NOTICE OF PROPOSED FIRST SUPPLEMENTAL INDENTURE KVK CLO LTD. KVK CLO LLC

Transcription

1 Corporate Trust Services 9062 Old Annapolis Road Columbia, MD MAC: R NOTICE OF PROPOSED FIRST SUPPLEMENTAL INDENTURE KVK CLO LTD. KVK CLO LLC To: The Parties Listed on Schedule I hereto. June 24, 2015 Ladies and Gentlemen: Reference is made to that certain Indenture dated as of May 21, 2015 (as amended, modified or supplemented, the Indenture ) among KVK CLO LTD., as Issuer (the Issuer ), KVK CLO LLC, as Co-Issuer (the Co-Issuer, and together with the Issuer, the Co-Issuers ), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the Trustee ). Capitalized terms used herein without definition shall have the meanings given to such terms in the Indenture. I. Notice to Nominees and Custodians. If you act as or hold Notes as a nominee or custodian for or on behalf of other persons, please transmit this notice immediately to the beneficial owner of such Notes or such other representative who is authorized to take actions. Your failure to act promptly in compliance with this paragraph may impair the chance of the beneficial owners on whose behalf you act to take any appropriate actions concerning the matters described in this notice. II. Notice of Proposed First Supplemental Indenture. Pursuant to Section 8.3(c) of the Indenture, the Trustee hereby provides notice of a proposed first supplemental indenture to be entered into pursuant to Sections 8.1(a)(ii) and 8.1(b) of the Indenture (the First Supplemental Indenture ), which will supplement the Indenture according to its terms and which will be executed by the Issuer, the Co-Issuer, and the Trustee upon satisfaction of all conditions precedent set forth in the Indenture and the First Supplemental Indenture. A copy of the proposed First Supplemental Indenture is attached hereto as Exhibit A. Should any Holder of the Class A Notes, as of the Notice Record Date defined below, wish to notify the Trustee, pursuant to Section 8.1(b) of the Indenture, that such Holder objects to the execution of the First Supplemental Indenture, such Holder should notify the Trustee in writing on or before 5:00 p.m. ET on July 21, 2015 at the address set forth below. Further, should any Holder of the Class A Notes or Class B Notes, as of the Notice Record Date defined below, wish to notify the Trustee, pursuant to Section 8.3(h) of the Indenture, that such Class would be materially and adversely affected by the execution of the First Supplemental Indenture, please notify the Trustee in writing on or before 5:00 p.m. ET on July 23, 2015 at the address set forth below. (Any such notice described in this paragraph, an Objection.)

2 Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, MD Tel: Fax: Attention: Maire Farrell The Notice Record Date for determining the Holders entitled to receive this Notice of Proposed First Supplemental Indenture and to deliver an Objection shall be June 24, THE TRUSTEE MAKES NO STATEMENT AS TO THE RIGHTS OF THE HOLDERS OF THE NOTES IN RESPECT OF THE FIRST SUPPLEMENTAL INDENTURE AND MAKES NO RECOMMENDATIONS AS TO ANY ACTION TO BE TAKEN WITH RESPECT TO THE FIRST SUPPLEMENTAL INDENTURE. HOLDERS ARE ADVISED TO CONSULT THEIR OWN LEGAL OR INVESTMENT ADVISOR. All completed Objections and any questions should be directed to the attention of Maire Farrell by telephone at (410) , by at by facsimile at (866) , or by mail addressed to Wells Fargo Bank, National Association, Collateralized Debt Obligations, Attn.: Maire Farrell, MAC R , 9062 Old Annapolis, Columbia, MD The Trustee may conclude that a specific response to particular inquiries from individual Holders is not consistent with equal and full dissemination of material information to all Holders. Holders of Notes should not rely on the Trustee as their sole source of information. The Trustee does not make recommendations or give investment advice herein or as to the Notes generally. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee 2

3 Schedule I Addressees Holders of Notes: 48274TAA2, 48274TAC8, 48274TAE4, 48274TAG9, 48274UAA9, G90005AA0, G90005AB8, G90005AC6 Issuer: KVK CLO Ltd. c/o Deutsche Bank (Cayman) Limited Boundary Hall, Cricket Square P.O. Box 1984, Cayman Islands Attn: The Directors admin.cayman@db.com Co-Issuer: KVK CLO LLC c/o Puglisi & Associates 850 Library Avenue, Suite 204 Newark, Delaware Attn: Independent Manager Collateral Manager: Kramer Van Kirk Credit Strategies LP 200 West Monroe Street, Suite 1330 Chicago, Illinois Attn: David Cifonelli Collateral Administrator/Information Agent: Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland Rating Agency: Moody s: cdomonitoring@moodys.com Irish Stock Exchange: 28 Anglesea Street Dublin 2, Ireland The Trustee shall not be responsible for the use of the CUSIP, CINS, ISIN or Common Code numbers selected, nor is any representation made as to their correctness indicated in the notice or as printed on any Note. The numbers are included solely for the convenience of the Holders. 3

