictions 53 Advisory Contract . 53 Tax Status 53 ARTICLE VI 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 6.09 6.10 6.11 6.12 6.13 6.14 6.15 6.16 AFFIRMATIVE COVENANTS 54 Financial Statements 54 Certificates; Other Information 55 Notices 57 Payment of Obligations 58 Preservation of Existence, Etc 58 Maintenance of Properties 58 Maintenance of Insurance . 58 Compliance with Laws 59 Books and Records 59 Inspection Rights 59 Use of Proceeds. 59 Investment Adviser 59 Regulated Investment Company 60 Pledged Assets 60 Investment Policies and Investment Restrictions . 60 Post-Closing Matters 60 ARTICLE VII 7.01 7.02 NEGATIVE COVENANTS 61 Liens 61 Business Activities; Investments Policies; Investment Restrictions 61 -11-N75013152.6 |
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TABLE OF CONTENTS (continued) Page 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 7.11 Indebtedness 61 Fundamental Changes 62 Lease Obligations 62 Plans 62 Transactions with Affiliates and Insiders . 62 Burdensome Agreements 62 Use of Proceeds 63 Financial Covenants 63 Organization Documents-Fiscal Year Leal Name State of Formation and Form of Entity; Custodian 63 Restricted Payments 63 Subsidiaries 63 7.12 7.13 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES . 63 8.01 8.02 8.03 Events of Default 63 Remedies Upon Event of Default 66 Application of Funds 66 ARTICLE IX 9.01 9.02 9.03 9.04 9.05 9.06 9.07 9.08 9.09 9.10 9.11 ADMINISTRATIVE AGENT 67 Appointment and Authority 67 Rights as a Lender 68 Exculpatory Provisions 68 Reliance by Administrative Agent 69 Delegation of Duties 69 Resignation of Administrative Agent 69 Non-Reliance on Administrative Agent and Other Lenders 70 No Other Duties; Etc. 70 Administrative Agent May File Proofs of Claim 71 Collateral Matters 71 Security Agreement 72 ARTICLE X 10.01 10.02 10.03 10.04 10.05 10.06 10.07 10.08 10.09 MISCELLANEOUS 72 Amendments, Etc 72 Notices and Other Communications-Facsimile Co lies 73 No Waiver; Cumulative Remedies; Enforcement 76 Expenses; Indemnity; and Damage Waiver 76 Payments Set Aside 78 Successors and Assigns 78 Treatment of Certain Information; Confidentiality 82 Set-off 83 Interest Rate Limitation 84 -111-A/75013152.6 |
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TABLE OF CONTENTS (continued) Page 10.10 Counterparts; Integration; Effectiveness; Amendment and Restatement 84 Survival of Representations and Warranties 85 Severability 85 Replacement of Lenders 85 Governing Law; Jurisdiction; Etc 86 Waiver of Right to Trial by Jury 87 Electronic Execution of Assignments and Certain Other Documents 88 USA PATRIOT Act 88 No Advisory or Fiduciary Relationship 88 10.11 10.12 10.13 10.14 10.15 10.16 10.17 10.18 SCHEDULES 2.01 5.17 5.20(a) 5.20(b) 5.20(c) 7.01 10.02 Commitments and Applicable Percentages IP Rights Locations of Real Property Taxpayer and Organizational Identification Numbers Changes in Legal Name, State of Formation and Structure Liens Existing on the Closing Date Certain Addresses for Notices EXHIBITS A B C D E F G Form of Loan Notice Form of Swing Line Loan Notice Form of Revolving Note Form of Swing Line Note Form of Compliance Certificate Form of Assignment and Assumption Form of Borrowing Base Certificate -lV-N75013152.6 |
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CREDIT AGREEMENT This CREDIT AGREEMENT is entered into as of July 23, 2012 among ING PRIME RATE TRUST, a Massachusetts business trust (the "Borrower"), the Lenders (defined herein) and STATE STREET BANK AND TRUST COMPANY, as Administrative Agent and Swing Line Lender. In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows: ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 1.01 Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: "1933 Act" means the Securities Act of 1933, as amended, and regulations promulgated thereunder. "Acquisition, by any Person, means the acquisition by such Person, in a single transaction or in a series of related transactions, of all or any substantial portion of the property of another Person or at least a majority of the Voting Stock of another Person, in each case whether or not involving a merger or consolidation with such other Person and whether for cash, property, services, assumption of Indebtedness, securities or otherwise. "Act" means the Investment Company Act of 1940 and the regulations promulgated thereunder. "Adjusted Senior Debt" means the sum (without duplication) of (a) Senior Securities Representing Indebtedness of the Borrower plus (b) net liabilities of the Borrower under all Swap Contracts determined on a mark-to-market basis plus (c) all Secured Liabilities of the Borrower plus (d) all Segregated Liabilities of the Borrower. "Adjusted Total Assets" means (a) Total Assets minus (b) Ordinary Liabilities of the Borrower minus (c) the excess, if any, of (i) the value of all assets of the Borrower that are subject to a lien (other than any Lien permitted by Section 7.01(c), or (d)) that are segregated or that are on deposit to satisfy margin requirements over (ii) the sum of all Secured Liabilities of the Borrower and all Segregated Liabilities of the Borrower. "Administrative Agent" means State Street Bank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. "Administrative Agent's Office" means the Administrative Agent's address and, as appropriate, account as set forth on Schedule 10.02 or such other address or account as the Administrative Agent may from time to time notify the Borrower and the Lenders. |
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"Administrative Questionnaire'' means an Administrative Questionnaire in a form provided by the Administrative Agent. "Affiliate" means, with respect to any Person, (a) another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with such other Person, (b) if such other Person is an investment company, any investment adviser thereof or any member of an advisory board thereof and/or (c) if such other Person is an unincorporated investment company not having a board of directors, the board of trustees or other similar governing body. "Aggregate Revolving Commitments" means the Revolving Commitments of all the Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Closing Date is FOUR HUNDRED MILLION DOLLARS ($400,000,000). "Agreement" means this Credit Agreement. "Applicable Percentage" means with respect to any Lender at any time, with respect to such Lender's Revolving Commitment at any time, the percentage of the Aggregate Revolving Commitments represented by such Lender's Revolving Commitment at such time, subject to adjustment as provided in Section 2.14; provided that if the commitment of each Lender to make Revolving Loans have been terminated pursuant to Section 8.02 or if the Aggregate Revolving Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable. "Applicable Rate" means (a) with respect to Revolving Loans (i) that are Eurodollar Rate Loans or Overnight LIBOR Loans, 0.95% per annum and (ii) that are Base Rate Loans, 0.00% per annum and (b) with respect to Swing Line Loans, 0.95% per annum. "Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. "Asset Coverage Ratio" means, as of any date of determination, the ratio of (a) the difference of (i) the Adjusted Total Assets of the Borrower minus (ii) the Excluded Assets of the Borrower to (b) the Adjusted Senior Debt of the Borrower. "Assignee Group" means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor. "Assignment and Assumption" means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit F or any other form approved by the Administrative Agent. -2-N75013152.6 |
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"Audited Financial Statements" means the audited consolidated balance sheet of the Borrower for the fiscal year ended February 29, 2012, and the related consolidated statements of income or operations, shareholders' equity and cash flows for such fiscal year of the Borrower, including the notes thereto, audited by independent public accountants of recognized national standing and prepared in conformity with GAAP. "Availability Period" means, with respect to the Revolving Commitments, the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Revolving Commitments pursuant to Section 2.05, and (c) the date of termination of the commitment of each Lender to make Loans pursuant to Section 8.02. "Base Rate" means for any day a fluctuating rate per annum equal to the greatest of (a) the Federal Funds Rate plus 1.00%; (b) the rate of interest in effect for such day as publicly announced from time to time by State Street Bank as its "prime rate" and (c) the Eurodollar Rate for such day plus 1.0%. The "prime rate" is a rate set by State Street Bank based upon various factors including State Street Bank's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in the "prime rate" announced by State Street Bank shall take effect at the opening of business on the day specified in the public announcement of such change. "Base Rate Loan" means a Loan that bears interest based on the Base Rate. "Borrower" has the meaning specified in the introductory paragraph hereto. "Borrower Materials" has the meaning specified in Section 6.02. "Borrowing" means a borrowing consisting of simultaneous Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01. "Borrowing Base" has the meaning specified in Section 6.01(d). "Borrowing Base Certificate" means a certificate substantially in the form of Exhibit G. "Business Day" means any day other than a Saturday, Sunday, a day on which the New York Stock Exchange is closed or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent's Office is located and, if such day relates to any Eurodollar Rate Loan or Overnight LIBOR Loan, means any such day that is also a London Banking Day. "Capital Lease" means, as applied to any Person, any lease of any property by that Person as lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance sheet of that Person. "Cash Collateralize" means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent or Swing Line Lender (as applicable) and the Lenders, as collateral for Obligations in respect of Swing Line Loans or obligations of Lenders to fund participations in respect of the Swing Line -3-N75013152.6 |
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Lender, cash or deposit account balances or, if the Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the Swing Line Lender (as applicable). "Cash Collateral" shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support. "Cash Equivalents" means, at any time (a) any evidence of Indebtedness, maturing not more than one year after such time, issued or guaranteed by the United States; (b) commercial paper, maturing not more than nine months from the date of issue, which is issued by (i) a corporation (other than an Affiliate of the Borrower) organized under the laws of any state of the United States or of the District of Columbia and rated A-1 by S&P or P-1 by Moody's, or (ii) any Lender (or its holding company); (c) any certificate of deposit or bankers' acceptance, maturing not more than one year after such time, which is issued by either (i) a commercial banking institution that is a member of the Federal Reserve System and has a combined capital and surplus and undivided profits of not less than $500,000,000, provided that the deposits offered by such institution are rated at least A-1 by S&P or P-1 by Moody's, or (ii) any Lender, or (d) any repurchase agreement entered into with any Lender (or other commercial banking institution of the stature referred to in clause (c)(i)) which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c); and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender (or other commercial banking institution) thereunder. "Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided, that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a "Change in Law", regardless of the date enacted, adopted or issued. "Change of Control" means a change of control of the Investment Adviser which would constitute an "assignment" within the meaning of the Act, of the Investment Management Agreement referred to in Section 5.22 or of the Administrative Agreement referred to in Section 5.22 (other than any assignment resulting solely from the U.S. focused initial public offering currently expected to be undertaken by ING Groep N.V. with regard to its U.S.-based insurance and investment management operations in fulfillment of the European Commission mandated separation of the banking and insurance operations of ING Groep N.V. by the end of 2013, provided that the Sub Advisor to the Borrower both before and after such initial public offering is ING -4-A/75013152.6 |
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Investment Management Co. (or its successor) and that the principal members of the team managing the investments of the Borrower as of the date hereof continue to so manage the investments of the Borrower after any such initial public offering (the "Proposed IPO"). "Closing Date" means the date hereof. "Collateral" means a collective reference to all real and personal property with respect to which Liens in favor of the Administrative Agent, for the benefit of the holders of the Obligations, are purported to be granted pursuant to and in accordance with the terms of the Collateral Documents. "Collateral Documents" means a collective reference to the Security Agreement, the Mortgages and other security documents as may be executed and delivered by the Borrower pursuant to the terms of Section 6.14. "Commitment Fee" has the meaning specified in Section 2.08(a). "Common Stock" means equity ownership in an issuer. "Compliance Certificate" means a certificate substantially in the form of Exhibit E. "Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. "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. Without limiting the generality of the foregoing, a Person shall be deemed to be Controlled by another Person if such other Person possesses, directly or indirectly, power to vote 5% or more of the securities having ordinary voting power for the election of directors, managing general partners or the equivalent. "Custodian" means State Street Bank and Trust Company in its capacity as custodian under the Custody Agreement. "Custody Agreement" means that certain Custodian and Investment Accounting Agreement dated as of November 1, 2001, among the funds identified therein from time to time parties thereto and State Street Bank and Trust Company, as Custodian. "Debtor Relief Laws" means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally. -5-A/75013152.6 |
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"Default" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default. "Default Rate" means when used with respect to Obligations, an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, Overnight LIBOR Loan or Swing Line Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by applicable Laws. "Defaulting Lender" means, subject to Section 2.15(b), any Lender, as determined by the Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in respect of its Loans or participations in respect of Swing Line Loans, within three (3) Business Days of the date required to be funded by it hereunder, unless in the case of any Loan, such Lender has notified the Administrative Agent and the Borrower in writing that such failure is the result of such Lender's determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, (b) has notified the Borrower or the Administrative Agent that it does not intend to comply with its funding obligations or has made a public statement to that effect with respect to its funding obligations, (unless such writing or public statement relates to such Lender's obligation to fund a Loan hereunder and states that such position is based on such Lender's determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the Administrative Agent that it will comply with its funding obligations (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or a custodian appointed for it or (iii) taken any action in furtherance of, or indicated its consent to, approval of or acquiescence in any such proceeding or appointment; provided, that, a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interests in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. "Distressed Investment" means (a) any security or other investment that has a Distressed Rating, and (b) in the case of derivative instruments or Unrated Investments, any investment the issuer or counterparty in respect of which has a Distressed Rating. -6-A/75013152.6 |
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"Distressed Rating" means, with respect to any debt investment or credit worthiness of an issuer, such investment or, in the case of a derivative instrument or an Unrated Investment, issuer, as the case may be, is (a) rated CCC+ or below by S&P (or the equivalent rating of another independent rating agency (other than Moody's) if not so rated by S&P) and Caal or below by Moody's (or the equivalent rating of another independent rating agency (other than S&P) if not so rated by Moody's), or (b) if clause (a) does not apply, is reasonably equivalent or of similar quality, as reasonably determined pursuant to any policy of the Investment Manager, to any debt investment or issuer that is so rated. "Dollar" and "S" mean lawful money of the United States. "Eligible Assignee" means any Person that meets the requirements to be an assignee under Section 10.06(b)(ii) and (iv) (subject to such consents, if any, as may be required under Section 10.06(b)(ii)). "Environmental Laws" means any and all federal, state, local, foreign and other applicable statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems. "Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. "Equity Interests" means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of -7-N75013152.6 |
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the Internal Revenue Code (and Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412 of the Internal Revenue Code). "Eurodollar Base Rate" means: (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a teen equivalent to such Interest Period or (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by State Street Bank to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and for any interest rate calculation with respect to a Base Rate Loan on (b) any date, the rate per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m. London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained with a term equal to one month would be offered by State Street Bank to major banks in the London interbank eurodollar market at their request at the date and time of determination. "Eurodollar Rate" means (a) for any Interest Period with respect to any Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for such day. "Eurodollar Rate Loan" means a Loan that bears interest at a rate based on clause (a) of the definition of"Eurodollar Rate". -8-A/75013152.6 |
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"Eurodollar Reserve Percentage" means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurodollar Reserve Percentage. "Event of Default" has the meaning specified in Section 8.01. "Excluded Assets" means with respect to the Borrower and without duplication, the aggregate value of: (A) investments in mortgage-backed securities, asset-backed securities, collateralized debt obligations or collateralized loan obligations, (B) the value of all Illiquid Investments of the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower, (C) loans) of the Borrower, the .value of all Unrated Investments (to include privately rated Borrower in excess of 25% of the Adjusted Total Assets of the (D) the value of all non-hedged non-U.S.Dollar denominated investments of the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower, (E) the aggregate value of all Illiquid Investments plus all Unrated Investments (including all privately rated loans) plus all non-hedged non-U.S. Dollar denominated investments of the Borrower in excess of 30% of the Adjusted Total Assets of the Borrower, (F) the value of all Distressed Investments of the Borrower in excess of 10% of the Adjusted Total Assets of the Borrower, (G) the value of all investments of the Borrower in countries not members of the Organisation for Economic Co-operation and Development (OECD) in excess of 5% of the Adjusted Total Assets of the Borrower, (H) the value of all Preferred Stock owned by the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower, (I) the value of all investments of the Borrower in a single issuer in excess of 5% of the Adjusted Total Assets of the Borrower (not including investments of the Borrower in up to three single issuers in which the value of each of such investments does not exceed 7% of the Adjusted Total Assets of the Borrower), -9-N75013152.6 |
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(J) the aggregate value of all investments of the Borrower in companies engaged in any single industry in excess of 25% of the Adjusted Total Assets of the Borrower, and (K) all Level 3 Assets of the Borrower. "Excluded Property" means (a) any owned or leased real or personal property which is located outside of the United States unless requested by the Administrative Agent or the Required Lenders, and (b) any personal property (including, without limitation, motor vehicles) in respect of which perfection of a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effected by appropriate evidence of the Lien being filed in either the United States Copyright Office or the United States Patent and Trademark Office, unless requested by the Administrative Agent or the Required Lenders. "Excluded Taxes" means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), 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 or any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii), and (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 10.13), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender's failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e)(ii), except to the extent that such Foreign Lender (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 3.01(a)(i) or .(ii). "Existing Credit Agreement" means that certain Amended and Restated Credit Agreement dated as of July 23, 2011 by and among the Borrower, the lending institutions party thereto and referred to therein as "Lenders", Bank of America, N.A. as Administrative Agent and the other parties thereto. "Federal Funds Rate" means, for any day, the rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on -10-A/75013152.6 |
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such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to State Street Bank on such day on such transactions as determined by the Administrative Agent. "Fee Letter" means the letter agreement, dated on or prior to the Closing Date, between the Borrower and the Administrative Agent. "Foreign Lender" means any Lender that is organized under the Laws of a jurisdiction other than that in which the Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. "FRB" means the Board of Governors of the Federal Reserve System of the United States. "Fronting Exposure" means, at any time there is a Defaulting Lender, with respect to the Swing Line Lender, such Defaulting Lender's Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender's participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof. "Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities. "Funding Obligations" means the collective reference to (a) the aggregate commitments of the Borrower to make loan advances to any Person or Person pursuant to debt or loan facilities, (b) the obligations of the Borrower to pay previous monthly accrued interest expense and (c) dividend payables of the Borrower. "GAAP" means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, consistently applied and as in effect from time to time. "Governmental Authority" means the government of the United States or any other nation, or of 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 (including any supranational bodies such as the European Union or the European Central Bank). "Guarantee" means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the -11-N75013152.6 |
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purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning. "Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or as bestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. "Illiquid Investments" means any investment that has any material condition to or restriction on the ability of the Borrower or any assignee to sell, assign, transfer, pledge, hypothecate or otherwise encumber or liquidate the same in a commercially reasonable time and manner, whether or not such condition or restriction is intrinsic to such investment, provided that any condition or restriction that could reasonably be expected to (a) prohibit or delay any such sale, assignment, transfer, pledge, hypothecation, encumbrancing or liquidation for more than seven (7) Business Days, or (b) require any payment (other than a nominal amount) in connection therewith, shall be deemed to be such a material condition or restriction within the meaning of this defined term. "Indebtedness" means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations for borrowed money, whether current or long-term (including the Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (b) all purchase money Indebtedness; (c) the principal portion of all obligations under conditional sale or other title retention agreements relating to property purchased by the Borrower or any Subsidiary (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); -12-N75013!52.6 |
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(d) all non-contingent reimbursement or payment obligations arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments; (e) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than 60 days after the date on which such trade account payable was created); (f) all obligations with respect to Capital Leases, Securitization Transactions and Synthetic Leases; (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (h) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; (i) all Senior Securities Representing Indebtedness; (j) all Guarantees with respect to Indebtedness of the types specified in clauses (a) through (i) above of another Person; (k) the Swap Termination Value of any Swap Contract; and (1) all Indebtedness of the types referred to in clauses (a) through (k) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, except to the extent that Indebtedness is expressly made nonrecourse to such Person. "Indemnified Taxes" means Taxes other than Excluded Taxes. "Indemnitees" has the meaning specified in Section 10.04(b). "Information" has the meaning specified in Section 10.07. "Interest Payment Date" means (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date; (c) as to any Overnight -13-A/75013152.6 |
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LIBOR Rate Loan, on the last Business Day of each March, June, September and December and the Maturity Date; and (d) as to any Swing Line Loan, on the last Business Day of each calendar month and the Maturity Date. "Interest Period" means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, or solely during the thirty day period prior to the Maturity Date, one or two weeks thereafter, as selected by the Borrower in its Loan Notice, provided that: (a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (b) any Interest Period (other than an Interest Period of one or two weeks) that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and (c) no Interest Period with respect to any Revolving Loan shall extend beyond the Maturity Date. "Interim Financial Statements" has the meaning set forth in Section 6.16. "Internal Revenue Code" means the Internal Revenue Code of 1986, as amended. "Investment Adviser" has the meaning specified in Section 6.12. "Investment Policies" means the policies described in the most recent prospectus of the Borrower prior to the Closing Date. "Investment Restrictions" means the restrictions described in the most recent prospectus of the Borrower prior to the Closing Date. "IP Rights" has the meaning specified in Section 5.17. "IRS" means the United States Internal Revenue Service. "Laws" means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. -14-A/75013152.6 |
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"Lenders" means each of the Persons identified as a "Lender" on the signature pages hereto and their successors and assigns and, as the context requires, includes the Swing Line Lender. "Lending Office" means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent. "Level 3 Assets" means, as to the Borrower, assets (a) whose fair market value has been determined using (1) unobservable inputs or (2) the advisor's judgment about the assumptions that a market participant would use in pricing such asset, (b) whose fair market value has been determined using Level 3 inputs as defined by Accounting Standards Codification Topic 820 (f/k/a FASB No 157); or (c) classified as Level 3 in the Borrower's notes to its financial statements. "Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or 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 or other title retention agreement, 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). "Loan" means an extension of credit by a Lender to the Borrower under Article II in the form of a Revolving Loan or Swing Line Loan. "Loan Documents" means this Agreement, each Note, the Collateral Documents, and the Fee Letter. "Loan Notice" means a notice of (a) a Borrowing of Loans, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, in each case pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A. "London Banking Day" means any day on which dealings in Dollar deposits are conducted between banks in the London interbank eurodollar market. "Material Adverse Effect" means (a) a material adverse change in, or a material adverse effect upon, the business, assets, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Borrower; (b) an impairment of the ability of the Borrower to perform its material obligations under any Loan Document; (c) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document; (d) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document. "Maturity Date" means July 22, 2013. "Moody's" means Moody's Investors Service, Inc. and any successor thereto. -15-N75013152.6 |
