EXECUTION VERSION
SIXTH AMENDMENT TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this “Amendment”), dated as of April 5, 2024, is entered into by and among TCW DIRECT LENDING LLC, a Delaware limited liability company (“Borrower”), Natixis, New York Branch (in its individual capacity, “Natixis”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and the Lenders listed on the signature pages hereof.
RECITALS
WHEREAS, the parties thereto have entered into that certain Third Amended and Restated Revolving Credit Agreement dated as of April 10, 2017 (as amended by that certain First Amendment to Third Amended and Restated Revolving Credit Agreement dated as of April 6, 2020, that certain Second Amendment to Third Amended and Restated Revolving Credit Agreement dated as of December 2, 2020, that certain Third Amendment to Third Amended and Restated Revolving Credit Agreement dated as of April 6, 2021, that certain Fourth Amendment to Third Amended and Restated Revolving Credit Agreement dated as of January 10, 2023, and that certain Fifth Amendment to Third Amended and Restated Revolving Credit Agreement dated as of April 7, 2023, and as the same may be further amended, restated, modified or supplemented from time to time, the “Credit Agreement”);
WHEREAS, the Borrower, Administrative Agent, and the Lenders have agreed, upon the following terms and conditions, to amend the Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and in the Credit Agreement, the parties hereto agree as follows:
2
3
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
Signature Page to
Signature Page to
Sixth Amendment to Third Amended and Restated Revolving Credit Agreement
ANNEX I CONFORMED CREDIT AGREEMENT
[See attached]
CONFORMED THROUGH FIFTHSIXTH AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
TCW DIRECT LENDING LLC,
as Borrower
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
NATIXIS, NEW YORK BRANCH,
as Administrative Agent
NATIXIS, NEW YORK BRANCH,
as Sole Lead Arranger and Sole Bookrunner and Syndication Agent
PNC CAPITAL MARKETS LLC,
as Managing Agent and
The Conduit Lenders, Committed Lenders, and Funding Agents from time to time party hereto
April 10, 2017
First Amendment: April 6, 2020
Second Amendment: December 2, 2020
Third Amendment: April 6, 2021
Fourth Amendment: January 10, 2023
Fifth Amendment: April 7, 2023 Sixth Amendment: April 5, 2024
TABLE OF CONTENTS
Page
1
2
CREDIT EXTENSIONS. 7877
3
4
5
SCHEDULES
6
SCHEDULE 1.01A SCHEDULE 1.01B SCHEDULE 1.01C SCHEDULE 1.01D SCHEDULE 13.07
7
Commitments and Lender Groups [Reserved]
[Reserved] [Reserved] Addresses
8
EXHIBITS
9
EXHIBIT A: EXHIBIT B: EXHIBIT C: EXHIBIT D-1:
10
[Reserved]
Revolving Credit Note Loan Notice
Security Agreement (Capital Contributions)
11
EXHIBIT D-2: [Reserved]
EXHIBIT E: Collateral Account Assignment
EXHIBIT F: Assignment and Assumption Agreement EXHIBIT G: Compliance Certificate
EXHIBIT H: Borrowing Base Certificate
EXHIBIT IJ:
Facility IncreaseExtension Request
EXHIBIT J: [Reserved]
EXHIBIT I: [Reserved]
12
EXHIBIT K: EXHIBIT L: EXHIBIT M: EXHIBIT N:
13
Lender Group Joinder Agreement Qualified Borrower Joinder Agreement
U.S. Tax Compliance Certificates Request for Letter of Credit
14
EXHIBIT O: [Reserved]
EXHIBIT P: Prepayment Notice
15
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
(together with all amendments and modifications hereof and supplements and attachments hereto, this “Credit Agreement”) is dated as of April 10, 2017 by and among TCW DIRECT LENDING LLC, a Delaware limited liability company (“Borrower”), NATIXIS, NEW YORK BRANCH (in its individual capacity, “Natixis”), as administrative agent for the Lenders (together with any successor appointed pursuant to Article 12 below, the “Administrative Agent”), and the Committed Lenders, Conduit Lenders, Funding Agents and other Borrower Parties from time to time party hereto (each capitalized term not defined is defined below).
Borrower, Administrative Agent, the Lenders named therein, and certain other Persons are parties to that certain Revolving Credit Agreement dated as of November 12, 2014, as amended and restated by that certain Amended and Restated Revolving Credit Agreement dated as of December 22, 2014, and as further amended and restated by that certain Second Amended and Restated Revolving Credit Agreement dated as of July 1, 2015, pursuant to which Lenders have provided to Borrower a revolving credit facility on the terms stated therein (as so amended and supplemented from time to time prior to the date hereof, the “Original Credit Agreement”);
Borrower, Administrative Agent, and Lenders have agreed to make certain changes to the Original Credit Agreement; and
Borrower, Administrative Agent, and Lenders desire to amend and restate the Original Credit Agreement pursuant to this Credit Agreement in order to effect such changes.
NOW, THEREFORE, in consideration of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
Borrower has requested that Lenders make loans to the Borrower Parties for the principal purposes of providing working capital to the Borrower Parties; financing the costs and other expenses to be incurred by the Borrower Parties in connection with making investments permitted under the Operating Agreement; and financing the costs of other undertakings by Borrower permitted under the Operating Agreement; Lenders are willing to lend funds upon the terms and subject to the conditions set forth in this Credit Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
“Account Assignment” means a Collateral Account Assignment.
“Adequately Capitalized” means compliance with the capital standards for Bank Holding Companies as described in the Bank Holding Company Act of 1956, as amended, and regulations promulgated thereunder.
4866-0480-2724 v.14
“Administrative Agent” is defined in the preamble to this Credit Agreement.
“Administrative Agent’s Office” means Administrative Agent’s address as set forth in Schedule 13.07, or such other address or, as appropriate, account as Administrative Agent may from time to time notify Borrower and the Lenders.
“Administrator” means, with respect to any Conduit Lender, the Person designated by such Conduit Lender as its “Administrator”.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“Affected Funding Party” is defined in Section 13.13.
“Affiliate” of any Person means a specified Person that, directly or indirectly, Controls or is Controlled By, or is Under Common Control With, such Person.
“Agents” means, collectively, Administrative Agent and each Funding Agent and any successors and assigns in such capacities.
“Aggregate Investor Concentration Limit” means, with respect to the Borrowing Base Investors, the concentration limits set forth below, calculated for each Investor classification as a percentage of the aggregate Unfunded Commitments of all Included Investors and Designated Investors:
Investor Classification: | Concentration Limit: |
Included Investors | N/A |
Designated Investors | 35% |
“Agreement Currency” is defined in Section 13.27.
“Annual Valuation Period” means the “annual valuation period” as defined in 29 C.F.R.
§2510.3-101(d)(5) as determined for each Borrower Party, as applicable.
“Anti-corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower Parties from time to time concerning or relating to bribery or corruption.
“Applicable Margin” means, with respect to interest rate spreads and letter of credit fees, the Applicable Margin set forth in the table below that corresponds to the applicable Loan or Letter of Credit:
| Applicable Margin |
Base Rate Loan | 1.15%1.50% |
Term SOFR Loan | 2.15%2.50% |
CP Rate Loan | 2.15%2.50% |
Daily SOFR Loan | 2.15%2.50% |
Letter of Credit | 2.15%2.50% |
“Applicable Percentage” means (i) with respect to a Committed Lender, the product of its Committed Lender Percentage and its Lender Group’s Lender Group Percentage; (ii) with respect to a
2
Lender Group, its Lender Group Percentage; and (iii) with respect to a Conduit Lender, its Conduit Lender Percentage.
“Applicable Requirement” means, for any Included Investor that is (or whose Credit Provider, if applicable, is): (a) a Bank Holding Company, Adequately Capitalized status or better and a Rating of BBB-/Baa3 or higher; (b) an insurance company, a Best’s Rating by A.M. Best Company of A- or higher and a Rating of BBB-/Baa3 or higher; (c) an ERISA Investor, or the trustee or nominee of an ERISA Investor, in addition to the Sponsor’s Rating of BBB-/Baa3 or higher, a minimum Funding Ratio for the pension fund based on the Rating of the Sponsor of the pension fund as follows:
Sponsor Rating | Minimum Funding Ratio |
BBB+/Baa1 or higher | No minimum |
BBB/Baa2 or lower | 85% |
(d) a Governmental Plan Investor, or the Responsible Party with respect to such Governmental Plan Investor, in addition to the Responsible Party’s Rating of BBB-/Baa3 or higher, a minimum Funding Ratio for the pension fund based on the Rating of the Responsible Party as follows:
Responsible Party Rating | Minimum Funding Ratio |
BBB+/Baa1 or higher | No minimum |
BBB/Baa2 or lower | 85% |
and (e) otherwise a Rated Included Investor, a Rating of BBB-/Baa3 or higher.
The first Rating indicated in each case above is the S&P Rating and the second Rating indicated in each case above is the Moody’s Rating. In the event that the Ratings are not equivalent, the Applicable Requirement shall be based on the lowest of the Ratings. If any Person has only one Rating, then that Rating shall apply.
“Approved 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 business, 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.
“Arranger” means Natixis, in its capacity as sole lead arranger and sole book manager.
“Asset Coverage Ratio” means the “asset coverage” within the meaning of Section 18(h) of the Investment Company Act, as the Investment Company Act is in effect on the Closing Date.
“Assignee” is defined in Section 13.11(b).
“Assignee Group” means two (2) or more Eligible Assignees that are Affiliates of one another or two (2) or more Approved Funds managed by the same investment advisor.
“Assignment Amount” means, with respect to a Committed Lender at the time of any assignment pursuant to Section 13.12 by a Conduit Lender in such Committed Lender’s Lender Group, an amount equal to the least of: (a) such Committed Lender’s Committed Lender Percentage of the Obligations requested by such Conduit Lender to be assigned at such time; (b) such Committed Lender’s Unused Commitment (minus the sum of (i) the unrecovered principal amount of such Committed Lender’s investments in such Obligations pursuant to the Liquidity Agreement to which it is a party and (ii) such Committed Lender’s Committed Lender Percentage of its Lender Group’s Lender Group Percentage of
3
the Letter of Credit Liability); and (c) in the case of an assignment on or after the Conduit Investment Termination Date for such Conduit Lender, (i) such Committed Lender’s pro rata share of the applicable Conduit Lender Percentage of the Lender Group Percentage of the Principal Obligation minus (ii) such Committed Lender’s Applicable Percentage of the Letter of Credit Liability.
“Assignment and Assumption Agreement” means the agreement contemplated by Section 13.11(b)(iv), pursuant to which any Lender assigns all or any portion of its rights and obligations hereunder, in substantially the form of Exhibit F or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent and the Borrower.
“Assignment Date” is defined in Section 13.12(a).
“Attorney Costs” means and includes all documented out-of-pocket fees and disbursements of a single law firm or any local or special counsel retained by the Administrative Agent or Lenders.
“Availability Period” means the period commencing on the Closing Date and ending on the Maturity Date.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Credit Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Credit Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed pursuant to Section 4.03(e).
“Available Commitment” means, at any time, the lesser of: (a) the Maximum Commitment at such time; or (b) the Borrowing Base at such time.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Holding Company” means a “bank holding company” as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended, or a non-bank subsidiary of such bank holding company.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of: (a) the Federal Funds Rate for such day plus 0.50%; (b) the Prime Rate for such day; or (c) except during any period of time during which the Term SOFR Rate is unavailable pursuant to Section 4.02 or 4.03, one-month Term SOFR Rate plus 100 basis points (1.00%). Each change in the Base Rate due to a
4
change in the Prime Rate, the Federal Funds Rate or the Term SOFR Rate (or successor therefor) shall become effective without prior notice to Borrower automatically as of the opening of business on the day of such change in the Base Rate. If the calculation of the Base Rate results in a rate of less than the Floor, the Base Rate shall be deemed to be the Floor for all purposes of the Loan Documents.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
“Baseline Net Worth” is defined in clause (j) of the definition of Exclusion Event.
“Basel III” means the global regulatory standards on bank capital adequacy and liquidity referred to by the Basel Committee on Banking Supervision as “Basel III” or the “Basel III Framework” published in December 2010 together with any further guidance or standards in relation to “Basel III” or the “Basel III Framework” published or to be published by the Basel Committee.
“Benchmark” means, initially, Daily Simple SOFR and/or the Term SOFR Rate, as applicable; provided that, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to both Daily Simple SOFR and Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 4.03.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Credit Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Borrower giving due consideration to
(a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
5
component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark, the occurrence of one (1) or more of the following events with respect to such Benchmark (which, for the avoidance of doubt, as of the Closing Date, means one of the following events with respect to both Daily Simple SOFR and the Term SOFR Rate):
6
International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, with respect to the then-current Benchmark, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and
(b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, with respect to the then-current Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date with respect to such then-current Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 4.03(b) and (b) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 4.03(b).
“Best’s Rating” means a “Best’s Rating” by A.M. Best Company. “Borrower” is defined in the preamble hereto.
“Borrower Parties” means Borrower and each Qualified Borrower, and “Borrower Party” means any one of them.
“Borrowing” means a disbursement made by the Lenders of any of the proceeds of the Loans when such disbursement increases the outstanding principal amount of the Loans (including any reimbursement of the Letter of Credit Issuer following a draw on a Letter of Credit).
“Borrowing Base” means, at any time of determination, the sum of: (a) 90% of the aggregate Eligible Included Unfunded Commitments (and for the avoidance of doubt, including Returned Capital) of the Included Investors at such time; plus (b) 65% of the aggregate Eligible Designated Unfunded Commitments (and for the avoidance of doubt, including Returned Capital) of the Designated Investors at such time.
For purposes of calculating the Borrowing Base, the Eligible Designated Unfunded Commitments and Eligible Included Unfunded Commitments shall be subject to the Investor Concentration Limits and such concentration limits shall be applied prior to the application of the applicable advance rates.
“Borrowing Base Certificate” means a certificate of any Responsible Officer of Borrower either
(a) confirming there has been no change in the Borrowing Base since the date of the most recently delivered Borrowing Base Certificate or (b) setting forth the calculation of the Borrowing Base (based on the most recent information available to Borrower), including the name, Capital Commitment and Unfunded Commitment of each Investor and a designation of the Included Investors and Designated Investors (subject to the approval requirements set forth in the respective definitions herein), in
7
substantially the form of Exhibit H attached hereto; provided, however, that the calculation of the Borrowing Base may be provided in “Excel” format in a form reasonably acceptable to the Administrative Agent and containing the information as set forth in Exhibit H.
“Borrowing Base Investors” means each Included Investor and each Designated Investor. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the State of New York.
“Capital Call” means a call upon all or any of the Investors for payment of all or any portion of their Unfunded Commitments.
“Capital Call Notice” means any notice sent to, or demand or request made on, an Investor for the purpose of making a Capital Call.
“Capital Commitment” means, for any Investor, its “Commitment” as defined in the Operating Agreement.
“Capital Contribution” means, for any Investor, any contribution of capital made to Borrower in response to a Capital Call or deemed contributed pursuant to the Operating Agreement.
“Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of one (1) or more of the Letter of Credit Issuer or Swingline Lender (as applicable) and the Lenders, as collateral for the Letter of Credit Liability, obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances pursuant to documentation in form and substance satisfactory to: (a) Administrative Agent and (b) the Letter of Credit Issuer or Swingline Lender (as applicable). “Cash Collateral” and “Cash Collateralized” shall have meanings correlative to the foregoing.
“Change in Law” means the occurrence, after the date of this Credit Agreement (or, with respect to any Person that becomes a Lender pursuant to an Assignment and Assumption, the effective date of such assignment), 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, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary: (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith; and (ii) 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 TCW Asset Management Company or an Affiliate thereof shall cease to be the investment advisor of the Borrower.
“Closing Date” means the date on which all of the conditions precedent set forth in Section 7.01
are satisfied or waived.
“Code” or “Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.
8
“Collateral” is defined in Section 5.01.
“Collateral Account” means the “Account” as defined in the Collateral Account Assignment delivered by Borrower pursuant hereto.
“Collateral Account Assignment” means an assignment or security agreement with respect to the Collateral Account in substantially the form of Exhibit E attached hereto, as such agreement shall be amended, modified, supplemented and/or restated and in effect from time to time.
