AMENDMENT NO. 2 TO CREDIT AND SECURITY AGREEMENT
AMENDMENT NO. 2
TO CREDIT AND SECURITY AGREEMENT
AMENDMENT NO. 2 TO CREDIT AND SECURITY AGREEMENT, dated as of February 2, 2024 (this “Amendment”), is entered into in connection with that certain Credit and Security Agreement, dated as of September 13, 2022, as amended by Amendment No. 1 to Credit and Security Agreement, dated as of August 11, 2023 (as modified and supplemented and in effect from time to time, the “Credit Agreement”), by and among TCW DL VIII FINANCING LLC, a Delaware limited liability company, as borrower (together with its permitted successors and assigns, the “Borrower”); the LENDERS from time to time party thereto (the “Lenders”); PNC BANK, NATIONAL ASSOCIATION, as facility agent for the Secured Parties (in such capacity, together with its successors and assigns, the “Facility Agent”); U.S. BANK NATIONAL ASSOCIATION, as custodian, and ALTER DOMUS (US) LLC, as collateral agent for the Secured Parties and as collateral administrator. Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the above-named parties have entered into the Credit Agreement and, pursuant to and in accordance with Section 12.01(b) thereof, the parties hereto desire to amend the Credit Agreement in certain respects as provided herein;
NOW, THEREFORE, based upon the above recitals, the mutual premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned, intending to be legally bound, hereby agree as follows:
SECTION 1. AMENDMENTS. Subject to the satisfaction of the conditions precedent specified in Section 3 below, but effective as of the date hereof, the parties hereto hereby agree that the Credit Agreement shall be amended by incorporating the changes shown on the marked copy of the Credit Agreement attached hereto as Exhibit A (it being understood that language which appears “struck out” has been deleted and language which appears as “double-underlined” has been added).
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Lenders and the Facility Agent that (a) the representations and warranties of the Borrower set forth in Article IV of the Credit Agreement, and in each of the other Facility Documents, are true and correct on the date hereof as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct as of such specific date), and as if each reference in said Article IV to “this Agreement” included reference to this Amendment; (b) no Default or Event of Default has occurred and is continuing; and (c) this Amendment shall constitute a Facility Document.
SECTION 3. CONDITIONS PRECEDENT. The amendments set forth in Section 1 hereof shall become effective, as of the date hereof and upon satisfaction of the following conditions:
(a) Execution. The Facility Agent shall have received counterparts of this Amendment executed by the Borrower, the Lenders, and the Facility Agent.
(b) Fees. The Facility Agent shall have received all of its reasonable and documented fees and out-of-pocket expenses incurred in connection with the negotiation, preparation, execution and delivery of this Amendment, including all invoiced fees and disbursements of Xxxxxx Xxxxxxxxxx and Xxxxxxxxx LLP, counsel to the Facility Agent, or the Borrower shall have agreed to pay any such amounts on the succeeding Payment Date as Administrative Expenses.
SECTION 4. MISCELLANEOUS. Except as herein provided, the Credit Agreement shall remain unchanged and in full force and effect. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same amendatory instrument and any of the parties hereto may execute this Amendment by signing any such counterpart. This Amendment shall be governed by, and construed in accordance with, the law of the State of New York.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to the Credit and Security Agreement to be duly executed and delivered as of the day and year first above written.
EXHIBIT A
Marked Credit Agreement
[See attached]
CONFORMED VERSION
Conformed through Amendment. No. 1, dated as of August 11, 2023 Conformed through Amendment. No. 2, dated as of February 2, 2024
among
TCW DL VIII FINANCING LLC,
as Borrower,
THE LENDERS FROM TIME TO TIME PARTIES HERETO, PNC BANK, NATIONAL ASSOCIATION,
as Facility Agent
U.S. BANK NATIONAL ASSOCIATION,
as Custodian and
ALTER DOMUS (US) LLC,
as Collateral Agent and Collateral Administrator
Dated as of September 13, 2022
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS 1
Section 1.01 Definitions 1
Section 1.02 Rules of Construction. 4446 Section 1.03 Computation of Time Periods. 4547 Section 1.04 Collateral Value Calculation Procedures. 4547 ARTICLE II ADVANCES UNDER THE FACILITY 4649
Section 2.01 Facilities. 4649
Section 2.02 Advances. 4749 Section 2.03 Evidence of Indebtedness; Notes. 4750 Section 2.04 Payment of Principal and Interest. 4850 Section 2.05 Prepayment of Advances. 4952 Section 2.06 Automatic Reduction, Conversion and Termination. 5153 Section 2.07 Maximum Lawful Rate. 5254 Section 2.08 Several Obligations. 5255 Section 2.09 Increased Costs. 5255 Section 2.10 Compensation; Breakage Payments. 5456 Section 2.11 Illegality; Inability to Determine Rates. 5457 Section 2.12 Rescission or Return of Payment. 5557 Section 2.13 Fees Payable by Borrower. 5558 Section 2.14 Post-Default Interest. 5558 Section 2.15 Payments Generally. 5558 Section 2.16 Replacement of Lenders. 5658 Section 2.17 Increases in Commitments. 5659 ARTICLE III CONDITIONS PRECEDENT 5862
Section 3.01 Conditions Precedent to Closing. 5862 Section 3.02 Conditions Precedent to Each Borrowing. 6064 ARTICLE IV REPRESENTATIONS AND WARRANTIES 6265
Section 4.01 Representations and Warranties of the Borrower. 6265
i
-
TABLE OF CONTENTS
(continued)
Page
Section 4.02 Additional Representations and Warranties of the Borrower. 6468 ARTICLE V COVENANTS 6669
Section 5.01 Affirmative Covenants of the Borrower. 6669 Section 5.02 Negative Covenants of the Borrower. 7275 Section 5.03 Certain Undertakings Relating to Separateness. 7578 ARTICLE VI EVENTS OF DEFAULT 7881
Section 6.01 Events of Default. 7881
ARTICLE VII PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL
AGENT 8084
Section 7.01 Grant of Security. 8084 Section 7.02 Release of Security Interest. 8185 Section 7.03 Rights and Remedies. 8185 Section 7.04 Remedies Cumulative. 8387 Section 7.05 Related Documents. 8387 Section 7.06 Borrower Remains Liable. 8387 Section 7.07 Assignment of Sale and Contribution Agreement and any
Eligible Hedge Agreement. 8488 Section 7.08 Protection of Collateral. 8589 ARTICLE VIII ACCOUNTS, ACCOUNTINGS AND RELEASES 8589
Section 8.01 Collection of Money. 8589 Section 8.02 Interest Collection Account and Principal Collection Account. 8690 Section 8.03 Transaction Accounts. 8892 Section 8.04 The Revolving Reserve Account; Fundings. 8993
Section 8.05 Reinvestment of Funds in Covered Accounts; Reports by
Collateral Agent. 9094 Section 8.06 Accountings. 9195 Section 8.07 Release of Securities. 9296 Section 8.08 Reserved. 9397
2
TABLE OF CONTENTS
(continued)
Page
Section 8.09 Reserved. 9397 Section 8.10 Collateral Reporting. 9397 ARTICLE IX APPLICATION OF MONIES 95100
Section 9.01 Disbursements of Monies. 95100
ARTICLE X SALE OF COLLATERAL OBLIGATIONS; PURCHASE OF
ADDITIONAL COLLATERAL OBLIGATIONS 100104
Section 10.01 Sales of Collateral Obligations. 100104 Section 10.02 Purchase of Additional Collateral Obligations. 100104 Section 10.03 Conditions Applicable to All Purchase Transactions. 101105 ARTICLE XI THE AGENTS 101105
Section 11.01 Authorization and Action. 101105 Section 11.02 Delegation of Duties. 102106 Section 11.03 Agents’ Reliance, Etc. 102106 Section 11.04 Indemnification. 103107 Section 11.05 Successor Agents. 104108 Section 11.06 Regarding the Collateral Agent. 106110 ARTICLE XII MISCELLANEOUS 108112
Section 12.01 No Waiver; Modifications in Writing; Benchmark
Replacement Setting. 108112 Section 12.02 Notices, Etc. 114119 Section 12.03 Taxes. 116121 Section 12.04 Costs and Expenses; Indemnification. 119125 Section 12.05 Execution in Counterparts. 120126 Section 12.06 Assignability; Participation; Register. 120126 Section 12.07 Governing Law 123129 Section 12.08 Severability of Provisions. 123129 Section 12.09 Confidentiality. 123129 Section 12.10 Entire Agreement. 124130
3
TABLE OF CONTENTS
(continued)
Page
Section 12.11 Survival. 124130 Section 12.12 Submission to Jurisdiction; Waivers; Etc. 125130 Section 12.13 Waiver of Jury Trial. 125131 Section 12.14 Service of Process. 125131 Section 12.15 Waiver of Immunity. 126131 Section 12.16 Reserved. 126132 Section 12.17 PATRIOT Act Notice. 126132 Section 12.18 Legal Holidays. 127132 Section 12.19 Non-Petition. 127132 Section 12.20 Custodianship; Delivery of Collateral Obligations and Eligible
Investments. 127133
SCHEDULES
Schedule 1 Commitments and Percentages
Schedule 2 Scope of Monthly Report and Scope of Payment Date Report Schedule 3 Term SOFR Rate Definition
Schedule 4 Disqualified Xxxxxxx
Schedule 5 Xxxxx’x Industry Category List Schedule 6 Xxxxx’x RiskCalc Procedure Schedule 7 Borrowing Base Certificate Schedule 8 Custodian Fee Schedule
EXHIBITS
Exhibit A-1 Form of Term Note Exhibit A-2 Form of Revolving Note
Exhibit B Form of Notice of Borrowing Exhibit C Form of Notice of Prepayment Exhibit D Form of Assignment and Acceptance Exhibit E Form of Account Control Agreement
4
This CREDIT AND SECURITY AGREEMENT, dated as of September 13, 2022, by and among TCW DL VIII FINANCING LLC, a Delaware limited liability company, as borrower (together with its permitted successors and assigns, the “Borrower”); the LENDERS from time to time party hereto; PNC BANK, NATIONAL ASSOCIATION (“PNC”), as facility agent for the Secured Parties (as hereinafter defined) (in such capacity, together with its successors and assigns, the “Facility Agent”); ALTER DOMUS (US) LLC, as Collateral Agent for the Secured Parties (as hereinafter defined) (in such capacity, together with its successors and assigns, the “Collateral Agent”) and as collateral administrator (in such capacity, together with its successors and assigns, the “Collateral Administrator”); and U.S. BANK NATIONAL ASSOCIATION (“U.S. Bank”), as custodian (in such capacity, together with its successors and assigns, the “Custodian”).
W I T N E S S E T H:
WHEREAS, the Borrower desires that the Lenders make advances on a delayed draw term loan basis and a revolving basis to the Borrower on the terms and subject to the conditions set forth in this Agreement; and
WHEREAS, each Lender is willing to make such advances to the Borrower on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
indicated:
DEFINITIONS; RULES OF CONSTRUCTION; COMPUTATIONS
Section 1.01 Definitions.
As used in this Agreement, the following terms shall have the meanings
“ABL Facility” means a revolving or term lending facility pursuant to which the
loans thereunder are secured by a perfected, first priority security interest in accounts receivable, inventory, machinery, equipment, real estate, oil and gas reserves, vessels, periodic revenues or other assets commonly used as security for asset-based loans, where such collateral security consists of assets generated or acquired by the related Obligor in its business and for which the amount available to be borrowed from time to time is based on the value of such assets or similar borrowing base calculation.
“Account” has the meaning specified in Section 9-102(a)(2) of the UCC. “Account Control Agreement” means an agreement in substantially the form of
Exhibit E hereto.
“Adjusted Par Amount” means with respect to each Collateral Obligation, an amount equal to the outstanding Principal Balance of such Collateral Obligation reduced by the greatest of the following, as applicable:
provided, in all cases, that the Principal Balance of any unfunded portion of any Revolving Collateral Loan or Delayed Drawdown Collateral Loan shall be deemed to be zero for purposes of calculating the Adjusted Par Amount.
“Adjusted Principal Amount” means an amount equal to the lesser of:
“Administrative Expenses Cap” means, for any Payment Date, an amount equal (when taken together with any Administrative Expenses paid during the period since the preceding three Payment Dates or, in the case of the first Payment Date, the Closing Date) to
$200,000 per annum.
“Administrative Expenses” means the fees and expenses (including indemnities) and other amounts due or accrued of the Borrower with respect to any Payment Date and payable in the following order by the Borrower:
2
3
Facility Document (including the Facility Agent Xxx and, notwithstanding anything herein to the contrary, but subject to Sections 2.04(f) and 12.04, amounts sufficient to reimburse each Lender for all amounts paid by such Lender pursuant to Section 11.04 (and subject to the limitations therein));
provided that amounts that are expressly payable to any Person under the Priority of Payments in respect of an amount that is stated to be payable as an amount other than as Administrative Expenses (including, without limitation, interest and principal, other amounts owing in respect of the Advances and the Commitments and the Collateral Management Fees) shall not constitute Administrative Expenses.
“Advance” means a Revolving Advance or a Term Advance.
“Affected Person” means (i) each Lender, (ii) the relevant Lender’s parent and/or holding company, and (iii) any Participant.
“Affiliate” means, in respect of a referenced Person, another Person Controlling, Controlled by or under common Control with such referenced Person; provided, however, that a Person shall not be deemed to be an “Affiliate” of an Obligor solely because it is under the common ownership or control of the same financial sponsor or affiliate thereof as such Obligor (except if any such Person or Obligor provides collateral under, guarantees or otherwise supports the obligations of the other such Person or Obligor).
“Agents” means, collectively, the Facility Agent, the Collateral Agent, the Collateral Administrator and the Custodian, in each case, in all of their respective capacities hereunder.
“Aggregate Principal Balance” means, when used with respect to all or a portion of the Collateral Obligations, the sum of the Principal Balances of all or of such portion of such Collateral Obligations.
“Agreement” means this Credit and Security Agreement, as the same may from time to time be amended, supplemented, waived or modified.
“Anti-Corruption Laws” means (a) the U.S. Foreign Corrupt Practices Act of 1977, as amended; (b) the U.K. Bribery Act 2010, as amended; and (c) any other applicable Law relating to anti-bribery or anti-corruption in any jurisdiction in which the Borrower is located or doing business.
4
“Applicable Law” means any Law of any Authority, including all federal and state banking or securities laws, to which the Person in question is subject or by which it or any of its assets or properties are bound.
“Appointment Cut-off Date” has the meaning assigned to such term in Section
11.05(a).
“Approved Foreign Jurisdiction” means Canada, Australia, the Netherlands, New
Zealand, Germany, Sweden, Switzerland, the United Kingdom and any Tax Advantaged Jurisdiction.
“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.
“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.
“Assignment and Acceptance” means an Assignment and Acceptance in substantially the form of Exhibit D hereto, entered into by a Lender, an assignee, the Facility Agent and, if applicable, the Borrower.
“Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, administrative tribunal, central bank, public office, court, arbitration or mediation panel, or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of government, including FINRA, the SEC, the stock exchanges, any federal, state, territorial, county, municipal or other government or governmental agency, arbitrator, board, body, branch, bureau, commission, court, department, instrumentality, master, mediator, panel, referee, system or other political unit or subdivision or other entity of any of the foregoing, whether domestic or foreign.
“Available Unfunded Amount” means, at any time, the lower of (A) the Total Commitment minus the aggregate outstanding principal balance of the Advances and (B) the Borrowing Base minus the aggregate outstanding principal balance of the Advances.
“Bankruptcy Code” means the United States Bankruptcy Code, as amended. “Base Rate” means, for any day, a fluctuating rate of interest per annum equal to
the highest of:
published by The Wall Street Journal as the “Prime Rate” (or, if more than one rate is published as the Prime Rate, then the highest of such rates), with any change in Prime Rate to become effective as of the date the rate of interest which is so identified as the
5
“Prime Rate” is different from that published on the preceding Business Day (and, if The Wall Street Journal no longer reports the Prime Rate, or if such Prime Rate no longer exists, then the Facility Agent may select a reasonably comparable index or source to use as the basis for the Base Rate under this clause (a));
and
SOFR is offered, ascertainable and not unlawful.
The Base Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer of any Agent or any Lender. Interest calculated pursuant to clause (a) above will be determined based on a year of 365 days or 366 days, as applicable, and actual days elapsed. Interest calculated pursuant to clauses (b) and (c) above will be determined based on a year of 360 days and actual days elapsed.
“Base Rate Advance” means an Advance that bears interest at the Base Rate as provided in Section 2.04 and Section 2.11.
“Basel III” has the meaning assigned to such term in Section 2.09(a). “Benchmark Floor Obligation” means as of any date, a Floating Rate Obligation
(a) for which the Related Documents permit a Benchmark rate option, (b) that provides that such Benchmark rate is (in effect) calculated as the greater of (i) a specified “floor” rate per annum and (ii) the Benchmark rate for the applicable interest period for such Collateral Obligation and
(c) that, as of such date, bears interest based on such Benchmark rate option, but only if as of such date the Benchmark rate for the applicable interest period is less than such floor rate.
“Blocked Property” means any property or asset: (a) owned, directly or indirectly, by a Sanctioned Person; (b) due to or from a Sanctioned Person; (c) in which a Sanctioned Person otherwise holds any interest; (d) located in a Sanctioned Jurisdiction; or (e) that otherwise could cause any actual or possible violation by the Borrower, Lenders, Facility Agent, or Collateral Agent of any applicable International Trade Law if the Borrower were to own, obtain an encumbrance on, lien on, pledge of, or security interest in such property, or provide services in consideration of such property.
“Borrower” has the meaning assigned to such term in the introduction to this
6
Agreement.
7
“Borrower Information” has the meaning assigned to such term in Section 12.09. “Borrower Multiemployer Plan” means a “multiemployer plan” within the
8
meaning of Section 4001(a)(3) of ERISA that is sponsored by the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group is obligated to make contributions or has any liability.
9
“Borrower Order” means a written order or request dated and signed in the name of the Borrower by a Responsible Officer of the Borrower or by a Responsible Officer of the Collateral Manager, as the context may require or permit.
“Borrower Plan” means an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code that is sponsored by the Borrower or a member of its ERISA Group or to which the Borrower or a member of its ERISA Group is obligated to make contributions or has any liability.
“Borrowing” means a Revolving Borrowing and/or a Term Borrowing, as
applicable.
“Borrowing Base” means, as of any date of determination, an amount equal to
(i)(a) the aggregate Adjusted Principal Amount of all Collateral Obligations, minus (b) the aggregate Adjusted Principal Amount of all Collateral Obligations which exceeds the applicable individual and aggregate Concentration Limits multiplied by (ii) with respect to each such Collateral Obligation, the applicable Loan Advance Rate, plus, without duplication, (iii) the cash and the principal balance of any Eligible Investments on deposit in the Principal Collection Account. For purposes of determining the Borrowing Base, the Collateral Obligations used to determine the amount of the excess determined pursuant to clause (b) with respect to any Concentration Limit shall be determined by assuming such excess is comprised of Eligible First Lien Last Out Loans, Eligible Bifurcated First Lien Loans and Eligible First Lien Loans included in the applicable limitation, in that order.
“Borrowing Base Certificate” means a certificate in the form of Schedule 7. “Borrowing Base Deficiency” means, as of any date of determination, the amount
by which the aggregate outstanding principal balance of the Advances exceeds the lesser of (i) the Borrowing Base and (ii) the Total Commitment.
“Borrowing Date” means the date of a Borrowing, which, in the case of a (i) Revolving Borrowing, shall occur on or before the last day of the Revolving Period and (ii) Term Borrowing, shall occur on or before the last day of the Term Commitment Termination Date.
“Bridge Loan” means a loan or other obligation issued in connection with a merger, acquisition, consolidation, sale of all or substantially all of the assets of a person or similar transaction, which by its terms is required to be repaid within one year of the incurrence thereof with proceeds from additional borrowings or other refinancing.
“Business Day” means any day other than a Saturday or Sunday, provided that days on which banks are authorized or required to close in New York, New York, Boston, Massachusetts or Pittsburgh, Pennsylvania shall not constitute Business Days; provided further that, when used in connection with an amount that bears interest at a rate based on SOFR or any direct or indirect calculation or determination of SOFR, the term “Business Day” means any such day that is also a U.S. Government Securities Business Day.
10
of Schedule 3.
UCC.
11
“Calculation Agent” means the Facility Agent, as calculation agent, for purposes
“Cash” means Dollars immediately available on the day in question. “Certificated Security” has the meaning specified in Section 8-102(a)(4) of the
“Clearing Agency” means an organization registered as a “clearing agency”
12
pursuant to Section 17A of the Exchange Act.
“Clearing Corporation” means each entity included within the meaning of “clearing corporation” under Section 8-102(a)(5) of the UCC.
“Clearing Corporation Security” means securities which are in the custody of or maintained on the books of a Clearing Corporation or a nominee subject to the control of a Clearing Corporation and, if they are Certificated Securities in registered form, properly endorsed to or registered in the name of the Clearing Corporation or such nominee.
“Closing Date” means September 13, 2022.
“Closing Date Expenses” means amounts due in respect of actions taken on or before the Closing Date or in connection with the closing of the transactions contemplated by this Agreement, including without limitation (i) the Closing Fees to be paid by the Borrower to PNC on the Closing Date in accordance with the applicable Fee Letter; (ii) the Structuring Fee to be paid by the Borrower to the Structuring Agent on the Closing Date in accordance with the applicable Fee Letter; (iii) the Facility Agent Fee to be paid by the Borrower to PNC on the Closing Date in accordance with the applicable Fee Letter; and (iv) the accrued, documented and invoiced fees and expenses in connection with the transactions contemplated hereby, including, without limitation, those of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Facility Agent and the Lender(s), of DLA Piper LLP (US), counsel to the Borrower, and of Xxxxxx & Xxxxxx LLP, counsel to the Collateral Agent.
“Closing Fee” means the fee to be paid by the Borrower to PNC as a closing fee pursuant to the applicable Fee Letter on the Closing Date as a Closing Date Expense and, thereafter, a fee to be paid by the Borrower to any Lender after the Closing Date as an upfront fee pursuant to a Fee Letter.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute.
“Collateral” has the meaning assigned to such term in Section 7.01.
“Collateral Account” means the collateral account established pursuant to Section 8.03(b).
13
“Collateral Agent” has the meaning assigned to such term in the introduction to this Agreement.
“Collateral Agent Fee Letter” means the fee letter, dated February 3, 2022, between the Collateral Agent and the Borrower setting forth the fees payable by the Borrower to the Collateral Agent and the Collateral Administrator in connection with the transactions contemplated by this Agreement and the Facility Documents, as the same may from time to time be amended, supplemented, waived or modified.
“Collateral Agent Liabilities” has the meaning assigned to such term in Section 11.04(ii).
“Collateral Database” has the meaning assigned to such term in Section 8.10(a)(i). “Collateral Exposure Amount” means, on any date of determination, the excess (if
any) of (x) the aggregate unfunded amounts in respect of all Revolving Collateral Loans and Delayed Drawdown Collateral Loans, net of the aggregate amount on deposit in the Revolving Reserve Account on such date of determination, and all amounts due for unsettled purchases at such time over (y) Principal Proceeds on deposit in the Principal Collection Account on such date of determination and designated by the Borrower or the Collateral Manager to settle unsettled purchases reasonably expected by the Borrower or the Collateral Manager to be settled within the Collection Period in which the date of determination occurs, provided that if the date of determination occurs during the period beginning on a Determination Date and ending on the related Payment Date, such Principal Proceeds shall be included in the amount determined pursuant to this clause (y) only if such Principal Proceeds do not constitute Distribution Amounts and are permitted to be retained in the Principal Collection Account.