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"Mortgages" means the mortgages, deeds of trust or deeds to secure debt that purport to grant to the Administrative Agent, for the benefit of the holders Obligations, a security interest in the fee interest and/or leasehold interests Borrower in real property (other than Excluded Property) acquired or leased Borrower subsequent to the Closing Date. of the of the by the "Note" or "Notes" means the Revolving Notes and the Swing Line Note, individually or collectively, as appropriate. "Obligations" means all advances to, and debts, liabilities, obligations, covenants and duties of, the Borrower arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding. The foregoing shall also include (a) all obligations under any Swap Contract between the Borrower and any Swap Bank that is permitted to be incurred pursuant to Section 7.03(c) and (b) all obligations under any Treasury Management Agreement between the Borrower and any Treasury Management Bank. "Ordinary Liabilities" means all liabilities and Indebtedness not represented by Senior Securities Representing Indebtedness. "Organization Documents" means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity; and (d) with respect to any trust, the trust agreement, bylaws (or equivalent), any certificate of designation or instrument relating to the rights of preferred shareholders of such trust and all applicable resolutions of the board of trustees (or any committee thereof) of such trust. "Other Taxes" means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document. "Outstanding Amount" means with respect to any Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of any Loans occurring on such date. -16-N75013152.6 |
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"Overnight LIBOR Loan" means a Loan that bears interest at a rate based on the Overnight LIBOR Rate. "Overnight LIBOR Loan Sublimit" means an amount equal to the lesser of (a) $50,000,000 and (b) the Aggregate Revolving Commitments. The Overnight LIBOR Loan Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. "Overnight LIBOR Rate" means, with respect to an Overnight LIBOR Loan, the fluctuating rate equal to (a) the overnight British Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or such other commercially available source providing quotations of BBA LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time as of any London Banking Day for Dollar deposits or (b) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on any London Banking Day in same day funds in the approximate amount of the Overnight LIBOR Loan being made and would be offered by State Street Bank to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) as of such London Banking Day prior to the commencement of the Borrowing. "Participant" has the meaning specified in Section 10.06(d). "PBGC" means the Pension Benefit Guaranty Corporation or any successor thereto. "Permitted Liens" means, at any time, Liens in respect of property of the Borrower permitted to exist at such time pursuant to the terms of Section 7.01. "Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. "Plan" means any "pension plan" or "welfare plan" as such terms are defined under ERISA. "Platform" has the meaning specified in Section 6.02. "Preferred Stock" means all equity ownership which has a priority claim over Common Stock in dividend payments and/or upon liquidation of an issuer. "Proposed IPO" has the meaning specified in the definition of "Change of Control". "Public Lender" has the meaning specified in Section 6.02. "Register" has the meaning specified in Section 10.06(c). "Related Parties" means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents, trustees and advisors of such Person and of such Person's Affiliates. -17-N75013152.6 |
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"Request for Borrowing" means (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice and (b) with respect to a Swing Line Loan, a Swing Line Loan Notice. "Required Lenders" means, at any time, (a) if there is only one Lender, such Lender and (b) if there are two or more Lenders, at least two Lenders holding in the aggregate more than 50% of (i) the unfunded Revolving Commitments and the outstanding Loans (other than outstanding Swing Line Loans) or (ii) if the Revolving Commitments have been terminated, the outstanding Loans. The unfunded Revolving Commitments of, and the outstanding Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders. "Responsible Officer" means the chief executive officer, the president, any vice president, the secretary or the assistant secretary of the Borrower, or any other officer having substantially the same authority and responsibility; or, with respect to compliance with financial covenants, the chief financial officer, any vice president, the treasurer, the secretary or the assistant secretary of the Borrower, or any other officer having substantially the same authority and responsibility. Any document delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower. "Restricted Payment" means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests 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 Equity Interests or on account of any return of capital to the Borrower's stockholders, partners or members (or the equivalent Person thereof), or any setting apart of funds or property for any of the foregoing. "Revolving Commitment" means, as to each Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section 2.01 and (b) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto or in any documentation executed by such Lender pursuant to Section 2.02(f), as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. "Revolving Loan" has the meaning specified in Section 2.01. "Revolving Note" has the meaning specified in Section 2.10(a). "S&P" means Standard & Poor's Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc. and any successor thereto. "SEC" means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions. -18-A/75013152.6 |
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"Secured Liabilities" means all liabilities (excluding Ordinary Liabilities) secured by Liens. "Securitization Transaction" means, with respect to any Person, any financing transaction or series of financing transactions (including factoring arrangements) pursuant to which such Person or any Subsidiary of such Person may sell, convey or otherwise transfer, or grant a security interest in, accounts, payments, receivables, rights to future lease payments or residuals or similar rights to payment to a special purpose subsidiary or affiliate of such Person. "Security Agreement" means the security agreement dated as of the Closing Date executed by and among the Administrative Agent, for the benefit of the holders of the Obligations, the Borrower and the Custodian, as amended or modified from time to time in accordance with the terms hereof "Segregated Liabilities" means all liabilities and other obligations (excluding Ordinary Liabilities) relating to assets that have been segregated or are otherwise subject to margin arrangements. "Senior Securities Representing Indebtedness" means, at any time, "Senior Security Representing Indebtedness" (as defined in Section 18(h) of the Act). "Solvent" or "Solvency" means, with respect to any Person as of a particular date, that on such date (a) such Person is able to pay its debts and other liabilities, contingent obligations and other commitments as they mature in the ordinary course of business, (b) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature in their ordinary course, (c) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person's property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such Person is engaged or is to engage, (d) the fair value of the property of such Person is greater than the total amount of liabilities, including, without limitation, contingent liabilities, of such Person and (e) the present fair salable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured. In computing the amount of contingent liabilities at any time, it is intended that such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "State Street Bank" means State Street Bank and Trust Company and its successors. "Subsidiary" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of Voting Stock is at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower. -19-N75013152.6 |
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"Swap Bank" means (a) any Person that is a Lender or an Affiliate of a Lender at the time that it becomes a party to a Swap Contract with the Borrower and (b) any Lender on the Closing Date or Affiliate of such Lender that is party to a Swap Contract with the Borrower in existence on the Closing Date, in each case to the extent permitted by Section 7.03(c). "Swap Contract" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions (including but not limited to credit-linked notes, credit default swaps and total return swaps), forward-rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a "Master Agreement"), including any such obligations or liabilities under any Master Agreement. "Swap Termination Value" means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender). "Swing Line Lender" means State Street Bank in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder. "Swing Line Loan" has the meaning specified in Section 2.03(a). "Swing Line Loan Notice" means a notice of a Borrowing of Swing Line Loans pursuant to Section 2.03(b), which, if in writing, shall be substantially in the form of Exhibit B. "Swing Line Note" has the meaning specified in Section 2.10(a). "Swing Line Sublimit" means an amount equal to the lesser of (a) $25,000,000 and (b) the Aggregate Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Revolving Commitments. -20-N75013152.6 |
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"Synthetic Lease" means any synthetic lease, tax retention operating lease, offbalance sheet loan or similar off-balance sheet financing arrangement whereby the arrangement is considered borrowed money indebtedness for tax purposes but is classified as an operating lease or does not otherwise appear on a balance sheet under GAAP. "Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. "Threshold Amount" means $10,000,000. "Total Assets" means an amount equal to the aggregate value of all items that would be set forth as assets on a balance sheet of the Borrower on such date, prepared in accordance with the Act and the rules and regulations under the Act; provided, however, that in calculating total assets for any reason, the following shall be subtracted from total assets: (a) all securities owing to the Borrower that are in default, (b) all equipment of the Borrower, (c) all owned or leased real property of the Borrower and (d) all deferred organizational and offering expenses owing to the Borrower. The assets of the Borrower shall be valued in accordance with the Act, the rules and regulations under the Act, and the valuation procedures set forth in its most recent statement of additional information. Upon the written request of the Administrative Agent, the Borrower shall promptly furnish all such information as the Administrative Agent shall reasonably request relating to the value of any asset or the assignment of values thereto. "Total Net Assets" means (a) Total Assets minus (b) all liabilities of the Borrower minus (c) all Preferred Stock owned or issued by the Borrower. "Total Revolving Outstandings" means the aggregate Outstanding Amount of all Revolving Loans and all Swing Line Loans. "Treasury Management Agreement" means any agreement governing the provision of treasury or cash management services, including deposit accounts, overdraft, credit or debit card, funds transfer, automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation and reporting and trade finance services and other cash management services. "Treasury Management Bank" means (a) any Person that is a Lender or an Affiliate of a Lender at the time that it becomes a party to a Treasury Management Agreement with the Borrower and (b) any Lender on the Closing Date or Affiliate of such Lender that is a party to a Treasury Management Agreement with the Borrower in existence on the Closing Date. "Trust Agreement" means that certain Agreement and Declaration of Trust of the Borrower dated December 2, 1987, as amended from time to time. "Type" means, with respect to any Loan, its character as a Base Rate Loan, a Eurodollar Rate Loan, an Overnight LIBOR Loan or a Swing Line Loan. -21-N75013152.6 |
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"United States" and "U.S." mean the United States of America. "Unrated Investment" means a debt security or investment that is not publicly rated by S&P, Moody's or another nationally-recognized statistical rating organization. Notwithstanding the foregoing, it is hereby understood and agreed that Unrated Investments shall include all privately rated loans. "Voting Stock" means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right so to vote may have been suspended by the happening of such a contingency. 1.02 Other Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) 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, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iii) the words "hereto", "herein," "hereof and "hereunder," and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible assets and properties, including cash, securities, accounts and contract rights. (b) In the computation of periods of time from a specified date to a later specified date, the word "from" means "from and including;" the words "to" -22-N75013152.6 |
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and "until" each mean "to but excluding;" and the word "through" means "to and including." (c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document. 1.03 Accounting Terms. (a) Generally.Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements. (b) Changes in GAAP. The Borrower will provide a written summary of material changes in GAAP and in the consistent application thereof with each annual and quarterly Compliance Certificate delivered in accordance with Section 6.02(b). If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. 1.04 Rounding. Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number). 1.05 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). ARTICLE II THE REVOLVING COMMITMENTS -23-N750!3152.6 |
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2.01 Revolving Commitments. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans (each such loan, a "Revolving Loan") to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of such Lender's Revolving Commitment; provided, however, that after giving effect to any Borrowing of Revolving Loans, (a) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (b) the aggregate Outstanding Amount of the Revolving Loans of any Lender plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment and (c) the Outstanding Amount of all Overnight LIBOR Loans shall not exceed the Overnight LIBOR Loan Sublimit. Within the limits of each Lender's Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay under Section 2.04, and reborrow under this Section 2.01. Revolving Loans may be Base Rate Loans, Eurodollar Rate Loans, Overnight LIBOR Rate Loans, or a combination thereof, as further provided herein. 2.02 Borrowings, Conversions and Continuations of Loans. (a) Each Borrowing, each conversion of Eurodollar Rate Loans to Base Rate Loans or Overnight LIBOR Loans, each conversion of Base Rate Loans to Eurodollar Rate Loans or Overnight LIBOR Loans, each conversion of Overnight LIBOR Loans to Base Rate Loans or Eurodollar Rate Loans and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 12:00 p.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans or Overnight LIBOR Loans, (ii) on the requested date of any Borrowing of Base Rate Loans and (iii) on the requested date of any Borrowing of Overnight LIBOR Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of, conversion to or continuation of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof.Except as provided in Section 2.03(c), each Borrowing of or conversion to Overnight LIBOR Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Eurodollar Rate Loans to Base Rate Loans or Overnight LIBOR Loans, a conversion of Base Rate Loans to Eurodollar Rate Loans or Overnight LIBOR Loans, a conversion of Overnight LIBOR Loans to Base Rate Loans or Eurodollar Rate Loans or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Eurodollar Rate Loans, Base Rate Loans or Overnight -24-N75013152.6 |
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LIBOR Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of a Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower elects to convert and/or continue less than the entire amount of any such Loan, the Borrower may convert and/or continue that portion or portions of such Loan it elects and prepay the remaining balance of such Loan. (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans as described in the preceding subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent's Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Borrowing, Section 4.01), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of State Street Bank with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower. (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar Rate Loans without the consent of the Required Lenders, and the Required Lenders may demand that any or all of the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans. (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in State Street Bank's prime rate used in determining the Base Rate promptly following the public announcement of such change. (e) After giving effect to all Borrowings, all conversions of Eurodollar Rate Loans to Base Rate Loans or Overnight Loans and all continuations of Eurodollar Rate Loans, there shall not be more than 8 Interest Periods in effect with respect to all Eurodollar Rate Loans. -25-A/75013152.6 |
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(f) Increase in Aggregate Revolving Commitments. The Borrower may, at any time and from time to time, upon prior written notice by the Borrower to the Administrative Agent increase the Aggregate Revolving Commitments (but not the Overnight LIBOR Loan Sublimit or the Swing Line Sublimit) by a maximum aggregate amount of up to ONE HUNDRED MILLION DOLLARS ($100,000,000) with additional Revolving Commitments from any existing Lender with a Revolving Commitment or new Revolving Commitments from any other Person selected by the Borrower and reasonably acceptable to the Administrative Agent; provided that: (i) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof; (ii) no Default or Event of Default shall exist and be continuing at the time of any such increase; (iii) no existing Lender shall be under any obligation to increase its Revolving Commitment and any such decision whether to increase its Revolving Commitment shall be in such Lender's sole and absolute discretion; (iv) (A) any new Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (B) any existing Lender electing to increase its Revolving Commitment shall have executed a commitment agreement satisfactory to the Administrative Agent; and (v) as a condition precedent to such increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the date of such increase (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower (A) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (x) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 2.02(f), the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (y) no Default or Event of Default exists. The Borrower shall prepay any Loans owing by it and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Revolving Commitments arising from any nonratable increase in the Revolving Commitments under this Section. 2.03 Swing Line Loans. -26-A/75013152.6 |
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(a) Swing Line Facility. Subject to the terms and conditions set forth herein, the Swing Line Lender may, in its discretion and, in reliance upon the agreements of the other Lenders set forth in this Section 2.03, to make loans (each such loan, a "Swing Line Loan") to the Borrower in Dollars from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment and (iii) the Outstanding Amount of all Swing Line Loans shall not exceed the Swing Line Sublimit, and provided, further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.03, prepay under Section 2.04, and reborrow under this Section 2.03. Each Swing Line Loan shall be an Overnight LIBOR Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such Lender's Applicable Percentage times the amount of such Swing Line Loan. (b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the Borrower's irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 4:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum principal amount of $500,000 and integral multiples of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 4:30 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.03(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the teams and conditions hereof, the Swing Line Lender will, not later than 6:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower. (c) Refinancing of Swing Line Loans. -27-A/75013152.6 |
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(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing Line Lender to so request on its behalf), that each Lender make an Overnight LIBOR Loan in an amount equal to such Lender's Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Overnight LIBOR Loans, but subject to the conditions set forth in Section 4.02 (other than the delivery of a Loan Notice) and provided that, after giving effect to such Borrowing, (x) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and (y) the Outstanding Amount of all Overnight LIBOR Loans shall not exceed the Overnight LIBOR Loan Sublimit. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable Percentage of the amount specified in such Loan Notice available to the Administrative Agent in immediately available funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the account of the Swing Line Lender at the Administrative Agent's Office not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.03(c)(ii), each Lender that so makes funds available shall be deemed to have made an Overnight LIBOR Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender. (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Borrowing of Overnight LIBOR Loans in accordance with Section 2.03(c)(i), the request for Overnight LIBOR Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender's payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.03(c)(i) shall be deemed payment in respect of such participation. (iii) If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation. A certificate of the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error. -28-N75013152.6 |
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(iv) Each Lender's obligation to make Overnight LIBOR Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.03(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender's obligation to make Revolving Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02. No such purchase or funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing Line Loans, together with interest as provided herein. (d) Repayment of Participations. (i) participation payment on At any time after any Lender has purchased and funded a risk in a Swing Line Loan, if the Swing Line Lender receives any account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage of such payment (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such Lender's risk participation was funded) in the same funds as those received by the Swing Line Lender. (ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement. (e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the Swing Line Loans. Until each Lender funds its Revolving Loans that are Base Rate Loans or risk participation pursuant to this Section 2.03 to refinance such Lender's Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender. (f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender. 2.04 Voluntary Prepayments. -29-N75013152.6 |
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(a) Revolving Loans. Subject to the last sentence of this Section 2.04(a), the Borrower may, upon notice from the Borrower to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Administrative Agent not later than 12:00 p.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate Loans, (B) on the date of prepayment of Base Rate Loans and (C) on the date of prepayment of Overnight LIBOR Loans; (ii) any such prepayment of Eurodollar Rate Loans shall be in a principal amount of $2,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); (iii) any such prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); and (iv) any prepayment of Overnight LIBOR Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding). Subject to Section 2.14, each such notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender's Applicable Percentage of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders in accordance with their respective Applicable Percentages. (b) Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess thereof (or, if less, the entire principal thereof then outstanding). Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. 2.05 Termination or Reduction of Aggregate Revolving Commitments. (a) Optional Reductions. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate Revolving Commitments, or from time to time permanently reduce the Aggregate Revolving Commitments to an amount not less than the Outstanding Amount of Revolving Loans and Swing Line Loans; provided that (i) any such notice shall be received by the Administrative Agent not later than 12:00 noon five (5) Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $2,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Aggregate Revolving Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Aggregate -30-A/75013152. 6 |
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Revolving Commitments, (B) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit or (C) the Overnight LIBOR Loan Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of all Overnight LIBOR Loans would exceed the Overnight LIBOR Loan Sublimit. (b) Mandatory Reductions. If after giving effect to any reduction or termination of Revolving Commitments under this Section 2.05, the Overnight LIBOR Loan Sublimit or the Swing Line Sublimit exceed the Aggregate Revolving Commitments at such time, the Overnight LIBOR Loan Sublimit or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount of such excess. (c) Notice. The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Overnight LIBOR Loan Sublimit, Swing Line Sublimit or the Aggregate Revolving Commitments under this Section 2.05. Upon any reduction of the Aggregate Revolving Commitments, the Revolving Commitment of each Lender shall be reduced by such Lender's Applicable Percentage of such reduction amount. All fees in respect of the Aggregate Revolving Commitments accrued until the effective date of any termination of the Aggregate Revolving Commitments shall be paid on the effective date of such termination. 2.06 Repayment of Loans. (a) Revolving Loans. The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of all Revolving Loans outstanding on such date. (b) Swing Line Loans. The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date within one (1) Business Day of demand therefor by the Swing Line Lender and (ii) the Maturity Date. 2.07 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for such Interest Period plus the Applicable Rate, (ii) each Base Rate Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate, (iii) each Swing Line Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Overnight LIBOR Rate plus the Applicable Rate and (iv) each Overnight LIBOR Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Overnight LIBOR Rate plus the Applicable Rate. (b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating -31-N75013152.6 |
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interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iii) Upon the request of the Required Lenders, while any Event of Default exists, the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws. (iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand. (c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. 2.08 Fees. (a) Commitment Fee. The Borrower shall pay to the Administrative Agent, for the account of each Lender in accordance with its Applicable Percentage, a commitment fee (the "Commitment Fee") at a rate per annum equal to the product of (i) 0.15% times (ii) the actual daily amount by which the Aggregate Revolving Commitments exceed the Outstanding Amount of Revolving Loans, subject to adjustment as provided in Section 2.14. The Commitment Fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the Maturity Date. The Commitment Fee shall be calculated quarterly in arrears. For purposes of clarification, Swing Line Loans shall not be considered outstanding for purposes of determining the unused portion of the Aggregate Revolving Commitments. (b) Fee Letter. The Borrower shall pay to the Administrative Agent for its own account fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall be non-refundable for any reason whatsoever. 2.09 Computation of Interest and Fees-Retroactive Adjustments of Applicable Rate. All computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of -32-N75013152.6 |
