SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
EXECUTION VERSION
SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT
This SIXTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
“Amendment”), dated as of January 10, 2023, is entered into by and among TCW DIRECT LENDING VII LLC, a Delaware limited liability company (“Borrower”), Natixis, New York Branch (in its individual capacity, “Natixis”), as administrative agent for the Lenders (in such capacity, the “Administrative Agent”), and the Lenders listed on the signature pages hereof.
RECITALS
WHEREAS, the parties thereto have entered into that certain Revolving Credit Agreement dated as of May 10, 2018 (as amended by that certain First Amendment to Revolving Credit Agreement dated as of August 15, 2018, that certain Second Amendment to Revolving Credit Agreement dated as of November 5, 2018, that certain Third Amendment to Revolving Credit Agreement dated as of February 6, 2019, that certain Fourth Amendment to Revolving Credit Agreement dated as of May 10, 2021, that certain Fifth Amendment to Revolving Credit Agreement dated as of May 13, 2021, and as the same may be further amended, restated, modified or supplemented from time to time, the “Credit Agreement”);
WHEREAS, the Borrower, Administrative Agent, and the Lenders have agreed, upon the following terms and conditions, to amend the Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein and in the Credit Agreement, the parties hereto agree as follows:
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of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
BORROWER: |
By: |
Name: Xxxxxx Xxx |
Title: Chief Financial Officer |
Signature Page to
Sixth Amendment to Revolving Credit Agreement
ADMINISTRATIVE AGENT:
NATIXIS, NEW YORK BRANCH, as Administrative Agent
By:
Signature Page to
Sixth Amendment to Revolving Credit Agreement
Name: Title:
Signature Page to
Sixth Amendment to Revolving Credit Agreement
Xxxx Xxxxxxx Director
Signature Page to
Sixth Amendment to Revolving Credit Agreement
By:
Name: Xxxx Xxxxx
Title: Associate
Signature Page to
Sixth Amendment to Revolving Credit Agreement
NATIXIS, NEW YORK BRANCH, as Swingline Lender and Letter of Credit Issuer
By:
Signature Page to
Sixth Amendment to Revolving Credit Agreement
Name: Title:
Signature Page to
Sixth Amendment to Revolving Credit Agreement
Xxxxxxxx Xxxxxxxxx Executive Director
Signature Page to
Sixth Amendment to Revolving Credit Agreement
By:
Xxxxx Xxxxx, Managing DirectorName: Title:
Signature Page to
Sixth Amendment to Revolving Credit Agreement
LENDERS:
VERSAILLES ASSETS LLC, as a Committed Lender and Conduit Lender for the Versailles Lender Group
By: Global Securitization Services, LLC, its Manager
By: Name:
Title:
Signature Page to
Sixth Amendment to Revolving Credit Agreement
PNC BANK,
Funding Agent Lender Group
Signature Page to
Sixth Amendment to Revolving Credit Agreement
NATIONAL ASSOCIATION, as
and Committed Lender for the PNC
Signature Page to
Sixth Amendment to Revolving Credit Agreement
By:
Name: Xxxxxxxx Xxxxxx
Title: Executive Vice President
Signature Page to
Sixth Amendment to Revolving Credit Agreement
CITY NATIONAL BANK, as Funding Agent and Committed Lender for the CNB Lender Group
By: Name: Xxxxxx Xxxxxx
Title: Vice President
Signature Page to
Sixth Amendment to Revolving Credit Agreement
Confidential
BANCO SANTANDER S.A., NEW YORK XXXXXX,
Xxxxxx Xxxxxxxxx Funding Agent and Committed Lender for the Santander Lender Group
By:
Name: Title:
Xxxxxx Xxxxxxx ED
By: Name: Xxxxxx Xxxxxx
Title:
Vice President
Signature Page to
Sixth Amendment to Revolving Credit Agreement
ING CAPITAL LLC, as Funding Agent and Committed Lender for the ING Lender Group
By:
Name: Xxxxx Xx
Title: Managing Director
By:
Name: Xxxxxxx Xxxxxx Title: Director
Signature Page to
Sixth Amendment to Revolving Credit Agreement
ANNEX I CONFORMED CREDIT AGREEMENT
[See attached]
Annex I
CONFORMED THROUGH FIFTHSIXTH AMENDMENT
as Borrower
REVOLVING CREDIT AGREEMENT
NATIXIS, NEW YORK BRANCH,
as Administrative Agent
NATIXIS, NEW YORK BRANCH,
as Sole Lead Arranger and Sole Bookrunner and
The Conduit Lenders, Committed Lenders, and Funding Agents from time to time party hereto
May 10, 2018
First Amendment: August 15, 2018
Second Amendment: November 5, 2018
Third Amendment: February 6, 2019
Fourth Amendment: May 10, 2021
Fifth Amendment: May 13, 2021
Sixth Amendment: January 10, 2023
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TABLE OF CONTENTS
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SCHEDULES
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SCHEDULE 1.01A SCHEDULE 1.01B SCHEDULE 13.07
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Commitments and Lender Groups Disqualified Lenders
Addresses
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EXHIBITS
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EXHIBIT A: EXHIBIT B: EXHIBIT C: EXHIBIT D:
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Reserved
Revolving Credit Note Loan Notice
Security Agreement
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EXHIBIT E: Collateral Account Assignment EXHIBIT F: Assignment and Assumption Agreement EXHIBIT G: Compliance Certificate
EXHIBIT H: Borrowing Base Certificate
EXHIBIT I: Facility Increase Request
EXHIBIT J: Facility Extension Request[Reserved]
EXHIBIT K: Lender Group Joinder Agreement
EXHIBIT L: Qualified Borrower Joinder Agreement
EXHIBIT M: U.S. Tax Compliance Certificates
EXHIBIT N: Request for Letter of Credit
EXHIBIT O: Prepayment Notice
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (together with all amendments and modifications hereof and supplements and attachments hereto, this “Credit Agreement”) is dated as of May 10, 2018 by and among TCW DIRECT LENDING VII LLC, a Delaware limited liability company (“Borrower”), NATIXIS, NEW YORK BRANCH (in its individual capacity, “Natixis”), as administrative agent for the Lenders (together with any successor appointed pursuant to Section 12 below, the “Administrative Agent”), and the Committed Lenders, Conduit Lenders, Funding Agents and other Borrower Parties from time to time party hereto (each capitalized term not defined is defined below).