4 EXHIBIT A PROPOSED FIRST SUPPLEMENTAL INDENTURE 4

5 This FIRST SUPPLEMENTAL INDENTURE dated as of [ ], 2015 (this Supplemental Indenture ) to the Indenture dated as of May 21, 2015 (as amended, supplemented, restated and otherwise modified from time to time, the Indenture ) is entered into among KVK CLO Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the Issuer ), KVK CLO LLC, a limited liability company organized under the laws of the State of Delaware (the Co-Issuer and, together with the Issuer, the Co-Issuers ), and Wells Fargo Bank, National Association, a national banking association, as trustee under the Indenture (together with its successors in such capacity, the Trustee ). Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Indenture. WHEREAS, pursuant to Section 8.1(a)(ii) of the Indenture, the Trustee and the Co- Issuers may enter into one or more indentures supplemental to the Indenture to add to the covenants of the Co-Issuers or the Trustee for the benefit of the Secured Parties without the consent of the Holders of any Notes; WHEREAS, pursuant to Section 8.1(b) of the Indenture, the Trustee and the Co-Issuers may enter into one or more indentures supplemental to the Indenture to correct any inconsistency or cure any ambiguity, omission or manifest errors in the Indenture if written notice of a supplemental indenture implementing such changes shall have been given to the Class A Holders by the Trustee, and on or prior to the third (3rd) Business Day preceding the proposed execution of such supplemental indenture the Trustee shall not have received written notice from a Majority of the Class A Holders objecting to such supplemental indenture, and upon satisfaction of certain other conditions set forth in the Indenture; WHEREAS, pursuant to Section 8.3(h) of the Indenture, if Holders of at least 33-1/3% of the Aggregate Outstanding Amount of the Class A Notes or the Class B Notes have provided notice to the Trustee (with a copy to the Collateral Manager) at least one Business Day prior to the proposed execution date of any supplemental indenture that such Class would be materially and adversely affected thereby, the Trustee and the Co-Issuers shall not enter into such supplemental indenture unless consent is obtained from a Majority of such Class; WHEREAS, the Co-Issuers wish to amend the Indenture as set forth in this Supplemental Indenture and have requested that the Trustee execute and deliver this Supplemental Indenture; and WHEREAS, the conditions set forth for entry into a supplemental indenture pursuant to Sections 8.1 and 8.3 of the Indenture have been satisfied; NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties agree as follows: I. Amendments pursuant to Section 8.1(a)(ii) of the Indenture. Effective as of the date hereof, the following amendment is made to the Indenture: (a) Section 7.18(c) of the Indenture is amended by inserting the following after the first sentence thereof:

6 Within 10 Business Days after the Effective Date, the Issuer shall cause the Trustee to make available on the Trustee s Website for any Holder and, upon written notice to the Trustee, any beneficial owner of a Note, the Moody s Effective Date Report. II. Amendments pursuant to Section 8.1(b) of the Indenture. Effective as of the date hereof, the following amendments, which have not been objected to by a Majority of the Class A Holders, are made to the Indenture: (a) Section 1.1 of the Indenture is amended by modifying the definition of S&P Rating by deleting the definition in its entirety and replacing it with the following: S&P Rating : With respect to any Collateral Obligation, the rating determined pursuant to the methodology set forth in the definition of S&P Rating on Schedule 5 hereto. (b) Section 12.2(b)(iii) of the Indenture is amended by deleting it in its entirety and replacing it with the following: either (a) the Weighted Average Life Test is satisfied or (b)(i) the Weighted Average Life Test was satisfied as of the last Business Day of the Reinvestment Period and (ii) the Weighted Average Life Test is maintained or improved (as compared with prior to receipt of prepayment proceeds or sale proceeds of Credit Risk Obligations provided that in the event such Credit Risk Obligation was a Credit Amendment Obligation, the measurement of the Weighted Average Life Test shall be based on the original stated maturity of such Credit Amendment Obligation applicable thereto immediately prior to giving effect to the most recent Credit Amendment which resulted in such Collateral Obligation being classified as a Credit Amendment Obligation) provided further that if as of the last Business Day of the Reinvestment Period (i) the Weighted Average Life was less than the sum of (x) the Weighted Average Life requirement of the Weighted Average Life Test applicable thereto and (y) 0.5 years and (ii) the Weighted Average Moody's Rating Factor was below 3000, clause (b)(i) of this paragraph shall be deemed to have been satisfied; III. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, EXCLUDING THE CONFLICTS OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS AND OF THE NEW YORK GENERAL OBLIGATIONS LAW). IV. Execution in Counterparts. This Supplemental Indenture may be executed and delivered in counterparts, each of which will be deemed an original, and all of which together constitute one and the same instrument. Delivery of an executed counterpart of this Supplemental Indenture by (PDF) or telecopy shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture. 2