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fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.11(a), bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error. 2.10 Evidence of Debt. (a) The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Borrowings made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a promissory note, which shall evidence such Lender's Loans in addition to such accounts or records. Each such promissory note shall (i) in the case of Revolving Loans, be in the form of Exhibit C (a "Revolving Note"), and (ii) in the case of Swing Line Loans, be in the form of Exhibit D (a "Swing Line Note"). Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto. (b) In addition to the accounts and records referred to in subsection (a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Swing Line Loans. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. 2.11 Payments Generally; Administrative Agent's Clawback. (a) General. All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent's Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire -33-N75013152.6 |
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transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Subject to the definition of "Interest Period", if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans or Overnight LIBOR Loans, prior to 12:00 noon on the date of such 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 Section 2.02 (or, in the case of any Borrowing of Base Rate Loans or Overnight LIBOR Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) 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 in immediately available funds 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 (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender's Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent. (ii) Payments by Borrower; Presumptions by Administrative Agent. 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 the account of the Lenders 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 the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, in immediately available funds 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 greater of the Federal Funds Rate and -34-N75013152.6 |
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a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error. (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Loans, to fund participations in Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c). (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. 2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Loans made by it, or the participations in Swing Line Loans held by it resulting in such Lender's receiving payment of a proportion of the aggregate amount of such Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, 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 other amounts owing them, provided that: (i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to and in accordance -35-A/75013152.6 |
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with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lenders), (y) the application of Cash Collateral provided for in Section 2.13 or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in Swing Line Loans to any assignee or participant, other than an assignment to the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply). 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 setoff 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. 2.13 Cash Collateral. (a) Certain Credit Support Events. At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent or the Swing Line Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to Section 2.14(a)(iv) and any Cash Collateral provided by the Defaulting Lender). (b) Grant of Security Interest. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at the Administrative Agent. The Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent and the Lenders (including the Swing Line Lender) and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.14(c). If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent as herein provided, or that the total amount of such Cash Collateral is less than the applicable Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. (c) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.13 or Sections 2.03, 2.04, 2.14 or 8.02 in respect of Swing Line Loans shall be held and applied in satisfaction of the specific Swing Line Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided herein. -36-A/75013152.6 |
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(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender) or (ii) the Administrative Agent's good faith determination that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of the Borrower shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.13 may be otherwise applied in accordance with Section 8.03) and (y) the Person providing Cash Collateral and the Swing Line Lender may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations. 2.14 Defaulting Lenders. (a) Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law: (i) Waivers and Amendment. The Defaulting Lender's right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in Section 10.01. (ii) Reallocation of Payments. Any payment of principal, interest, fees or other amount received by the Administrative Agent for the account of that Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise, and including any amounts made available to the Administrative Agent by that Defaulting Lender pursuant to Section 10.08), shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by that Defaulting Lender to the Swing Line Lender hereunder; third, if so determined by the Administrative Agent or requested by the Swing Line Lender, to be held as Cash Collateral for future funding obligations of that Defaulting Lender of any participation in any Swing Line Loan; fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which that Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the Lenders or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender or the Swing Line Lender against that Defaulting Lender as a result of that Defaulting Lender's breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a result of that Defaulting Lender's breach of its -37-N75013152.6 |
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obligations under this Agreement; and eighth, to that Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, that, if (x) such payment is a payment of the principal amount of any Loans in respect of which that Defaulting Lender has not fully funded its appropriate share and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to the pay the Loans of all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of that Defaulting Lender. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.14(a)(ii) shall be deemed paid to and redirected by that Defaulting Lender, and each Lender irrevocably consents hereto. (iii) Certain Fees. The Defaulting Lender shall not be entitled to receive any Commitment Fee pursuant to Section 2.09(a) for any period during which such Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to such Defaulting Lender). (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting Lender, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans pursuant to Section 2.03, the "Applicable Percentage" of each non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided, that, (x) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and (y) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Swing Line Loans shall not exceed the positive difference, if any, of (1) the Revolving Commitment of that non Defaulting Lender minus (2) the aggregate Outstanding Amount of the Revolving Loans of that Lender. (b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and Swing Line Lender agree in writing in their sole discretion that a Defaulting Lender should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Revolving Loans and funded and unfunded participations in Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.14(a)(iv)), whereupon that Lender will cease to be a Defaulting Lender; provided, that, no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that, except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to non-Defaulting Lender will constitute a -38-A/75013152.6 |
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waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender. ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 3.01 Taxes. (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. (i) Any and all payments by or on account of any obligation of the Borrower hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrower or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case may be, upon the basis of the information and documentation to be delivered pursuant to subsection (e) below. (ii) If the Borrower or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender, as the case may be, receives an amount equal to the sum it would have received had no such withholding or deduction been made. (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law. (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or (b) above, the Borrower shall, and does hereby indemnify the Administrative Agent and each Lender, and shall make payment in respect thereof within 10 days after demand therefor, for 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) withheld or deducted by the Borrower or the Administrative Agent paid by the Administrative Agent or such Lender, 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 -39-N75013152.6 |
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or asserted by the relevant Governmental Authority. The Borrower shall also, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefore, for any amount which a Lender for any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii) of this subsection. A certificate as to the amount of any such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (i) Without limiting the provisions of subsection (a) or (b) above, each Lender shall, and does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, against any and all Taxes and any and all related losses, claims, liabilities, penalties, interest and expenses (including the fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by any Governmental Authority as a result of the failure by such Lender to deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be delivered by such Lender to the Administrative Agent pursuant to subsection (e). Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations. (d) Evidence of Payments. Upon request by the Borrower or the Administrative Agent, as the case may be, after any payment of Taxes by the Borrower or the Administrative Agent to a Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be. (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the Borrower and to the Administrative Agent, at the time or times prescribed by applicable Laws or when reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Laws or by the taxing authorities of any jurisdiction and such other reasonably requested information as will permit the Borrower or the Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder or under any other Loan Documents are subject to Taxes, (B) if applicable, the required rate of withholding or deduction, and (C) such Lender's entitlement to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be made to such Lender by the Borrower pursuant to this Agreement or otherwise to establish such Lender's status for withholding tax purposes in the applicable jurisdiction. -40-A/75013152.6 |
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(ii) Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in the United States, (A) any Lender that is a "United States person" within the meaning of Section 7701(a)(30) of the Code shall, upon the request of the Borrower or the Administrative Agent, deliver to the Borrower and the Administrative Agent executed originals of Internal Revenue Service Form W-9 or such other documentation or information prescribed by applicable Laws or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent, as the case may be, to determine whether or not such Lender is subject to backup withholding or information reporting requirements; and (B) each Foreign Lender that is entitled under the Code or any applicable treaty to an exemption from or reduction of withholding tax with respect to payments hereunder or under any other Loan Document 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 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) executed originals of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party, (II) executed originals of Internal Revenue Service Form W-8ECI, (III) executed originals of Internal Revenue Service Form W-8IMY and all required supporting documentation, (IV) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Internal Revenue Code, (x) a certificate to the effect that such Foreign Lender is not (A) a "bank" within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a "10 percent shareholder" of the Borrower within the meaning of section 881(c)(3)(B) of the Internal Revenue Code, or (C) a "controlled foreign corporation" described in section 881(c)(3)(C) of the Internal Revenue Code and (y) executed originals of Internal Revenue Service Form W-8BEN, or (V) executed originals of any other form prescribed by applicable Laws 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 or the Administrative Agent to determine the withholding or deduction required to be made. (iii) Each Lender shall promptly (A) notify the Borrower and the Administrative Agent of any change in circumstances which would modify or -41-A/75013152.6 |
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render invalid any claimed exemption or reduction, and (B) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any jurisdiction that the Borrower or the Administrative Agent make any withholding or deduction for taxes from amounts payable to such Lender. (f) Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender, or have any obligation to pay to any Lender, any refund of Taxes withheld or deducted from funds paid for the account of such Lender. If the Administrative Agent or any Lender determines, in its sole discretion, that it has received a 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 out-of-pocket expenses incurred by the Administrative Agent or such Lender 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 or such Lender, 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 or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require the Administrative Agent or any Lender to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the Borrower or any other Person. 3.02 Illegality. If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate or Overnight LIBOR Loans, or to determine or charge interest rates based upon the Eurodollar Rate or the Overnight LIBOR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans, to convert Base Rate Loans or Overnight LIBOR Loans to Eurodollar Rate Loans or to make Overnight LIBOR Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a -42-N75013152.6 |
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copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans or Overnight LIBOR Loans, as applicable, of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period, if any, therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans or Overnight LIBOR Loans, as applicable, to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans or Overnight LIBOR Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. 3.03 Inability to Determine Rates. If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, (c) the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to the Lenders of funding such Loan or (d) an Overnight LIBOR Loan that (i) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount of such Overnight LIBOR Loan, (ii) adequate and reasonable means do not exist for determining the Overnight LIBOR Rate with respect to a proposed Overnight LIBOR Loan, or (iii) the Overnight LIBOR Rate with respect to a proposed Overnight LIBOR Loan does not adequately and fairly reflect the cost to the Lenders of funding such Loan, the Administrative Agent will promptly notify the Borrower and all Lenders. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans or Overnight LIBOR Loans, as applicable, shall be suspended and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing, conversion or continuation of Eurodollar Rate Loans or a Borrowing or conversion of Overnight LIBOR Loans, as applicable, or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein. 3.04 Increased Costs. (a) Increased Costs Generally. If any Change in Law shall: -43-N75013152.6 |
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(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement reflected in the Eurodollar Rate); (ii) subject any Lender to any tax of any kind whatsoever with respect to this Agreement, any Eurodollar Rate Loan or any Overnight LIBOR Loan made by it, or change the basis of taxation of payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender); or (iii) impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans or Overnight LIBOR Loans made by such Lender; and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate or any Overnight LIBOR Loan, as applicable, (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, upon request of such Lender, the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered. (b) Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender's holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement, the Revolving Commitments of such Lender or the Loans made by such Lender to a level below that which such Lender or such Lender's holding company could have achieved but for such Change in Law (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction suffered. (c) Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Borrower 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. (d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender's right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months -44-N75013152.6 |
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prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). 3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of: (a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan, Overnight LIBOR Loan or Swing Line Loan on a day other than the last day of the Interest Period, if any, for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise); (b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan, Overnight LIBOR Loan or Swing Line Loan on the date or in the amount notified by the Borrower; or (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section 10.13; including any loss of anticipated profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative fees charged by such Lender in connection with the foregoing. For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded. 3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall, as applicable, 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 -45-A/75013152.6 |
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pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense 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 3.04, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance with Section 10.13. 3.07 Survival. All of the Borrower's obligations under this Article III shall survive termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder and resignation of the Administrative Agent. ARTICLE IV CONDITIONS PRECEDENT TO BORROWINGS 4.01 Conditions of Initial Borrowing. This Agreement shall become effective upon and the obligation of each Lender to make its initial Borrowing hereunder is subject to satisfaction of the following conditions precedent: (a) Loan Documents. Receipt by the Administrative Agent of executed counterparts of this Agreement and the other Loan Documents, each properly executed by a Responsible Officer of the Borrower and, in the case of this Agreement, by each Lender. (b) Opinions of Counsel. Receipt by the Administrative Agent of favorable opinions of in-house legal counsel to the Borrower, addressed to the Administrative Agent and each Lender, dated as of the Closing Date, and in form and substance satisfactory to the Administrative Agent. (c) Financial Statements. The Administrative Agent shall have received the Audited Financial Statements. (d) No Material Adverse Change. There shall not have occurred a material adverse change since February 29, 2012 in the business, assets, income, properties, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Borrower. (e) Litigation. There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before an arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect. -46-A/75013152.6 |
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(f) Organization Documents, Resolutions, Etc. Receipt by the Administrative Agent of the following, each of which shall be originals or facsimiles (followed promptly by originals), in form and substance satisfactory to the Administrative Agent and its legal counsel: (i) copies of the Organization Documents of the Borrower, including the Trust Agreement, certified to be true and complete as of a recent date by the appropriate Governmental Authority of the Commonwealth of Massachusetts and certified by a secretary or assistant secretary of the Borrower to be true and correct as of the Closing Date; (ii) such certificates of resolutions of the board of trustees (or any committee thereof) or other action, incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents; and (iii) such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in the Commonwealth of Massachusetts. (g) the following: Perfection and Priority of Liens. Receipt by the Administrative Agent of (i) searches of Uniform Commercial Code filings in the jurisdiction of formation of the Borrower or where a filing would need to be made in order to perfect the Administrative Agent's security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens; (ii) UCC financing statements for each appropriate jurisdiction as is necessary,in the Administrative Agent's sole discretion, to perfect the Administrative Agent's security interest in the Collateral; (iii) searches of ownership of, and Liens on, intellectual property of the Borrower in the appropriate governmental offices; and (iv) duly executed notices of grant of security interest in the form required by the Security Agreement as are necessary, in the Administrative Agent's sole discretion, to perfect the Administrative Agent's security interest in the intellectual property of the Borrower. (h) Closing Certificate. Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of the Borrower certifying that the Borrower (after giving effect to the transactions contemplated hereby and the incurrence of Indebtedness related thereto) is Solvent. -47-A/75013152.6 |
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(i) Certified Copy of Documents. Receipt by the Administrative Agent of a copy, certified by a Responsible Officer of the Borrower as true and complete, of the Custody Agreement, together with all exhibits and schedules thereto, which shall be in form and substance satisfactory to the Administrative Agent. Fees. Receipt by the Administrative Agent and the Lenders of any fees (j) required to be paid on or before the Closing Date. (k) Attorney Costs. Unless waived by the Administrative Agent, the Borrower shall have paid all fees, charges and disbursements of counsel to the Administrative Agent to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent). (1) Existing Credit Agreement. Evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released. (m) Other. Receipt by the Administrative Agent and the Lenders of such other documents, instruments, agreements and information as reasonably requested by the Administrative Agent or any Lender. Without limiting the generality of the provisions of the last paragraph of Section 10.04, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. 4.02 Conditions to all Borrowings. The obligation of each Lender to honor any Request for Borrowing is subject to the following conditions precedent: (a) The representations and warranties of the Borrower contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Borrowing, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01. -48-N75013152.6 |
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(b) No Default shall exist, or would result from such proposed Borrowing or from the application of the proceeds thereof. (c) The Administrative Agent and, if applicable, the Swing Line Lender shall have received a Request for Borrowing in accordance with the requirements hereof. (d) The Borrower shall be in compliance with the Asset Coverage Ratio both before and after giving effect to such proposed Borrowing. (e) The Borrower shall be in compliance in all material respects with the Act both before and after giving effect to such proposed Borrowing. Each Request for Borrowing submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a), (b), (d) and (e) have been satisfied on and as of the date of the applicable Borrowing. ARTICLE V REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Administrative Agent and the Lenders that: 5.01 Existence, Qualification and Power. The Borrower (a) is a business trust duly organized, validly existing and in good standing under the Laws of Massachusetts, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents, and (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect. 5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower of each Loan Document have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene the terms of the Borrower's Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation of the Borrower or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject; (c) violate any Law (including, without limitation, Regulation U or Regulation X issued by the FRB); or (d) violate the Investment Policies or Investment Restrictions. -49-N75013152.6 |
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5.03 Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any other Loan Document other than (a) those that have already been obtained and are in full force and effect and (b) filings to perfect the Liens created by the Collateral Documents. 5.04 Binding Effect. Each Loan Document has been duly executed and delivered by the Borrower. Each Loan Document constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its teens. 5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower as of the date thereof, including liabilities for taxes, commitments and Indebtedness. (b) The Interim Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower as of the date thereof and its results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Borrower as of the date thereof, including liabilities for taxes, material commitments and Indebtedness. (c) The financial statements delivered pursuant to Section 6.01(a) and (b) have been prepared in accordance with GAAP (except as may otherwise be permitted under Section 6.01(a) and .(b)) and present fairly (on the basis disclosed in the footnotes to such financial statements) the financial condition, results of operations and cash flows of the Borrower as of the dates thereof and for the periods covered thereby. (d) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect. 5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower after due and diligent investigation, threatened or -50-A/75013152.6 |
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contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Borrower or against any of its properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby or (b) if determined adversely, could reasonably be expected to have a Material Adverse Effect. 5.07 No Default. (a) The Borrower is not in default under or with respect to any Contractual Obligation that could reasonably be expected to have a Material Adverse Effect. (b) No Default has occurred and is continuing. 5.08 Ownership of Property; Liens. The Borrower has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Borrower is subject to no Liens, other than Permitted Liens. 5.09 Environmental Matters. Environmental Laws and Environmental Claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 5.10 Taxes. The Borrower has filed all federal, state and other material tax returns and reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon the Borrower or its properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against the Borrower that would, if made, have a Material Adverse Effect. The Borrower is not party to any tax sharing agreement. 5.11 Investment Policies and Investment Restrictions. The Borrower is in compliance with all of the Investment Policies and Investment Restrictions. 5.12 No Plans or Plan Liability. The Borrower has not adopted, established or maintained, nor is liable under any Plan. 5.13 Subsidiaries. The Borrower has no Subsidiaries. -51-A/75013152.6 |