“Collateral Documents” means the security agreements, financing statements, assignments, and other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement to grant, perfect or continue a security interest in the Collateral for the Obligations and any documents or instruments amending or supplementing the same, including, without limitation, the Security Agreement, the Collateral Account Assignment, and the Deposit Account Control Agreement.
“Commercial Paper” means, on any day, either (i) the promissory notes of any Conduit Lender issued by such Conduit Lender in the commercial paper market or (ii) the promissory notes issued in the commercial paper market by a multi-seller commercial paper conduit the proceeds of which are loaned to a Conduit Lender that are allocated, in whole or in part, by such Conduit Lender to fund or maintain its Principal Obligation hereunder.
“Commitment” means, with respect to each Committed Lender, its obligation to (a) make Syndicated Loans to Borrower Parties pursuant to Section 2.01; and (b) purchase risk participations in Letters of Credit and Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Committed Lender’s name on Schedule 1.01A attached hereto under the heading “Commitment” or on the Assignment and Assumption Agreement pursuant to which such Committed Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement. Administrative Agent may amend and re-issue Schedule 1.01A from time to time to reflect the Commitments of the Committed Lenders.
“Committed Lender Percentage” means, with respect to any Committed Lender on any day, the percentage equivalent of a fraction the numerator of which is such Committed Lender’s Commitment at such time and the denominator of which is the Lender Group Limit for such Committed Lender’s Lender Group.
“Committed Lenders” means: (a) each Committed Lender listed on the signature pages hereof; and (b) any other Person that becomes a party to this Credit Agreement as a Committed Lender pursuant to the terms hereof, and any assignees thereof that shall become party hereto pursuant to Section 13.11 (but not any Participant that is not otherwise party to this Credit Agreement).
“Competitor” means any direct lending investment company primarily focused on investing in senior secured debt obligations or mezzanine debt obligations with portfolio companies, or investment management. For avoidance of doubt, a Competitor shall not include a commercial lender (i.e., a national bank, a state chartered bank or other similarly regulated lending institution).
“Compliance Certificate” is defined in Section 9.01(c).
“Conduit Assignee” means any multi-seller commercial paper conduit or special purpose entity funded by a multi-seller commercial paper conduit which is, in either case, administered by the Funding Agent for any existing Lender Group or an Affiliate thereof.
9
“Conduit Investment Termination Date” means, with respect to any Conduit Lender, the date of the delivery by such Conduit Lender to Borrower of written notice that such Conduit Lender elects, in its sole discretion, not to make any further Loans or participate in any further Letters of Credit hereunder.
“Conduit Lender” means: (a) each Conduit Lender listed on the signature pages hereof; and (b) any other Person that shall become a party to this Credit Agreement as a Conduit Lender pursuant to the terms hereof, and any assignees thereof that shall become party hereto pursuant to Section 13.11 (but not any Participant that is not otherwise party to this Credit Agreement).
“Conduit Lender Percentage” means, with respect to any Conduit Lender, at any time, 100%, minus the percentage share of Principal Obligation held by the Committed Lenders and any other Conduit Lenders in such Conduit Lender’s Lender Group at such time.
“Conforming Changes” means, with respect to either the use or administration of Daily Simple SOFR, the Term SOFR Rate or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of funding losses and other technical, administrative or operational matters) that Administrative Agent (after consultation with Borrower) decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Administrative Agent (after consultation with Borrower) decides is reasonably necessary in connection with the administration of this Credit Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Constituent Documents” means, for any entity, its constituent or organizational documents, including: (a) in the case of any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time; (b) in the case of any limited liability company, its articles or certificate of formation and its operating agreement or limited liability company agreement; and (c) in the case of a corporation, its certificate or articles of incorporation and its bylaws.
“Control” and the correlative meanings of the terms “Controlled By” and “Under Common Control With” mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting shares or partnership interests, or of the ability to exercise voting power by contract or otherwise.
“CP Rate” means, for any Conduit Lender and any Interest Period for any Loan at the CP Rate, the per annum rate equivalent to the rate (or, if more than one rate, the weighted average of the rates) applicable to the Commercial Paper issued by such Conduit Lender or its Related Commercial Paper
10
Issuer and allocated, in whole or in part, to fund Syndicated Loans or Swingline Loans hereunder, which Commercial Paper may be sold by any placement agent or commercial paper dealer selected by such Conduit Lender, and which rate shall incorporate (i) applicable commercial paper dealer and placement agent fees and commissions and (ii) other funding costs (excluding costs associated with a Conduit Lender’s liquidity fundings) of such Conduit Lender relating to the Transactions, such as the costs of funding odd lots or small dollar amounts; provided that if the rate (or rates) as agreed between any such agent or dealer and such Conduit Lender is a discount rate, then the CP Rate shall be the rate (or if more than one rate, the weighted average of the rates) resulting from such Conduit Lender’s converting such discount rate (or rates) to an interest-bearing equivalent rate per annum; provided further that, if the CP Rate as so determined would be less than the Floor, then the CP Rate shall be deemed to be the Floor.
“CP Rate Loan” means a Loan that bears interest based on a CP Rate (or, in the case of a Loan funded by a Conduit Lender through its Liquidity Provider, at the rate specified in Section 2.05(a)).
“Credit Agreement” is defined in the preamble hereto.
“Credit Extension” means each of the following: (a) a Borrowing (including any conversion or continuation of any Borrowing); and (b) an L/C Credit Extension.
“Credit Provider” means a Person providing a guaranty or other similar agreement, in form and substance reasonably acceptable to Lenders, of the obligations of an Included Investor to make Capital Contributions to Borrower.
“Daily Simple SOFR” means, for any calculation with respect to a Daily SOFR Loan for any applicable determination date (a “Daily SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, a “Daily SOFR Determination Day”) that is five U.S. Government Securities Business Days prior to (A) if such Daily SOFR Rate Day is a U.S. Government Securities Business Day, such Daily SOFR Rate Day or (B) if such Daily SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such Daily SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website, plus 0.10% (10 basis points); provided, however, if as of 5:00 p.m. (New York City time) on the second
U.S. Government Securities Business Day immediately following any Daily SOFR Determination Day, SOFR in respect of such Daily SOFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then SOFR for such Daily SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided, further, that SOFR as determined pursuant to this proviso shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three consecutive Daily SOFR Rate Days. Notwithstanding anything to the contrary, if Daily Simple SOFR as so determined shall ever be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor.
“Daily SOFR Determination Day” has the meaning specified in the definition of “Daily Simple
SOFR”.
“Daily SOFR Loan” means a Loan bearing interest based on Daily Simple SOFR.
“Daily SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”. “Debtor Relief Laws” means any applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally, including without limitation the United States
11
Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of the Loans.
“Default” means any condition, act, or event which, with the giving of notice or lapse of time or both, would become an Event of Default.
“Default Rate” means, with respect to any Loan, on any day the lesser of: (a) the interest rate in effect on such day and otherwise applicable to such Loan, plus the Applicable Margin applicable to such Loan, plus 2.0%; or (b) the Maximum Rate.
“Defaulting Investor” is defined in the definition of “Exclusion Event” herein.
“Defaulting Lender” means, subject to Section 2.15(b), any Committed Lender that: (a) has failed to: (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s good faith determination that one (1) 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, or (ii) pay to Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s good faith determination that one (1) 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 Borrower, Administrative Agent, the Swingline Lender or the Letter of Credit Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (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 two
(2) Business Days after written request by Administrative Agent or Borrower, to confirm in writing to
Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and 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 appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest 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. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one (1) or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower, the Letter of Credit Issuer, the Swingline Lender and each other Lender (including such Defaulting Lender) promptly following such determination. For the purposes of
12
the definition of Defaulting Lender only, “Equity Interest” 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.
“Deposit Account Control Agreement” means a deposit account control agreement or blocked account control agreement by and among Borrower, Depository and Administrative Agent, with respect to the Collateral Account, in form and substance reasonably satisfactory to Administrative Agent.
“Depository” means U.S. Bank, National Association (or any successor thereto or Affiliate thereof) or any other bank or financial institution approved by Administrative Agent in its reasonable discretion, in each case, in its capacity as depository or securities intermediary, as the case may be.
“Designated Investor” means any Investor: (a) designated by Administrative Agent and all Committed Lenders (each in its sole discretion) as a Designated Investor; and (b) as to which Borrower has delivered to Administrative Agent the information and documents required under Section 7.01(a)(xi) or 10.05(d), as applicable; provided that (i) a Defaulting Investor shall no longer be a Designated Investor until such time as all Exclusion Events affecting such Investor have been cured to the satisfaction of the Administrative Agent and all of the Committed Lenders (not to be unreasonably withheld, conditioned or delayed); and (ii) if an involuntary proceeding under clause (b) of the Exclusion Events is instituted against a Designated Investor, such Defaulting Investor shall be automatically reinstated as a Designated Investor if such Exclusion Event is dismissed with sixty (60) days of the date such proceeding is instituted.
“Designated Jurisdiction” means any country or territory or region that is, or whose government is, the subject of any Sanction and with which dealings are prohibited under such Sanction.
“Dispose” means the sale, assignment, or transfer of any property of any Person. “Disposition” and “Disposed” shall have correlative meanings.
“Dollars” and the sign “$” means lawful currency of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
13
“Eligible Assignee” means: (a) a Lender, an Affiliate of a Lender, an Approved Fund, a Liquidity Provider, a Conduit Assignee, a Federal Reserve Bank, a central bank, a collateral trustee or security agent for holders of commercial paper; and (b) any other Person approved in writing by the Administrative Agent and the Letter of Credit Issuer (each such approval not to be unreasonably withheld or delayed by Administrative Agent or the Letter of Credit Issuer) and, unless an Event of Default exists at the time any assignment is effected in accordance with Section 13.11, Borrower (such approval not to be unreasonably withheld or delayed by Borrower); provided, however, that (x) each Eligible Assignee must be a Qualified Purchaser, (y) so long as no Event of Default has occurred and is continuing, no Competitor shall qualify as an Eligible Assignee, provided, that during an Event of Default, no Competitor identified by the Borrower to the Administrative Agent on or prior to the Closing Date (limited to five (5) such Competitors, which the Borrower may replace after the Closing Date in its reasonable determination upon a change of investment strategy of Competitors or potential Competitors, provided, that (i) no existing Lender or Affiliate of an existing Lender can be so designated as a Competitor and (ii) in no event shall Borrower be permitted to replace any such Competitor after the occurrence and during the continuance of an Event of Default, provided, further, that the Administrative Agent shall promptly notify the Lenders of the current list of Competitors following (1) request by the Lenders and (2) any change to the list of Competitors) shall qualify as an Eligible Assignee, and (z) neither Borrower nor any Affiliate of Borrower shall qualify as an Eligible Assignee.
“Eligible Designated Unfunded Commitments” means, with respect to Designated Investors, the aggregate amount that is equal to the Unfunded Commitments of all Designated Investors; provided, however, that in connection with each determination of the Borrowing Base (in accordance with the final paragraph thereof), (a) the Eligible Designated Unfunded Commitment of each Designated Investor shall be reduced to the extent necessary, if any, so that the Eligible Designated Unfunded Commitment of such Designated Investor does not exceed the Individual Investor Concentration Limit and (b) the aggregate Eligible Designated Unfunded Commitments of all Designated Investors shall be reduced to the extent necessary, if any, so that the aggregate Eligible Designated Unfunded Commitments of all Designated Investors do not exceed the Aggregate Investor Concentration Limit.
“Eligible Included Unfunded Commitments” means, with respect to Included Investors, the aggregate amount that is equal to the Unfunded Commitments of all Included Investors.
“Environmental Laws” means: (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Re-authorization Act of 1986, 42 U.S.C. §9601 et seq.; (b) the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §6901 et seq.; (c) the Clean Air Act, 42
U.S.C. §7401 et seq., as amended by the Clean Air Act Amendments of 1990; (d) the Clean Water Act of 1977, 33 U.S.C. §1251 et seq.; (e) the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.; (f) all other federal, state and local laws, ordinances, regulations or written policies relating to pollution or protection of human health (as it relates to exposure to Hazardous Materials) or the environment including without limitation, air pollution, water pollution, noise control, or the use, handling, discharge, disposal or Release or recovery of on-site or off-site Hazardous Materials, as each of the foregoing may be amended from time to time, applicable to any Borrower Party; and (g) any and all regulations promulgated under or pursuant to any of the foregoing statutes.
“Environmental Liability” means any written claim, demand, obligation, cause of action, accusation or allegation, or any order, violation, damage (including, without limitation, to any Person, property or natural resources), injury, judgment, penalty or fine, cost of enforcement, cost of remedial action, clean-up, restoration or any other cost or expense whatsoever, including reasonable attorneys’ fees and disbursements resulting from the violation or alleged violation of any Environmental Law or the
14
imposition of any Environmental Lien or otherwise arising under any Environmental Law or resulting from any common law cause of action asserted by any Person.
“Environmental Lien” means a Lien in favor of any Governmental Authority: (a) under any Environmental Law; or (b) for any liability or damages arising from, or costs incurred by, any Governmental Authority in response to the Release or threatened Release of any Hazardous Material.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder by any Governmental Authority, as from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Borrower Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Investor” means an Investor that is: (a) an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Title I of ERISA, (b) any “plan” defined in and subject to Section 4975 of the Code, or (c) a partnership or commingled account of a fund, or any other entity, whose assets include or are deemed to include the assets of one (1) or more such employee benefit plans or plans in accordance with the Plan Assets Regulations or otherwise.
“ERISA Investor Excluded Items” means, with respect to each ERISA Investor, any rights, titles, interests, remedies or privileges of Borrower:
“Erroneous Payment” is defined in Section 12.11(a).
“Erroneous Payment Deficiency Assignment” is defined in Section 12.11(d). “Erroneous Payment Impacted Class” is defined in Section 12.11(d). “Erroneous Payment Return Deficiency” is defined in Section 12.11(d). “Erroneous Payment Subrogation Rights” is defined in Section 12.11(e).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” is defined in Section 11.01.
15
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case: (i) imposed as a result of such Recipient being organized, formed or incorporated under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof); or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which: (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the applicable Borrower Party under Section 4.06); or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 4.01(a)(ii) or Section 4.01(c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office; (c) Taxes attributable to such Recipient’s failure to comply with Section 4.01(e); (d) any backup withholding Tax that is required by the Code to be withheld from amounts payable to such Recipient; and (e) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Exclusion Event” means the occurrence, with respect to any Borrowing Base Investor or, if applicable, the Sponsor, Responsible Party, or Credit Provider of such Borrowing Base Investor (such Investor hereinafter referred to as a “Defaulting Investor”), of any of the following events:
16
Call Notice or its obligations under its Subscription Agreement or the Operating Agreement shall be or become unenforceable;
1 In the event that the Ratings of the relevant Person are not equivalent, such Rating shall be based on the lowest of the Rating of such Person. If any Person has only one Rating, then that Rating shall apply.
17
entity is higher than BBB-/Baa3, but such Governmental Plan Investor shall fail to maintain a Funding Ratio of the lesser of at least (1) 80% or (2) 90% of its Funding Ratio as was reported on its most recent audited financial statements which were available to Administrative Agent on or immediately prior to (x) the Closing Date, if it was an Included Investor (or was pre-approved as an Included Investor, pursuant to written agreement of Administrative Agent) on the Closing Date; or (y) the date of its admission as an Investor (in the case not covered by clause (x) above);2
“Facility Increase Fee” means a fee as agreed by Borrower and Administrative Agent in a separate fee letter agreement.
“Facility IncreaseExtension Request” means a notice in substantially the form of Exhibit IJ attached hereto pursuant to which Borrower requests an increaseextension of the CommitmentsStated Maturity Date in accordance with Section 2.172.16.
2 In the event that the Ratings of the relevant Person are not equivalent, such Rating shall be based on the lowest of the Rating of such Person. If any Person has only one Rating, then that Rating shall apply.
18
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) 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 such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.
“Fitch” means Fitch Ratings, a wholly-owned subsidiary of Fimalac, S.A. “Floor” means a per annum rate of zero basis points.