Xxxxxxxx has requested that Lenders make loans to the Borrower Parties for the principal purposes of providing working capital to the Borrower Parties; financing the costs and other expenses to be incurred by the Borrower Parties in connection with making investments permitted under the Operating Agreement; and financing the costs of other undertakings by Borrower permitted under the Operating Agreement; Lenders are willing to lend funds upon the terms and subject to the conditions set forth in this Credit Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein contained and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
.
. For the purposes of this Credit Agreement, unless otherwise expressly defined, the following terms shall have the respective meanings assigned to them in this Section 1 or in the Section or recital referred to in the definition thereof (note that certain definitions relating to Benchmark Replacement terms are defined in Section 4.03(c)):
“1 Week Interpolated Interest Period” is defined in the definition of Interest Period.
“Adequately Capitalized” means compliance with the capital standards for Bank Holding Companies as described in the Bank Holding Company Act of 1956, as amended, and regulations promulgated thereunder.
“Adjusted Term SOFR Rate” means, for any day, the rate per annum equal to (a) for an Interest Period of one month, the Term SOFR Rate for such Interest Period as such rate is published by the Term SOFR Administrator plus 0.10% (10 basis points); (b) for an Interest Period of three months, the Term SOFR Rate for such Interest Period as such rate is published by the Term SOFR Administrator plus 0.15% (15 basis points); and (c) for an Interest Period of six months, the Term SOFR Rate for such Interest Period as such rate is published by the Term SOFR Administrator plus 0.25% (25 basis points); provided that, if the Adjusted Term SOFR Rate as so determined would be less than the Floor, then the Adjusted Term SOFR Rate shall be deemed to be the Floor.
“Administrative Agent” is defined in the preamble to this Credit Agreement.
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“Administrative Agent’s Office” means Administrative Agent’s address as set forth in Schedule 13.07, or such other address or, as appropriate, account as Administrative Agent may from time to time notify Borrower and the Lenders.
“Administrator” means, with respect to any Conduit Lender, the Person designated by such Conduit Lender as its “Administrator”.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“Affected Funding Party” is defined in Section 13.13.
“Affiliate” of any Person means a specified Person that, directly or indirectly, Controls or is Controlled By, or is Under Common Control With, such Person.
“Agents” means, collectively, Administrative Agent and each Funding Agent and any successors and assigns in such capacities.
“Aggregate Concentration Limit” means, with respect to the Borrowing Base Investors, the concentration limits set forth below, calculated for each Investor classification as a percentage of the aggregate Unfunded Commitments of all Included Investors and Designated Investors:
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Investor Classification Included Investors Designated Investors
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Concentration Limit
N/A 35%
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“Agreement Currency” is defined in Section 13.27.
“Alternative Currency” means each currency (other than Dollars) that is approved in accordance with Section 1.07.
“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by Administrative Agent at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.
“Annual Valuation Period” means the “annual valuation period” as defined in 29 C.F.R.
§25103.101(d)(5) as determined for each Borrower Party, as applicable.
“Anti-corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower Parties from time to time concerning or relating to bribery or corruption.
“Applicable Margin” means, with respect to interest rate spreads and letter of credit fees, the Applicable Margin set forth in the table below that corresponds to the applicable Loan or Letter of Credit:
|
Applicable Margin |
Base Rate Loan |
0.75% |
Eurocurrency RateTerm |
1.75% |
SOFR Loan |
|
CP Rate Loan |
1.75% |
Daily SOFR Loan |
1.75% |
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Letter of Credit 1.75%
“Applicable Percentage” means (i) with respect to a Committed Lender, the product of its Committed Lender Percentage and its Lender Group’s Lender Group Percentage; (ii) with respect to a Lender Group, its Lender Group Percentage; and (iii) with respect to a Conduit Lender, its Conduit Lender Percentage.