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5.14 Margin Regulations; Investment Company Act. (a) The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing, not more than 25% of the value of the assets of the Borrower subject to the provisions of Section 7.01 or Section 7.04 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock. (b) The Borrower is a registered investment company under the Act and has registered the sale of its shares under the 1933 Act and the Act. 5.15 Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all agreements, instruments and corporate or other restrictions to which the Borrower is subject, and all other matters known to the Borrower, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of the Borrower to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, 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. 5.16 Compliance with Laws. The Borrower is in compliance with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect. 5.17 Intellectual Property; Licenses, Etc. The Borrower owns, or possesses the legal right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, "IP Rights") that are reasonably necessary for the operation of its business. Set forth on Schedule 5.17 is a list of all IP Rights registered or pending registration with the United States Copyright Office or the United States Patent and Trademark Office and owned by the Borrower as of the Closing Date. Except for such claims and infringements that could not reasonably be expected to have a -52-A/75013152.6 |
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Material Adverse Effect, no claim has been asserted and is pending by any Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any IP Rights, nor does the Borrower know of any such claim, and, to the knowledge of the Borrower, the use of any IP Rights by the Borrower or the granting of a right or a license in respect of any IP Rights from the Borrower does not infringe on the rights of any Person. As of the Closing Date, none of the IP Rights owned by the Borrower is subject to any licensing agreement or similar arrangement except as set forth on Schedule 5.17. 5.18 Solvency. The Borrower is Solvent. 5.19 Perfection of Security Interests in the Collateral. The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens are currently perfected security interests and Liens, prior to all other Liens other than Permitted Liens. 5.20 Business Locations. Set forth on Schedule 5.20(a) is a list of all real property located in the United States that is owned or leased by the Borrower as of the Closing Date. Set forth on Schedule 5.20(b) is the tax payer identification number and organizational identification number of Borrower as of the Closing Date. The exact legal name of the Borrower is as set forth on the signature pages hereto. Except as set forth on Schedule 5.20(c), the Borrower has not during the five years preceding the Closing Date (i) changed its legal name, (ii) changed its state of formation, or (iii) been party to a merger, consolidation or other change in structure. 5.21 No Burdensome Restrictions. The Borrower is not a party to or bound by any Contractual Obligation, or subject to any restriction in any Organization Document, or any Requirement of Law, which could reasonably be expected to have a Material Adverse Effect. 5.22 Advisory Contract. The Borrower's Investment Management Agreement with the Investment Adviser dated September 1, 2000, as amended September 2, 2004, and the Administrative Agreement with ING Investments, LLC dated April 7, 1997, are in the form delivered to the Administrative Agent and the Lenders. 5.23 Tax Status. The Borrower has taken all steps reasonably necessary to maintain its status as a regulated investment company under the Code. -53-N75013152.6 |
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ARTICLE VI AFFIRMATIVE COVENANTS So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other Obligation shall remain unpaid or unsatisfied, the Borrower shall: 6.01 Financial Statements. Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent and the Required Lenders: (a) upon the earlier of the date that is sixty days after the end of each fiscal year of the Borrower or the date such information is filed with the SEC, a balance sheet of the Borrower as at the end of such fiscal year, including a statement of investments, and the related statements of income or operations, changes in shareholders' equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance_ with GAAP, audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit; (b) upon the earlier of the date that is sixty days after the end of each of the first three fiscal quarters of each fiscal year of the Borrower or the date such information is filed with the SEC, a balance sheet of the Borrower as at the end of such fiscal quarter, including a statement of investments, and the related statements of income or operations, changes in shareholders' equity and cash flows for such fiscal quarter and for the portion of the Borrower's fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Borrower as fairly presenting the financial condition, results of operations, shareholders' equity and cash flows of the Borrower in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; (c) within sixty days after the end of the first six months of each fiscal year of the Borrower, a copy of its published semi-annual report and asset statement, prepared in conformity with GAAP; and (d) within 3 Business Days after the end of each calendar month, (i) a Borrowing Base Certificate setting forth (A) its borrowing base (as calculated in the manner contemplated by the form of Borrowing Base Certificate) ("Borrowing Base"), (B) its Asset Coverage Ratio as of the last day of such month, (C) calculations demonstrating compliance with Section 7.10 and (D) the assets held by the Borrower as of the last day of such month and (ii) a certificate signed by a Responsible Officer certifying that no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing, the steps being taken to remedy the same. -54-N75013152.6 |
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Furthermore, the Borrower hereby agrees that, so long as any Loans are outstanding, to the extent requested by the Administrative Agent or any Lender, the Borrower shall deliver to the Administrative Agent a calculation of the Asset Coverage Ratio, with such calculation to be as of any Business Day that the Administrative Agent or any Lender requests, such calculation to be provided using the Schedule 1 attached to the Borrowing Base Certificate, with the delivery of such information to be on the date that the Administrative Agent or such Lender, as the case may be, has made such request, unless the Administrative Agent or such Lender has requested that Asset Coverage Ratio be calculated as of the date the request is made, in which case such information shall be delivered the following Business Day. The Administrative Agent agrees to provide a copy of any such calculation of the Asset Coverage Ratio received pursuant to the preceding sentence to the Lenders making such request and, in addition, any other Lender upon its request. 6.02 Certificates; Other Information. Deliver to the Administrative Agent and each Lender, m form and detail satisfactory to the Administrative Agent and the Required Lenders: (a) concurrently with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event; (b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and .(hl, a duly completed Compliance Certificate signed by a Responsible Officer of the Borrower; (c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equityholders of the Borrower, and copies of all annual, regular, periodic and special reports and registration statements which the Borrower may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto; (d) promptly after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them; (e) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of Borrower pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02; (f) promptly, and in any event within five Business Days after receipt thereof by the Borrower, copies of each notice or other correspondence received from the SEC (or -55-N75013152,6 |
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comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results ofthe Borrower; (g) promptly, such additional information regarding the business, financial or corporate affairs of the Borrower, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and (h) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and .(b), a certificate of a Responsible Officer of the Borrower listing (A) all applications by the Borrower, if any, for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement) made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (B) all issuances of registrations or letters on existing applications by the Borrower for Copyrights, Patents and Trademarks (each such term as defined in the Security Agreement) received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (C) all Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into by the Borrower since the date of the prior certificate (or, in the case ofthe first such certificate, the Closing Date). Documents required to be delivered pursuant to Section 6.01(a) or .(b) or Section 6.02 (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower's website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower's behalf on an Internet or Intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery by a Lender, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. The Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, the "Borrower Materials") by delivering such Borrower Materials (whether electronically, posting such Borrower materials on an electronic system or otherwise) and (b) certain of the Lenders (each, a "Public Lender") may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such -56-A/75013152.6 |
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Person's securities. Any Lender which desires to be a Public Lender shall be required to deliver written notice to the Borrower and the Administrative Agent of such Lender's election (and until the Administrative Agent provides written confirmation to such Lender of receipt of such election, such Lender shall not be considered a Public Lender for purposes hereunder). The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word "PUBLIC" shall appear prominently on the first page thereof; (x) by marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available to all Lenders;" and (z) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for distribution to Lenders who have not identified themselves as a Public Lender in accordance with the terms hereof. Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any borrower Materials "PUBLIC". 6.03 Notices. (a) Promptly (and in any event, within one Business Day) notify the Administrative Agent and each Lender of the occurrence of any Default. (b) Promptly (and in any event, within five Business Days) notify the Administrative Agent and each Lender of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non performance of, or any default under, a Contractual Obligation of the Borrower; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower, including pursuant to any applicable Environmental Laws. (c) Promptly (and in any event, within one Business Day) the scheduling of consideration by the board of trustees of the Borrower of a change in the Investment Adviser, administrator, custodian or independent accountant, or the appointment of any sub-adviser of any Person acting in a similar capacity to the Investment Adviser; provided that a mailing to shareholders with respect to any of the foregoing shall not be deemed sufficient notice hereunder. (d) Promptly (and in any event, within five Business Days) notify the Administrative Agent and each Lender of any material change in accounting policies or financial reporting practices by the Borrower. Without limiting any of the foregoing provisiOns of this Section 6.03, the Borrower will promptly notify the Administrative Agent and the Lenders of (and, to the extent possible, give the Administrative Agent and the Lenders at least ten days' prior -57-N75013152.6 |
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written notice of) any contribution failure sufficient to give rise to a Lien under Section 3.02(f) ofERISA. Each notice pursuant to this Section 6.03(a) through@ shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached. 6.04 Payment of Obligations. Pay and discharge, as the same shall become due and payable, all its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Borrower; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness. 6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization. (b) Take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that the failure to do so could not reasonably be expected to have a Material Adverse Effect. (c) Preserve or renew all of its registered patents, copyrights, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect. (d) Use reasonable efforts, in the ordinary course of business, to preserve its business organization and goodwill. 6.06 Maintenance ofProperties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted. (b) Make all necessary repairs thereto and renewals and replacements thereof, except where the failure to do so could not reasonably be expected to have a Material Adverse Effect. -58-N75013152.6 |
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(c) Use the standard of care typical in the industry m the operation and maintenance of its facilities. 6.07 Maintenance of Insurance. Maintain in full force and effect insurance (including such fidelity bond coverage as shall be required by Rule 17g-1 promulgated under the Act or any successor provision, errors and omissions and director and officer liability insurance and other insurance against casualties and contingencies) with financially sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses of the Borrower. The Administrative Agent shall be named as loss payee or mortgagee, as its interest may appear, and/or additional insured with respect to any such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that it will give the Administrative Agent thirty (30) days prior written notice before any such policy or policies shall be altered or canceled. 6.08 Compliance with Laws. Comply with the requirements of all Laws (including Environmental Laws) and all orders, writs, injunctions and decrees applicable to the Borrower or to its business or property, such compliance to include compliance in all material respects with the Act, the 1933 Act and the Exchange Act. 6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower. (b) Maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction the Borrower. 6.10 Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided, however, that when an Event of Default exists the Administrative Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice. -59-A/75013152.6 |
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6.11 Use ofProceeds. Use the proceeds of the Loans to provide liquidity for one or more of the following: (a) periodic tender offers for the repurchase of the Borrower's shares, (b) to fund general working capital needs and (c) to fund obligations with respect to unfunded loans or revolving credit commitments. The Borrower may also use the proceeds of the Loans to leverage the Borrower's portfolio to enhance yield, provided that in no event shall the proceeds of the Loans be used in contravention of any Law or of any Loan Document. 6.12 Investment Adviser. To the extent permitted by applicable law, (a) shall at all times maintain ING Investments, LLC as its investment adviser (the "Investment Adviser"), or (b) if the contract by which such Investment Adviser is retained by the Borrower is terminated pursuant to or by reason of the operation of the Act, the Borrower's trustees or shareholders or any action taken by the SEC, the Investment Adviser shall continue to serve as the Borrower's investment adviser, with or without a fee, and a successor investment adviser shall thereafter be approved, within 120 days of such termination, in the manner provided by the Act and with the consent of the Required Lenders. Notwithstanding anything to the contrary contained herein, a termination of the investment advisory agreement of the Borrower resulting from the Proposed IPO and the operation of the Investment Company Act of 1940 shall not constitute a breach of this Section 6.12 so long as immediately upon such termination the Borrower shall have entered into a new investment advisory agreement with ING Investments, LLC on substantially identical terms as such terminated agreement. 6.13 Regulated Investment Company. Will at all times maintain its status as a "regulated investment company" under the Code and a "registered investment company" under the Act. 6.14 Pledged Assets. Cause all of its owned and leased real and personal property other than Excluded Property to be subject at all times to first priority, perfected and, in the case of real property (whether leased or owned), title insured Liens in favor of the Administrative Agent, for the benefit ofthe holders of the Obligations, to secure the Obligations pursuant to the terms and conditions of the Collateral Documents or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents as the Administrative Agent shall reasonably request, subject in any case to Permitted Liens and (ii) deliver such other documentation as the Administrative Agent may reasonably request in connection with the foregoing, including, without limitation, appropriate UCC-1 financing statements, real estate title insurance policies, surveys, certified resolutions and other organizational and authorizing documents of such Person, favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to above and the perfection of the Administrative Agent's Liens thereunder) and other items -60-N75013152.6 |
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reasonably required by the Administrative Agent, all m form, content and scope reasonably satisfactory to the Administrative Agent. 6.15 Investment Policies and Investment Restrictions. Will at all times comply with all of the Investment Policies and Investment Restrictions. 6.16 Post-Closing Matters. To the extent not delivered on the Closing Date, within thirty (30) days of the Closing Date (or such later date as the Administrative Agent may agree in its sole discretion), deliver to the Administrative Agent and each Lender the unaudited financial statements of the Borrower for the fiscal quarter ended May 31, 2012, including balance sheets and statements of income or operations, shareholders' equity and cash flows (the "Interim Financial Statements") ARTICLE VII NEGATIVE COVENANTS So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall not: 7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following: (a) Liens pursuant to any Loan Document; (b) Liens existing on the date hereof and listed on Schedule 7.01; (c) Liens for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP; (d) Liens in favor of the Custodian granted pursuant to the Custody Agreement to secure the obligations arising thereunder; (e) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 8.01(h); or (f) Liens, if any, in favor of the Administrative Agent on Cash Collateral delivered pursuant to Section 2.13(a). 7.02 Business Activities; Investments Policies; Investment Restrictions. -61-N75013152.6 |
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The Borrower shall not engage in any business activity, except as a diversified closed-end management investment company and such activities as may be incidental or related thereto. In addition to, and not in limitation of the foregoing, the Borrower will not become an open-end management investment company under the Act without the prior written consent of the Lenders. The Borrower will not violate any of the Investment Policies or Investment Restrictions. The Borrower will not amend, rescind, modify or otherwise change any of the Investment Policies or Investment Restrictions without written notice to the Lenders. 7.03 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except: (a) Indebtedness under the Loan Documents; (b) obligations to Persons who provide services to the Borrower in the ordinary course of business as an investment company and similar trade obligations incurred in the ordinary course of business; (c) obligations (contingent or otherwise) of the Borrower existing or arising under any Swap Contract, provided that (i) such obligations are (or were) entered into by the Borrower in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by the Borrower, or changes in the value of securities issued by the Borrower, and not for purposes of speculation or taking a "market view;" and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party; and (d) Indebtedness under the Custody Agreement in favor of the Custodian and incurred solely for purposes of clearing and settling purchases and sales of securities or consisting of overnight extensions of credit from the Custodian to the Borrower, in each case, in the ordinary course of business. 7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person. 7.05 Lease Obligations. Create or suffer to exist any obligations for the payment of rent for any Property under lease or agreement to lease. 7.06 Plans. Adopt, maintain, enter into, or incur any liability (either directly or indirectly through an ERISA Affiliate) relating to, any Plan. -62-N75013152.6 |
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7.07 Transactions with Affiliates and Insiders. Except for fees payable to the Investment Adviser, enter into or permit to exist any transaction or series of transactions with any officer, director or Affiliate of the Borrower other than except as otherwise specifically limited in this Agreement, other transactions which are entered into in the ordinary course of the Borrower's business on terms and conditions substantially as favorable to such Person as would be obtainable by it in a comparable arms-length transaction with a Person other than an officer, director or Affiliate; provided that any such transaction must be made in substantial compliance with Section 17 of the Act or an exemption therefrom. 7.08 Burdensome Agreements. Enter into, or permit to exist, any Contractual Obligation that prohibits or otherwise restricts the existence of any Lien upon any of its property in favor of the Administrative Agent (for the benefit of the holders of the Obligations) for the purpose of securing the Obligations, whether now owned or hereafter acquired, or requiring the grant of any security for any obligation if such property is given as security for the Obligations. 7.09 Use ofProceeds. Use the proceeds of any Loan, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose. 7.10 Financial Covenants. (a) Permit its Asset Coverage Ratio to be less than 300% at any time. (b) Permit at any time the sum of the unused portion of the Revolving Commitments plus Cash Equivalents of the Borrower' to be an amount less than the sum of the Funding Obligations of the Borrower. 7.11 Organization Documents-Fiscal Year Leal Name State of Formation and Fonn of Entity; Custodian. (a) to the Lenders. Amend, modify or change its Organization Documents in a manner adverse (b) Change its fiscal year. (c) Without providing ten (10) days prior written notice to the Administrative Agent, change its name, state of formation or form of organization. (d) Change its Custodian. 7.12 Restricted Payments. -63-A/75013152.6 |
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Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so during such time as an Event of Default shall exist and be continuing. 7.13 Subsidiaries. Form or acquire any Subsidiary. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES 8.01 Events of Default. Any of the following shall constitute an Event ofDefault: (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan, or (ii) within three Business Days after the same becomes due, any interest on any Loan, or any fee due hereunder, or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01, 6.02, 6.03, 6.05, 6.10, 6.11, 6.12, 6.14, or 6.15 or Article VII or (c) Other Defaults. The Borrower fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for thirty days; or (d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading when made or deemed made; or (e) Cross-Default. (i) The Borrower (A) fails to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be -64-N75013152.6 |
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repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower as a result thereof is greater than the Threshold Amount; or (f) Insolvency Proceedings, Etc. The Borrower institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of the Borrower and the appointment continues undischarged or unstayed for sixty calendar days; or any proceeding under any Debtor Relief Law relating to the Borrower or to all or any material part of its property is instituted without the consent of the Borrower and continues undismissed or unstayed for sixty calendar days, or an order for relief is entered in any such proceeding; or (g) Inability to Pay Debts; Attachment. (i) The Borrower becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within thirty days after its issue or levy; or (h) Judgments. There is entered against the Borrower (i) one or more final judgments or orders for the payment of money in an aggregate amount exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of ten consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or (i) Invalidity of Loan Documents. Any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations (other than contingent indemnification obligations that survive the termination of this Agreement), ceases to be in full force and effect; or the Borrower or any other Person contests in any manner the validity or enforceability of any Loan Document; or the Borrower denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan Document; or -65-N75013152.6 |
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(j) Investment Policies. The Borrower shall violate or take any action that would result in a violation of any of its Investment Policies or Investment Restrictions, except for violations or the taking of such actions that would not in the determination of the Required Lenders result in a fundamental change in the credit quality of the Borrower; or (k) Investment Adviser. lNG Investments, LLC shall no longer be the Investment Adviser, provided, that a termination of the investment advisory agreement of the Borrower resulting from the Proposed IPO and the operation of the Investment Company Act of 1940 shall not constitute an Event of Default for purposes of this paragraph (k) so long as immediately upon such termination the Borrower shall have entered into a new investment advisory agreement with lNG Investments, LLC on substantially identical terms as such terminated agreement; or (1) Change in Custodian. The Borrower shall change its custodian; (m) Change of Control. There occurs any Change of Control; or (n) Changes to Investment Policies or Investment Restrictions. The Borrower amends, rescinds, modifies or otherwise changes any of its Investment Policies or Investment Restrictions and the Required Lenders have determined that such change has resulted in a fundamental change in the credit quality of the Borrower. 8.02 Remedies Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of or may, with the consent of, the Required Lenders, take any or all of the following actions: (a) declare the Revolving Commitment of each Lender to make Loans to be terminated, whereupon such commitments and obligation shall be terminated; (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrower; and (c) exercise on behalf of itself and the Lenders all rights and remedies available to it and the Lenders under the Loan Documents; provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender. 8.03 Application of Funds. -66-A/75013152.6 |
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After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order: First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its capacity as such; Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders) arising under the Loan Documents and amounts payable under Article III, ratably among them in proportion to the respective amounts described in this clause Second payable to them; Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and fees, premiums and scheduled periodic payments, and any interest accrued thereon, due under any Swap Contract between the Borrower and any Swap Bank, to the extent such Swap Contract is permitted by Section 7.03(c), ratably among the Lenders (and, in the case of such Swap Contracts, Swap Banks) in proportion to the respective amounts described in this clause Third held by them; Fourth, to (a) payment of that portion of the Obligations constituting unpaid principal of the Loans and (b) payment of breakage, termination or other payments, and any interest accrued thereon, due under any Swap Contract between the Borrower and any Swap Bank, to the extent such Swap Contract is permitted by Section 7.03(c), ratably among the Lenders (and, in the case of such Swap Contracts, Swap Banks) in proportion to the respective amounts described in this clause Fourth held by them; Fifth, to payments of amounts due under any Treasury Management Agreement between the Borrower and any Treasury Management Bank (and, in the case of such Treasury Management Agreements, Treasury Management Banks), ratably among the Lenders and Affiliates of such Lenders in proportion to the respective amounts described in this clause Fifth held by them; and Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law. ARTICLE IX ADMINISTRATIVE AGENT 9.01 Appointment and Authority. -67-A/750!3152.6 |
