OCTAGON INVESTMENT PARTNERS 28, LTD. OCTAGON INVESTMENT PARTNERS 28, LLC CONSENT MATERIAL

Transcription

1 OCTAGON INVESTMENT PARTNERS 28, LTD. OCTAGON INVESTMENT PARTNERS 28, LLC CONSENT MATERIAL NOTICE OF PROPOSED THIRD SUPPLEMENTAL INDENTURE AND REQUEST FOR CONSENT FROM THE HOLDERS OF SUBORDINATED NOTES Date of Notice: February 19, 2019 Notice Record Date: February 19, 2019 NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE REGISTERED AND BENEFICIAL OWNERS OF THE NOTES. IF APPLICABLE, ALL DEPOSITORIES, CUSTODIANS, AND OTHER INTERMEDIARIES RECEIVING THIS NOTICE ARE REQUESTED TO EXPEDITE RE-TRANSMITTAL TO BENEFICIAL OWNERS OF THE NOTES IN A TIMELY MANNER. To: The Holders of the Notes (collectively, the Notes ) as described on the attached Schedule A and to those Additional Parties listed on Schedule B hereto: Reference is made to that certain Indenture, dated as of October 13, 2016 (as amended by the First Supplemental Indenture, dated as of May 21, 2018, and the Second Supplemental Indenture, dated as of November 29, 2018, and as further amended, restated, supplemented or otherwise modified from time to time, the Indenture ), by and among OCTAGON INVESTMENT PARTNERS 28, Ltd., as issuer (the Issuer ), OCTAGON INVESTMENT PARTNERS 28, LLC, as co-issuer (the Co-Issuer and, together with the Issuer, the Co- Issuers ), and U.S. Bank National Association, as trustee (the Trustee ). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. Notice of Proposed Third Supplemental Indenture Pursuant to Section 8.3(a) of the Indenture, on behalf of and at the cost of the Co-Issuers, the Trustee hereby provides this notice of a proposed Third Supplemental Indenture (substantially in the form attached hereto as Exhibit A) (the Third Supplemental Indenture ) to the Collateral Manager, the Collateral Administrator, the Holders and the Rating Agencies. The Trustee has been informed that the Co-Issuers desire, subject to satisfaction of the conditions precedent set forth in the indenture, to amend the Indenture as set forth in the proposed Third Supplemental Indenture in order to, among other things, amend the definition of Subordinated Notes Internal Rate of Return.

2 Request for Consent from Holders of a Subordinated Notes to the Third Supplemental Indenture Each Holder of Subordinated Notes is hereby requested to (i) consent to the Third Supplemental Indenture and (ii) return a complete and executed copy of the consent attached hereto as Exhibit B to the Trustee as soon as possible and, in any event, no later than 5:00 p.m. EST on March 12, 2019, which is fifteen (15) Business Days from the date of this Notice. * THE TRUSTEE MAKES NO STATEMENT AS TO THE RIGHTS OF THE HOLDERS IN RESPECT OF THE THIRD SUPPLEMENTAL INDENTURE AND ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE CONTENTS OR SUFFICIENCY OF THE THIRD SUPPLEMENTAL INDENTURE AND MAKES NO RECOMMENDATIONS AS TO ANY ACTION TO BE TAKEN WITH RESPECT TO THE THIRD SUPPLEMENTAL INDENTURE. HOLDERS ARE ADVISED TO CONSULT THEIR OWN LEGAL OR INVESTMENT ADVISOR. Recipients of this Notice should carefully consider the information contained in this Notice (including the accompanying Third Supplemental Indenture) together with, as applicable, their respective legal, regulatory, tax, accounting, investment and other advisors. This Notice does not furnish legal, regulatory, tax, accounting, investment or other advice to any recipient. This Notice is being sent to Holders by U.S. Bank National Association in its capacity as Trustee at the request of the Issuer. Questions may be directed to the Trustee by contacting Brenna Sears at telephone (617) or by at brenna.sears@usbank.com. The CUSIP and ISIN numbers appearing in this notice are included solely for the convenience of the Holders. The Trustee is not responsible for the selection or use of the CUSIP or ISIN numbers, or for the accuracy or correctness of CUSIP or ISIN numbers printed on the Notes or as indicated in this notice. Recipients of this notice are cautioned that this notice is not evidence that the Trustee will recognize the recipient as a Holder. Under the Indenture, the Trustee is required only to recognize and treat the person in whose name a Note is registered on the registration books maintained by the Trustee as a Holder. U.S. BANK NATIONAL ASSOCIATION, as Trustee * The Issuer (or the Collateral Manager on its behalf) reserves the right to extend, in its sole discretion, this deadline, with, or without, notice to Holders - 2 -