“Applicable Requirement” means, for any Included Investor that is (or whose Credit Provider, if applicable, is): (a) a Bank Holding Company, Adequately Capitalized status or better and a Rating of BBB-/Baa3 or higher; (b) an insurance company, a Best’s Rating by A.M. Best Company of A- or higher and a Rating of BBB-/Baa3 or higher; (c) an ERISA Investor, or the trustee or nominee of an ERISA Investor, in addition to the Sponsor’s Rating of BBB-/Baa3 or higher, a minimum Funding Ratio for the pension fund based on the Rating of the Sponsor of the pension fund as follows:
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Sponsor Rating
A-/A3 or higher BBB+/Baa1 to BBB-/Baa3
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Minimum Funding Ratio
No minimum 70%
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(d)
Responsible Party Rating Minimum Funding Ratio
A-/A3 or higher No minimum
BBB+/Baa1 to BBB-/Baa3 70%
and (e) otherwise a Rated Included Investor, a Rating of BBB-/Baa3 or higher.
The first Rating indicated in each case above is the S&P Rating and the second Rating indicated in each case above is the Xxxxx’x Rating. In the event that the Ratings are not equivalent, the Applicable Requirement shall be based on the lowest of the Ratings. If any Person has only one Rating, then that Rating shall apply.
“Applicable Time” means, with respect to any borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business, that is administered or managed by: (a) a Lender; (b) an Affiliate of a Lender; or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means Natixis, in its capacity as sole lead arranger and sole book manager. “Assignee” is defined in Section 13.11(b).
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“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“Assignment Amount” means, with respect to a Committed Lender at the time of any assignment pursuant to Section 13.12 by a Conduit Lender in such Committed Lender’s Lender Group, an amount equal to the least of: (a) such Committed Lender’s Committed Lender Percentage of the Obligations requested by such Conduit Lender to be assigned at such time; (b) such Committed Xxxxxx’s unused Commitment (minus the sum of (i) the unrecovered principal amount of such Committed Lender’s investments in such Obligations pursuant to the Liquidity Agreement to which it is a party and (ii) such Committed Lender’s Committed Lender Percentage of its Lender Group’s Lender Group Percentage of the Letter of Credit Liability); and (c) in the case of an assignment on or after the Conduit Investment Termination Date for such Conduit Lender, (i) such Committed Lender’s pro rata share of the applicable Conduit Lender Percentage of the Lender Group Percentage of the Principal Obligation minus (ii) such Committed Lender’s Applicable Percentage of the Letter of Credit Liability.
“Assignment and Assumption Agreement” means the agreement contemplated by Section 13.11(b)(iv), pursuant to which any Lender assigns all or any portion of its rights and obligations hereunder, in substantially the form of Exhibit F or any other form (including electronic documentation generated by MarkitClear or other electronic platform) approved by the Administrative Agent and the Borrower.
“Assignment Date” is defined in Section 13.12(a).
“Attorney Costs” means and includes all documented out-of-pocket fees and disbursements of a single law firm or any local or special counsel retained by the Administrative Agent or Lenders.
“Availability Period” means the period commencing on the Closing Date and ending on the Maturity Date.
“Available Commitment” means, at any time, the Dollar Equivalent of the lesser of: (a) the Maximum Commitment at such time; or (b)(i) the Borrowing Base at such time minus (ii) the F/X Reserve Amount at such time.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an Interest Period pursuant to this Credit Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Credit Agreement, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed pursuant to Section 4.03(e).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail -In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing
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banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank Holding Company” means a “bank holding company” as defined in Section 2(a) of the Bank Holding Company Act of 1956, as amended, or a non-bank subsidiary of such bank holding company.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of: (a) the Federal Funds Rate for such day plus ½ of one percent (0.50%); (b) the Prime Rate for such day; or (c) the Floating LIBOR Rate for a term ofexcept during any period of time during which the Adjusted Term SOFR Rate is unavailable pursuant to Section 4.02 or 4.03, one (1) -month commencing that dayAdjusted Term SOFR Rate plus 100 basis points (1.00%). Each change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Term SOFR Rate (or successor therefor) shall become effective without prior notice to Borrower automatically as of the opening of business on the day of such change in the Base Rate. If the calculation of the Base Rate results in a rate of less than the Floor, the Base Rate shall be deemed to be the Floor for all purposes of the Loan Documents.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
“Baseline Net Worth” is defined in clause (j) of the definition of Exclusion Event.
“Basel III” means the global regulatory standards on bank capital adequacy and liquidity referred to by the Basel Committee on Banking Supervision as “Basel III” or the “Basel III Framework” published in December 2010 together with any further guidance or standards in relation to “Basel III” or the “Basel III Framework” published or to be published by the Basel Committee.
“Benchmark” means, initially, Daily Simple SOFR and/or the Adjusted Term SOFR Rate, as applicable; provided that, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to both Daily Simple SOFR and Adjusted Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 4.03.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Credit Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Borrower giving due consideration to
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Date or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark, the occurrence of one (1) or more of the following events with respect to such Benchmark (which, for the avoidance of doubt, as of the Closing Date, means one of the following events with respect to both Daily Simple SOFR and the Adjusted Term SOFR Rate):
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thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, with respect to the then-current Benchmark, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and
“Benchmark Unavailability Period” means, with respect to the then-current Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date with respect to such then-current Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 4.03(b) and (b) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 4.03(b).
“Best’s Rating” means a “Best’s Rating” by A.M. Best Company.
“Borrower” is defined in the preamble hereto. “Borrower KYC Compliance” is defined in Section 8.23.
“Borrower Parties” means Borrower and each Qualified Borrower, and “Borrower Party” means any one of them.
“Borrowing” means a disbursement made by the Lenders of any of the proceeds of the Loans when such disbursement increases the outstanding principal amount of the Loans (including any reimbursement of the Letter of Credit Issuer following a draw on a Letter of Credit).