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(a) Each of the Lenders hereby irrevocably appoints State Street Bank to act on its behalf as the Administrative 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 provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and the Borrower shall not have rights as a third party beneficiary of any of such provisions. (b) The Administrative Agent shall also act as the "collateral agent" under the Loan Documents, and each of the Lenders hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by the Borrower to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as "collateral agent" and any co-agents, sub agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent), shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c), as though such co-agents, sub-agents and attorneys-in-fact were the "collateral agent" under the Loan Documents) as if set forth in full herein with respect thereto. 9.02 Rights as a Lender. 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 the term "Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the fmancial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. 9.03 Exculpatory Provisions. 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 ofthe foregoing, the Administrative Agent: (a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing; (b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights hereby or by the other Loan Documents that the exercise as directed in writing by the Required and powers expressly contemplated Administrative Agent is required to Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan -68-A/75013152.6 |
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Documents), provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and (c) shall not, except as expressly set forth herein and in the other Loan Documents, 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 Affiliates that is communicated to or obtained by the Person serving as the 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 (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) 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 notice describing such Default is given to the Administrative Agent by the Borrower or a Lender. 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 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 or the occurrence of any Default, (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, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. 9.04 Reliance by 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, sent or otherwise authenticated 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 have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terns must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. 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. -69-N75013152.6 |
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9.05 Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document 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 of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article 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. 9.06 Resignation of Administrative Agent. The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States. If no such 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 may on behalf of the Lenders, appoint a successor Administrative Agent meeting the qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except in the case of any collateral security held by the Administrative Agent on behalf of the Lenders, the retiring Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). 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 retiring Administrative Agent's resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent. -70-A/75013152.6 |
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Any resignation by State Street Bank as Administrative Agent pursuant to this Section shall also constitute its resignation as Swing Line Lender. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swing Line Lender and (b) the retiring Swing Line Lender shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. 9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties 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 or any of their Related Parties 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. 9.08 No Other Duties; Etc. Anything herein to the contrary notwithstanding, none of the bookrunners, arrangers, syndication agents, documentation agents or co-agents shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender hereunder. 9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations (other than obligations under Swap Contracts or Treasury Management Agreements to which the Administrative Agent is not a party) that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Sections 2.08 and 10.04) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; -71-A/75013152.6 |
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(c) and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.08 and 10.04. Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding. 9.10 Collateral Matters. Each of the Lenders irrevocably authorize the Administrative Agent, at its option and in its discretion, to release any Lien on any Collateral granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments and payment in full of all Obligations (other than contingent indemnification obligations) or (ii) as approved in accordance with Section 10.01. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release its interest in particular types or items of property pursuant to this Section 9.10. 9.11 SecurityAgreement. Each of the Lenders hereby acknowledges that it has received and reviewed the Security Agreement and agrees to be bound by the terms thereof. Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 10.06) hereby authorizes and directs the Administrative Agent to enter into the Security Agreement, on behalf of such Lender and agrees that the Administrative Agent, in its capacity thereunder, may take such actions on its behalf as is contemplated by the terms of the Security Agreement. ARTICLE X MISCELLANEOUS 10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, further, that (a) no such amendment, waiver or consent shall: -72-N75013152.6 |
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(i) extend or increase the Revolving Commitment of a Lender (or reinstate any Revolving Commitment terminated pursuant to Section 8.02) without the written consent of such Lender whose Revolving Commitment is being extended or increased (it being understood and agreed that a waiver of any condition precedent set forth in Section 4.02 or of any Default or a mandatory reduction in Revolving Commitments is not considered an extension or increase in Revolving Commitments of any Lender); (ii)postpone any date fixed by this Agreement or any other Loan Document for any payment of principal (excluding mandatory prepayments), interest, fees or other amounts due to the Lenders (or any of them) or any scheduled or mandatory reduction of the Revolving Commitments hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment or whose Revolving Commitments are to be reduced; (iii) reduce the principal of or the rate of interest specified herein on, any Loan, or (subject to clause (i) of the final proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender entitled to receive such payment of principal, interest, fees or other amounts; provided, however, that only the consent of the Required Lenders shall be necessary to amend the definition of "Default Rate" or to waive any obligation of the Borrower to pay interest at the Default Rate; (iv) change Section 2.12 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly affected thereby; (v) change any provision of this Section lO.Ol(a), the definition of "Required Lenders" or release all or substantially all of the Collateral without the written consent of each Lender directly affected thereby; or (vi) release the Borrower from any term or condition under the Loan Documents without the written consent of each Lender directly affected thereby; (b) unless also signed by the Swing Line Lender, no amendment, waiver or consent shall affect the rights or duties of the Swing Line Lender under this Agreement; and (c) unless also signed by the Administrative Agent, no amendment, waiver or consent shall affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; provided, however, that notwithstanding anything to the contrary herein, (i) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (ii) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be -73-N75013152.6 |
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effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender, (y) the Maturity Date may not be extended without the consent of such Lender and (z) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender, (iii) each Lender is entitled to vote as such Lender sees fit on any bankruptcy reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of Section 1126(c) ofthe Bankruptcy Code ofthe United States supersedes the unanimous consent provisions set forth herein and (iv) the Required Lenders shall determine whether or not to allow the Borrower to use cash collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be binding on all of the Lenders. 10.02 Notices and Other Communications-Facsimile Copies. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), 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 telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) if to the Borrower, the Administrative Agent or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and (ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower). Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communicationsdeliveredthrough electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b). (b) Electronic Communications. Notices and other communications to the Lenders 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 -74-A/75013152.6 |
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pursuant to Article II if such Lender 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 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)Borrower Materials. THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS. In no event shall the Administrative Agent or any of its Related Parties (collectively, the "Agent Parties") have any liability to the Borrower, any Lender or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the Borrower's or the Administrative Agent's transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to the Borrower, any Lender or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages). (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions -75-A/75013152.6 |
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for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times be the receipt of all information in respect of the Borrower in order to enable such Public Lender or its delegate, in accordance with such Public Lender's compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not otherwise made available to the Public Lender and that may contain material non-public information with respect to the Borrower or its securities for purposes ofUnited States Federal or state securities laws. (e) Reliance by Administrative Agent and Lenders. The Administrative Agent and the Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording. 10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Swing Line Lender) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.12), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have -76-A/75013152.6 |
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the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.12, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders. 10.04 Expenses; Indemnity; and Damage Waiver. (a) Costs and Expenses. The Borrower shall pay (i) all reasonable 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, the preparation, negotiation, execution, delivery 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), and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender (including the fees, charges and disbursements of any counsel for the Administrative Agent or any Lender), and shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans. (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), 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 (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower, or any Environmental Liability related in any way to the Borrower, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are -77-N75013l52.6 |
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determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent) or such Related Party, 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 (or any such sub-agent) in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.11(d). (d) Waiver of Consequential Damages, Etc. To the fullest 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, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby. (e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor. (f) Survival. The agreements in this Section shall survive the resignation of the Administrative Agent, the replacement of any Lender, the termination of the Revolving Commitments and the repayment, satisfaction or discharge of all the other Obligations. 10.05 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or -78-N75013152.6 |
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such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement. 10.06 Successors and Assigns. (a) Successors and Assigns Generally. The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder or thereunder without the prior written consent ofthe Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including all or a portion of its Revolving Commitment and the Loans (including for purposes of this subsection (b), participations in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Lender's Revolving Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Revolving Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Revolving Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined -79-N75013152.6 |
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as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 in the case of an assignment of Revolving Loans unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single assignee (or to an assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met; (ii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition: (A) the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five (5) Business Days after having received notice thereof; (B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for all assignments, subject to such assignment, if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and (C) the consent of the Swing Line Lender (such consent not to unreasonably withheld or delayed) shall be required for any assignment in respect of the Revolving Commitment if such assignment is to a Person that is not a Lender with a Revolving Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender. (iii) Assignment and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. (iv) No Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower's Affiliates, or (B) to any -80-A/75013152.6 |
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Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B) or (C) to a natural person. (v) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection 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 subsection (d) of this Section. (c) Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes), shall maintain at the Administrative Agent's Office 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 Revolving Commitments of, and principal amounts of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register -81-N75013152.6 |
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shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation and revocation of designation of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (d) Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person, a Defaulting Lender or the Borrower or any of the Borrower's Affiliates) (each, a "Participant") in all or a portion of such Lender's rights and/or obligations under this Agreement (including all or a portion of its Revolving Commitment and/or the Loans (including such Lender's participations in Swing Line Loans) owing to it); provided that (i) such Lender's obligations under this Agreement 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 other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. 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 to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (i) through (vi) ofthe Section lO.Ol(a) that affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.12 as though it were a Lender. (e) Limitation on Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 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 3.01 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 3.01(e) as though it were a Lender. (f) 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 (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. -82-N75013152.6 |
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(g) Resignation as Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time State Street Bank assigns all of its Revolving Commitment and Loans pursuant to subsection (b) above, State Street Bank may, upon thirty days' notice to the Borrower, resign as Swing Line Lender. In the event of any such resignation as Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor Swing Line Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of State Street Bank as Swing Line Lender. If State Street Bank resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.03(c). Upon the appointment of a successor Swing Line Lender, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Swing Line Lender. 10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates' respective partners, directors, officers, employees, agents, trustees, advisors and representatives and to any direct or indirect contractual counterparty (or such contractual counterparty's professional advisor) under any Swap Contract relating to Loans outstanding under this Agreement (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), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) 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, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (g) with the consent of the Borrower or (h) 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 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 Subsidiary relating to the Borrower or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower, provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person -83-N75013152.6 |
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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. Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws. 10.08 Set-off. If an Event of Default shall have occurred and be continuing, each Lender and each of its respective Affiliates is hereby authorized at any time and from time to time to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations ofthe Borrower may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness; provided, that, in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.14 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender and its respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender or its respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application. 10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a -84-A/75013152. 6 |
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Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder. 10.10 Counterparts; Integration; Effectiveness; Amendment and Restatement. (a) This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract 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 that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement. (b) The parties to the Existing Credit Agreement each hereby agree that, at such time as this Agreement shall have become effective pursuant to the terms of Section 4.01, (i) the Existing Credit Agreement automatically shall be deemed amended and restated in its entirety by this Agreement, and (ii) the Commitments under the Existing Credit Agreement and as defined therein automatically shall be replaced with the Commitments hereunder. This Agreement is not a novation of the Existing Credit Agreement. 10.11 Survival ofRepresentations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Borrowing, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied. 10.12 Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or -85-N75013152.6 |
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unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent or the Swing Line Lender, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited. 10.13 Replacement of Lenders. If (i) any Lender requests compensation under Section 3.04, (ii) the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or (iii) a Lender (a "Non-Consenting Lender") does not consent to a proposed change, waiver, discharge or termination with respect to any Loan Document that has been approved by the Required Lenders as provided in Section 10.01 but requires unanimous consent of all Lenders or all Lenders directly affected thereby (as applicable) and, or (iv) any Lender is a Defaulting Lender, 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, and consents required by, Section 10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that: (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in Section 10.06(b); (b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) 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); (c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter; (d) such assignment does not conflict with applicable Laws; and (e) in the case of any such assignment resulting from a Non-Consenting Lender's failure to consent to a proposed change, waiver, discharge or termination with respect to any Loan Document, the applicable replacement bank, financial institution or Fund consents to the proposed change, waiver, discharge or termination; provided that the failure by such Non-Consenting Lender to execute and deliver an Assignment and Assumption shall not impair the validity of the removal of such Non-Consenting Lender and the mandatory assignment of such Non-Consenting Lender's Revolving Commitments and outstanding Loans and -86-A/75013152.6 |
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participations in Swing Line Loans pursuant to this Section 10.13 shall nevertheless be effective without the execution by such Non-Consenting Lender of an Assignment and Assumption. A Lender shall not be required to make any such assignment or 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. 10.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. (b) SUBMISSION TO JURISDICTION.THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS 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 ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE 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 OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAlVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT 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 APPLICABLE LAW, THE DEFENSE -87-A/75013152.6 |
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OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 10.15 Waiver of Right to Trial by Jury. EACH PARTY HERETO HEREBY IRREVOCABLY WAlVES, 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 ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 10.16 Electronic Execution of Assignments and Certain Other Documents. The words "execution," "signed," "signature" and words of like import in any Assignment and Assumption or in any amendment or other modification hereof (including waivers and consents) 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, 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. 10.17 USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements ofthe USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or -88-A/75013152.6 |
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such Lender requests in order to comply with its ongoing obligations under applicable "know your customer" and anti-money laundering rules and regulations, including the Act. 10.18 No Advisory or Fiduciary Relationship. In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates' understanding, that: (a)(i) the arranging and other services regarding this Agreement provided by the Administrative Agent are arm's-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, on the other hand, (ii) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (b)(i) the Administrative Agent is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not and will not be acting as an advisor, agent or fiduciary, for the Borrower or any of Affiliates or any other Person and (ii) the Administrative Agent has no obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and its Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and the Administrative Agent has no obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases, any claims that it may have against the Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection transaction contemplated hereby. with any aspect of any [SIGNATURE PAGES FOLLOW] -89-N75013152.6 |
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. BORROWER: lNG PRIME RATE TRUST, a Massachusetts business trust By: Name: Elliot A. Rosen Title: Senior Vice President -90-N7SOtl l S1. |
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STATE STREET BANK AND TRUST COMPANY, as Administrative Agent ADMINISTRATIVE AGENT: /P. By: / /'P/"$--Name: Paul J. Koobatian Title: Vice President -91-Af/501 3152.6 |
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LENDERS: STATE STREET BANK AND TRUST COMPANY, as a Lender By: 5!7/ Name: Paul J. Koobatian Title: Vice President -92-A/75013152.6 |
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THE BANK OF NOVA SCOTIA, as a Lender and Syndication Agent Name: Thane Ratlew Tide: Nit:waging Director 95 Workshare Professional comparison of interwovenSile://1MANDMS/ACTIVI:175013152/5 and interwovenSite://IMANDMS/ACTIVE/75013152/6. Performed nn 7/17/2012. |
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Schedule 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES Applicable Percentage of Revolving Commitments Revolving Commitment Lender State Street Bank and Trust Company $220,000,000 55.000000000% The Bank of Nova Scotia $180,000,000 45.000000000% Aggregate Revolving Commitments: $400,000,000 100.000000000% -94-N75013152.6 |
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Schedule 5.17 IP RIGHTS NONE -95-N75013152.6 |
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Schedule 5.20(a) LOCATIONS OF REAL PROPERTY NONE -96-A/75013152.6 |
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Schedule 5.20(b) TAXPAYER AND ORGANIZATIONAL IDENTIFICATION NUMBERS EIN: 95-6874587 -97-N75013152.6 |
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Schedule 5.20(c) CHANGES IN LEGAL NAME, STATE OF FORMATION AND STRUCTURE NONE -98-A/75013152.6 |
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Schedule 7.01 LIENS EXISTING ON THE CLOSING DATE NONE -99-A/75013152.6 |
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Schedule 10.02 CERTAIN ADDRESSES FOR NOTICES 1. Address for the Borrower: Borrower: ING Prime Rate Trust 7337 E. Doubletree Ranch Road Scottsdale, Arizona 85258 Attention: Telephone: Facsimile: Elliot A. Rosen, Senior Vice President (480) 477-2220 (480) 477-2728 E-mail:ElliotRosen@inginvestment.com With copies to: ING Prime Rate Trust 7337 E. Doubletree Ranch Road Scottsdale, Arizona 85258 Attention: Telephone: Facsimile: William H. Rivoir III, Senior Vice President (480) 477-2114 (480) 477-2724 E-mail:Hank.Rivoir@inginvestment.com 2. Addresses for Administrative Agent and Swing Line Lender: Agent's Office: (for payments and requests) State Street Bank and Trust Company Customer Service Unit If such request is made via overnight mail (i.e. UPS, Federal Express, DHL or US Postal Express, then 4 Copley Place, 5th Floor Boston, MA 02116 If such request is made via regular mail (i.e. US Postal Service but not US Postal Express), then: State Street Bank and Trust Company Customer Service Unit Copley Place Tower, Box 5303 Boston, MA Attention: Telephone: Facsimile: E-mail: 02206 Eola A. Romano 617.662.8580 617.988.6677 earomano@statestreet.com Backup contact at State Street Bank and Trust Company: Attention: Robyn Shepard -100-A/75013152.6 |
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617.662.8575 617.988.6677 rashepard@statestreet.com Telephone: Facsimile: E-mail: Wiring instructions: State Street Bank and Trust Company Boston, MA ABA#: Acct #: Acct Name: 011-000-028 0006-3321 IS Loan Ops/CSU Ref: ING PRT Attn: R. Shepard Other Notices to Administrative Agent: For Overnight Mail: (i.e. UPS, Federal Express, DHL or US Postal Express) Paul J. Koobatian, Vice President State Street Bank and Trust Company Credit Services 4 Copley Place, 5th Floor Boston, MA 02116 Telephone: 617.662.8622 E-mail:pjkoobatian@statestreet.com For Regular Mail: (i.e. U.S. Postal Service, but not including US Postal Express) Paul J. Koobatian, Vice President State Street Bank and Trust Company Credit Services Copley Place Tower, Box 5303 Boston, MA 02206 Telephone: 617.662.8622 E-mail:pjkoobatian@statestreet.com For Notices as Swing Line Lender: (daily borrowing/repaying activity) State Street Bank and Trust Company Customer Service Unit If such request is made via overnight mail (i.e. UPS, Federal Express, DHL or US Postal Express, then 4 Copley Place, 5th Floor Boston, MA 02116 If such request is made via regular mail (i.e. US Postal Service but not US Postal Express), then: State Street Bank and Trust Company Customer Service Unit -101-N75013152.6 |
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Copley Place Tower, Box 5303 Boston, MA Attention: Telephone: Facsimile: E-mail: 02206 Eola A. Romano 617.662.8580 617.988.6677 earomano@statestreet.com Backup contact at State Street Bank and Trust Company: Attention: Telephone: Facsimile: E-mail: Robyn Shepard 617.662.8575 617.988.6677 rashepard@statestreet.com Wiring Instructions.. State Street Bank and Trust Company Boston, MA ABA #: Acct #: Acct Name: 011-000-028 0006-3321 IS Loan Ops/CSU Ref: Attn: fNG PRT R. Shepard -102-N750131S2.6 |