“Foreign Recipient” means: (a) if the applicable Borrower Party is a U.S. Person, a Recipient that is not a U.S. Person; and (b) if the applicable Borrower Party is not a U.S. Person, a Recipient that is resident or organized under the laws of a jurisdiction other than that in which such Borrower Party 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.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lender’s proportionate share (based on the total of such Defaulting Lender’s participation in all Letters of Credit as determined in accordance with Section 2.08 as a proportion of the total Letter of Credit Liability) of the outstanding Letter of Credit Liability other than Letter of Credit Liability as to which (i) such Defaulting Lender’s participation obligation has been reallocated to other Committed Lenders in accordance with the terms hereof or (ii) Cash Collateral or other credit support acceptable to the Letter of Credit Issuer shall have been provided in accordance with Section 2.14, and (b) with respect to the Swingline Lender, such Defaulting Lender’s proportionate share (based on the total of such Defaulting Lender’s participation in all outstanding Swingline Loans as determined in accordance with Section 2.07 as a proportion of the total amount of outstanding Swingline Loans) of outstanding Swingline Loans other than Swingline Loans as to which (i) such Defaulting Lender’s participation obligation has been reallocated pursuant to other Committed Lenders in accordance with the terms hereof, or (ii) Cash Collateral or other credit support acceptable to the Swingline Lender shall have been provided in accordance with Section 2.14.
“Funding Agent” means each financial institution designated on Schedule 1.01A that acts as agent for a Lender Group, or its successor appointed pursuant to Article 12.
“Funding Party” means any Lender, Letter of Credit Issuer or Liquidity Provider.
19
“Funding Ratio” means: (a) for a Governmental Plan Investor, the actuarial present value of the assets of the plan over the actuarial present value of the plan’s total benefit liabilities, as reported in such plan’s most recent audited financial statements; and (b) for an ERISA Investor; (i) the fair market value of the plan’s assets as defined under Section 430(g)(3) of the Code, unreduced for any prefunding balance or funding standard carryover balance as defined and provided for in Section 430(f) of the Code; over (ii) the plan’s funding target, as defined under Section 430(d) of the Code, without regard to the special at-risk rules of Section 430(i) of the Code, with each value as reported on the most recently filed Schedule SB to the Form 5500 by such plan with the United States Department of Labor.
“GAAP” means those generally accepted accounting principles and practices as in effect from time to time that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof, and that are consistently applied for all periods, after the date hereof, so as to properly reflect the financial position of Borrower, except that any accounting principle or practice required to be changed by the Financial Accounting Standards Board (or other appropriate board or committee of the said Board) in order to continue as a generally accepted accounting principle or practice may be so changed.
“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 supra national bodies such as the European Union or the European Central Bank).
“Governmental Plan Investor” means an Investor that is a governmental plan as defined in
Section 3(32) of ERISA.
“Guaranteed Debt” is defined in Section 6.01.
“Hazardous Material” means any substance, material, or waste which is or becomes regulated, under any Environmental Law, as hazardous to public health or safety or to the environment, including, but not limited to: (a) any substance or material designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, as amended, 33 U.S.C. §1251 et seq., or listed pursuant to Section 307 of the Clean Water Act, as amended; (b) any substance or material defined as “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et seq.; (c) any substance or material defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq.; or (d) petroleum, petroleum products and petroleum waste materials.
“Honor Date” is defined in Section 2.08(c)(i).
“Included Investor” means an Investor: (a)(i) that has, or that has a Credit Provider that has, met the Applicable Requirement for an Included Investor and that has been approved by Administrative Agent; or (ii) that has been so designated by Administrative Agent and all Committed Lenders (each in its sole discretion) as an Included Investor; and (b) that has delivered to Administrative Agent the information and documents required under Section 7.01(a)(xi) or 10.05(d), as applicable; provided that
(i) a Defaulting Investor shall no longer be an Included Investor until such time as all Exclusion Events affecting such Investor have been cured to the satisfaction of the Administrative Agent and all of the Committed Lenders (not to be unreasonably withheld, conditioned or delayed); and (ii) if an involuntary proceeding under clause (b) of the Exclusion Events is instituted against an Included Investor, such
20
Defaulting Investor shall be automatically reinstated as an Included Investor if such Exclusion Event is dismissed with sixty (60) days of the date such proceeding is instituted.
“Increasing Committed Lender” is defined in Section 2.17(a).
“Indebtedness” means “indebtedness” as contemplated in the Operating Agreement, and for the avoidance of doubt, shall not include the Preferred Units (as defined in the Operating Agreement).
“Indemnified Taxes” means: (a) Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower Party under any Loan Document; and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” is defined in Section 13.06(b).
“Individual Investor Concentration Limit” means, with respect to each Borrowing Base Investor, the concentration limits set forth below, calculated for each such Investor as a percentage of the aggregate Unfunded Commitments of all Included Investors and Designated Investors:
Investor Classification: | Concentration Limit: |
Included Investors | N/A |
Designated Investors | 3.5% |
provided, that, for purposes of calculating the above Individual Investor Concentration Limit for any Investor, each Investor and its investing affiliates shall be treated as a single Investor.
“Information” is defined in Section 13.18.
“Initial Notice” means a notice delivered by Borrower to the Investors under Section 14.1.3 of the Operating Agreement with respect to the treatment of Borrower’s assets as Plan Assets.
“Interest Option” means each of Daily Simple SOFR, the Term SOFR Rate and the Base Rate. “Interest Payment Date” means, for all Loans, the tenth (10th) calendar day of each calendar
month and the Maturity Date.
“Interest Period” means (a) with respect to any CP Rate Loan, (i) if the Related Commercial Paper is issued on a pool funded basis, a calendar month (or, in the case of the first Interest Period, the period from and including the date of the first advance hereunder to (but excluding) the first day of the next succeeding calendar month) and (ii) if the Related Commercial Paper is issued on a match-funded basis, the period of time allocated by the applicable Funding Agent to such Loan in its reasonable discretion; and (b) with respect to any Term SOFR Loan (other than Swingline Loans, which are addressed in Section 2.07(a)), a period commencing: (i) on the Borrowing date of such Term SOFR Loan; or (ii) on the termination date of the immediately preceding Interest Period in the case of a continuation of a Term SOFR Loan to a successive Interest Period as described in Section 2.02, and, if an Interest Period of one (1) month is elected, ending the first day of such calendar month occurring one (1) month thereafter as a Borrower Party shall elect in accordance with Section 2.02; provided, however, that with respect to clauses (a) and (b) above: (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; and (B) if the Interest Period would otherwise end after the Stated Maturity Date, such Interest Period shall end on the Stated Maturity Date.
21
“Investment Company Act” means the Investment Company Act of 1940 and the rules and regulations promulgated thereunder, as amended to the date hereof and from time to time hereafter, and any successor Investment Company Act.
“Investor” means a Member of Borrower.
“Investor Classification Letter” means that certain letter agreement dated as of the date hereof by and among Borrower and Administrative Agent, based on confirmation by the applicable Lenders, listing the Investors and their Capital Commitments and approving the Investors as Included Investors or Designated Investors or indicating they are neither Included Investors or Designated Investors, as it may be amended, restated, modified or supplemented from time to time (including pursuant to Section 10.05(b)). For avoidance of doubt, the Investor Classification Letter may be updated from time to time by Administrative Agent and Borrower, including through delivery and acceptance of a Compliance Certificate, Borrowing Base Certificate or borrowing base summaries prepared by Administrative Agent.
“Investor Concentration Limit” means the Individual Investor Concentration Limit and the Aggregate Investor Concentration Limit, as applicable.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Request for Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and a Borrower Party or entered into by a Borrower Party in favor of the Letter of Credit Issuer and relating to any such Letter of Credit, including, as applicable, any documentation relating to Cash Collateral (which may include, without limitation, a Collateral Account Assignment).
“Joinder Agreement” means a joinder agreement in the form of Exhibit L. “Key Person” means a “Key Person” as defined in the Operating Agreement.
“Key Person Event” means a “Key Person Event” as defined in the Operating Agreement. “KYC Compliance” is defined in Section 8.23.
“L/C Advance” means, with respect to each Committed Lender, such Committed Lender’s funding of its participation in any L/C Borrowing.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“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
22
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender Group” means each Lender Group identified by name on Schedule 1.01A to this Credit Agreement (as such Schedule 1.01A may be amended, supplemented or otherwise modified and in effect), including the Funding Agent for such Lender Group and each Committed Lender and each Conduit Lender (if any) in such Lender Group.
“Lender Group Joinder Agreement” means a joinder agreement, substantially the form of Exhibit K attached hereto, pursuant to which a new Lender Group becomes party to this Credit Agreement.
“Lender Group Limit” means, for each Lender Group, the sum of the Commitments of the Committed Lenders in such Lender Group.
“Lender Group Percentage” means, with respect to any Lender Group, the percentage equivalent of a fraction the numerator of which is the sum of the Commitments held by the Committed Lenders members of such Lender Group and the denominator of which is the sum of all Commitments. If the Commitments have terminated or expired, the Lender Group Percentages shall be the percentage equivalent of a fraction the numerator of which is the aggregate Principal Obligation held by the Lenders members of such Lender Group and the denominator of which is the total Principal Obligation.
“Lenders” means the Conduit Lenders, the Committed Lenders and, as the content requires, the Swingline Lender; provided, that each Lender must be a Qualified Purchaser.
“Lending Office” means, as to any Lender, the office or offices of such Lender (or an affiliate of such Lender) described as such in such Lender’s administrative questionnaire delivered to Administrative Agent, or such other office or offices as a Lender may from time to time notify Borrower and Administrative Agent.
“Letter of Credit” means a standby letter of credit issued in Dollars by the Letter of Credit Issuer pursuant to Section 2.08 either as originally issued or as the same may, from time to time, be amended or otherwise modified or extended.
“Letter of Credit Application” means an application and agreement for standby letter of credit by and between a Borrower Party and the Letter of Credit Issuer in a form acceptable to the Letter of Credit Issuer (and customarily used by it in similar circumstances) and conformed to the terms of this Credit Agreement, either as originally executed or as it may from time to time be supplemented, modified, amended, renewed, or extended.
“Letter of Credit Availability Period” means the period as may be agreed in writing by the Letter of Credit Issuer, Borrower, and all Lenders but not to extend beyond the final Maturity Date.
“Letter of Credit Collateralization Date” means the day that is the earlier of: (a) thirty (30) days prior to the Stated Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day); or (b) the Maturity Date.
“Letter of Credit Issuer” means, with respect to any Letter of Credit, Natixis in its capacity as the issuer of such Letter of Credit hereunder.
“Letter of Credit Liability” means the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate Unreimbursed Amounts, including all L/C Borrowings.
23
For all purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Letter of Credit Sublimit” means, at any time, $0 unless otherwise agreed to by all Lenders. “Lien” means any lien, mortgage, security interest, tax lien, pledge, encumbrance, or conditional
sale or title retention arrangement, or any other interest in property designed to secure the repayment of
Indebtedness, whether arising by agreement or under common law, any statute or other law, contract, or otherwise.
“Liquidity Agreement” means, with respect to a Conduit Lender, any agreement entered into by such Conduit Lender’s Liquidity Provider providing for (i) the issuance of one (1) or more letters of credit for the account of such Conduit Lender (or its Related Commercial Paper Issuer), (ii) the issuance of one (1) or more surety bonds for drawings under which such Conduit Lender (or its Related Commercial Paper Issuer) is obligated to reimburse such Liquidity Provider, (iii) the sale by such Conduit Lender (or its Related Commercial Paper Issuer) to such Liquidity Provider of its interests hereunder (or portions thereof or participations therein) or (iv) the making of loans or other extensions of credit to such Conduit Lender (or its Related Commercial Paper Issuer) in connection with Related Commercial Paper, together with any letter of credit, surety bond or other instrument issued thereunder.
“Liquidity Event” means, with respect to a Conduit Lender, the occurrence of any one (1) or more of the following events: (a) the inability of such Conduit Lender to fund any Loan by issuing, directly or indirectly, Commercial Paper, either at a commercially reasonable rate or rates or otherwise, as a result of any materially adverse circumstances or conditions in the domestic or foreign capital markets generally or Commercial Paper markets in particular, any outbreak or escalation or war or other hostilities or any other national or international calamity or crisis the effect of which, in the sole and absolute determination of its Administrator made in good faith, is to cause such a disruption as to make it impracticable to sell or enforce contracts for the sale of its Commercial Paper; (b) unless its Administrator elects otherwise, the date of termination of the commitment of any Liquidity Provider to such Conduit Lender under a Liquidity Agreement; (c) the Commercial Paper of such Conduit Lender shall not be rated at least “A-2” by S&P and at least “P-2” by Moody’s; or (d) the later of (i) the date its Administrator ceases to be the Administrator for such Conduit Lender and neither the Administrator nor any of its affiliates shall administer any other asset-backed commercial paper conduit, and (ii) the ninetieth (90th) day following the date its Administrator shall have publicly announced or otherwise notified the Borrower that, at such time as is specified in the related notice or announcement, it shall cease to be the Administrator for such Conduit Lender and neither such Administrator nor any of its Affiliates shall administer any other asset-backed commercial paper conduit.
“Liquidity Provider” means, with respect to a Conduit Lender, such Conduit Lender’s Funding Agent, a Committed Lender in such Conduit Lender’s Lender Group, or such other Person as is consented to in writing by the Administrative Agent and the Borrower (such consent not to be unreasonably withheld) which shall, pursuant to a Liquidity Agreement, now or hereafter extend credit or commit to extend credit to or for the account of, or to make purchases from, such Conduit Lender or its Related Commercial Paper Issuer or issue a letter of credit, surety bond or other instrument, in each case to support any obligations arising under or in connection with such Conduit Lender’s (or such Related Commercial Paper Issuer’s) commercial paper program.
24
“Loan” means a Syndicated Loan made pursuant to Section 2.02 and/or, as applicable, a Swingline Loan made pursuant to Section 2.07, including, without limitation, any Base Rate Loan, Daily SOFR Loan, Term SOFR Loan or CP Rate Loan made pursuant thereto.
“Loan Date” is defined in Section 2.02(a).
“Loan Documents” means this Credit Agreement, the Notes (including any renewals, extensions, re-issuances and refundings thereof), each Letter of Credit Application, each of the Collateral Documents, each Joinder Agreement, any agreement creating or perfecting rights in Cash Collateral or other credit support provided by a Borrower Party pursuant to the provisions of Section 2.13 and such other agreements and documents (including any fee letters), and any amendments or supplements thereto or modifications thereof, executed or delivered pursuant to the terms of this Credit Agreement or any of the other Loan Documents and any additional documents delivered in connection with any such amendment, supplement or modification.
“Loan Notice” means any request for a Borrowing, conversion or continuation of a Loan substantially in the form of Exhibit C attached hereto, containing the information specified therein, executed and delivered by the applicable Borrower Parties.
“Mandatory Prepayment Event” is defined in Section 3.04. “Margin Stock” is defined in Regulation U.
“Material Adverse Effect” means: (a) a material adverse effect upon, the operations, business, assets or financial condition of Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Borrower Party to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Borrower Party of any Loan Document to which it is a party.
“Material Amendment” is defined in Section 10.04.
“Maturity Date” means the earliest of: (a) the Stated Maturity Date; (b) the date upon which Administrative Agent declares the Obligations, or the Obligations become, due and payable after the occurrence of an Event of Default in accordance with the term of this Credit Agreement; (c) the date upon which Borrower terminates the Commitments pursuant to Section 3.06 or otherwise; or (d) two (2) months (or such shorter period as Administrative Agent and all Lenders may permit in their sole and absolute discretion) prior to any scheduled or known termination of the Operating Agreement.
“Maximum Accordion Amount” means $450,000,000term of the Borrower.
“Maximum Commitment” means, at any time the same is to be determined, an amount equal to the aggregate Commitments of the Committed Lenders, as such amount may be increased pursuant to Section 2.17 or reduced by Borrower pursuant to Section 3.06.
“Maximum Rate” means, on any day, the highest rate of interest (if any) permitted by applicable law on such day.
“Member” shall mean “Member” as defined in the Operating Agreement.
“Membership Interest” of any Investor means the units of such Investor in Borrower under the Operating Agreement.