“Borrowing Base” means, at any time of determination, the sum of: (a) ninety percent (90%) of the aggregate Eligible Included Unfunded Commitments (and for the avoidance of doubt, including Returned Capital) of the Included Investors (other than the Special Member) at such time; plus (b) sixty-five percent (65%) the aggregate Eligible Designated Unfunded Commitments (and for the avoidance of doubt, including Returned Capital) of the Designated Investors at such time; plus (c) so long as the Special Member is an Included Investor, seventy-five percent (75%) of the aggregate Eligible
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Included Unfunded Commitment (and for the avoidance of doubt, including Returned Capital) of the Special Member at such time.
For purposes of calculating the Borrowing Base, the Eligible Designated Unfunded Commitments and Eligible Included Unfunded Commitments shall be subject to the Investor Concentration Limits and such concentration limits shall be applied prior to the application of the applicable advance rates.
“Borrowing Base Certificate” means a certificate of any Responsible Officer of Borrower setting forth the calculation of the Borrowing Base (based on the most recent information available to Borrower), including the name, Capital Commitment and Unfunded Commitment of each Investor and designation of the Included Investors and each Designated Investors (subject to the approval requirements set forth in the respective definitions herein), in substantially the form of Exhibit H attached hereto; provided, however, that the calculation of the Borrowing Base may be provided in “Excel” format in a form reasonably acceptable to the Administrative Agent and containing the information as set forth in Exhibit H.
“Borrowing Base Investors” means each Included Investor and each Designated Investor. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the CityState of New York with
respect to Obligations denominated in Dollars is located and:
“Canadian Dollars” and “Cdn$” mean the lawful currency of Canada.
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“Capital Call” means a call upon all or any of the Investors for payment of all or any portion of their Unfunded Commitments.
“Capital Call Notice” means any notice sent to, or demand or request made on, an Investor for the purpose of making a Capital Call.
“Capital Commitment” means, for any Investor, its “Commitment” as defined in the Operating Agreement.
“Capital Contribution” means, for any Investor, any contribution of capital made to Borrower in response to a Capital Call or deemed contributed pursuant to the Operating Agreement.
“Cash Collateralize” means to pledge and deposit with or deliver to Administrative Agent, for the benefit of one or more of the Letter of Credit Issuer or Swingline Lender (as applicable) and the Lenders, as collateral for the Letter of Credit Liability, obligations in respect of Swingline Loans, or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances pursuant to documentation in form and substance satisfactory to: (a) Administrative Agent and (b) the Letter of Credit Issuer or Swingline Lender (as applicable). “Cash Collateral” and “Cash Collateralized” shall have meanings correlative to the foregoing.
“Change in Law” means the occurrence, after the date of this Credit Agreement (or, with respect to any Person that becomes a Lender pursuant to an Assignment and Assumption, the effective date of such assignment), of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that, notwithstanding anything herein to the contrary: (i) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith; and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.
“Change of Control” means TCW Asset Management Company or an Affiliate thereof shall cease to be the investment advisor of the Borrower.
“Closing Date” means the date on which all of the conditions precedent set forth in Section 7.01
are satisfied or waived.
“Code” or “Internal Revenue Code” means the United States Internal Revenue Code of 1986, as amended.
“Collateral” is defined in Section 5.01.
“Collateral Account” means the “Account” as defined in the Collateral Account Assignment delivered by Borrower pursuant hereto.
“Collateral Account Assignment” means an assignment or security agreement with respect to the Collateral Account in substantially the form of Exhibit E attached hereto, as such agreement shall be amended, modified, supplemented and/or restated and in effect from time to time.
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“Collateral Documents” means the security agreements, financing statements, assignments, and other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement to grant, perfect or continue a security interest in the Collateral for the Obligations and any documents or instruments amending or supplementing the same, including, without limitation, the Security Agreement, the Collateral Account Assignment, and the Deposit Account Control Agreement.
“Commercial Paper” means, on any day, either (i) the promissory notes of any Conduit Lender issued by such Conduit Lender in the commercial paper market or (ii) the promissory notes issued in the commercial paper market by a multi-seller commercial paper conduit the proceeds of which are loaned to a Conduit Lender that are allocated, in whole or in part, by such Conduit Lender to fund or maintain its Principal Obligation hereunder.
“Commitment” means, with respect to each Committed Lender, its obligation to (a) make Syndicated Loans to Borrower Parties pursuant to Section 2.01; and (b) purchase risk participations in Letters of Credit and Swingline Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Committed Lender’s name on Schedule 1.01A attached hereto under the heading “Commitment” or on the Assignment and Assumption Agreement pursuant to which such Committed Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Credit Agreement. Administrative Agent may amend and re-issue Schedule 1.01A from time to time to reflect the Commitments of the Committed Lenders.
“Committed Lender Percentage” means, with respect to any Committed Lender on any day, the percentage equivalent of a fraction the numerator of which is such Committed Lender’s Commitment at such time and the denominator of which is the Lender Group Limit for such Committed Xxxxxx’s Lender Group.
“Committed Lenders” means: (a) each Committed Lender listed on the signature pages hereof; and (b) any other Person that becomes a party to this Credit Agreement as a Committed Lender pursuant to the terms hereof, and any assignees thereof that shall become party hereto pursuant to Section 13.11 (but not any Participant that is not otherwise party to this Credit Agreement).