3 Schedule A Holder of the Notes Described As: Class Rule 144A CUSIP ISIN Regulation S CUSIP ISIN Certificated CUSIP ISIN Subordinated Notes 67591GAE8 US67591GAE89 G6714LAC4 USG6714LAC GAF5 US67591GAF54 * No representation is made as to the correctness of the CUSIP, Common Codes and ISIN numbers either as printed on the Notes or as contained in this notice. Such numbers are included solely for the convenience of the Holders.

4 SCHEDULE B Additional Parties Issuer: Octagon Investment Partners 28, Ltd. c/o Estera Trust (Cayman) Limited P.O. Box 1350 Clifton House, 75 Fort Street Grand Cayman, KY Cayman Islands Attention: The Directors Co-Issuer: Octagon Investment Partners 28, LLC c/o Maples Fiduciary Services (Delaware) Inc Kennett Pike, Suite 302 Wilmington, Delaware Attention: Edward Truitt edward.truitt@maplesfs.com Collateral Manager: Octagon Credit Investors, LLC 250 Park Avenue, 15th Floor New York, New York Attention: Gretchen Lam glam@octagoncredit.com Collateral Administrator: U.S. Bank National Association One Federal Street, 3rd Floor Boston, Massachusetts Attention: Brenna Sears, Assistant Vice President (Ref: Octagon Investment Partners 28, Ltd.) Facsimile no.: (866) brenna.sears@usbank.com Rating Agencies: Moody's Investors Service, Inc. 7 World Trade Center New York, New York Attention: CBO/CLO Monitoring cdomonitoring@moodys.com S&P Global, 55 Water Street, 41st Floor New York, New York Attention: Asset Backed-CBO/CLO Surveillance CDO_Surveillance@spglobal.com Facsimile no.: (212) Morningstar Credit Ratings LLC 4 World Trade Center, 48th Floor 150 Greenwich Street New York, New York absmonitoring@morningstar.com Irish Stock Exchange: Euronext Dublin Company Announcement Office 28 Anglesea Street Dublin 2, Ireland For posting through ISE Direct Irish Listing Agent: McCann Fitzgerald Listing Services Limited Riverside One, Sir John Rogerson s Quay Dublin 2, Ireland Attention: Tony Spratt Facsimile no.: tony.spratt@mccannfitzgerald.ie; rachael.brennan@mccannfitzgerald.com; rachael.mullock@mccannfitzgerald.com

5 Exhibit A PROPOSED THIRD SUPPLEMENTAL INDENTURE [see attached]

6 DECHERT DRAFT THIRD SUPPLEMENTAL INDENTURE dated as of March [12], 2019 among OCTAGON INVESTMENT PARTNERS 28, LTD. as Issuer and OCTAGON INVESTMENT PARTNERS 28, LLC as Co-Issuer and U.S. BANK NATIONAL ASSOCIATION as Trustee to the Indenture, dated as of October 13, 2016, among the Issuer, the Co-Issuer and the Trustee BUSINESS