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EXHIBIT A [FORM OF] LOAN NOTICE Date: 201 To: State Street Bank and Trust Company, as Administrative Agent Re: Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among lNG Prime Rate Trust, a Massachusetts business trust (the "Borrower"), the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. Ladies and Gentlemen: The undersigned hereby requests (select all that apply): 1. 0 A Borrowing of Revolving Loans: (a) On , 201_ (which is a Business Day). (b) In the amount of $ _ (c) Type of Loan requested (select one): 0 Eurodollar Rate Loan 0 Base Rate Loan Rate 0 Overnight LIBOR (d) For Eurodollar Rate Loans: with an Interest Period of month[s]** ---. 2. 0 A conversion or continuation of Revolving Loans: (a) On , 201_ (which is a Business Day). (b) Amount to be converted$-----and/or amount to be continued$--Amount to be prepaid $ --(c) (d) Type(s) of Loan(s) to be converted and/or continued and Type(s) of Loan(s) requested: 0 continuation of Eurodollar Rate Loan * One, two, three or six months (or, during the thirty day period prior to the Maturity Date, one or two weeks). -103-A/75013152.6 |
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0 [insert Type(s) of Rate Loan [insert Type(s) of Loan [insert Type(s) of LIBOR Rate Loan(s)] to be converted to Eurodollar 0 Loan(s)] to be converted to Base Rate 0 Loan(s)] to be converted to Overnight (e) [s]*. For Eurodollar Rate Loans: with an Interest Period of month The Borrower hereby represents and warrants that (a) after giving effect to any Borrowing of Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment and (iii) the Outstanding Amount of all Overnight LIBOR Loans shall not exceed the Overnight LIBOR Loan Sublimit and (b) each of the conditions set forth in Section 4.02 of the Credit Agreement has been satisfied continuation. on and as of the date of such Borrowing, conversion or lNG PRIME RATE TRUST, a Massachusetts business trust By: ING Investment Management Co. LLC, its investment adviser By: Name: Title: -104-N75013152.6 |
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EXHIBIT B [FORM OF] SWING LINE LOAN NOTICE Date: 201 To: State Street Bank and Trust Company, as Swing Line Lender cc: State Street Bank and Trust Company, as Administrative Agent Re: Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among ING Prime Rate Trust, a Massachusetts business trust (the "Borrower"), the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. Ladies and Gentlemen: 1. The undersigned hereby requests a Swing Line Loan: 2. On , 201_ (a Business Day). 3. In the amount of$-----respect to such Borrowing of Swing Line Loans, the Borrower hereby With represents and warrants that (a) after giving effect to such Borrowing of Swing Line Loans, (i) the Total Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Revolving Commitment and (iii) the Outstanding Amount of all Swing Line Loans shall not exceed the Swing Line Sublimit and (b) each of the conditions set forth in Section 4.02 of the Credit Agreement has been satisfied on and as of the date of such Borrowing of Swing Line Loans. ING PRIME RATE TRUST, a Massachusetts business trust By: ING Investment Management Co. LLC, its investment adviser By: _ _ Name: Title: -105-A/75013152.6 |
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-106-A/750131 52.6 |
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EXHIBIT C [FORM OF] REVOLVING NOTE FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to or registered assigns (the "Lender"), in accordance with the provisions of the Amended and Restated Credit Agreement (as hereinafter defined), the principal amount of each Revolving Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among the Borrower, the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date of such Revolving Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. This Revolving Note is one ofthe Revolving Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note. THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. lNG PRIME RATE TRUST, a Massachusetts business trust By: _ Name: Title: -107-A/75013152.6 |
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EXHIBIT D [FORM OF] SWING LINE NOTE FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to STATE STREET BANK AND TRUST COMPANY or registered assigns (the "Swing Line Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Swing Line Loan from time to time made by the Swing Line Lender to the Borrower under that certain Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among the Borrower, the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. The Borrower promises to pay interest on the unpaid principal amount of each Swing Line Loan from the date of such Swing Line Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made in accordance with Section 2.03(f) of the Credit Agreement. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. This Swing Line Note is the Swing Line Note referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Swing Line Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Swing Line Loans made by the Swing Line Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Swing Line Lender may also attach schedules to this Swing Line Note and endorse thereon the date, amount and maturity of its Swing Line Loans and payments with respect thereto. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Swing Line Note. THIS SWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. lNG PRIME RATE TRUST, a Massachusetts business trust By: __ Name: Title: -108-A/75013152.6 |
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Exhibit E [FORM OF] COMPLIANCE CERTIFICATE Financial Statement Date: _J 201 To: State Street Bank and Trust Company, as Administrative Agent Re: Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among ING Prime Rate Trust, a Massachusetts business trust (the "Borrower"), the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. Ladies and Gentlemen: The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the of the Borrower, and that, in his/her capacity as such, he/she is authorized to execute and deliver this Compliance Certificate to the Administrative Agent on the behalf of the Borrower, and that: [Use the following paragraph 1 for semi-annual and fiscal year-end financial statements:] 1. [(a) [semi-annual] [Attached hereto as Schedule 1 are the][The] unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date [have been electronically delivered to the Administrative Agent pursuant to the conditions set forth in Section 6.02 of the Credit Agreement]. Such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.] [(a) [fiscal year-end] [Attached hereto as Schedule 1 are the][The] year-end audited financial statements required by Section 6.01Ca) of the Credit Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section [have been electronically delivered to the Administrative Agent pursuant to the conditions set forth in Section 6.02 of the Credit Agreement].] (b) Attached hereto as Schedule 2 is the published semi-annual report and asset statement, prepared in accordance with GAAP, required by Section 6.01(c) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date. [Use the following paragraph 1 for fiscal quarter-end financial statements: -109-N75013152.6 |
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[Attached hereto as Schedule 1 are the][The] unaudited financial statements 1. required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date [have been electronically delivered to the Administrative Agent pursuant to the conditions set forth in Section 6.02 of the Credit Agreement]. Such financial statements fairly present in all material respects the financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes. 2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made, a detailed review of the transactions and condition (financial or otherwise) of the Borrower during the accounting period covered by the attached financial statements. 3. A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and [select one.] [during such fiscal period, the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.] [or:] [the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:] 4. The representations and warranties of the Loan Parties contained in the Credit Agreement or any other Loan Document, are true and correct on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) respectively, of Section 6.01 ofthe Credit Agreement, including the statements in connection with which this Compliance Certificate is delivered. Set forth on Schedule mill hereto are true and accurate calculations demonstrating compliance with Section 7.10 of the Credit Agreement on and as of the date of this Compliance Certificate. 5. [select one:] -110-A/75013152.6 |
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[6. Set forth on Schedule [3][4] hereto is a true and accurate list as required by Section 6.02(h) of the Credit Agreement on and as of the date of this Compliance Certificate of (a) all applications by the Borrower for Copyrights, Patents or Trademarks (each such term as defined in the Security Agreement), (b) all issuances of registrations or letters on existing applications made by the Borrower for Copyrights, Patents and Trademarks and (c) all Trademark Licenses, Copyright Licenses and Patent Licenses (each such term as defined in the Security Agreement) entered into by the Borrower, in each case since the [date of the prior Compliance Certificate][Closing Date]]. [or.] [6. Since the [date of the prior Compliance Certificate] [Closing Date] (a) the Borrower has made no applications for Copyrights, Patents or Trademarks (each such term as defined. in the Security Agreement), (b) there have been no issuances of registrations or letters on existing applications made by the Borrower for Copyrights, Patents and Trademarks and (c) the Borrower has not entered into any Trademark Licenses, Copyright Licenses or Patent Licenses (each such term as defined in the Security Agreement).] IN WITNESS WHEREOF, the undersigned has executed this Compliance Certificate as of 201 ING PRIME RATE TRUST, a Massachusetts business trust By: ING Investment Management Co. LLC, its investment adviser By:. Name: Title: -111-A/75013152,6 |
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SCHEDULE [2][3] to Compliance Certificate FINANCIAL COVENANTS (Section 7.10 of the Credit Agreement) For the Quarter Year ended ("Statement Date") I. Asset Coverage Ratio [Section 7.10(a) of the Credit Agreement] (a) Adjusted Total Assets $. _ _ (i) Total Assets Ordinary Liabilities the excess, if any, of (A) the value of all assets of the Borrower that are subject to a lien (other than any Lien permitted by Section 7.0l(c), (d) or (e)) that are segregated or that are on deposit to satisfy margin requirements over (B) the sum of all Secured Liabilities of the Borrower and all Segregated Liabilities of the Borrower (ii) (iii) $ _ $. _ (iv) Adjusted [(i)-(ii)-(iii)] Total Assets $. _ _ (b) Excluded Assets (i) investments in mortgage-backed secuntles, asset backed securities, collateralized debt obligations or collateralized loan obligations the value of all Illiquid Investments of the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower the value of all Umated Investments (to include privately rated loans) of the Borrower in excess of 25% of the Adjusted Total Assets of the Borrower the value of all non-hedged non-U.S. Dollar denominated investments of the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower the aggregate value of all Illiquid Investments plus all Umated Investments (including all privately rated loans) plus all non-hedged non-U.S. Dollar denominated investments of the Borrower in excess of 30% of the Adjusted Total Assets of the Borrower the value of all Distressed Investments of the Borrower in excess of 10% of the Adjusted Total Assets of the Borrower the value of all investments of the Borrower in countries not members of the Organisation for Economic Cooperation and Development (OECD) in excess of 5% of the Adjusted Total Assets of the Borrower $._ _ (ii) $ _ (iii) $ _ (iv) $ _ (v) $ _ (vi) $. _ (vii) $. _ -112-N75013152.6 |
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(viii) the value of all Preferred Stock owned by the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower the value of all investments of the Borrower in a single issuer in excess of 5% of the Adjusted Total Assets of the Borrower (not including investments of the Borrower in up to three single issuers in which $ _ (ix) the value of each of such investments does exceed 7% of the Adjusted Total Assets of Borrower) the aggregate value of all investments of not the $. _ (x) the Borrower in companies engaged in any single industry in excess of 25% of the Adjusted Total Assets of the Borrower $ _ $ __ (xi) (xii) all Level 3 Assets of the Borrower Excluded Assets [(i) (ii) (iii) (iv) + (v) + (vi) + (vii) + (viii) (ix) + (x) +(xi)] $ _ (c) Adjusted Senior Debt (i) Senior Securities Representing Indebtedness of the Borrower Net liabilities of the Borrower under all Swap Contracts determined on a mark-to-market basis $ __ (ii) $ _ $. _ (iii) All Secured Liabilities All Segregated Liabilities $. __ (iv) $ _ (v) Adjusted Senior Debt [(i) + (ii) +(iii)+ (iv)] (d) Asset Coverage Ratio [((a)-(b)) I (c)] Minimum asset coverage required by Section 7.10(a) of the Credit Agreement: 300% Funding Obligations [Section 7.10(b) of the Credit Agreement] 2. (a) Unused portion of the Revolving Commitments $ (b) Cash Equivalents of the Borrower $ (c) (d) Sum of (a) and (b) $ Funding Obligations (i) the aggregate commitments of the Borrower to make loan advances to any Person or Person pursuant to debt or loan facilities $ (ii) the obligations of the Borrower monthly accrued interest expense to pay previous $ (iii) dividend payables of the Borrower $ (iv) Funding Obligations [(i) + (ii) + (iii)] -113-$ A/75013152.6 |
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2(c) must be greater than 2(d)(iv) at all times as required by Section 7.10(b) of the Credit Agreement -114-A/75013152.6 |
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Exhibit F [FORM OF] ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (this "Assignment and Assumption") is dated as of the Effective Date set forth below and is entered into by and between [the][each]1 Assignor identified in item 1 below ([the][each, an] "Assignor") and [the) [eachf Assignee identified in item 2 below ([the] [each, an] "Assignee"). [It is understood and agreed that the rights and obligations of [the Assignors] [the Assignees]3 hereunder are several and not joint.t Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the "Credit Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, [the] each] Assignor hereby irrevocably sells and assigns to [the Assignee] [the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor] [the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor's][the respective Assignors'] rights and obligations in [its capacity as a Lender] [their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor] [the respective Assignors] under the respective facilities identified below (including, without limitation, the Swing Line Loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)] [the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the] [any] Assignor to Ethel [any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the] [an] "Assigned Interest"). Each such sale and assignment is without recourse to Ethel [any] Assignor and, except as 1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. 2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. 3 Select as appropriate. 4 Include bracketed language if there are either multiple Assignors or multiple Assignees. '-115-A/75013152.6 |
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expressly provided in this Assignment warranty by [the][any] Assignor. and Assumption, without representation or 1. Assignor[s]: 2. Assignee[s]: [for each Assignee, indicate [Affiliate][Approved Fund] of [identijy Lender]] 3. Borrower: ING Prime Rate Trust, a Massachusetts business trust 4. Administrative Agent: State Street Bank and Trust Company, as the administrative Agreement agent under the Credit 5. Credit Agreement: Credit Agreement, dated as of July 23, 2012, among the Borrower, the Lenders from time to time party thereto, and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender 6. Assigned Interest: Aggregate Amount of Revolving Commitment/Loans for all Lenders7 Amount of Revolving Commitment/ Loans Assigned Percentage Assigned of Revolving Commitment/ Loans8 Assignor[s]5 Assignee[s]6 9 [7. Trade Date: 5 List each Assignor, as appropriate. 6 List each Assignee, as appropriate. 7 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. 8 Set forth, to at least 9 decimals, as a percentage ofthe Commitment/Loans of all Lenders thereunder. 9 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. -116-A/75013152.6 |
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Effective Date: 201_ [TO BE INSERTED BY ADMINISTRATfVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The terms set forth in this Assignment and Assumption are hereby agreed to: ASSIGNOR [NAME OF ASSIGNOR] By: _ Title: ASSJGNEE [NAME OF ASSIGNEE] By: _ _ Title: [Consented to and]10 Accepted: STATE STREET BANK AND TRUST COMPANY, as Administrative Agent By: __ Title: [Consented to:] ING PRIME RATE TRUST, a Massachusetts business trust By: _ Title: 10 To be added only if the consent of the Administrative Agent is required by the tenns of the Credit Agreement. -117-A/75013152.6 |
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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1 Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document. 1.2 Assignee. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 10.06(b)(ii) and (iv) of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(ii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the] [such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) 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 Assignment and Assumption and to purchase [the]such] Assigned Interest, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not -118-A/75013152.6 |
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taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. 2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the] [the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. 3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall accordance with, the law of the State ofNew York. be governed by, and construed in -119-N75013152.6 |
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Exhibit G [FORM OF] BORROWING BASE CERTIFICATE Date:-------Reference is made to the certain Credit Agreement dated as of July 23, 2012 (as extended, renewed, amended or restated from time to time, the "Credit Agreement"), among lNG Prime Rate Trust, a Massachusetts business trust, (the "Borrower"), the Lenders from time to time party thereto, and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Unless otherwise defined herein, capitalized terms used herein have the respective meanings assigned to them in the Credit Agreement. The undersigned Responsible Officer of the Borrower hereby certifies as of the date hereof that he/she is a/the [Insert Title] of the Borrower, and that, as such, he/she is authorized to execute and deliver this Borrowing Base Certificate to the Lenders and the Administrative Agent, and that: 1. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and conditions (financial or otherwise) of the Borrower during the accounting period covered by the attached financial statements. 2. The Borrower, during such period, has observed, performed or satisfied all of its covenants and other agreements, and satisfied every condition in the Credit Agreement to be observed, performed or satisfied by the Borrower, and no Default has occurred and is continuing. 3. The following financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the date of this Borrowing Base Certificate. 4. Set forth on Schedule 2 attached hereto is a true and accurate list identifying the assets held by the Borrower on and as of the date of this Borrowing Base Certificate. IN WITNESS WHEREOF, the undersigned has executed this Borrowing Base Certificate as of 201. lNG PRIME RATE TRUST, a Massachusetts business trust By: Name: Title: -120-A/75013152.6 |
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SCHEDULE 1 to Borrowing Base Certificate FINANCIAL COVENANTS For the Month ended ("Statement Date") 1. Asset Coverage Ratio [Section 7.10(a) of the Credit Agreement] (a) Adjusted Total Assets $ _ (i) (ii) (iii) Total Assets $ _ Ordinary Liabilities the excess, if any, of (A) the value of all assets of the Borrower that are subject to a lien (other than any Lien permitted by Section 7.0l(c), (d) or (e)) that are segregated or that are on deposit to satisfy margin requirements over (B) the sum of all Secured Liabilities of the Borrower and all Segregated Liabilities of the Borrower $ _ (iv) Adjusted [(i)-(ii) -(iii)] Total Assets $ _ (b) Excluded Assets (i) investments in mortgage-backed secuntles, asset backed securities, collateralized debt obligations or collateralized loan obligations the value of all Illiquid Investments of the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower the value of all Unrated Investments (to include privately rated loans) of the Borrower in excess of 25% of the Adjusted Total Assets of the Borrower the value of all non-hedged non-U.S. Dollar denominated investments of the Borrower in excess of 5% of the Adjusted Total Assets of the Borrower the aggregate value of all Illiquid Investments plus all Unrated Investments (including all privately rated loans) plus all non-hedged non-U.S. Dollar denominated investments of the Borrower in excess of 30% of the Adjusted Total Assets of the Borrower the value of all Distressed Investments of the Borrower in excess of 10% of the Adjusted Total Assets of the Borrower the value of all investments of the Borrower in countries not members of the Organisation for Economic Co-operation and Development (OECD) in excess of 5% of the Adjusted Total Assets of the Borrower the value of all Preferred Stock owned by the Borrower in excess of 5% of the Adjusted Total -121-$_ _ (ii) $ _ (iii) $_ _ (iv) $ _ (v) $ _ (vi) $. _ (vii) $ (viii) $ _ N75013152.6 |
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Assets of the Borrower the value of all investments of the Borrower in a single issuer in excess of 5% of the Adjusted Total Assets of the Borrower (not including investments of the Borrower in up to three single issuers in which (ix) the value of each of such investments does exceed 7% of the Adjusted Total Assets of Borrower) the aggregate value of all investments of not the $ _ (x) the Borrower m companies engaged industry in excess of 25% of the Assets of the Borrower in any single Adjusted Total $ _ $ _ (xi) (xii) all Level 3 Assets of the Borrower Excluded Assets [(i) (ii) (iii) (iv) + (v) + (vi) + (vii) + (viii) (ix) + (x) +(xi)] Adjusted Senior Debt $ _ (c) (i) Senior Securities Representing Indebtedness of the Borrower Net liabilities of the Borrower under all Swap Contracts determined on a mark-to-market basis All Secured Liabilities $ _ (ii) $ _ $ _ (iii) $ _ (iv) All Segregated Liabilities $ _ (v) Adjusted Senior Debt [(i) + (ii) +(iii)+ (iv)] Asset Coverage Ratio [((a)-(b)) I (c)] (d) Minimum asset coverage required by Section 7. 10(a) of the Credit Agreement: 300% 2. Funding Obligations [Section 7.10(b) of the Credit Agreement] $ _ (a) Unused portion of the Revolving Commitments $_ _ (b) Cash Equivalents of the Borrower $ _ (c) (d) Sum of(a) and (b) Funding Obligations (i) the aggregate commitments of the Borrower to make loan advances to any Person or Person pursuant to debt or loan facilities the obligations of the Borrower to pay previous monthly accrued interest expense $. _ (ii) $ _ $. _ (iii) (iv) dividend payables of the Borrower $. _ Funding Obligations [(i) + (ii) +(iii)] -122-N75013152.6 |
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2(c) must be greater than 2(d)(iv) at all times as required by Section 7.10(b) of the Credit Agreement -123-A/75013152 _ 6 |
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SCHEDULE2 to Borrowing Base Certificate ASSETS HELD BY THE BORROWER -124-A/75013152.6 |
Exhibit 99.(2)(k)(1)(i)
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FIRST AMENDMENT TO CREDIT AGREEMENT This First Amendment to Credit Agreement (this First Amendment) is made as of July 22, 2013, by and among lNG PRIME RATE TRUST, a Massachusetts business trust (the Borrower), and lending institutions party hereto and identified as Lenders in the Credit Agreement (as hereinafter defined) (the Lenders ) and State Street Bank and Trust Company in its capacity as administrative agent for the Lenders (in such capacity, the Administrative Agent), amending certain provisions of that certain Credit Agreement dated as of July 23, 2012 (as amended and in effect from time to time, the Credit Agreement) by and among the Borrower, the Lenders, the Administrative Agent and State Street Bank and Trust Company as Swing Line Lender (as such term is defined in the Credit Agreement). Terms not otherwise defined in the Credit Agreement shall have the same respective meanings herein as therein. WHEREAS, the Borrower and the Lenders desire to amend certain provisions of the Credit Agreement, all as provided more fully herein below; NOW, THEREFORE, in consideration ofthe premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: §1. Amendment to Section 1.01 of the Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended as follows: (a) The definitions of Aggregate Revolving Commitments , Change of Control , Eurodollar Base Rate , Maturity Date , 0vernight LIBOR Rate contained in , Section 1.01 of the Credit Agreement are each hereby amended by deleting each such definition in its entirety and restating it as follows: Aggregate Revolving Commitmentsmeans the Revolving Commitments of all the Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the First Amendment Closing Date is FOUR HUNDRED TWENTY FNE MILLION DOLLARS ($425,000,000). Change of Control means a change of control of the Investment Adviser which would constitute an assignment, within the meaning of the Act, of the Investment Management Agreement referred to in Section 5.22 or of the Administrative Agreement referred to in Section 5.22 (other than any assignment resulting solely from a public offering undertaken by lNG Groep N.V. with regard to its interest in lNG U.S., Inc.; provided that the Sub-Advisor to the Borrower both before and after such public offering is lNG Investment Management Co. LLC(or its successor) and that the principal members of the team managing the investments of the Borrower as of the Closing Date continue to so manage the investments of the Borrower after any such offering (a Permitted Public Offering). |
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Eurodollar Base Rate means: (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the British Bankers Association LIBOR Rate or the successor thereto if the British Bankers Association is no longer making a LIBOR rate available ("LIBOR"), as published by Reuters (or such other commercially available source providing quotations of LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two London Banking Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or, (ii) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted and with a term equivalent to such Interest Period would be offered by State Street Bank to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. (London time) two London Banking Days prior to the commencement of such Interest Period; and (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time determined two London Banking Days prior to such date for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made or maintained and with a term equal to one month would be offered by State Street Bank to major banks in the London interbank Eurodollar market at their request at the date and time of determination. Maturity Date means July 21,2014. ''Overnight LIBOR Rate means, with respect to an Overnight LIBOR Loan, the fluctuating rate equal to (a) the overnight LIBOR, as published by Reuters (or such other commercially available source providing quotations of the overnight LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time as of any London Banking Day for Dollar deposits or (b) if such rate is not available at such time for any reason, the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on any London Banking Day in same day funds in the approximate amount of the Overnight LIBOR Loan being made and would be offered by State Street Bank to major banks in the London interbank eurodollar market at their request at approximately 11:00 a.m. |