“Collateral Interest Amount” means, as of any date of determination, the aggregate amount of Interest Proceeds that has been received during the relevant Collection Period (and, if such Collection Period does not end on a Business Day, the next succeeding Business Day).
“Collateral Manager” means TCW Asset Management Company LLC, or any successor in such capacity in accordance with the Collateral Management Agreement.
“Collateral Management Agreement” means the collateral management agreement, dated as of September 13, 2022, between the Borrower and the Collateral Manager relating to the Facility and the Collateral, as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof and thereof.
“Collateral Management Fees” means the fees described in the first sentence of Section 4 of the Collateral Management Agreement.
“Collateral Obligation” means an Eligible First Lien Loan, an Eligible Bifurcated First Lien Loan or an Eligible First Lien Last Out Loan or a Participation Interest therein that, as of the date of acquisition by the Borrower (or its binding commitment to acquire the same), meets each of the following criteria, as shall be determined by the Collateral Manager:
14
15
16
“Collection Period” means, with respect to any Payment Date, the period commencing immediately following the prior Collection Period (or on the Closing Date, in the case of the Collection Period relating to the first Payment Date) and ending on the 15th calendar day of the month in which such Payment Date occurs (or if any such day is not a Business Day, then the next succeeding Business Day) or, in the case of the final Collection Period preceding the Final Maturity Date or the final Collection Period preceding an optional prepayment in whole
17
of the Advances, ending on the day preceding the Final Maturity Date or the date of such prepayment, respectively.
“Collections” means all cash collections, distributions, payments or other amounts received, from any Person in respect of any Collateral Obligations constituting Collateral, including all principal, interest, fees, distributions and redemption and withdrawal proceeds payable to the Borrower under or in connection with any such Collateral Obligations, and all Proceeds from any sale or disposition of any such Collateral Obligations.
“Commitment” means, as the context may require, the Term Commitment and the Revolving Commitment.
“Commitment Fee” has the meaning assigned to such term in the applicable Fee
Letter.
“Commitment Shortfall” means, at any time, the positive excess, if any, of (A) the
Collateral Exposure Amount, minus (B) the Available Unfunded Amount.
“Commitment Termination Date” means, as the context requires, the Term Commitment Termination Date or the Revolving Commitment Termination Date.
“Concentration Limit” means for purposes of calculating the Borrowing Base, as of any date of determination, the applicable percentage (from the table below), calculated as a percentage of Total Capitalization (unless otherwise specified):
Concentration Limits |
|||||
Individual Obligor Concentration Limits1 |
|||||
Largest and 2nd Largest Eligible First Lien Loan Obligors |
7.5% |
||||
Remaining Obligors |
Eligible |
First |
Lien |
Loan |
5.0% |
18
1 If there are multiple Loans to a single obligor, aggregate Adjusted Principal Amount will be subject to both the loan type Individual Concentration Limits and an aggregate applicable Obligor limit of 7.5% if one of the Loans is an Eligible First Lien Loan or 5%.
19
Eligible Obligors |
Bifurcated |
First |
Lien |
Loan |
5.0% |
Eligible First Lien Last Out Obligors |
5.0% |
||||
Aggregate Concentration Limits2 |
|||||
Eligible Bifurcated First Lien Loans and Eligible First Lien Last Out Loans |
55% |
||||
Eligible First Lien Last Out Loans |
35% |
||||
Loans with a Loan Rating of Caa1 or Below |
25% |
||||
Obligor EBITDA is less than $25,000,000, for the most recent four calendar quarters |
15% |
||||
Non-U.S. Obligor Domicile |
10% |
||||
Fixed Rate Loans |
5.0% |
||||
DIP Loans |
5.0% |
||||
PIK Loans |
5.0% |
||||
Eligible ESG Loan |
5.0% |
||||
Revolving Collateral Loan or Delayed Drawdown Collateral Loan |
15% |
||||
Loans that Pay Less Frequently than Quarterly |
10% |
||||
Moody’s Industry Category Concentration Limits3 |
|||||
Largest Moody’s Industry Category |
20% |
||||
2nd Largest Moody’s Industry Category |
17.5% |
||||
Each Remaining Moody’s Industry Category |
15% |
||||
In addition to the foregoing, with respect to any Participation Interest, (i) 30 days following the Closing Date, not more than 0.0% consist of Participation Interests agented by TCW Asset Management Company LLC or an Affiliate thereof, (ii) 60 days following the Closing Date, not more than 33% of the Participation Interests acquired on the Closing Date have not been elevated to assignments and (iii) 90 days following the Closing Date, not more than 0.0% consist of Participation Interests.
“Conforming Changes” means, with respect to the Term SOFR Rate, Daily Simple SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,”
2 If there are multiple Loans to a single obligor, aggregate Adjusted Principal Amount will be subject to both the loan type Individual Concentration Limits and an aggregate applicable Obligor limit of 7.5% if one of the Loans is an Eligible First Lien Loan or 5%.
20
3 If there are multiple Loans to a single obligor, aggregate Adjusted Principal Amount will be subject to both the loan type Individual Concentration Limits and an aggregate applicable Obligor limit of 7.5% if one of the Loans is an Eligible First Lien Loan or 5%.
21
the definition of “Interest Accrual 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 breakage provisions, and other technical, administrative or operational matters) that the Facility Agent decides may be appropriate to reflect the adoption and implementation of the Term SOFR Rate, Daily Simple SOFR or such Benchmark Replacement and to permit the administration thereof by the Facility Agent in a manner substantially consistent with market practice (or, if the Facility Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Facility Agent determines that no market practice for the administration of the Term SOFR Rate, Daily Simple SOFR or the Benchmark Replacement exists, in such other manner of administration as the Facility Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Facility Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income or that are franchise Taxes or branch profit Taxes.
“Constituent Documents” means in respect of any Person, the certificate or articles of formation or organization, the limited liability company agreement (including, in the case of the Borrower, the Limited Liability Company Agreement), operating agreement, partnership agreement, joint venture agreement or other applicable agreement of formation or organization (or equivalent or comparable constituent documents) and other organizational documents and by-laws and any certificate of incorporation, certificate of formation, certificate of limited partnership and other agreement, similar instrument filed or made in connection with its formation or organization, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Control” means, with respect to any Person, the direct or indirect possession of the power (i) to vote more than 50% of the equity interests having ordinary voting power for the election of directors (or the applicable equivalent) of such Person or (ii) to direct or cause the direction of the management or policies of such Person, whether through ownership, by contract, arrangement or understanding, or otherwise; provided, however, that an independent director or independent manager of a Person shall not be deemed to exercise control for purposes of this definition. “Controlled” and “Controlling” have the meaning correlative thereto.
“Controlling Lenders” means, at any time, (i) if the Facility Agent is the sole Lender, the Facility Agent, (ii) if the Facility Agent and a Restricted Lender are the sole Lenders, the Facility Agent, and (iii) if the Facility Agent is not the sole Lender, the Facility Agent and the Lenders that have more than 50% of the aggregate Percentages, provided that at such time, the term “Controlling Lenders” shall include at least two Lenders that are not Affiliates, one of which may be the Facility Agent; provided, however, that if any Lender shall be a Defaulting Lender at such time, then each Lender’s Percentage, for purposes of this definition, shall be the percentage equal to a fraction the numerator of which is the amount of such Lender’s Commitment (or, in the event that such Lender’s Commitments have been terminated, such Xxxxxx’s outstanding Advances under that Commitment) and the denominator of which is the aggregate amount of the Commitments (or, in the event such Xxxxxx’s Commitments have been terminated, the aggregate amount of the outstanding Advances under those Commitments) of the
22
Lenders (excluding in the numerator and the denominator such Defaulting Lender’s unfunded Commitments).
“Covenant Lite Loan” means a Collateral Obligation the Related Documents for which do not (i) contain any financial covenants or (ii) require the borrower thereunder to comply with any Maintenance Covenant.
“Covered Account” means each of the Interest Collection Account, the Principal Collection Account, the Revolving Reserve Account and the Collateral Account.
“Credit Estimate” means, with respect to any Collateral Obligation, a numerical value representing or derived from a credit estimate obtained from Moody’s or S&P.
“Custodian” has the meaning assigned to such term in the introduction to this
23
Agreement.
24
“Custodian Fee Schedule” means the fee schedule set forth on Schedule 8 hereto. “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this
25
rate (which will include a lookback) being established by the Facility Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Facility Agent decides that any such convention is not administratively feasible for the Facility Agent, then the Facility Agent may establish another convention in its reasonable discretion.
“Default” means any event which, with the passage of time, the giving of notice, or both, would constitute an Event of Default.
“Defaulted Equity Obligation” means any Equity Obligation delivered to the Borrower upon acceptance of an Offer in respect of a Defaulted Obligation.
“Defaulted Obligation” means any Collateral Obligation:
26
exchange or other distressed debt restructuring will not be treated as a Defaulted Obligation if it otherwise satisfies the definition of Collateral Obligation; provided, further, a DIP Loan (with respect to the bankruptcy, insolvency, receivership proceeding, distressed exchange or other debt restructuring with respect to which such DIP Loan was received) will not constitute a Defaulted Obligation under this clause (ii);
(b) the Moody’s probability of default rating on such other indebtedness is “D” or “LD” or below or had such Moody’s probability of default rating before such rating was withdrawn and which has not been reinstated as of the date of determination, or (z) as to which the lenders in respect thereof have declared the principal to be immediately due and owing following a default.
“Defaulting Lender” means, at any time, any Lender that, at such time (i) has failed for three or more Business Days after a Borrowing Date to fund its portion of an Advance required pursuant to the terms of this Agreement (other than failures to fund as a result of a bona fide dispute as to whether the conditions to borrowing were satisfied on the relevant Borrowing Date), (ii) has notified the Borrower or the Facility Agent 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 Xxxxxx’s obligation to fund an Advance hereunder and states that such position is based on such Xxxxxx’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), (iii) has failed, within three Business Days after written request by the Facility Agent or the Borrower, to confirm in writing to the Facility Agent and the 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 (iii) upon receipt of such written confirmation by the Facility Agent and the Borrower) or (iv) has, or has a direct or indirect parent company that has, (x) become the subject of a proceeding under the Bankruptcy Code or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, receivership, insolvency, reorganization or similar debtor relief laws of the United States or other applicable jurisdiction or
(y) 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; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership of acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a governmental Authority so long as such
27
ownership interest does not result in or provide such Lender with immunity from the jurisdiction
28
of courts within the United States or from the enforcement of judgment or writs of attachment on its assets or permit such Lender (or such Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Facility Agent that a Lender is a Defaulting Lender under any one or more of clauses (i) through (iv) shall be conclusive and binding absent manifest error.
“Delayed Drawdown Collateral Loan” means a Collateral Obligation that
(a) requires the Borrower to make one or more future advances to the Obligor under the Related Documents, (b) specifies a maximum amount that can be borrowed on one or more fixed borrowing dates, and (c) does not permit the re-borrowing of any amount previously repaid by the Obligor thereunder; provided that any such Collateral Obligation will be a Delayed Drawdown Collateral Loan only to the extent of undrawn commitments and solely until all commitments by the Borrower to make advances on such Collateral Obligation to the Obligor under the Related Documents expire or are terminated or are reduced to zero.
“Deliver” or “Delivered” or “Delivery” means the taking of the following steps:
29
30
statement that names the Borrower as debtor and the Collateral Agent as secured party and that covers all assets of the Borrower; and
“Determination Date” means the last day of each Collection Period. “DIP Loan” means an obligation:
“Dollars” and “$” mean lawful money of the United States.
“Disqualified Lender” means each Person identified by the Borrower in writing to the Facility Agent and set forth on Schedule 4 (such list, as supplemented from time to time by the Borrower after the Closing Date in writing to the Facility Agent, the “DQ List”); provided that at no time shall such DQ List include a commercial lender (i.e., a national bank, a state chartered bank or other similarly regulated lending institution) or insurance company. The identification of a Disqualified Lender after the Closing Date shall not retroactively disqualify any Person that has previously acquired an assignment or participation interest in any Loan or Commitment (or any Person that, prior to such identification, has entered into a bona fide and binding trade for either of the foregoing and has not yet acquired such assignment or participation).
“Distribution Amounts” has the meaning assigned to such term in Section
8.02(d).
31
“Xxxx-Xxxxx Act” has the meaning assigned to such term in Section 2.09(a).
“Due Date” means each date on which any payment is due on a Collateral Obligation in accordance with its terms.
“Early Amortization Event” means the occurrence of one or more of the following
events:
exceeds 6.00:1.00;
“Early Amortization Priority of Payments” has the meaning assigned to such term in Section 9.01(a)(iv).
“EBITDA” means, with respect to any period and any Collateral Obligation, the meaning of “EBITDA”, “Adjusted EBITDA” or any comparable definition in the Related Documents for such period for such Collateral Obligation.
“Effective Spread” means, with respect to any Floating Rate Loan that bears interest based on the Benchmark, its stated spread over the Benchmark or, if such Floating Rate Loan bears interest based on a floating rate index other than the Benchmark, the Effective Spread shall be the then applicable base rate applicable to such Floating Rate Loan plus the rate at which such Floating Rate Loan pays interest in excess of such base rate minus the Benchmark for the then applicable Interest Accrual Period; provided that with respect to (i) the funded portion of any commitment under any Revolving Collateral Loan or Delayed Drawdown Collateral Loan that bears interest based on the Benchmark, the Effective Spread will be its stated spread over the Benchmark or, if such funded portion bears interest based on a floating rate index other than the Benchmark, the Effective Spread shall be the then applicable base rate applicable to such funded portion plus the rate at which such funded portion pays interest in excess of such base rate minus the Benchmark for the then applicable Interest Accrual Period; and (ii) any Benchmark Floor Obligation, the Effective Spread will be its stated spread over the Benchmark plus, if positive, (x)
32
the Benchmark floor value minus (y) the Benchmark for the then applicable
33
interest period; provided that, that the Effective Spread of any floating rate Collateral Obligation shall (a) be deemed to be zero, to the extent that the Borrower or the Collateral Manager has actual knowledge that no payment of cash interest on such floating rate Collateral Obligation will be made by the Obligor thereof during the applicable due period, (b) not include any non-cash interest and (c) not include any Non-Cash Paying PIK Loan.
“Eligibility Criteria” means, with respect to the acquisition of any Collateral Obligation, each of the following at the time of such acquisition:
“Eligible Lending Institution” means (a) a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $100,000,000,
(b) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development or a political subdivision of any such country and which has total assets in excess of $100,000,000, provided that such bank is acting through a branch or agency located in the United States, (c) a finance company, insurance company, or other financial institution or fund organized under the laws of the United States, or any state thereof, that is engaged in making, purchasing, or otherwise investing in commercial loans in the ordinary course of its business and having (together with its Affiliates) total assets in
34
excess of $100,000,000, or (d) a bank, financial institution, trust, fund or other entity organized under the laws of the European Union or the United Kingdom or a political subdivision of any such country that is regularly engaged in or established for the purpose of making, purchasing or investing in a loan, loans, securities or other financial assets; provided, however, that (x) each Eligible Lending Institution must be a Qualified Purchaser and (y) no Disqualified Lender or Sanctioned Person shall qualify as an Eligible Lending Institution.
“Eligible Bifurcated First Lien Loan” means a Loan that (i) is not (and by its terms is not permitted to become) subordinate in right of payment to any other debt for borrowed money incurred by the obligor of such Loan (other than with respect to a Senior Working Capital Facility), (ii) is secured by a valid first priority perfected security interest or lien on specified collateral securing the obligor’s obligations under the Loan, (iii) the value of the collateral securing the Loan together with other attributes of the obligor (including, the obligors general financial condition and its ability to generate cash flow available for debt service and other demand for that cash flow) is adequate (in the commercially reasonable judgment of the Borrower or the Collateral Manager) to repay the Loan and all other senior or pari-passu indebtedness, and (iv) is not secured solely or primarily by common stock or other equity interests.
“Eligible ESG Loan” means a Loan to an Obligor where the Obligor’s Primary Business Activity is (i) oil and gas production and use for energy production (except for efficient gas power plants) and/or (ii) providing and operating dedicated infrastructure for oil and gas production, including offshore shipping assets (except for offshore service, supply and subsea assets).
“Eligible First Lien Last Out Loan” means a Loan (i) that is, upon a default of the Loan, subordinate in right of payment to other first lien indebtedness incurred by the obligor, (ii) that is secured by a valid first priority perfected security interest or lien on specified collateral securing the obligor’s obligations under the Loan, (iii) for which the value of the collateral securing the Loan together with other attributes of the obligor (including, the obligors general financial condition and its ability to generate cash flow available for debt service and other demand for that cash flow) is adequate (in the commercially reasonable judgment of the Borrower or the Collateral Manager) to repay the Loan and all other senior or pari-passu indebtedness, (iv) that is not secured solely or primarily by common stock or other equity interests and (v) for which the ratio of (i) the aggregate principal amount of all Obligor’s other first lien indebtedness senior to the Loan, net of unrestricted cash and unrestricted cash equivalents to (ii) EBITDA for the most recent four calendar quarters, does not exceed 2.00:1.00; provided however, if a Loan fails to be an Eligible First Lien Last Out Loan solely due to clause
(v) above, the Loan shall deemed to be an Eligible First Lien Last Out Loan.
“Eligible First Lien Loan” means a Loan that (i) is not (and by its terms is not permitted to become) subordinate in right of payment to any other debt for borrowed money incurred by the obligor of such Loan (other than with respect to a Senior Working Capital Facility, if any, provided that the outstanding principal balance and unfunded commitments of such Senior Working Capital Facility does not exceed 30% of the sum of (a) the outstanding principal balance and unfunded commitments of such Senior Working Capital Facility, plus (b) the outstanding principal balance of the Loan, plus (c) the outstanding principal balance of any
35
other debt for borrowed money incurred by such obligor that is pari passu with such Loan), (ii) is secured by a valid first priority perfected security interest or lien on specified collateral securing the obligor’s obligations under the Loan, (iii) the value of the collateral securing the Loan together with other attributes of the obligor (including, the obligors general financial condition and its ability to generate cash flow available for debt service and other demand for that cash flow) is adequate (in the commercially reasonable judgment of the Borrower or the Collateral Manager) to repay the Loan and all other senior or pari-passu indebtedness, and (iv) is not secured solely or primarily by common stock or other equity interests.
“Eligible Foreign Obligor” means an Obligor organized in an Approved Foreign
Jurisdiction.
“Eligible Hedge Agreement” means an interest rate hedge agreement entered into
by the Borrower with an Eligible Hedge Counterparty and consented to by the Controlling Lenders and as to which it obtains written advice of counsel that such Hedge Agreement will not cause any person to be required to register as a “commodity pool operator” (within the meaning of the Commodity Exchange Act) with the Commodity Futures Trading Commission in connection with the Borrower.
“Eligible Hedge Counterparty” means, in respect of a counterparty, a party that (a)
(i) is incorporated or organized under the laws of the United States (or any state thereof) or (ii) is the United States branch of a bank organized outside of the United States (provided such branch of a bank organized outside of the United States is duly authorized and licensed to transact business in the United States), (b) is consented to by the Facility Agent and the Controlling Lenders, and (c) has (or such counterparty is guaranteed by an Affiliate having) a Moody’s long-term rating of at least “A2” (and, if “A2”, not on credit watch for possible downgrade) and a Moody’s short-term rating of at least “Prime-1” (and, if “Prime-1”, not on credit watch for possible downgrade) or an S&P long-term rating of at least “A” (and, if “A”, not on credit watch for possible downgrade) and an S&P short-term rating of at least “A-1” (and, if “A-1”, not on credit watch for possible downgrade).
“Eligible Investments” means any Dollar investment that, at the time it is Delivered (directly or through an intermediary or bailee), is one or more of the following obligations or securities:
36
company system, the commercial paper or debt obligations of such holding company) at the time of such investment or contractual commitment providing for such investment have a long-term credit rating by Xxxxx’x that is no lower than Xxxxx’x then current long-term sovereign rating of the U.S. and by S&P that is no lower than S&P’s then current long-term sovereign rating of the U.S., in the case of long-term debt obligations, or a short-term credit rating of “Prime-1” by Xxxxx’x (which is not then on credit watch for possible downgrade by Xxxxx’x) and “A-1+” by S&P at the time of such investment, in the case of commercial paper and short-term debt obligations; provided, that in the case of commercial paper and short-term debt obligations with a maturity of longer than 91 days, the issuer thereof must also have at the time of such investment a long-term credit rating by Xxxxx’x that is no lower than Xxxxx’x then current long-term sovereign rating of the U.S. and by S&P that is no lower than S&P’s then current long-term sovereign rating of the U.S.;
U.S. whose short-term credit rating is “Prime-1” by Xxxxx’x (which is not then on credit watch for possible downgrade by Xxxxx’x) and “A-1+” by S&P at the time of such investment, in the case of commercial paper and short-term debt obligations; provided, that in the case of commercial paper and short-term debt obligations with a maturity of longer than 91 days, the Borrower thereof must also have at the time of such investment a long-term credit rating by Xxxxx’x that is no lower than Xxxxx’x then current long-term sovereign rating of the U.S. and by S&P that is no lower than S&P’s then current long-term sovereign rating of the U.S.;
provided that (1) Eligible Investments purchased with funds in the Interest Collection Account or the Principal Collection Account shall be held until maturity except as otherwise specifically provided herein and shall include only such obligations, other than those referred to in clause (iv) above, as mature (or are putable at par to the issuer thereof) no later than the earlier of (x) 60 days after the date of acquisition thereof or (y) the Business Day prior to the next Payment Date; and (2) none of the foregoing obligations shall constitute Eligible Investments if (a) such obligation has an “f”, “r”, “p”, “pi”, “q” or “t” subscript assigned by S&P, (b) all, or substantially all, of the remaining amounts payable thereunder consist of interest and not principal payments,
(c) such obligation is subject to withholding tax unless the issuer of the obligation is required to make “gross-up” payments for the full amount of such withholding tax, (d) such obligation is secured by real property, (e) such obligation is purchased at a price greater than 100% of the
37
principal or face amount thereof, (f) such obligation is subject of a tender offer, voluntary
38
redemption, exchange offer, conversion or other similar action, (g) in the Borrower or the Collateral Manager’s judgment, such obligation is subject to material non-credit related risks, or
“Environmental Law” means any law, rule, regulation, order, writ, judgment, injunction or decree of the United States or any other nation, or of any political subdivision thereof, or of any governmental Authority relating to pollution or protection of the environment or the treatment, storage, disposal, release, threatened release or handling of hazardous materials, and all local laws and regulations related to environmental matters and any specific agreements entered into with any competent authorities which include commitments related to environmental matters.
“Equity Kicker” means, one or more warrants or equity rights attached to or delivered with a loan which would otherwise satisfy the definition of Collateral Obligation.