7 THIS THIRD SUPPLEMENTAL INDENTURE, dated as of March [12], 2019 (this "Supplemental Indenture") to the Indenture dated as of October 13, 2016 (as amended by the First Supplemental Indenture, dated as of May 21, 2018, and the Second Supplemental Indenture, dated as of November 29, 2018, and as further amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Indenture"), among Octagon Investment Partners 28, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands, as Issuer (the "Issuer"), Octagon Investment Partners 28, LLC, a limited liability company formed under the laws of the State of Delaware (the "Co-Issuer" and, together with the Issuer, the "Co-Issuers") and U.S. Bank National Association, as trustee under the Indenture (together with its successors in such capacity, the "Trustee"). Capitalized terms used in this Supplemental Indenture that are not otherwise defined herein have the meanings assigned thereto in the Indenture. PRELIMINARY STATEMENT WHEREAS, pursuant to Section 8.2(a) of the Indenture, the Trustee and the Co-Issuers may, with the consent of a Majority of each Class of Notes materially and adversely affected thereby (or, in the case of a supplemental indenture of a type enumerated in clauses (i) through (xi) of the proviso to said Section 8.2(a), with the consent of the Holder of each Outstanding Note of each Class materially and adversely affected thereby), enter into a supplemental indenture to add any provisions to, or change in any manner or eliminate any of the provisions of, the Indenture or modify in any manner the rights of the Holders of the Notes of such Class under the Indenture; WHEREAS, pursuant to Section 8.2(a)(viii) of the Indenture, the Co-Issuers wish to amend the definition of "Subordinated Notes Internal Rate of Return" appearing in Section 1.1 of the Indenture; WHEREAS, as a condition to the execution and delivery of this Supplemental Indenture, the Holders of 100% of the Aggregate Outstanding Amount of the Subordinated Notes have consented to the terms of this Supplemental Indenture; WHEREAS, the Issuer has determined that no consent of the Holders of the Secured Notes is required under Article VIII of the Indenture because such Holders are not materially and adversely affected by this Supplemental Indenture; WHEREAS, pursuant to Section 8.3(a) of the Indenture, the Trustee has delivered an initial copy of this Supplemental Indenture to the Holders of each Class of Notes, the Collateral Manager, the Collateral Administrator, each Hedge Counterparty (if any) and each Rating Agency not later than 15 Business Days prior to the execution hereof; WHEREAS, pursuant to Section 8.3(c) of the Indenture, the Collateral Manager has consented to the terms of this Supplemental Indenture; and WHEREAS, the conditions set forth in the Indenture for entry into a supplemental indenture pursuant to Section 8.2 of the Indenture have been satisfied. NOW THEREFORE, for good and valuable consideration the receipt of which is hereby acknowledged, the Co-Issuers and the Trustee hereby agree as follows: SECTION 1. Amendments to the Indenture. The definition of "Subordinated Notes Internal Rate of Return" appearing in Section 1.1 of the Indenture is hereby amended as follows to delete the stricken text (indicated textually in the same manner BUSINESS 1

8 as the following example: stricken text) and to add the bold and double-underlined text (indicated textually in the same manner as the following example: bold and double-underlined text): "Subordinated Notes Internal Rate of Return": An annualized internal rate of return (computed using the "XIRR" function in Microsoft Excel 2002 or an equivalent function in another software package) on an investment in the Subordinated Notes (assuming a purchase price of 100%98% with respect to the Subordinated Notes issued on the Closing Date), stated on a per annum basis, based on the following cash flows from and after the Closing Date: (i) each distribution of Interest Proceeds made to the holders of the Subordinated Notes on any prior Payment Date and, to the extent necessary to reach the applicable Subordinated Notes Internal Rate of Return, the current Payment Date; and (ii) each distribution of Principal Proceeds made to the holders of the Subordinated Notes on any prior Payment Date and, to the extent necessary to reach the applicable Subordinated Notes Internal Rate of Return, the current Payment Date; provided that, for purposes of calculating the Subordinated Notes Internal Rate of Return, Contributions shall be deemed to have been paid to the applicable Contributor. SECTION 2. Required Consents of Holders of Subordinated Notes. As a condition to the effectiveness of this Supplemental Indenture, the Issuer and the Trustee shall have received evidence that the Holders of 100% of the Aggregate Outstanding Amount of the Subordinated Notes have consented to the terms of this Supplemental Indenture. SECTION 3. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. SECTION 4. Execution in Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart of this Supplemental Indenture by electronic means (including or telecopy) will be effective as delivery of a manually executed counterpart of this Supplemental Indenture. SECTION 5. 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. Except as provided in the Indenture, 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 BUSINESS 2