“Competitor” means any Person that competes with the business of the Borrower and its Subsidiaries; provided that no bona fide debt fund or bona fide debt investor shall be a Competitor. For avoidance of doubt, a Competitor shall not include a commercial lender (i.e., a national bank, a state chartered bank or other similarly regulated lending institution) or insurance company.
“Compliance Certificate” is defined in Section 9.01(c).
“Concentration Limit” means the Individual Concentration Limit and Aggregate Concentration Limit, as applicable.
“Conduit Assignee” means any multi-seller commercial paper conduit or special purpose entity funded by a multi-seller commercial paper conduit which is, in either case, administered by the Funding Agent for any existing Lender Group or an Affiliate thereof.
“Conduit Investment Termination Date” means, with respect to any Conduit Lender, the date of the delivery by such Conduit Lender to Borrower of written notice that such Conduit Lender elects, in its sole discretion, not to make any further Loans or participate in any further Letters of Credit hereunder.
“Conduit Lender” means: (a) each Conduit Lender listed on the signature pages hereof; and (b) any other Person that shall become a party to this Credit Agreement as a Conduit Lender pursuant to the
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terms hereof, and any assignees thereof that shall become party hereto pursuant to Section 13.11 (but not any Participant that is not otherwise party to this Credit Agreement).
“Conduit Lender Percentage” means, with respect to any Conduit Lender, at any time, one hundred percent (100%), minus the percentage share of Principal Obligation held by the Committed Lenders and any other Conduit Lenders in such Conduit Xxxxxx’s Lender Group at such time.
“Conforming Changes” means, with respect to either the use or administration of Daily Simple SOFR, the Adjusted Term SOFR Rate or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of funding losses and other technical, administrative or operational matters) that Administrative Agent (after consultation with Borrower) decides in its reasonable discretion may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as Administrative Agent (after consultation with Xxxxxxxx) decides is reasonably necessary in connection with the administration of this Credit Agreement and the other Loan Documents).
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Constituent Documents” means, for any entity, its constituent or organizational documents, including: (a) in the case of any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation with the secretary of state or other department in the state of its formation, in each case as amended from time to time; (b) in the case of any limited liability company, its articles or certificate of formation and its operating agreement or limited liability company agreement; and (c) in the case of a corporation, its certificate or articles of incorporation and its bylaws.
“Control” and the correlative meanings of the terms “Controlled By” and “Under Common Control With” mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting shares or partnership interests, or of the ability to exercise voting power by contract or otherwise.
“CP Rate” means, for any Conduit Lender and any Interest Period for any Loan at the CP Rate, the per annum rate equivalent to the rate (or, if more than one rate, the weighted average of the rates) applicable to the Commercial Paper issued by such Conduit Lender or its Related Commercial Paper Issuer and allocated, in whole or in part, to fund Syndicated Loans or Swingline Loans hereunder, which Commercial Paper may be sold by any placement agent or commercial paper dealer selected by such Conduit Lender, and which rate shall incorporate (i) applicable commercial paper dealer and placement agent fees and commissions and (ii) other funding costs (excluding costs associated with a Conduit Lender’s liquidity fundings) of such Conduit Lender relating to the Transactions, such as any costs associated with conversions into any Alternative Currency incurred in connection therewith and the costs
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of funding odd lots or small dollar amounts; provided that if the rate (or rates) as agreed between any such agent or dealer and such Conduit Lender is a discount rate, then the CP Rate shall be the rate (or if more than one rate, the weighted average of the rates) resulting from such Conduit Lender’s converting such discount rate (or rates) to an interest-bearing equivalent rate per annum; provided further that, if the CP Rate as so determined would be less than the Floor, then the CP Rate shall be deemed to be the Floor.
“CP Rate Loan” means a Loan that bears interest based on a CP Rate (or, in the case of a Loan funded by a Conduit Lender through its Liquidity Provider, at the rate specified in Section 2.05(a)).
“Credit Agreement” is defined in the preamble hereto.
“Credit Extension” means each of the following: (a) a Borrowing (including any conversion or continuation of any Borrowing); and (b) an L/C Credit Extension.
“Credit Provider” means either (a) a Person providing a guaranty or other similar agreement, in form and substance reasonably acceptable to Lenders, of the obligations of an Included Investor (other than the Special Member) to make Capital Contributions to Borrower or (b) solely with respect to the Special Member, Nippon Life Insurance Company.
“Daily Simple SOFR” means, for any calculation with respect to a Daily SOFR Loan for any applicable determination date (a “Daily SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day, a “Daily SOFR Determination Day”) that is five U.S. Government Securities Business Days prior to (A) if such Daily SOFR Rate Day is a U.S. Government Securities Business Day, such Daily SOFR Rate Day or (B) if such Daily SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such Daily SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website, plus 0.10% (10 basis points); provided, however, if as of 5:00 p.m. (New York City time) on the second
U.S. Government Securities Business Day immediately following any Daily SOFR Determination Day, SOFR in respect of such Daily SOFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then SOFR for such Daily SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided, further, that SOFR as determined pursuant to this proviso shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three consecutive Daily SOFR Rate Days. Notwithstanding anything to the contrary, if Daily Simple SOFR as so determined shall ever be less than the Floor, then Daily Simple SOFR shall be deemed to be the Floor.