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(London time) as ofsuch London Banking Day prior to the commencement of the Borrowing. (b) The definition of Proposed IP0 is hereby deleted in its entirety. (c) Section 1.01 is further amended by inserting the following definitions in the appropriate alphabetical order: First Amendment Closing Date means July 22, 2013. Permitted Public Offering has the meaning specified in the definition of Change of Control §2. Amendment to Section 5.05 of the Credit Agreement. Section S.OS(d) of the Credit Agreement is hereby amended by deleting the words Since the date of the Audited Financial Statements which appear in Section S.OS(d) and substituting in place thereof the words Since February 28,2013 §3. Amendment to Section 6.12 of the Credit Agreement. Section 6.12 of the Credit Agreement is hereby amended by deleting the words from the Proposed IP0 which appear in the second sentence of Section 6.12 and substituting in place thereof the words from a Permitted Public Offering §4. Amendment to Section 8.01of the Credit Agreement. Section 8.01(k) of the Credit Agreement is hereby amended by deleting the words resulting from the Proposed IP0 which appear in Section 8.0l(k) and substituting in place thereof the words resulting from a Permitted Public Offering §5. Amendment to Schedule 2.01of the Credit Agreement. Schedule 2.01 to the Credit Agreement is hereby amended by deleting Schedule 2.01 in its entirety and replacing it with the Schedule 2.01attached hereto as Exhibit A. §6. Conditions to Effectiveness. This First Amendment will become effective as of the date hereof upon receipt by the Administrative Agent of the following: (a) fully-executed original counterparts of this First Amendment executed by the Borrower, the Lenders and the Administrative Agent; (b) fully executed amended and restated promissory notes from the Borrower to any Lender which is increasing its Revolving Commitment; (c) a duly completed and executed Form FR U-1 for any Lender increasing its Revolving Commitment; (d) the receipt by the Administrative Agent of signed certificate from a Responsible Officer of the Borrower in form and substance satisfactory to the Administrative Agent and dated the date hereof certifying (i) as to the incumbency of, and bearing manual specimen signatures of, the Responsible Officers of the |
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Borrower who are authorized to execute and take actions under this First Amendment and the Loan Documents for the Borrower (or a certification from such Responsible Officer that the Responsible Officers who were identified in the certificate dated July 23, 2012 and delivered to the Administrative Agent pursuant to Section 4.01(f)(ii) (the Closing Date Incumbency Certificate ) remain authorized to execute and take actions under this First Amendment and the Loan Documents), (ii) and attaching the Organizations Documents of the Borrower (or a certification from such Responsible Officer that no changes to the Organizational Documents have been made to any such documents since such documents were delivered to the Administrative Agent and attached to the certificate dated July 23, 2012 and delivered to Agreement), certification Agreement the Administrative Agent pursuant to Section 4.01(f)(i) of the Credit (iii) and attaching the Custody Agreement of the Borrower (or a from such Responsible Officer that no changes to the Custody has been made to the Custody Agreement delivered to the Administrative Agent and attached to the certificate dated July 23, 2012 and delivered to the Administrative Agent pursuant to Section 4.01(i) of the Credit Agreement), (iv) to and attaching a copy of the resolutions of the board of trustees of the Borrower approving and adopting this First Amendment and the documents being delivered in connection herewith to which the Borrower is a party and authorizing execution and delivery thereof, certified by a Responsible Officer of the Borrower to be true and correct and in force and effect as of the date hereof, and (v) that, before and after giving effect to the transactions contemplated hereby, (1) the representations and warranties made by the Borrower herein, in the Credit Agreement and each of the other Loan Documents are true and correct on and as of the date hereof, and with the same force and effect as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), and (2) no Default or Event of Default has occurred and is continuing; (e) a issued as of a Massachusetts; certificate of good standing and legal existence for the Borrower recent date from the Secretary of State of the Commonwealth of (f) a legal opinion dated as of the date hereof, of in-house to the Borrower, in form and substance reasonably satisfactory to the Lender; and (g) payment of any fees and expenses required to be paid in connection with the Loan Documents. §7. Representations and Warranties. The Borrower repeats, on and as of the date hereof, each of the representations and warranties made by it in Section 5 of the Credit Agreement, provided, that all references therein to the Credit Agreement shall refer to such Credit Agreement as amended hereby. In addition, the Borrower hereby represents and warrants that the execution and delivery by the Borrower of this First Amendment and the performance by the Borrower of all of its agreements and obligations under the Credit Agreement as amended hereby and the other Loan Documents to which it is a party are within the trust authority of the Borrower and have been duly authorized by all necessary trust action on the part of the Borrower. |
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§8. Ratification, Etc. Except as expressly amended hereby, the Credit Agreement and all documents, instruments and agreements related thereto, including, but not limited to the Security Agreement and the other Loan Documents, are hereby ratified and confirmed in all respects and shall continue in full force and effect. The Credit Agreement and this First Amendment shall be read and construed as a single agreement. All references in the Credit Agreement or any related agreement or instrument to the Credit Agreement shall hereafter refer to the Credit Agreement as amended hereby. This First Amendment shall constitute a Loan Document. §9. No Waiver. Nothing contained herein shall constitute a waiver of, impair or otherwise affect any obligation of the Borrower or any rights of the Lenders or the Administrative Agent consequent thereon. §10. Counterparts. This First Amendment may be executed in one or more counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. §11. Governing Law. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as a document under seal as of the date first above written. lNG PRIME RATE TRUST, a Massachusetts business trust BORROWER: By: (_ Name: Elliot A. Rosen Title:Senior Vice President |
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ADMINISTRATIVE AGENT: STATE STREET BANK AND TRUST COMPANY, as Administrative Agent By: Name: Paul J. Koobatian Title: Vice President |
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LENDERS: STATE STREET BANK AND TRUST COMPANY, as a Lender By: - --Name: Paul J. Koobatian Title: Vice President |
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THE BANK OF NOVA SCOTIA, as a Lender By/fl THANE RATTEW MANAGING DIRECTOR Name: Title: |
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Schedule 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES Applicable Percentage of Revolving Commitments Revolving Commitment Lender State Street Bank and Trust Company $235,000,000 55.2941176% The Bank of Nova Scotia $190,000,000 44.7058824% Aggregate Revolving Commitments: $425,000,000 100.0000000% N75635 74.2 |
Exhibit 99.(2)(k)(1)(ii)
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AMENDED AND RESTATED REVOLVING NOTE July 22, 2013 FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to STATE STREET BANK AND TRUST COMPANY or registered assigns (the "Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among the Borrower, the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date of such Revolving Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto. This Revolving Note constitutes the amendment and restatement in its entirety of the Revolving Note of the Borrower issued to the Lender dated July 23, 2012 (the "Original Note"), and is in substitution therefor and an amendment and replacement thereof. Nothing herein or in any other document shall be construed to constitute payment of the Original Note or to release or terminate any guaranty or lien, mortgage, pledge or other security entered in favor of the Bank. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note. A/75648336.1 |
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THIS REVOLVING NOTE SHALL BE GOVERNED BY AND ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. lNG PRIME RATE TRUST, a Massachusetts business Trust CONSTRUED IN By:_-Name: Tille: -L--"--=--=:..... j.. _ Elliot A. Rosen Senior Vice President N7SMH3361 |
Exhibit 99.(2)(k)(1)(iii)
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AMENDED AND RESTATED REVOLVING NOTE July 22, 2013 FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to pay to THE BANK OF NOVA SCOTIA or registered assigns (the "Lender"), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Revolving Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement dated as of July 23, 2012 (as amended, modified, supplemented or extended from time to time, the "Credit Agreement") among the Borrower, the Lenders from time to time party thereto and State Street Bank and Trust Company, as Administrative Agent and Swing Line Lender. Capitalized terms used but not otherwise defined herein have the meanings provided in the Credit Agreement. The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan from the date of such Revolving Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent's Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement. This Revolving Note is one of the Revolving Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto. This Revolving Note constitutes the amendment and restatement in its entirety of the Revolving Note of the Borrower issued to the Lender dated July 23, 2012 (the "Original Note"), and is in substitution therefor and an amendment and replacement thereof. Nothing herein or in any other document shall be construed to constitute payment of the Original Note or to release or terminate any guaranty or lien, mortgage, pledge or other security entered in favor of the Bank. The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and nonpayment of this Revolving Note. N75648336,1 |
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THIS REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. ING PRIME RATE TRUST, a Massachusetts business Trust b IN By:_ ,=--.C--::.+---""--'.,L----4.----- Name: Title: Elliot A. Rosen "Senior Vice President N7S6o1Hll6 I |
Exhibit 99.(2)(k)(1)(iv)
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SECOND AMENDMENT TO CREDIT AGREEMENT This Second Amendment to Credit Agreement (this Second Amendment) is made as of July 21, 2014, by and among VOYA PRIME RATE TRUST (f/k/ a lNG Prime Rate Trust), a Massachusetts business trust (the Borrower), and lending institutions party hereto and identified as ''Lenders in the Credit Agreement (as hereinafter defined) (the Lenders) and State Street Bank and Trust Company in its capacity as administrative agent for the Lenders (in such capacity, the Administrative Agent), amending certain provisions of that certain Credit Agreement dated as of July 23, 2012 (as amended and in effect from time to time, the Credit Agreement) by and among the Borrower, the Lenders, the Administrative Agent and State Street Bank and Trust Company as Swing Line Lender (as such term is defined in the Credit Agreement). Terms not otherwise defined in the Credit Agreement shall have the same respective meanings herein as therein. WHEREAS, the Borrower and the Lenders desire to amend certain provisions of the Credit Agreement, all as provided more fully herein below; NOW, THEREFORE, in consideration ofthe premises and the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: §1. Amendment to Section 1.01 of the Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended as follows: (a) The definitions of Aggregate Revolving Commitments, Applicable , Change of Control, Eurodollar Rate and Maturity Date contained in Section 1.01 of the Credit Agreement are each hereby amended by deleting each such definition in its entirety and restating it as follows: Aggregate Revolving Commitmentsmeans the Revolving Commitments of all the Lenders. The aggregate principal amount of the Aggregate Revolving Commitments in effect on the Second Amendment Closing Date is FOUR HUNDRED FORTY MILLION DOLLARS ($440,000,000). Applicable Rate means (a) with respect to Revolving Loans (i) that are Eurodollar Rate Loans or Overnight LIBOR Loans, 0.90% per annum and (ii) that are Base Rate Loans, 0.00% per annum and (b) with respect to Swing Line Loans, 0.90% per annum. Change of Control means a change of control of the Investment Adviser which would constitute an assignment, within the meaning of the Act, of the Investment Management Agreement referred to in Section 5.22 or of the Administrative Agreement referred to in Section 5.22 (other than any assignment resulting solely from a public offering undertaken by lNG Groep N.V. with regard to its interest in lNG U.S., Inc.; provided that |
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the Sub-Advisor to the Borrower both before and after such public offering is Voya Investment Management Co. LLC (f/k/ a lNG Investment Management Co. LLC) (or its successor) and that the principal members of the team managing the investments of the Borrower as of the Closing Date continue to so manage the investments of the Borrower after any such offering (a Permitted Public Offering'l Eurodollar Rate means (a) for any Interest Period with respect to any Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Eurodollar Rate Loan for such Interest Period by (ii) one minus the Eurodollar Reserve Percentage for such Eurodollar Rate Loan for such Interest Period and (b) for any day with respect to any Base Rate Loan bearing interest at a rate based on the Eurodollar Rate, a rate per annum determined by the Administrative Agent to be equal to the quotient obtained by dividing (i) the Eurodollar Base Rate for such Base Rate Loan for such day by (ii) one minus the Eurodollar Reserve Percentage for such Base Rate Loan for such day, provided, however, if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement. Maturity Date means July 20, 2015. (b) Section 1.01 is further amended by inserting the following definition in the appropriate alphabetical order: Second Amendment Closing Date means July 21, 2014. §2. Amendment to Section 5.22 of the Credit Agreement. Section 5.22 of the Credit Agreement is hereby amended by deleting Section 5.22 in its entirety and restating it as follows: 5.22. Advisory Contract. The Borrower's Investment Management Agreement with the Investment Adviser dated September 1, 2000, as amended September 2, 2004, and the Administrative Agreement with Voya Investments, LLC (f/k/a lNG Investments, LLC) dated April 7, 1997, are in the form delivered to the Administrative Agent and the Lenders. §3. Amendment to Article V of the Credit Agreement. Article V of the Credit Agreement is hereby by inserting immediately after the end of Section 5.23 the following new Section: 5.24. OFAC. Neither the Borrower nor any of the Borrower's Subsidiaries or any director, officer, employee, agent or affiliate of the Borrower or any of its |
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Subsidiaries is a Person that is, or is owned or controlled by Persons that are (x) the subject or target of any sanctions administered or enforced by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC"), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty's Treasury, or other relevant sanctions authority (collectively, "Sanctions") or (y) located, organized or resident of a country or territory that is, or whose government is, the subject of Sanctions (currently Cuba, Iran, North Korea, Sudan and Syria). §4. Amendment to Section 6.12 of the Credit Agreement. Section 6.12 of the Credit Agreement is hereby amended by deleting Section 6.12 in its entirety and restating it as follows: 6.12. Investment Adviser. To the extent permitted by applicable law, (a) shall at all times maintain Voya Investments, LLC (f/k/a lNG Investments, LLC) as its investment adviser (the "Investment Adviser"), or (b) if the contract by which such Investment Adviser is retained by the Borrower is terminated pursuant to or by reason of the operation of the Act, the Borrower's trustees or shareholders or any action taken by the SEC, the Investment Adviser shall continue to serve as the Borrower's investment adviser, with or without a fee, and a successor investment adviser shall thereafter be approved, within 120 days of such termination, in the manner provided by the Act and with the consent of the Required Lenders. Notwithstanding anything to the contrary contained herein, a termination of the investment advisory agreement of the Borrower resulting from a Permitted Public Offering and the operation of the Investment Company Act of 1940 shall not constitute a breach of this Section 6.12 so long as immediately upon such termination the Borrower shall have entered into a new investment advisory agreement with Voya Investments, LLC (f/k/ a lNG Investments, LLC) on substantially identical terms as such terminated agreement. §5. Amendment to Article VII of the Credit Agreement. Article VII of the Credit Agreement is hereby by inserting immediately after the end of Section 7.13 the following new Section: 7.14. OFAC Covenant. The Borrower will not, directly or indirectly use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (ii) in any other manner that would result in a violation of |
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Sanctions by any Person (including any Person participating in the Loans, whether as underwriter, advisor, investor or otherwise). §6. Amendment to Section 8.01 of the Credit Agreement. Section 8.01(k) of the Credit Agreement is hereby amended by deleting Section 8.01(k) in its entirety and restating it as follows: (k) Investment Adviser. Voya Investments, LLC(f/k/a lNG Investments, LLC) shall no longer be the Investment Adviser and the Required Lenders have not consented to a successor investment adviser, provided, that a termination of the investment advisory agreement of the Borrower resulting from a Permitted Public Offering and the operation of the Investment Company Act of 1940 shall not constitute an Event of Default for purposes of this paragraph (k) so long as immediately upon such termination the Borrower shall have entered into a new investment advisory agreement with VoyaInvestments, LLC (f/k/a lNG Investments, LLC) on substantially identical terms as such terminated agreement; or §7. Amendment to Schedule 2.01of the Credit Agreement. Schedule 2.01 to the Credit Agreement is hereby amended by deleting Schedule 2.01 in its entirety and replacing it with the Schedule 2.01attached hereto as Exhibit A. §8. Conditions to Effectiveness. This Second Amendment will become effective as of the date hereof upon receipt by the Administrative Agent of the following: (a) fully-executed original counterparts ofthis Second Amendment executed by the Borrower, the Lenders and the Administrative Agent; (b) fully executed amended and restated promissory notes from the Borrower to any Lender which is increasing its Revolving Commitment; (c) a duly completed and executed Form FR U-1 for any Lender increasing its Revolving Commitment; (d) the receipt by the Administrative Agent of signed certificate from a Responsible Officer of the Borrower in form and substance satisfactory to the Administrative Agent and dated the date hereof certifying (i) as to the incumbency of, and bearing manual specimen signatures of, the Responsible Officers of the Borrower or other authorized persons who are authorized to execute and take actions under this Second Amendment and the Loan Documents for the Borrower (or a certification from such Responsible Officer that the Responsible Officers and other persons who were identified in the certificate dated July 23, 2013 and delivered to the Administrative Agent pursuant to Section 6(d) of the First Amendment to Credit Agreement dated July 23, 2013 (the First Amendment Certificate ), as supplemented by that certain Delegation Certificate dated June 10, 2014 and delivered to the Administrative Agent remain authorized to execute and take actions under this Second Amendment and the Loan Documents), (ii) and attaching the Organizations |
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Documents of the Borrower (or a certification from such Responsible Officer that no changes to the Organizational Documents have been made to any such documents since such documents were delivered to the Administrative Agent and attached to the First Amendment Certificate), (iii) and attaching the Custody Agreement of the Borrower (or a certification from such Responsible Officer that no changes to the Custody Agreement has been made to the Custody Agreement delivered to the Administrative Agent and attached to the certificate dated July 23, 2012 and delivered to the Administrative Agent pursuant to Section 4.01(i) of the Credit Agreement), (iv) to and attaching a copy of the resolutions of the board of trustees of the Borrower approving and adopting this Second Amendment and the documents being delivered in connection herewith to which the Borrower is a party and authorizing execution and delivery thereof, certified by a Responsible Officer of the Borrower to be true and correct and in force and effect as of the date hereof, and (v) that, before and after giving effect to the transactions contemplated hereby, (1) the representations and warranties made by the Borrower herein, in the Credit Agreement and each of the other Loan Documents are true and correct on and as of the date hereof, and with the same force and effect as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), and (2) no Default or Event of Default has occurred and is continuing; (e) a certificate of good standing and legal existence for the Borrower issued as of a recent date from the Secretary of State of the Commonwealth of Massachusetts; (f) a legal opmwn dated as of the date hereof, of in-house to the Borrower, in form and substance reasonably satisfactory to the Lender; and (g) payment of any fees and expenses required to be paid in connection with the Loan Documents. §9. Representations and Warranties. The Borrower repeats, on and as of the date hereof, each of the representations and warranties made by it in Section 5 of the Credit Agreement, provided, that all references therein to the Credit Agreement shall refer to such Credit Agreement as amended hereby. In addition, the Borrower hereby represents and warrants that the execution and delivery by the Borrower of this Second Amendment and the performance by the Borrower of all of its agreements and obligations under the Credit Agreement as amended hereby and the other Loan Documents to which it is a party are within the trust authority of the Borrower and have been duly authorized by all necessary trust action on the part of the Borrower. §10. Ratification, Etc. Except as expressly amended hereby, the Credit Agreement and all documents, instruments and agreements related thereto, including, but not limited to the Security Agreement and the other Loan Documents, are hereby ratified and confirmed in all respects and shall continue in full force and effect. The Credit Agreement and this Second Amendment shall be read and construed as a single agreement. All references in the Credit Agreement or any related agreement or |
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instrument to the Credit Agreement shall hereafter refer to the Credit Agreement as amended hereby. This Second Amendment shall constitute a Loan Document. §11. No Waiver. Nothing contained herein shall constitute a waiver of, impair or otherwise affect any obligation of the Borrower or any rights of the Lenders or the Administrative Agent consequent thereon. §12. Counterparts. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. §13. Governing Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. |
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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as a document under seal as of the date first above written. BORROWER: VOYA PRIME RATE TRUST (f/k/a ING Prime Rate Trust), a Massachusetts business trust By: ---..:=------Name: Elliot A. Rosen Title: Senior Vice President |
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ADMINISTRATIVE AGENT: STATE STREET BANK AND TRUST COMPANY, as Administrative Agent By: ------------------Name: Paul J. Koobatian Title: Vice President |
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LENDERS: STATE STREET BANK AND TRUST COMPANY, as a Lender By: _ Name: Paul J. Koobatian Title: Vice President |
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THE BANK OF NOVA SCOTIA, as a Lender By:/ '--_-: Name :Thane Rattew Title: Managing Director |
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Schedule 2.01 COMMITMENTS AND APPLICABLE PERCENTAGES Applicable Percentage of Revolving Commitments Revolving Commitment Lender $293,000,000 66.5909091% State Street Bank and Trust Company The Bank of Nova Scotia $147,000,000 33.4090909% Aggregate Revolving Commitments: $440,000,000 100.0000000% N76229004.2 |
Exhibit 99.(2)(l)(1)
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June 26, 2015 |
Voya Prime Rate Trust
7337 East Doubletree Ranch Road, Suite100
Scottsdale, Arizona 85258
Ladies and Gentlemen:
This opinion is b eing furnished in connection with the Registration Statement on Form N-2 (the Registration Statement) being filed today by Voya Prime Rate Trust (the Trust) under the Securities Act of 1933 and the Investment Company Act of 1940 (file no. 811-05410), each as amended, relating to the to the issuance and sale by the Trust of authorized shares of beneficial interest in the amount designated on the facing sheet of the Registration Statement under the Securities Act of 1933, as amended.
In connection with this opinion, we have examined such certificates, documents, and records and have made such investigation of fact and such examination of law as we have deemed appropriate in order to enable us to render the opinion set forth herein. In conducting such investigation, we have relied, without independent verification, upon certificates of officers of the Trust, public officials and other appropriate persons.
We were not involved in the organization of the Trust. We have not examined independently the question of what law would govern the interpretation or enforcement of any provision of the Agreement and Declaration of Trust, as amended, and have for this purpose assumed that the Trust is a duly established and validly existing unincorporated voluntary association with transferable shares under Massachusetts law (commonly known as a Massachusetts business trust) and that the interpretation and enforcement of each provision of the Agreement and Declaration of Trust will be governed by the laws of the Commonwealth of Massachusetts.
We have made such examination of Massachusetts law as we have deemed relevant for purposes of this opinion. We express no opinion as to the effect of laws, rules, and regulations of any state or jurisdiction other than the Commonwealth of Massachusetts.
Based upon and subject to the foregoing, we are of the opinion that the shares being registered pursuant to the Registration Statement have been duly authorized by all necessary action on the part of the Trust and that, when the Shares are issued and paid for as contemplated in the Registration Statement, such Shares will be validly issued, fully paid, and, except as described in the following paragraph, nonassessable by the Trust.
Under Massachusetts law, shareholders of a Massachusetts business trust could, under certain circumstances, be held personally liable for the obligations of the trust. However, the Agreement and Declaration of Trust disclaims liability of any shareholder in connection with any obligation or liability of the Trust. The Agreement and Declaration of Trust provides that in case any shareholder or former shareholder shall be held personally liable solely by reason of being or having been a shareholder and not because of his or her acts or omissions or for some other reason, the shareholder or former shareholder shall be entitled to be held harmless from and indemnified against all loss and expense arising from such liability. The indemnification required by the preceding sentence shall be made only out of the assets of the one or more series of which the shareholder who is entitled to indemnification is or was a shareholder at the time the act or event occurred which gave rise to the claim against or liability of said shareholder. Thus, the risk of a shareholders incurring financial loss on account of shareholder liability should be limited to circumstances in which the particular series itself would be unable to meet its obligations.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm as legal counsel for the Trust in the Registration Statement. This consent shall not constitute an acknowledgment that we are within the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, and the rules and regulations thereunder.
We consent to the filing of this opinion as an exhibit to the Registration Statement.
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Very truly yours, |
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/s/ Ropes & Gray LLP |
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Ropes & Gray LLP |
Exhibit 99.(2)(n)(1)
CONSENT OF COUNSEL
We hereby consent to the use of our name and the references to our firm under the caption Legal Counsel included in or made a part of Pre-Effective Amendment No. 1 to the Registration Statement of Voya Prime Rate Trust (File No. 333-203653), on Form N-2 under the Securities Act of 1933, as amended.
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/s/ Ropes & Gray LLP |
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Ropes & Gray LLP |
Boston, MA
June 24, 2015
Exhibit 99.(2)(n)(2)
Consent of Independent Registered Public Accounting Firm
The Board of Trustees
Voya Prime Rate Trust
We consent to the use of our report dated April 27, 2015, with respect to the financial statements of Voya Prime Rate Trust, incorporated herein by reference, and to the references to our firm under the headings Financial Highlights and Independent Registered Public Accounting Firm in the Prospectuses and Independent Registered Public Accounting Firm in the Statement of Additional Information.