9 SECTION 6. Limited Recourse; Non-Petition. The terms of Section 2.8(h), Section 5.4(d) and Section 13.1 of the Indenture shall apply to this Supplemental Indenture mutatis mutandis as if fully set forth herein. SECTION 7. No Other Changes. Except as 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. SECTION 8. Execution, Delivery and Validity. Each of the Co-Issuers represents and warrants to the Trustee that (i) 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 and (ii) the execution of this Supplemental Indenture is authorized or permitted under the Indenture and all conditions precedent thereto have been satisfied. SECTION 9. Binding Effect. This Supplemental Indenture shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SECTION 10. 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 BUSINESS 3

10 IN WITNESS WHEREOF, the parties hereto have executed and delivered this Supplemental Indenture as of the date first written above. Executed as a Deed by: OCTAGON INVESTMENT PARTNERS 28, LTD., as Issuer By: Name: Title: OCTAGON INVESTMENT PARTNERS 28, LLC, as Co-Issuer By: Name: Title: U.S. BANK NATIONAL ASSOCIATION, as Trustee By: Name: Title: BUSINESS

11 AGREED AND CONSENTED TO: OCTAGON CREDIT INVESTORS, LLC, as Collateral Manager By: Name: Title: BUSINESS

12 Exhibit B CONSENT TO THIRD SUPPLEMENTAL INDENTURE As of February 19, 2019 I. COMPLETE EITHER ADDENDUM I (FOR BENEFICIAL OWNER EXECUTION) OR ADDENDUM II (FOR NOMINEE EXECUTION) II. PLEASE RETURN THE CONSENT BY MAIL AND FACSIMILE TRANSMISSION OR BY 5:00 P.M. EASTERN STANDARD TIME ON MARCH 12, 2019 TO THE TRUSTEE AT THE ADDRESS BELOW. U.S. Bank National Association, as Trustee One Federal Street, 3rd Floor Boston, Massachusetts Attention: Corporate Trust Services OCTAGON INVESTMENT PARTNERS 28, Ltd. brenna.sears@usbank.com Ladies and Gentlemen: Reference is made to (x) that certain Indenture, dated as of October 13, 2016 (as amended by the First Supplemental Indenture, dated as of May 21, 2018, and the Second Supplemental Indenture, dated as of November 28, 2018, and as further amended, restated, supplemented or otherwise modified from time to time, the Indenture ), by and among OCTAGON INVESTMENT PARTNERS 28, Ltd., as issuer (the Issuer ), OCTAGON INVESTMENT PARTNERS 28, LLC, as co-issuer (the Co-Issuer and, together with the Issuer, the Co- Issuers ), and U.S. Bank National Association, as trustee (the Trustee ) and (y) Notice of Proposed Third Supplemental Indenture and Request for Consent from Holders Subordinated Notes dated February 19, 2019 (the Notice ). Capitalized terms used but not otherwise defined herein have the meanings given to them in the Indenture or in the Notice. This is to certify that the Person identified on Addendum I hereto is a current Holder of Subordinated Notes, as specified herein and on such Proof of Ownership as of February 19, 2019 (the Consent Solicitation Record Date ) and that it has the full power to execute and deliver this consent and direction (the Consent ) and such power has not been granted or assigned to any other person. Class of Notes CUSIP CURRENT AGGREGATE OUTSTANDING AMOUNT OF THE CLASS NOTES HELD AND AUTHORIZED TO VOTE Subordinated Notes U.S. $