7 V. Concerning the Trustee. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Co-Issuers, and the Trustee assumes no responsibility for their correctness. The Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity, execution or sufficiency of this Supplemental Indenture and makes no representation with respect thereto. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct of or affecting the liability of or affording protection to the Trustee. VI. No Other Changes. Except as explicitly provided herein, the Indenture shall remain unchanged and in full force and effect, and each reference to the Indenture and words of similar import in the Indenture, as amended hereby, shall be a reference to the Indenture as amended hereby and as the same may be further amended, supplemented and otherwise modified and in effect from time to time. This Supplemental Indenture may be used to create a conformed amended and restated Indenture for the convenience of administration by the parties hereto. VII. Execution, Delivery and Validity. Each of the Co-Issuers represents and warrants to the Trustee that this Supplemental Indenture has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. VIII. Binding Effect. This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IX. Direction to the Trustee. The Issuer hereby directs the Trustee to execute this Supplemental Indenture and acknowledges and agrees that the Trustee will be fully protected in relying upon the foregoing direction. [Signature Page Follows] 3

8 IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written. KVK CLO LTD., as Issuer By: Name: Title: KVK Supplemental Indenture

9 KVK CLO LLC, as Co-Issuer By: Name: Donald J. Puglisi Title: Manager KVK Supplemental Indenture

10 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: KVK Supplemental Indenture

11 CONSENTED AND AGREED KRAMER VAN KIRK CREDIT STRATEGIES LP, as Collateral Manager By: KVK Services LLC, its General Partner By: Name: Title: KVK Supplemental Indenture

12 Corporate Trust Services 9062 Old Annapolis Road Columbia, MD MAC: R NOTICE OF PROPOSED SECOND SUPPLEMENTAL INDENTURE AND REQUEST FOR CONSENT KVK CLO LTD. KVK CLO LLC CONSENT MATERIAL To: The Parties Listed on Schedule I hereto. June 24, 2015 Ladies and Gentlemen: Reference is made to that certain Indenture dated as of May 21, 2015 (as amended, modified or supplemented, the Indenture ) among KVK CLO LTD., as Issuer (the Issuer ), KVK CLO LLC, as Co-Issuer (the Co-Issuer, and together with the Issuer, the Co-Issuers ), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as trustee (the Trustee ). Capitalized terms used herein without definition shall have the meanings given to such terms in the Indenture. I. Notice to Nominees and Custodians. If you act as or hold Notes as a nominee or custodian for or on behalf of other persons, please transmit this notice immediately to the beneficial owner of such Notes or such other representative who is authorized to take actions. Your failure to act promptly in compliance with this paragraph may impair the chance of the beneficial owners on whose behalf you act to take any appropriate actions concerning the matters described in this notice. II. Notice of Proposed Second Supplemental Indenture. Pursuant to Section 8.3(c) of the Indenture, the Trustee hereby provides notice of a proposed second supplemental indenture to be entered into pursuant to Section 8.2(a) of the Indenture (the Second Supplemental Indenture ), which will supplement the Indenture according to its terms and which will be executed by the Issuer, the Co-Issuer, and the Trustee upon satisfaction of all conditions precedent set forth in the Indenture and the Second Supplemental Indenture. A copy of the proposed Second Supplemental Indenture is attached hereto as Exhibit A. III. Request for Consent to Proposed Supplemental Indenture. The written consent (the Consent ) of a Majority of each Class of Rated Notes and a Majority of the Subordinated Notes is being requested for the execution of the proposed Second Supplemental Indenture. Accordingly, Holders of Notes, as of the Notice Record Date defined