“Equity Obligation” means any (a) Equity Kicker; (b) Defaulted Equity Obligation; and (c) other equity obligation that does not entitle the holder thereof to receive periodic payments of interest and one or more installments of principal, including those received by the Borrower as a result of the exercise or conversion of an Equity Kicker or other convertible or exchangeable Collateral Obligation.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Event” means (a) any “reportable event,” as defined in Section 4043(c) of ERISA or the regulations issued thereunder with respect to a Borrower Plan (other than an event for which the thirty (30) day notice requirement is waived); (b) the failure with respect to any Borrower Plan to satisfy the “minimum funding standard” (as defined in Sections 412 and 430 of the Code or Sections 302 and 303 of ERISA); (c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Borrower Plan; (d) a determination that any Borrower Plan is, or is expected to be, in “at risk” status (as defined in Section 430(i) of the Code or Section 303(i) of ERISA); (e) the incurrence by the Borrower or any member of its ERISA Group of any liability under Title IV of ERISA with respect to the termination of any Borrower Plan (other than for premiums due but not delinquent under Section 4007 of ERISA); (f) (i) the receipt by the Borrower or any member of its ERISA Group from the PBGC of a notice of determination that the PBGC intends to terminate any Borrower Plan or to have a trustee appointed for any Borrower Plan, or (ii) the filing by the Borrower or any member of its ERISA Group of a notice of intent to terminate any Borrower Plan; (g) the incurrence by the Borrower or any member of
39
its ERISA Group of any liability (i) with respect to the withdrawal from or termination of a Borrower Plan pursuant to Sections 4063 and 4064 of ERISA, (ii) with respect to a facility closing pursuant to Section 4062(e) of ERISA, or (iii) with respect to the withdrawal or partial withdrawal from any Borrower Multiemployer Plan; (h) the receipt by the Borrower or any member of its ERISA Group of any notice concerning the imposition of Withdrawal Liability or a determination that a Borrower Multiemployer Plan is, or is expected to be, in “endangered status” or “critical status,” within the meaning of Section 432 of the Code or Section 305 of ERISA or is or is expected to be “insolvent” or in “reorganization,” within the meaning of Section 4245 or 4241 of ERISA; or (i) the failure of the Borrower or any member of its ERISA Group to make any required contribution to a Borrower Multiemployer Plan.
“ERISA Group” means each controlled group of corporations or trades or businesses (whether or not incorporated) under common control that is treated as a single employer under Section 414(b) or (c) of the Code (or Section 414(b), (c), (m) or (o) of the Code for purposes of Section 302 of ERISA and Section 412 of the Code) with the Borrower.
“ESG Prohibited Collateral Obligation” means any Loan, debt obligation or debt security of an Obligor where the Obligor’s Primary Business Activity is:
“Event of Default” has the meaning assigned to such term in Section 6.01. “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the
40
rules and regulations promulgated thereunder, all as from time to time in effect, or any successor
41
law, rules or regulations, and any reference to any statutory or regulatory provision shall be deemed to be a reference to any successor statutory or regulatory provision.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Secured Party or required to be withheld or deducted from a payment to a Secured Party: (i) Taxes imposed on (or measured by) net income or net profits or franchise Taxes, in each case,
(ii) branch profits Taxes imposed under Section 884 of the Code, or any similar Taxes under state, local or non-U.S. law, (iii) in the case of any 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 an Advance or a Note pursuant to a law in effect on the date on which (A) such Lender acquires such interest in the Advance or Note (other than pursuant to an assignment request by the Borrower) or (B) such Lender designates a successor lending office (other than pursuant to a request by the Borrower) at which it maintains its interest in an Advance or a Note other than at the request of the Borrower, except in each case, to the extent the Lender or such Lender’s assignor was entitled, at the time that the successor lending office is designated or at the time of such assignment, as the case may be, to receive additional amounts from the Borrower with respect to such Taxes pursuant to Section 12.03, (iv) Taxes that are imposed by reason of FATCA, and (v) Taxes that are attributable to a Secured Party’s failure to comply with the requirements of Section 12.03(g).
“Facility” means the debt facilities governed by this Agreement and the other Facility Documents.
“Facility Agent” has the meaning assigned to such term in the introduction to this
Agreement.
“Facility Agent Fee” means the fees to be paid by the Borrower to PNC as a
facility agent fee pursuant to the applicable Fee Letter on the Closing Date as a Closing Date Expense and thereafter in accordance with the Priority of Payments or otherwise.
“Facility Documents” means this Agreement, the Notes, the Sale and Contribution Agreement, the Account Control Agreement, the Fee Letter, the Collateral Agent Fee Letter, the Collateral Management Agreement and any other security agreements and other instruments entered into or delivered by or on behalf of the Borrower pursuant to Section 5.01(c) to create, perfect or otherwise evidence the Collateral Agent’s security interest and any other agreements delivered to the Facility Agent, the Collateral Agent, the Custodian and/or the Lenders in furtherance of or pursuant to any of the foregoing.
“Facility Margin Level” has the meaning set forth in the applicable Fee Letter. “Fair Market Value” means for any Collateral Obligation either (i) the most recent
quarterly fair market value approved by the Fund based on the valuations included in a report prepared by the Fund’s Independent Valuation Firm; provided that for purposes of determining Fair Market Value under clause (i), if the Independent Valuation Firm provides a range of market
42
values, the Fair Market Value shall not exceed the mid-point of such range of market values reported by the Independent Valuation Firm or (ii) if prior to the Fund’s first fair market valuation for the Collateral Obligation, the purchase price thereof.
“FAS 166/167 Regulatory Capital Rules” means the final rule titled Risk-Based Capital Guidelines; Capital Adequacy Guidelines; Capital Maintenance: Regulatory Capital; Impact of Modifications to Generally Accepted Accounting Principles; Consolidation of Asset-Backed Commercial Paper Programs; and Other Related Issues, adopted by the Office of the Comptroller of the Currency, Department of the Treasury; Board of Governors of the Federal Reserve System; Federal Deposit Insurance Corporation; and Office of Thrift Supervision, Department of Treasury on December 15, 2009.
“FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), 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 practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Facility Agent from three federal funds brokers of recognized standing selected by it; provided that, if at any time a Lender is borrowing overnight funds from a Federal Reserve Bank that day, the Federal Funds Rate for such Lender for such day shall be the average rate per annum at which such overnight borrowings are made on that day as promptly reported by such Lender to the Borrower, the Calculation Agent and the Agents in writing. Each determination of the Federal Funds Rate by a Lender pursuant to the foregoing proviso shall be conclusive and binding except in the case of manifest error.
“Fee Letter” means any fee letter dated as of the Closing Date between PNC and/or the Structuring Agent and the Borrower and any fee letter between the Borrower and any Lender, including PNC, and/or the Structuring Agent after the Closing Date.
“Final Maturity Date” means September 13, 2027 (or such later date as may be extended in accordance with Section 2.06(c) hereof, or as may be otherwise agreed in writing by the Borrower and each of the Lenders and notified in writing to the Agents).
“Final Order” means an order, judgment, decree or ruling the operation or effect of which has not been stayed, reversed or amended and as to which order, judgment, decree or ruling (or any revision, modification or amendment thereof) the time to appeal or to seek review or rehearing has expired and as to which no appeal or petition for review or rehearing was filed or, if filed, remains pending.
43
UCC.
44
“Financial Asset” has the meaning specified in Section 8-102(a)(9) of the UCC. “Financing Statements” has the meaning specified in Section 9-102(a)(39) of the
“FINRA” means the Financial Industry Regulatory Authority, Inc. or any
45
successor entity.
“First Lien Last Out Loan Ineligible Percentage” means for each Eligible First Lien Last Out Loan that does not satisfy clause (v) of the definition thereof, a percentage equal to the greater of (i) zero and (ii)(A) one minus (B) the ratio of (x)(1) the product of (a) 4.5 and (b) EBITDA for the most recent four calendar quarters, minus (2) the aggregate principal amount of all Obligor’s other first lien indebtedness senior to the Loan, net of unrestricted cash and unrestricted cash equivalents, to (y) the Aggregate Principal Balance of such Loan.
“Fixed Rate Loan” means any Collateral Obligation that bears a fixed rate of
46
interest. interest.
47
“Floating Rate Loan” means any Collateral Obligation that bears a floating rate of “Foreign Lender” has the meaning assigned to such term in Section
48
12.03(g)(ii)(B).
“Fund” means TCW Direct Lending VIII LLC, Delaware limited liability
company.
“Fund LLC Agreement” means the Amended and Restated Limited Liability
Company Agreement of TCW Direct Lending VIII LLC, dated as of January 21, 2022, as amended, restated, supplemented or otherwise modified from time to time.
“GAAP” means generally accepted accounting principles in effect from time to time in the United States.
“General Intangible” has the meaning specified in Section 9-102(a)(42) of the
UCC.
“Governmental Authorizations” means all franchises, permits, licenses,
approvals, consents and other authorizations of all Authorities.
“Governmental Filings” means all filings, including franchise and similar tax filings, and the payment of all fees, assessments, interests and penalties associated with such filings with all Authorities.
“Incremental Commitment” has the meaning assigned to such term in Section
2.17.
49
“Incremental Commitment Effective Date” has the meaning assigned to such term in Section 2.17.
“Incremental Lender” has the meaning assigned to such term in Section 2.17. “Indemnified Party” has the meaning assigned to such term in Section 12.04(b). “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 the Borrower under this Agreement and (b) to the extent not otherwise described in the preceding clause (a), Other Taxes.
“Independent” means, as to any Person, any other Person who (i) does not have and is not committed to acquire any material direct or indirect financial interest in such Person or in any Affiliate of such Person, (ii) is not connected with such Person as an officer, employee, promoter, underwriter, voting trustee, partner, director, manager, member or Person performing similar functions and (iii) is not Affiliated with an entity that fails to satisfy the criteria set forth in (i) and (ii).
“Independent Valuation Firm” means, Lincoln International, Xxxxxxxx Xxxxx, Xxxx & Xxxxxx and any additional valuation firms approved by the Borrower and the Controlling Lenders.
“Insolvency Event” means with respect to a specified Person, (a) the filing of a petition seeking the entry of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or any substantial part of its property in an involuntary case under the Bankruptcy Code or any other applicable insolvency law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or ordering the winding-up or liquidation of such Person’s affairs, and such petition shall remain undismissed within sixty (60) days of filing or immediately upon entry of such decree or order; or (b) the commencement by such Person of a voluntary case under the Bankruptcy Code or any other applicable insolvency law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due, or any other similar relief shall be granted against such Person under any applicable federal, state or other law and such relief is not vacated within sixty
(60) days, or the admission in writing by such Person of its inability to pay its debts generally as they become due, or the taking of action by such Person in furtherance of any of the foregoing.
“Instrument” has the meaning specified in Section 9-102(a)(47) of the UCC. “Interest Accrual Period” means, with respect to any SOFR Rate Advance, the
period beginning on the relevant Borrowing Date, and ending on the numerically corresponding day one month, three months, or six months thereafter, in each case, subject to the availability
50
thereof. Notwithstanding the first sentence hereof, (A) any Interest Accrual Period which would otherwise end on a date which is not a Business Day shall be extended to the next succeeding
51
Business Day unless such Business Day falls in the next calendar month, in which case such Interest Accrual Period shall end on the next preceding Business Day, (B) no Interest Accrual Period shall extend beyond the Final Maturity Date, and (C) any Interest Accrual Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Accrual Period) shall end on the last Business Day of the last calendar month of such Interest Accrual Period.
“Interest Collection Account” means the trust account established pursuant to Section 8.02(a)(i).
“Interest Collection Priority of Payments” has the meaning assigned to such term in Section 9.01(a)(ii).
“Interest Coverage Test” means a test that is satisfied at any time on and after the third Payment Date after the Closing Date if the ratio of (A) the Collateral Interest Amount at such time for the three most recent Payment Dates, to (B) the sum of all amounts payable (or expected at such time to be payable) pursuant to clauses (A), (B), (C) and (D) in Section 9.01(a)(i) on the three most recent Payment Dates, is 250% or greater.
“Interest Proceeds” means, with respect to any Collection Period or the related Determination Date, without duplication, the sum of:
52
the Collateral Manager in its sole discretion has determined that such payments are to be treated as Principal Proceeds
provided that, any Unidentified Proceeds, even if on deposit in the Interest Collection Account, shall not be considered Interest Proceeds for any purposes, until such proceeds have been recognized as Interest Proceeds in the Interest Collection Account in accordance with Section 8.02(e).
“Interim Order” means an order, judgment, decree or ruling entered after notice and a hearing conducted in accordance with Rule 4001(c) under the Bankruptcy Code granting interim authorization, the operation or effect of which has not been stayed, reversed or amended.
“International Trade Laws” means all Laws relating to economic and financial sanctions, trade embargoes, export controls, customs and anti-boycott measures.
“Investment Company Act” means the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
“Joinder Agreement” means a joinder or similar agreement entered into by any Person (including any Lender) under Section 2.17 pursuant to which such Person shall provide an Incremental Commitment hereunder and (if such Person is not then a Lender) shall become a Lender party hereto.
“Key Person Event” has the meaning specified in Section 6.3 of the Fund LLC
Agreement.
“Law” means any action, code, consent decree, constitution, decree, directive,
enactment, finding, guideline, law, injunction, interpretation, judgment, order, ordinance, policy statement, proclamation, promulgation, regulation, requirement, rule, rule of law, rule of public policy, settlement agreement, statute, or writ, of any Authority, or any particular section, part or provision thereof.
“Lenders” means the Persons listed on Schedule 1 and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance in accordance with the terms hereof, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“Leverage through Loan” means, with respect to any Collateral Obligation (or Loan) the ratio of (i) the aggregate principal amount of all Obligor indebtedness senior to and pari-passu with the Loan (including the Loan), net of unrestricted cash and unrestricted cash equivalents to (ii) EBITDA for the most recent four calendar quarters.
“Liabilities” has the meaning assigned to such term in Section 12.04(b).
“Lien” means any mortgage, pledge, hypothecation, assignment, encumbrance, lien or security interest (statutory or other), or preference, priority or other security agreement, charge or preferential arrangement of any kind or nature whatsoever (including any conditional
53
sale or other title retention agreement, any financing lease having substantially the same
54
economic effect as any of the foregoing, and any filing authorized by the Borrower of any
.financing statement under the UCC or comparable law of any jurisdiction).
“Limited Liability Company Agreement” means the Amended and Restated Limited Liability Company Agreement of the Borrower dated September 13, 2022, as originally executed and as supplemented, amended and restated from time to time in accordance with its terms.
“Loan” means any loan or extension of credit.
“Loan Advance Rate” means 65% for Eligible First Lien Loans, 55% for Eligible Bifurcated First Lien Loans and 50% for Eligible First Lien Last Out Loans.
“Loan Asset(s)” has the meaning assigned to such term in Section 8.03(b). “Loan Assignment Agreement” has the meaning assigned to such term in Section
55
8.03(b).
56
“Loan Rating” means the following;
57
that addresses the full amount of the principal and interest promised, the lowest of such ratings;
“Loan Rating Exception Obligation” has the meaning assigned to such term in Section 5.01(l).
“London Banking Day” means a day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in London, England.
58
fewer.
59
“Low Diversity Event” means the aggregate number of Obligors is twelve or
“Low Diversity Threshold” means, a threshold that is satisfied as of any date of
60
determination, if the excess of (a) (i) the Aggregate Principal Balance of the Collateral
61
Obligations plus (ii) amounts in the Principal Collection Account less (iii) amounts which, in the reasonable good faith determination of the Borrower or the Collateral Manager, are expected to be due pursuant to clauses (A) through (D) of Section 9.01(a)(i), used for the purchase of Collateral Obligations pursuant to Section 10.02 or used to settle unsettled purchases of Collateral Obligations, over (b) the then aggregate principal amount of outstanding Advances is at least equal to the Aggregate Principal Balance of the Collateral Obligations of the four largest Obligors at such time.
“Maintenance Covenant” means, a covenant by any borrower to comply with one or more financial covenants (including without limitation any covenant relating to cash flow coverage test or leverage) during each reporting period, whether or not such borrower has taken any specified action.
“Mandatory Restrictions” has the meaning assigned to such term in Section 2.18. “Margin Stock” has the meaning assigned to such term in Regulation U. “Material Adverse Effect” means any event that has, or could reasonably be
expected to have, a material adverse effect on (a) the business, assets, financial condition or operations of the Borrower, the Fund or the Collateral Manager, (b) the ability of the Borrower, the Fund or the Collateral Manager to perform its material obligations under this Agreement and the other Facility Documents or (c) the material rights, interests, remedies or benefits (taken as a whole) available to the Lenders or Agents under this Agreement and the other Facility Documents.
“Material Modification” means any amendment or waiver of, or modification to, a credit agreement governing a Loan executed or effected on or after the date such Loan was purchased by the Borrower which:
62
63
provided that, the Loan must meet the definition of one of Eligible First Lien Loan, Eligible Bifurcated First Lien Loan, or an Eligible First Lien Last Out Loan following a Material Modification or will otherwise not be considered a Collateral Obligation for purposes of calculating the Borrowing Base.
“Money” has the meaning specified in Section 1-201(24) of the UCC, and shall be deemed to include “Monies” wherever such term may be used herein.
“Monthly Report” has the meaning assigned to such term in Section 8.06(a). “Monthly Report Date” means the second to last Business Day of each calendar
month in each year, other than a calendar month in which a Payment Date occurs, the first of which shall be in November 2022; provided that, the final Monthly Report Date shall be on the Final Maturity Date.
“Monthly Report Determination Date” means, with respect to any Monthly Report Date, the 15th calendar day of each calendar month in each year (or if any such day is not a Business Day, then the next succeeding Business Day).
“Moody’s” means Xxxxx’x Investors Service, Inc., together with its successors. “Moody’s Industry Category” means any of the industry categories set forth in
Schedule 5, including any such modifications that may be made thereto or such additional categories that may be subsequently established by Moody’s and communicated by the Facility Agent to the Borrower and the Collateral Manager.
“Xxxxx’x Rating Factor”: With respect to any Collateral Obligation, is the number set forth in the table below opposite the Loan Rating of such Collateral Obligation:
Loan Rating |
Xxxxx’x Rating Factor |
Loan Rating |
Xxxxx’x Rating Factor |
Aaa/AAA |
1 |
Ba1/BB+ |
940 |
Aa1/AA+ |
10 |
Ba2/BB |
1350 |
Aa2/AA |
20 |
Ba3/BB- |
1766 |
64
Loan Rating |
Xxxxx’x Rating Factor |
Loan Rating |
Xxxxx’x Rating Factor |
Aa3/AA- |
40 |
B1/B+ |
2220 |
A1/A+ |
70 |
B2/B |
2720 |
A2/A |
120 |
B3/B- |
3490 |
A3/A- |
180 |
Caa1/CCC+ |
4770 |
Baa1/BBB+ |
260 |
Caa2/CCC |
6500 |
Baa2/BBB |
360 |
Caa3/CCC- |
8070 |
Baa3/BBB- |
610 |
Ca/CC or lower |
10000 |
For purposes of the Weighted Average Rating Test, any Collateral Obligation issued or guaranteed by the U.S. government or any agency or instrumentality thereof is assigned a Moody’s Rating Factor of 1.
“Xxxxx’x RiskCalc” means Xxxxx’x KMV RiskCalc® calculated in accordance with the procedures set forth in Schedule 6 hereto as may be reasonably modified at the sole discretion of the Facility Agent without the consent of any party, provided that any change to such calculation of Xxxxx’x RiskCalc shall be communicated to the Borrower and the Collateral Manager at least 5 Business Days prior to such change.
“Multiemployer Plan” means a “multiemployer plan” within the meaning of Section 4001(a)(3) of ERISA.
“Non-Cash Paying PIK Loan” means a loan that permits deferral and/or capitalization of any interest or other periodic distribution otherwise due, as to which all interest or other periodic distribution otherwise due is not being paid currently in Cash.
“Note” means each promissory note, if any, issued by the Borrower to a Lender in accordance with the provisions of Section 2.03, substantially in the form of Exhibit A-1 hereto or Exhibit A-2 hereto, as the same may from time to time be amended, supplemented, waived or modified.
“Notice of Borrowing” has the meaning assigned to such term in Section 2.02. “Notice of Prepayment” has the meaning assigned to such term in Section 2.05. “Obligations” means, all indebtedness, whether absolute, fixed or contingent, at
any time or from time to time owing by the Borrower to any Secured Party or any Affected Person under or in connection with this Agreement, the Notes, the Collateral Agent Fee Letter, any Fee Letter or any other Facility Document, including all amounts payable by the Borrower in respect of the Advances, with interest thereon, and all amounts payable by the Borrower hereunder.
“Obligor” means in respect of any Collateral Obligation, the Person primarily obligated to pay Collections in respect of such Collateral Obligation to the Borrower.
65
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Offer” has the meaning assigned to such term in Section 8.07(c).
“Other Connection Taxes” means, in the case of any Secured Party, any Taxes imposed by any jurisdiction by reason of such Secured Party having any present or former connection with such jurisdiction (other than a connection arising from entering into, executing, delivering, performing any obligation under, receiving any payment under, receiving or perfecting a security interest under, engaging in any other transaction pursuant to, or enforcing its rights under this Agreement, the Notes or any other Facility Document or selling or assigning an interest in any Note or Loan).
“Other Taxes” has the meaning assigned to such term in Section 12.03(b). “Participant” means any Person to whom a participation is sold as permitted by
Section 12.06(c); provided that, no Disqualified Lender shall be permitted to be a Participant hereunder.
66
12.06(c)(ii).
67
“Participant Register” has the meaning assigned to such term in Section
“Participation Interest” means a participation interest in a Loan that would, at the
68
time of acquisition, or the Borrower’s commitment to acquire the same, satisfy each of the following criteria: (i) such participation would constitute a Collateral Obligation were it acquired directly, (ii) the participation provides the participant all of the economic benefit and risk of the whole or part of the Loan or commitment that is the subject of the Loan participation,
(iii) such participation is documented under a Loan Syndications and Trading Association, Loan Market Association or similar agreement standard for loan participation transactions among institutional market participants, and (iv) such participation has been consented to in writing by the Facility Agent for acquisition on the Closing Date. In no event will a Participation Interest include a sub-participation interest in any Loan.
“PATRIOT Act” has the meaning assigned to such term in Section 12.17. “Payment Date” means the last Business Day of January, April, July and October
in each year, the first of which shall be October 2022; provided that, (i) if any such day is not a Business Day, then such Payment Date shall be the next succeeding Business Day and (ii) the final Payment Date shall be the Final Maturity Date.
“Payment Date Report” has the meaning assigned to such term in Section
8.06(b).
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor
agency or entity performing substantially the same functions.
“Percentage” of any Lender means, subject to Section 2.06(a), (a) with respect to any Lender party hereto on the date hereof, the percentage set forth opposite such Xxxxxx’s name
69
under the heading “Percentage” on Schedule 1 hereto, as such amount is reduced by any Assignment and Acceptance entered into by such Lender with an assignee or increased by any Assignment and Acceptance entered into by such Lender with an assignor, or (b) with respect to a Lender that has become a party hereto pursuant to an Assignment and Acceptance, the percentage set forth therein as the assigning Lender’s Percentage transferred, as such amount is reduced by an Assignment and Acceptance entered into between such Lender and an assignee or increased by any Assignment and Acceptance entered into by such Lender with an assignor.