25
“Minimum Collateral Amount” means, at any time: (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure while any Lender is a Defaulting Lender, an amount equal to 100% of the Fronting Exposure at such time; and
(b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to 100% of the outstanding amount of all Letter of Credit Liability.
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six (6) plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means any employee benefit plan which has two (2) or more contributing sponsors (including any Borrower Party or any ERISA Affiliate) at least two (2) of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Natixis” is defined in the preamble to this Credit Agreement.
“No Plan Asset Certificate” means a certificate from a Borrower Party, delivered by the relevant Responsible Officer of such Borrower Party, based on consultation with its counsel and in a form reasonably acceptable to Administrative Agent, (a) certifying that throughout the period beginning from the date of the prior No Plan Asset Certificate or the date of the Credit Agreement, as applicable, and continuing through the date of the subject No Plan Asset Certificate, “benefit plan investors” (as defined in Section 3(42) of ERISA) hold less than 25% of the total value of each class of equity interest in the Borrower Party (calculated in accordance with Section 3(42) of ERISA) and, accordingly, the underlying assets of such Borrower Party have not and do not constitute Plan Assets; and (b) covenanting that at all times following the date of such certificate, less than 25% of the total value of each class of equity interest in such Borrower Party (calculated in accordance with Section 3(42) of ERISA) will continue to be held by “benefit plan investors” (as defined in Section 3(42) of the ERISA) until such time, if any, that such Borrower Party delivers to Administrative Agent an Operating Company Opinion.
“Non-Defaulting Lender” means any Committed Lender that is not a Defaulting Lender.
“Non-Rated Included Investor” means any Investor that does not have a Rating meeting the relevant minimum requirement included in the definition of “Applicable Requirement” (or that does not have a Credit Provider, Sponsor, or Responsible Party that has such a Rating) and is otherwise deemed to be an Included Investor in accordance with such defined term.
“Notes” means the promissory notes provided for in Section 3.01(b), and all promissory notes delivered in substitution or exchange therefor, as such notes may be amended, restated, reissued, extended or modified; and “Note” means any one of the Notes.
“Obligations” means all present and future indebtedness, obligations, and liabilities of any Borrower Party to any of the Secured Parties (including, without limitation, the Guaranteed Debt), and all renewals and extensions thereof, or any part thereof (including, without limitation, Loans, Letter of Credit Liability, or both), arising pursuant to this Credit Agreement (including, without limitation, the indemnity provisions hereof) or represented by the Notes and each Letter of Credit Application, and all interest accruing thereon, and payable in accordance with terms hereof, regardless of whether such indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint, several, or joint and
26
several; together with all indebtedness, obligations, and liabilities of any Borrower Party to any of the Secured Parties evidenced or arising pursuant to any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Operating Agreement” means that certain Second Amended and Restated Limited Liability Company Agreement of Borrower dated as of September 19, 2014, including, without limitation, any Side Letters, as it may have been or may be amended, restated or supplemented from time to time.
“Operating Company” means an “operating company” within the meaning of Section 2510.3-101(c) of the Plan Assets Regulation.
“Operating Company Certificate” means a certificate from a Borrower Party, delivered by the relevant Responsible Officer of such Borrower Party, in a form reasonably acceptable to Administrative Agent, certifying that, based upon consultation with counsel, such Borrower Party has met the requirements to be an Operating Company for the twelve-month period following the end of the Annual Valuation Period for such Borrower Party.
“Operating Company Opinion” means a written opinion of counsel to the Borrower Parties, in a form reasonably acceptable to Administrative Agent, as to qualification of each Borrower Party, as applicable, as an Operating Company.
“Original Credit Agreement” is defined in the recitals hereto.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.06).
“Participant” is defined in Section 13.11(f). “Participant Register” is defined in Section 13.11(f). “Patriot Act” is defined in Section 13.19.
“Payment Recipient” is defined in Section 12.11(a).
“Pending Capital Call” means any Capital Call that has been made upon the Investors and that has not yet been funded by the applicable Investor, but with respect to which such Investor is not in default.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Borrower Party or any ERISA
27
Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under
Section 412 of the Code.
“Periodic SOFR Determination Day” means the day that is two (2) U.S. Government Securities Business Days prior to the first day of the relevant Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic SOFR Determination Day, the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Rate will be Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for the applicable tenor was published by the Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to the original Periodic SOFR Determination Day.
“Permitted Liens” means:
“Permitted RIC Distributions” means, with respect to each taxable year, any distributions determined by a Borrower Party in good faith to be required to be made in order to maintain a Borrower Party’s tax status under Section 852 of the Internal Revenue Code or to avoid the payment of any tax imposed under Section 852(b)(1), Section 852(b)(3) or Section 4982 of the Internal Revenue Code, as certified by a Borrower Party to the Administrative Agent in a RIC Distribution Notice delivered to the Administrative Agent.
“Person” means an individual, sole proprietorship, joint venture, association, trust, estate, business trust, corporation, non-profit corporation, partnership, limited liability company, sovereign government or agency, instrumentality, or political subdivision thereof, or any similar entity or organization.
“Plan” means any Pension Plan or any retirement medical plan, each as established or maintained for employees of any Borrower Party or any ERISA Affiliate, or any such Plan to which any Borrower Party or any ERISA Affiliate is required to contribute on behalf of any of its employees.
28
“Plan Assets” means “plan assets” within the meaning of the Plan Assets Regulation or otherwise.
“Plan Assets Regulation” means 29 C.F.R. §2510.3-101, et seq., as modified by Section 3(42) of
ERISA.
“Portfolio Asset” means any “Portfolio Investment” (as defined in the Operating Agreement) directly held by the Borrower, including, without limitation, any equity interests of the Borrower in any Portfolio Company (as defined in the Operating Agreement).
“Prepayment Notice” means a written notice in substantially the form of Exhibit P attached
hereto.
“Prime Rate” means, on any day, the rate of interest in effect for such day as publicly announced from time to time by Natixis as its “prime rate.” The “prime rate” is a rate set by Natixis based upon various factors including Natixis’ 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 such rate announced by Natixis shall take effect at the opening of business on the day specified in the public announcement of such change.
“Principal Obligation” means the amount of (a) the aggregate outstanding principal amount of the Loans (including Swingline Loans); plus (b) the Letter of Credit Liability.
“Property” means any real property, improvements thereon and any leasehold or similar interest in real property which is owned, directly or indirectly, by any Borrower Party, or secures any investment of any Borrower Party.
“Qualified Borrower” means any entity, which entity may be organized in the United States or outside of the United States, in which Borrower owns a direct or indirect ownership interest or through which Borrower will acquire an investment, the indebtedness of which entity can be guaranteed by Borrower pursuant to the terms of the Operating Agreement, and which entity has executed and delivered this Credit Agreement on the Closing Date or a Joinder Agreement and in respect of which entity Borrower has guaranteed the Obligations thereof pursuant to Article 6.
“Qualified Purchaser” means a “qualified purchaser” within the meaning of Section 2(a)(51) of the Investment Company Act.
“Qualified Required Lenders” means, at any time, the Required Lenders including the Administrative Agent.
“Rated Included Investor” means any Investor that has a Rating meeting the relevant minimum requirement included in the definition of “Applicable Requirement” (or that has a Credit Provider, Sponsor, or Responsible Party that has such a Rating).
“Rating” means, for any Person, its senior unsecured debt rating (or equivalent thereof, such as, but not limited to, a corporate credit rating, issuer rating/insurance financial strength rating (for an insurance company), general obligation rating or credit enhancement program rating (for a governmental entity), or revenue bond rating (for an educational institution)) from either of S&P or Moody’s.
“Rating Agencies” means S&P, Moody’s and Fitch, or any other nationally-recognized statistical rating agency which has been approved by the Administrative Agent.
29
“Recipient” means Administrative Agent, any Lender, any Agent, any Liquidity Provider, the Letter of Credit Issuer, or any other recipient of any payment to be made by or on account of any obligation of any Borrower Party hereunder.
“Register” is defined in Section 13.11(e).
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, from time to time in effect, and shall include any successor or other regulation relating to reserve or margin requirements, applicable to member banks of the Federal Reserve System.
“Related Commercial Paper” means, with respect to a Conduit Lender, at any time of determination, Commercial Paper of such Conduit Lender or its Related Commercial Paper Issuer the proceeds of which are then allocated by the administrator of such Conduit Lender or its Related Commercial Paper Issuer as the source of funding the acquisition or maintenance of such Conduit Lender’s Principal Obligation hereunder.
“Related Commercial Paper Issuer” means a multi-seller commercial paper conduit that issues Commercial Paper the proceeds of which are loaned to a Conduit Lender as the source of funding the acquisition or maintenance of its Principal Obligation hereunder.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of Hazardous Materials into the environment, or into or out of any Property, including the movement of any Hazardous Material through or in the air, soil, surface water, groundwater, of any Property.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Removal Effective Date” is defined in Section 12.06(b).
“Repayment Percentage” means, with respect to any Lender, (a) with respect to any Borrowing, the percentage equivalent of a fraction the numerator of which is such Lender’s applicable Principal Obligation of such Borrowing and the denominator of which is the aggregate Principal Obligation of such Borrowing; (b) with respect to any Letter of Credit, the percentage equivalent of a fraction the numerator of which is such Lender’s applicable Letter of Credit Liability and the denominator of which is the aggregate Letter of Credit Liability; and (c) with respect to any other Obligation, the percentage equivalent of a fraction the numerator of which is such Lender’s Principal Obligation and the denominator of which is the aggregate Principal Obligation.
“Request for Credit Extension” means: (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice; and (b) with respect to an L/C Credit Extension, the related Request for Letter of Credit and Letter of Credit Application.
“Request for Letter of Credit” means a request for the issuance of a Letter of Credit substantially in the form of Exhibit N attached hereto.
30
“Required Lenders” means, at any time, (a) Committed Lenders having its share of the Principal Obligation and its Unused Commitments representing more than 50% of the sum of (x) the total Principal Obligation then outstanding and (y) the aggregate Unused Commitments at such time, provided that in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded and the pro rata shares of the aggregate Principal Obligation and Unused Commitments of Lenders shall be redetermined for voting purposes only, to exclude the pro rata shares of the aggregate Principal Obligation and Unused Commitments of such Defaulting Lenders, and (b) at all times when two (2) or more Committed Lenders (other than Defaulting Lenders) are party to this Credit Agreement, the term “Required Lenders” shall in no event mean fewer than two Committed Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means: (a) in the case of a corporation, its chief executive officer, president, chief financial officer, senior vice president, any vice president or treasurer, and, in any case where two Responsible Officers are acting on behalf of such corporation, the second such Responsible Officer may be a secretary or assistant secretary; (b) in the case of a limited partnership, the Responsible Officer of the general partner, acting on behalf of such general partner in its capacity as general partner;
(c) in the case of a limited liability company, the Responsible Officer of the managing member, acting on behalf of such managing member in its capacity as managing member; and (d) and, solely for purposes of notices given pursuant to Article 3, any other officer or employee of the applicable Borrower Party so designated by any of the foregoing officers in a notice to the Administrative Agent.
“Responsible Party” means, for any Governmental Plan Investor: (a) if the state or political subdivision under which the Governmental Plan Investor operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls, the state or political subdivision as applicable; and (b) otherwise, the Governmental Plan Investor itself.
“Returned Capital” means, for any Investor, any part of any Capital Contribution that is redistributed to such Investor and is, in accordance with the terms of the Operating Agreement, added back to such Investor’s Unfunded Commitment; in each case which amount has been set forth as “Returned Capital” on a certificate of Borrower delivered to Administrative Agent.
“Revolving Credit Exposure” means, with respect to any Lender at any time, the outstanding Principal Obligation of such Lender’s Loans at such time.
“RIC” means a person qualifying for treatment as a “regulated investment company” under the
Code.
“RIC Distribution Notice” means a written notice setting forth the calculation of any Permitted RIC Distribution with respect to the Borrower and certifying that the Borrower remains a “regulated investment company” under Subchapter M of the Code.
“S&P” means S&P Global Ratings, a subsidiary of the S&P Global, Inc., and any successor
thereto.
“Same Day Funds” means immediately available funds.
“Sanction(s)” means any applicable international economic sanction administered or enforced by a United States Governmental Authority (including, without limitation, OFAC), the United Nations
31
Security Council, the European Union, Her Majesty’s Treasury or other sanctions authority applicable to Borrower.
“Sanctioned Person” means (a) a Person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx, or as otherwise published from time to time, or (b)(i) the government of a Designated Jurisdiction or an agency of the government of a Designated Jurisdiction, (ii) an organization controlled by a Designated Jurisdiction or organized under the laws of a Designated Jurisdiction, or (iii) an individual ordinarily resident in a Designated Jurisdiction.
“Secured Parties” means, collectively, the Lenders, the Letter of Credit Issuer, the Agents, the Liquidity Providers and the Indemnitees.
“Security Agreement” means a security agreement substantially in the form of Exhibit D-1 attached hereto, executed and delivered by Borrower to Administrative Agent for the benefit of Secured Parties, as such agreement may be amended, modified, supplemented and/or restated from time to time.
“Side Letter” means any “side letter” (if any) between an Investor and Borrower.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOX” means Section 402 of the Sarbanes-Oxley Act of 2002 (codified as Section 13(k) of the Securities Exchange Act of 1934, as amended).
“SOX Insiders” means the employees (or any of their spouses) of The TCW Group, Inc., the Borrower, TCW Asset Management Company LLC, or any Affiliate thereof, in each case who, in the reasonable opinion of Borrower, constitute “insiders” for purposes of SOX from time to time.
“Spin-Off” has the meaning assigned to it in the Operating Agreement. “Spin-Off Notice” is defined in Section 9.01(e).
“Sponsor” of an ERISA Investor means a sponsor as that term is understood under ERISA, specifically, the entity that established the plan and is responsible for the maintenance of the plan and, in the case of a plan that has a sponsor and participating employers, the entity that has the ability to amend or terminate the plan.
“Stated Maturity Date” means April 54, 20242025, as it may be extended pursuant to Section
2.16.
“Subscription Agreement” means a Subscription Agreement executed by an Investor in connection with the subscription for a Membership Interest in Borrower.
“Subsequent Committed Lender” is defined in Section 2.17(a).
“Subsequent Investor” is defined in Section 10.05(d).
32
“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 securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one (1) 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 Borrower.
“Super Majority Lenders” means, at any time, (a) Committed Lenders (one of which must be the Administrative Agent) having its share of the Principal Obligation and its Unused Commitments representing more than 75% of the sum of (x) the total Principal Obligation then outstanding and (y) the aggregate Unused Commitments at such time, provided that in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded and the pro rata shares of the aggregate Principal Obligation and Unused Commitments of Lenders shall be redetermined for voting purposes only, to exclude the pro rata shares of the aggregate Principal Obligation and Unused Commitments of such Defaulting Lenders, and (b) at all times when two (2) or more Committed Lenders (other than Defaulting Lenders) are party to this Credit Agreement, the term “Super Majority Lenders” shall in no event mean fewer than two Committed Lenders (one of which must be the Administrative Agent).
“Swingline” means the revolving credit facility made available by the Swingline Lender pursuant to Section 2.07.
“Swingline Availability Period” means the period as may be agreed in writing by the Swingline Lender, Borrower, and all Lenders but not to end after the Maturity Date.
“Swingline Lender” means Natixis, in its capacity as provider of Swingline Loans, or any permitted successor Swingline Lender hereunder.
“Swingline Loan” has the meaning specified in Section 2.07(a).
“Swingline Obligation” means the aggregate outstanding principal amount of the Swingline
Loans.
“Swingline Sublimit” means an amount equal to $0 unless otherwise agreed to by all Lenders. “Syndicated Loan” means a Loan made pursuant to Section 2.02, including, without limitation,
any Base Rate Loan, Daily SOFR Loan, Term SOFR Loan or CP Rate Loan made pursuant thereto.
“Taxes” means all present or future taxes, including, without limitation, stamp taxes (including mortgage recording 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.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Administrative Agent in its reasonable discretion).
“Term SOFR Loan” means a Loan that bears interest at a rate based on the Term SOFR Rate, other than pursuant to clause (iii) of the definition of “Base Rate”.