“Daily SOFR Determination Day” has the meaning specified in the definition of “Daily Simple
SOFR”.
“Daily SOFR Loan” means a Loan bearing interest based on Daily Simple SOFR.
“Daily SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Debtor Relief Laws” means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, fraudulent conveyance, reorganization, or similar laws affecting the rights, remedies, or recourse of creditors generally, including without limitation the United States Bankruptcy Code and all amendments thereto, as are in effect from time to time during the term of the Loans.
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“Default” means any condition, act, or event which, with the giving of notice or lapse of time or both, would become an Event of Default.
“Default Rate” means, with respect to any Loan, on any day the lesser of: (a) the interest rate in effect on such day and otherwise applicable to such Loan, plus the Applicable Margin applicable to such Loan, plus two percent (2.0%); or (b) the Maximum Rate.
“Defaulting Investor” is defined in the definition of “Exclusion Event” herein.
“Defaulting Lender” means, subject to Section 2.15(b), any Committed Lender that: (a) has failed to: (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Xxxxxx’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent, the Letter of Credit Issuer, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Xxxxxx’s good faith determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied; (b) has notified Borrower, Administrative Agent, the Swingline Lender or the Letter of Credit Issuer in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Xxxxxx’s obligation to fund a Loan 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), (c) has failed, within two
(2) Business Days after written request by Administrative Agent or Xxxxxxxx, to confirm in writing to
Administrative Agent and Xxxxxxxx that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has: (i) become the subject of a proceeding under any Debtor Relief Law; (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower, the Letter of Credit Issuer, the Swingline Lender and each other Lender (including such Defaulting Lender) promptly following such determination. For the purposes of the definition of Defaulting Lender only, “Equity Interest” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or
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other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“Deposit Account Control Agreement” means a deposit account control agreement or blocked account control agreement by and among Borrower, Depository and Administrative Agent, with respect to the Collateral Account, in form and substance reasonably satisfactory to Administrative Agent.
“Depository” is defined in Section 5.02(a)means U.S. Bank, National Association (or any successor thereto or Affiliate thereof) or any other bank or financial institution approved by Administrative Agent in its reasonable discretion, in each case, in its capacity as depository or securities intermediary, as the case may be.
“Designated Investor” means any Investor: (a) designated by Administrative Agent and all Committed Lenders (each in its sole discretion) as a Designated Investor; and (b) as to which Xxxxxxxx has delivered to Administrative Agent the information and documents required under Section 7.01(a)(xi) or 10.05(d), as applicable; provided that (i) a Defaulting Investor shall no longer be a Designated Investor until such time as all Exclusion Events affecting such Investor have been cured to the satisfaction of the Administrative Agent and all of the Committed Lenders (not to be unreasonably withheld, conditioned or delayed); and (ii) if an involuntary proceeding under clause (b) of the Exclusion Events is instituted against a Designated Investor, such Defaulting Investor shall be automatically reinstated as a Designated Investor if such Exclusion Event is dismissed with sixty (60) days of the date such proceeding is instituted.
“Designated Jurisdiction” means any country or territory or region that is, or whose government is, the subject of any Sanction and with which dealings are prohibited under such Sanction.
“Dispose” means the sale, assignment, or transfer of any property of any Person. “Disposition” and “Disposed” shall have correlative meanings.
“Disqualified Lender” means, (i) each Person identified by the Borrower in writing to the Administrative Agent and set forth on Schedule 1.01B (such list, as supplemented from time to time in accordance with this definition, 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; and (ii) any Person that is or becomes a Competitor on or after the Closing Date and which is identified by the Borrower (in its reasonable determination) in writing to the Administrative Agent. It being understood and agreed that the identification of a Disqualified Lender after the Closing Date shall not apply to 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) regardless whether such Person was a Competitor prior to such identification. Any supplement to the DQ List pursuant to clause (ii) of this definition shall be delivered in accordance with Section 13.07.
“Dollar Equivalent” means, at any time: (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Alternative Currency, the equivalent amount thereof in Dollars as determined by the applicable Funding Agent at such time on the
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basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency.
“Dollars” and the sign “$” meanmeans lawful currency of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Assignee” means: (a) a Lender, an Affiliate of a Lender, an Approved Fund, a Liquidity Provider, a Conduit Assignee, a Federal Reserve Bank, a central bank, a collateral trustee or security agent for holders of commercial paper; and (b) any other Person approved in writing by the Administrative Agent and the Letter of Credit Issuer (each such approval not to be unreasonably withheld, delayed or conditioned by Administrative Agent or the Letter of Credit Issuer) and, unless an Event of Default under Sections 11.01(a), 11.01(g) or 11.01(h) exists at the time any assignment is effected in accordance with Section 13.11, Borrower (such approval not to be unreasonably withheld or delayed by Borrower); provided, however, that (x) each Eligible Assignee must be a Qualified Purchaser,
(y) no Disqualified Lender shall qualify as an Eligible Assignee, and (z) neither Borrower nor any Affiliate of Borrower shall qualify as an Eligible Assignee.