“Permitted Assignee” means (a) a Lender or an Affiliate of a Lender, an Approved Fund, the 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 Facility Agent (each such approval not to be unreasonably withheld, delayed or conditioned by the Facility Agent) and, unless an Event of Default under Sections 6.01(a), 6.01(d), 6.01(e) or 6.01(f) exists at the time any assignment is effected in accordance with Section 12.06, the Borrower (such approval not to be unreasonably withheld or delayed by Borrower); provided, however, that (x) each Permitted Assignee must be a Qualified Purchaser and (y) no Disqualified Lender shall qualify as a Permitted Assignee.
“Permitted Lien” means (i) the Lien in favor of the Collateral Agent for the benefit of the Secured Parties, (ii) the restrictions on transferability imposed by the Related Documents (but only to the extent relating to customary procedural requirements and agent consents expected to be obtained in due course and not to Obligor consents) and (iii) Liens for taxes not yet payable or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP and mechanics’ or suppliers’ liens for services or materials supplied the payment of which is not yet overdue or for which adequate reserves have been established.
“Person” means an individual or a corporation (including a business trust), partnership, trust, incorporated or unincorporated association, joint stock company, limited liability company, government (or an agency or political subdivision thereof) or other entity of any kind.
“PIK Loan” means a Collateral Obligation that permits deferral and/or capitalization of any interest or other periodic distribution otherwise due; provided that such Collateral Obligation will not be considered a PIK Loan for purposes of this Agreement so long as the amount of interest due in cash on each payment date is not reduced below (i) 6.00% (if interest is charged at a fixed rate) or (ii) LIBOR + 3.00%, the Term SOFR Rate + 3.00% or Daily Simple SOFR + 3.00%, as applicable (if interest is charged at a floating rate); provided that no more than 5.0% of the Total Capitalization may consist of Collateral Obligations in accordance with this sentence (and any excess shall be considered PIK Loans).
“Plan” means an “employee pension benefit plan” within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code.
70
Agreement.
71
“PNC” has the meaning assigned to such term in the introduction to this
“Post-Default Rate” means a rate per annum equal to the rate of interest otherwise
72
in effect pursuant to this Agreement plus 2.0% per annum.
“Prepayment Date” means any Payment Date specified for a prepayment, in whole or in part, of the Advances, in accordance with Section 2.05.
“Principal Balance” means:
provided, in all cases, that the Principal Balance of any Equity Obligation shall be deemed to be zero.
“Principal Collection Account” means the trust account established pursuant to Section 8.02(a)(ii).
“Principal Collection Priority of Payments” has the meaning assigned to such term in Section 9.01(a)(iii).
“Principal Proceeds” means, with respect to any Collection Period or the related Determination Date, all amounts received by the Borrower during such Collection Period that do not constitute Interest Proceeds, including sales and unapplied proceeds of the Advances; provided that, any Unidentified Proceeds shall not be considered Principal Proceeds for any purposes, until such proceeds have been recognized as Principal Proceeds and have been deposited into the Principal Collection Account in accordance with Section 8.02(e).
“Priority of Payments” has the meaning assigned to such term in Section 9.01(a). “Primary Business Activity” means, in relation to an Obligor, for the purposes of
determining whether a Loan, debt obligation or debt security is an ESG Prohibited Collateral Obligation or an Eligible ESG Loan, where such Obligor derives more than 50% of its revenues from the relevant business, trade or production (as applicable).
73
“Private Authorizations” means all franchises, permits, licenses, approvals, consents and other authorizations of all Persons (other than Authorities) but excluding any customary procedural requirements and agents’ consents expected to be obtained in due course in connection with the transfer of the Collateral Obligations to the Borrower.
“Proceeds” has, with reference to any asset or property, the meaning assigned to it under the UCC and, in any event, shall include, but not be limited to, any and all amounts from time to time paid or payable under or in connection with such asset or property.
“Prohibited Industry Category” means each of the following industry categories: pornography production or distribution, adult entertainment/escort services, cannabis-related businesses, businesses illegally operating internet gambling or operating internet gambling as a primary business, internet cafes, payday/title lending, political campaigns/committees/candidates, private prisons and foreign embassies/consulates.
“Prohibited Transaction” means a transaction described in Section 406(a) of ERISA that is not exempted by a statutory or administrative or individual exemption pursuant to Section 408 of ERISA.
“Qualified Purchaser” has the meaning assigned to such term in Section 12.06(e). “Real Estate Loan” means any Loan that is directly or indirectly secured by a
mortgage or deed of trust or any security interest, in each case, on residential, commercial, office, retail or industrial property and is underwritten as a mortgage loan (including, for the avoidance of doubt, a Loan of an Obligor whose operating cash flow is primarily derived from the sale or liquidation of the aforementioned types of property).
“Register” has the meaning assigned to such term in Section 12.06(d). “Regulatory Change” has the meaning assigned to such term in Section 2.09(a). “Regulation T”, “Regulation U” and “Regulation X” mean Regulation T, U and
X, respectively, of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Related Documents” means, with respect to any Collateral Obligation, all agreements or documents evidencing, securing, governing, relating to or giving rise to such Collateral Obligation. As used in this Agreement, each reference to the Related Documents to which the Borrower is a party shall be deemed to mean the Related Documents to which the Borrower is a party or to which the Borrower is otherwise bound.
“Related Person” has the meaning assigned to such term in Section 2.04(f). “Reportable Compliance Event” means an event that will occur upon (a) any
breach or violation of the third sentence of Section 4.01(f) or Section 5.02(i) or (b) any Collateral Obligation qualifying as Blocked Property.
74
“Requested Amount” has the meaning assigned to such term in Section 2.02.
“Responsible Officer” means (a) in the case of (i) a corporation or (ii) a partnership, limited partnership or limited liability company that, pursuant to its Constituent Documents, has officers, any chief executive officer, chief financial officer, president, managing director, senior vice president, vice president, assistant vice president, treasurer, director or manager, and, in any case where two Responsible Officers are acting on behalf of such corporation or other entity, the second such Responsible Officer may be a secretary or assistant secretary, (b) without limitation of clause (a)(ii), 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) without limitation of clause (a)(ii), in the case of a limited liability company, the Responsible Officer of the sole member or managing member, acting on behalf of the sole member or managing member in its capacity as sole member or managing member, (d) in the case of a trust, the Responsible Officer of the trustee, acting on behalf of such trustee in its capacity as trustee, (e) an “authorized signatory” or “authorized officer” that has been so authorized pursuant to customary corporate proceedings, limited partnership proceedings, limited liability company proceedings or trust proceedings, as the case may be, and that has responsibilities commensurate with the matter for which it is acting as a Responsible Officer, and (f) when used with respect to the Custodian and the Collateral Agent, any officer assigned to the corporate trust department (or any successor thereto) of such Person, including any Vice President, Assistant Vice President, Trust Officer, or any other officer of the Custodian or the Collateral Agent, as the case may be, customarily performing functions similar to those performed by any of the above designated officers, in each case having direct responsibility for the administration of this Agreement.
“Restricted Lender” has the meaning assigned to such term in Section 2.18. “Revolving Advance” has the meaning assigned to such term in Section 2.01(a). “Revolving Borrowing” has the meaning assigned to such term in Section 2.01(a). “Revolving Collateral Loan” means any Collateral Obligation (other than a
Delayed Drawdown Collateral Loan) that is a loan (including, without limitation, revolving credit loans, including funded and unfunded portions of revolving credit lines and letter of credit facilities, unfunded commitments under specific facilities and other similar loans and investments) that by its terms may require one or more future advances to be made to the Obligor by the Borrower; provided that any such Collateral Obligation will be a Revolving Collateral Loan only until all commitments to make revolving advances to the Obligor expire or are terminated or irrevocably reduced to zero.
“Revolving Commitment” means, as to each Revolving Lender, the obligation of such Revolving Lender to make, on and subject to the terms and conditions hereof, Revolving Advances to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding up to but not exceeding the amount set forth opposite the name of such Revolving Lender on Schedule 1 or in the Assignment and Acceptance pursuant to which such Revolving Lender shall have assumed its Commitment, as applicable, as such amount may be
75
reduced from time to time pursuant to Section 2.05 or Section 2.06 or increased or reduced from time to time pursuant to assignments effected in accordance with Section 12.06(a).
“Revolving Commitment Termination Date” means the last day of the Revolving Period; or, if such day is not a Business Day, then the Revolving Commitment Termination Date shall be the immediately succeeding Business Day.
“Revolving Lender” means the Persons listed on Schedule 1 under the heading “Name of Revolving Lender” and any other Person that shall have become a party hereto as a “revolving lender” pursuant to an Assignment and Acceptance in accordance with the terms hereof, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
“Revolving Percentage” of any Revolving Lender means, (a) with respect to any Revolving Lender party hereto on the date hereof, the percentage set forth opposite such Revolving Lender’s name under the heading “Revolving Percentage” on Schedule 1 hereto, as such amount is reduced by any Assignment and Acceptance entered into by such Revolving Lender with an assignee or increased by any Assignment and Acceptance entered into by such Revolving Lender with an assignor, or (b) with respect to a Revolving Lender that has become a party hereto pursuant to an Assignment and Acceptance, the percentage set forth therein as the assigning Revolving Lender’s Revolving Percentage transferred, as such amount is reduced by an Assignment and Acceptance entered into between such Revolving Lender and an assignee or increased by any Assignment and Acceptance entered into by such Revolving Lender with an assignor.
“Revolving Period” means the period from and including the Closing Date to and including the earliest of (a) September 13, 2025 (or such later date as may be agreed in writing by the Borrower and each of the Lenders and notified in writing to the Agents), (b) occurrence of a Default or Event of Default, or (c) termination of the Term Commitments in whole or in part pursuant to Section 2.05(b) and Section 2.06.
“Revolving Period Priority of Payments” has the meaning assigned to such term in. Section 9.01(a)(i)
“Revolving Reserve Account” means the account established pursuant to
76
Section 8.04. Section 8.04.
77
“Revolving Reserve Required Amount” has the meaning assigned to such term in
“S&P” means Standard & Poor’s Ratings Group, together with its successors. “Sale and Contribution Agreement” means the Sale and Contribution Agreement
78
dated September 13, 2022, between the Borrower and the Fund, pursuant to which the Fund will sell and contribute certain Collateral Obligations to the Borrower.
“Sanctions” means any economic or financial sanctions or trade embargoes (or similar measures) imposed, administered or enforced from time to time by (a) the United States
79
of America (including the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State), (b) the United Nations Security Council, (c) the European Union or any member state thereof, or (d) Her Majesty’s Treasury of the United Kingdom.
“Sanctioned Jurisdiction” means, at any time, a country, area, territory, or jurisdiction that is the subject or target of Sanctions.
“Sanctioned Person” means any Person that is a designated target of any Sanctions or otherwise a subject of any Sanctions, including as a result of being (a) owned or controlled directly or indirectly by any Persons (or Person) that are designated targets of any Sanctions, or (b) organized or operating under the laws of, or a citizen or resident of, any country that is subject to any SanctionsSanctioned Jurisdiction.
“SEC” means the Securities and Exchange Commission or any other governmental authority of the United States at the time administrating the Securities Act, the Investment Company Act or the Exchange Act.
“Secured Parties” means the Facility Agent, the Collateral Agent, the Collateral Administrator, the Custodian (in its capacity as Custodian and as a Securities Intermediary under the Account Control Agreement), the Lenders and their respective permitted successors and assigns.
“Secured Party Representatives” has the meaning assigned to such term in Section
12.09.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Securities Intermediary” has the meaning specified in Section 8-102(a)(14) of
80
the UCC. UCC.
81
“Security Entitlement” has the meaning specified in Section 8-102(a)(17) of the “Senior Working Capital Facility” means with respect to a Loan, a senior secured
82
working capital facility secured solely by Working Capital Assets incurred by the Obligor of such Loan that is prior in right of payment to such Loan.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
83
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Rate Advance” means each Advance that bears interest at a rate based on the Benchmark as provided in Section 2.04.
“Solvent” means, as to any Person as of any date of determination, having a state of affairs such that all of the following conditions are met: (a) the fair value of the property of such Person is greater than the amount of such Person’s liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy Code; (b) the present fair saleable value of the property of such Person in an orderly liquidation of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and other liabilities as they become absolute and matured; (c) such Person is able to realize upon its property and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business; (d) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay as such debts and liabilities mature; and (e) such Person is not engaged in a business or a transaction, and does not propose to engage in a business or a transaction, for which such Person’s property or assets would constitute unreasonably small capital.
“Specified Provision” has the meaning assigned to such term in Section 2.18. “Structured Finance Obligation” means any debt obligation owing by a finance
vehicle that is secured directly and primarily by, primarily referenced to, and/or primarily representing ownership of, a pool of receivables or a pool of other assets, including collateralized debt obligations, residential mortgage-backed securities, commercial mortgage-backed securities, other asset-backed securities, “future flow” receivable transactions and other similar obligations; provided that ABL Facilities, loans to financial service companies, factoring businesses, health care providers and other genuine operating businesses do not constitute Structured Finance Obligations.
“Structuring Agent” means PNC Capital Markets LLC, as structuring agent under
the Facility.
“Structuring Fee” means the fees to be paid by the Borrower to the Structuring
Agent as a structuring fee pursuant to the applicable Fee Letter on the Closing Date as a Closing Date Expense thereafter as otherwise provided.
“Synthetic Security” means any Dollar denominated swap transaction, LCDX, structured bond investment, credit linked note or other derivative investment purchased from, or entered into with a counterparty, which investment contains a probability of default, recovery upon default and expected loss characteristics closely correlated to a reference obligation, but which may provide for a different maturity, interest rate or other non-credit characteristics than such reference obligation.
84
“Tax Advantaged Jurisdiction” means the Cayman Islands, Bermuda, the Channel Islands or the Bahamas or any other country designated by the Borrower or the Collateral Manager, with the written consent of the Facility Agent and the Controlling Lenders, as a Tax Advantaged Jurisdiction.
“Tax Event” means an event that will occur upon a change in or the adoption of any U.S. or non-U.S. tax statute or treaty, or any change in or the issuance of any regulation (whether final, temporary or proposed), ruling, practice, procedure or any formal or informal interpretation of any of the foregoing, which change, adoption or issuance results or will result in
(i) any portion of any payment due from any Obligor under any Collateral Obligation becoming properly subject to the imposition of U.S. or foreign withholding tax, which withholding tax is not compensated for by a “gross-up” provision under the terms of such Collateral Obligation or
(ii) any jurisdiction’s properly imposing net income, profits or similar tax on the Borrower; provided, that (x) as a result of the occurrence of any such event, the Borrower has failed to pay in full any Commitment Fees, interest on the Advances, or principal in respect of the Advances, and (y) the total amount of (A) the amount withheld from payments to the Borrower which is not compensated for by a “gross-up” provision as described in clause (i) is determined to be in excess of 5% of the aggregate Collateral Interest Amount due during the related Collection Period or (B) the tax or taxes imposed on the Borrower as described in clause (ii) of this definition exceeds $1,000,000 in any Collection Period.
“Taxes” means any and all present or future taxes, and similar levies, imposts, deductions, charges, withholdings (including backup withholding), assessments, fees and other charges imposed by any governmental Authority, and all liabilities (including penalties, interest and expenses) with respect thereto.
“Term Advance” has the meaning assigned to such term in Section 2.01. “Term Borrowing” has the meaning assigned to such term in Section 2.01.
“Term Commitment” means, as to each Term Lender, the obligation of such Term Lender to make, on and subject to the terms and conditions hereof, Term Advances to the Borrower pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding up to but not exceeding the amount set forth opposite the name of such Term Lender on Schedule 1 or in the Assignment and Acceptance pursuant to which such Term Lender shall have assumed its Commitment, as applicable, as such amount may be increased or reduced, as applicable, from time to time pursuant to Section 2.05 or Section 2.06, or increased or reduced from time to time pursuant to assignments effected in accordance with Section 12.06(a).
“Term Commitment Termination Date” means the earliest of (i) December 13April 29, 20232024, (ii) the date on which the Term Advances become due and payable pursuant to Section 6.01, or (iii) the termination of the Commitments in whole or in part in accordance with Section 2.05(b).
“Term Lender” means (a) the Persons listed on Schedule 1 under the heading “Name of Term Lender” and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance as a “term lender” in accordance with the terms hereof, other
85
than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance, and (b) each Revolving Lender becoming a Term Lender in accordance with Section 2.06(a).
“Term Percentage” of any Term Lender means, subject to Section 2.06(a), (a) with respect to any Term Lender party hereto on the date hereof, the percentage set forth opposite such Term Lender’s name under the heading “Term Percentage” on Schedule 1 hereto, as such amount is reduced by any Assignment and Acceptance entered into by such Term Lender with an assignee or increased by any Assignment and Acceptance entered into by such Term Lender with an assignor, or (b) with respect to a Term Lender that has become a party hereto pursuant to an Assignment and Acceptance, the percentage set forth therein as the assigning Term Lender’s Term Percentage transferred, as such amount is reduced by an Assignment and Acceptance entered into between such Term Lender and an assignee or increased by any Assignment and Acceptance entered into by such Term Lender with an assignor.
“Total Capitalization” means prior to the first anniversary of the Closing Date, the greater of (a) the aggregate Adjusted Principal Amount of all Collateral Obligations and (b) the lesser of (i) 200% of the then applicable Total Commitment and (ii) $800,000,000; on and after the first anniversary of the Closing Date, the aggregate Adjusted Principal Amount of all Collateral Obligations.
“Total Commitment” means the sum of the Total Revolving Commitment and the Total Term Commitment.
“Total Revolving Commitment” means (a) on or prior to the Revolving Commitment Termination Date, $200,000,000400,000,000 (as such amount may be reduced from time to time pursuant to Section 2.05(b) or Section 2.06 or increased from time to time pursuant to Section 2.17) and (b) after the Revolving Commitment Termination Date, zero.
“Total Term Commitment” means (a) on or prior to the Term Commitment Termination Date, $200,000,000400,000,000 (as such amount may be reduced from time to time pursuant to Section 2.05(b) or Section 2.06 or increased from time to time pursuant to Section
2.17) and (b) following the Term Commitment Termination Date, zero.
“Treasury Regulations” means the regulations issued by the Internal Revenue Service under the Code, as such regulations may be amended from time to time.
“UCC” means the New York Uniform Commercial Code, as from time to time; provided that, if the relevant issue is governed by the Uniform Commercial Code as in effect in another jurisdiction, then “UCC” means such other Uniform Commercial Code.
“Uncertificated Security” has the meaning specified in Section 8-102(a)(18) of the
UCC.
“Unfunded Pension Liability” means the excess of a Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Plan’s assets, determined as of the date of the most recent actuarial valuation for such Plan and based on the assumptions used
86
in such actuarial valuation for such Plan.
87
“Unidentified Proceeds” means proceeds received by the Custodian that have not yet been identified as Interest Proceeds or Principal Proceeds and, in the case of Principal Proceeds, have not yet been deposited into the Principal Collection Account and, in the case of Interest Proceeds, have not yet been recognized as Interest Proceeds in the Interest Collection Account in accordance with Section 8.02(e).
“United States” and “U.S.” mean the United States of America.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday or Sunday or (b) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 12.03(g)(v).
“Xxxxxxx Rule” means Section 619 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act, as amended from time to time, and the rules promulgated thereunder.
“Weighted Average Life” means, as of any date of determination, the number obtained by applying the following procedures: (i) for each Collateral Obligation (other than Defaulted Obligations), multiplying each scheduled distribution of principal by the number of years (rounded to the nearest hundredth) from such date of determination until such scheduled distribution is scheduled to be paid; (ii) summing all of the products calculated pursuant to clause (i); and (iii) dividing the sum calculated pursuant to clause (ii) by the sum of all scheduled distributions of principal due on all the Collateral Obligations (excluding Defaulted Obligations) as of such date of determination.
“Weighted Average Life Test” means a test that will be satisfied as of any date of determination if the Weighted Average Life of the Collateral Obligations as of such date of determination is equal to or less than 5.0-years.
“Weighted Average Rating” means, as of any date of determination, the number obtained by applying the following procedures: (i) multiplying the Adjusted Principal Amount of each Collateral Obligation (excluding the unfunded portion of any Revolving Collateral Loan or Delayed Drawdown Collateral Loan and excluding any Defaulted Obligation) by its Xxxxx’x Rating Factor on any date of determination; (ii) summing the products determined pursuant to clause (i) for all Collateral Obligations; (iii) dividing the sum determined pursuant to clause (ii) by the aggregate Adjusted Principal Amount of all Collateral Obligations (excluding the unfunded portion of any Revolving Collateral Loan or Delayed Drawdown Collateral Loan and excluding any Defaulted Obligation) on such date of determination; and (iv) rounding the result determined pursuant to clause (iii) to the nearest whole number.
“Weighted Average Rating Test” means a test that will be satisfied as of any date of determination if the Weighted Average Rating of the Collateral Obligations as of such date of determination is equal to or less than 4500.
88
“Weighted Average Spread” means, as of any date of determination, the number equal to a fraction (expressed as a percentage) obtained by applying the following procedures: (i) multiplying the Adjusted Principal Amount (excluding any unfunded portion of any Revolving Collateral Loan or Delayed Drawdown Collateral Loan and excluding any Defaulted Obligation) of each Floating Rate Loan held by the Borrower as of such date of determination by its Effective Spread; (ii) summing the amounts determined pursuant to clause (i); and (iii) dividing the amount determined pursuant to clause (ii) by the aggregate Adjusted Principal Balance of all Floating Rate Loans (excluding the unfunded portions of all Revolving Collateral Loans and Delayed Drawdown Collateral Loans and excluding any Defaulted Obligation) held by the Borrower as of such date of determination.
“Weighted Average Spread Test” means a test that will be satisfied as of any date of determination if the Weighted Average Spread of the Floating Rate Loans as of such date of determination is equal to or greater than 4.5%.
“Withdrawal Liability” means liability to a Borrower Multiemployer Plan as a result of a complete or partial withdrawal from such Borrower Multiemployer Plan, as such terms are defined in Sections 4203 and 4205 of ERISA.
“Working Capital Assets” means the assets of any Obligor available for day-to-day operations, including cash, inventory and accounts receivable, which can be liquidated into cash or be used within one year.
“Zero Coupon Obligation” means a Collateral Obligation that does not provide for periodic payments of interest in Cash or that pays interest only at its stated maturity.
Section 1.02 Rules of Construction.
For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires (i) singular words shall connote the plural as well as the singular, and vice versa (except as indicated), as may be appropriate, (ii) the words “herein,” “hereof” and “hereunder” and other words of similar import used in this Agreement refer to this Agreement as a whole and not to any particular article, schedule, section, paragraph, clause, exhibit or other subdivision, (iii) the headings, subheadings and table of contents set forth in this Agreement are solely for convenience of reference and shall not constitute a part of this Agreement nor shall they affect the meaning, construction or effect of any provision hereof,
(iv) references in this Agreement to “include” or “including” shall mean include or including, as applicable, without limiting the generality of any description preceding such term, and for purposes hereof the rule of ejusdem generis shall not be applicable to limit a general statement, followed by or referable to an enumeration of specific matters, to matters similar to those specifically mentioned, (v) each of the parties to this Agreement and its counsel have reviewed and revised, or requested revisions to, this Agreement, and the rule of construction that any ambiguities are to be resolved against the drafting party shall be inapplicable in the construction and interpretation of this Agreement, (vi) any definition of or reference to any Facility Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or
89
modifications set forth herein), (vii) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions set forth herein or in any other applicable agreement), (viii) any reference to any law or regulation herein shall refer to such law or regulation as amended, modified or supplemented from time to time, (ix) unless otherwise specified herein, all accounting terms used herein shall be interpreted and all accounting determinations hereunder shall be made in accordance with GAAP as in effect from time to time and (x) unless otherwise specified herein or unless the context requires a different meaning, all terms used herein that are defined in Articles 8 and 9 of the UCC are used herein as so defined.