33
“Term SOFR Rate” means:
“Term SOFR Reference Rate” means the forward -looking term rate based on SOFR. “Trade Date” has the meaning set forth in Section 13.11(b)(i)(B).
“Transactions” means the execution, delivery and performance by the Borrower Parties of this Credit Agreement and the other Loan Documents, the Borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“Type of Syndicated Loan” means any Syndicated Loan (i.e., a Base Rate Loan, a Daily SOFR Loan, a Term SOFR Loan or a CP Rate Loan).
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a public holiday or the equivalent for banks under the holiday schedule recommended by the Securities Industry and Financial Markets Association (“SIFMA”) for the applicable year. In the event SIFMA ceases to publish such holiday schedule or an equivalent on a regular basis, the term “U.S. Government Securities Business Day” shall be determined on any day by reference to such other regularly published holiday schedules for such date applicable to commercial banks as is determined by Administrative Agent in its reasonable discretion.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 4.01(e)(ii)(B)(3). “UCC” means the Uniform Commercial Code as adopted in the State of New York and any other
state, which governs creation or perfection (and the effect thereof) of security interests in any collateral
for the Obligations.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
34
“Unfunded Commitment” means, with respect to any Investor at any time, the Capital Commitment of such Investor, minus the aggregate Capital Contributions made, or deemed made under the Operating Agreement to Borrower by such Investor, plus Returned Capital attributed to such Investor, but “Unfunded Commitment” shall not include that portion of an Investor’s Capital Commitment that is, at such time, subject to a Pending Capital Call.
“Unreimbursed Amount” is defined in Section 2.08(c)(i).
“Unused Commitment” means the difference between (A) a Committed Lender’s Commitment and (B) such Committed Lender’s Lender Group’s outstanding Principal Obligation.
“Withholding Agent” means any Borrower Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
35
36
37
Section 4.05), and re-borrow hereunder, during the Availability Period. Each Borrowing pursuant to this Section 2.01 shall be funded ratably by each Lender Group in accordance with its Applicable Percentage and, if applicable, by a Committed Lender in a particular Lender Group in accordance with such Committed Lender’s Applicable Percentage. No Lender shall be obligated to fund any Loan if the interest rate applicable thereto hereunder would exceed the Maximum Rate in effect with respect to such Loan.
38
Lender Group to make the Syndicated Loan, and such Conduit Lender may from time to time during the Availability Period, in its sole discretion, agree or decline to make the Syndicated Loan. At no time will any Conduit Lender have any obligation to fund a Syndicated Loan or participate in any Letter of Credit or Swingline Loans. At all times on and after the Conduit Investment Termination Date for a Conduit Lender, or if Conduit Lender has failed for whatever reason to fund its portion of a Borrowing in full, all Loans shall be made by the Committed Lenders of such Conduit Lender’s Lender Group. At any time when a Conduit Lender has rejected a request for Syndicated Loan (it being understood that if a Conduit Lender does not fund any Syndicated Loan in relation to which all of the conditions precedent set forth in Section
7.02 have been satisfied on the date set forth in the applicable Loan Notice, such Conduit Lender shall be deemed to have rejected the request for Syndicated Loan), such Conduit Lender’s Funding Agent shall so notify the Committed Lenders in such Conduit Lender’s Lender Group and such Committed Lenders shall make such Syndicated Loan in accordance with their respective Applicable Percentage. Notwithstanding anything contained in this Section 2.02(c) or elsewhere in this Credit Agreement to the contrary, no Committed Lender shall be obligated to provide Administrative Agent or any Borrower Party with funds in connection with a Syndicated Loan in an amount that would result in such Committed Lender’s Principal Obligation exceeding its Commitment then in effect by any such Committed Lender as a Liquidity Provider under a Liquidity Agreement, and all Loans funded by a Conduit Lender shall be CP Rate Loans.
$1,000,000, and each Borrowing of, conversion to or continuation of Base Rate Loans shall be in an amount that is an integral multiple of $100,000 and not less than $500,000; provided, however, that a Base Rate Loan may be in an aggregate amount that is equal to the entire unused balance of the total Commitments or in an aggregate amount that is required for the reimbursement of a Letter of Credit under Section 2.08(c).
39
p.m. in each case on the Loan Date in Same Day Funds, and upon fulfillment of all applicable conditions set forth herein, Administrative Agent shall promptly deposit such proceeds in Same Day Funds in such Borrower Party’s account at Administrative Agent specified in the Loan Notice, or, if requested by such Borrower Party in the Loan Notice, shall wire transfer such funds as requested; provided, however, that (i) if, in connection with a particular Credit Extension, the 2:00 p.m. time in this sentence is not met as a result of an operational or technical error, issue or oversight, then the 2:00 p.m. time in this sentence shall instead be 3:00 p.m. and (ii) if a single entity is the only Lender, such Lender may wire such funds directly to the Borrower Party (or as directed by the Borrower Party) as specified in the Loan Notice. The failure of any Committed Lender to advance the proceeds of its respective share of any Borrowing required to be advanced hereunder shall not relieve any other Committed Lender of its obligation to advance the proceeds of its Applicable Percentage of any Borrowing required to be advanced hereunder. Absent contrary written notice from a Funding Agent prior to the proposed Loan Date that a Conduit Lender or a Committed Lender in such Lender Group will not make available to Administrative Agent such Lender’s share, as applicable, of such Borrowing, Administrative Agent may assume that each Committed Lender and each Conduit Lender, as the case may be, has made its Applicable Percentage of the requested Borrowing available to Administrative Agent on the applicable Loan Date and in the applicable currency, and Administrative Agent may, in reliance upon such assumption (but is not required to), make available to the appropriate Borrower Party a corresponding amount.
40
41
42
provided in Section 2.05(a) above) such amount shall bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate.
43
exceed at any time outstanding the amount of the Swingline Sublimit; provided, however, that after giving effect to any Swingline Loan or purchase or funding any risk participations therein:
(i) the Principal Obligation shall not exceed the Available Commitment; (ii) no Committed Lender’s Revolving Credit Exposure shall exceed such Committed Lender’s Commitment (minus any amounts funded in respect of a Loan hereunder (but not used to fund such Loan and accordingly not included in the Principal Obligation) by any such Committed Lender as a Liquidity Provider under a Liquidity Agreement); (iii) the Principal Obligation of each Lender Group shall not exceed such Lender Group’s Lender Group Limit; and (iv) the Swingline Obligation shall not exceed the Swingline Sublimit; and provided, further, that the Borrower Parties shall not: (A) use the proceeds of any Swingline Loan to refinance any outstanding Swingline Loan; or (B) except with the approval of the Swingline Lender, request more than two
(2) Swingline Loans during any given week. Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower Parties may borrow under this Section 2.07, prepay under Section 3.05, and re-borrow under this Section 2.07. Each Swingline Loan shall bear interest payable in arrears on the outstanding principal amount thereof, from the applicable Borrowing date thereof to the date of payment of such Swingline Loan, at a rate per annum equal to the Base Rate plus the Applicable Margin for Base Rate Loans and shall only be made in Dollars. Immediately upon the making of a Swingline Loan, each Committed Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to such Committed Lender’s Applicable Percentage of the principal amount of such Swingline Loan.
2.03) under Section 2.02 to repay such Swingline Loan. Each such notice must be made by delivery to the Swingline Lender and the Administrative Agent of a written Loan Notice for such Swingline Loan and an applicable Syndicated Loan (to refinance such Swingline Loan), appropriately completed and signed by a Responsible Officer of such Borrower Party. Promptly after receipt by the Administrative Agent of any Loan Notice for a Swingline Loan, Administrative Agent shall notify the Swingline Lender of the amount of the applicable Swingline Loan. Unless the Swingline Lender has received notice from the Administrative Agent (including at the request of any Lender) prior to 12:00 noon on the date of the proposed Swingline Borrowing: (A) directing the Swingline Lender not to make such Swingline Loan as a result of the limitations set forth in the proviso to the first sentence of Section 2.07(a); or (B) that one (1) or more of the applicable conditions specified in Article 7 is not then satisfied, then, subject to the terms and conditions hereof, the Swingline Lender will, not later than 4:00 p.m. on the Borrowing date specified in such Loan Notice, make the amount of its Swingline Loan available to the Administrative Agent’s Office for the account of the applicable Borrower Party at its office in Same Day Funds, and upon fulfillment of the applicable conditions set forth herein, Administrative Agent shall promptly deposit such proceeds in Same Day Funds in such Borrower Party’s account specified in the Loan Notice, or, if requested by such Borrower Party in the Loan Notice, shall wire transfer such funds as requested. Absent contrary written notice from the Swingline Lender prior to the proposed Borrowing date that the Swingline Lender will not make available to Administrative Agent the Swingline Loan, its Administrative Agent may assume that the Swingline Lender has made its share of the requested Swingline Loan available
44
to Administrative Agent on the requested Borrowing date, and Administrative Agent may, in reliance upon such assumption (but is not required to), make available to the appropriate Borrower Party a corresponding amount by crediting the account of such Borrower Party specified in such Loan Notice.
45
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 Swingline Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by the Swingline Lender in accordance with banking industry rules on interbank compensation; provided, however, that if such Lender Group fails to pay its amount upon Administrative Agent’s demand: (A) promptly on demand, to the extent such funds are available in the applicable Collateral Account for such purpose; and (B) otherwise, to the extent that it is necessary for Borrower to issue Capital Call Notices to fund such required payment, within fifteen (15) Business Days after Administrative Agent’s demand, Borrower shall issue such Capital Call Notices and shall make such payment promptly after the related Capital Contributions are received. A certificate of the Swingline Lender submitted to any Committed Lender (through the Administrative Agent and the applicable Funding Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.
46
2.07 to refinance such Lender Group’s share of any Swingline Loan, interest in respect of such share shall be solely for the Administrative Agent for the account of the Swingline Lender.
47
48
by Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article 12 included Letter of Credit Issuer with respect to such acts or omissions; and (B) additionally provided herein with respect to Letter of Credit Issuer.
(3) the nature of the proposed amendment; and (4) such other matters as the Letter of
Credit Issuer may reasonably require. Additionally, the applicable Borrower Party shall furnish to the Letter of Credit Issuer and Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or Administrative Agent may reasonably require. Each Request for Credit Extension submitted by a Borrower Party shall be deemed to be a representation and warranty that the conditions specified in Section 7.02(a) and (b) have been satisfied on and as of the date of the issuance or amendment of any Letter of Credit.
49
or amendment of the applicable Letter of Credit, that one (1) or more applicable conditions contained in Article 7 shall not then be satisfied, then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a Letter of Credit for the account of such Borrower Party or enter into the applicable amendment, as the case may be, in each case in accordance with the Letter of Credit Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Committed Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Letter of Credit Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Committed Lender’s Applicable Percentage times the amount of such Letter of Credit. With the approval of Administrative Agent and the Letter of Credit Issuer, the risk participation of each Committed Lender shall terminate upon the occurrence of the Maturity Date and the full and final payment of the Obligations (other than the Cash Collateralized Letter of Credit Liability described below), and the Issuer Documents, rather than this Credit Agreement, shall govern the rights and obligations of Administrative Agent, Letter of Credit Issuer and Borrower Parties with respect to such Letter of Credit Liability, so long as Borrower has Cash Collateralized all Letter of Credit Liability then outstanding, to the satisfaction of Administrative Agent and Letter of Credit Issuer, in their respective sole discretion.
50
(1) Business Day in advance of its funding obligation hereunder), whereupon, subject to the provisions of Section 2.08(c)(iii), each Committed Lender that so makes funds available shall be deemed to have made a Base Rate Loan to Borrower in such amount. Administrative Agent shall remit the funds so received to the Letter of Credit Issuer.
51
52
53
thereof on demand of Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Committed Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect.
Each Borrower Party shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower Party’s instructions or other irregularity, such Borrower Party will immediately
54
notify the Letter of Credit Issuer. Each Borrower Party shall be conclusively deemed to have waived any such claim against the Letter of Credit Issuer and its correspondents unless such notice is given as aforesaid.
55
the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.
56
make funds available to Borrower as described herein and for no other purposes and shall be due and payable whether or not the conditions precedent in Section 7.02 are satisfied.
57
SOFR Loans) shall be made on the basis of a three hundred sixty (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 three hundred sixty-five (365)-day year). Interest shall accrue on each Loan from and including 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 3.03, bear interest for one (1) day.
3.04 sets forth certain additional requirements for the delivery of Cash Collateral or other credit support in certain circumstances, and (y) Section 2.07 contemplates the delivery of Cash Collateral or other credit support in connection with the issuance of Swingline Loans.
58
for any reason such Borrowing is not available in an amount sufficient to fully Cash Collateralize such amount of the Letter of Credit Liability, within fifteen (15) Business Days of receipt of such notice, with the proceeds of a Capital Call (and Borrower shall issue such Capital Call Notices during such time, and shall Cash Collateralize such Letter of Credit Liability immediately after the Capital Contributions relating to such Capital Call are received).
2.14; (b) as Borrower may request (so long as no Default or Event of Default exists), to the funding of any Syndicated Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Credit Agreement, as determined by Administrative Agent; (c) if so determined by Administrative Agent and Borrower, to be
59
held in a deposit account and released pro rata in order to: (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Credit Agreement; and (y) Cash Collateralize the Letter of Credit Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Credit Agreement, in accordance with Section 2.14; (d) to the payment of any amounts owing to the Lenders, the Letter of Credit Issuer or Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Letter of Credit Issuer or Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement; (e) so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Credit Agreement; and (f) to such 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 or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share; and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Syndicated Loans of, and Letter of Credit Liability owed to, all Lender Groups of Non-Defaulting Lenders in accordance with their respective Repayment Percentage (without giving effect to the Principal Obligation of such Defaulting Lender) prior to being applied to the payment of any Syndicated Loans of, or Letter of Credit Liability owed to, such Defaulting Lender until such time as all Syndicated Loans and funded and unfunded participations in Letter of Credit Liability and Swingline Loans are held by the Committed Lenders in accordance with each such Committed Lender’s Repayment Percentage (without giving effect to the Principal Obligation held by such Defaulting Lender) without giving effect to Section 2.15(a)(iv). 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 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(A) or clause (B) above, Borrower shall: (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letter of Credit Liability or
60
Swingline Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below; (y) pay to the Letter of Credit Issuer and Administrative Agent for the account of the Swingline Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Letter of Credit Issuer’s or Swingline Lender’s Fronting Exposure to such Defaulting Lender; and (z) Borrower shall not be required to pay the remaining amount of any such fee.
61
to Committed Lender will constitute a waiver or release of any claim of any party hereunder arising from that Committed Lender’s having been a Defaulting Lender.
2.16 Extension of Stated Maturity Date(v) No Default or. So long as no (x) Event of Default or Default shall have occurred and be continuing or would result from such increase in the Committed Lenders’ Commitments;
8.06 shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 9.01;, Borrower may extend the Stated Maturity Date to a Business Day that is not later than three (3) months after the then-effective Stated Maturity Date, no more than once, upon (the date such conditions are satisfied, the “Facility Extension Effective Date”): (a) delivery of a Facility Extension Request to Administrative Agent not less than ten (10) days prior to the Stated Maturity Date then in effect; and (b) payment to Administrative Agent for the benefit of the Lenders of a facility extension fee as set forth in a separate fee letter agreement.
62
63
B, attached hereto (with blanks appropriately completed in conformity herewith); and (d) be made by the Borrower. The Borrower agrees, from time to time, upon the request of Administrative Agent or any applicable Funding Agent, to reissue new Notes, in accordance with the terms and in the form heretofore provided, to any Committed Lender or Conduit Lender and to any Assignee of such Lender in accordance with Section 13.12, in substitution for the Notes previously issued by the Borrower to the Funding Agent or other party, as appropriate and in accordance herewith for the affected Lender, and such previously issued Notes shall be returned to the Borrower marked “cancelled”.
64
that, if an Event of Default shall occur, then all Swingline Loans shall immediately become due and payable.