13 below, that wish to consent to the Second Supplemental Indenture must deliver such Consent, in the form attached as Exhibit B hereto, to the Trustee by 5:00 pm ET on July 24, 2015 which is 30 days from the date of this notice, at the address set forth in the Consent. The Notice Record Date for determining the Holders entitled to receive this Notice of Proposed Second Supplemental Indenture and Request for Consent and to deliver a Consent shall be June 24, THE TRUSTEE MAKES NO STATEMENT AS TO THE RIGHTS OF THE HOLDERS OF THE NOTES IN RESPECT OF THE SECOND SUPPLEMENTAL INDENTURE AND MAKES NO RECOMMENDATIONS AS TO ANY ACTION TO BE TAKEN WITH RESPECT TO THE SECOND SUPPLEMENTAL INDENTURE. HOLDERS ARE ADVISED TO CONSULT THEIR OWN LEGAL OR INVESTMENT ADVISOR. All completed Consents and any questions should be directed to the attention of Maire Farrell by telephone at (410) , by at maire.farrell@wellsfargo.com, by facsimile at (866) , or by mail addressed to Wells Fargo Bank, National Association, Collateralized Debt Obligations, Attn.: Maire Farrell, MAC R , 9062 Old Annapolis, Columbia, MD The Trustee may conclude that a specific response to particular inquiries from individual Holders is not consistent with equal and full dissemination of material information to all Holders. Holders of Notes should not rely on the Trustee as their sole source of information. The Trustee does not make recommendations or give investment advice herein or as to the Notes generally. WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee 2

14 Schedule I Addressees Holders of Notes: 48274TAA2, 48274TAC8, 48274TAE4, 48274TAG9, 48274UAA9, G90005AA0, G90005AB8, G90005AC6 Issuer: KVK CLO Ltd. c/o Deutsche Bank (Cayman) Limited Boundary Hall, Cricket Square P.O. Box 1984, Cayman Islands Attn: The Directors admin.cayman@db.com Co-Issuer: KVK CLO LLC c/o Puglisi & Associates 850 Library Avenue, Suite 204 Newark, Delaware Attn: Independent Manager Collateral Manager: Kramer Van Kirk Credit Strategies LP 200 West Monroe Street, Suite 1330 Chicago, Illinois Attn: David Cifonelli Collateral Administrator/Information Agent: Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, Maryland Rating Agency: Moody s: cdomonitoring@moodys.com Irish Stock Exchange: 28 Anglesea Street Dublin 2, Ireland The Trustee shall not be responsible for the use of the CUSIP, CINS, ISIN or Common Code numbers selected, nor is any representation made as to their correctness indicated in the notice or as printed on any Note. The numbers are included solely for the convenience of the Holders. 3

15 EXHIBIT A PROPOSED SECOND SUPPLEMENTAL INDENTURE 4

16 This SECOND SUPPLEMENTAL INDENTURE dated as of [ ], 2015 (this Supplemental Indenture ) to the Indenture dated as of May 21, 2015 (as amended, supplemented, restated and otherwise modified from time to time, the Indenture ) is entered into among KVK CLO Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the Issuer ), KVK CLO LLC, a limited liability company organized under the laws of the State of Delaware (the Co-Issuer and, together with the Issuer, the Co-Issuers ), and Wells Fargo Bank, National Association, a national banking association, as trustee under the Indenture (together with its successors in such capacity, the Trustee ). Capitalized terms used but not otherwise defined herein shall have the respective meanings set forth in the Indenture. WHEREAS, pursuant to Section 8.2(a) of the Indenture, the Trustee and the Co-Issuers may enter into one or more indentures supplemental to the Indenture to add provisions to, or change in any manner or eliminate any provisions of, the Indenture or modify in any manner the rights of the Holders of the Notes of such Class with (i) the consent of a Majority of the Rated Notes of each Class of Notes materially adversely affected thereby, (ii) the consent of a Majority of the Subordinated Notes and (iii) satisfaction of certain other conditions set forth in the Indenture; WHEREAS, the Co-Issuers wish to amend the Indenture as set forth in this Supplemental Indenture and have requested that the Trustee execute and deliver this Supplemental Indenture; and WHEREAS, the conditions set forth for entry into a supplemental indenture pursuant to Sections 8.2 and 8.3 of the Indenture have been satisfied; NOW, THEREFORE, in consideration of the mutual agreements herein set forth, the parties agree as follows: I. Amendments. Effective as of the date hereof, the following amendment, which has been consented to by a Majority of each Class of Rated Notes and a Majority of the Subordinated Notes, is made to the Indenture: (a) The definition of Defaulted Obligation is amended by deleting 7.5% and replacing it with 5.0%. II. Governing Law. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH, AND THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, EXCLUDING THE CONFLICTS OF LAWS PROVISIONS THEREOF (OTHER THAN SECTIONS AND OF THE NEW YORK GENERAL OBLIGATIONS LAW). III. Execution in Counterparts. This Supplemental Indenture may be executed and delivered in counterparts, each of which will be deemed an original, and all of which together constitute one and the same

17 instrument. Delivery of an executed counterpart of this Supplemental Indenture by (PDF) or telecopy shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture. IV. Concerning the Trustee. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Co-Issuers, and the Trustee assumes no responsibility for their correctness. The Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity, execution or sufficiency of this Supplemental Indenture and makes no representation with respect thereto. In entering into this Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct of or affecting the liability of or affording protection to the Trustee. V. No Other Changes. Except as explicitly provided herein, the Indenture shall remain unchanged and in full force and effect, and each reference to the Indenture and words of similar import in the Indenture, as amended hereby, shall be a reference to the Indenture as amended hereby and as the same may be further amended, supplemented and otherwise modified and in effect from time to time. This Supplemental Indenture may be used to create a conformed amended and restated Indenture for the convenience of administration by the parties hereto. VI. Execution, Delivery and Validity. Each of the Co-Issuers represents and warrants to the Trustee that this Supplemental Indenture has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. VII. Binding Effect. This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. VIII. Direction to the Trustee. The Issuer hereby directs the Trustee to execute this Supplemental Indenture and acknowledges and agrees that the Trustee will be fully protected in relying upon the foregoing direction. [Signature Page Follows] 2

18 IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written. KVK CLO LTD., as Issuer By: Name: Title: KVK Supplemental Indenture

19 KVK CLO LLC, as Co-Issuer By: Name: Donald J. Puglisi Title: Manager KVK Supplemental Indenture

20 WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee By: Name: Title: KVK Supplemental Indenture

21 CONSENTED AND AGREED KRAMER VAN KIRK CREDIT STRATEGIES LP, as Collateral Manager By: KVK Services LLC, its General Partner By: Name: Title: KVK Supplemental Indenture

22 EXHIBIT B CONSENT TO SECOND SUPPLEMENTAL INDENTURE PLEASE RETURN THIS DIRECTION BY MAIL AND FACSIMILE OR TRANSMISSION TO WELLS FARGO BANK, NATIONAL ASSOCIATION no later than 5:00 p.m. Eastern Time on July 24, 2015 Wells Fargo Bank, National Association 9062 Old Annapolis Road Columbia, MD Tel: Fax: maire.farrell@wellsfargo.com Attention: Maire Farrell Reference is hereby made to (i) that certain Indenture dated as of May 21, 2015 (as amended, modified or supplemented, the Indenture ) among KVK CLO Ltd., as Issuer (the Issuer ), KVK CLO LLC, as Co-Issuer (the Co-Issuer, and together with the Issuer, the Co-Issuers ), and Wells Fargo Bank, National Association, as trustee (the Trustee ) and (ii) that certain Notice of Proposed Second Supplemental Indenture and Request for Consent dated as of June 24, 2015 (the "Notice") from the Trustee. Capitalized terms used herein and not otherwise defined have the respective meanings given to them in the Indenture and the Notice. 1. The undersigned hereby represents and warrants to Wells Fargo Bank, National Association, as Trustee, that, as of June 24, 2015, the Notice Record Date, the following is correct and true and that the undersigned is authorized to execute this Consent on behalf of the Holder: (Insert name of the Holder) Original Outstanding Amount of Notes Held Class: Cusip: Name of Nominee/Custodian: DTC Participant # (if applicable): Address: Contact Name: Phone: 5

23 2. Check this box if you are filling out this Consent as a nominee for the Holder. 3. The undersigned Holder hereby (check one): CONSENTS to the execution of the Second Supplemental Indenture attached as Exhibit A to the Notice. DOES NOT CONSENT to the execution of the Second Supplemental Indenture attached as Exhibit A to the Notice. ANY AFFIRMATIVE CONSENT DELIVERED TO THE TRUSTEE SHALL BE IRREVOCABLE WHEN RECEIVED VIA ELECTRONIC TRANSMISSION OR ORIGINAL AND WILL BE BINDING ON ANY TRANSFEREE OF THE NOTES. Dated: (Signature of Holder or Representative/Nominee thereof) Name: Title: Signature Guaranteed [MEDALLION SIGNATURE GUARANTY] 6