“Eligible Designated Unfunded Commitments” means, with respect to Designated Investors, the aggregate amount that is equal to the Unfunded Commitments of all Designated Investors; provided, however, that in connection with each determination of the Borrowing Base (in accordance with the final paragraph thereof), (a) the Eligible Designated Unfunded Commitment of each Designated Investor shall be reduced to the extent necessary, if any, so that the Eligible Designated Unfunded Commitment of such Designated Investor does not exceed the Individual Concentration Limit and (b) the aggregate Eligible Designated Unfunded Commitments of all Designated Investors shall be reduced to the extent necessary, if any, so that the aggregate Eligible Designated Unfunded Commitments of all Designated Investors do not exceed the Aggregate Concentration Limit.
“Eligible Included Unfunded Commitments” means, with respect to Included Investors, the aggregate amount that is equal to the Unfunded Commitments of all Included Investors.
“Environmental Laws” means: (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Re-authorization Act of 1986, 42 U.S.C. §9601 et seq.; (b) the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §6901 et seq.; (c) the Clean Air Act, 42
U.S.C. §7401 et seq., as amended by the Clean Air Act Amendments of 1990; (d) the Clean Water Act of 1977, 33 U.S.C. §1251 et seq.; (e) the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.; (f) all other federal, state and local laws, ordinances, regulations or written policies relating to pollution or protection of human health (as it relates to exposure to Hazardous Materials) or the environment
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including without limitation, air pollution, water pollution, noise control, or the use, handling, discharge, disposal or Release or recovery of on-site or off-site Hazardous Materials, as each of the foregoing may be amended from time to time, applicable to any Borrower Party; and (g) any and all regulations promulgated under or pursuant to any of the foregoing statutes.
“Environmental Liability” means any written claim, demand, obligation, cause of action, accusation or allegation, or any order, violation, damage (including, without limitation, to any Person, property or natural resources), injury, judgment, penalty or fine, cost of enforcement, cost of remedial action, clean-up, restoration or any other cost or expense whatsoever, including reasonable attorneys’ fees and disbursements resulting from the violation or alleged violation of any Environmental Law or the imposition of any Environmental Lien or otherwise arising under any Environmental Law or resulting from any common law cause of action asserted by any Person.
“Environmental Lien” means a Lien in favor of any Governmental Authority: (a) under any Environmental Law; or (b) for any liability or damages arising from, or costs incurred by, any Governmental Authority in response to the Release or threatened Release of any Hazardous Material.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder by any Governmental Authority, as from time to time in effect.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with any Borrower Party within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Investor” means an Investor that is: (a) an “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) subject to Title I of ERISA, (b) any “plan” defined in and subject to Section 4975 of the Code, or (c) a partnership or commingled account of a fund, or any other entity, whose assets include or are deemed to include the assets of one or more such employee benefit plans or plans in accordance with the Plan Assets Regulations or otherwise.
“ERISA Investor Excluded Items” means, with respect to each ERISA Investor, any rights, titles, interests, remedies or privileges of Borrower:
“Erroneous Payment” is defined in Section 12.11(a).
“Erroneous Payment Deficiency Assignment” is defined in Section 12.11(d).
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“Erroneous Payment Impacted Class” is defined in Section 12.11(d). “Erroneous Payment Return Deficiency” is defined in Section 12.11(d). “Erroneous Payment Subrogation Rights” is defined in Section 12.11(d).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Euro” and “€” mean the single currency of the Participating Member States.
“Eurocurrency Rate” means:
provided that, if the Eurocurrency Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Credit Agreement and the other Loan Documents.
“Eurocurrency Rate Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurocurrency Rate.”
“Event of Default” is defined in Section 11.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case: (i) imposed as a result of such Recipient being organized, formed or incorporated under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof); or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which: (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the applicable Borrower Party under Section 4.06); or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 4.01(a)(ii) or Section 4.01(c), amounts with respect to such Taxes were payable either to such Xxxxxx’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office; (c) Taxes attributable to such Recipient’s failure to comply with Section 4.01(e); (d)
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any backup withholding Tax that is required by the Code to be withheld from amounts payable to such Recipient; and (e) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Exclusion Event” means the occurrence, with respect to any Borrowing Base Investor or, if applicable, the Sponsor, Responsible Party, or Credit Provider of such Borrowing Base Investor (such Investor hereinafter referred to as a “Defaulting Investor”), of any of the following events:
(30) days prior to the date on which any of its assets could be lawfully sold to satisfy such judgment;
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1 In the event that the Ratings of the relevant Person are not equivalent, such Rating shall be based on the lowest of the Rating of such Person. If any Person has only one Rating, then that Rating shall apply.
2 In the event that the Ratings of the relevant Person are not equivalent, such Rating shall be based on the lowest of the Rating of such Person. If any Person has only one Rating, then that Rating shall apply.
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“Facility Extension Request” means a notice in substantially the form of Exhibit J attached hereto pursuant to which Borrower requests an extension of the Stated Maturity Date in accordance with Section 2.16.
“Facility Increase Fee” means a fee as agreed by Xxxxxxxx and Administrative Agent in a separate fee letter agreement.
“Facility Increase Request” means a notice in substantially the form of Exhibit I attached hereto pursuant to which Borrower requests an increase of the Commitments in accordance with Section 2.17.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable) and any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any published intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
“Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that: (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal
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Funds Rate for such day shall be the average rate charged to Administrative Agent on such day on such transactions as determined by Administrative Agent.
“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source.
“Fitch” means Fitch Ratings, a wholly-owned subsidiary of Fimalac, S.A.