65
Loans; provided, however, that if funds are not available to such Borrower Party in the Collateral Account to make payment on demand, to the extent that it is necessary for Borrower to issue Capital Call Notices to fund such required payment, such payment shall be made within fifteen (15) Business Days after Administrative Agent’s demand (and, in any event, Borrower shall issue such Capital Call Notices and shall make such payment promptly after the related Capital Contributions are received). If any Borrower Party and such Committed Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to such Borrower Party the amount of such interest paid by such Borrower Party for such period. If such Committed Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Committed Lender’s Syndicated Loan included in such Borrowing as of the date of such Borrowing. Any payment by a Borrower Party shall be without prejudice to any claim such Borrower Party may have against a Committed Lender that shall have failed to make such payment to Administrative Agent.
A notice of Administrative Agent to any Committed Lender or any Borrower Party with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
66
Administrative Agent, for the benefit of Lenders, an amount sufficient that, after giving effect to such prepayment and any Capital Calls to fund such prepayment, the Principal Obligation would no longer exceed the Available Commitment (except to the extent any Swingline Loan is outstanding and the applicable Borrower Party elects to pay all or any portion of such excess with respect to any Swingline Loan, in which case such payment shall be for the benefit of Swingline Lender) (such amount, the “Required Payment”), in Same Day Funds: (A) promptly following Borrower’s knowledge of such Mandatory Prepayment Event (but in no event later than three (3) Business Days after the earlier of (I) Administrative Agent’s demand, and (II) Borrower’s knowledge of such Mandatory Prepayment Event), to the extent such funds are available in the Collateral Account; and (B) within fifteen (15) Business Days of the earlier of (I) Administrative Agent’s demand, and (II) Borrower’s knowledge of such Mandatory Prepayment Event, to the extent that it is necessary for Borrower to issue Capital Call Notices to fund such Required Payment (and Borrower shall issue such Capital Call Notices during such time) and shall pay such Required Payment, promptly after the Capital Contributions relating to such Capital Call Notice are received, together with all funds then on deposit in the Collateral Account, equal the Required Payment to be paid pursuant to this Section 3.04(a).
67
principal amount thereof then outstanding. Each such Prepayment Notice shall specify the date (which shall be a Business Day) and amount of such prepayment, if applicable, the Type(s) of Syndicated Loans to be prepaid. Administrative Agent will promptly notify each Funding Agent of its receipt of each such Prepayment Notice, and of the amount of its Lender Group’s Repayment Percentage of such prepayment. If such Prepayment Notice is given by a Borrower Party, such Borrower Party shall make such prepayment and the payment amount specified in such Prepayment Notice shall be due and payable on the date specified therein. With respect to any Loan prepaid pursuant to this Section 3.05, all accrued interest thereon shall be paid in accordance with Section 3.02(b) and any additional amounts required pursuant to Article 4 with respect thereto shall be promptly paid following receipt of an accurate and correct invoice for such amounts. Subject to Section 2.15, each such prepayment shall be applied to the Principal Obligation held by each Lender in accordance with its applicable Repayment Percentage.
$1,000,000 in excess thereof, (iii) the Maximum Commitment hereunder shall at no time equal an aggregate amount of less than $25,000,000, (iv) Borrower shall not terminate or reduce the aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Principal Obligation would exceed the Available Commitments; and (v) if, after giving effect to any reduction of the aggregate Commitments, the Letter of Credit Sublimit or the Swingline Sublimit exceeds the amount of the aggregate Commitments, such Letter of Credit Sublimit or Swingline Sublimit, as applicable, shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Committed Lenders of any such notice of termination or reduction of the aggregate Commitments. Any reduction of the aggregate Commitments shall be applied to the Commitment of each Committed Lender according to its pro rata share thereof. All fees accrued until the effective date of any termination of the aggregate Commitments shall be paid on the effective date of such termination.
68
Taxes.
69
70
(10) days after demand therefor: (A) the Administrative Agent against any Indemnified Taxes attributable to such Lender, Swingline Lender or the Letter of Credit Issuer (but only to the extent that any Borrower Party has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower Parties to do so); (B) Administrative Agent against any Taxes attributable to such Person’s failure to comply with the provisions of Section 13.11(f) relating to the maintenance of a Participant Register; and (C) Administrative Agent against any Excluded Taxes attributable to Person, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent or the Borrower Parties shall be conclusive absent manifest error. Each Lender, Swingline Lender and the Letter of Credit Issuer hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender, Swingline Lender or the Letter of Credit Issuer, as the case may be, under this Credit Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 4.01(c)(ii).
71
Borrower or Administrative Agent, such properly completed and executed documentation requested by Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Recipient, if reasonably requested by a Borrower Party or Administrative Agent, shall deliver such other documentation prescribed by applicable Law, by the taxing authorities of any jurisdiction or reasonably requested by a Borrower Party or Administrative Agent as will enable such Borrower Party or Administrative Agent to determine whether or not such Recipient is subject to backup withholding or information reporting requirements. A Liquidity Provider that is a Foreign Recipient shall not be entitled to the benefits of this Section 4.01 unless Borrower is notified of the Liquidity Agreement and consents to such benefits and such Liquidity Provider, for the benefit of the Borrower Parties, complies with this Section 4.01. Notwithstanding anything to the contrary in the preceding three sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Sections 4.01(e)(ii)(A), 4.01(e)(ii)(B) and 4.01(e)(ii)(D)) shall not be required if in the Recipient’s reasonable judgment such completion, execution or submission would subject such Recipient to any material unreimbursed cost or expense (provided that such Recipient’s internal costs of completing, executing or submitting such documentation shall not be considered to be material unreimbursed costs or expenses) or would materially prejudice the legal or commercial position of such Recipient.
72
(x) a certificate substantially in the form of Exhibit M-1 to the effect that such Foreign Recipient is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of such Borrower Party within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”); and (y) executed originals of IRS Form W-8BEN or W-8BEN-E (or applicable successor form); or
U.S. Tax Compliance Certificate substantially in the form of Exhibit M-2 or Exhibit M-3, IRS Form W-9, or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Recipient is a partnership and one (1) or more direct or indirect partners of such Foreign Recipient are claiming the portfolio interest exemption, such Foreign Recipient may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit M-4 on behalf of each such direct and indirect partner;
73
requested by Borrower or Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Recipient has complied with such Recipient’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Credit Agreement.
74
determine or charge interest rates based upon Daily Simple SOFR or the Term SOFR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Funding Party to purchase or sell, or to take deposits of, Dollars in the applicable interbank market, on notice thereof by such Funding Party to Borrower through its Funding Agent or Administrative Agent: (a) any obligation of such Funding Party to make or continue Loans accruing interest at Daily Simple SOFR or the Term SOFR Rate or to convert any portion of Loans accruing interest at the Base Rate to a portion of Loans accruing interest at Daily Simple SOFR or the Term SOFR Rate will be suspended; and (b) if such notice asserts the illegality of such Funding Party making or maintaining Base Rate Loans for which the interest rate is determined by reference to the Term SOFR Rate, the interest rate for Base Rate Loans made by such Funding Party will, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR Rate component of the Base Rate, in each case until such Funding Party notifies its Funding Agent (which promptly notifies Administrative Agent and Borrower) that the circumstances giving rise to such determination no longer exist (which it agrees to do promptly upon becoming aware that such conditions cease to exist). Upon receipt of such notice: (i) Borrower will, upon demand from such Funding Party (with a copy to Administrative Agent), convert Daily SOFR Loans and Term SOFR Loans to Base Rate Loans (with an interest rate that will, if necessary to avoid such illegality, be determined by Administrative Agent without reference to the Term SOFR Rate), either, with respect to Term SOFR Loans, on the last day of the Interest Period therefor, if such Funding Party may lawfully continue to maintain such Term SOFR Loans to such day, or, for Daily SOFR Loans or if such Funding Party may not lawfully continue to maintain Term SOFR Loans, immediately; and (ii) if such notice asserts the illegality of such Funding Party determining or charging interest rates based upon the Term SOFR Rate, Administrative Agent will, during the period of such suspension, compute the Base Rate applicable to such Funding Party without reference to the Term SOFR Rate until Administrative Agent is advised in writing by such Funding Party that it is no longer illegal for such Funding Party to determine or charge interest rates based upon the Term SOFR Rate. Upon any such conversion, Borrower must also pay accrued interest on the amount so converted. Each Funding Party agrees to designate a different Lending Office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Funding Party, otherwise be materially disadvantageous to such Funding Party.
(1) or more persons owns, controls, or has the power to vote more than 10% of any class of voting securities” (within the meaning of 12 U.S.C. §375b and Regulation O of the Federal Reserve Board or any regulation promulgated pursuant thereto) of any Lender, of a Bank Holding Company of which any Lender is a Subsidiary, and such circumstance causes the applicable Lender to be in violation of Regulation O, Borrower, Administrative Agent and such Lender shall cooperate in good faith to find a solution or remedy that would permit the applicable Lender to be in compliance with Regulation O, including, if necessary, such Lender assigning its Commitment to a new Lender in accordance with Section 13.11(b) hereof (provided that, such Lender shall not be required to accept less than the full amount of the Obligations due and owing to such Lender on the date of such assignment).
75
76
No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 4.03(b)
will occur prior to the applicable Benchmark Transition Start Date.
77
Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans calculated without reference to clause (iii) of the definition of “Base Rate” until Administrative Agent revokes such determination.
and the result of any of the foregoing shall be to increase the cost to such Funding Party of making, converting, continuing, funding, or maintaining any Loan (or of maintaining its obligation to make or fund any such Loan or to advance funds under a Liquidity Agreement), or to increase the cost to such Funding Party of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Funding Party (whether of principal, interest or any other amount) then, upon request of such Funding Party (but in no event later than ten (10) Business Days after receipt of a certificate provided under subsection (c) of this Section 4.04), the applicable Borrower Party will pay to such Funding Party such additional amount or amounts as will compensate such Funding Party for such additional costs incurred or reduction suffered; provided, however, that if funds are not available to such Borrower Party in the Collateral Account, to the extent that it is necessary for Borrower to issue Capital Call Notices to fund such required compensation, such payment shall be made within twenty
(20) Business Days after receipt of a certificate provided under subsection (c) of this
Section 4.04.
78
policies of such Funding Party’s holding company with respect to capital adequacy and such Funding Party’s desired return on capital), then from time to time the applicable Borrower Party will pay to such Funding Party such additional amount or amounts as will compensate such Funding Party or such Funding Party’s holding company for any such reduction suffered.
including any foreign exchange losses and any loss or expense (excluding any loss of anticipated profits) 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 or from the performance of any foreign exchange contract. Each applicable Borrower Party shall
79
also pay the customary administrative fees charged by such Lender or Liquidity Provider, as applicable, in connection with the foregoing.
In the case of a CP Rate Loan, the actual out-of-pocket loss to any Conduit Lender attributable to any such event shall be deemed to include an amount determined by such Conduit Lender to be equal to the excess, if any, of (i) the interest that would have accrued on the principal amount of such CP Rate Loan from the date of such payment, conversion, failure or assignment to the last day of the then current Interest Period for such Loan, if the interest rate payable on such amount were calculated by reference to the CP Rate for such Interest Period, over (ii) the sum of (x) to the extent all or a portion of such principal amount remains outstanding hereunder, the amount of interest actually accrued during the remainder of such Interest Period on such principal amount, and (y) to the extent such principal amount does not remain outstanding hereunder, the income, if any, actually received during the remainder of such period by the Conduit Lender from investing such portion of such principal amount.
With respect to any Lender that is not a bank, the foregoing calculation shall be made using the rates that would be applicable to the applicable Funding Agent as a proxy for such Lender. A certificate of a Funding Party setting forth the amount or amounts necessary to compensate such Funding Party or its holding company, as the case may be, as specified in this Section 4.05 and delivered to a Borrower Party shall be conclusive absent manifest error.
4.02 or 4.03, as applicable; and (ii) in each case, would not subject such Funding Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Funding Party. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Funding Party in connection with any such designation or assignment.
13.13; provided, however, that a Lender Group shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Funding Party or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
80
Notwithstanding the foregoing, the term “Collateral” shall not include (a) any ERISA Investor Excluded Items if such provision of such ERISA Investor Excluded Item or the exercise of remedies with respect to such ERISA Investor Excluded Item would be a prohibited transaction for purposes of Section 406 of ERISA, Section 4975 of the Internal Revenue Code or other applicable law, (b) the Capital Commitments or any assets, interests, rights or obligations of the SOX Insiders, if any, unless so elected by the Borrower Parties in their discretion, (c) any Portfolio Assets, and (d) any funds properly withdrawn or transferred from the Collateral Account to the extent used for any purpose permitted under the Operating Agreement and this Credit Agreement, and the proceeds of such withdrawn funds.
81
Collateral Account any payments and monies that Borrower receives directly from the Investors as Capital Contributions.
(iii) the Principal Obligation does not exceed the Available Commitment (unless, in each case, Borrower has directed that such disbursement be paid to Administrative Agent for application to the Obligations pursuant to this Credit Agreement). Upon the exercise of a notice of control in accordance with Sections 11.02 and 11.03, pursuant to the terms of the Deposit Account Control Agreement, Borrower hereby irrevocably authorizes and directs Secured Parties, acting through Administrative Agent, to charge from time to time its Collateral Account for amounts not paid when due (after the passage of any applicable grace period) to Secured Parties or any of them hereunder, under any Letter of Credit Application, under any Letter of Credit or under the Notes. Regardless of any provision hereof, in the absence of bad faith, gross negligence or willful misconduct by Administrative Agent or Secured Parties, none of Administrative Agent or Secured Parties shall ever be liable for failure to collect or for failure to exercise diligence in the collection, possession, or any transaction concerning, all or part of the Capital Call Notices, Capital Commitments, or any Capital Contributions, or sums due or paid thereon. Administrative Agent shall give Borrower prompt notice of any action taken pursuant to this Section 5.02(e), but failure to give such notice shall not affect the validity of such action or give rise to any defense in favor of Borrower with respect to such action.
82
statements), Borrower shall cause the Depository to provide Administrative Agent with continuous online monitoring access, effective as of the Closing Date.
(c) the insolvency, bankruptcy, liquidation or dissolution of any Qualified Borrower; (d) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Debt; (e) the full or partial release of any Qualified Borrower or any other obligor; (f) the release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral for the Guaranteed Debt; (g) the failure of any Secured Party properly to obtain, perfect or preserve any security interest or lien in any such collateral;
(h) the failure of any Secured Party to exercise diligence, commercial reasonableness or reasonable care in the preservation, enforcement or sale of any such collateral; and (i) any other act or omission of any Secured Party or any Qualified Borrower which would otherwise constitute or create a legal or equitable defense in favor of Borrower.
83
seek contribution, indemnification, or any other form of reimbursement from any Qualified Borrower, any other guarantor, or any other person now or hereafter primarily or secondarily liable for any obligations of any Qualified Borrower to Secured Parties, for any disbursement made by Borrower under or in connection with the obligations with respect to the Guaranteed Debt under this Article 6, Section
2.09 or otherwise.
(B) duly authorized UCC financing statements, each in form appropriate for filing in
84
each jurisdiction as is necessary, in Administrative Agent’s reasonable discretion, to perfect the Secured Parties’ security interest in the Collateral;
85
Without limiting the generality of the provisions of the last paragraph of Section 12.03, for purposes of determining compliance with the conditions specified in this Section 7.01, each Lender that has signed this Credit 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 Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
For avoidance of doubt, and solely with respect to the Investors which were Members of Borrower as of the Closing Date, Section 7.01(a)(xi) was satisfied on or before the Closing Date by the documents delivered under the Original Credit Agreement.
86
87
Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Syndicated Loans to the other Type of Syndicated Loan, or a continuation of Term SOFR Loans) submitted by a Borrower Party shall be deemed to be a representation and warranty that the conditions specified in Sections 7.02(a) and 7.02(b) have been satisfied on and as of the date of the applicable Credit Extension.
88
benefit of Secured Parties. Each Qualified Borrower hereby directs its counsel to prepare and deliver such legal opinion to Administrative Agent for the benefit of Secured Parties;
89
mortgage, deed of trust, or other agreement or instrument to which any Borrower Party is a party or by which any Borrower Party is bound, or to which any Borrower Party may be subject, nor will such execution, delivery, consummation or compliance result in the creation or imposition of a Lien (other than Permitted Liens) on any of the properties or assets of any Borrower Party or any of its Subsidiaries or Affiliates. No consent, approval, authorization, or order of any court or Governmental Authority or material consent of any third party is required in connection with the execution and delivery, or performance, by any Borrower Party of the Loan Documents or to consummate the transactions contemplated hereby or thereby.