13 This is to certify that the Person identified below is the beneficial owner of (please check, as applicable): Subordinated Notes in the aggregate outstanding principal amount specified as of the Record Date set forth above; and consents to the proposed Third Supplemental Indenture (in the form attached as Exhibit A to the Notice). Subordinated Notes in the aggregate outstanding principal amount specified as of the Record Date set forth above; and DOES NOT consent to the proposed Third Supplemental Indenture (in the form attached as Exhibit A to the Notice). The Co-Issuers, the Trustee, the Collateral Manager and counsel which delivers an Opinion of Counsel to the Trustee pursuant to Section 8.3 of the Indenture, is authorized to conclusively rely on the validity and effectiveness of this Consent. [Signature Page Follows]

14 IN WITNESS WHEREOF, the undersigned has duly authorized and executed this Consent as of the date first written above. NAME OF HOLDER: (Print Name of Entity) By: Name: Title: This Consent is given to the Trustee, Collateral Manager and Issuer. THIS CONSENT WILL BE BINDING ON ANY TRANSFEREE OF THE SUBJECT NOTES.

15 ADDENDUM I OCTAGON INVESTMENT PARTNERS 28, LTD. OCTAGON INVESTMENT PARTNERS 28, LLC PROOF OF OWNERSHIP (For DTC and Euroclear Participants) Class of Notes: _Subordinated Notes Beneficial Holder: (Please Print) Signature of Authorized Signer of Beneficial Holder: Name and Title of Authorized Signer at Beneficial Holder: Telephone Number of Authorized Signer: Address: Mailing Address: CUSIP number(s): Holdings: Original Aggregate Outstanding Amount Current Aggregate Outstanding Amount DTC Participant Name: DTC Participant Number: DTC Participant Contact Name: DTC Participant Telephone Number: DTC Participant Address: Medallion Guarantee or Notary Required: (U.S. Persons should affix stamp & signature and provide incumbency certificate; Non-U.S. Persons should provide notarization or affix stamp and signature and provide incumbency certificate) Date: Date: Signature (Additional signature lines are provided for multiple authorized signers, if required. Medallion Guarantee and Notary continued on next page)

16 MEDALLION GUARANTEE for DTC Participant or Euroclear Contact: : (U.S. Persons should affix stamp and signature; Non-U.S. Persons should provide notarization) [OR] A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. Of ) ) ss Of ) On, 2019 before me, the undersigned, a Notary Public in and for said, personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon which the person(s) acted, executed the instrument under due authority. WITNESS my hand and official seal. Notary Public in and for the of (SEAL)

17 ADDENDUM II OCTAGON INVESTMENT PARTNERS 28, LTD. OCTAGON INVESTMENT PARTNERS 28, LLC PROOF OF OWNERSHIP (For Holders of Certificated Notes) Class of Subject Notes: Subordinated Notes Name of Registered Owner(s): (Please Print) Signature of Authorized Signer of Registered Owner: Name and Title of Authorized Signer at Registered Owner: (Please Print) Telephone Number of Authorized Signer: Address: Mailing Address: CUSIP number(s): Holdings: Original Aggregate Outstanding Amount Current Aggregate Outstanding Amount Medallion Guarantee or Notary Required: (U.S. Persons should affix stamp & signature and provide incumbency certificate; Non-U.S. Persons should provide notarization or affix stamp and signature and provide incumbency certificate) Date: Signature Date: (Additional signature lines are provided for multiple authorized signers, if required. Medallion Guarantee and Notary continued on next page)

18 MEDALLION GUARANTEE for DTC Participant or Euroclear Contact: : (U.S. Persons should affix stamp and signature; Non-U.S. Persons should provide notarization) [OR] A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. Of ) ) ss Of ) On, 2019 before me, the undersigned, a Notary Public in and for said, personally appeared, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon which the person(s) acted, executed the instrument under due authority. WITNESS my hand and official seal. Notary Public in and for the of (SEAL)