Section 1.03 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” both mean “to but excluding”. Periods of days referred to in this Agreement shall be counted in calendar days unless Business Days are expressly prescribed. Unless otherwise indicated herein, all references to time of day refer to Eastern Standard Time or Eastern daylight saving time, as in effect in New York City on such day.
Section 1.04 Collateral Value Calculation Procedures.
In connection with all calculations required to be made pursuant to this Agreement on any Collateral Obligations, or any payments on any other assets included in the Collateral and on any other amounts that may be received for deposit in the Interest Collection Account or the Principal Collection Account, the provisions set forth in this Section 1.04 shall be applied. The provisions of this Section 1.04 shall be applicable to any determination or calculation that is covered by this Section 1.04, whether or not reference is specifically made to this Section 1.04, unless some other method of calculation or determination is expressly specified in the particular provision.
90
91
ARTICLE II ADVANCES UNDER THE FACILITY
Section 2.01 Facilities.
Within such limits and subject to the other terms and conditions of this Agreement, the Borrower may borrow (and re-borrow) Revolving Advances under this Section 2.01(a) and prepay Revolving Advances under Section 2.05(a).
92
no such Term Advances and no prepayment of any Term Advances shall be made on the Business Day immediately preceding (but not including) any Payment Date.
Within such limits and subject to the other terms and conditions of this Agreement, the Borrower may borrow Term Advances under this Section 2.01(b) and prepay Term Advances under Section 2.05(b). Amounts prepaid or repaid in respect of the Term Loans may not be reborrowed.
Section 2.02 Advances.
a.m. at least one Business Day prior to the Closing Date. If the Revolving Commitment Termination Date occurs as a result of clause (a) of the definition of Revolving Period, on such date the Borrower shall request a Revolving Borrowing in an amount at least equal to the Collateral Exposure Amount and such Borrowing shall be deposited, in respect of the portion of the Collateral Exposure Amount relating to unfunded amounts in respect of Revolving Collateral Loans and Delayed Drawdown Collateral Loans, to the Revolving Reserve Account, and in respect of the portion of the Collateral Exposure Amount relating to unsettled purchases, to the Principal Collection Account until reduced to zero and terminated.
Each Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date the request for the related Borrowing is being made, indicating whether the requested Borrowing is to be a Revolving Borrowing or a Term Borrowing, signed by a Responsible Officer of the Borrower or the Collateral Manager on its behalf, and otherwise be appropriately completed. The Borrower may not submit a Notice of Borrowing if a Default or Event of Default has occurred and is continuing. The proposed Borrowing Date specified in each Notice of Borrowing shall be a Business Day falling on or prior to the applicable Commitment Termination Date, and the amount of the Borrowing requested in such Notice of Borrowing (the “Requested Amount”) shall be equal to at least, in the case of any Revolving Borrowing, $500,000 or, in the case of any Term Borrowing, $1,000,000, or, in each case, an integral multiple of $500,000 in excess thereof (or, if less, the remaining unfunded Commitments hereunder).
93
Section 2.03 Evidence of Indebtedness; Notes.
Section 2.04 Payment of Principal and Interest.
The Borrower shall pay principal and interest on the Advances as follows:
All Advances shall constitute SOFR Rate Advances (subject to their conversion to Base Rate Advances pursuant to Section 2.11), provided that, (i) in the event the Borrower is no longer able to borrow SOFR Rate Advances as a result of the occurrence of any of the circumstances set forth in Section 2.11, the Borrower may request Base Rate Advances hereunder until such time as SOFR Rate Advances are available and (ii) after the occurrence and during the continuation of any Event of Default, all SOFR Rate Advances will be converted to Base Rate Advances at the end of the applicable Interest Accrual Period if so directed by the Facility Agent (at the direction of the Controlling Lenders).
The Calculation Agent shall provide notice to the Borrower, the Collateral Manager, Collateral Agent and the Lenders of any and all Benchmark rate sets on the date that any such rate set is determined.
94
Section 2.05 Prepayment of Advances.
95
96
of Exhibit C hereto not later than 12:00 noon on the Business Day that is (i) in the case of SOFR Rate Advances, three Business Days prior to the date of such prepayment, and (ii) in the case of Base Rate Advances, one Business Day prior to the date of such prepayment. Each such Notice of Prepayment shall be irrevocable and effective upon receipt and shall be dated the date such notice is being given, signed by a Responsible Officer of the Borrower or the Collateral Manager and otherwise appropriately completed. Each prepayment of any Revolving Advance by the Borrower pursuant to this Section 2.05(a) shall in each case be in a principal amount of at least
$1,000,000 or a whole multiple of $500,000 in excess thereof or, if less, the entire outstanding principal amount of the Advances of the Borrower. If a Notice of Prepayment is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.
97
equal to the lesser of (i) the amount prepaid on the Advances and (ii) the Total Commitment as in effect on such date.
Section 2.06 Automatic Reduction, Conversion and Termination.
98
not earlier than thirty (30) days prior to the then current Final Maturity Date and the then current Final Maturity Date shall, as of such date, be extended for a period of an additional up to three (3) year period from such date.
Section 2.07 Maximum Lawful Rate.
It is the intention of the parties hereto that the interest on the Advances shall not exceed the maximum rate permissible under Applicable Law. Accordingly, anything herein or in any Note to the contrary notwithstanding, in the event any interest is charged to, collected from or received from or on behalf of the Borrower by the Lenders pursuant hereto or thereto in excess of such maximum lawful rate, then the excess of such payment over that maximum shall be applied first to the payment of amounts then due and owing by the Borrower to the Secured Parties under this Agreement (other than in respect of principal of and interest on the Advances) and then to the reduction of the outstanding principal amount of the Advances of the Borrower.
Section 2.08 Several Obligations.
The failure of any Lender to make any Advance to be made by it on the date specified therefor shall not relieve any other Lender of its obligation to make its Advance on such date, neither Agent shall be responsible for the failure of any Lender to make any Advance, and no Lender shall be responsible for the failure of any other Lender to make an Advance to be made by such other Lender.
Section 2.09 Increased Costs.
99
subject in all cases to Section 2.04(f)), following such Affected Person’s demand, pay in accordance with the Priority of Payments to such Affected Person such additional amounts as may be sufficient to compensate such Affected Person for such increased cost. A certificate setting forth in reasonable detail the amount of such increased cost, submitted to the Borrower by an Affected Person (with a copy to the Agents), shall be conclusive and binding for all purposes, absent manifest error. Notwithstanding anything herein to the contrary, each of (i) the Xxxx–Xxxxx Xxxx Street Reform and Consumer Protection Act and all rules and regulations promulgated thereunder or issued in connection therewith (the “Xxxx-Xxxxx Act”), (ii) any law, request, rule, guideline or directive promulgated by the Bank of 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 (“Basel III”), and (iii) any existing or future rules, regulations, guidance, interpretations or directives from the U.S. bank regulatory agencies relating to the Xxxx-Xxxxx Act or Basel III (whether or not having the force of law), and all rules and regulations promulgated thereunder or issued in connection therewith shall be deemed to have been introduced after the Closing Date, thereby constituting a Regulatory Change hereunder with respect to the Affected Parties as of the Closing Date, regardless of the date enacted, adopted or issued.
(ii) the adoption after the Closing Date of any other law, rule, regulation or guideline regarding capital adequacy or liquidity affecting such Affected Person or any holding company for such Affected Person or (iii) compliance, implementation or application, whether commenced prior to or after the Closing Date, by any Affected Person with the Xxxx-Xxxxx Act or Basel III, or any rules, regulations, guidance, interpretations or directives from bank regulatory agencies promulgated in connection therewith or (iv) any change arising after the Closing Date in the foregoing or in the interpretation or administration of any of the foregoing by any governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or (v) compliance by any Affected Person (or any lending office of such Affected Person), or any holding company for such Affected Person which is subject to any of the capital requirements described above, with any request or directive issued after the Closing Date regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, (A) affects the amount of capital required to be maintained by such Affected Person and that the amount of such capital is increased by or based upon the existence of such Affected Person’s Commitment under this Agreement or upon such Affected Person’s making, funding or maintaining Advances or (B) reduces the rate of return of an Affected Person to a level below that which such Affected Person could have achieved but for such compliance (taking into consideration such Affected Person’s policies with respect to capital adequacy), then the Borrower shall from time to time, on the Payment Dates (but subject in all cases to Section 2.04(f)), following such Affected Person’s demand, pay in accordance with the Priority of Payments such additional amounts which are sufficient to compensate such Affected Person for such increase in capital or reduced return. If any Affected Person becomes entitled to claim any additional amounts pursuant to this Section 2.09(b), it shall promptly notify the Borrower (with a copy to the Agents) of the event by reason of which it has become so entitled. A certificate setting forth in reasonable detail such amounts submitted to the Borrower by an Affected Person shall be conclusive and binding for all purposes, absent manifest error.
100
Upon the occurrence of any event giving rise to the Borrower’s obligation to pay additional amounts to a Lender pursuant to clauses (a) or (b) of this Section 2.09, such Lender will, if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such Lender) to designate a different lending office if such designation would reduce or obviate the obligations of the Borrower to make future payments of such additional amounts; provided that such designation is made on such terms that such Lender and its lending office suffer no unreimbursed cost or legal or regulatory disadvantage (as reasonably determined by such Lender), with the object of avoiding future consequence of the event giving rise to the operation of any such provision. Notwithstanding anything to the contrary in this Section 2.09, the Borrower shall not be required to compensate a Lender pursuant to this Section 2.09 for any amounts incurred more than nine months prior to the date that such Lender notifies the Borrower of such Xxxxxx’s intention to claim compensation therefor; provided that, if the circumstances giving rise to such claim have a retroactive effect, then such nine month period shall be extended to include the period of such retroactive effect.
Section 2.10 Compensation; Breakage Payments.
The Borrower agrees to compensate each Affected Person from time to time, on the Payment Dates, following such Affected Person’s written request (which request shall set forth the basis for requesting such amounts), in accordance with the Priority of Payments, for all reasonable losses, expenses and liabilities (including any interest paid by such Affected Person to lenders of funds borrowed by the Borrower to make or carry a SOFR Rate Advance made to the Borrower and any loss sustained by such Affected Person in connection with the re-employment of such funds but excluding loss of anticipated profits or margin), which such Affected Person may sustain: (i) if for any reason (including any failure of a condition precedent set forth in Article III but excluding a default by the applicable Lender) a Borrowing of any SOFR Rate Advance by the Borrower does not occur on the Borrowing Date specified therefor in the applicable Notice of Borrowing delivered by the Borrower, (ii) if any payment, prepayment or conversion of any of the Borrower’s SOFR Rate Advances occurs on a date that is not the last day of the relevant Interest Accrual Period, (iii) if any payment or prepayment of any SOFR Rate Advance is not made on any date specified in a Notice of Prepayment given by the Borrower,
(iv) if any SOFR Rate Advance is converted into a Base Rate Advance on a date other than the last day of the Interest Accrual Period therefor or (v) as a consequence of any other default by the Borrower to repay its SOFR Rate Advances when required by the terms of this Agreement. A certificate as to any amounts payable pursuant to this Section 2.10 submitted to the Borrower by any Lender (with a copy to the Agents, and accompanied by a reasonably detailed calculation of such amounts and a description of the basis for requesting such amounts) shall be conclusive in the absence of manifest error.
Section 2.11 Illegality; Inability to Determine Rates.
101
102
shall be automatically converted into Base Rate Advances on the date that such Lender shall specify to the Agents and the Borrower.
Section 2.12 Rescission or Return of Payment.
The Borrower agrees that, if at any time (including after the occurrence of the Final Maturity Date) all or any part of any payment theretofore made by it to any Secured Party or any designee of a Secured Party is or must be rescinded or returned for any reason whatsoever (including the insolvency, bankruptcy or reorganization of the Borrower or any of its Affiliates), the obligation of the Borrower to make such payment to such Secured Party shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence and this Agreement shall continue to be effective or be reinstated, as the case may be, as to such obligations, all as though such payment had not been made.
Section 2.13 Fees Payable by Xxxxxxxx.
Section 2.14 Post-Default Interest.
The Borrower shall pay interest on all Obligations that are not paid when due for the period from the Due Date thereof until the date the same is paid in full at the Post-Default Rate. Interest payable at the Post-Default Rate shall be payable on each Payment Date in accordance with the Priority of Payments.
103
Section 2.15 Payments Generally.
Section 2.16 Replacement of Lenders.
104
105
Section 2.17 Increases in Commitments.
106
Section, each Incremental Commitment shall be a Commitment (and not a separate facility hereunder), each Incremental Lender providing such Incremental Commitment shall be, and have all the rights of, a Lender, and the Borrowings made by it on such Incremental Commitment Effective Date pursuant to paragraph (e) of this Section shall be Borrowings, for all purposes of this Agreement.
As of such Incremental Commitment Effective Date, upon the Facility Agent’s receipt of the documents required by this paragraph (d), the Facility Agent shall record the information contained in the applicable Joinder Agreement(s) in the Register and give prompt notice of the increase in the Commitments to the Borrower and the Lenders (including each Incremental Lender).
107
108
accordance with their respective Commitments after giving effect to the applicable Incremental Commitment(s).
Section 2.18 Sanctions Provisions in Respect of Certain Lenders.
The representations and covenants in the third sentence of Section 4.01(f) and in Section 5.01(i) (each, a “Specified Provision”) shall apply for the benefit of any Lender that is prohibited by applicable law from complying with some or all Sanctions (each, a “Restricted Lender”) only to the extent that such Specified Provision would not result in a violation of, conflict with or liability under such applicable laws (the “Mandatory Restrictions”). In the event of any consent or direction by Lenders in respect of any Specified Provision of which a Restricted Lender does not have the benefit due to a Mandatory Restriction, then, notwithstanding anything to the contrary in the definition of Controlling Lenders, for so long as such Restricted Lender shall be subject to a Mandatory Restriction, the Commitment and Advances of such Restricted Lender will be disregarded for the purpose of determining whether the requisite consent of the Lenders has been obtained or direction by the requisite Lenders has been made (which, for the avoidance of doubt, shall include such direction of the Controlling Lenders pursuant to Section 6.01), it being agreed, however, that unless in connection with any such determination, the Facility Agent shall have received written notice from any Lender stating that such Lender is a Restricted Lender with respect thereto, each Lender shall be presumed, in connection with such determination, not to be a Restricted Lender.
ARTICLE III CONDITIONS PRECEDENT
Section 3.01 Conditions Precedent to Closing.
Subject to Section 3.02, the obligation of the Lenders hereunder shall be subject to the conditions precedent that the Facility Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Facility Agent:
109
110
Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(i) as to its Constituent Documents, (ii) as to its resolutions approving the Collateral Management Agreement and the transactions contemplated thereby, including acting pursuant to this Agreement, (iii) that its representations and warranties set forth in the Collateral Management Agreement are true and correct in all material respects as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (iv) no Default or Event of Default has occurred and is continuing, and
(v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
111
112
being released on the Closing Date, (B) those granted pursuant to this Agreement and the Account Control Agreement and (C) Permitted Liens;
Section 3.02 Conditions Precedent to Each Borrowing.
The obligation of the Lenders to make each Advance (including any such Advance in respect of the initial Borrowing) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the Term Commitment Termination Date:
113
114
ARTICLE IV REPRESENTATIONS AND WARRANTIES
Section 4.01 Representations and Warranties of the Borrower.
The Borrower represents and warrants to each of the Secured Parties on and as of the Closing Date and, the date each Advance is made, and any such other date expressly identified therein, as follows:
115
Documents would require, such qualification, except for failures to be so qualified would not in the aggregate have a Material Adverse Effect.
116
the execution and delivery by it of any Facility Document to which it is a party, the Borrowings by the Borrower under this Agreement, the pledge of the Collateral by the Borrower under this Agreement or the performance of its obligations under this Agreement and the other Facility Documents to which it is a party.
117
expected to have a Material Adverse Effect, and no extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Borrower Plan.
owner.
comply in all material respects with all applicable Environmental Laws.
Section 4.02 Additional Representations and Warranties of the
Borrower.
The Borrower represents and warrants to each of the Secured Parties on and as of the Closing Date, each Determination Date, the date each Advance is made, and each date on which a Collateral Obligation is granted to the Collateral Agent hereunder, as follows:
118
119
connection with this Agreement, the other Facility Documents or the transactions contemplated hereby or thereby, and all such written information provided by or on behalf of the Borrower to any Secured Party, do not contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which it was made, not misleading as of the date such information is stated or certified.
120
to all other liens, claims and encumbrances and is enforceable as such against creditors of and purchasers from the Borrower;
ARTICLE V COVENANTS
Section 5.01 Affirmative Covenants of the Borrower.
The Borrower covenants and agrees that, until the Final Maturity Date (and thereafter until the date that all Obligations (other than unasserted contingent liabilities) have been paid in full):
121
122
(ii) It will not, without the prior written consent of the Facility Agent (at the direction of the Controlling Lenders) (except in the case of the Collateral Management Agreement, in which case no consent shall be required), contract with other Persons for the performance of actions and obligations to be performed by the Borrower hereunder and under the Collateral Management Agreement by such Persons. Notwithstanding any such arrangement, the Borrower shall remain primarily liable with respect thereto. The Borrower shall perform, and use its commercially reasonable efforts to cause the Collateral Manager and such other Person to perform in all material respects, all of their obligations and agreements contained in the Collateral Management Agreement, this Agreement or any such other agreement. The Borrower hereby acknowledges that the Facility Agent is an express third party beneficiary of the Collateral Management Agreement and the Borrower shall not pledge, transfer or otherwise assign the Collateral Management Agreement to any other party without the written consent of the Facility Agent.
In addition, the Borrower will take such reasonable action from time to time as shall be necessary to ensure that all assets (including all Covered Accounts) of the Borrower constitute “Collateral” hereunder. Subject to the foregoing, the Borrower will upon the reasonable request of either Agent, at the Borrower’s expense, take such other action (including delivering or authorizing for filing any required UCC financing statements) as shall be necessary to create and perfect a valid and enforceable first-priority security interest on all Collateral acquired by the Borrower as security for the Obligations and will in connection therewith deliver such proof of corporate action, incumbency of officers, opinions of counsel and other documents as is consistent with those delivered by the Borrower pursuant to Section 3.01 on the Closing Date or as either Agent shall have reasonably requested.
123
124
accountants, (ii) the Fund’s books, records and accounts relating to the Borrower’s business, financial condition, operations, assets and (B) the Fund’s and the Borrower’s performance under the Facility Documents and the Related Documents and to discuss the foregoing with the Fund’s officers, partners, employees and accountants and (iii) all of the Related Documents available to the Collateral Manager and the Fund; provided that, so long as no Event of Default or Early Amortization Event has occurred and is continuing, the Facility Agent and any designee thereof, in the aggregate, entitled to so visit and inspect the Collateral Manager’s and the Fund’s records under this clause (e) may only exercise its rights under this clause (e) once during any fiscal year of the Collateral Manager and the Fund and only one such annual visit per annum shall be at the Borrower’s expense;
Advance in a manner that does not, directly or indirectly, violate any provision of its Constituent Documents or any Applicable Law, including Regulation T, Regulation U and Regulation X.
125
entering into the Facility Documents, any applicable Related Documents and any other agreements contemplated by this Agreement and any business ancillary thereto.
126
to the purchased Collateral Obligation and (ii) the Collateral Manager reasonably believes after application of its underwriting standards that the rating of any such Collateral Obligation is at least “Caa1” (any Collateral Obligation subject to such exception, a “Loan Rating Exception Obligation”). Only one Loan Rating Exception Obligation shall be permitted at any time and all information necessary to calculate Xxxxx’x RiskCalc with respect to any Loan Rating Exception Obligation shall be delivered to the Facility Agent and the Collateral Agent no later than 30 days after the purchase of such Collateral Obligation. After the second occurrence of any Loan Rating Exception Obligation being determined to have a Loan Rating less than “Caa1” once all information has been provided to the Facility Agent and the Collateral Agent, no further Loan Rating Exception Obligations shall be permitted and the information necessary to calculate Xxxxx’x RiskCalc with respect to any Collateral Obligation proposed for purchase by the Borrower shall thereafter be provided at least five Business Days prior to the date of any purchase of a Collateral Obligation. After the initial determination of the Loan Rating of any Collateral Obligation using Xxxxx’x RiskCalc, the Borrower shall thereafter provide the Facility Agent and the Collateral Agent all information necessary to update Xxxxx’x RiskCalc with respect to such Collateral Obligation on a quarterly basis.
127
Xxxxxx’s execution of a release letter for such Independent Valuation Firm, if required, with respect to such Xxxxxx’s receipt of such valuation report.
Section 5.02 Negative Covenants of the Borrower.
The Borrower covenants and agrees that, until the Final Maturity Date (and thereafter until the date that all Obligations have been paid in full):
128
Regulation U and Regulation X, or for any purpose that would cause any of the Lenders to be in violation of Regulation T or Regulation U.
129
this Agreement and the other Facility Documents). The Borrower shall not acquire any Collateral Obligations or other property other than as expressly permitted under the Facility Documents.
(ii) except for Permitted Liens and as otherwise permitted by this Agreement, take any action that would result in the lien of this Agreement to no longer constitute a valid first priority security interest in the Collateral.
130
received in a workout or restructuring of a Defaulted Obligation or otherwise acquired in connection with a workout or restructuring of a Collateral Obligation.
9.01 and 10.02 and Article VIII.
Section 5.03 Certain Undertakings Relating to Separateness.
131
132
Borrower from the Fund and to indicate that the Borrower’s assets and credit are not available to satisfy the debts and other obligations of such other Person.
133
pursuant to any provisions of the Facility Documents and permit the same to remain outstanding in accordance with such provisions.
(iii) transfer, lease or sell, in one transaction or any combination of transactions, all or substantially all of its properties or assets, or (iv) terminate its organizational documents or its qualifications and good standing in any jurisdiction, in each case except as expressly permitted by the Facility Documents.
134
135
ARTICLE VI EVENTS OF DEFAULT
Section 6.01 Events of Default.