90
91
Constituent Documents or the Subscription Agreements. Each Side Letter that has been executed by an Investor and Borrower has been provided to Administrative Agent.
Section 4.3.1 of the Operating Agreement.
92
material respects, and each Borrower Party has instituted and maintains policies and procedures reasonably designed to ensure continued compliance therewith.
93
details thereof and the action which the applicable Borrower Party is taking or propose to take with respect thereto; (v) specifying known changes, if any, in the name of any Investor or in the identity of any Investor, by merger or otherwise; (vi) listing all Subsequent Investors under Section 10.05(d)(z), if any, and any Subsequent Investors that have not satisfied the conditions of Section 10.05(d); (vii) including a report, as prepared for Investors in connection with such financial statements (including, as the case may be, information regarding Portfolio Assets); and
(viii) listing Borrowing Base Investors which, to the knowledge of the Borrower have been subject to an Exclusion Event and the nature of such Exclusion Event;
94
the forty-fifth (45th) day of each Annual Valuation Period of such Borrower Party, such Borrower Party shall deliver to Administrative Agent an Operating Company Certificate; and
95
require more or fewer Lenders than the Required Lenders), each Borrower Party will promptly comply in all material respects with any and all covenants and provisions of this Credit Agreement, the Notes, all of the other Loan Documents executed by it and its Constituent Documents. Each Borrower Party will use the proceeds of any Capital Call Notices only for such purposes as are permitted by its Constituent Documents.
96
Administrative Agent, or shall promptly notify Administrative Agent of its failure to timely obtain such information.
97
98
(ii) to reflect transfers of interests permitted by this Credit Agreement; and (iii) to facilitate the
formation, operation and qualification of such Borrower Party as a RIC (to the extent not in conflict with the restrictions hereunder or otherwise materially adverse to the Lenders).
99
Nationals” or other list of known or suspected terrorists generated by OFAC with which dealings are prohibited under Sanctions.
100
Default under Sections 11.01(a), 11.01(g) or 11.01(h) exists, each Borrower Party shall have the right to pay Permitted RIC Distributions.
101
pursuant hereto or in connection herewith or with the Loans, shall prove to be untrue or inaccurate in any material respect as of the date on which such representation or warranty is made or deemed made (except that any representation or warranty which by its terms is made as of an earlier date shall be true and correct in all material respects as of such earlier date) and the adverse effect of the failure of such representation or warranty shall not have been cured within thirty (30) days after the earlier of (i) written notice thereof if delivered to the Borrower by Administrative Agent or (ii) a Responsible Officer of the Borrower obtains actual knowledge thereof;
10.09, 10.10, 10.11, 10.12, or 10.13), or of the covenants or agreements of a Borrower Party contained in any other Loan Documents executed by such Person, and such default shall continue uncured to the satisfaction of Administrative Agent for a period of thirty (30) days after written notice thereof has been given by Administrative Agent to such Borrower Party provided that such thirty (30)-day cure period shall not apply respecting covenants of Borrower Parties relating to statements, certificates and notices to be given by a Borrower Party, but a fifteen (15)-day grace period (or, in the case of Section 10.05(d) (other than clause (x) thereof), a five (5)-day grace period) shall apply;
10.05(a), 10.05(c), clause (x) of Section 10.05(d), 10.06, 10.07, 10.08, 10.09, 10.10, 10.11,
10.12 or 10.13;
102
103
(b) terminate the Commitment of Lenders and any obligation of the Letter of Credit Issuer to make L/C Credit Extensions or Swingline Lender to advance Swingline Loans hereunder; (c) reduce the aggregate Commitments to an amount equal to the aggregate Loans and all issued and outstanding Letters of Credit of the Borrower Parties; (d) declare the unpaid principal amount of all outstanding Obligations, 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 (including the liability to fund the Letter of Credit Liability hereunder), whereupon the same shall forthwith become due and payable without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind all of which each Borrower Party hereby expressly waives, anything contained herein or in any other Loan Document to the contrary notwithstanding; (e) require that each Borrower Party Cash Collateralize its respective Letter of Credit Liability (in an amount equal to the Minimum Collateral Amount with respect thereto); (f) exercise any right, privilege, or power set forth in Section
104
5.02, including, but not limited to, the initiation of Capital Call Notices of the Capital Commitments; or
(g) without notice of default or demand, pursue and enforce any of Administrative Agent’s or any or all of the Secured Parties’ rights and remedies under the Loan Documents, or otherwise provided under or pursuant to any applicable law or agreement; provided, however, that if any Event of Default specified in Section 11.01(g) or Section 11.01(h) shall occur, the obligation of each Committed Lender to make Syndicated Loans, the Swingline Lender to make Swingline Loans and any obligation of the Letter of Credit Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of Borrower to Cash Collateralize the Letter of Credit Liability as aforesaid shall automatically become effective, in each case without any further action by Administrative Agent or Lenders, or any of them, and without presentment, demand, protest, notice of default, notice of acceleration, or of intention to accelerate or other notice of any kind, all of which each Borrower Party hereby expressly waives.
(ii) taking any such actions as may be required to protect their rights in a bankruptcy proceeding,
(iii) accelerating the Obligations or (iv) terminating the Commitments; provided, further, that to the extent that (A) the Borrower does not make such Capital Call or (B) the application of the proceeds of any such Capital Call is not sufficient (together with amounts on deposit in or credited to the Collateral Account) to cure such Event of Default or repay the outstanding Obligations (and Cash Collateralize Letter of Credit Liability) in full, as applicable, then, so long as such Event of Default shall be continuing, the Administrative Agent may, in accordance with the terms hereof, issue a Capital Call in an amount sufficient (together with amounts on deposit in or credited to the Collateral Account) to cure such Event of Default (to the extent such Event of Default may be cured via repayment) or repay the outstanding Obligations (and Cash Collateralize Letter of Credit Liability) in full, as applicable, or exercise any other remedy with respect to the Collateral.
105
the aggregate Unfunded Commitments of all Investors other than Defaulting Investors) without first making best efforts (consistent with the terms of the Constituent Documents and applicable Law) to issue a Capital Call (which may be issued by Borrower or Administrative Agent) to each Investor for its pro-rata share of the Obligations and waiting fifteen (15) calendar days following such Capital Call prior to initiating further remedies. Further, without the prior written consent of Borrower, neither the Administrative Agent nor any Lender may contact any Investor, other than during the continuance of an Event of Default, to the extent otherwise permitted hereunder, to submit a Capital Call Notice or otherwise exercise remedies in connection therewith.
106
described in this clause (d) held by them; (e) to Administrative Agent for the account of the Letter of Credit Issuer, to Cash Collateralize that portion of the Letter of Credit Liability comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by Borrower pursuant to Sections 2.08 and 2.15; and (f) the balance, if any, after all of the Obligations have been indefeasibly paid in full, to Borrower or as otherwise required by Law.
Subject to Sections 2.08 and 2.15, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause (e) above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
107
108
13.01 as Administrative Agent shall believe in good faith shall be necessary); or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment, no Agent shall be deemed to have knowledge of any Default or Event of Default (except with respect to defaults in the payment of principal, interest and fees required to be paid to Administrative Agent for the account of the Lenders) unless and until notice describing the same is given in writing to such Agent by Borrower or a Lender, Swingline Lender or the Letter of Credit Issuer.
(i) any statement, warranty or representation made in or in connection with this Credit 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 or Event of Default; (iv) the validity, enforceability, effectiveness or genuineness of this Credit Agreement, any other Loan Document or any other agreement, instrument or document; or (v) the satisfaction of any condition set forth in Article 7 or elsewhere herein, other than, in the case of Administrative Agent, to confirm receipt of items expressly required to be delivered to it.
109
entities may engage in transactions or other activities that affect any reference rate referred to herein, or any alternative, successor or replacement rate (including, without limitation, any Benchmark Replacement) (or any component of any of the foregoing) or any related spread or other adjustments thereto, in each case, in a manner adverse to Borrower. Administrative Agent may select information sources or services in its reasonable discretion to ascertain any reference rate referred to herein or any alternative, successor or replacement rate (including, without limitation, any Benchmark Replacement) (or any component of any of the foregoing), in each case pursuant to the terms of this Credit Agreement, and shall have no liability to the Borrower Parties, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or other action or omission related to or affecting the selection, determination, or calculation of any rate (or component thereof) provided by any such information source or service.
110
earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders, Swingline Lender and the Letter of Credit Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor Administrative Agent has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.
13.06 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.
111
provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require Committed Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.07(c). In the event of any such resignation as Letter of Credit Issuer or Swingline Lender, Borrower shall be entitled to appoint from among the Committed Lenders (subject to the consent of such Committed Lender in its sole discretion) a successor Letter of Credit Issuer or Swingline Lender, as applicable, hereunder (which successor shall in all cases be a Committed Lender other than a Defaulting Lender); provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of Natixis as Letter of Credit Issuer. Upon the appointment by Borrower of a successor Letter of Credit Issuer or Swingline Lender, as applicable, hereunder:
(i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Letter of Credit Issuer or Swingline Lender, as applicable; (ii) the retiring Letter of Credit Issuer or Swingline Lender, as applicable, shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents; and (iii) the successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Letter of Credit Issuer to effectively assume the obligations of the retiring Letter of Credit Issuer with respect to such Letters of Credit.
112
Lenders, the Letter of Credit Issuer, Swingline Lender and Administrative Agent under Sections 2.10, 2.11 and 2.12 and otherwise hereunder) allowed in such judicial proceeding; and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party, Swingline Lender and the Letter of Credit Issuer to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Secured Parties, Swingline Lender and the Letter of Credit Issuer, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent hereunder.
Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender, Swingline Lender or the Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Secured Party or to authorize Administrative Agent to vote in respect of the claim of any Secured Party in any such proceeding.
113
Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter (or such later date as Administrative Agent may, in its sole discretion, specify in writing), return to Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon (except to the extent waived in writing by Administrative Agent) in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
For the avoidance of doubt, the failure to deliver a notice to Administrative Agent pursuant to this Section 12.11(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 12.11(a) or on whether or not an Erroneous Payment has been made.
114
115
(ii) Subject to Section 13.11, Administrative Agent may, in its discretion, sell any Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Lender (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by Administrative Agent on or with respect to any such Loans acquired from such Lender pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Loans are then owned by Administrative Agent) and (y) may, in the sole discretion of Administrative Agent, be reduced by any amount specified by Administrative Agent in writing to the applicable Lender from time to time.
116
thereof) for any reason, Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Lender or Secured Party, to the rights and interests of such Lender or Secured Party, as the case may be) under the Loan Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that, Borrower’s Obligations under the Loan Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Loans that have been assigned to Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Borrower; provided that, this Section 12.11 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by Administrative Agent from Borrower for the purpose of making such Erroneous Payment.
117
118
119
120
(xli) amend the definition of “Principal Obligation”; (xlii) [Reserved];
(xliii) amend the definition of “Qualified Required Lenders”; (xliv) amend the definition of “Rated Included Investor”; (xlv) amend the definition of “Rating”;
(xlvi) amend the definition of “Repayment Percentage”;
(xlvii) reduce the percentage specified in the definition of “Required Lenders” (or any other provision hereof specifying the number or percentage of Lenders which are required to amend, waive or modify any rights hereunder or otherwise make any determination or grant any consent hereunder) or the definition of any other defined terms used in the definition of “Required Lenders” in a manner which would effectively reduce the number or percentage of Lenders which are required to amend, waive or modify any rights hereunder or otherwise make any determination or grant any consent hereunder;
(xlviii) amend the definition of “Responsible Party”; (xlix) amend the definition of “Returned Capital”;
(l) amend the definition of “Sponsor”;
(li) amend the definition of “Swingline Sublimit”;
(lii) amend the definition of “Under Common Control”, “Control” or “Controlled By”;
(liii) amend the definition of “Unfunded Commitment”; (liv) [Reserved];
(lv) amend, waive or otherwise modify in any way the terms of Section 3.04;
121
(lvi) consent to the assignment or transfer by Borrower of any of its rights and obligations under (or in respect of) the Loan Documents;
(lvii) amend, waive, or in any way modify or suspend any provision regarding application of payments of the Obligations to Lenders;
(lviii) amend, waive or otherwise modify in any way the terms of this Section
13.01;
(lix) alter the pro rata or ratable treatment of the Lenders under this Credit Agreement or the obligations of the Lender Groups to obtain participations in Swingline Loans in accordance with the Lender Groups’ Applicable Percentage in accordance with Section 2.07; or
(lx) release Borrower from its obligations under Article 6 with respect to any Qualified Borrower; or
Notwithstanding the above: (A) no provisions of Article 12 may be amended or modified without the consent of Administrative Agent; (B) no provisions of Section 2.08 may be amended or modified without the consent of the Letter of Credit Issuer; (C) no provisions of Section 2.07 may be amended or modified without the consent of the Swingline Lender; and (D) Article 9 and Article 10 specify the requirements for waivers of the affirmative covenants and negative covenants listed therein, and any amendment to any provision of Article 9 or Article 10 shall require the consent of the Lenders that are specified therein as required for a waiver thereof.
Notwithstanding anything to the contrary herein, 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 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 Defaulting Lender; and (y) 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.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above: (1) each Lender is entitled to vote as such Lender sees fit on any reorganization plan that affects the Loans or the Letters of Credit, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein; and (2) the Required Lenders may consent to allow a Borrower Party to use cash collateral in the context of a bankruptcy or insolvency proceeding. Administrative Agent may, after consultation with Borrower, agree to the modification of any term of this Credit Agreement or any other Loan Document to correct any printing, stenographic or clerical errors or omissions that are inconsistent with the terms hereof.
Administrative Agent agrees that it will promptly notify the Funding Agents (who will in turn promptly notify the Lenders in its Lender Group) of any proposed modification or amendment to any Loan Document, and deliver drafts of such proposed modification or amendment to the Funding Agents (who will in turn promptly deliver to the Lenders in its Lender Group), prior to the effectiveness of such
122
proposed modification or amendment. If Administrative Agent shall request the consent of any Lender to any amendment, change, waiver, discharge, termination, consent or exercise of rights covered by this Credit Agreement, and such Lender shall respond to such request within ten (10) Business Days.
Notwithstanding anything to the contrary herein, any Deposit Account Control Agreement may be amended, waived, discharged or terminated by Administrative Agent in order to (i) assist with any transfer to a new Depository in accordance with this Credit Agreement or to otherwise reflect any change in the account number with an existing Depository, or (ii) to fix an obvious error or any error or omission of a technical or immaterial nature, in either case, without any further action or consent of any other party to this Credit Agreement or any other Loan Document if the same is, in the reasonable determination of Administrative Agent, not materially adverse to the Lenders.
123
124
(x) any payment made by or on behalf of any Borrower Party pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender); or (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 Syndicated Loans or subparticipations in the Letter of Credit Liability or Swingline Loans to any assignee or participant, other than an assignment to Borrower (as to which the provisions of this Section 13.03 shall apply).
Each Borrower Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Committed Lender or any Lender Group acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower Party rights of setoff and counterclaim with respect to such participation as fully as if such Committed Lender were a direct creditor of such Borrower Party in the amount of such participation.
125
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 Parties or any of them shall be vested exclusively in, and all actions and proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance with Section 11.02 for the benefit of all Lenders, Swingline Lender and Letter of Credit Issuer; provided, however, that the foregoing shall not prohibit: (a) 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 Letter of Credit Issuer or Swingline Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as Letter of Credit Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents; (c) any Lender from exercising setoff rights in accordance with Section 13.02 (subject to the terms of Section 11.03 and Section 13.03); 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 any Borrower Party 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 the rights otherwise ascribed to the Administrative Agent pursuant to Section 11.02; and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 13.03, 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.