“Floating LIBOR Rate” means, on any date the same is to be determined, the rate per annum equal to LIBOR or a comparable or successor rate if LIBOR is no longer available, which rate is approved by the Administrative Agent, as published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time), for deposits in the relevant currency with a term of one (1) month commencing that day; provided that, if the Floating LIBOR Rate shall be less than zero (0), such rate shall be deemed to be zero (0) for purposes of this Credit AgreementFloor” means a per annum rate of zero basis points.
“Foreign Recipient” means: (a) if the applicable Borrower Party is a U.S. Person, a Recipient that is not a U.S. Person; and (b) if the applicable Borrower Party is not a U.S. Person, a Recipient that is resident or organized under the laws of a jurisdiction other than that in which such Borrower Party is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lender’s proportionate share (based on the total of such Defaulting Lender’s participation in all Letters of Credit as determined in accordance with Section 2.08 as a proportion of the total Letter of Credit Liability) of the outstanding Letter of Credit Liability other than Letter of Credit Liability as to which (i) such Defaulting Lender’s participation obligation has been reallocated to other Committed Lenders in accordance with the terms hereof or (ii) Cash Collateral or other credit support reasonably acceptable to the Letter of Credit Issuer shall have been provided in accordance with Section 2.14, and (b) with respect to the Swingline Lender, such Defaulting Lender’s proportionate share (based on the total of such Defaulting Lender’s participation in all outstanding Swingline Loans as determined in accordance with Section 2.07 as a proportion of the total amount of outstanding Swingline Loans) of outstanding Swingline Loans other than Swingline Loans as to which (i) such Defaulting Lender’s participation obligation has been reallocated pursuant to other Committed Lenders in accordance with the terms hereof, or (ii) Cash Collateral or other credit support reasonably acceptable to the Swingline Lender shall have been provided in accordance with Section 2.14.
“Funding Agent” means each financial institution designated on Schedule 1.01A that acts as agent for a Lender Group, or its successor appointed pursuant to Section 12.
“Funding Party” means any Lender, Letter of Credit Issuer or Liquidity Provider.
“Funding Ratio” means: (a) for a Governmental Plan Investor, the actuarial present value of the assets of the plan over the actuarial present value of the plan’s total benefit liabilities, as reported in such plan’s most recent audited financial statements; and (b) for an ERISA Investor; (i) the fair market value of the plan’s assets as defined under Section 430(g)(3) of the Code, unreduced for any prefunding balance or funding standard carryover balance as defined and provided for in Section 430(f) of the Code; over (ii) the plan’s funding target, as defined under Section 430(d) of the Code, without regard to the
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special at-risk rules of Section 430(i) of the Code, with each value as reported on the most recently filed
Schedule SB to the Form 5500 by such plan with the United States Department of Labor.
“F/X Reserve Amount” shall mean an amount equal to five percent (5.0%) of the Dollar Equivalent of outstanding Loans denominated in Alternative Currencies.
“GAAP” means those generally accepted accounting principles and practices as in effect from time to time that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof, and that are consistently applied for all periods, after the date hereof, so as to properly reflect the financial position of Borrower, except that any accounting principle or practice required to be changed by the Financial Accounting Standards Board (or other appropriate board or committee of the said Board) in order to continue as a generally accepted accounting principle or practice may be so changed.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra national bodies such as the European Union or the European Central Bank).
“Governmental Plan Investor” means an Investor that is a governmental plan as defined in
Section 3(32) of ERISA.
“Guaranteed Debt” is defined in Section 6.01.
“Hazardous Material” means any substance, material, or waste which is or becomes regulated, under any Environmental Law, as hazardous to public health or safety or to the environment, including, but not limited to: (a) any substance or material designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, as amended, 33 U.S.C. §1251 et seq., or listed pursuant to Section 307 of the Clean Water Act, as amended; (b) any substance or material defined as “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et seq.; (c) any substance or material defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. §9601 et seq.; or (d) petroleum, petroleum products and petroleum waste materials.
“Honor Date” is defined in Section 2.08(c)(i).
“Included Investor” means an Investor: (a)(i) that has, or that has a Credit Provider that has, met the Applicable Requirement for an Included Investor and that has been approved by Administrative Agent; or (ii) that has been so designated by Administrative Agent and all Committed Lenders (each in its sole discretion) as an Included Investor; and (b) that has delivered to Administrative Agent the information and documents required under Section 7.01(a)(ix) or 10.05(d), as applicable; provided that
(i) a Defaulting Investor shall no longer be an Included Investor until such time as all Exclusion Events affecting such Investor have been cured to the satisfaction of the Administrative Agent and all of the Committed Lenders (not to be unreasonably withheld, conditioned or delayed); and (ii) if an involuntary proceeding under clause (b) of the Exclusion Events is instituted against an Included Investor, such Defaulting Investor shall be automatically reinstated as an Included Investor if such Exclusion Event is dismissed with sixty (60) days of the date such proceeding is instituted.
“Increasing Committed Lender” is defined in Section 2.17(a).
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“Indebtedness” means “indebtedness” as contemplated in the Operating Agreement, and for the avoidance of doubt, shall not include the Preferred Units (as defined in the Operating Agreement).
“Indemnified Taxes” means: (a) Taxes other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower Party under any Loan Document; and (b) to the extent not otherwise described in clause (a), Other Taxes.
“Indemnitee” is defined in Section 13.06(b).