“Event of Default”, wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
136
party, or the failure of any representation or warranty of the Borrower or the Collateral Manager made in any Facility Document or in any certificate or other writing delivered pursuant thereto or in connection therewith to be correct in each case in all material respects when the same shall have been made, and the continuation of such default, breach or failure for a period of thirty days after the earlier of (x) written notice to the Borrower, the Fund or the Collateral Manager, as applicable (which may be by e-mail) by either Agent, the Controlling Lender or the Collateral Manager, in each case specifying such default, breach or failure and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder and (y) actual knowledge of the Borrower, the Fund or the Collateral Manager, as applicable; or
137
approved in accordance with the Collateral Management Agreement has not been appointed within thirty days thereof; or
Upon a Responsible Officer obtaining knowledge of the occurrence of an Event of Default, each of (i) the Borrower, (ii) the Collateral Agent and (iii) the Collateral Manager shall notify each other, specifying the specific Event of Default(s) that occurred as well as all other Events of Default that are then known to be continuing. Upon the occurrence of an Event of Default known to the Collateral Agent, the Collateral Agent shall promptly notify the Facility Agent (which shall notify the Lenders promptly) of such Event of Default in writing, specifying the specific Event of Default(s) that occurred as well as all other Events of Default that are then known to be continuing; provided that, the Collateral Agent shall have no responsibility to monitor or take note of any of the aforesaid matters that might constitute an Event of Default other than a payment default, despite its obligation to provide notice thereof upon knowledge of any of the aforesaid matters in accordance with the foregoing.
Upon the occurrence and during the continuance of any Event of Default, in addition to all rights and remedies specified in this Agreement and the other Facility Documents, including Article VII, and the rights and remedies of a secured party under Applicable Law, including the UCC, the Facility Agent (at the direction of the Controlling Lenders), by notice to the Borrower, may do any one or more of the following: (1) declare the Commitments to be terminated forthwith, whereupon the Commitments shall forthwith terminate, and (2) declare the principal of and the accrued interest on the Advances and the Notes and all other amounts whatsoever payable by the Borrower hereunder (including any amounts payable under Section 2.10) to be forthwith due and payable, whereupon such amounts shall be immediately due and payable without presentment, demand, protest or other formalities of any kind, all of which are hereby waived by the Borrower; provided that, upon the occurrence of any Event of Default described in clauses (e) and (f) of this Section 6.01, the Commitments shall automatically terminate and the Advances and all such other amounts shall automatically become due and payable, without any further action by any party.
ARTICLE VII
PLEDGE OF COLLATERAL; RIGHTS OF THE COLLATERAL AGENT
Section 7.01 Grant of Security.
The Borrower hereby grants, pledges, transfers and assigns to the
138
Collateral Agent, for the benefit of the Secured Parties, as security for all Obligations, a
139
continuing security interest in, and a Lien upon, all of the Borrower’s right, title and interest in, to and under the following property, in each case whether tangible or intangible, wheresoever located, and whether now owned by the Borrower or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 7.01 being collectively referred to herein as the “Collateral”):
140
time supporting or securing payment of the assets, investments and properties described above; and
If and only if all Obligations under the Facility (other than unasserted contingent obligations) have been paid in full and all Commitments have been terminated, the security interest of the Secured Parties in the Collateral shall immediately terminate and the Secured Parties shall, at the expense of the Borrower, promptly execute, deliver and file or authorize for filing such instruments as the Borrower shall reasonably request in order to reassign, release or terminate the Secured Parties’ security interest in the Collateral. The Secured Parties acknowledge and agree that upon the sale or disposition of any Collateral by the Borrower in compliance with the terms and conditions of this Agreement, the security interest of the Secured Parties in such Collateral shall immediately terminate and the Secured Parties shall, at the expense of the Borrower, execute, deliver and file or authorize for filing such instrument as the Borrower shall reasonably request to reflect or evidence such termination. Any and all actions under this Article VII in respect of the Collateral shall be without any recourse to, or representation or warranty by, any Secured Party and shall be at the sole cost and expense of the Borrower.
Section 7.03 Rights and Remedies.
The Collateral Agent (for itself and on behalf of the other Secured Parties) shall have all of the rights and remedies of a secured party under the UCC and other Applicable Law. Upon the occurrence and during the continuance of an Event of Default, the Collateral Agent or its designees may, and shall at the direction of the Facility Agent (at the direction of the Controlling Lenders), and in each case, where applicable subject to the terms of the Related Documents (i) instruct the Borrower to deliver any or all of the Collateral, the Related Documents and any other documents relating to the Collateral to the Custodian or its designees and otherwise give all instructions for the Borrower regarding the Collateral; (ii) sell or otherwise dispose of the Collateral, all without judicial process or proceedings; (iii) take control of the Proceeds of any such Collateral; (iv) subject to the provisions of the applicable Related Documents, exercise any consensual or voting rights in respect of the Collateral; (v) release, make extensions, discharges, exchanges or substitutions for, or surrender, all or any part of the Collateral; (vi) enforce the Borrower’s rights and remedies with respect to the Collateral;
(vii) institute and prosecute legal and equitable proceedings to enforce collection of, or realize upon, any of the Collateral; (viii) require that the Borrower immediately take all actions necessary to cause the liquidation of the Collateral in order to pay all amounts due and payable in respect of the Obligations, in accordance with the terms of the Related Documents; (ix) redeem or withdraw or cause the Borrower to redeem or withdraw any asset of the Borrower to pay amounts due and payable in respect of the Obligations; (x) make copies of or, if necessary, remove from the Borrower’s and its agents’ respective places of business all books, records and documents relating to the Collateral; and (xi) endorse the name of the Borrower upon any items
141
of payment relating to the Collateral or upon any proof of claim in bankruptcy against an account debtor.
The Borrower hereby agrees that, upon the occurrence and during the continuance of an Event of Default, at the request of the Collateral Agent or the Facility Agent but subject to the requirements of the Related Documents, it shall execute all documents and agreements which are necessary or appropriate to have the Collateral be assigned to the Collateral Agent or its designee. For purposes of taking the actions described in clauses (i) through (xi) of the first paragraph of this Section 7.03, the Borrower hereby irrevocably appoints the Collateral Agent as its attorney-in-fact (which appointment being coupled with an interest and is irrevocable while any of the Obligations remain unpaid and which can be exercised only if such Event of Default is continuing), with power of substitution, in the name of the Collateral Agent or in the name of the Borrower or otherwise, for the use and benefit of the Collateral Agent, but at the cost and expense of the Borrower and, except as permitted by Applicable Law, without notice to the Borrower.
All sums paid or advanced by the Collateral Agent in connection with the foregoing and all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorneys’ fees and expenses) incurred in connection therewith, together with interest thereon at the Post-Default Rate from the date of payment until repaid in full, shall be paid by the Borrower to the Collateral Agent from time to time on demand in accordance with the Priority of Payments and shall constitute and become a part of the Obligations secured hereby.
To the extent permitted by law, without the prior written consent of all of the Lenders, credit bidding by any Lender (or any other Person) in connection with any foreclosure sale hereunder shall not be permitted.
Section 7.04 Remedies Cumulative.
Each right, power, and remedy of the Agents and the other Secured Parties, or any of them, as provided for in this Agreement or in the other Facility Documents or now or hereafter existing at law or in equity or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power, or remedy provided for in this Agreement or in the other Facility Documents or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise by either of the Agents or any other Secured Party of any one or more of such rights, powers, or remedies shall not preclude the simultaneous or later exercise by such Persons of any or all such other rights, powers, or remedies.
Section 7.05 Related Documents.
142
connection with the Related Documents relating to the Collateral only in accordance with the direction of such Agent.
Section 7.06 Borrower Remains Liable.
Section 7.07 Assignment of Sale and Contribution Agreement and any Eligible Hedge Agreement.
(iii) the right to receive all notices, accountings, consents, releases and statements thereunder and
(iv) the right to do any and all other things whatsoever that the Borrower is or may be entitled to do thereunder; provided that notwithstanding anything herein to the contrary, the Agents shall
143
not have the authority to exercise any of the rights set forth in (i) through (iv) above or that may otherwise arise as a result of the grant until the occurrence and during the continuance of an Event of Default hereunder, and such authority shall terminate at such time, if any, as such Event of Default is cured or waived.
Section 7.08 Protection of Collateral.
The Borrower shall from time to time execute and deliver all such supplements and amendments hereto and file or authorize the filing of all such financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as may be necessary or advisable to secure the rights and remedies of the Secured Parties hereunder and to:
Collateral;
made by this Agreement including, without limitation, the first priority nature of the lien (subject to clause (ii) of the definition of Permitted Liens) or carry out more effectively the purposes hereof;
144
The Borrower hereby designates the Collateral Agent as its agent and attorney in fact to prepare and file all UCC-1 financing statements, continuation statements and other instruments, and take all other actions, required pursuant to this Section 7.08. Such designation shall not impose upon the Collateral Agent, or release or diminish, the Borrower’s obligations under this Section 7.08.
ARTICLE VIII
ACCOUNTS, ACCOUNTINGS AND RELEASES
Section 8.01 Collection of Money.
Except as otherwise expressly provided herein, the Collateral Agent may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all Money and other property payable to or receivable by the Collateral Agent pursuant to this Agreement, including all payments due on the Collateral, in accordance with the terms and conditions of such Collateral. The Custodian shall segregate and hold all such Money and property received by it in a Covered Account for the benefit of the Secured Parties and shall apply it as provided in this Agreement. Each Covered Account shall be established as a single segregated securities account, held and maintained under the Account Control Agreement with (a) a federal or state-chartered depository institution having a Xxxxx’x long-term rating of at least “Baa2” and an S&P long-term rating of at least “BBB”, and, if such institution’s ratings falls below such levels, then the assets held in such Covered Account shall, upon direction of the Facility Agent following notice to the Facility Agent and the Collateral Agent from the Custodian, be moved within 30 days to another institution that has such ratings or (b) in segregated securities accounts maintained with the corporate trust department of a federal or state-chartered deposit institution subject to regulations regarding fiduciary funds on deposit similar to Title 12 of the Code of Federal Regulation Section 9.10(b). Any Covered Account may contain any number of subaccounts for the convenience of the Collateral Agent or as required by this Agreement for convenience in administering the Covered Account or the Collateral.
145
Section 8.02 Interest Collection Account and Principal Collection
Account.
146
147
(pursuant to written notice to the Collateral Agent) as Interest Proceeds or Principal Proceeds, as the case may be. Upon the deposit of such funds, such funds shall be subject to the Lien of the Collateral Agent (for the benefit of the Secured Parties) granted under this Agreement, automatically and without the need for further action.
148
149
Section 8.03 Transaction Accounts.
Section 8.04 The Revolving Reserve Account; Fundings.
In accordance with this Agreement and the Account Control Agreement, the Collateral Agent has established at the Custodian a single, segregated securities account held in trust and titled the “TCW DL VIII Financing LLC Revolving Reserve Account, subject to the lien of the Collateral Agent”, which shall be designated as the “Revolving Reserve Account”,
150
which shall be maintained by the Borrower with the Custodian in accordance with the Account Control Agreement and which shall be subject to the lien of the Collateral Agent. The only permitted deposits to or withdrawals from the Revolving Reserve Account shall be in accordance with the provisions of this Agreement. The Borrower shall not have any legal, equitable or beneficial interest in the Revolving Reserve Account other than in accordance with this Agreement, the other Facility Documents and the Priority of Payments.
Upon the purchase by the Borrower of any Delayed Drawdown Collateral Loan or Revolving Collateral Loan or, if necessary, on the Revolving Commitment Termination Date (if not directly deposited into the Revolving Reserve Account in accordance with Section 2.02(a)), funds shall be withdrawn by the Collateral Agent at the direction of the Borrower or the Collateral Manager from the Principal Collection Account and deposited in the Revolving Reserve Account, (i) during the Revolving Period, in an amount sufficient to ensure no Commitment Shortfall exists as of such time, and (ii) at all times after the last day of the Revolving Period, equal to the aggregate unfunded commitments in respect of all Revolving Collateral Loans and Delayed Drawdown Collateral Loans (the amount required to be on deposit at all times in the Revolving Reserve Account pursuant to such clause (i) or (ii), as applicable, the “Revolving Reserve Required Amount”).
Fundings of Revolving Collateral Loans and Delayed Drawdown Collateral Loans shall be made using, first, amounts on deposit in the Revolving Reserve Account, then amounts on deposit in the Principal Collection Account and finally, prior to the Revolving Commitment Termination Date, available Borrowings.
Amounts on deposit in the Revolving Reserve Account may be invested in overnight funds that are Eligible Investments selected by the Borrower or the Collateral Manager pursuant to Section 8.05, and earnings from all such investments will be deposited in the Interest Collection Account as Interest Proceeds. So long as no Event of Default has occurred and is then continuing, all funds in the Revolving Reserve Account (other than earnings from Eligible Investments therein) will be available solely to cover drawdowns on the Delayed Drawdown Collateral Loans and Revolving Collateral Loans; provided that, to the extent that the aggregate amount of funds on deposit therein at any time exceeds the Revolving Reserve Required Amount, or if the underlying commitment to fund such drawdowns with respect to the Delayed Drawdown Collateral Loans and Revolving Collateral Loans is reduced or terminated, the Collateral Agent shall promptly notify the Borrower and the Collateral Manager and remit such excess to the Principal Collection Account, and such amounts will be treated as Principal Collections.
Section 8.05 Reinvestment of Funds in Covered Accounts; Reports by Collateral Agent.
151
herein). If no Event of Default is continuing, the Borrower shall not have given any such investment directions, the Custodian shall seek instructions from the Borrower or the Collateral Manager within three Business Days after the transfer of any funds to such accounts and shall promptly invest in “First American Government Obligation Fund”, which is an Eligible Investment of the type described in clause (i) of the definition of the term “Eligible Investments” that mature overnight. If the Custodian does not thereafter receive written instructions from the Borrower or the Collateral Manager within five Business Days after the transfer of such funds to such accounts, it shall invest and reinvest the funds held in such accounts, as fully as practicable, in “First American Government Obligation Fund”, which is an Eligible Investments of the type described in clause (i) of the definition of the term “Eligible Investments” maturing no later than the Business Day immediately preceding the next Payment Date (or such shorter maturities expressly provided herein). If, after the occurrence and during the continuance of an Event of Default, the Borrower or the Collateral Manager shall not have given such investment directions to the Custodian for three consecutive days, the Custodian shall invest and reinvest such Monies as fully as practicable in “First American Government Obligation Fund”, which is an Eligible Investment of the type described in clause (i) of the definition of the term “Eligible Investments” maturing not later than the earlier of (i) thirty days after the date of such investment (unless putable at par to the issuer thereof) or (ii) the Business Day immediately preceding the next Payment Date (or such shorter maturities expressly provided herein). Should any such specific Eligible Investment be unavailable, and in the absence of another proper investment instruction, all such funds shall be held uninvested. Except to the extent expressly provided otherwise herein, all interest and other income from such investments shall be deposited in the Interest Collection Account, any gain realized from such investments shall be credited to the Principal Collection Account upon receipt, and any loss resulting from such investments shall be charged to the Principal Collection Account. The Borrower and the Collateral Manager shall not in any way be held liable by reason of any insufficiency of such accounts which results from any loss relating to any such investment.
152
the Borrower’s obligations hereunder that have been delegated to the Collateral Manager. The Custodian shall promptly forward to the Collateral Agent, and the Collateral Agent shall promptly forward to the Collateral Manager and the Borrower, copies of notices and other writings received by the Custodian from the Obligor of any Collateral Obligation or from any Clearing Agency with respect to any Collateral Obligation or Eligible Investment which notices or writings advise the holders of such Collateral Obligation or Eligible Investment of any rights that the holders might have with respect thereto (including, without limitation, requests to vote with respect to amendments or waivers and notices of prepayments and redemptions) as well as all periodic financial reports received from such Obligor or Clearing Agencies with respect to such Obligor or issuer.
Section 8.06 Accountings.
Simultaneous with the delivery of each Payment Date Report, the Borrower or the Collateral Manager shall provide a certificate certifying that (i) no Default or Event of Default occurred during the period covered by such Payment Date Report, (ii) no Early Amortization Event occurred during the period covered by such Payment Date Report (after giving effect to the application of all Unidentified Proceeds in accordance with Section 8.02(e)), and (iii) no Low Diversity Event occurred during the period covered by such Payment Date Report, and, in each such case, if any such event in (i), (ii) or (iii) occurred during such period, setting forth the details thereof and the action which the Borrower is taking or proposes to take with respect thereto.
In addition, the Borrower or the Collateral Manager shall provide for inclusion in each Payment Date Report a statement setting forth in reasonable detail each amendment, modification or waiver under any Related Document for each Collateral Obligation that could reasonably have a material adverse effect on the lenders in the underlying Collateral Obligation
153
and that became effective during the three month period ending on the Determination Date for the related Payment Date.
Section 8.07 Release of Securities.
(i) deliver any Collateral, and release or cause to be released such security from the lien of this Agreement, which is set for any mandatory call or redemption or payment in full to the appropriate paying agent on or before the date set for such call, redemption or payment, in each case against receipt of the call or redemption price or payment in full thereof and (ii) provide notice thereof to the Collateral Manager.
154
of additional Collateral Obligations or Eligible Investments as permitted under and in accordance with the requirements of this Article VIII and Article X.
Section 8.08 Reserved.
Section 8.09 Reserved.
Section 8.10 Collateral Reporting.
155
and as is within the possession of the Collateral Administrator and that can be provided without unreasonable burden or expense.
(ii) delivery of all information to the Collateral Administrator necessary to complete such calculations. For the avoidance of doubt, the Collateral Administrator shall have no obligation to determine (and the Borrower or the Collateral Manager will timely advise the Collateral Administrator) whether any item of Collateral meets the definition of “Collateral Obligation”, “Equity Obligation” or “Defaulted Obligation” and nothing herein shall obligate the Collateral Administrator to review or examine any underlying instrument or contract evidencing, governing or guaranteeing or securing any Collateral in order to verify, confirm, audit or otherwise determine any characteristics thereof.
156
157
purchase of the applicable Collateral prior to the time the Collateral Administrator delivers such calculations, the Collateral Administrator shall not be responsible for determining whether the provisions of this Agreement have been satisfied (including compliance with the Eligibility Criteria) and the Collateral Administrator, the Collateral Agent and the Custodian shall be entitled to rely upon and comply with the instructions of the Borrower or the Collateral Manager in all respects, including but not limited to instructions (which may be in the form of trade tickets) to release the applicable Collateral from the lien of this Agreement or to acquire the applicable Collateral. In the event the Borrower or the Collateral Manager consummates a sale or purchase prior to receiving the calculations of the Collateral Administrator, the Collateral Administrator shall be under no duty, and shall incur no liability for such sale or purchase and shall not be obligated to perform the calculations set forth in Sections 8.10(c) and (d) above.
ARTICLE IX APPLICATION OF MONIES
Section 9.01 Disbursements of Monies.
158
159
(2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party);
160
(2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party);
161
Counterparty is the defaulting party or (2) a termination event under such Eligible Hedge Agreement for which the Eligible Hedge Counterparty is the sole affected party; and
162
(D) in clause (i) above (in the same order of priority specified therein), in each case without regard to the Administrative Expense Cap;
(2) all amounts remaining after making payments in clauses (A) and (B) above, for the repayment of the Advances until paid in full, first, to repay the Revolving Advances and, second, if the outstanding principal amount of the Revolving Advances has been reduced to zero, the repay the Term Advances;
163
164
to be made concurrently or substantially concurrently with such disbursement), (3) after giving effect to such disbursement, no Borrowing Base Deficiency shall exist, and (4) no Low Diversity Event shall exist as of the date of such disbursement.
ARTICLE X
SALE OF COLLATERAL OBLIGATIONS; PURCHASE OF ADDITIONAL COLLATERAL OBLIGATIONS
Section 10.01 Sales and Substitutions of Collateral Obligations.
Section 10.02 Purchase of Additional Collateral Obligations.
165
otherwise cause the Borrower to be subject to income tax on a net income basis in any jurisdiction.
Section 10.03 Conditions Applicable to All Purchase Transactions.
Upon any acquisition of a Collateral Obligation pursuant to this Article X, a security interest in all of the Borrower’s right, title and interest to the Collateral shall be granted to the Collateral Agent pursuant to this Agreement, such Collateral shall be Delivered to the Custodian, and, if applicable, the Borrower shall receive the Collateral for which the Collateral was substituted, free and clear of the lien of this Agreement.
ARTICLE XI THE AGENTS
Section 11.01 Authorization and Action.
Each Lender hereby irrevocably appoints and authorizes the Facility Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and, to the extent applicable, the other Facility Documents as are delegated to such Agent by the terms hereof and thereof, together with such powers as are reasonably incidental thereto, subject to the terms hereof. No Agent shall have any duties or responsibilities, except those expressly set forth herein or in the other Facility Documents, nor any fiduciary relationship with or duty to any Secured Party, and no implied covenants, functions, responsibilities, duties or obligations or liabilities on the part of such Agent shall be read into this Agreement or any other Facility Document to which such Agent is a party (if any) as duties on its part to be performed or observed. No Agent shall have or be construed to have any other duties or responsibilities in respect of this Agreement and the transactions contemplated hereby. As to any matters not expressly provided for by this Agreement or the other Facility Documents, no Agent shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Controlling Lenders; provided that such Agent shall not be required to take any action which exposes such Agent, in its judgment, to personal liability, cost or expense or which is contrary to this Agreement, the other Facility Documents or Applicable Law, or would be, in its judgment, contrary to its duties hereunder, under any other Facility Document or under Applicable Law. Each Lender agrees that in any instance in which the Facility Documents provide that an Agent’s consent may not be unreasonably withheld, provide for the exercise of such Agent’s
166
reasonable discretion, or provide
167
to a similar effect, it shall not in its instructions (or, by refusing to provide instruction) to such Agent withhold its consent or exercise its discretion in an unreasonable manner.
Section 11.02 Delegation of Duties.
Each Agent may execute any of its duties under this Agreement and each other Facility Document by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.
Section 11.03 Agents’ Reliance, Etc.
168
each Notice of Borrowing received hereunder). No Agent shall be liable for any action taken in good faith and reasonably believed by it to be within the powers conferred upon it, or taken by it pursuant to any direction or instruction by which it is governed, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action (including without limitation for refusing to exercise discretion or for withholding its consent in the absence of its receipt of, or resulting from a failure, delay or refusal on the part of any Lender to provide, written instruction to exercise such discretion or grant such consent from any such Lender, as applicable). No Agent shall be liable for any error of judgment made in good faith unless it shall be proven that such Agent was grossly negligent in ascertaining the relevant facts. Nothing herein or in any Facility Documents or Related Documents shall obligate any Agent to advance, expend or risk its own funds, or to take any action which in its reasonable judgment may cause it to incur any expense or financial or other liability for which it is not adequately indemnified. No Agents shall be liable for any indirect, special or consequential damages (included but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. No Agent shall be charged with knowledge or notice of any matter unless actually known to a Responsible Officer of such Agent responsible for the administration of this Agreement, or unless and to the extent written notice of such matter is received by such agent had its address in accordance with Section 12.02. Any permissive grant of power to an Agent hereunder shall not be construed to be a duty to act. Each Agent shall have only the duties and responsibilities as are specifically set forth in this Agreement and no covenants or obligations shall be implied in this Agreement against any Agent. Before acting hereunder, an Agent shall be entitled to request, receive and rely upon such certificates and opinions as it may reasonably determine appropriate with respect to the satisfaction of any specified circumstances or conditions precedent to such action.
Section 11.04 Indemnification.
Each of the Lenders agrees severally based on its Percentage to indemnify and hold the Agents harmless (to the extent not reimbursed by or on behalf of the Borrower pursuant to Section 12.04 or otherwise) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, attorney’s fees and expenses) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agents in any way relating to or arising out of this Agreement or any other Facility Document or any Related Document or any action taken or omitted by the Agents under this Agreement or any other Facility Document or any Related Document; provided that:
169
expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct; and
The rights of the Agents and obligations of the Lenders under or pursuant to this Section 11.04 shall survive the termination of this Agreement, and the earlier removal or resignation of any Agent hereunder.
Section 11.05 Successor Agents.
-day period (as applicable), shall appoint a successor agent. If the Facility Agent shall resign or be removed pursuant to this Section 11.05(a), then the Controlling Lenders, during such thirty- or fifteen-day period (as applicable), shall appoint a successor agent. If for any reason a successor agent is not so appointed and does not accept such appointment during such thirty- or fifteen
-day period (as applicable) (the last day of such period, the “Appointment Cut-off Date”), such
170
Agent may appoint a successor Agent. The appointment of any successor Agent pursuant to this Section 11.05(a) shall be subject to the prior written consent of the Borrower (which consent
171
shall not be unreasonably withheld or delayed); provided that the consent of the Borrower to any such appointment shall not be required if (i) an Event of Default shall have occurred and be continuing, (ii) if such assignee is a Lender or an Affiliate of such Agent or any Lender; or
(iii) for any reason no successor has been appointed within 30 days after the relevant Appointment Cut-off Date and the Borrower has theretofore not entered into an agreement in principle with a potential successor that would be qualified to act as such Agent hereunder. Any resignation or removal of an Agent pursuant to this Section 11.05(a) shall be effective upon the appointment of a successor Agent pursuant to this Section 11.05(a) and the acceptance of such appointment by such successor. After the effectiveness of any retiring Agent’s resignation hereunder as Agent, the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Facility Documents (but not in its capacity as a Lender, if applicable) and the provisions of this Article XI and Section 11.05(a) shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while it was Agent under this Agreement and under the other Facility Documents.
172
removed in all other capacities in which it serves under this Agreement and under any of the other Facility Documents. Any removal of the Custodian pursuant to this Section 11.05(c) shall be effective upon the appointment of a successor Custodian pursuant to this Section 11.05(c) and the acceptance of such appointment by such successor. After the effectiveness of any removal of the Custodian pursuant to this Section 11.05(c), the Custodian shall be discharged from its duties and obligations hereunder and under the other Facility Documents (but not in its capacity as Lender, if applicable) and the provisions of this Article XI and Section 11.05(c) shall continue in effect for its benefit with respect to any actions taken or omitted to be taken by it while it was Custodian under this Agreement and under the other Facility Documents. In the event that the Custodian is removed pursuant to this Section 11.05(c), the Borrower or the Collateral Manager shall bear any costs related to such removal and appointment of a successor Custodian.
Section 11.06 Regarding the Collateral Agent.
173
174
175
ARTICLE XII MISCELLANEOUS
Section 12.01 No Waiver; Modifications in Writing; Benchmark
Replacement Setting.
176
Loan”, “Fair Market Value”, “Interest Coverage Test”, “Loan Rating”, “Low Diversity Event”, “Low Diversity Threshold” or “Term Commitment Termination Date”; and
(2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Facility Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Facility Document so long as the Facility Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Controlling Lenders.
177
occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Facility Document, except, in each case, as expressly required pursuant to this Section 12.01(c).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then current Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Accrual Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Accrual Period” pursuant to clause (iv) of this Section 12.01(c), or (y) if the then current Benchmark is not a term rate nor based on a term rate, any payment period
178
for interest calculated with reference to such Benchmark pursuant to this Agreement as of such date.
“Benchmark” means, initially, the Term SOFR Rate or Daily Simple SOFR; provided that if a Benchmark Transition Event, and its related Benchmark Replacement Date have occurred with respect to the Term SOFR Rate, Daily Simple SOFR 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 clause (i) of this Section 12.01(c). Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Facility Agent for the applicable Benchmark Replacement Date:
provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Facility Documents, and provided further, that any such Benchmark Replacement shall be administratively feasible as determined by the Facility Agent in its sole discretion.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable 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 the Facility Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) 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
179
Governmental Body on the applicable Benchmark Replacement Date or
180
provided that, if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be the Available Tenor that has approximately the same length (disregarding business day adjustments) as the payment period for interest calculated with reference to such Unadjusted Benchmark Replacement.
“Benchmark Replacement Date” means a date and time determined by the Facility Agent, which date shall be at the end of an Interest Accrual Period and no later than the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current
181
Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to any then-current Benchmark:
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 Unavailability Period” means the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1)
182
or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Facility Document in accordance with this Section 12.01(c) and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Facility Document in accordance with this Section 12.01(c).
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Term SOFR Rate or Daily Simple SOFR, or, if no floor is specified, zero.
“Reference Time” means, with respect to any setting of the then-current Benchmark, the time determined by the Facility Agent in its reasonable discretion.
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
Section 12.02 Notices, Etc.
Except where telephonic instructions are authorized herein to be given, all notices, demands, instructions and other communications required or permitted to be given to or made upon any party hereto shall be in writing and shall be personally delivered or sent by registered, certified or express mail, postage prepaid, or by prepaid courier service, or by electronic mail, and shall be deemed to be given for purposes of this Agreement on the day that such writing is received by the intended recipient thereof in accordance with the provisions of this Section 12.02. Unless otherwise specified in a notice sent or delivered in accordance with the foregoing provisions of this Section 12.02, notices, demands, instructions and other communications in writing shall be given to or made upon the respective parties hereto at their respective addresses indicated below, and, in the case of telephonic instructions or notices, by calling the telephone number or numbers indicated for such party below:
If to the Facility Agent: PNC Bank, National Association
000 Xxxxx Xxxxxx, Xxxxx 00
Pittsburgh, PA 15222 Attention: Xxxx Xxxxxxx
183
Telephone No: 000-000-0000 Email: xxxx.xxxxxxx@xxx.xxx,
xxxxxxxx@xxx.xxx
with a copy to:
0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxxxx Telephone No: 000-000-0000 Email: xxxxxxxx.xxxxxx@xxx.xxx
If to the Collateral Agent or the Collateral Administrator:
Alter Domus (US) LLC 000 X. Xxxxxxxxxx Xxxxxx 0xx Floor
Chicago, IL 60606 Attention: Legal Department
Email: xxxxx@xxxxxxxxxx.xxx
If to the Custodian: U.S. Bank National Association
U.S. Bank Tower 000 Xxxxxx Xxxxxx
Cincinnati, OH 45202 | CN-OH-W6TC
Attn: Global Fund Custody Support Services Phone: 000.000.0000
Fax: 000.000.0000
184
If to the Borrower:
185
TCW DL VIII Financing LLC c/o The TCW Group, Inc.
000 X. Xxxxxxxx000 Xxxxx Xxxxxx Xxxxxx Xxx Xxxxxxx, XX 0000000000 Attention: Xxxxxxxx Xxxxxxx
Telephone No: (000) 000-0000 Email: xxxxxxxx.xxxxxxx@xxx.xxx
with a copy to:
TCW Asset Management Company LLC
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxx Email: Xxxxx.Xxxx@xxx.xxx
186
If to the Lenders:
PNC Bank, National Association 000 Xxxxx Xxxxxx, Xxxxx 00
Pittsburgh, PA 15222 Attention: Xxxx Xxxxxxx Telephone No: 000-000-0000 Email: xxxx.xxxxxxx@xxx.xxx,
xxxxxxxx@xxx.xxx with a copy to:
0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxxxx Telephone No: 000-000-0000 Email: xxxxxxxx.xxxxxx@xxx.xxx
State Street Bank and Trust Company 0000 Xxxxxxxx Xxxxx
North Quincy, Massachusetts 02171 Attention: Structured Trust and Analytics
KeyBank National Association 0000 XxXxxxxx Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000 Attention: Xxxxxxx Xxxxxxxx Telephone No: (000) 000-0000
Fax: (000) 000-0000
Xxxxxxx Bank, N.A.
000 Xxxxxxxx Xxx., 0xx Xxxxx Xxxxx Xxxxxx, XX 00000 Attention: Xxxxxx Xxxxxxx
Hamburg Commercial Bank AG, Luxembourg Branch 0 Xxx Xxx Xxxxxx
L-1748 Luxembourg-Findel
Attention: Xxxxxx Xxxxx / Xxxxxx Xxxxxxxxx Phone: x000 00 00 00 000 / x000 00 00 00 000
Fax: x000 00 00 00 000
Email: XXX.XxxXxxxxx@xxxx-xxxx.xxx
If to any other Lender: As provided in the Assignment and Acceptance pursuant to
which such other Xxxxxx becomes a Lender hereunder.
187
Section 12.03 Taxes.
188
Lender under this Agreement or the Notes or otherwise payable by the Facility Agent to the Lender from any other source against any amount due to the Facility Agent under this paragraph (d).
189
190
U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
191
the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Facility Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Facility Agent to determine the withholding or deduction required to be made;
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Facility Agent in writing of its legal inability to do so.;
(i) would eliminate or reduce amounts payable pursuant to Section 2.09 or Section 12.03, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
Section 12.04 Costs and Expenses; Indemnification.
192
Facility Document, including the reasonable and documented fees and disbursements of one outside counsel and one local counsel in each relevant jurisdiction for each of the Facility Agent and the Collateral Agent in connection therewith.
(i) preparation for a defense of any investigation, litigation or proceeding arising out of, related to or in connection with this Agreement, any other Facility Document, any Related Document or any of the transactions contemplated hereby or thereby; (ii) any breach or alleged breach of any covenant by the Borrower contained in any Facility Document; (iii) any representation or warranty made or deemed made by the Borrower contained in any Facility Document or in any certificate, statement or report delivered in connection therewith is, or is alleged to be, false or misleading and (iv) any failure to vest, or delay in vesting, in the Secured Parties a first-priority perfected security interest in all of the Collateral free and clear of all Liens, other than Permitted Liens; (v) any action or omission, not expressly authorized by the Facility Documents, by the Borrower or any Affiliate of the Borrower which has the effect of reducing or impairing the Collateral or the rights of the Agents or the Secured Parties with respect thereto; and (vi) any Default or Event of Default; except to the extent any such Liability is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from any Indemnified Party’s gross negligence or willful misconduct. Notwithstanding the foregoing, the Borrower shall not be liable under this Section 12.04(b) for (x) any special, punitive or consequential damages except in each case in connection with a claim, suit or proceeding filed or made against an Indemnified Person by a person who is not a party to this Agreement nor an Affiliate of a party to this Agreement or (y) any Taxes other than Taxes that represent losses, claims or damages arising from any non-Tax claim.
Section 12.05 Execution in Counterparts.
This Agreement may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
193
Section 12.06 Assignability; Participation; Register.
12.03 and shall promptly execute any documents or forms required thereby; and
The parties to each such assignment shall execute and deliver to the Facility Agent an Assignment and Acceptance. Notwithstanding any other provision of this Section 12.06, any Lender may at any time pledge or grant a security interest in, all or any portion of its rights (including rights to payment of principal and interest) under this Agreement or any other Facility Document to secure obligations of such Lender or provide liquidity thereto, including any pledge or security interest granted to a Federal Reserve Bank, without notice to or consent of the Borrower or the Facility Agent (or the delivery of an Assignment and Acceptance); provided that no such pledge or grant of a security interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or grantee for such Lender as a party hereto. Any purported assignment to an assignee that does not comply with the requirements of this Section 12.06 will be null and void ab initio. The Collateral Agent shall be authorized to acknowledge any Assignment and Acceptance when presented by the Facility Agent and shall be entitled to request such tax documentation from any new Lender as the Collateral Agent may reasonably request so it may make payments to such Lender under the Priority of Payments. Each Lender agrees to provide such requested tax documentation.
194
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (C) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Xxxxxx’s rights and obligations under this Agreement and (D) each Participant shall have agreed to be bound by this Section 12.06(c), Section 12.06(e) and Section 12.09. In the event that any Lender sells participations in any portion of its rights and obligations hereunder:
195
196
Section 12.07 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD FOR CONFLICTS OF LAW RULES.
Section 12.08 Severability of Provisions.
Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
Section 12.09 Confidentiality.
Each Secured Party agrees to keep confidential all information provided to it by the Borrower or the Collateral Manager with respect to the Borrower, the Fund, the Collateral Manager, the Collateral, the Related Documents, the Obligors or any other information furnished to any other Secured Party pursuant to this Agreement or any other Facility Document (collectively, the “Borrower Information”); provided that nothing herein shall prevent any Secured Party from disclosing any Borrower Information (a) to any Secured Party or any Affiliate of a Secured Party, any of their respective Affiliates, employees, directors, agents, attorneys, accountants and other professional advisors (collectively, the “Secured Party Representatives”), in each case, on a need-to-know basis, it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Borrower Information and instructed and agree to keep such Borrower Information confidential, (b) subject to an agreement to comply with the provisions of this Section 12.09 and to use the Borrower Information only in connection with this Agreement and the other Facility Documents and not for any other purpose, to any actual or bona fide prospective permitted assignees and Participants in any of the Secured Parties’ interests under or in connection with this Agreement; provided that, no Borrower Information shall be distributed to any Disqualified Lender without the prior written consent of the Borrower, (c) upon the request or demand of any Authority with jurisdiction over any Secured Party or any of its Affiliates or any Secured Party Representative,
(d) in response to any order of any court or other Authority or as may otherwise be required to be disclosed pursuant to any Applicable Law, (e) that is a matter of general public knowledge or that has heretofore been made available to the public by any Person not known by such Secured Party to be in breach of a confidentiality obligation other than any Secured Party or any Secured Party Representative, (f) any nationally recognized rating agency that requires access to information about a Secured Party’s investment portfolio in connection with ratings issued with respect to such Secured Party, it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Borrower Information and instructed to keep such Borrower Information confidential, and (g) in connection with the exercise of any remedy hereunder or under any other Facility Document (including, without limitation, under Article VII).
Section 12.10 Entire Agreement.
197
This Agreement, the Notes and the other Facility Documents executed by the Borrower, the Collateral Manager, the Agents or the Lenders taken as a whole incorporate the entire agreement between the parties thereto concerning the subject matter thereof and such Facility Documents supersede any prior agreements among the parties relating to the subject matter thereof.
Section 12.11 Survival.
All representations and warranties made hereunder, in the other Facility Documents and in any certificate delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery of this Agreement and the making of the Advances hereunder. The agreements in Sections 2.04(f), 2.09, 2.10, 2.12, the third paragraph of 7.03, 7.06(b), 11.04, 12.03, 12.04, 12.09, 12.16 and 12.19 and this Section 12.11 shall survive the termination of this Agreement in whole or in part and the payment in full of the principal of and interest on the Advances.
Section 12.12 Submission to Jurisdiction; Waivers; Etc.
Each party hereto hereby irrevocably and unconditionally:
Section 12.13 Waiver of Jury Trial.
198
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT OR FOR ANY COUNTERCLAIM THEREIN OR RELATING THERETO.
Section 12.14 Service of Process.
The Borrower hereby irrevocably designates, appoints and empowers National Registered Agents, Inc., (the “Process Agent”), with an office on the Closing Date at 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX, 00000 as its designee, appointee and agent to receive, accept and acknowledge for and on its behalf, and its properties, assets and revenues, service for any and all legal process, summons, notices and documents which may be served in any action, suit or proceeding brought in the courts listed in Section 12.12 in connection with or arising out of this Agreement or any other Facility Document. If for any reason the Process Agent shall cease to act as such, the Borrower agrees to promptly designate new designees, appointees and agents in the United States on the terms and for the purposes of this Section 12.14 satisfactory to the Facility Agent, which new designees, appointees and agents shall thereafter be deemed to be the Process Agent for all purposes of this Agreement and the other Facility Documents. The Borrower further hereby irrevocably consents and agrees to the service of any and all legal process, summonses, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by serving a copy thereof upon the Process Agent (whether or not the appointment of the Process Agent shall for any reason prove to be ineffective or the Process Agent shall accept or acknowledge such service) or by mailing copies thereof by regular or overnight mail, postage prepaid, to the Process Agent at its address specified above in this Section 12.14. The Borrower agrees that the failure of the Process Agent to give any notice of such service to it shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Nothing herein shall in any way be deemed to limit the ability of any Secured Party to serve any such legal process, summons, notices and documents in any other manner permitted by Applicable Law or to obtain jurisdiction over the Borrower or bring actions, suits or proceedings against the Borrower in such other jurisdictions, and in a manner, as may be permitted by Applicable Law.
Section 12.15 Waiver of Immunity.
To the extent that the Borrower or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or other similar grounds, from any legal action, suit or proceeding in connection with or arising out of this Agreement or any other Facility Document, from the giving of any relief in any thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution of judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceeding may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement or any other Facility Document, the Borrower hereby irrevocably and unconditionally waives to the fullest extent
199
permitted by Applicable Law, and agrees for the benefit of each of the Secured Parties not to plead or claim, any such immunity, and consents to such relief and enforcement.
Section 12.16 Reserved.
Section 12.17 PATRIOT Act Notice.
Each Lender and the Collateral Agent hereby notify the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Lenders to identify the Borrower in accordance with the PATRIOT Act. The Borrower shall provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by any Lender or the Collateral Agent in order to assist such Person in maintaining compliance with the PATRIOT Act and any requirements under know-your-customer and other applicable anti-terrorism, anti-money laundering and similar rules and regulations and related policies.
Section 12.18 Legal Holidays.
In the event that the date of any Payment Date, date of prepayment or Final Maturity Date shall not be a Business Day, then notwithstanding any other provision of this Agreement or any Facility Document, payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of any such Payment Date, date of prepayment or Final Maturity Date, as the case may be, and interest shall accrue on such payment for the period from and after any such nominal date to but excluding such next succeeding Business Day.
Section 12.19 Non-Petition.
Each of the Agents, each Lender and each Secured Party hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the Borrower any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceedings or other proceedings under federal or state bankruptcy or similar laws until at least two years and one day, or if longer, the applicable preference period then in effect plus one day, after the payment in full of the Advances and the termination of all Commitments; provided that nothing in this Section 12.19 shall preclude, or be deemed to stop, each Agent and each Lender (i) from taking any action prior to the expiration of the aforementioned two years and one day period, or if longer the applicable preference period then in effect plus one day, in
(a) any case or proceeding voluntarily filed or commenced by the Borrower or (b) any involuntary insolvency proceeding filed or commenced against the Borrower by a Person other than any Agent, Lender or Secured Party, or (ii) from commencing against the Borrower or any properties of the Borrower any legal action which is not a bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceeding or other proceeding under federal or state bankruptcy or similar laws. The provisions of this Section 12.19 shall survive the termination of this Agreement.
200
Section 12.20 Custodianship; Delivery of Collateral Obligations and Eligible Investments.
201
202
amounts owed to it by the Borrower pursuant to the Account Control Agreement. The Custodian shall not be obligated to review any Collateral delivered to it.
203
(including lost profits), even if the Custodian has been advised of such loss or damage and regardless of the form of action, except in the case of bad faith, willful misfeasance, gross negligence or reckless disregard of the Custodian’s duties hereunder.
(iii) and delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator, or (iv) the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
[SIGNATURES COMMENCE ON THE FOLLOWING PAGE]
204
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
TCW DL VIII FINANCING LLC,
as Borrower
By: Name: Xxxxxx Xxx
Title: Chief Financial Officer, Treasurer and Secretary
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
ALTER DOMUS (US) LLC,
as Collateral Agent and Collateral Administrator
By: Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
U.S. BANK NATIONAL ASSOCIATION,
as Custodian
By: Name:
Title:
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
PNC BANK, NATIONAL ASSOCIATION,
as Revolving Lender
By: Name: Xxxxxxxx Xxxxxx
Title: Executive Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Term Lender
By: Name: Xxxxxxxx Xxxxxx
Title: Executive Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Facility Agent and Calculation Agent
By: Name: Xxxxxxxx Xxxxxx
Title: Executive Vice President
[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]
SCHEDULE 1
Commitments And Percentages
Name of Term Lender |
Commitment |
Term Percentage |
Percentage |
PNC Bank, National Association |
$200,000,000.00 |
100.0050.000% |
50.0025.000% |
Hamburg Commercial Bank AG, Luxembourg Branch |
$75,000,000.00 |
18.750% |
9.375% |
KeyBank National Association |
$75,000,000.00 |
18.750% |
9.375% |
State Street Bank and Trust Company |
$25,000,000.00 |
6.250% |
3.125% |
Xxxxxxx Bank, N.A. |
$25,000,000.00 |
6.250% |
3.125% |
TOTAL |
$200,000,000.0040 0,000,000.00 |
100.00100.000 % |
50.0050.000% |
Name of Revolving Lender |
Commitment |
Revolving Percentage |
Percentage |
PNC Bank, National Association |
$200,000,000.00 |
100.0050.000% |
50.0025.000% |
Hamburg Commercial Bank AG, Luxembourg Branch |
$75,000,000.00 |
18.750% |
9.375% |
KeyBank National Association |
$75,000,000.00 |
18.750% |
9.375% |
State Street Bank and Trust Company |
$25,000,000.00 |
6.250% |
3.125% |
Xxxxxxx Bank, N.A. |
$25,000,000.00 |
6.250% |
3.125% |
TOTAL |
$200,000,000.0040 0,000,000.00 |
100.00100.000 % |
50.0050.000% |
4126-2159-1880.3
Schedule 1-1
Signature Page to Credit and Security Agreement (PNC-TCW DL VIII)
SCHEDULE 2
SCHEDULE 2
PART 1 - SCOPE OF MONTHLY REPORT
The Monthly Report will contain the following information as of the Monthly Report Determination Date:
SCHEDULE 2
PART 2 - SCOPE OF PAYMENT DATE REPORT
The Payment Date Report will contain the following information as of the Determination Date:
Schedule 2-3
-
the amount of principal payments to be made on the Advances on the related Payment Date, (iii) the aggregate outstanding amount of Advances after giving effect to any payment of principal on the related Payment Date (including as a percentage of the original aggregate outstanding amount of the Advances after giving effect to such payment);
provided that, if item (ii) is not available, sufficient information such that (ii) can be calculated;
Schedule 2-4
-
-
SCHEDULE 3
Term SOFR Rate Definition
With respect to each Interest Accrual Period, the Term SOFR Rate will be determined by the Calculation Agent in accordance with the following provision:
“Term SOFR Rate” shall mean, with respect to any amount to which the Term SOFR Rate applies, for any Interest Accrual Period, the interest rate per annum determined by the Calculation Agent equal to (rounded upwards, at the Calculation Agent’s discretion, to the nearest 1/100th of 1%) the Term SOFR Reference Rate for a tenor comparable to such Interest Accrual Period, as such rate is published by the SOFR Administrator on the day (the “Term SOFR Determination Date”) that is two (2) Business Days prior to the first day of such Interest Accrual Period. If the Term SOFR Reference Rate for the applicable tenor has not been published or replaced with a Benchmark Replacement by 5:00 p.m. (Pittsburgh, Pennsylvania time) on the Term SOFR Determination Date, then the Term SOFR Reference Rate, for purposes of clause
(A) in the preceding sentence, shall be the Term SOFR Reference Rate for such tenor on the first Business Day preceding such Term SOFR Determination Date for which such Term SOFR Reference Rate for such tenor was published in accordance herewith, so long as such first preceding Business Day is not more than three (3) Business Days prior to such Term SOFR Determination Date. If the Term SOFR Rate, determined as provided above, would be less than the SOFR Floor, then the Term SOFR Rate shall be deemed to be the SOFR Floor. The Term SOFR Rate shall be adjusted automatically without notice to the Borrower on and as of the first day of each Interest Accrual Period.
As used herein:
“SOFR Floor” means a rate of interest per annum equal to zero basis points (0.00%). “Term SOFR Reference Rate” shall mean the forward-looking term rate based on SOFR.
3
SCHEDULE 4
Disqualified Lenders
Los Angeles, CA 90071
(000) 000-0000
28th Floor
Los Angeles, CA 90071
(000) 000-0000
4
SCHEDULE 5
XXXXX’X INDUSTRY CATEGORY LIST
5
SCHEDULE 6
XXXXX’X RISKCALC PROCEDURE
RiskCalc Procedure - Loan Rating
6
Bond Default Rate Mapping
less than or equal to .baa
.ba1
.ba2,.ba3 or .b1
.b2 or .b3
7
Maximum Loan Rating
Ba3 B1 B2 B3
8
.caa Caa1
9
Maximum Loan Rating
10
Lower Bound
11
Upper Bound
12
Caa1 |
21.8877% |
38.1420% |
Caa2 |
38.1420% |
48.2300% |
Caa3 |
48.2300% |
100.0000% |
13
SCHEDULE 7
BORROWING BASE CERTIFICATE
14
SCHEDULE 8
CUSTODIAN FEE SCHEDULE
Based upon an annual rate of average daily market value of all long securities and cash held in the portfolio*:
0.50 basis points
Minimum annual fee per fund $24,000 Plus portfolio transaction fees
Portfolio Transaction Fees
A transaction is a purchase/sale of a security, free receipt/free delivery, maturity, tender or exchange.
Miscellaneous Expenses
All other miscellaneous fees and expenses, including but not limited to the following, will be separately billed as incurred: expenses incurred in the safekeeping, delivery and receipt of securities, shipping, transfer fees, deposit withdrawals at custodian (DWAC) fees, SWIFT charges, negative interest charges and extraordinary expenses based upon complexity.
Additional Services
Additional services not included above shall be mutually agreed upon at the time of the service being added. In addition to the fees described above, additional fees may be charged to the extent that changes to applicable laws, rules or regulations require additional work or expenses related to services provided (e.g., margin management services, securities lending services, compliance with new SEC rules and reporting requirements).
Fees are calculated pro rata and billed monthly.
1
*Subject to annual CPI increase - All Urban Consumers - U.S. City Average" index, provided that the CPI adjustment will not decrease the base fees (even if the cumulative CPI rate at any point in time is negative).
Additional Global Sub-Custodial Services Annual Fee Schedule
Country |
Safekeeping (BPS) |
Transaction Fee |
|
Country |
Safekeeping (BPS) |
Transactio n Fee |
|
Country |
Safekeeping (BPS) |
Transactio n Fee |
Argentina |
18.00 |
$30 |
|
Hong Kong |
1.75 |
$18 |
|
Poland |
8.00 |
$25 |
Australia |
1.50 |
$15 |
|
Hungary |
18.00 |
$55 |
|
Portugal |
3.00 |
$10 |
Austria |
1.70 |
$12 |
|
Iceland |
15.00 |
$48 |
|
Qatar |
38.00 |
$115 |
Bahrain |
42.00 |
$115 |
|
India |
7.00 |
$40 |
|
Romania |
30.00 |
$85 |
Bangladesh |
18.00 |
$110 |
|
Indonesia |
6.00 |
$52 |
|
Russia |
12.00 |
$175 |
Belgium |
1.00 |
$8 |
|
Ireland |
1.00 |
$3 |
|
Saudi Arabia |
30.00 |
$75 |
Bermuda |
15.00 |
$55 |
|
Israel |
10.00 |
$26 |
|
Serbia |
60.00 |
$165 |
Botswana |
24.00 |
$45 |
|
Italy |
1.00 |
$10 |
|
Singapore |
1.35 |
$22 |
Brazil |
7.00 |
$15 |
|
Japan |
1.00 |
$6 |
|
Slovakia |
20.00 |
$90 |
Bulgaria |
24.00 |
$68 |
|
Jordan |
40.00 |
$125 |
|
Slovenia |
20.00 |
$90 |
Canada |
1.20 |
$6 |
|
Kenya |
28.00 |
$42 |
|
South Africa |
1.75 |
$12 |
Chile |
13.00 |
$40 |
|
Kuwait |
38.00 |
$110 |
|
South Korea |
3.00 |
$12 |
China Connect |
18.00 |
$20 |
|
Latvia |
15.00 |
$65 |
|
Spain |
1.00 |
$10 |
China (B Shares) |
10.00 |
$42 |
|
Lithuania |
15.00 |
$45 |
|
Sri Lanka |
11.00 |
$70 |
Colombia |
30.00 |
$50 |
|
Luxembour g |
1.25 |
$20 |
|
Sweden |
1.25 |
$10 |
Costa Rica |
15.00 |
$55 |
|
Malaysia |
3.00 |
$35 |
|
Switzerland |
1.25 |
$12 |
Croatia |
18.00 |
$55 |
|
Malta |
20.00 |
$65 |
|
Tanzania |
45.00 |
$150 |
Cyprus |
4.00 |
$20 |
|
Mauritius |
28.00 |
$90 |
|
Taiwan |
8.00 |
$43 |
Czech Republic |
12.00 |
$25 |
|
Mexico |
2.50 |
$12 |
|
Thailand |
3.00 |
$25 |
Denmark |
1.25 |
$10 |
|
Morocco |
28.00 |
$68 |
|
Tunisia |
38.00 |
$42 |
Egypt |
18.00 |
$50 |
|
Namibia |
30.00 |
$45 |
|
Turkey |
9.00 |
$12 |
Estonia |
6.00 |
$25 |
|
Netherlands |
1.25 |
$8 |
|
UAE |
35.00 |
$105 |
Eswatini |
28.00 |
$55 |
|
New Zealand |
1.50 |
$22 |
|
Uganda |
40.00 |
$90 |
Euroclear (Eurobonds) |
1.00 |
$10 |
|
Nigeria |
28.00 |
$38 |
|
Ukraine |
30.00 |
$50 |
Euroclear (Non-Eurobond s) |
Rates are available upon request |
Rates are available upon request |
|
Norway |
1.25 |
$10 |
|
United Kingdom |
1.00 |
$3 |
Finland |
1.50 |
$10 |
|
Oman |
42.00 |
$100 |
|
Uruguay |
45.00 |
$55 |
France |
1.00 |
$8 |
|
Pakistan |
24.00 |
$75 |
|
Vietnam |
20.00 |
$80 |
Germany |
1.00 |
$8 |
|
Panama |
65.00 |
$98 |
|
West African Economic Monetary Union (WAEMU)* |
38.00 |
$130 |
Ghana |
25.00 |
$40 |
|
Peru |
30.00 |
$60 |
|
Zambia |
28.00 |
$45 |
Greece |
4.00 |
$20 |
|
Philippines |
3.50 |
$38 |
|
Zimbabwe |
28.00 |
$45 |
*Transaction Fee includes: Receive Versus Payment (RVP), Delivery Versus Payment (DVP), FREE REC, and FREE DEL activity related to securities settlement within U.S. Bank sub-custodian network.
Global Custody Base Fee
$ 500 monthly base fee of per fund will apply. If no global assets are held within a given month, the monthly base charge will not apply for that month. "Safekeeping and transaction fees are assessed on security and currency transactions."
Global Custody Tax Services:
Miscellaneous Expenses
EXHIBIT A-1
[FORM OF TERM NOTE]
$ ,
FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to [INSERT NAME OF LENDER] (the “Lender”) and its registered assigns on the Final Maturity Date (as defined in the Credit and Security Agreement hereinafter referred to) the principal sum of [DOLLAR AMOUNT] Dollars (or such lesser amount as shall equal the aggregate unpaid principal amount of the Advances made by the Lender to the Borrower under the Credit and Security Agreement), in immediately available funds and in lawful money of the United States, and to pay interest on the unpaid principal amount of each such Advance, in like funds and money, from the Borrowing Date thereof until the principal amount thereof shall have been paid in full, at the rates per annum and on the dates provided in the Credit and Security Agreement. Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit and Security Agreement.
This promissory note is a Note referred to in the Credit and Security Agreement, dated as of September 13, 2022, (as from time to time amended, restated, amended and restated, supplemented or otherwise modified, the “Credit and Security Agreement”), among the Borrower, as borrower, the Lender, as lender, the other lenders from time to time parties thereto, PNC Bank, National Association, as Facility Agent, Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, and U.S. Bank National Association, as Custodian. The date and principal amount of each Advance (and stated interest thereon) made to the Borrower and of each repayment of principal thereon shall be recorded by the Lender or its designee on Schedule I attached to this Note, and the aggregate unpaid principal amount shown on such schedule shall be prima facie evidence of the principal amount owing and unpaid on the Advances made by the Lender. The failure to record or any error in recording any such amount on such schedule shall not, however, limit or otherwise affect the obligations of the Borrower hereunder or under the Credit and Security Agreement to repay the principal amount of the Advances together with all interest accrued thereon.
Except as permitted by Section 12.06 of the Credit and Security Agreement, this Note may not be participated by the Lender to any other Person. Without limiting the generality of the foregoing, this Note may be participated in whole or in part only by registration of such participation on the Participant Register.
Except as permitted by Section 12.06 of the Credit and Security Agreement, this Note may not be assigned by the Lender to any other Person. Without limiting the generality of the foregoing, this Note may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register.
This Note is a limited recourse obligation of the Borrower payable solely from the Collateral in accordance with the Credit and Security Agreement and following application of the Collateral in accordance with the priority of payments in the Credit and Security Agreement any outstanding but unpaid amounts will be extinguished and will not revive.
A-1
The Lender hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the Borrower any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceedings or other proceedings under federal or state bankruptcy or similar laws until at least two years and one day, or if longer, the applicable preference period then in effect plus one day, after the payment in full of the Advances and the termination of all Commitments.
[Remainder of Page Intentionally Left Blank]
2
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
TCW DL VIII FINANCING LLC
By: Name:
Title:
3
SCHEDULE I
This Note evidences Advances made by [INSERT NAME OF LENDER] (the “Lender”) to TCW DL VIII Financing LLC (the “Borrower”) under the Credit and Security Agreement, dated as of September 13, 2022, among the Borrower, as borrower, the Lender, as lender, the other lenders from time to time parties thereto, PNC Bank, National Association, as Facility Agent, Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, and
U.S. Bank National Association, as Custodian, in the principal amounts and on the dates set forth below, subject to the payments and prepayments of principal set forth below:
DATE
PRINCIPAL AMOUNT ADVANCED
PRINCIPAL AMOUNT PAID OR PREPAID
PRINCIPAL BALANCE
OUTSTANDING NOTATION BY
A-4
-
EXHIBIT A-2
[FORM OF REVOLVING NOTE]
$ ,
FOR VALUE RECEIVED, the undersigned (the “Borrower”) hereby promises to pay to [INSERT NAME OF LENDER] (the “Lender”) and its registered assigns on the Final Maturity Date (as defined in the Credit and Security Agreement hereinafter referred to) the principal sum of [DOLLAR AMOUNT] Dollars (or such lesser amount as shall equal the aggregate unpaid principal amount of the Advances made by the Lender to the Borrower under the Credit and Security Agreement), in immediately available funds and in lawful money of the United States, and to pay interest on the unpaid principal amount of each such Advance, in like funds and money, from the Borrowing Date thereof until the principal amount thereof shall have been paid in full, at the rates per annum and on the dates provided in the Credit and Security Agreement. Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit and Security Agreement.
This promissory note is a Note referred to in the Credit and Security Agreement, dated as of September 13, 2022, (as from time to time amended, restated, amended and restated, supplemented or otherwise modified, the “Credit and Security Agreement”), among the Borrower, as borrower, the Lender, as lender, the other lenders from time to time parties thereto, PNC Bank, National Association, as Facility Agent, Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, and U.S. Bank National Association, as Custodian. The date and principal amount of each Advance (and stated interest thereon) made to the Borrower and of each repayment of principal thereon shall be recorded by the Lender or its designee on Schedule I attached to this Note, and the aggregate unpaid principal amount shown on such schedule shall be prima facie evidence of the principal amount owing and unpaid on the Advances made by the Lender. The failure to record or any error in recording any such amount on such schedule shall not, however, limit or otherwise affect the obligations of the Borrower hereunder or under the Credit and Security Agreement to repay the principal amount of the Advances together with all interest accrued thereon.
Except as permitted by Section 12.06 of the Credit and Security Agreement, this Note may not be participated by the Lender to any other Person. Without limiting the generality of the foregoing, this Note may be participated in whole or in part only by registration of such participation on the Participant Register.
Except as permitted by Section 12.06 of the Credit and Security Agreement, this Note may not be assigned by the Lender to any other Person. Without limiting the generality of the foregoing, this Note may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register.
This Note is a limited recourse obligation of the Borrower payable solely from the Collateral in accordance with the Credit and Security Agreement and following application of
A-1
-
the Collateral in accordance with the priority of payments in the Credit and Security Agreement any outstanding but unpaid amounts will be extinguished and will not revive.
The Lender hereby agrees not to institute against, or join, cooperate with or encourage any other Person in instituting against, the Borrower any bankruptcy, reorganization, receivership, arrangement, insolvency, moratorium or liquidation proceedings or other proceedings under federal or state bankruptcy or similar laws until at least two years and one day, or if longer, the applicable preference period then in effect plus one day, after the payment in full of the Advances and the termination of all Commitments.
[Remainder of Page Intentionally Left Blank]
2
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
TCW DL VIII FINANCING LLC
By: Name:
Title:
3
SCHEDULE I
This Note evidences Advances made by [INSERT NAME OF LENDER] (the “Lender”) to TCW DL VIII Financing LLC (the “Borrower”) under the Credit and Security Agreement, dated as of September 13, 2022, among the Borrower, as borrower the Lender, as lender, the other lenders from time to time parties thereto, PNC Bank, National Association, as Facility Agent, Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, and
U.S. Bank National Association, as Custodian, in the principal amounts and on the dates set forth below, subject to the payments and prepayments of principal set forth below:
DATE
PRINCIPAL AMOUNT ADVANCED
PRINCIPAL AMOUNT PAID OR PREPAID
PRINCIPAL BALANCE
OUTSTANDING NOTATION BY
A-4
EXHIBIT B
[FORM OF NOTICE OF BORROWING]
[Date]
PNC Bank, National Association, as Facility Agent 000 Xxxxx Xxxxxx, Xxxxx 00
Pittsburgh, PA 15222
Attention: Xxxx Xxxxxxx
The [Revolving Lenders][Term Lenders] party to the Credit and Security Agreement referred to below
NOTICE OF BORROWING
This Notice of Borrowing is made pursuant to Section 2.02 of that certain Credit and Security Agreement, dated as of September 13, 2022, (as the same may from time to time be amended, supplemented, waived or modified, the “Credit and Security Agreement”), among TCW DL VIII Financing LLC, as borrower (the “Borrower”), the Lenders from time to time parties thereto (collectively, the “Lenders”), PNC Bank, National Association, as Facility Agent (the “Facility Agent”), Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, and U.S. Bank National Association, as Custodian. Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit and Security Agreement.
[4.] [The Borrower hereby gives notice of its request for a Revolving Advance [[in an amount at least equal to the Collateral Exposure Amount to the Revolving Lenders]] and the Facility Agent pursuant to Section 2.02(a) of the Credit and Security Agreement and requests the Revolving Lenders to remit, or cause to be remitted $[ ] of the proceeds thereof to the Revolving Reserve Account in its respective Revolving Percentage of the
1
Requested Amount and $[ ] of the proceeds thereof to the Principal Collection Account in its respective Revolving Percentage of the Requested Amount.]1
WITNESS my hand on this day of , .
[TCW DL VIII FINANCING LLC,
as Borrower]
2
1 To be used for the Notice of Borrowing on the Revolving Commitment Termination Date pursuant to Section 2.02(a) of the Credit and Security Agreement.
3
[or]
[TCW ASSET MANAGEMENT COMPANY,
as Collateral Manager for, and on behalf of, TCW DL VIII Financing LLC]
By:
Name: Title:
cc: Collateral Agent
B-3
EXHIBIT C
[FORM OF NOTICE OF PREPAYMENT]
PNC Bank, National Association, as Facility Agent 000 Xxxxx Xxxxxx, Xxxxx 00
Pittsburgh, PA 15222 Attention: Xxxx Xxxxxxx
PNC Bank, National Association, 0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx, XX 00000 Attention: Xxxxxxxx Xxxxxx
The Lenders party to the Credit and Security Agreement referred to below
NOTICE OF PREPAYMENT
This Notice of Prepayment is made pursuant to Section 2.05 of that certain Credit and Security Agreement, dated as of September 13, 2022, among TCW DL VIII Financing LLC, as borrower (the “Borrower”), the lenders from time to time parties thereto (collectively, the “Lenders”), PNC Bank, National Association, as Facility Agent, Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, and U.S. Bank National Association, as Custodian (as the same may from time to time be amended, supplemented, waived or modified, the “Credit and Security Agreement”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit and Security Agreement.
WITNESS my hand on this day of , .
[TCW DL VIII FINANCING LLC,
as Borrower] [or]
[TCW ASSET MANAGEMENT COMPANY,
C-1
-
as Collateral Manager for, and on behalf of, TCW DL VIII Financing LLC]
By:
Name: Title:
2
Schedule I
[Describe accounts of the Lenders]
C-3
EXHIBIT D
[FORM OF ASSIGNMENT AND ACCEPTANCE]
Reference is made to the Credit and Security Agreement, dated as of September 13, 2022 (as amended, supplemented or otherwise modified from time to time, the “Credit and Security Agreement”), among [INSERT NAME OF ASSIGNING LENDER] (the “Assignor”), the other lenders from time to time parties thereto (together with the Assignor, the “Lenders”), Alter Domus (US) LLC, as Collateral Agent and Collateral Administrator, U.S. Bank National Association, as Custodian, PNC Bank, National Association, as Facility Agent for the Lenders (in such capacity, together with its successors and assigns, the “Facility Agent”), and TCW DL VIII Financing LLC, as borrower (the “Borrower”). Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit and Security Agreement.
The Assignor and the “Assignee” referred to on Schedule I hereto agree as
follows:
hereby absolutely and unconditionally sells and assigns, without recourse, to the Assignee, and the Assignee hereby purchases and assumes, without recourse to or representation of any kind (except as set forth below) from Assignor, an interest in and to the Assignor’s rights and obligations under the Credit and Security Agreement and under the other Facility Documents equal to the [Revolving Percentage][Term Percentage] specified on Schedule I hereto, including the Assignor’s [Revolving Percentage][Term Percentage] specified on Schedule I hereto of the outstanding principal amount of the [Revolving Advances][Term Advances] to the Borrower (such rights and obligations assigned hereby being the “Assigned Interests”). After giving effect to such sale, assignment and assumption, the Assignee’s [“Revolving Percentage”][“Term Percentage”] and “Percentage” will be as set forth on Schedule I hereto. [The Assignor shall pay to the Assignee the Assignee’s “Percentage” of any structuring fee amount received by the Assignor prior to the Assignment Effective Date (as specified in Schedule I hereto) to the account set forth in Schedule I hereto.]
(iii) makes no representation or warranty and assumes no responsibility with respect to the condition (financial or otherwise) of the Borrower, the Facility Agent, the Collateral Manager or
D-1
-
-
any other Person, or the performance or observance by any Person of any of its obligations under any Facility Document or any instrument or document furnished pursuant thereto.
[4. The Assignee, by checking the box below, (i) acknowledges that it is required to be a Qualified Purchaser for purposes of the Investment Company Act at the time it becomes a Lender and on each date on which an Advance is made under the Credit and Security Agreement and (ii) represents and warrants to the Assignor, the Borrower and the Agents that the Assignee is a Qualified Purchaser:
By checking this box, the Assignee represents and warrants that it is a Qualified Purchaser.]
2
3
4
within the meaning of Section 4975(e)(1) of the Code, each of which has been identified to the Borrower in writing pursuant to this clause (g); or
As used in this Section 5, the terms “employee benefit plan”, “governmental plan”, and “separate account” shall have the meanings assigned to such terms in Section 3(3), 3(32) and 3(17), respectively, of ERISA.
5
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule I to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon.
6
Schedule I
[“Revolving Percentage”] [“Term Percentage”]
transferred by Assignor: %
“Percentage”
transferred by Assignor: %
Assignor Wiring Instructions:1
For receipt of payment from Assignee on Assignment Effective Date:
Bank Name: PNC Bank, N.A. ABA#: 43000096
Account Name: Commercial Loans Account #: [ ]
Attn:
Reference: TCW Direct Lending VIII
For payment of structuring fee on Assignment Effective Date:
Bank Name: PNC Bank, N.A. ABA #: 000000000
Account Name: PNC Bank, National Association
Account #: [ ] Attn: Xxxx Xxxxxx Reference: Cost Center [0087001], TCW Direct Lending VIII
Assignee Wiring Instructions:
For payment to Assignor on Assignment Effective Date:
7
Bank Name:
ABA#:
Account Name:
1 To be updated.
8
Account #:
Attn:
Reference:
For receipt of structuring fee on Assignment Effective Date:
Bank Name:
ABA #:
Account Name: Account #:
Attn:
Reference:
For ongoing principal and interest:
Bank Name:
ABA #:
Account Name: Account #:
Attn:
Reference:
9
Assignor:
Assignee:
10
[INSERT NAME OF ASSIGNOR]
as Assignor
By:
Authorized Signatory
[INSERT NAME OF ASSIGNEE]
as Assignee
By:
Authorized Signatory
11
Accepted this day of
,
PNC BANK, NATIONAL ASSOCIATION,
as Facility Agent
By: Authorized Signatory
Acknowledged this day of
,
ALTER DOMUS (US) LLC,
as Collateral Agent
By: Authorized Signatory
[Consented to this day of
,
TCW DL VIII FINANCING LLC,
as Borrower
By: Name:
Title:]2
2 Insert in an Assignment and Acceptance if Borrower consent is required
D-8
EXHIBIT E
[FORM OF ACCOUNT CONTROL AGREEMENT]
(see Account Control Agreement)
E-1
Summary report: Litera Compare for Word 11.5.0.74 Document comparison done on 2/1/2024 8:53:00 PM |
|
Style name: Standard |
|
Intelligent Table Comparison: Active |
|
Original DMS: nd://4161-3571-2334/1/Credit and Security Agreement (PNC-TCW DL VIII)(Conformed through Amd No. 2).docx |
|
Modified DMS: nd://4161-3571-2334/13/Credit and Security Agreement (PNC-TCW DL VIII)(Conformed through Amd No. 2).docx |
|
Changes: |
|
Add |
196 |
Delete |
122 |
Move From |
0 |
Move To |
0 |
Table Insert |
9 |
Table Delete |
0 |
Table moves to |
0 |
Table moves from |
0 |
Embedded Graphics (Visio, ChemDraw, Images etc.) |
0 |
Embedded Excel |
0 |
Format changes |
0 |
Total Changes: |
327 |