/s/ KPMG LLP
Boston, Massachusetts
June 23, 2015
(2)(r)(1)
Amended January 1, 2015
Code of Ethics
of
Voya Financial, Inc.
Voya Investments, LL
C
Voya Investment Management Co
.
LLC
Directed Services LL
C
Voya Investment Management (UK) Limited
Voya Alternative Asset Management LL
C
Pomona Management, LL
C
Voya Investments Distributor, LLC
Voya Realty Group, LLC
Voya Investment Trust Co
.
Voya funds
A. Adoption of Code of Ethics
This Code of Ethics ( the Code) has been adopted by each of the registered investment companies advised by Voya Investments LLC (or an affiliate) and operating under the Voya funds umbrella (the Voya funds) and by each of the following Voya Entities (collectively, referred to as Voya Entities):
Voya Investment Management LLC
Voya Investments LLC
Voya Investment Management Co. LLC
Directed Services LLC
Voya Alternative Asset Management LLC
Pomona Management, LLC
Voya Investments Distributor, LLC
Voya Realty Group, LLC
Voya Investment Trust Co.
Voya Investment Management (UK) Limited
The provisions of the Code are applicable to all directors, trustees, officers and persons employed or appointed by one or more of the Voya Entities as well as their immediate family members living in such designated persons household (collectively, referred to as Employees) unless otherwise noted.
In addition, the Code is applicable to the trustees/directors of each of the Voya funds (the Voya Funds Directors).
All Employees and the Directors of the Voya funds (collectively, referred to as Covered Persons) will be provided with a copy of this Code upon employment with the Voya Entities or appointment and notified when any material amendments are made to the Code.
The Code is not intended to supersede or otherwise replace the Voya Code of Business Conduct and Ethics. All of the policies and guidelines contained in the Voya Code of Business Conduct and Ethics shall remain in full force and effect as to Employees.
B. Statement of Fiduciary Standards
A fiduciary is a person or organization that manages money or property for another, usually a client, and, as a result, has a legal duty to act in the best interests of that client. This Code is based on the overriding principle that the Employees have a fiduciary duty to clients, including the Voya funds, while the Directors of the Voya funds have a fiduciary duty only to the Voya funds. Accordingly, Covered Persons shall conduct their activities in accordance with the following standards:
1 Clients Interests Come First . In the course of fulfilling their duties and responsibilities, Covered Persons must at all times place the interests of the clients (or, in the case of the Directors of the Voya funds, the Voya funds) first. In particular, Covered Persons shall avoid putting their own personal interests ahead of the interests of a client.
2 Conflicts of Interest Shall Be Avoided. Covered Persons must avoid any situations involving an actual or potential conflict of interest or possible impropriety with respect to their duties and responsibilities to, in the case of an Employee, a Voya Entity or a client of a Voya Entity., or in the case of a Director of the Voya funds, the Voya funds.
3 Compromising Situations Shall Be Avoided. Covered Persons shall never take advantage of their position of trust and responsibility. Covered Persons must avoid any situation that might compromise or call into question their exercise of full independent judgment in the best interests of clients.
All activities of Covered Persons shall be guided by, and adhere to, these fiduciary standards. The remainder of this Code sets forth specific rules and procedures that are consistent with these fiduciary standards. However, all activities by Employees are required to conform to these standards regardless of whether the activity is specifically covered in this Code. Any violation of the Code by an Employee may include but not be limited to reprimand, suspension, disgorgement of trading profits and termination of employment.
C. Duty of Confidentiality
Covered Persons must keep confidential any non-public information regarding Voya, a Voya Entity, a Voya fund, and any client or any entity whose securities they know or should know are under investment review by a portfolio management team acting on behalf of a Voya Entity. Covered Persons have the highest fiduciary obligation not to reveal confidential information of any nature to any party that does not have an explicitly clear and compelling need to know such information.
D. Covered Persons Duty to Comply with Federal Securities Laws
Voya Entities activities are governed by the federal securities laws, including the Investment Advisers Act of 1940, as amended (the Advisers Act) and the Investment Company Act of 1940, as amended. Covered Persons are expected to adhere to the federal securities laws, whether or not the activity is specifically covered in this Code.
E. Prohibitions on Insider Trading
1 Trading on Knowledge of Clients Activities. Covered Persons are prohibited from taking advantage of their knowledge of recent or impending research generated by a Voya Entity or securities activities of clients. In particular, Covered Persons are prohibited from trading (purchasing, selling or disposing in any manner, including by gift, directly or indirectly) any security when they have actual knowledge that the security is being purchased or sold, or considered for purchase or sale, on behalf of a client account. This prohibition applies to all securities in which a Covered Person has acquired, or will acquire, beneficial ownership. For these purposes, a Covered Person is considered to have beneficial ownership in all securities
over which the Covered Person enjoys economic benefits substantially equivalent to ownership (for example, securities held in trust for the persons benefit), regardless of who is the registered owner.
2 Trading on Knowledge of Material Non-Public Information. All Covered Persons are prohibited from taking personal advantage of their knowledge of material non-public information, particularly buying or selling any security while in the possession of material non-public information about the issuer of the security. The Code also prohibits Covered Persons from communicating to outside parties any material non-public information about any security or the company that issues the security.
(a) Identifying Material Non-Public Information.
Material Information. Information is material when there is a substantial likelihood that a reasonable investor would consider it important when making investment decisions. Generally, this is information that, if disclosed, would have an effect on the price of a companys securities.
Material information often relates to a companys results and operations, including dividend changes, earnings results, changes in previously released estimates, merger or acquisition proposals, major litigation, liquidity problems and management developments. Material information may also relate to the market for a companys securities. Information about a significant order to purchase or sell securities may also be deemed material.
Unfortunately, there is no simple test to determine when information is material. You are encouraged to direct any questions to the Voya IM Compliance Department.
Non-Public Information. Information is considered public when it has been circulated broadly to investors in the marketplace. Tangible evidence of such circulation is the best indication that the information is public. For example, information can be considered public when it has been made available through a public filing with a regulatory body, or through a mainstream media source such as The Wall Street Journal.
(b) Reporting Material Non-Public Information . Before executing any trade for yourself or a client, you must determine whether you have knowledge of any material non-public information. If you think you might have such knowledge, you must:
· Report the information and proposed trade immediately to the Voya IM Compliance Department;
· Refrain from trading in the security on behalf of yourself or clients; and
· Refrain from communicating the information to anyone outside or inside of the Voya Entities other than the Voya IM Compliance Department.
The Voya IM Compliance Department, in consultation with the Law Department, will
determine whether the information is material and non-public and, if so, what actions need to be taken.
3. Disciplinary Sanctions. Trading securities while in the possession of material non-public information, or improperly communicating that information, may expose you and the Voya Entities to stringent penalties, including fines, suspensions and imprisonment. Regardless of whether a government inquiry occurs, the Voya Entities view seriously any violations of this Code.
F. Additional Personal Trading Restrictions
The restrictions of this section apply to all Employees, covered under the personal trading policies and procedures of Voya Investment Management (Voya IM), and to accounts over which they have the authority to make investment decisions, for all transactions involving securities.
1. Pre-Clearance of Securities Transactions. Except for the transactions listed below, approval must be obtained from the Voya IM Compliance Department before entering an order to buy or sell or transfer securities by gift. An approval to trade is only valid on the business day it is received (note: such approvals terminate at 4 p.m. Eastern Time on the date such approval is granted) . If you receive an approval and do not complete the trade that same day, you must seek pre-clearance to complete the trade the next (or any subsequent) business day. Except as noted below, an approval must be received for every transaction. Pre-clearance approvals for securities traded on a U.S. exchange or in a U.S. market are effective until the close of business on the day that your pre-clearance request has been approved. Pre-clearance approvals for securities traded on a foreign exchange or in a foreign market are effective until the close of business on the business day following approval of your pre-clearance request. If you want to modify your trade request previously submitted in any way (e.g., date of execution or share quantity), you must submit a new pre-clearance request.
The Voya Entities utilize a vendor system to process personal trading. All preclearance requests shall be made via the system, which can be accessed at: https:/voya.ptaconnect.com/
Employees assigned portfolio management or trading responsibility are prohibited from knowingly buying or selling the same security traded in an associated client account for a period of 15 days (7 days prior to the client trade and 7 days after the client trade).
Private Placement investment personnel must obtain pre-clearance to purchase or sell private placements.
2. Pre-Clearance and Holding Period Requirements for Voya Financial, Inc. securities.
Employees must obtain pre-clearance for transactions involving Voya Financial Inc. securities, including:
· Open market purchases and sales;
· Gifting or making a charitable contribution of your holdings;
· Transactions in the Voya Company Stock Fund in the 401k ( other than automatic purchases made pursuant to an established payroll-deduction program); or
· Sales of Restricted Stock (other than the immediate sales upon vesting of securities).
Employees who wish to transact in Voya securities should consider the following before seeking pre-clearance and transacting:
· Voya Securities must be held for a minimum of 60 calendar days from the acquisition date, including the Voya Company Stock Fund in Voya 401K accounts.
· Employees are prohibited from shorting any securities issued by Voya.
· Employees are prohibited from trading securities issued by Voya during the Closed Period for Voya Financial Instruments , including trades in Voya 401k accounts.
· Employees are prohibited from automatic rebalancing of the Voya Company Stock Fund in Voya 401k accounts.
Warning: Failure to Pre-Clear will result in sanctions including suspension of personal trading privileges! Be alert that transactions, including rebalances, involving the Voya Company Stock Fund held in your Voya 401k account without pre-clearance will trigger a violation.
3. Exceptions to Pre-Clearance of Securities Transactions.
· Direct obligations of the Government of the United States;
· High quality short-term debt instruments, including bankers acceptances, bank certificates of deposit, commercial paper, money market securities and repurchase agreements;
· Shares of open-end funds, including shares held in Voyas 401(k) plan (as defined in Section G, below);
· Transactions in accounts over which an Employee has no direct or indirect control or influence (managed or discretionary accounts);
· Transactions under any incentive compensation plan sponsored by the Voya Entities;
· Transactions made through an automatic dividend reinvestment plan,
automatic payroll deduction or similar program (excluding Self Directed Brokerage Accounts) where the timing of purchases and sales is controlled by someone other than the Employee;
· An exercise of pro-rata rights issued by a company to all the holders of a class of its securities;
· Transactions involving foreign commodity futures;
· On any given day, transactions involving 100 shares or less (per account) of common stock issued by companies included in the S&P 500 Index; and
· On any given day, transactions involving 100 shares or less (per account) of Exchange-Traded Funds.
While the securities transactions noted above may not need to be pre-cleared, they may need to be held and reported in accordance with the reporting requirements set forth in Section H., below.
4. Prohibition on Initial Public Offerings. Employees are prohibited from acquiring securities in initial public offerings; except for transactions made pursuant to an employee incentive compensation, retention or other program put in place by a Voya Entity.
5. Restrictions on Private Placements. Employees are prohibited from acquiring non-public securities (a private placement) without the prior approval of the Voya IM Compliance Department. If an Employee is granted approval to make such a personal investment, that Employee will not participate in any consideration of whether clients should invest in the same issuers public or non-public securities.
6. Prohibition on Short-Term Trading Profits. Employees are prohibited from profiting from the purchase and sale, or sale and purchase, of the same (or related) securities or exchangetraded funds as well as shares of Voya open-end funds. Profits made in connection with short-term trades may be subject to disgorgement.
Holding period requirements are as follows:
· Shares of securities (including, Voya Company Stock Fund, individual stocks, bonds, closed-end funds, derivatives, etc.) must be held for 60 calendar days from the purchase date.
· Shares of exchange-traded funds must be held for 30 calendar days from the purchase date.
· Shares of Voya open-end funds (including 401 k transactions other than those involving the Voya Company Stock Fund) must be held for 30
calendar days from the purchase date. Note: The 30 day holding period for shares of Voya open-end mutual funds is measured from the time of the most recent purchase of the shares of the relevant Voya fund.
7. Prohibition of Short Selling Voya Securities. Employees are prohibited from shorting any securities issued by Voya Financial of its or any majority owned subsidiaries (Voya Securities), either directly or indirectly, including the use of derivatives transactions. For avoidance of doubt, this prohibition includes writing a covered call option against Voya Securities.
8. Prohibition of Trading in Voya Securities during the Closed Period. Employees are prohibited from trading Voya Securities, including the Voya Company Stock Fund in Voyas 401k Plan, during the Closed Period for Voyas Financial Instruments as set forth by Voya Financial. The Voya Closed Periods are set forth on the vendor system utilized to process personal trading requests, which can be accessed at: https://voya.ptaconnect.com/
G. TRANSACTIONS IN VOYA FUND SHARES
The following restrictions and requirements apply to all purchases and sales of shares of open-end funds issued by the Voya funds other than money market and short-term bond funds (Voya fund Shares) and all holdings of Voya fund Shares by Covered Persons, including those in which they have a beneficial ownership interest, except as provided below.
These restrictions and requirements do not apply to purchases of Voya fund Shares through (1) an automatic dividend reinvestment plan; or (2) through any other automatic investment plan, automatic payroll deduction plan, or other automatic plan approved by the Voya IM Compliance Department.
Compliance with Prospectus.
All transactions in Voya fund Shares must be in accordance with the policies and procedures set forth in the Prospectus and Statement of Additional Information for the relevant fund, including but not limited to the funds policies and procedures relating to short term trading and forward pricing of securities.
Additional Restrictions
Certain Covered Persons may be considered insiders to a closed-end Voya fund. In such cases, these persons will be notified of their status as well as advised of additional restrictions imposed on them and their ability to transact in such Voya closed-end fund.
Solely to facilitate compliance with timely Form 4 and 5 filing requirements with the Securities and Exchange Commission, all such insiders must submit a written report of any transaction involving a closed-end Voya fund on the trade date of such transaction to the
Voya IM Compliance Department.
H. Reporting Requirements
1. Disinterested Directors/Trustees
Voya funds Directors who are not deemed to be interested persons (as that term is defined under the Investment Company Act of 1940, as amended (IC Act) of a Voya fund, its investment adviser or the advisers affiliate (the Disinterested Directors) must submit a quarterly report containing the information set forth in paragraph 2, below, only with respect to those transactions for which such person knew or, in the ordinary course of fulfilling his or her official duties as a Disinterested Director, should have known, that during the 15-day period immediately before or after the Disinterested Directors transaction in securities that are otherwise subject to the reporting requirements described herein, an applicable Voya und had purchased or sold the security at issue or that an investment adviser or sub-adviser for an applicable Voya fund had considered purchasing or selling such security.
2. Employees
Personal Securities Holdings and Transactions. The requirements of this section apply to all Employees for all holdings and transactions involving securities in which the Employee acquired, or will acquire, beneficial ownership (economic benefits equivalent to ownership, such as securities held in trust for the Employees benefit, regardless of who is the registered owner) .
However, these reporting requirements do not apply to holdings or transactions involving the following excluded securities:
· direct obligations of the Government of the United States;
· high quality short-term debt instruments, including bankers acceptances, bank certificates of deposit, commercial paper, money market securities and repurchase agreements; and
· shares of open-end mutual funds that are not managed by the Voya Entities.
a. Initial Disclosure of Personal Holdings. Employees are required to disclose all their personal securities holdings to the Voya IM Compliance Department within 10 days of commencing employment with a Voya Entity.
b. Securities Transaction Records. Employees should be aware that the Voya Entities maintain a list of designated broker-dealers with whom Employees may maintain a brokerage account. Employees shall notify the Voya IM Compliance Department if they intend to open, or have opened, a brokerage account. If requested, Employees shall direct their brokers to supply Compliance with duplicate confirmation statements of their securities transactions and copies of all periodic statements for their accounts.
c. Quarterly Account and Transaction Reports. Employees are required to submit a
report listing their securities transactions made during the previous quarter within 30 days of the end of each calendar quarter and of the end of each calendar quarter.
d. Annual Holdings Report. Employees are required to submit a report listing all securities held as of December 31 of the year reported within 30 days of the end of the calendar year.
e. Information to be Reported . Employees are required to provide the following information when submitting reports as required by a. through d., above:
i. Initial and Annual Holdings Reports must include the :
· title or description and type of security, the exchange ticker symbol or CUSIP number, the number of shares or principal amount of each security;
· broker-dealer or bank where accounts are held; and
· date the report is submitted.
ii. Quarterly Transaction Reports must include the :
· title or description and type of security, the exchange ticker symbol or CUSIP number, the number of shares and principal amount of each security (as well as the interest rate and maturity date, if applicable);
· trade date and type of transaction (i.e. buy, sell, open, close, etc.);
· price of the security;
· broker-dealer or bank account through which the transaction was effected; and
· date the report is submitted.
f. All reports, other than the Initial Disclosure of Personal Holdings, shall be made via the vendor system, which can be accessed at: https://voya.ptaconnect.com/
3. Employees
Receipt of Gifts or Entertainment. No Employee may receive any gift or entertainment from any one person or entity doing business with the Voya Entities in contravention of the Voya IM Gift & Entertainment Policy. Employees who receive a gift or entertainment from any person or entity that raises potential issues under the Voya IM Gift & Entertainment Policy must immediately contact the Voya IM Compliance Department to determine the proper handling of such gift. Employees should refer to the Voya IM Gift & Entertainment Policy.
Outside Activities. Employees are expected to devote their full business day to the business of the Voya Entities. In addition, no one may make use of their position as an Employee, make use of information acquired during employment, or make personal investments in a manner that may create a conflict, or the appearance of a conflict, between the Employees personal interests and
the interests of the Voya Entities or their clients. All Outside Activities requests shall be submitted via the vendor system the Voya Entities utilize, which can be accessed https://voya.ptaconnect.com/.
To assist in ensuring that such conflicts are avoided, an Employee must obtain the written approval of the Employees supervising manager and the Voya IM Compliance Department prior to an Employee personally:
· Serving as a director, officer, general partner or trustee of, or as a consultant to, any business, corporation or partnership, including family-owned businesses and charitable, non-profit and political organizations;
· Forming or participating in any stockholders or creditors committee (other than on behalf of Voya Entities) that purports to represent security holders or claimants in connection with a bankruptcy or distressed situation or in making demands for changes in the management or policies of any company, or becoming actively involved in a proxy contest; or
· Making any monetary investment in any non-publicly traded business, corporation or partnership, including passive investments in private companies.
In addition, every Employee of the Voya Entities must obtain the written approval of their supervisor and the Voya IM Compliance Department prior to:
· Receiving compensation of any nature, directly or indirectly, from any person, firm, corporation, estate, trust or association, other than the Voya Entities, whether as a fee, commission, bonus or other consideration such as stock, options or warrants;
· Accepting a second job of any kind or engaging in any other business outside of the Voya Entities; or
· Participating as a plaintiff, defendant or witness in any non-family related litigation or arbitration.
Every Employee is also required to disclose to the Voya IM Compliance Department if any of their immediate family members hold positions as directors or executive officers of any public company. Limitations may be placed on an Employees investment activities in the event an Employees immediate family member holds such a position.
Similarly, every Employee is required to maintain the data reported in connection with an outside activity and notify the Voya IM Compliance Department in the event of any change to the employees outside activity after initial approval.
4. Covered Persons
Certification of Compliance. All Covered Persons are required to certify to the Voya IM Compliance Department annually, or whenever this Code is materially amended, that they
have:
· read and understand the provisions contained in the Code;
· complied with all the requirements of the Code; and
· reported all transactional information required by the Code.
I. The Voya Entities Duty of Confidentiality
All information submitted by a Covered Person to the Voya IM Compliance Department pursuant to this Code will be treated as confidential information. It may, however, be made available to senior management, governmental and governmental agencies with regulatory authority over the Voya Entities, as well as to the Voya funds Directors, and each of their auditors and legal advisors, as appropriate.
J. Violations of the Code
Employees are required to report any known or suspected violations of the Code to the Voya IM Compliance Department immediately. An Employee who violates this Code or fails to report a violation of the Code may be subject to sanctions. For example, if the same security is purchased or sold on the same day by an Employee, the Employee may be required to disgorge profits to charity. In addition, any Employee that violates the Codes pre-clearance or transaction reporting provisions may also be suspended from further trading for a period.
K. Exceptions to the Code
Exceptions to the Code will only be made under extraordinary circumstances. No exception may be granted for those sections of the Code that are mandated by regulation.
Exceptions may be made only upon prior request, and no exception will be granted subsequent to a violation of the Code. To be granted an exception to the Code, a written request regarding the nature of the exception must be made and submitted to Voya IMs Chief Compliance Officer and approved by she or he and a member of Voya IMs Management Committee. Exceptions to the Code shall be reported as applicable to the Chief Compliance Officer of the Voya funds and the Voya funds Directors.