(i) the execution or delivery of this Credit Agreement, any other Loan Document or any
126
agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Credit Agreement and the other Loan Documents; (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the Letter of Credit Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit); or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other Borrower Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses: (A) are 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; or (B) result from a claim brought by Borrower or any other Borrower Party against an Indemnitee for breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Borrower Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction; or (C) result from any settlement by any Indemnitee of any claim or threatened claim that is otherwise subject to indemnification under this Section unless Borrower has consented in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed; or (D) to the extent resulting from any dispute among Indemnitees (or their Related Parties); provided that the Administrative Agent to the extent fulfilling its role as an agent under this Credit Agreement or the other Loan Documents in its capacity as such, shall remain indemnified. For avoidance of doubt, this Section 13.06(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
13.06 to be paid by it to Administrative Agent (or any sub-agent thereof), the Letter of Credit Issuer or any Related Party of any of the foregoing, each Committed Lender severally agrees to pay to Administrative Agent (or any such sub-agent), the Letter of Credit Issuer or such Related Party, as the case may be, such Committed 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 Administrative Agent (or any such sub-agent), the Letter of Credit Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent) or the Letter of Credit Issuer in connection with such capacity. The obligations of the Committed Lenders under this subsection (c) are several.
127
connection with this Credit Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
(10) Business Days after demand therefor; provided, however, that if funds are not available in the Collateral Account, to the extent that it is necessary for Borrower to issue Capital Call Notices to fund such required payment, such payment shall be made within twenty (20) Business Days after demand.
128
129
130
131
13.11 and Section 13.12; (ii) by way of participation in accordance with the provisions of clause
(f) of this Section 13.11; or (iii) by way of pledge or assignment or grant of a security interest subject to the restrictions of clause (g) of this Section 13.11 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Credit 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 clause (f) of this Section 13.11, and, to the extent expressly contemplated hereby, the Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Credit Agreement.
132
purposes of this clause (b), participations in Letter of Credit Liability) at the time owing to it);
provided that any such assignment shall be subject to the following conditions:
$3,500 (except in the case of a transfer at the demand of Borrower under Section 13.13, in which case either Borrower or the transferee Lender shall pay such fee); provided,
133
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.
(A) to a Borrower Party or any Affiliate or Subsidiary of any Borrower Party; (B) to any 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); (C) to a natural person; (D) to any Person that is not a Qualified Purchaser; or (E) to any Person that is not an Eligible Assignee.
134
therein as a “Funding Agent” shall become a party hereto as a Funding Agent, entitled to the rights and subject to the obligations of a Funding Agent hereunder, (D) the Administrative Agent shall accept such Lender Group Joinder Agreement and record the information contained therein in the Register; (E) subject to Section 2.17(a), the Maximum Commitment shall be increased by an amount equal to the aggregate Commitments of the Committed Lenders party to such Lender Group Joinder Agreement[reserved]; and (F) Schedule 1.01A shall be deemed to be amended and supplemented to reflect such joinder. The Administrative Agent shall give each Funding Agent prompt notice of the addition of any Lender Group.
Notwithstanding anything to the contrary set forth in this Credit Agreement and for avoidance of doubt, each Lender Group with more than one Conduit Lender may, without the consent of the Borrower, assign to another Conduit Lender in its Lender Group all or a portion of its rights and obligations hereunder (including the outstanding Obligations and rights to payment
135
of Principal Obligation and interest), as determined by the Administrative Agent from time to time. Each such assignment shall be recorded on the books and records of the Administrative Agent and the relevant Conduit Lenders, without the need to execute and deliver an Assignment and Acceptance Agreement. For all purposes of this Credit Agreement and all related documents, with respect to each assignment under this paragraph the relevant Conduit Lender shall be deemed to have the benefit of, and be subject to the obligations imposed by, an executed, delivered, accepted and recorded Assignment and Acceptance Assignment relating to such assignment.
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 Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit 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 the second proviso of Section 13.01 that directly affects such Participant. Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.01, 4.04, and 4.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 13.11 (it being understood that the documentation required under Section 4.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section; provided that such Participant: (A) agrees to be subject to the provisions of Sections 4.01, 4.06, 13.11 and
13.18 as if it were an assignee under clause (b) of this Section; and (B) shall not be entitled to receive any greater payment under Sections 4.01 or 4.05 with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change
136
in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 4.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 13.02 as though it were a Lender, provided such Participant agrees to be subject to Section 13.03 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Credit Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(30) days’ notice to Borrower and Lenders, resign as Letter of Credit Issuer or Swingline Lender. In the event of any such resignation as Letter of Credit Issuer or Swingline Lender, Borrower shall be entitled to appoint from among the Committed Lenders (subject to the consent of such Committed Lender in its sole discretion) a successor Letter of Credit Issuer or Swingline Lender hereunder; provided, however, that no failure by Borrower to appoint any such successor shall affect the resignation of Natixis as Letter of Credit Issuer or Swingline Lender, as the case may be. If Natixis resigns as Letter of Credit Issuer, it shall retain all the rights, powers, privileges and duties of the Letter of Credit Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Letter of Credit Issuer and all Letter of Credit Liability with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.08(c)). If Natixis resigns as Swingline Lender, it shall retain all of the rights of the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and outstanding as of the effective date of such resignation, including the right to require Committed Lenders to make Base Rate Loans or fund risk participations in outstanding Swingline Loans pursuant to Section 2.07(c). Upon the appointment of a successor Letter of Credit Issuer and/or Swingline Lender: (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Letter of Credit Issuer or Swingline Lender, as the case may be; and (ii) the successor
137
Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Natixis to effectively assume the obligations of Natixis with respect to such Letters of Credit.
138
shall terminate their participation in the applicable Liquidity Agreement to the extent of such assignment and shall execute (either directly or through a participation agreement, as determined by such Administrator) the liquidity agreement related to such Conduit Assignee, to the extent of such assignment, the terms of which shall be substantially similar to those of the participation or other agreement entered into by such Committed Lender with respect to the applicable Liquidity Agreement (or which shall be otherwise reasonably satisfactory to the related Administrator), (ii) if requested by such Conduit Lender, shall enter into such agreements as requested by such Conduit Lender pursuant to which they shall be obligated to provide funding to such Conduit Assignee on the same terms and conditions as is provided for in this Credit Agreement in respect of such Conduit Lender (or which agreements shall be otherwise reasonably satisfactory to the Borrower and such Conduit Lender), and (iii) shall take such actions as the related Administrator shall reasonably request in connection therewith.
139
effect to such assignment), plus all Obligations then due, other than the Loans and other than any interest described above, attributable to such portion of the Loans so assigned. If the applicable Borrower Party does not make payment of such amounts at or prior to the time of assignment by a Conduit Lender to its Committed Lenders, such amount shall be paid by such Committed Lenders to the Conduit Lender as additional consideration for the interests assigned to the Committed Lenders and, except to the extent the applicable Borrower Party makes payment of such amounts to the Committed Lender when due, the amount of the “Loans” hereunder held by such Committed Lenders shall be increased by an amount equal to the additional amount so paid by such Committed Lenders.
13.12 at any time on or after its Conduit Investment Termination Date (and the payment of all amounts owing to such Conduit Lender in connection therewith), all rights of the related Administrator set forth herein shall be given to the applicable Funding Agent on behalf of its Committed Lenders instead of such Administrator.
140
such an assignment occurs, the Eligible Assignee: (i) if requested by the applicable Funding Agent, shall execute (either directly or through a participation agreement, as determined by the Funding Agent) a Liquidity Agreement related to the applicable Conduit Lender, to the extent of such assignment, the terms of which shall be substantially similar to those of the participation or other agreement by the assigning Committed Lender with respect to the applicable Liquidity Agreement (or which shall be otherwise reasonably satisfactory to the applicable Funding Agent); and (ii) shall take such actions as the Agents shall reasonably request in connection therewith. A Funding Party shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Funding Party or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply; and
(1) or more Assignment and Assumption Agreements and to become a Funding Party for all purposes under this Credit Agreement and to assume all obligations of each Lender in the Affected Funding Party’s Lender Group to be terminated as of such date. Each Lender in the Affected Funding Party’s Lender Group shall assign its rights and interests hereunder, such assignment to be effected in compliance with the requirements of Section 13.11.
141
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 Administrative Agent, each Funding Agent, and each Lender, regardless of any investigation made by Administrative Agent, any Funding Agent, or any Lender or on their behalf and notwithstanding that Administrative Agent, any Funding Agent, or any Lender may have had notice or knowledge of any Default or Event of Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
(i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Credit Agreement; or (ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of the Borrower Parties; (g) with the consent of the applicable Borrower Party; (h) to the extent such Information: (x) becomes publicly available other than as a result of a breach of this Section 13.18; (y) becomes available to Administrative Agent, any Funding Agent, or any Lender on a non-confidential basis from a source other than a Borrower Party; or (z) was independently developed by any Agent or any Lender from information obtained from a source other than a Borrower Party and in compliance with this Section 13.18 or, (i) subject to an agreement containing provisions substantially the same as those of this Section 13.18, to the National Association of Insurance Commissioners or any other similar organization or any Rating Agency, Commercial Paper dealer first loss provider, service provider, provider of credit enhancement or liquidity to such Conduit Lender or any Person providing financing to, or holding equity interest in, such Conduit Lender, or to any officers, directors, employees, outside accountants or attorneys of any of the foregoing; provided that with respect to this clause (i), such recipient has been advised of the confidential nature of such Information and instructed to keep such Information
142
confidential. Notwithstanding the foregoing, (i) except as set forth in clause (ii) of this sentence, or as otherwise set forth in clauses (a), (b), (c), (d), (e) or (h) above, neither the identity of the Investors (other than by identification number and dollar amounts), nor the contents of the organizational documents or the subscription agreements or related subscription booklets, offering memorandum and marketing materials, shall be revealed without the Borrower Parties consent (subject, with respect to clause (c) above, that obtaining the consent of such Borrower Party is permitted by law), and (ii) without limiting clause (i) of this sentence, prior to revealing the identity of Investors (other than, in either case, by identification number and dollar amounts) to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Credit Agreement, the applicable assignor shall, enter into an agreement containing provisions substantially the same as those of this Section to which the Borrower Parties are intended third party beneficiaries entitled to enforce such agreement. Notwithstanding subsections (a) through (j), except as otherwise permitted in connection with a permitted assignment to a Competitor after an Event of Default hereunder, neither Administrative Agent, Funding Agent nor any Lender shall disseminate any Information to a Competitor without the prior written consent of the Borrower. For the purposes of this Section 13.18, “Information” means all non-public, confidential or proprietary information received from or on behalf of any Borrower Party relating to any Borrower Party or any of their Subsidiaries, Investors or Affiliates or its or their business; provided, that any information provided by or on behalf of any Borrower Party shall be deemed non-public, confidential and proprietary unless specifically identified otherwise by such Borrower Party. Any Person required to maintain the confidentiality of Information as provided in this Section 13.18 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.
143
and neither Administrative Agent nor the Arrangers has any obligation to disclose any of such interests to Borrower or any other Borrower Party or any of their respective Affiliates. To the fullest extent permitted by law, Borrower and each other Borrower Party hereby waives and releases any claims that it may have against Administrative Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
144
145
Lender, as the case may be, agrees to return the amount of any excess to such Borrower Party (or to any other Person who may be entitled thereto under applicable law).
146
than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12
C.F.R. §382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Swap Contract” means: (a) any and all rate swap transactions, basis swaps, credit derivative transactions, 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, including any such obligations or liabilities under any such master agreement.
[Remainder of Page Intentionally Left Blank; Signature Page(s) Follow(s).]
147
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the day and year first above written.
BORROWER:
TCW DIRECT LENDING LLC
By:
Name: Title:
ADMINISTRATIVE AGENT:
NATIXIS, NEW YORK BRANCH, as
Administrative Agent, Swingline Lender and Letter of Credit Issuer
By:
Name: Title:
By:
Name: Title:
LENDERS:
NATIXIS, NEW YORK BRANCH, as Funding
Agent and Committed Lender for the Natixis Lender Group
By:
Name: Title:
By:
Name: Title:
[ ], as a Committed Lender for the [ ] Lender Group
By:
Name: Title:
SCHEDULE 1.01A
COMMITMENTS AND LENDER GROUPS TCW DIRECT LENDING LLC
Name of Lender Group |
Funding Agent | Committed Lender | Conduit Lender | Commitment of Committed Lender |
PNC Bank, National Association | PNC Bank, National Association | PNC Bank, National Association | None | $84,740,000.00 |
Versailles | Natixis, New York Branch | Versailles Assets LLC | Versailles Assets LLC | $34,072,500.00 |
State Street Bank | State Street Bank and Trust Company | State Street Bank and Trust Company | None | $33,187,500.00 |
|
|
| Total | $152,000,000.00 |
SCHEDULE 1.01B
[RESERVED]
SCHEDULE 1.01C
[RESERVED]
SCHEDULE 1.01D
[RESERVED]
SCHEDULE 13.07
ADDRESSES FOR NOTICE
If to any Borrower Party: If to Administrative Agent, Swingline Lender or Letter of Credit Issuer:
c/o The TCW Group, Inc. 865 S. Figueroa Street
Los Angeles, California 90017 Attention: Meredith Jackson Telephone: (213) 244-0896
Email: meredith.jackson@tcw.com
Natixis, New York Branch
1251 Avenue of Americas, 4th Floor New York, New York 10020 Attention: Urs Fischer
Telephone: (212) 891-1954
Fax: (646) 282-2392
Email: urs.fischer@natixis.com
Natixis, New York Branch
1251 Avenue of Americas, 4th Floor New York, New York 10020 Attention: Hana Beckles Telephone: (212) 583-4913
Fax: (646) 282-2392
Email: hana.beckles@natixis.com
Natixis, New York Branch
1251 Avenue of Americas, 4th Floor New York, New York 10020 Attention: Yazmin Vasconez Telephone: (212) 891-6176
Fax: (646) 282-2392
Email: yazmin.vasconez@natixis.com
With a copy to:
Natixis, New York Branch
1251 Avenue of the Americas, 5th Floor New York, NY 10020
Attention: Legal Department Telephone: (212) 891-6100
Fax: (212) 891-1922
Email: legal.notices@natixis.com
EXHIBIT J
to Third Amended and Restated Revolving Credit Agreement by and among
TCW DIRECT LENDING LLC,
as Borrower, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent FACILITY EXTENSION REQUEST
, 20
Natixis, New York Branch
1251 Avenue of the Americas, 4th Floor New York, NY 10020
Attention: Yazmin Vasconez Telephone: (212) 891-6176
Fax: (646) 282-2392
Email: yazmin.vasconez@natixis.com With a copy to:
Natixis, New York Branch
1251 Avenue of the Americas, 5th Floor New York, New York 10020
Attention: Administrative Agency Team Email: adminagency@natixis.com
Ladies and Gentlemen:
This Facility Extension Request (the “Request”) is executed and delivered by TCW DIRECT LENDING LLC, a Delaware limited liability company (“Borrower”) to NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), pursuant to certain Third Amended and Restated Revolving Credit Agreement, dated as of April 10, 2017 (as it may be amended, modified, supplemented, restated or amended and restated from time to time, the “Credit Agreement”), entered into by and among Borrower, Administrative Agent and the lenders from time to time party thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.16 of the Credit Agreement, Borrower hereby notifies you that it elects to extend the Stated Maturity Date to , 20 1 (the “Extension”). The extension fees are set forth in a separate fee letter.
In connection with the Extension elected hereby, Borrower hereby represents, warrants, and certifies to Administrative Agent for the benefit of Lenders that:
1[Note to Borrower: Date that is not later than 3 months after the then-effective Stated Maturity Date.]
In the event that between the date hereof and the date of the Extension, (i) any event should occur which could reasonably be expected to be an Event of Default or Default or (ii) any representation, warranty or certification set forth above is materially inaccurate if made on the date of the Stated Maturity Date in effect immediately prior to the Extension, Borrower shall notify Administrative Agent.
Remainder of Page Intentionally Left Blank. Signature Page(s) Follow(s).
The undersigned hereby certifies each and every matter contained herein to be true and correct.
BORROWER:
TCW DIRECT LENDING LLC
By: Name:
Title:
Accepted and Approved:
NATIXIS, NEW YORK BRANCH,
as Administrative Agent
By: Name:
Title: