TCW STEEL CITY PERPETUAL LEVERED FUND LP, as Borrower REVOLVING CREDIT AGREEMENT NATIXIS, NEW YORK BRANCH, as Administrative Agent NATIXIS, NEW YORK BRANCH,
4910-6553-8863 v.5
EXECUTION VERSION
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as Borrower
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
Dated as of April 21, 2025
4910-6553-8863 v.5
TABLE OF CONTENTS
Page
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Setting 72
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SCHEDULES
SCHEDULE 1.01 Commitments and Lender Groups SCHEDULE 1.01A Borrower Party Information / Structure SCHEDULE 1.01B Disqualified Lenders
SCHEDULE 13.07 Addresses
EXHIBITS
EXHIBIT A: Reserved
EXHIBIT B: Revolving Credit Note
EXHIBIT C: Loan Notice
EXHIBIT D: Security Agreement
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 EXHIBIT K: Lender Group Joinder Agreement EXHIBIT L: Borrower Joinder Agreement EXHIBIT M: U.S. Tax Compliance Certificates EXHIBIT N: Request for Letter of Credit
EXHIBIT O: Prepayment Notice
EXHIBIT P: Intermediate Entity Acknowledgment
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This REVOLVING CREDIT AGREEMENT (together with all amendments and modifications hereof and supplements and attachments hereto, this “Credit Agreement”) is dated as of April 21, 2025 by and among TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Initial 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).
Borrower has requested that Lenders make loans to the Borrower Parties for the principal purposes of providing working capital to the Borrower Parties; financing the costs and other expenses to be incurred by the Borrower Parties in connection with making investments permitted under the Governing Agreement; and financing the costs of other undertakings by Borrower permitted under the Governing 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:
“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.
“Administrative Agent” is defined in the preamble to this Credit Agreement.
“Administrative Agent’s Office” means Administrative Agent’s address as set forth in Schedule 13.07, or such other address or, as appropriate, account as Administrative Agent may from time to time notify Borrower and the Lenders.
“Administrator” means, with respect to any Conduit Lender, the Person designated by such Conduit Lender as its “Administrator”.
“Affected Financial Institution” means (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“Affected Funding Party” is defined in Section 13.13.
“Affiliate” of any Person means a specified Person that, directly or indirectly, Controls or is Controlled By, or is Under Common Control With, such Person.
“Agents” means, collectively, Administrative Agent and each Funding Agent and any successors and assigns in such capacities.
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“Agreement Currency” is defined in Section 13.27.
“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 or Pledgor, as applicable.
“Anti-corruption Laws” means (a) the United States Foreign Corrupt Practices Act of 1977, as amended, (b) the UK Bribery Act 2010, as amended (as applicable), (c) French Law n°2016-1691 of December 9, 2016 (i.e., “▇▇▇ ▇▇▇▇▇ ▇▇”), and (d) all laws, rules, and regulations of any jurisdiction applicable to the Borrower Parties or other Pledgors from time to time concerning or relating to bribery or corruption.
“Anti-Money Laundering Laws” means all laws, rules and regulations of any jurisdiction applicable to any Pledgor or any of its Subsidiaries from time to time concerning or relating to terrorism financing, money laundering and the related financial recordkeeping and reporting requirements, including any applicable provision of the Patriot Act and the Currency and Foreign Transactions Reporting Act (also known as the “Bank Secrecy Act”).
“Applicable Margin” means, with respect to interest rate spreads and letter of credit fees, the Applicable Margin set forth in the table below that corresponds to the applicable Loan or Letter of Credit:
|
Applicable Margin |
Base Rate Loan |
1.10% |
Term SOFR Loan |
2.10% |
CP Rate Loan |
2.10% |
Daily SOFR Loan |
2.10% |
Letter of Credit |
2.10% |
“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 (a) for any Included Investor (other than a Special Included Investor) that is (or whose Credit Provider, if applicable, is): (i) a Bank Holding Company, Adequately Capitalized status or better and a Rating of BBB-/Baa3 or higher; (ii) an insurance company, a Best’s Rating by A.M. Best Company of A- or higher and a Rating of BBB-/Baa3 or higher; (iii) an ERISA Investor, or the trustee or nominee of an ERISA Investor, in addition to the Sponsor’s Rating of BBB-/Baa3 or higher, a minimum Funding Ratio for the pension fund based on the Rating of the Sponsor of the pension fund as follows:
Sponsor Rating Minimum Funding Ratio
A-/A3 or higher No minimum BBB+/Baa1 to BBB-/Baa3 70%
Responsible Party Rating Minimum Funding Ratio
A-/A3 or higher No minimum BBB+/Baa1 to BBB-/Baa3 70%
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and (v) otherwise a Rated Included Investor, a Rating of BBB-/Baa3 or higher and (b) for any Special Included Investor (or its Credit Provider, if applicable), a Rating of A/A2 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 ▇▇▇▇▇’▇ Rating. In the event that the Ratings are not equivalent, the Applicable Requirement shall be based on the lowest of the Ratings. If any Person has only one Rating, then that Rating shall apply.
“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business, that is administered or managed by: (a) a Lender; (b) an Affiliate of a Lender; or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“Arranger” means Natixis, in its capacity as sole lead arranger and sole book manager. “Assignee” is defined in Section 13.11(b).
“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 ▇▇▇▇▇▇’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 lesser of: (a) the Maximum Commitment at such time; or (b) the Borrowing Base at such time.
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“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 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) except during any period of time during which the Term SOFR Rate is unavailable pursuant to Section 4.02 or 4.03, one-month Term SOFR Rate plus 100 basis points (1.00%). Each change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Term SOFR Rate (or successor therefor) shall become effective without prior notice to Borrower automatically as of the opening of business on the day of such change in the Base Rate. If the calculation of the Base Rate results in a rate of less than the Floor, the Base Rate shall be deemed to be the Floor for all purposes of the Loan Documents.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.
“Baseline Net Worth” is defined in clause (j) of the definition of Exclusion Event.
“Basel III” means the global regulatory standards on bank capital adequacy and liquidity referred to by the Basel Committee on Banking Supervision as “Basel III” or the “Basel III Framework” published in December 2010 together with any further guidance or standards in relation to “Basel III” or the “Basel III Framework” published or to be published by the Basel Committee.
“Benchmark” means, initially, Daily Simple SOFR and/or the Term SOFR Rate, as applicable; provided that, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to both Daily Simple SOFR and Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 4.03.
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for the then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by Administrative
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Agent and Borrower giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement will be deemed to be the Floor for the purposes of this Credit Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Administrative Agent and Borrower giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to the then-current Benchmark, the occurrence of one (1) or more of the following events with respect to such Benchmark (which, for the avoidance of doubt, as of the Closing Date, means one of the following events with respect to both Daily Simple SOFR and the Term SOFR Rate):
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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Start Date” means, with respect to the then-current Benchmark, in the case of a Benchmark Transition Event, the earlier of (a) the applicable Benchmark Replacement Date and
(b) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication).
“Benchmark Unavailability Period” means, with respect to the then-current Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date with respect to such then-current Benchmark has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 4.03(b) and (b) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any other Loan Document in accordance with Section 4.03(b).
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. §1010.230.
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“Best’s Rating” means a “Best’s Rating” by A.M. Best Company.
“Borrower” means, collectively and individually, Initial Borrower and any other Person that becomes a Borrower hereunder pursuant to Section 7.04.
“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 Contributions (and for the avoidance of doubt, including Returned Capital) of the Included Investors (other than the Special Included Investor) at such time, plus (b) sixty-five percent (65%) of the aggregate Eligible Contributions (and for the avoidance of doubt, including Returned Capital) of the Designated Investors at such time, plus (c) (i) for so long as the Hurdle Condition remains unsatisfied, sixty-five percent (65%) of the aggregate Eligible Contributions (and for the avoidance of doubt, including Returned Capital) of the Special Included Investors at such time, and (ii) at all other times, eighty percent (80%) of the aggregate Eligible Contributions (and for the avoidance of doubt, including Returned Capital) of the Special Included Investors at such time. For purposes of calculating the Borrowing Base, the Eligible Contributions shall be subject to the applicable 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, without duplication, the name, Capital Commitment and Unfunded Commitment of each Investor and designation of the Included Investors, each Designated Investors and Special Included Investor (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 State of New York.
“Capital Call” means a call upon all or any of the Investors (or Intermediate Entity, if applicable) for payment of all or any portion of their Unfunded Commitments or, if applicable, the Note Purchase Agreement or the Intermediate Entity Acknowledgment.
“Capital Call Notice” means any notice sent to, or demand or request made on, an Investor (or Intermediate Entity, if applicable) by General Partner for the purpose of making a Capital Call.
“Capital Commitment” means, for any Investor (or Intermediate Entity, if applicable, but without duplication), (a) its capital commitment, which includes its “Commitment” (or equivalent term) as defined in the applicable Governing Agreement, in the amount set forth in such Governing Agreement or its Subscription Agreement (the “Equity Commitment”) and (b) its commitment to advance funds in the form of a loan to the applicable Pledgor, as applicable, including the “Funding” (or equivalent term) as defined
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in the applicable Note Purchase Agreement, in the amount set forth in the applicable supplement thereto (the “Debt Commitment”).
“Capital Contribution” means, for any Investor, any contribution of capital made to a Pledgor in response to a Capital Call or deemed contributed pursuant to the Governing 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.
“Cease Funding Notice” is defined in Section 9.16 hereof.
“Cease Funding Right” means any right of an Investor to exercise an excuse, withdrawal, transfer, right to cease funding further Capital Contributions, or other similar right under the applicable Governing Agreement or its Side Letter.
“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 ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ 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 (a) TCW PT Management Company LLC or an Affiliate thereof shall cease to be the investment advisor of, and Control, any Pledgor or (b) General Partner shall cease to be the sole general partner of, and Control, any Pledgor.
“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, for any Pledgor that has Investors (or any other Pledgor for which a Collateral Account is required by Administrative Agent), each bank account described in the applicable Collateral Account Assignment and related Control Agreement, as listed on Schedule 1.01A.
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“Collateral Account Assignment” means an assignment or security agreement with respect to the Collateral Account in substantially the form of Exhibit E attached hereto, as such agreement shall be amended, modified, supplemented and/or restated and in effect from time to time.
“Collateral Documents” means the security agreements, financing statements, assignments, and other documents and instruments from time to time executed and delivered pursuant to this Credit Agreement to grant, perfect or continue a security interest in the Collateral for the Obligations and any documents or instruments amending or supplementing the same, including, without limitation, the Security Agreement, the Collateral Account Assignment, and the 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 1.01 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 1.01 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 ▇▇▇▇▇▇’s Lender Group.
“Committed Lenders” means: (a) each Committed Lender listed on the signature pages hereof; and
“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 limits set forth below for each Investor under the indicated Investor Classification (a) with respect to the individual limit, calculated as a percentage of the aggregate Unfunded Commitments of all Borrowing Base Investors and (b) with respect to the aggregate limit, calculated as a percentage of the aggregate Unfunded Commitments of all Borrowing Base Investors after deducting any amounts in excess of the applicable individual Investors Concentration Limits:
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Investor Classification |
Concentration Limit |
|
|
Individual Limit |
Aggregate Limit |
Rated Included Investor (dependent on applicable ratings below) 1, 2, 3 |
- |
|
AAA / Aaa |
100% |
- |
AA+ / Aa1 to AA- / Aa3 |
40.0% |
- |
A+ / A1 to A- / A3 |
30.0% |
- |
BBB+ / Baa1 to BBB / Baa2 |
15.0% |
- |
BBB- / Baa3 |
5.0% |
- |
Other Concentration Limits |
|
|
Non-Rated Included Investors |
15.0%4 |
45.0% |
Designated Investors |
5.0% |
45.0% |
Special Included Investors |
|
35.0% |
A / A2 and above |
15.0% |
- |
A / A2 |
15.0% |
- |
provided that for purposes of calculating the above Concentration Limits for any Investor, each Investor and its investing Affiliates shall be treated as a single Investor.
“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 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 ▇▇▇▇▇▇’s Lender Group at such time.
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“Conforming Changes” means, with respect to either the use or administration of Daily Simple SOFR, the Term SOFR Rate or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of funding losses and other technical, administrative or operational matters) that Administrative Agent (after consultation with ▇▇▇▇▇▇▇▇) 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 ▇▇▇▇▇▇▇▇) 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.
“Control Agreement” means a deposit account control agreement or blocked account control agreement by and among the applicable Pledgor, Depository and Administrative Agent, with respect to the Collateral Account of such Pledgor, in form and substance reasonably satisfactory to Administrative Agent.
“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 the costs of funding odd lots or small dollar amounts; provided that if the rate (or rates) as agreed between any such agent or dealer and such Conduit Lender is a discount rate, then the CP Rate shall be the rate (or if more than one rate, the weighted average of the rates) resulting from such Conduit Lender’s converting such discount rate (or rates) to an interest-bearing equivalent rate per annum; provided further that, if the CP Rate as so determined would be less than the Floor, then the CP Rate shall be deemed to be the Floor.
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“CP Rate Loan” means a Loan that bears interest based on a CP Rate (or, in the case of a Loan funded by a Conduit Lender through its Liquidity Provider, at the rate specified in Section 2.05(a)).
“Credit Agreement” is defined in the preamble hereto.
“Credit Extension” means each of the following: (a) a Borrowing (including any conversion or continuation of any Borrowing); and (b) an L/C Credit Extension.
“Credit Provider” means a Person providing a guaranty or other similar agreement, in form and substance reasonably acceptable to Lenders, of the obligations of an Included Investor to make Capital Contributions to a Pledgor.
“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”. “Debt Commitment” is defined in the definition of “Capital Commitment”.
“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.
“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.
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“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 ▇▇▇▇▇▇’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 ▇▇▇▇▇▇’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 ▇▇▇▇▇▇’s obligation to fund a Loan hereunder and states that such position is based on such ▇▇▇▇▇▇’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),
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“Depository” means U.S. Bank, National Association (or any successor thereto or Affiliate thereof) or any other bank or financial institution approved by Administrative Agent in its reasonable discretion, in each case, in its capacity as depository or securities intermediary, as the case may be.
“Designated Investor” means any Investor: (a) designated by Administrative Agent and all Committed Lenders (each in its sole discretion) as a Designated Investor; and (b) as to which ▇▇▇▇▇▇▇▇ 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.
“Dollars” and the sign “$” means lawful currency of the United States of America.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
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“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 Contribution” with respect to any Investor means the lesser of: (a) the amount of such Investor’s Unfunded Commitment; and (b) the highest amount which does not cause such Investor’s Unfunded Commitment to exceed the product of (i) the applicable Concentration Limit and (ii) the total Unfunded Commitments of all Borrowing Base Investors.
“Environmental Laws” means: (a) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Re-authorization Act of 1986, 42 U.S.C. §9601 et seq.; (b) the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. §6901 et seq.; (c) the Clean Air Act, 42 U.S.C.
§7401 et seq., as amended by the Clean Air Act Amendments of 1990; (d) the Clean Water Act of 1977, 33 U.S.C. §1251 et seq.; (e) the Toxic Substances Control Act, 15 U.S.C.A. §2601 et seq.; (f) all other federal, state and local laws, ordinances, regulations or written policies relating to pollution or protection of human health (as it relates to exposure to Hazardous Materials) or the environment including without limitation, air pollution, water pollution, noise control, or the use, handling, discharge, disposal or Release or recovery of on-site or off-site Hazardous Materials, as each of the foregoing may be amended from time to time, applicable to any Borrower Party; and (g) any and all regulations promulgated under or pursuant to any of the foregoing statutes.
“Environmental Liability” means any written claim, demand, obligation, cause of action, accusation or allegation, or any order, violation, damage (including, without limitation, to any Person, property or natural resources), injury, judgment, penalty or fine, cost of enforcement, cost of remedial action, clean-up, restoration or any other cost or expense whatsoever, including reasonable attorneys’ fees and disbursements resulting from the violation or alleged violation of any Environmental Law or the 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.
“Equity Commitment” is defined in the definition of “Capital Commitment”.
“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 or Pledgor 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).
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“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 the applicable Pledgor:
“Erroneous Payment” is defined in Section 12.11(a).
“Erroneous Payment Deficiency Assignment” is defined in Section 12.11(d). “Erroneous Payment Impacted Class” is defined in Section 12.11(d). “Erroneous Payment Return Deficiency” is defined in Section 12.11(d). “Erroneous Payment Subrogation Rights” is defined in Section 12.11(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.
“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 ▇▇▇▇▇▇’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office; (c) Taxes
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attributable to such Recipient’s failure to comply with Section 4.01(e); (d) any backup withholding Tax that is required by the Code to be withheld from amounts payable to such Recipient; and (e) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Exclusion Event” means the occurrence, with respect to any Borrowing Base Investor or, if applicable, the Sponsor, Responsible Party, or Credit Provider of such Borrowing Base Investor (such Investor hereinafter referred to as a “Defaulting Investor”), of any of the following events:
(vi) take any personal, partnership, limited liability company, corporate or trust action, as applicable, for the purpose of effecting any of the foregoing;
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(ii) it shall fail to provide updated financial information available (to the extent requested by Administrative Agent) on an annual basis in order to measure such Baseline Net Worth after the Closing Date; or (iii) except as set forth in subsection (k) below with respect to Governmental Plan Investors, the Rating of the related entity Under Common Control with such Non-Rated Included Investor falls below BBB-/Baa3;1
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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independent public accountants to the extent applicable, and such Investor fails, within 15 Business Days after written request from any Pledgor or Administrative Agent, to deliver such annual financial statements to such Pledgor or Administrative Agent as required by Administrative Agent in order to continue to designate such Investor as an Included Investor hereunder;
“Facility Extension Effective Date” is defined in Section 2.16.
“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 then in effect in accordance with Section 2.16.
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“Facility Increase Fee” means a fee as agreed by ▇▇▇▇▇▇▇▇ 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 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.
“Fitch” means Fitch Ratings, a wholly-owned subsidiary of Fimalac, S.A. “Floor” means a per annum rate of zero basis points.
“Foreign Recipient” means: (a) if the applicable Borrower Party is a U.S. Person, a Recipient that is not a U.S. Person; and (b) if the applicable Borrower Party is not a U.S. Person, a Recipient that is resident or organized under the laws of a jurisdiction other than that in which such Borrower Party is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Letter of Credit Issuer, such Defaulting Lender’s proportionate share (based on the total of such Defaulting Lender’s participation in all Letters of Credit as determined in accordance with Section 2.08 as a proportion of the total Letter of Credit Liability) of the outstanding Letter of Credit Liability other than Letter of Credit Liability as to which (i) such Defaulting Lender’s participation obligation has been reallocated to other Committed Lenders in accordance with the terms hereof or (ii) Cash Collateral or other credit support 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 1.01 that acts as agent for a Lender Group, or its successor appointed pursuant to Section 12.
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“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 special at-risk rules of Section 430(i) of the Code, with each value as reported on the most recently filed Schedule SB to the Form 5500 by such plan with the United States Department of Labor.
“GAAP” means those generally accepted accounting principles and practices as in effect from time to time that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof, and that are consistently applied for all periods, after the date hereof, so as to properly reflect the financial position of Borrower, except that any accounting principle or practice required to be changed by the Financial Accounting Standards Board (or other appropriate board or committee of the said Board) in order to continue as a generally accepted accounting principle or practice may be so changed.
“General Partner” means TCW Steel City GP LLC, the sole general partner of the initial Pledgors on the Closing Date, and with respect to each Person becoming party to this Credit Agreement as a Borrower or Pledgor after the Closing Date, the entity named as such Person’s general partner, managing member or other similar managing fiduciary, as applicable, and any successor thereto permitted under this Credit Agreement, as set forth in its joinder documentation.
“Governing Agreement” means, with respect to any Pledgor (but not with respect to any Qualified Borrower), the limited partnership agreement, limited liability company agreement, exempted limited partnership agreement, memorandum and articles of association, or other equivalent governing document in the applicable jurisdiction of such Person, including, without limitation, any Subscription Agreement, any Note Purchase Agreement or Side Letter, as the same may be further amended, restated, modified or supplemented in accordance with the terms hereof, in each case, as described on Schedule 1.01A hereto (or on a replacement Schedule 1.01A delivered by Borrower or a Pledgor in connection with its joinder hereunder). References to the Governing Agreement, unless otherwise specified, will be deemed to be references to the Governing Agreement for TCW Steel City Perpetual Levered Fund LP, but will refer, as applicable, to the equivalent provisions of the Governing Agreement of any other applicable Person.
“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
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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).
“Hurdle Condition” means, with respect to any Special Included Investor, that such Special Included Investor has funded Capital Calls in an amount greater than 40% of the Capital Commitment of such Investor.
“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).
“Indebtedness” means “indebtedness” as contemplated and defined in the applicable Governing 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).
“Indirect Fund” means an investment company that makes or maintains investments in reliance upon Sections 12(d)(1)(E), (F), (G) or (J) of the Investment Company Act.
“Information” is defined in Section 13.18.
“Initial Borrower” is defined in the preamble hereto.
“Initial Notice” means a notice delivered by a Pledgor or General Partner to the Investors under the Governing Agreement of Borrower (or the equivalent of any other Pledgor) with respect to the treatment of a Pledgor’s assets as Plan Assets.
“Interest Option” means each of Daily Simple SOFR, the Term SOFR Rate and the Base Rate. “Interest Payment Date” means, for all Loans, the tenth (10th) calendar day of each calendar month
and the Maturity Date.
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“Interest Period” means (a) with respect to any CP Rate Loan, (i) if the Related Commercial Paper is issued on a pool funded basis, a calendar month (or, in the case of the first Interest Period, the period from and including the date of the first advance hereunder to (but excluding) the first day of the next succeeding calendar month) and (ii) if the Related Commercial Paper is issued on a match-funded basis, the period of time allocated by the applicable Funding Agent to such Loan in its reasonable discretion; and
(b) with respect to any Term SOFR Loan (other than Swingline Loans, which are addressed in Section 2.07(a)), a period commencing: (i) on the Borrowing date of such Term SOFR Loan; or (ii) on the termination date of the immediately preceding Interest Period in the case of a continuation of a Term SOFR Loan to a successive Interest Period as described in Section 2.02, and if an Interest Period of one (1) month is elected, ending the first day of such calendar month occurring one (1) month thereafter as a Borrower Party shall elect in accordance with Section 2.02; provided, however, that with respect to clauses (a) and (b) above: (A) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day; and (B) if the Interest Period would otherwise end after the Stated Maturity Date, such Interest Period shall end on the Stated Maturity Date.
“Intermediate Entity” means any Person in the organizational structure of Borrower that is interposed between Borrower and an Investor. For purposes of clarity, an Intermediate Entity will include any intervening corporation, limited partnership, limited liability company or other entity domiciled within or outside of the United States between Borrower and any Investor that is (a) formed by Borrower or an Affiliate of Borrower to facilitate investments by such Investor(s) directly or indirectly in Borrower or for other structuring purposes, and (b) managed or controlled by Borrower, General Partner or another Affiliate of Borrower.
“Intermediate Entity Acknowledgment” means an agreement substantially in the form of Exhibit P
duly executed and delivered by each Intermediate Entity and its General Partner.
“Investment Company Act” means the Investment Company Act of 1940 and the rules and regulations promulgated thereunder, as amended to the date hereof and from time to time hereafter, and any successor Investment Company Act.
“Investor” means a limited or general partner, or member (including a managing member) of a Pledgor to the extent such Person is not, itself, an Intermediate Entity.
“IRS” means the United States Internal Revenue Service.
“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice (or such later version thereof as may be in effect at the time of issuance).
“Issuer Documents” means with respect to any Letter of Credit, the Request for Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the Letter of Credit Issuer and a Borrower Party or entered into by a Borrower Party in favor of the Letter of Credit Issuer and relating to any such Letter of Credit, including, as applicable, any documentation relating to Cash Collateral (which may include, without limitation, a Collateral Account Assignment).
“Joinder Agreement” means a joinder agreement in the form of Exhibit L.
“Key Person Event” means a “Key Person Event” as defined in the applicable Governing Agreement.
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“L/C Advance” means, with respect to each Committed Lender, such Committed Lender’s funding of its participation in any L/C Borrowing.
“L/C Borrowing” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Borrowing.
“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
“Lender Group” means each Lender Group identified by name on Schedule 1.01 to this Credit Agreement (as such Schedule 1.01 may be amended, supplemented or otherwise modified and in effect), including the Funding Agent for such Lender Group and each Committed Lender and each Conduit Lender (if any) in such Lender Group.
“Lender Group Joinder Agreement” means a joinder agreement, substantially in the form of
Exhibit K attached hereto, pursuant to which a new Lender Group becomes party to this Credit Agreement.
“Lender Group Limit” means, for each Lender Group, the sum of the Commitments of the Committed Lenders in such Lender Group.
“Lender Group Percentage” means, with respect to any Lender Group, the percentage equivalent of a fraction the numerator of which is the sum of the Commitments held by the Committed Lenders members of such Lender Group and the denominator of which is the sum of all Commitments. If the Commitments have terminated or expired, the Lender Group Percentages shall be the percentage equivalent of a fraction the numerator of which is the aggregate Principal Obligation held by the Lenders members of such Lender Group and the denominator of which is the total Principal Obligation.
“Lender KYC Compliant” means, with respect to any Person, that Person has satisfied all reasonable and customary requests for information from Administrative Agent and the other Secured Parties for “know-your-customer” and other anti-terrorism laws, Anti-Money Laundering Laws and similar rules and regulations and related policies and who would not result in any Secured Party being non-compliant with any such rules and regulations and related policies were such Person to enter into a banking relationship with such Secured Party.
“Lenders” means the Conduit Lenders, the Committed Lenders and, as the content requires, the Swingline Lender; provided, that each Lender must be a Qualified Purchaser.
“Lending Office” means, as to any Lender, the office or offices of such Lender (or an affiliate of such Lender) described as such in such ▇▇▇▇▇▇’s administrative questionnaire delivered to Administrative Agent, or such other office or offices as a Lender may from time to time notify Borrower and Administrative Agent.
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“Letter of Credit” means a standby letter of credit issued in Dollars by the Letter of Credit Issuer pursuant to Section 2.08 either as originally issued or as the same may, from time to time, be amended or otherwise modified or extended.
“Letter of Credit Application” means an application and agreement for standby letter of credit by and between a Borrower Party and the Letter of Credit Issuer in a form reasonably acceptable to the Letter of Credit Issuer (and customarily used by it in similar circumstances) and conformed to the terms of this Credit Agreement, either as originally executed or as it may from time to time be supplemented, modified, amended, renewed, or extended.
“Letter of Credit Availability Period” means the period as may be agreed in writing by the Letter of Credit Issuer, ▇▇▇▇▇▇▇▇, and all Lenders but not to extend beyond the final Maturity Date.
“Letter of Credit Collateralization Date” means the day that is the earlier of: (a) thirty (30) days prior to the Stated Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day); or (b) the Maturity Date.
“Letter of Credit Issuer” means, with respect to any Letter of Credit, Natixis in its capacity as the issuer of such Letter of Credit hereunder.
“Letter of Credit Liability” means the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this Credit Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.
“Letter of Credit Sublimit” means, at any time, an amount equal to $10,000,000.
“Lien” means any lien, mortgage, security interest, tax lien, pledge, encumbrance, or conditional sale or title retention arrangement, or any other interest in property designed to secure the repayment of Indebtedness, whether arising by agreement or under common law, any statute or other law, contract, or otherwise.
“Liquidity Agreement” means, with respect to a Conduit Lender, any agreement entered into by such Conduit ▇▇▇▇▇▇’s Liquidity Provider providing for (i) the issuance of one or more letters of credit for the account of such Conduit Lender (or its Related Commercial Paper Issuer), (ii) the issuance of one or more surety bonds for drawings under which such Conduit Lender (or its Related Commercial Paper Issuer) is obligated to reimburse such Liquidity Provider, (iii) the sale by such Conduit Lender (or its Related Commercial Paper Issuer) to such Liquidity Provider of its interests hereunder (or portions thereof or participations therein) or (iv) the making of loans or other extensions of credit to such Conduit Lender (or its Related Commercial Paper Issuer) in connection with Related Commercial Paper, together with any letter of credit, surety bond or other instrument issued thereunder.
“Liquidity Event” means, with respect to a Conduit Lender, the occurrence of any one or more of the following events: (a) the inability of such Conduit Lender to fund any Loan by issuing, directly or indirectly, Commercial Paper, either at a commercially reasonable rate or rates or otherwise, as a result of any materially adverse circumstances or conditions in the domestic or foreign capital markets generally or Commercial Paper markets in particular, any outbreak or escalation or war or other hostilities or any other national or international calamity or crisis the effect of which, in the sole and absolute determination of its Administrator made in good faith, is to cause such a disruption as to make it impracticable to sell or enforce contracts for the sale of its Commercial Paper; (b) unless its Administrator elects otherwise, the date of
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termination of the commitment of any Liquidity Provider to such Conduit Lender under a Liquidity Agreement; (c) the Commercial Paper of such Conduit Lender shall not be rated at least “A-2” by S&P and at least “P 2” by ▇▇▇▇▇’▇; or (d) the later of (i) the date its Administrator ceases to be the Administrator for such Conduit Lender and neither the Administrator nor any of its affiliates shall administer any other asset-backed commercial paper conduit, and (ii) the ninetieth (90th) day following the date its Administrator shall have publicly announced or otherwise notified the Borrower that, at such time as is specified in the related notice or announcement, it shall cease to be the Administrator for such Conduit Lender and neither such Administrator nor any of its Affiliates shall administer any other asset-backed commercial paper conduit.
“Liquidity Provider” means, with respect to a Conduit Lender, such Conduit Lender’s Funding Agent, a Committed Lender in such Conduit Lender’s Lender Group, or such other Person as is consented to in writing by the Administrative Agent and the Borrower (such consent not to be unreasonably withheld) which shall, pursuant to a Liquidity Agreement, now or hereafter extend credit or commit to extend credit to or for the account of, or to make purchases from, such Conduit Lender or its Related Commercial Paper Issuer or issue a letter of credit, surety bond or other instrument, in each case to support any obligations arising under or in connection with such Conduit ▇▇▇▇▇▇’s (or such Related Commercial Paper Issuer’s) commercial paper program.
“Loan” means a Syndicated Loan made pursuant to Section 2.02 and/or, as applicable, a Swingline Loan made pursuant to Section 2.07, including, without limitation, any Base Rate Loan, Daily SOFR Loan, Term SOFR Loan, or CP Rate Loan made pursuant thereto.
“Loan Date” is defined in Section 2.02(a).
“Loan Documents” means this Credit Agreement, the Notes (including any renewals, extensions, re-issuances and refundings thereof), each Letter of Credit Application, each of the Collateral Documents, each Joinder Agreement, each Intermediate Entity Acknowledgment, any agreement creating or perfecting rights in Cash Collateral or other credit support provided by a Borrower Party pursuant to the provisions of Section 2.13 and such other agreements and documents (including any fee letters), and any amendments or supplements thereto or modifications thereof, executed or delivered pursuant to the terms of this Credit Agreement or any of the other Loan Documents and any additional documents delivered in connection with any such amendment, supplement or modification.
“Loan Notice” means any request for a Borrowing, conversion or continuation of a Loan substantially in the form of Exhibit C attached hereto, containing the information specified therein, executed and delivered by the applicable Borrower Parties.
“Mandatory Prepayment Event” is defined in Section 3.04. “Margin Stock” is defined in Regulation U.
“Material Adverse Effect” means: (a) a material adverse effect upon, the operations, business, assets or financial condition of Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the ability of any Borrower Party or General Partner to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Borrower Party or General Partner of any Loan Document to which it is a party.
“Material Amendment” is defined in Section 10.04.
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“Maturity Date” means the earliest of: (a) the Stated Maturity Date; (b) the date upon which Administrative Agent declares the Obligations, or the Obligations become, due and payable after the occurrence of an Event of Default in accordance with the term of this Credit Agreement; (c) the date upon which Borrower terminates the Commitments pursuant to Section 3.06 or otherwise; or (d) two (2) months prior any scheduled or known termination of the term of any Borrower.
“Maximum Accordion Amount” means $500,000,000.
“Maximum Commitment” means, at any time the same is to be determined, an amount equal to the aggregate Commitments of the Committed Lenders, as such amount may be increased pursuant to Section 2.17 or reduced by Borrower pursuant to Section 3.06.
“Maximum Rate” means, on any day, the highest rate of interest (if any) permitted by applicable law on such day.
“Minimum Collateral Amount” means, at any time: (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure while any Lender is a Defaulting Lender, an amount equal to one hundred percent (100%) of the Fronting Exposure at such time; and (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.14(a)(i), (a)(ii) or (a)(iii), an amount equal to one hundred percent (100%) of the outstanding amount of all Letter of Credit Liability.
“▇▇▇▇▇’▇” means ▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which any Borrower Party, any other Pledgor or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding six (6) plan years, has made or been obligated to make contributions.
“Multiple Employer Plan” means any employee benefit plan which has two or more contributing sponsors (including any Borrower Party, any other Pledgor or any ERISA Affiliate) at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Natixis” is defined in the preamble to this Credit Agreement.
“No Plan Asset Certificate” means a certificate from a Borrower Party or any other Pledgor, delivered by the relevant Responsible Officer of such Person, based on consultation with its counsel and in a form reasonably acceptable to Administrative Agent, (a) certifying that throughout the period beginning from the date of the prior No Plan Asset Certificate or the date of the Credit Agreement, as applicable, and continuing through the date of the subject No Plan Asset Certificate, “benefit plan investors” (as defined in Section 3(42) of ERISA) hold less than twenty-five percent (25%) of the total value of each class of equity interest in such Person (calculated in accordance with Section 3(42) of ERISA) and, accordingly, the underlying assets of such Person have not and do not constitute Plan Assets; and (b) covenanting that at all times following the date of such certificate, less than twenty-five percent (25%) of the total value of each class of equity interest in such Person (calculated in accordance with Section 3(42) of ERISA) will continue to be held by “benefit plan investors” (as defined in Section 3(42) of the ERISA) until such time, if any, that such Person delivers to Administrative Agent an Operating Company Opinion.
“Non-Defaulting Lender” means any Committed Lender that is not a Defaulting Lender.
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“Non-Rated Included Investor” means any Investor that does not have a Rating meeting the relevant minimum requirement included in the definition of “Applicable Requirement” (or that does not have a Credit Provider, Sponsor, or Responsible Party that has such a Rating) and is otherwise deemed to be an Included Investor in accordance with such defined term.
“Note Purchase Agreement” means any Note Purchase Agreement by and among an Intermediate Entity and its Investors party thereto, as may be further described in the Loan Documents provided by such Intermediate Entity and as the same may be amended, restated, modified or supplemented from time to time, including without limitation pursuant to a series supplement thereto.
“Notes” means the promissory notes provided for in Section 3.01(b), and all promissory notes delivered in substitution or exchange therefor, as such notes may be amended, restated, reissued, extended or modified; and “Note” means any one of the Notes.
“Obligations” means all present and future indebtedness, obligations, Erroneous Payment Subrogation Rights, and liabilities of any Borrower Party to any of the Secured Parties (including, without limitation, the Guaranteed Debt), and all renewals and extensions thereof, or any part thereof (including, without limitation, Loans, Letter of Credit Liability, or both), arising pursuant to this Credit Agreement (including, without limitation, the indemnity provisions hereof) or represented by the Notes and each Letter of Credit Application, and all interest accruing thereon, and payable in accordance with terms hereof, regardless of whether such indebtedness, obligations, and liabilities are direct, indirect, fixed, contingent, joint, several, or joint and several; together with all indebtedness, obligations, and liabilities of any Borrower Party to any of the Secured Parties evidenced or arising pursuant to any of the other Loan Documents, and all renewals and extensions thereof, or any part thereof.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“Operating Company” means an “operating company” within the meaning of
Section 2510.3-101(c) of the Plan Assets Regulation.
“Operating Company Certificate” means a certificate from a Borrower Party or any other Pledgor, delivered by the relevant Responsible Officer of such Person, in a form reasonably acceptable to Administrative Agent, certifying that, based upon consultation with counsel, such Person has met the requirements to be an Operating Company for the twelve (12)-month period following the end of the Annual Valuation Period for such Person.
“Operating Company Opinion” means a written opinion of counsel to the Borrower Parties or any other Pledgor, in a form reasonably acceptable to Administrative Agent, as to qualification of such Person, as applicable, as an Operating Company.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document).
“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with
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respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 4.06).
“Participant” is defined in Section 13.11(f). “Participant Register” is defined in Section 13.11(f).
“Partner” means the General Partner or any one of the limited partners or members of Pledgor. “Patriot Act” is defined in Section 13.19.
“Payment Recipient” is defined in Section 12.11(a).
“Pending Capital Call” means any Capital Call that has been made upon the Investors and that has not yet been funded by the applicable Investor, but with respect to which such Investor is not in default.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed to by any Borrower Party, any other Pledgor or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the Code.
“Periodic SOFR Determination Day” means the day that is two (2) U.S. Government Securities Business Days prior to the first day of the relevant Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic SOFR Determination Day, the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then the Term SOFR Rate will be Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for the applicable tenor was published by the Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to the original Periodic SOFR Determination Day.
“Permitted Liens” means:
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“Permitted RIC Distributions” means, with respect to each taxable year in which Borrower is a RIC, any distributions determined by a Borrower Party in good faith to be required to be made in order to maintain a Borrower Party’s tax status under Section 852 of the Internal Revenue Code or to avoid the payment of any tax imposed under Section 852(b)(1), Section 852(b)(3) or Section 4982 of the Internal Revenue Code, as certified by a Borrower Party to the Administrative Agent in a RIC Distribution Notice delivered to the Administrative Agent.
“Person” means an individual, sole proprietorship, joint venture, association, trust, estate, business trust, corporation, non-profit corporation, partnership, limited liability company, sovereign government or agency, instrumentality, or political subdivision thereof, or any similar entity or organization.
“Plan” means any Pension Plan or any retirement medical plan, each as established or maintained for employees of any Borrower Party, any other Pledgor or any ERISA Affiliate, or any such Plan to which any Borrower Party, any other Pledgor or any ERISA Affiliate is required to contribute on behalf of any of its employees.
“Plan Assets” means “plan assets” within the meaning of the Plan Assets Regulation or otherwise.
“Plan Assets Regulation” means 29 C.F.R. §2510.3-101, et seq., as modified by Section 3(42) of
ERISA.
“Pledgor” means any Borrower and any Intermediate Entity. “Pledgor KYC Compliance” is defined in Section 8.23.
“Portfolio Asset” means any “Portfolio Investment” (as defined in the Governing Agreement) directly held by the Borrower, including, without limitation, any equity interests of the Borrower in any Portfolio Company (as defined in the Governing Agreement).
“Prepayment Notice” means a written notice in substantially the form of Exhibit E attached hereto. “Prime Rate” means, on any day, the rate of interest in effect for such day as publicly announced
from time to time by Natixis as its “prime rate.” The “prime rate” is a rate set by Natixis based upon various factors including Natixis’ costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Natixis shall take effect at the opening of business on the day specified in the public announcement of such change.
“Principal Obligation” means the amount of (a) the aggregate outstanding principal amount of the Loans (including Swingline Loans); plus (b) the Letter of Credit Liability.
“Property” means any real property, improvements thereon and any leasehold or similar interest in real property which is owned, directly or indirectly, by any Borrower Party, or secures any investment of any Borrower Party.
“Qualified Borrower” means any entity, which entity may be organized in the United States or outside of the United States, in which Borrower owns a direct or indirect ownership interest or through which Borrower will acquire an investment, the indebtedness of which entity can be guaranteed by Borrower pursuant to the terms of the Governing Agreement, and which entity has executed and delivered this Credit Agreement on the Closing Date or a Joinder Agreement and in respect of which entity Borrower has guaranteed the Obligations thereof pursuant to Section 6.
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“Qualified Purchaser” means a “qualified purchaser” within the meaning of Section 2(a)(51) of the Investment Company Act of 1940 and the rules and regulations promulgated thereunder, as amended to the date hereof and from time to time hereafter, and any successor Investment Company Act.
“Rated Included Investor” means any Investor that has a Rating meeting the relevant minimum requirement included in the definition of “Applicable Requirement” (or that has a Credit Provider, Sponsor, or Responsible Party that has such a Rating).
“Rated Note Feeder” means an Intermediate Entity that is a rated note feeder that delivers, among other things, an Intermediate Entity Acknowledgment pursuant to Section 7.04.
“Rating” means, for any Person, its senior unsecured debt rating (or equivalent thereof, such as, but not limited to, a corporate credit rating, issuer rating/insurance financial strength rating (for an insurance company), general obligation rating or credit enhancement program rating (for a governmental entity), or revenue bond rating (for an educational institution)) from either of S&P or Moody’s.
“Rating Agencies” means S&P, Moody’s and ▇▇▇▇▇, or any other nationally-recognized statistical rating agency which has been approved by the Administrative Agent.
“Recipient” means Administrative Agent, any Lender, any Agent, any Liquidity Provider, the Letter of Credit Issuer, or any other recipient of any payment to be made by or on account of any obligation of any Borrower Party hereunder.
“Register” is defined in Section 13.11(e).
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, from time to time in effect, and shall include any successor or other regulation relating to reserve or margin requirements, applicable to member banks of the Federal Reserve System.
“Related Commercial Paper” means, with respect to a Conduit Lender, at any time of determination, Commercial Paper of such Conduit Lender or its Related Commercial Paper Issuer the proceeds of which are then allocated by the administrator of such Conduit Lender or its Related Commercial Paper Issuer as the source of funding the acquisition or maintenance of such Conduit ▇▇▇▇▇▇’s Principal Obligation hereunder.
“Related Commercial Paper Issuer” means a multi-seller commercial paper conduit that issues Commercial Paper the proceeds of which are loaned to a Conduit Lender as the source of funding the acquisition or maintenance of its Principal Obligation hereunder.
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching, or migration of Hazardous Materials into the environment, or into or out of any Property, including the movement of any Hazardous Material through or in the air, soil, surface water, groundwater, of any Property.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
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“Removal Effective Date” is defined in Section 12.06(b).
“Repayment Percentage” means, with respect to any Lender, (a) with respect to any Borrowing, the percentage equivalent of a fraction the numerator of which is such Lender’s applicable Principal Obligation of such Borrowing and the denominator of which is the aggregate Principal Obligation of such Borrowing; (b) with respect to any Letter of Credit, the percentage equivalent of a fraction the numerator of which is such Lender’s applicable Letter of Credit Liability and the denominator of which is the aggregate Letter of Credit Liability; and (c) with respect to any other Obligation, the percentage equivalent of a fraction the numerator of which is such ▇▇▇▇▇▇’s Principal Obligation and the denominator of which is the aggregate Principal Obligation.
“Request for Credit Extension” means: (a) with respect to a Borrowing, conversion or continuation of Loans, a Loan Notice; and (b) with respect to an L/C Credit Extension, the related Request for Letter of Credit and Letter of Credit Application.
“Request for Letter of Credit” means a request for the issuance of a Letter of Credit substantially in the form of Exhibit N attached hereto.
“Required Lenders” means, at any time, (a) Committed Lenders having their share of the Principal Obligation and their Unused Commitments representing more than fifty percent (50%) of the sum of (x) the total Principal Obligation then outstanding and (y) the aggregate Unused Commitments at such time, provided that in determining such percentage at any given time, all then existing Defaulting Lenders will be disregarded and excluded and the pro rata shares of the aggregate Principal Obligation and Unused Commitments of Lenders shall be redetermined for voting purposes only, to exclude the pro rata shares of the aggregate Principal Obligation and Unused Commitments of such Defaulting Lenders, and (b) at all times when two or more non-affiliated Committed Lenders (other than Defaulting Lenders) are party to this Credit Agreement, the term “Required Lenders” shall in no event mean fewer than two non-affiliated Committed Lenders.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means: (a) in the case of a corporation, its chief executive officer, president, chief financial officer, senior vice president, any vice president or treasurer, and, in any case where two Responsible Officers are acting on behalf of such corporation, the second such Responsible Officer may be a secretary or assistant secretary; (b) in the case of a limited partnership, the Responsible Officer of the general partner, acting on behalf of such general partner in its capacity as general partner; (c) in the case of a limited liability company, the Responsible Officer of the General Partner, acting on behalf of such General Partner in its capacity as General Partner; and (d) and, solely for purposes of notices given pursuant to Section 3, any other officer or employee of the applicable Borrower Party so designated by any of the foregoing officers in a notice to the Administrative Agent.
“Responsible Party” means, for any Governmental Plan Investor: (a) if the state or political subdivision under which the Governmental Plan Investor operates is obligated to fund the Governmental Plan Investor and is liable to fund any shortfalls, the state or political subdivision as applicable; and
(b) otherwise, the Governmental Plan Investor itself.
“Returned Capital” means, for any Investor, any part of any Capital Contribution that is redistributed to such Investor and is, in accordance with the terms of the Governing Agreement, added back to such Investor’s Unfunded Commitment; in each case which amount has been set forth as “Returned Capital” on a certificate of Borrower delivered to Administrative Agent.
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“RIC” means a person qualifying for treatment as a “regulated investment company” under the
Code.
“RIC Distribution Notice” means a written notice setting forth the calculation of any Permitted RIC Distribution with respect to the Borrower and certifying that the Borrower remains a “regulated investment company” under Subchapter M of the Code.
“RNF Investor” means an Investor in a Rated Note Feeder.
“S&P” means S&P Global Ratings, a subsidiary of the S&P Global, Inc., and any successor thereto. “Same Day Funds” means immediately available funds.
“Sanction(s)” means any applicable international economic sanction administered or enforced by a United States Governmental Authority (including, without limitation, OFAC), the United Nations Security Council, the European Union, His Majesty’s Treasury or other sanctions authority applicable to Pledgor.
“Sanctioned Lender” means a Lender that is a Sanctioned Person.
“Sanctioned Person” means (a) a Person named on the list of “Specially Designated Nationals and Blocked Persons” maintained by OFAC available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇-▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇/▇▇▇-▇▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇, or as otherwise published from time to time, or (b)(i) the government of a Designated Jurisdiction or an agency of the government of a Designated Jurisdiction,
(ii) an organization controlled by a Designated Jurisdiction or organized under the laws of a Designated Jurisdiction, or (iii) an individual ordinarily resident in a Designated Jurisdiction.
“Secured Parties” means, collectively, the Lenders, the Letter of Credit Issuer, the Agents, the Liquidity Providers and the Indemnitees.
“Security Agreement” means a security agreement substantially in the form of Exhibit D attached hereto, executed and delivered by a Pledgor and General Partner to Administrative Agent for the benefit of Secured Parties, as such agreement may be amended, modified, supplemented and/or restated from time to time.
“Side Letter” means, with respect to any Pledgor any “side letter” (if any) between an Investor and such Pledgor (or General Partner).
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source.
“SOX” means Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (codified as Section 13(k) of the Securities Exchange Act of 1934, as amended).
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“SOX Insiders” means the employees (or any of their spouses) of The TCW Group, Inc., the Borrower, the Investment Advisor or any Affiliate thereof, in each case who, in the reasonable opinion of ▇▇▇▇▇▇▇▇, constitute “insiders” for purposes of SOX from time to time.
“Special Included Investor” means an Included Investor specifically determined and identified by the Administrative Agent and ▇▇▇▇▇▇▇ in their sole discretion. For the avoidance of doubt, a Special Included Investor shall be treated in the same manner as an Included Investor for all purposes hereunder (including with respect to Exclusion Events) except with respect to calculating the Borrowing Base and determining Eligible Contribution.
“Sponsor” of an ERISA Investor means a sponsor as that term is understood under ERISA, specifically, the entity that established the plan and is responsible for the maintenance of the plan and, in the case of a plan that has a sponsor and participating employers, the entity that has the ability to amend or terminate the plan.
“Stated Maturity Date” means April 21, 2027, as it may be extended pursuant to Section 2.16. “Subscribed Interest” of any Investor means the limited or general partnership interest, or
membership interest, of such Investor in Pledgor under the Governing Agreement.
“Subscription Agreement” means a Subscription Agreement (and, if applicable, a series supplement) executed by an Investor in connection with the subscription for a Subscribed Interest in a Pledgor.
“Subsequent Investor” is defined in Section 10.05(d).
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Borrower.
“Swingline” means the revolving credit facility made available by the Swingline Lender pursuant to Section 2.07.
“Swingline Availability Period” means the period commencing on the Closing Date and ending on the earlier of (a) the date occurring twelve (12) months thereafter and (b) the Maturity Date.
“Swingline Lender” means Natixis, in its capacity as provider of Swingline Loans, or any permitted successor Swingline Lender hereunder.
“Swingline Loan” has the meaning specified in Section 2.07(a).
“Swingline Obligation” means the aggregate outstanding principal amount of the Swingline Loans. “Swingline Sublimit” means an amount equal to $0. The Swingline Sublimit is part of, and not in
addition to, the Maximum Commitment.
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“Syndicated Loan” means a Loan made pursuant to Section 2.02, including, without limitation, any Base Rate Loan, Daily SOFR Loan, Term SOFR Loan or CP Rate Loan made pursuant thereto.
“Taxes” means all present or future taxes, including, without limitation, stamp taxes (including mortgage recording taxes), levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Administrative Agent in its reasonable discretion).
“Term SOFR Loan” means a Loan that bears interest at a rate based on the Term SOFR Rate, other than pursuant to clause (iii) of the definition of “Base Rate”.
“Term SOFR Rate” means:
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR. “Trade Date” has the meaning set forth in Section 13.11(b)(i)(B).
“Transactions” means the execution, delivery and performance by the Borrower Parties (and, as applicable, other Pledgors) of this Credit Agreement and the other Loan Documents, the Borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.
“Type of Syndicated Loan” means any Syndicated Loan (i.e., a Base Rate Loan, a Daily SOFR Loan, a Term SOFR Loan or a CP Rate Loan).
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a public holiday or the equivalent for banks under the holiday schedule recommended by the Securities Industry and Financial Markets Association (“SIFMA”) for the applicable year. In the event SIFMA ceases to publish such holiday schedule or an equivalent on a regular basis, the term “U.S. Government Securities Business Day” shall be determined on any day by reference to such other regularly published holiday schedules for such date applicable to commercial banks as is determined by Administrative Agent in its reasonable discretion.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30)
of the Code.
“U.S. Tax Compliance Certificate” has the meaning specified in Section 4.01(e)(ii)(B)(3).
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“UCC” means the Uniform Commercial Code as adopted in the State of New York and any other state, which governs creation or perfection (and the effect thereof) of security interests in any collateral for the Obligations.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unfunded Commitment” means, with respect to any Investor at any time, the Capital Commitment of such Investor, minus the aggregate Capital Contributions made, or deemed made under the Governing Agreement to the applicable Pledgor by such Investor, plus Returned Capital attributed to such Investor, but “Unfunded Commitment” shall not include that portion of an Investor’s Capital Commitment that is, at such time, subject to a Pending Capital Call.
“Unreimbursed Amount” is defined in Section 2.08(c)(i).
“Unused Commitment” means the difference between (A) a Committed ▇▇▇▇▇▇’s Commitment and (B) such Committed ▇▇▇▇▇▇’s Lender Group’s outstanding Principal Obligation.
“Withholding Agent” means any Borrower Party and the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
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(ii) three (3) Business Days prior to the conversion of Base Rate Loans to another Type of Syndicated Loan or the continuation of Term SOFR Loans; and (iii) one (1) Business Day prior to the requested date of any Borrowing of Base Rate Loans or Daily SOFR Loans or of any conversion of Daily SOFR Loans or Term SOFR Loans to Base Rate Loans. Each Loan Notice shall specify:
(A) whether the Borrower Party is requesting a Borrowing, a conversion of a Daily SOFR Loan, Term SOFR Loan or Base Rate Loan to another Type of Syndicated Loan, or a continuation of Term SOFR Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Syndicated Loans to be borrowed, converted or continued; (D) if any portion of such Borrowing is not to be funded by a Conduit Lender through the issuance of Commercial Paper, whether such portion of such Borrowing is to be funded instead as a Base Rate Loan, Daily SOFR Loan or Term SOFR Loan (it being understood that if any Conduit Lender elects to fund any portion of a Loan through its Liquidity Provider, such Conduit Lender’s Funding Agent shall determine whether such portion shall bear interest based on the Daily Simple SOFR, Term SOFR Rate or the Base Rate for the period prior to the time such portion of such Loan is funded through the issuance of Commercial Paper); (E) the Type of Syndicated Loans to which any existing Daily SOFR Loans, Term SOFR Loans or Base Rate Loans are to be converted; and (F) to which account the proceeds of such Borrowing, conversion or continuation should be directed. If a Borrower Party fails to give a timely notice requesting a continuation of a Term SOFR Loan, then the applicable Loan shall be continued as a Term SOFR Loan with an Interest Period of one (1) month, and such continuation shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Term SOFR Loan. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan, it will be deemed to have specified an Interest Period of one (1) month.
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Section 11.02. Any CP Rate Loan shall automatically continue as a CP Rate Loan without any further action of any Borrower Party.
$1,000,000, and each Borrowing of, conversion to or continuation of Base Rate Loans shall be in an amount that is an integral multiple of $100,000 and not less than $500,000; provided, however, that a Base Rate Loan may be in an aggregate amount that is equal to the entire unused balance of the total Commitments or in an aggregate amount that is required for the reimbursement of a Letter of Credit under Section 2.08(c).
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the foregoing limits, and subject to the other terms and conditions hereof, the Borrower Parties may borrow under this Section 2.07, prepay under Section 3.05, and re-borrow under this Section 2.07. Each Swingline Loan shall bear interest payable in arrears on the outstanding principal amount thereof, from the applicable Borrowing date thereof to the date of payment of such Swingline Loan, at a rate per annum equal to the Base Rate plus the Applicable Margin for Base Rate Loans and shall only be made in Dollars. Immediately upon the making of a Swingline Loan, each Committed Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swingline Lender a risk participation in such Swingline Loan in an amount equal to such Committed ▇▇▇▇▇▇’s Applicable Percentage of the principal amount of such Swingline Loan.
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shall be made in writing (which written request shall be deemed to be a Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, but without regard to the minimum and multiples specified in Section 2.03 for the principal amount of Base Rate Loans (to be automatically converted to a Term SOFR Loan with a one (1) month Interest Period three (3) days thereafter), but subject to the unutilized portion of the Available Commitment and the applicable conditions set forth in Section 7. Promptly upon receipt of such Loan Notice, the Administrative Agent will give notice thereof to each Funding Agent by 1:00 p.m. at least one (1) Business Day prior to the date specified in such Loan Notice, specifying in such Loan Notice such Lender Group’s Applicable Percentage of such Swingline Loan or Loans, and the Swingline Lender shall furnish the applicable Borrower Party with a copy of the applicable Loan Notice promptly after delivering such notice to the Administrative Agent. Each (A) Conduit Lender may, and if a Conduit Lender does not, each Committed Lender in such Conduit Lender’s Lender Group shall, and (B) each Committed Lender in a Lender Group without a Conduit Lender shall, upon receipt of such Loan Notice, make an amount equal to its Lender Group’s Applicable Percentage (or, in the case of a Committed Lender, its Applicable Percentage) of the amount specified in such Loan Notice available (including for this purpose Cash Collateral and other credit support made available with respect to the applicable Swingline Loan) to the Administrative Agent in Same Day Funds for the account of the Swingline Lender not later than 1:00 p.m. on the day specified in such Loan Notice, whereupon, subject to Section 2.07(c)(ii), each Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the applicable Borrower Party in such amount. The Administrative Agent shall remit the funds so received to the Swingline Lender.
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Letters of Credit denominated in Dollars for the account of a Borrower Party, in aggregate face amounts that shall be not less than $100,000, as a Borrower Party may request (except to the extent a lesser amount is requested by such Borrower Party and agreed by Administrative Agent and the Letter of Credit Issuer), and to amend or extend Letters of Credit previously issued by it; and (2) to honor drawings under the Letters of Credit; and
(B) Committed Lenders severally agree to participate in Letters of Credit issued for the account of a Borrower Party and any drawings thereunder; provided, however that after giving effect to any L/C Credit Extension with respect to any Letter of Credit: (I) the Principal Obligation will not exceed the Available Commitment; (II) the Letter of Credit Liability will not exceed the Letter of Credit Sublimit; (III) the aggregate Principal Obligation of the Lenders that are members of any Lender Group will not exceed the Lender Group Limit of such Lender Group; and (IV) the Principal Obligation of any Committed Lender will not exceed such ▇▇▇▇▇▇’s Commitment (minus any amounts funded in respect of a Loan hereunder (but not used to fund such Loan and accordingly not included in the Principal Obligation) by any such Committed Lender as a Liquidity Provider under a Liquidity Agreement). Within the foregoing limits, and subject to the terms and conditions hereof, a Borrower Party’s ability to obtain Letters of Credit shall be fully revolving, and accordingly a Borrower Party may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired (without any pending drawing) or that have been drawn upon and reimbursed. The Letter of Credit Issuer shall have the right to approve the form of Letter of Credit requested.
(A) subject to Section 2.08(b)(iii), the expiry date of such Letter of Credit would occur more than twelve (12) months after the date of issuance or last extension, unless the Letter of Credit Issuer of such Letter of Credit have approved such expiry date in its sole discretion; or (B) the expiry date of such Letter of Credit would occur after the Stated Maturity Date, without the consent of the Letter of Credit Issuer of such Letter of Credit (in its sole discretion), in which case any such Letter of Credit shall be Cash Collateralized on the Letter of Credit Collateralization Date; provided, however, that the expiry date of such Letter of Credit shall not occur more than twelve (12) months after the Stated Maturity Date.
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Dollars;
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Credit (or such later date and time as Administrative Agent and the Letter of Credit Issuer may agree in a particular instance in their sole discretion). In the case of a request for an initial issuance of a Letter of Credit, such Request for Credit Extension shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount thereof;
(C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; and (G) such other matters as the Letter of Credit Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, the related Request for Credit Extension shall specify in form and detail satisfactory to the Letter of Credit Issuer: (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as the Letter of Credit Issuer may reasonably require. Additionally, the applicable Borrower Party shall furnish to the Letter of Credit Issuer and Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of Credit Issuer or Administrative Agent may reasonably require. Each Request for Credit Extension submitted by a Borrower Party shall be deemed to be a representation and warranty that the conditions specified in Section 7.02(a) and (b) have been satisfied on and as of the date of the issuance or amendment of any Letter of Credit.
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(B) the occurrence or continuance of a Default or Event of Default; or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Committed Lender’s obligation to make Base Rate Loans pursuant to this Section 2.08(c) is subject to the applicable conditions set forth in Section 7 (other than delivery of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of any Borrower Party to reimburse the Letter of Credit Issuer for the amount of any payment made by the Letter of Credit Issuer under any Letter of Credit, together with interest as provided herein.
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thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Letter of Credit Issuer at a rate per annum equal to the Federal Funds Rate from time to time in effect. A certificate of the Letter of Credit Issuer submitted to any Committed Lender (through Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.
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transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;
Each Borrower Party shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower Party’s instructions or other irregularity, such Borrower Party will promptly notify the Letter of Credit Issuer. Each Borrower Party shall be conclusively deemed to have waived any such claim against the Letter of Credit Issuer and its correspondents unless such notice is given as aforesaid.
(i) any action taken or omitted in connection herewith at the request or with the approval of the Committed Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence, bad faith or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or related Request for Credit Extension. Each Borrower Party hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude each Borrower Party’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the Letter of Credit Issuer, any Related Party, nor any of the respective correspondents, participants or assignees of the Letter of Credit Issuer, shall be liable or responsible for any of the matters described in clauses (i) through (vii) of Section 2.08(e); provided, however, that anything in such clauses to the contrary notwithstanding, a Borrower Party may have a claim against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable to such Borrower Party, to the extent, but only to the extent, of any direct, as opposed to
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consequential or exemplary, damages suffered by such Borrower Party which such Borrower Party proves were caused by the Letter of Credit Issuer’s willful misconduct, bad faith or gross negligence or the Letter of Credit Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The Letter of Credit Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (known as SWIFT) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
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be used, to any such Borrower Party’s actual knowledge to, directly or indirectly, either (x) purchase any asset or securities from, or securities issued by, any Lender’s “affiliate” as such term is defined in 12 C.F.R. Part 223 (such “affiliate”, a “Lender Affiliate”), (y) invest in any fund advised by a Lender or Lender Affiliate thereof or (z) lend to any Lender Affiliate. None of the Lenders, Agents, or Administrative Agent shall have any liability, obligation, or responsibility whatsoever with respect to any Borrower Party’s use of the proceeds of the Loans or the Letters of Credit, and none of the Letter of Credit Issuer, Lenders, Agents, or Administrative Agent shall be obligated to determine whether or not any Borrower Party’s use of the proceeds of the Loans or the Letters of Credit are for purposes permitted above. Nothing, including, without limitation, any Borrowing, any continuation or conversion thereof in accordance with the terms of this Credit Agreement, or any issuance of any Letter of Credit, or acceptance of any other document or instrument, shall be construed as a representation or warranty, express or implied, to any party by any Agent, the Letter of Credit Issuer, any Lender or Administrative Agent as to whether any investment by a Borrower Party is permitted by the terms of the Governing Agreement or the Constituent Documents of any Borrower Party. Each Borrower Party agrees to respond promptly to any reasonably requests for information related to its use of proceeds from any Borrowing to the extent required by any Lender in connection with such ▇▇▇▇▇▇’s determination of its compliance with Section 23A of the Federal Reserve Act (12 U.S.C. § 371c) and the Federal Reserve Board’s Regulation W (12 C.F.R. Part 223). In connection with each Loan Notice hereunder, the requesting Borrower Party shall be deemed to have represented and warranted to Administrative Agent on the date of such Borrowing that, to its actual knowledge, as of the date of the requested Borrowing, the proceeds of such Borrowing will not be used by such Borrower Party to, directly or indirectly, either (x) purchase any asset or securities from, or securities issued by, any Lender Affiliate, (y) invest in any fund advised by a Lender or Lender Affiliate thereof or (z) lend to any Lender Affiliate.
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accordance with their respective Repayment Percentages (without giving effect to the Letter of Credit Liability held by each Defaulting Lender), with the balance of such fee, if any, payable to the Letter of Credit Issuer for its own account. Such fee shall be: (i) due and payable in quarterly installments in arrears on the first Business Day of each calendar quarter for the preceding calendar quarter, commencing on the first such date to occur after the issuance of any Letter of Credit, on the Maturity Date, and thereafter (if applicable) on demand; and (ii) computed quarterly in arrears. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.05. If there is any change in the Applicable Margin for Letters of Credit during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Margin for Letters of Credit separately for each period during such quarter that such Applicable Margin for Letters of Credit was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, such fee shall accrue at a rate equal to the Applicable Margin for Letters of Credit plus two percent (2%).
(ii) as of the Letter of Credit Collateralization Date, any Letter of Credit Liability for any reason remains outstanding; (iii) the applicable Borrower Party shall be required to provide Cash Collateral pursuant to Section 11.02; or (iv) there shall exist a Defaulting Lender; Borrower shall immediately (in the case of clause (iii) above) or within one (1) Business Day (in all other cases)
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following any request by Administrative Agent or the Letter of Credit Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by the Defaulting Lender). In addition,
(x) Section 3.04 sets forth certain additional requirements for the delivery of Cash Collateral or other credit support in certain circumstances, and (y) Section 2.07 contemplates the delivery of Cash Collateral or other credit support in connection with the issuance of Swingline Loans.
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elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 13.11(b)(vii))); or (ii) the good faith determination by Administrative Agent and the Letter of Credit Issuer that there exists excess Cash Collateral; provided, however: (x) that Cash Collateral furnished by or on behalf of a Borrower Party shall not be released during the continuance of a Default or Event of Default (and following application as provided in this Section 2.14 may be otherwise applied in accordance with Section 11.05); and
(y) the Person providing Cash Collateral and the Letter of Credit Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.
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issued at a time when the conditions set forth in Section 7.02 were satisfied or waived, such payment shall be applied solely to pay the Syndicated Loans of, and Letter of Credit Liability owed to, all Lender Groups of Non-Defaulting Lenders in accordance with their respective Repayment Percentage (without giving effect to the Principal Obligation of such Defaulting Lender) prior to being applied to the payment of any Syndicated Loans of, or Letter of Credit Liability owed to, such Defaulting Lender until such time as all Syndicated Loans and funded and unfunded participations in Letter of Credit Liability and Swingline Loans are held by the Committed Lenders in accordance with each such Committed Lender’s Repayment Percentage (without giving effect to the Principal Obligation held by such Defaulting Lender) without giving effect to Section 2.15(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.15(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
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time); and (y) such reallocation does not cause (i) the aggregate Revolving Credit Exposure and Letter of Credit Liability of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment or (ii) the Revolving Credit Exposure and Letter of Credit Liability of any Lender Group to exceed the aggregate Commitments of its Non-Defaulting Lenders. Subject to Section 13.28, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Committed Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
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Section 2.17(a)(i), Administrative Agent agrees that:
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form heretofore provided, to any Committed Lender or Conduit Lender and to any Assignee of such Lender in accordance with Section 13.12, in substitution for the Notes previously issued by the Borrower to the Funding Agent or other party, as appropriate and in accordance herewith for the affected Lender, and such previously issued Notes shall be returned to the Borrower marked “cancelled”.
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recoupment or setoff by such Borrower Party. Except as otherwise expressly provided herein, all payments by the Borrower Parties hereunder shall be made to Administrative Agent, for the account of the respective Lenders and Lender Groups to which such payment is owed, at Administrative Agent’s Office in Dollars and in Same Day Funds not later than 1:00 p.m. on the date specified herein. Without limiting the generality of the foregoing, Administrative Agent may require that any payments due under this Credit Agreement be made in the United States. Funds received by Administrative Agent after 1:00 p.m. shall be treated for all purposes as having been received by Administrative Agent on the first Business Day next following receipt of such funds and any applicable interest or fees shall continue to accrue. Except as provided in Section 13.11(c) hereof, and except for Swingline Loans repaid to the Swingline Lender before the provisions of Section 2.07(d)(i) become applicable, each Lender shall be entitled to receive its applicable share of each payment received by Administrative Agent hereunder for the account of Lenders on the Obligations. Each payment received by Administrative Agent hereunder for the account of a Lender shall be promptly distributed by Administrative Agent to the appropriate Funding Agent. If any payment to be made by any Borrower Party shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. Each Funding Agent agrees to use reasonable efforts to apply the amounts received in respect of such repayments to the outstanding Loans of the Lenders members of its Lender Group so as to minimize broken funding payments payable pursuant to Section 4.05.
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Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to such Borrower Party the amount of such interest paid by such Borrower Party for such period. If such Committed Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Committed Lender’s Syndicated Loan included in such Borrowing as of the date of such Borrowing. Any payment by a Borrower Party shall be without prejudice to any claim such Borrower Party may have against a Committed Lender that shall have failed to make such payment to Administrative Agent.
A notice of Administrative Agent to any Committed Lender or any Borrower Party with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
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necessary for each Pledgor to issue Capital Call Notices to fund such Required Payment (and each Pledgor shall issue such Capital Call Notices during such time and shall pay such Required Payment promptly after the Capital Contributions relating to such Capital Call Notice are received), together with all funds then on deposit in the Collateral Account equal the Required Payment to be paid pursuant to this Section 3.04(a).
(b) with respect to any other Loan, such Prepayment Notice must be received by Administrative Agent not later than: (A) 11:00 a.m. three (3) Business Days prior to any date of prepayment of Term SOFR Loans, Daily SOFR Loans or CP Rate Loans; and (B) 11:00 a.m. one (1) Business Day prior to any date of prepayment of Base Rate Loans; and (c) any prepayment of Loans shall be in a minimum principal amount of $1,000,000 or a whole multiple of $100,000 in excess thereof; or, if less, the entire principal amount thereof then outstanding. Each such Prepayment Notice shall specify the date (which shall be a Business Day) and amount of such prepayment, if applicable, the Type(s) of Syndicated Loans to be prepaid. Administrative Agent will promptly notify each Funding Agent of its receipt of each such Prepayment Notice, and of the amount of its Lender Group’s Repayment Percentage of such prepayment. If such Prepayment Notice is given by a Borrower Party, such Borrower Party shall make such prepayment and the payment amount specified in such Prepayment Notice shall be due and payable on the date specified therein. With respect to any Loan prepaid pursuant to this Section 3.05, all accrued interest thereon shall be paid in accordance with Section 3.02(b) and any additional amounts required pursuant to Section 4 with respect thereto shall be promptly paid following receipt of an accurate and correct invoice for such amounts. Subject to Section 2.15, each such prepayment shall be applied to the Principal Obligation held by each Lender in accordance with its applicable Repayment Percentage.
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amount of such excess. The Administrative Agent will promptly notify the Committed Lenders of any such notice of termination or reduction of the aggregate Commitments. Any reduction of the aggregate Commitments shall be applied to the Commitment of each Committed Lender according to its pro rata share thereof. All fees accrued until the effective date of any termination of the aggregate Commitments shall be paid on the effective date of such termination.
Taxes.
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applicable Withholding Agent, as required by such Law, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection (e) below; (B) the applicable Withholding Agent, to the extent required by such Law, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws; and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Borrower Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions or withholdings of Indemnified Taxes applicable to additional sums payable under this Section 4.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
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may be, under this Credit Agreement or any other Loan Document against any amount due to the Administrative Agent under this Section 4.01(c)(ii).
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thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:
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Recipient becomes a Lender under this Credit Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), 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 Party or Administrative Agent to determine the withholding or deduction required to be made; and
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which any Lender is a Subsidiary, and such circumstance causes the applicable Lender to be in violation of Regulation O, Borrower, Administrative Agent and such Lender shall cooperate in good faith to find a solution or remedy that would permit the applicable Lender to be in compliance with Regulation O, including, if necessary, such Lender assigning its Commitment to a new Lender in accordance with Section 13.11(b) hereof (provided that, such Lender shall not be required to accept less than the full amount of the Obligations due and owing to such Lender on the date of such assignment).
(I) Borrower may revoke any pending request for a borrowing of or conversion to Daily SOFR Loans or Term SOFR Loans (to the extent of the affected Loans or Interest Periods) or, failing that, Borrower will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and
(II) any outstanding affected Daily SOFR Loans or Term SOFR Loans, to the extent affected, will be converted into Base Rate Loans immediately, or with respect to Term SOFR Loans, at the end of the applicable Interest Period. Upon any such conversion, Borrower shall also pay accrued interest on the amount so prepaid or converted together with any additional amounts required to be paid pursuant to Section 4.05. Subject to Section 4.03(b), if Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Term SOFR Rate cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by Administrative Agent without reference to clause (iii) of the definition of “Base Rate” until Administrative Agent revokes such determination.
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Transition Event will become effective at 5:00 p.m. (New York City time) on the fifth (5th) Business Day after Administrative Agent has posted such proposed amendment to all affected Lenders and Borrower so long as Administrative Agent has not received, by such time, written notice of objection to such amendment from Lenders comprising the Required Lenders. No replacement of a Benchmark with a Benchmark Replacement pursuant to this Section 4.03(b) will occur prior to the applicable Benchmark Transition Start Date.
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and the result of any of the foregoing shall be to increase the cost to such Funding Party of making, converting, continuing, funding, or maintaining any Loan (or of maintaining its obligation to make or fund any such Loan or to advance funds under a Liquidity Agreement), or to increase the cost to such Funding Party of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Funding Party (whether of principal, interest or any other amount) then, upon request of such Funding Party (but in no event later than ten (10) Business Days after receipt of a certificate provided under subsection (c) of this Section 4.04), the applicable Borrower Party will pay to such Funding Party such additional amount or amounts as will compensate such Funding Party for such additional costs incurred or reduction suffered; provided, however, that if funds are not available to such Borrower Party in the Collateral Account, to the extent that it is necessary for each Pledgor to issue Capital Call Notices to fund such required compensation, such payment shall be made within twenty (20) Business Days after receipt of a certificate provided under subsection (c) of this Section 4.04.
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Party or such Funding Party’s holding company could have achieved but for such Change in Law (taking into consideration such Funding Party’s policies and the policies of such Funding Party’s holding company with respect to capital adequacy and such Funding Party’s desired return on capital), then from time to time the applicable Borrower Party will pay to such Funding Party such additional amount or amounts as will compensate such Funding Party or such Funding Party’s holding company for any such reduction suffered.
including any foreign exchange losses and any loss or expense (but excluding any loss of anticipated profits) arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained or
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from the performance of any foreign exchange contract. Each applicable Borrower Party shall also pay the customary administrative fees charged by such Lender or Liquidity Provider, as applicable, in connection with the foregoing.
In the case of a CP Rate Loan, the actual out-of-pocket loss to any Conduit Lender attributable to any such event shall be deemed to include an amount determined by such Conduit Lender to be equal to the excess, if any, of (i) the interest that would have accrued on the principal amount of such CP Rate Loan from the date of such payment, conversion, failure or assignment to the last day of the then current Interest Period for such Loan, if the interest rate payable on such amount were calculated by reference to the CP Rate for such Interest Period, over (ii) the sum of
(x) to the extent all or a portion of such principal amount remains outstanding hereunder, the amount of interest actually accrued during the remainder of such Interest Period on such principal amount, and (y) to the extent such principal amount does not remain outstanding hereunder, the income, if any, actually received during the remainder of such period by the Conduit Lender from investing such portion of such principal amount.
With respect to any Lender that is not a bank, the foregoing calculation shall be made using the rates that would be applicable to the applicable Funding Agent as a proxy for such Lender. A certificate of a Funding Party setting forth the amount or amounts necessary to compensate such Funding Party or its holding company, as the case may be, as specified in this Section 4.05 and delivered to a Borrower Party shall be conclusive absent manifest error.
(i) would eliminate or reduce amounts payable pursuant to Section 4.01 or Section 4.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Sections 4.02 or 4.03, as applicable; and (ii) in each case, would not subject such Funding Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Funding Party. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Funding Party in connection with any such designation or assignment.
(iv) any Committed Lender does not consent to an amendment or waiver under Section 13.01 or
(v) any Committed Lender becomes a Defaulting Lender, Borrower may, at its sole cost and effort, replace such Funding Party’s Lender Group in accordance with Section 13.13; provided, however, that a Lender Group shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Funding Party or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
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(ii) each Pledgor that is an Intermediate Entity and its General Partner, to the extent of their respective interests therein, will grant to another Pledgor for the ultimate benefit of the Administrative Agent, for the benefit of Secured Parties, in each case of the foregoing clauses (i) and (ii), pursuant to a Security Agreement, an exclusive, perfected, first priority (subject to Permitted Liens) security interest and Lien in and to the Capital Calls, Capital Commitments, and Capital Contributions, including, without limitation (but subject to Section 11.03), any rights to make Capital Calls, receive payment of Capital Commitments and enforce the payment thereof pursuant to the applicable Governing Agreement and to enforce the payment thereof or any guarantees thereof, now existing or hereafter arising (the collateral in clauses (a) and (b) of this Section 5.01 being (except as otherwise set forth below, collective, the “Collateral”)). In order to secure further the payment and performance of the Obligations and to effect and facilitate Secured Parties’ rights of setoff, each Pledgor hereby irrevocably appoints Administrative Agent or another Pledgor (for the ultimate benefit of the Administrative Agent, for the benefit of the Secured Parties), as applicable, as subscription agent and the sole party entitled in the name of such Pledgor upon the occurrence and during the continuance of an Event of Default (but subject to Section 11.03), to make any Capital Calls upon the Investors pursuant to (and to the extent permitted by) the terms of the applicable Subscription Agreement and the Governing Agreement.
Notwithstanding the foregoing, the term “Collateral” shall not include (a) any ERISA Investor Excluded Items if such provision of such ERISA Investor Excluded Item or the exercise of remedies with respect to such ERISA Investor Excluded Item would be a prohibited transaction for purposes of Section 406 of ERISA, Section 4975 of the Internal Revenue Code or other applicable law, (b) the Capital Commitments or any assets, interests, rights or obligations of the SOX Insiders, if any, unless so elected by the applicable Pledgor in its discretion, (c) any Portfolio Assets and (d) any funds properly withdrawn or transferred from the Collateral Account to the extent used for any purpose permitted under the Governing Agreement and this Credit Agreement, and the proceeds of such withdrawn funds.
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paid by any Investor pursuant to a Capital Call to be deposited, credited or otherwise included in any account other than the Collateral Accounts.
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Any Liens, security interests, judgment liens, charges, or other encumbrances upon any Person’s assets securing payment of Subordinated Claims, including, but not limited to, any Liens or security interests on an Investor’s Subscribed Interest or Debt Commitment in any Pledgor, will be and remain inferior and subordinate in right of payment and of security to any Liens, security interests, judgment liens, charges, or other encumbrances upon an Investor’s assets securing such Investor’s obligations and liabilities to Secured Parties pursuant to any of the Collateral Documents executed by such Person, regardless of whether such encumbrances in favor of any Borrower Party, other Pledgor, General Partner or Secured Parties presently exist or are hereafter created or attach. Without the prior written consent of Administrative Agent, when an Event of Default has occurred and is continuing, no Borrower Party, other Pledgor nor General Partner may: (a) exercise or enforce any creditor’s or partnership right it may have against an Investor; (b) foreclose, repossess, sequester, or otherwise take steps or institute any action or proceedings (judicial or otherwise, including without limitation, the commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief, or insolvency proceeding) to enforce any Liens, mortgages, deeds of trust, security interest, collateral rights, judgments or other encumbrances on assets of such Investor held by such Person; or (c) exercise any rights or remedies against an Investor under the Constituent Documents of such Person or the Subscription Agreements, provided that any action taken by Administrative Agent or the other Secured Parties in any Borrower Party’sor other Pledgor’s name, or any action taken by any Borrower Party or other Pledgor that is required under any Loan Document or to comply with any Loan Document, will not be a violation of this Section 5.03.
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(a) the renewal, extension, modification or alteration of any Guaranteed Debt or any related document or instrument; (b) any forbearance or compromise granted to any Qualified Borrower by any Secured Party;
(c) the insolvency, bankruptcy, liquidation or dissolution of any Qualified Borrower; (d) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Debt; (e) the full or partial release of any Qualified Borrower or any other obligor; (f) the release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral for the Guaranteed Debt; (g) the failure of any Secured Party properly to obtain, perfect or preserve any security interest or lien in any such collateral; (h) the failure of any Secured Party to exercise diligence, commercial reasonableness or reasonable care in the preservation, enforcement or sale of any such collateral; and (i) any other act or omission of any Secured Party or any Qualified Borrower which would otherwise constitute or create a legal or equitable defense in favor of Borrower.
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reorganization, or dissolution of any Qualified Borrower, in each case as though such payment had not been made.
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and warranties contained in Section 8 and the other Loan Documents made by such Borrower Party and other Pledgors are true and correct in all material respects as of such date; and (B) stating that no event has occurred and is continuing, or would result from the Credit Extension, which constitutes an Event of Default or, to its knowledge, a Default;
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Without limiting the generality of the provisions of the last paragraph of Section 12.03, for purposes of determining compliance with the conditions specified in this Section 7.01, each Lender that has signed this Credit Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Each Request for Credit Extension (other than a Loan Notice requesting only a conversion of Syndicated Loans to the other Type of Syndicated Loan, or a continuation of Term SOFR Loans) submitted by a Borrower Party shall be deemed to be a representation and warranty that the conditions specified in Sections 7.02(a) and 7.02(b) have been satisfied on and as of the date of the applicable Credit Extension.
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KYC Compliance), and the percentage of such Qualified Borrower owned by such Person,
(ii) the name of each director (or equivalent) of such Qualified Borrower, (iii) to the extent available, the most recent financial statements for such Qualified Borrower or the most recent annual report of such Qualified Borrower, and (iv) any other information pertaining to such Qualified Borrower as reasonably requested by any Lender with reasonable advance notice; and
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that opinion delivered pursuant to Section 7.01(a)(viii) with respect to issues relating to Borrowers, and substantially in a form reasonably acceptable to Administrative Agent;
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location since its formation; (b) the jurisdiction of formation of each Borrower Party, other Pledgor and General Partner is correctly listed on Schedule 1.01A hereto (as such Schedule 1.01A may be amended, restated, supplemented or otherwise modified from time to time) and each Borrower Party, other Pledgor and General Partner is not organized under the laws of any other jurisdiction.
(i) any non-compliance with or violation of the requirements of any Environmental Law by such Person, or any permit issued under any Environmental Law to such Person; or (ii) the Release or threatened Release of any Hazardous Material into the environment; and (b) to the knowledge of a Responsible Officer, has threatened or actual liability in connection with the Release or threatened Release of any Hazardous Material into the environment which would individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
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would or could materially and adversely affect the obligations of such Investor to make Capital Contributions and fund Capital Calls in accordance with the Subscription Agreements (and any related Side Letters between the Investors and such Pledgor (or its General Partner) which have been provided to the Administrative Agent) or the Governing Agreement.
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disclosure would entitle any Investor to void any material provision of the applicable Governing Agreement as it relates to such Investor as result of any breach by the General Partner of such certification or inaccurate representation. No Pledgor has any reason to believe that any Investor is entitled to void any applicable Governing Agreement as it relates to such Investor as a result of any breach by the General Partner of such certifications.
(i) stating that each such Responsible Officer is familiar with the terms and provisions of the Loan Documents, and has made, or caused to be made under his or her supervision, a detailed review of the transactions and condition (financial or otherwise) of Pledgor Parties during the period covered by such Compliance Certificate; (ii) certifying that such financial statements fairly present in all material respects the financial condition and the results of operations of the Pledgors and their consolidated subsidiaries on the dates and for the periods indicated, on the basis of GAAP, subject, in the case of interim financial statements, to normally recurring year-end adjustments and absence of footnotes; (iii) confirming compliance with the covenants set forth in Section 10.10, and containing the calculations evidencing such compliance; (iv) stating whether any Event of Default or, to the best of the such Person’s knowledge, Default exists on the date of such certificate and, if any Event of Default or Default then exists, setting forth the details thereof and the action which the applicable Person is taking or propose to take with respect thereto; (v) specifying known changes, if any, in the name of any Investor or in the identity of any Investor, by merger or otherwise; (vi) listing all Subsequent Investors under Section 10.05(d)(z), if any, and any
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Subsequent Investors that have not satisfied the conditions of Section 10.05(d); (vii) including a report, as prepared for Investors in connection with such financial statements (including, as the case may be, information regarding Portfolio Assets); and (viii) listing Borrowing Base Investors which, to the knowledge of the Pledgors have been subject to an Exclusion Event and the nature of such Exclusion Event;
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Person, such Person shall deliver to Administrative Agent an Operating Company Certificate.
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applicable anti-corruption legislation in other jurisdictions and with all applicable Sanctions, and maintains policies and procedures designed to ensure continued compliance with such laws and Sanctions.
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“most favored nations” clauses in any Side Letters (provided that in the case of this subclause (ii), the Pledgors will provide prior written notice to the Administrative Agent); (iii) to extend the capital raising period; (iv) to reflect transfers of interests permitted by this Credit Agreement; and (v) to facilitate the formation, operation and qualification of the Borrower as a RIC or as “business development company” under the Investment Company Act (to the extent not in conflict with the restrictions hereunder or otherwise materially adverse to the Lenders); provided that the applicable Pledgor(s) shall provide a copy of any such amendment which does not require the consent of the Administrative Agent or the Lenders pursuant to the terms hereof.
(z) in the case of a non-Borrowing Base Investor with a Subscribed Interest or Debt Commitment of less than $3,000,000, concurrently with the delivery of financial statements pursuant to Section 9.01(a) and 9.01(b) in the accompanying Compliance Certificate. Each Pledgor shall require that, except at such times as otherwise provided for herein, (i) any Person admitted as a substitute or new Investor (whether due to a transfer by an existing Investor or otherwise) (a “Subsequent Investor”) shall provide Administrative Agent with a copy of such Investor’s duly executed Subscription Agreement and Side Letter, if any; and (ii) any existing Investor that is a transferee from another Investor shall provide the applicable transfer documentation with respect to any increase in its Subscribed Interest or Debt Commitment relating to such transfer.
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(iii) a Default under Sections 11.01(a), 11.01(g) or 11.01(h) exists; provided, however, that so long as no Event of Default under Sections 11.01(a), 11.01(g) or 11.01(h) exists, Borrower shall, if applicable, have the right to pay Permitted RIC Distributions.
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any Person (including any Lender or Administrative Agent) of any Sanctions or Anti-corruption Laws, and no Borrower Party or any other Pledgor shall breach the representations and warranties set forth in Section 8.24.
(i) written notice thereof if delivered to the Borrower by Administrative Agent or (ii) a Responsible Officer of the Borrower obtains actual knowledge thereof;
10.07, 10.08, 10.09, 10.10 or 10.12), or of the covenants or agreements of any Borrower Party, other Pledgor or General Partner contained in any other Loan Documents executed by such Person, and such default shall continue uncured to the satisfaction of Administrative Agent for a period of thirty (30) days after written notice thereof has been given by Administrative Agent to Borrower provided that such thirty (30)-day cure period shall not apply respecting covenants of Borrower Parties relating to statements, certificates and notices to be given by a Borrower Party, but a fifteen (15)-day grace period (or, in the case of Section 10.05(d) (other than clause (x) thereof), a five (5)-day grace period) shall apply;
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10.06, 10.07, 10.08, 10.09, 10.10 or 10.12;
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disaffirms the provisions of the Governing Agreement, or fails to make a contribution to the capital of Pledgor when required; or
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to the Maturity Date, make a Capital Call on the Unfunded Commitments of the Investors to repay the outstanding Obligations within the period ending fifteen (15) Business Days from the end of the initial three (3) Business Day notice period, sufficient (together with amounts on deposit in or credited to the Collateral Account) to cure each such Event of Default (to the extent such Event of Default may be cured via repayment) or repay the outstanding Obligations (and Cash Collateralize Letter of Credit Liability) in full, as applicable, then Administrative Agent, the Lenders and other Secured Parties may not exercise any such remedy until the expiration of the period ending fifteen (15) Business Days from the end of the initial three (3) Business Day notice period, provided that nothing in this Section 11.03(a) shall prohibit Administrative Agent, any Lender or other Secured Party from (i) asserting exclusive control of the Collateral Account, (ii) taking any such actions as may be required to protect their rights in a bankruptcy proceeding, or (iii) after the application of the proceeds received in response to any such Capital Call, in the event such Event of Default or another Event of Default is continuing, accelerating the Obligations or terminating the Commitments; provided, further, that to the extent that (A) the General Partner does not make such Capital Call or (B) the application of the proceeds of any such Capital Call are not sufficient (together with amounts on deposit in or credited to the Collateral Account) to cure such Event of Default or repay the outstanding Obligations (and Cash Collateralize Letter of Credit Liability) in full, as applicable, then, so long as such Event of Default shall be continuing, the Administrative Agent may, in accordance with the terms hereof, issue a Capital Call in an amount sufficient (together with amounts on deposit in or credited to the Collateral Account) to cure such Event of Default (to the extent such Event of Default may be cured via repayment) or repay the outstanding Obligations (and Cash Collateralize Letter of Credit Liability) in full, as applicable, or exercise any other remedy with respect to the Collateral.
(i) issuing funding notices in the name of any Borrower Party or other Pledgor or (ii) applying funds paid by such ERISA Investor or Plan into the Collateral Account (which shall remain in the name of the applicable Pledgor) to the payment of the Obligations), under the Governing Agreement or Subscription Agreement, as applicable to the extent it has knowledge that a “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code) would arise therefrom.
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any reasonable amount expended by Administrative Agent in such performance or attempted performance to Administrative Agent at Administrative Agent’s Office, together with interest thereon at the Default Rate from the date of such expenditure until paid. Notwithstanding the foregoing, it is expressly understood that neither any of the Agents nor any of the other Secured Parties assume any liability or responsibility for the performance of any duties of any Borrower Party, or any related Person hereunder or under any of the other Loan Documents or other control over the management and affairs of any Borrower Party, or any related Person, nor by any such action shall any of the Agents or other Secured Parties be deemed to create a partnership arrangement with any Borrower Party or any related Person.
Subject to Sections 2.08 and 2.15, amount used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause (e) above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.
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beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
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and until notice describing the same is given in writing to such Agent by ▇▇▇▇▇▇▇▇ or a Lender, Swingline Lender or the Letter of Credit Issuer.
(i) any statement, warranty or representation made in or in connection with this Credit Agreement or any other Loan Document; (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith; (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default; (iv) the validity, enforceability, effectiveness or genuineness of this Credit Agreement, any other Loan Document or any other agreement, instrument or document; or (v) the satisfaction of any condition set forth in Section 7 or elsewhere herein, other than, in the case of Administrative Agent, to confirm receipt of items expressly required to be delivered to it.
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Lender, Swingline Lender or the Letter of Credit Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Administrative Agent may consult with legal counsel (who may be counsel for ▇▇▇▇▇▇▇▇), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
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acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other than as provided in Section 4.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 12.06). The fees payable by ▇▇▇▇▇▇▇▇ to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Section 12.06 and Section 13.06 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
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any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party, Swingline Lender and the Letter of Credit Issuer to make such payments to Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Secured Parties, Swingline Lender and the Letter of Credit Issuer, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent hereunder.
Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender, Swingline Lender or the Letter of Credit Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Secured Party or to authorize Administrative Agent to vote in respect of the claim of any Secured Party in any such proceeding.
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reasonable detail) and that it is so notifying the Administrative Agent pursuant to this
Section 12.11(b).
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(xli) amend the definition of “Under Common Control”, “Control” or “Controlled By”;
(xlii) amend the definition of “Under Common Control”; (xliii) amend the definition of “Unfunded Commitment”;
(xliv) alter the provisions of Section 3.04 that relate to the prepayment of Loans;
(xlv) consent to the assignment or transfer by a Pledgor of any of its rights and obligations under (or in respect of) the Loan Documents;
(xlvi) amend, waive, or in any way modify or suspend any provision regarding application of payments of the Obligations to Lenders;
(xlvii) amend, waive or otherwise modify in any way the terms of this
Section 13.01;
(xlviii) alter the pro rata or ratable treatment of the Lenders under this Credit Agreement or the obligations of the Lender Groups to obtain participations in Swingline Loans in accordance with the Lender Groups’ Applicable Percentage in accordance with Section 2.07; or
(xlix) release Borrower from its obligations under Section 6 with respect to any Qualified Borrower.
Notwithstanding the above: (A) no provisions of Section 12 may be amended or modified without the consent of Administrative Agent; (B) no provisions of Section 2.08 may be amended or modified without the consent of the Letter of Credit Issuer; (C) no provisions of Section 2.07 may be amended or modified without the consent of the Swingline Lender; and (D) Sections 9 and 10 specify the requirements for waivers of the affirmative covenants and negative covenants listed therein, and any amendment to any provision of Section 9 or 10 shall require the consent of the Lenders that are specified therein as required for a waiver thereof.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender; and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender.
Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances as set forth above: (1) each Lender is entitled to vote as such ▇▇▇▇▇▇ sees fit on any reorganization plan that affects the Loans or the Letters of Credit, and each Lender acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set forth herein; and
(2) the Required Lenders may consent to allow a Borrower Party to use cash collateral in the context of a bankruptcy or insolvency proceeding. Administrative Agent may, after consultation with ▇▇▇▇▇▇▇▇, agree to the modification of any term of this Credit Agreement or any other Loan Document to correct any
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printing, stenographic or clerical errors or omissions that are inconsistent with the terms hereof.
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Administrative Agent agrees that it will promptly notify the Funding Agents (who will in turn promptly notify the Lenders in its Lender Group) of any proposed modification or amendment to any Loan Document, and deliver drafts of such proposed modification or amendment to the Funding Agents (who will in turn promptly deliver to the Lenders in its Lender Group), prior to the effectiveness of such proposed modification or amendment. If Administrative Agent shall request the consent of any Lender to any amendment, change, waiver, discharge, termination, consent or exercise of rights covered by this Credit Agreement, and such Lender shall respond to such request within ten (10) Business Days.
(b) such Defaulting Lender shall provide promptly to Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, the Letter of Credit Issuer, Swingline Lender and their respective Affiliates under this Section 13.02 are in addition to other rights and remedies (including other rights of setoff) that such Lender, the Letter of Credit Issuer, Swingline Lender or their respective Affiliates may have. Each Lender, Swingline Lender and the Letter of Credit Issuer agrees to notify the applicable Borrower Party and Administrative Agent promptly after any such setoff and application made by such Person, provided, however, that the failure to give such notice shall not affect the validity of such setoff and application.
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(x) any payment made by or on behalf of any Borrower Party pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender); or (y) the application of Cash Collateral provided for in Section 2.13; or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Syndicated Loans or subparticipations in the Letter of Credit Liability or Swingline Loans to any assignee or participant, other than an assignment to Borrower (as to which the provisions of this Section 13.03 shall apply).
Each Borrower Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Committed Lender or any Lender Group acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower Party rights of setoff and counterclaim with respect to such participation as fully as if such Committed Lender were a direct creditor of such Borrower Party in the amount of such participation.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Borrower Parties or any of them shall be vested exclusively in, and all actions and proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, Administrative Agent in accordance with Section 11.02 for the benefit of all Lenders, Swingline Lender and Letter of Credit Issuer; provided, however, that the foregoing shall not prohibit: (a) Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents; (b) the Letter of Credit Issuer or Swingline Lender
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from exercising the rights and remedies that inure to its benefit (solely in its capacity as Letter of Credit Issuer or Swingline Lender, as the case may be) hereunder and under the other Loan Documents; (c) any Lender from exercising setoff rights in accordance with Section 13.02 (subject to the terms of Section 11.03 and Section 13.03); or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Borrower Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents; then: (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 11.02; and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section 13.03, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other Borrower Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses: (A) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee; or (B) result from a claim brought by Borrower or any other Borrower Party against an Indemnitee for breach of such Indemnitee’s obligations hereunder or under any other Loan Document, if Borrower or such Borrower Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction; or (C) result from any settlement by any Indemnitee of any claim or threatened claim that is otherwise subject to indemnification under this Section 13.06(b) unless Borrower has consented in writing to such settlement, which consent shall not be unreasonably withheld, conditioned or delayed; or (D) to the extent resulting from any dispute among Indemnitees (or their Related Parties); provided that the Administrative Agent to the extent fulfilling its role as an agent under this Credit Agreement or the other Loan Documents in its capacity as such, shall remain indemnified. For avoidance of doubt, this Section 13.06(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
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to fund such required payment, such payment shall be made within twenty (20) Business Days after demand.
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such party. Notices delivered through electronic communications to the extent provided in
subsection (c) below, shall be effective as provided in such subsection (c).
(ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor; provided that for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.
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balance of the Loans subject to each such assignment, determined as of the date the Assignment and Assumption Agreement with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption Agreement, as of the Trade Date, shall not be less than $5,000,000, unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower, otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Assignee (or to an Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
$3,500 (except in the case of a transfer at the demand of Borrower under Section 13.13, in which case either Borrower or the transferee Lender shall pay such fee); provided, however, that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an administrative questionnaire.
(A) to a Borrower Party or any Affiliate or Subsidiary of any Borrower Party; (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B);
(C) to a natural person; (D) to any Person that is not a Qualified Purchaser; (E) to any Person that is not an Eligible Assignee; or (F) to any Sanctioned Lender (or any Person that would, upon becoming a Lender, be a Sanctioned Lender).
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a portion of such rights and obligations made concurrently with another assignment or assignments that together constitute an assignment of all of the rights and obligations of the assigning Lender.
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and Assumption Agreement, be released from its obligations under this Credit Agreement (and, in the case of an Assignment and Assumption Agreement covering all of the assigning Lender’s rights and obligations under this Credit Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits and obligations of Sections 4.01, 4.04, 4.05 and 13.06 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇’s having been a Defaulting Lender. Upon request, each applicable Borrower Party (at its expense) shall execute and deliver a Note to the Funding Agent of the Assignee, if applicable, and the applicable existing Note or Notes shall be returned to the Borrower, as applicable. Any assignment or transfer by a Lender of rights or obligations under this Credit Agreement that does not comply with this subsection shall be treated for purposes of this Credit Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (f) of this Section 13.11.
Notwithstanding anything to the contrary set forth in this Credit Agreement and for avoidance of doubt, each Lender Group with more than one Conduit Lender may, without the consent of the Borrower, assign to another Conduit Lender in its Lender Group all or a portion of its rights and obligations hereunder (including the outstanding Obligations and rights to payment of Principal Obligation and interest), as determined by the Administrative Agent from time to time. Each such assignment shall be recorded on the books and records of the Administrative Agent and the relevant Conduit Lenders, without the need to execute and deliver an Assignment and Acceptance Agreement. For all purposes of this Credit Agreement and all related documents, with respect to each assignment under this paragraph the relevant Conduit Lender shall be deemed to have the benefit of, and be subject to the obligations imposed by, an executed, delivered, accepted and recorded Assignment and Acceptance Assignment relating to such assignment.
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only with the written consent of the Conduit Lender(s) in its Lender Group, and provided, further that: (i) such Lender’s obligations under this Credit Agreement shall remain unchanged; (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (iii) each Borrower Party, each Agent, the Letter of Credit Issuer, the Swingline Lenders and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 13.06(c) without regard to the existence of any participation.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the second proviso of Section 13.01 that directly affects such Participant. Borrower agrees that each Participant shall be entitled to the benefits of Sections 4.01, 4.04, and 4.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 13.11 (it being understood that the documentation required under Section 4.01(e) shall be delivered to the Lender who sells the participation) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to clause (b) of this Section 13.11; provided that such Participant:
(A) agrees to be subject to the provisions of Sections 4.01, 4.06, 13.11 and 13.18 as if it were an assignee under clause (b) of this Section 13.11; and (B) shall not be entitled to receive any greater payment under Sections 4.01 or 4.05 with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 4.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 13.02 as though it were a Lender, provided such Participant agrees to be subject to Section 13.03 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Credit Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
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interest shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee or grantee for such Lender as a party hereto.
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shall be several and not joint, (vi) all distributions in respect of the Principal Obligation assigned shall be made to the applicable Funding Agent, on behalf of the Conduit Lender and such Conduit Assignee on a pro rata basis according to their respective interests, (vii) the definition of the term “CP Rate” with respect to the portion of the Principal Obligation funded with Commercial Paper issued by the Conduit Lender from time to time shall be determined in the manner set forth in the definition of “CP Rate” applicable to the Conduit Lender on the basis of the interest rate or discount applicable to Commercial Paper issued by such Conduit Assignee rather than the original Conduit Lender, (viii) the defined terms and other terms and provisions of this Credit Agreement and the other Loan Documents shall be interpreted in accordance with the foregoing, and (ix) if requested by the Funding Agent or Administrator with respect to the Conduit Assignee, the parties will execute and deliver such further agreements and documents and take such other actions as such Funding Agent or Administrator may reasonably request to evidence and give effect to the foregoing. No such assignment shall be made to a Conduit Assignee unless the Commercial Paper of such Conduit Assignee shall have short-term credit ratings of “A-1” and “P-1” without the consent of Borrower. No assignment by a Conduit Lender to a Conduit Assignee of all or any portion of its interest in the Principal Obligation shall in any way diminish the obligation of the Committed Lenders in such Conduit ▇▇▇▇▇▇’s Lender Group under Section 2.02 to fund any Loan not funded by the Conduit Lender or such Conduit Assignee or to acquire from the Conduit Lender or such Conduit Assignee all or any portion of its interest in the Principal Obligation pursuant this Section 13.11(b)(i).
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the rights set forth in the immediately preceding sentence, other than the giving of the notice by the related Administrator on behalf of such Conduit ▇▇▇▇▇▇ referred to in such sentence and the delivery by such Conduit ▇▇▇▇▇▇’s Funding Agent of a copy of such notice to each Committed Lender in the Lender Group (the date of the receipt by the Administrative Agent of any such notice being the “Assignment Date”). Each Committed Lender hereby agrees, unconditionally and irrevocably and under all circumstances, without set-off, counterclaim or defense of any kind, to pay the full amount of its Assignment Amount on such Assignment Date to such Conduit Lender in Same Day Funds in Dollars based on the assigning Conduit ▇▇▇▇▇▇’s interest in the Principal Obligation, to an account designated by such Conduit ▇▇▇▇▇▇’s Funding Agent. Upon payment of its Assignment Amount, each such Committed Lender shall acquire an interest in the Principal Obligation equal to its Committed Lender Percentage thereof. Upon any assignment in whole by a Conduit Lender to its Committed Lenders on or after its Conduit Investment Termination Date as contemplated hereunder, such Conduit Lender shall cease to make any additional Loans hereunder. At all times prior to its Conduit Investment Termination Date, nothing herein shall prevent a Conduit ▇▇▇▇▇▇ from making a subsequent Loan hereunder, in its sole discretion, following any assignment pursuant to this Section 13.12 or from making more than one assignment pursuant to this Section 13.12.
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on any Assignment Date occurring on or after the Conduit Investment Termination Date for the related Conduit Lender is less than the Loans of such Conduit Lender on such Assignment Date, then to the extent that payments or deposits thereafter received and applied by the Administrative Agent with respect to such Lender Group under Section 3.03 in respect of Loans exceed the aggregate of the unrecovered Assignment Amounts and Loans funded by such Committed Lenders, such excess shall be remitted by the Administrative Agent to such Conduit ▇▇▇▇▇▇’s Funding Agent for the benefit of such Conduit Lender.
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any such excess, the amount which would be excessive interest shall be deemed to be a partial prepayment of principal and treated hereunder as such; and, if the principal amount of the Obligations is paid in full, any remaining excess shall forthwith be paid to the applicable Borrower Party. In determining whether or not the interest paid or payable under any specific contingency exceeds the Maximum Rate, each Borrower Party and Funding Party shall, to the maximum extent permitted under applicable law: (a) characterize any nonprincipal payment as an expense, fee or premium rather than as interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread, in equal parts, the total amount of interest throughout the entire contemplated term of the Obligations so that the interest rate does not exceed the Maximum Rate; provided that, if the Obligations are paid and performed in full prior to the end of the full contemplated term thereof, and if the interest received for the actual period of existence thereof exceeds the Maximum Rate, each applicable Funding Party shall refund to the applicable Borrower Party the amount of such excess or credit the amount of such excess against the principal amount of the Obligations and, in such event, Funding Parties shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving or receiving interest in excess of the Maximum Rate. As used herein, the term “applicable law” shall mean the law in effect as of the date hereof; provided, however, that in the event there is a change in the law which results in a higher permissible rate of interest, then the Loan Documents shall be governed by such new law as of its effective date.
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violation hereof by any of its own partners, directors, officers, employees, representatives, advisors and agents, including accountants, legal counsel and other advisors); (b) to the extent required or requested by any regulatory authority (including any self-regulatory organization claiming to have jurisdiction), any governmental or administrative agency or any bank examiner having jurisdiction over such Person; (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Credit Agreement or the Loan Documents; (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Credit Agreement or under any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section 13.18 to which the Borrower Parties are intended third party beneficiaries entitled to enforce such agreement, to: (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Credit Agreement; or (ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of the Borrower Parties; (g) with the consent of the applicable Borrower Party; (h) to the extent such Information: (x) becomes publicly available other than as a result of a breach of this Section 13.18; (y) becomes available to Administrative Agent, any Funding Agent, or any Lender on a non-confidential basis from a source other than a Borrower Party; or (z) was independently developed by any Agent or any Lender from information obtained from a source other than a Borrower Party and in compliance with this Section 13.18 or, (i) subject to an agreement containing provisions substantially the same as those of this Section 13.18, to (x) any securitization vehicle, commercial paper conduit or other financing vehicle of a Conduit Lender, or (y) the National Association of Insurance Commissioners or any other similar organization or any Rating Agency, Commercial Paper dealer first loss provider, service provider, provider of credit enhancement, credit insurance or liquidity to such Conduit Lender or any Person providing financing to, or holding equity interest in, such Conduit Lender, or to any officers, directors, employees, outside accountants or attorneys of any of the foregoing; provided that with respect to this clause (i), such recipient has been advised of the confidential nature of such Information and instructed to keep such Information confidential. Notwithstanding the foregoing, (i) except as set forth in clause (ii) of this sentence, or as otherwise set forth in clauses (a), (b), (c), (d), (e) or (h) above, neither the identity of the Investors (other than by identification number and dollar amounts), nor the contents of the organizational documents or the subscription agreements or related subscription booklets, offering memorandum and marketing materials, shall be revealed without the Borrower Parties consent (subject, with respect to clause (c) above, that obtaining the consent of such Borrower Party is permitted by law), and (ii) without limiting clause (i) of this sentence, prior to revealing the identity of Investors (other than, in either case, by identification number and dollar amounts) to any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Credit Agreement, the applicable assignor shall, enter into an agreement containing provisions substantially the same as those of this Section 13.18 to which the Borrower Parties are intended third party beneficiaries entitled to enforce such agreement. Notwithstanding subsections (a) through (j), neither Administrative Agent, Funding Agent nor any Lender shall disseminate any Information to a Disqualified Lender without the prior written consent of the Borrower. For the purposes of this Section 13.18, “Information” means all non-public, confidential or proprietary information received from or on behalf of any Borrower Party relating to any Borrower Party or any of their Subsidiaries, Investors or Affiliates or its or their business; provided, that any information provided by or on behalf of any Borrower Party shall be deemed non-public, confidential and proprietary unless specifically identified otherwise by such Borrower Party. Any Person required to maintain the confidentiality of Information as provided in this Section 13.18 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
For the avoidance of doubt, nothing in this Credit Agreement is intended or shall be deemed to prohibit or restrict any party in any way from initiating communications directly with, reporting to,
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providing information to, causing information to be provided to, filing a charge or complaint with, cooperating with, responding to any inquiry from, or providing testimony to the Securities and Exchange Commission, Commodity Futures Trading Commission, Financial Industry Regulatory Authority, or any other self-regulatory organization, or any other federal or state regulatory authority, or governmental agency or entity, regarding any possible securities violation or other violation of law.
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United States or any state of the United States. The provisions of this Section 13.22 shall survive the termination of this Credit Agreement.
(y) all of such Conduit ▇▇▇▇▇▇’s commercial paper notes are paid in full. Any amount which any Conduit Lender does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in Section 101 of the United States Bankruptcy Code) against or obligation of such Conduit Lender for any such insufficiency unless and until such Conduit Lender satisfies the provisions of clauses (i) and (ii) above. The provisions of this Section 13.24 shall survive the termination of this Credit Agreement.
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interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. §382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§252.81, 47.2 or 382.1, as applicable.
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“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“Swap Contract” means: (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement; and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement.
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ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
Remainder of Page Intentionally Left Blank; Signature Page(s) to Follow.
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Signature Page to Revolving Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the day and year first above written.
Signature Page to Revolving Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed as of the day and year first above written.
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Schedule 1.01A
Schedule 1.01
COMMITMENTS AND LENDER GROUPS
Name of Lender Group |
Funding Agent |
Committed Lender |
Conduit Lender |
Commitment of Committed Lender |
Versailles |
Natixis, New York Branch |
Versailles Assets LLC |
Versailles Assets LLC |
$90,000,000 |
|
|
|
Total |
$90,000,000 |
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Schedule 1.01A
Schedule 1.01A
General Information |
||||
Party Name |
Type of Party |
Party’s General Partner Name |
Jurisdiction of Formation (Party/GP) |
Chief Executive Office / Principal Place of Business / Principal Office |
TCW Steel City Perpetual Levered Fund LP |
Borrower |
TCW Steel City GP LLC |
Delaware |
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
TCW Steel City GP LLC |
General Partner |
TCW PT Management Company LLC |
Delaware |
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
Collateral Account Information |
|||
Party Name |
Account # |
Account Name |
Account Depository Bank |
TCW Steel Perpetual Levered Fund LP |
19-4085NX |
Account for TCW Steel City Perpetual Levered Fund LP as pledgor for the benefit of Natixis, New York Branch as secured party |
U.S. Bank National Association |
Governing Agreement |
|
Party Name |
Governing Agreement |
TCW Steel City Perpetual Levered Fund LP |
Amended and Restated Limited Partnership Agreement for TCW Steel City Perpetual Levered Fund LP, dated as of February 6, 2025 |
4910-6553-8863 v.5
Schedule 1.01A
TCW Steel City GP LLC |
Limited Liability Company Agreement of TCW Steel City GP LLC, dated as of October 14, 2024 |
[Structure Chart to be attached.]
Investment Sub-Advisor
Investment Advisor
50/50 Economic Split**
PNC Steel City Advisors LLC
TCW PT
Management Company LLC
Managing Member
TCW Steel City GP LLC (Delaware)
General Partner
TCW
Steel City Rated
Note Feeder LP (Delaware)
Up to 4.9% PNC Affiliate Voting Interest
Up to 4.9% PNC Affiliate Voting
Interest / Up to 24.9% PNC Affiliate Equity Interest
Other Vehicles TBD
TCW
Steel City Perpetual Levered Fund LP* (Delaware)
TCW
Steel City Unlevered Private Fund LP (Delaware)
TCW Steel City Senior Lending Vehicles
*The Perpetual Levered Fund intends to convert into a BDC at a later date.
**50/50 Economic split will be achieved through a sub-advisory agreement among the advisor and sub-advisor. For informational purposes only. Securities are not being offered by means of this material. No investment decision should be made until the prospective investor has read the Confidential Private Placement Memorandum and related documents for the Fund. Interests in the Fund will be distributed by TCW Funds Distributors LLC, a U.S. registered broker-dealer.
4910-6553-8863 v.5
Schedule 1.01B
Schedule 1.01B
DISQUALIFIED LENDERS
DoubleLine Capital LP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Los Angeles, CA 90071
(▇▇▇) ▇▇▇-▇▇▇▇
Oaktree Capital Management, LP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Los Angeles, CA 90071
(▇▇▇) ▇▇▇-▇▇▇▇
4910-6553-8863 v.5
Schedule 13.07
Schedule 13.07
ADDRESSES FOR NOTICE
If to any Borrower Party, other Pledgor or General Partner:
If to Administrative Agent, Swingline Lender or Letter of Credit Issuer:
c/o The TCW Group, Inc. ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Los Angeles, California 90017 Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ With a copy to:
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
4932-8980-4591 v.3
EXHIBIT A
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent [RESERVED.]
4932-8980-4591 v.3
Exhibit B – Page
EXHIBIT B
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent REVOLVING CREDIT NOTE
$ , 20
Delaware limited partnership (“Maker”), hereby unconditionally promises to pay to (“Payee”), at the principal office of NATIXIS, NEW YORK BRANCH as Administrative Agent (“Administrative Agent”) for the account of each of the Lenders under the Credit Agreement referred to below or such other office as Administrative Agent designates, the principal sum of AND NO/100 DOLLARS ($[●]), or, if less, the unpaid principal amount of the Loans then outstanding, together with accrued interest thereon, in lawful money of the United States of America. Capitalized terms not defined herein have the meanings assigned to such terms in the Credit Agreement.
(d) the events upon which the maturity of this Note may be accelerated. Maker may borrow, repay and reborrow upon the terms and conditions specified in the Credit Agreement.
1
4932-8980-4591 v.3
Exhibit B – Page
continuations of Loans set forth on grid(s) which may be attached hereto shall be rebuttably presumptive evidence of the unpaid principal amount of this Note or under the Credit Agreement.
MAKER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
2
4932-8980-4591 v.3
Exhibit C – Page
EXHIBIT C
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent LOAN NOTICE
, 20
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ With a copy to:
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇▇ Ladies and Gentlemen:
This Loan Notice is executed and delivered by TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”) [and [QUALIFIED BORROWER], a [●] (“Qualified Borrower”)], to NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), pursuant to Section 2.02 of that certain Revolving Credit Agreement, dated as of April 21, 2025 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), by and among ▇▇▇▇▇▇▇▇, Administrative Agent, and the lenders from time to time party thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
1 [NTD: Natixis to confirm contact information.]
1
4932-8980-4591 v.3
Exhibit C – Page
Complete the following:
PART I: FOR SWINGLINE LOANS (IF APPLICABLE):
Borrower [and Qualified Borrower] hereby request[s] a Swingline Loan:
PART II: FOR SYNDICATED LOANS
Borrower [and Qualified Borrower] hereby request[s] (check one box only):
A Borrowing
A conversion of Loans to Loans
A continuation of Loans
In connection with the [Borrowing] [continuation] [conversion] requested herein, Borrower[s] hereby represent[s], warrant[s], and certif[y][ies] to Administrative Agent for the benefit of the Lenders that:
and 7.02(b) of the Credit Agreement are accurate;
2
4932-8980-4591 v.3
Exhibit C – Page
3
4932-8980-4591 v.3
Exhibit C – Page
The following are ▇▇▇▇▇▇▇▇’s instructions for distribution of loan proceeds (i.e., appropriate wire instructions, etc.):
Name of Bank: Account Name: ABA Number: Account Number:
Remainder of Page Intentionally Left Blank; Signature Page Follows.
4
4932-8980-4591 v.3
Loan Notice
This Loan Notice is executed on , 20 .
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
QUALIFIED BORROWER:2 [QUALIFIED BORROWER]
By:
[Name, Title]
2 Retain QB signature block if applicable, otherwise, delete for executed document.
Signature Page to
4932-8980-4591 v.3
Exhibit C – Schedule I
SCHEDULE I
DATED AS OF , 20
Calculation of Available Commitment [To be attached]
4932-8980-4591 v.3
Exhibit D – Page
EXHIBIT D
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent SECURITY AGREEMENT
, 20
THIS SECURITY AGREEMENT is executed and delivered as of , 20 (the “Security Agreement”), by TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”), and TCW Steel City GP LLC, a Delaware limited liability company (“General Partner”), in favor of NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), for the benefit of the Secured Parties (hereinafter defined). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement referred to below.
1
4932-8980-4591 v.3
Exhibit D – Page
Administrative Agent acknowledges that the Collateral does not include (i) an interest in any Investor’s Subscribed Interest in Borrower, or (ii) those items excluded from the definition of Collateral pursuant to the last paragraph of Section 5.01 of the Credit Agreement.
Administrative Agent, in its discretion, without in any manner impairing any of its rights and powers of the Secured Parties hereunder, may, at any time and from time to time, without further consent of or notice to Borrower, with or without valuable consideration, file this Security Agreement or a photocopy hereof, or any financing statement with respect hereto covering the Collateral (and any amendment, modification, supplement or continuation in respect of any such financing statement).
2
4932-8980-4591 v.3
Exhibit D – Page
3
4932-8980-4591 v.3
Exhibit D – Page
(i) make Capital Calls in the name of ▇▇▇▇▇▇▇▇; (ii) take or bring, in Borrower’s or General Partner’s name or that of Administrative Agent for the benefit of the Secured Parties, all steps, actions, suits or proceedings reasonably deemed by Administrative Agent as necessary to effect possession or collection of payments constituting Collateral;
4
4932-8980-4591 v.3
Exhibit D – Page
(iii) complete any contract or agreement of Borrower evidencing or constituting any of the Collateral; (iv) take such actions with respect to the Capital Commitments as are necessary in order to pay the Obligations, and to perform the Subscription Agreements and the Operating Agreement to the extent required to effect such actions; (v) make allowances or adjustments related to the Capital Calls; (vi) compromise any claims related to the Capital Calls; (vii) issue credit in its own name or the name of Borrower or General Partner to the extent necessary to reflect the making of a Capital Contribution to Borrower that is not otherwise reflected in the capital accounts of Borrower; or
(viii) exercise any right, privilege, power, or remedy provided to Borrower under its Constituent Documents, or the Subscription Agreements , including, without limitation, any right, privilege, power, or remedy relating to the right to call for and to receive Capital Contributions , in each case, in accordance with the Constituent Documents and/or the Subscription Agreements.
5
4932-8980-4591 v.3
Exhibit D – Page
Obligations, and neither Administrative Agent nor any Secured Party shall incur any liability in connection with or arising from its exercise of such authority and power except as a result of gross negligence, bad faith or willful misconduct.
6
4932-8980-4591 v.3
Exhibit D – Page
action taken by Administrative Agent for the benefit of the Secured Parties or by the Secured Parties or of any fact, condition or thing incident thereto, and all prerequisites of such sale or other action shall be presumed to have been performed or to have occurred.
(iv) are intended to be and shall be, non-exclusive.
7
4932-8980-4591 v.3
Exhibit D – Page
8
4932-8980-4591 v.3
Exhibit D – Page
secondary obligor or in connection with any security for the Obligations; (iii) any full or partial release of any of the foregoing (unless the rights under this Security Agreement are expressly released in accordance herewith); or (iv) notice of any of the foregoing.
Remainder of Page Intentionally Left Blank; Signature Page(s) Follow.
9
Signature Page to Security Agreement
4932-8980-4591 v.3
Executed on the date first above written.
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
GENERAL PARTNER: TCW STEEL CITY GP LLC
By:
[Name, Title]
Signature Page to Security Agreement
4932-8980-4591 v.3
ACKNOWLEDGED AND AGREED:
NATIXIS, NEW YORK BRANCH, as Administrative Agent
By:
[Name, Title]
By:
[Name, Title]
4932-8980-4591 v.3
Exhibit E – Page
EXHIBIT E
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent COLLATERAL ACCOUNT ASSIGNMENT
Dated as of , 20
For value received, TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Assignor”), hereby (i) pledges to NATIXIS, NEW YORK BRANCH, as administrative agent for the benefit of the Secured Parties (as defined below) (“Assignee”) under that certain Revolving Credit Agreement, dated as of April 21, 2025 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”; capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement), by and among Assignor, Natixis, New York Branch, as administrative agent (in such capacity, “Administrative Agent”), and the lenders from time to time party thereto (together with such other lending institutions which become party to the Credit Agreement, or have been, or may hereafter be, assigned an interest as lender in accordance with the Credit Agreement, the “Lenders” and together with the Letter of Credit Issuer, the Agents, the Liquidity Providers and the Indemnitees, the “Secured Parties”), and (ii) grants to Assignee, a lien, claim, encumbrance upon and security interest in Account No. 19-4085NX at U.S. Bank National Association(“Depository”), entitled “Account for TCW Steel City Perpetual Levered Fund LP as pledgor for the benefit of Natixis, New York Branch as secured party”, and any extensions or renewals thereof, if the account is one which may be extended or renewed, and any successor or substitute accounts as agreed between Assignor and Assignee (such account or accounts and any extensions or renewals being hereinafter called the “Account”), together with all of Assignor’s right, title, and interest (whether now existing or hereafter created or arising) in and to the Account, all sums now or at any time hereafter on deposit therein, credited thereto, or payable thereon, all proceeds and products thereof, and all instruments, documents, certificates, and other writings evidencing the Account, on the following terms and conditions:
1
4932-8980-4591 v.3
Exhibit E – Page
2
4932-8980-4591 v.3
Exhibit E – Page
Should any funds required by the Credit Agreement to be deposited in or credited to the Account instead be received by Assignor, they shall immediately upon such receipt become subject to the lien granted hereunder and while in the hands of Assignor be segregated from all other funds of Assignor and be held in trust for the Secured Parties unless otherwise used in accordance with the terms hereof and the Credit Agreement. Assignor shall have absolutely no dominion or control over such funds except to promptly deposit them into the Account. Assignor acknowledges and agrees that Depository is authorized to comply with instructions originated in writing by Assignee
3
4932-8980-4591 v.3
Exhibit E – Page
in accordance with the terms hereof and of the Account Control Agreement and the Credit Agreement directing the disposition of funds in the Account without further consent of Assignor. Assignee agrees with Assignor that Assignee shall not originate instructions with respect to, or direct the disposition of funds in, the Account except during the continuation of an Event of Default and subject to Section 11.03 of the Credit Agreement.
4
4932-8980-4591 v.3
Exhibit E – Page
or power shall not impair or diminish the Secured Parties’ rights, titles, interest, liens, and powers existing hereunder.
(ii) an Event of Default or (iii) the Principal Obligation exceeds the Available Commitment.
5
4932-8980-4591 v.3
Exhibit E – Page
Obligations, and the exercise of one or more rights or remedies shall not prejudice or impair the concurrent or subsequent exercise of other rights or remedies. Should Assignor have heretofore executed or hereafter execute any other security agreement in favor of the Secured Parties, the security interest therein created and all other rights, powers, and privileges vested in the Secured Parties by the terms thereof shall exist concurrently with the security interest created herein.
6
4932-8980-4591 v.3
Exhibit E – Page
irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING BROUGHT IN CONNECTION WITH THIS ASSIGNMENT, WHICH ▇▇▇▇▇▇ IS INFORMED AND VOLUNTARY.
Remainder of Page Intentionally Left Blank; Signature Pages Follow.
7
Signature Page to Collateral Account Assignment
4932-8980-4591 v.3
IN WITNESS WHEREOF, the undersigned has executed this Assignment as of the date first above written.
ASSIGNOR:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
Signature Page to Collateral Account Assignment
4932-8980-4591 v.3
ACKNOWLEDGED AND AGREED:
NATIXIS, NEW YORK BRANCH, as Administrative Agent
By:
[Name, Title]
By:
[Name, Title]
4932-8980-4591 v.3
Exhibit F – Page
EXHIBIT F
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption (this “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [ASSIGNOR] (the “Assignor”) and [ASSIGNEE] (the “Assignee”). Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement referred to below (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by Administrative Agent as contemplated below: (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto in the amount[s] and equal to the percentage interest[s] identified below of all the outstanding rights and obligations under the respective facilities identified below (including without limitation guarantees included in such facilities); and (ii) to the extent permitted to be assigned under applicable Law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity, in each case, to the extent related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
[Assignor [is][is not] a Defaulting Lender.]
[Assignee is [an Affiliate/Approved Fund of [identify Lender]][Liquidity Provider of [identify Conduit Lender]][Conduit Assignee][a Federal Reserve Bank][a central bank][a collateral trustee][a security agent for holders of commercial paper]3
3 Select or delete as applicable.
1
4932-8980-4591 v.3
Exhibit F – Page
Facility Assigned |
Aggregate Amount of Commitment/Loans for all Lenders4 |
Amount of Commitment/Loans Assigned |
Percentage Assigned of Commitment/Loans5 |
Revolving Credit Commitment |
$ |
$ |
% |
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
Remainder of Page Intentionally Left Blank; Signature Page(s) Follow.
4 Amount to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
5 Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
6 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
2
Signature Page to Assignment and Assumption Agreement
4932-8980-4591 v.3
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]:
[NAME OF ASSIGNOR]
By:
Name: Title:
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE[S]:
[NAME OF ASSIGNEE]
By:
Name:
Title:
[Address]
[NAME OF ASSIGNEE]
By:
Signature Page to Assignment and Assumption Agreement
4932-8980-4591 v.3
Name:
Title:
[Address]
Signature Page to Assignment and Assumption Agreement
4932-8980-4591 v.3
[Consented to and]7 Accepted:
NATIXIS, NEW YORK BRANCH, as Administrative Agent[, Swingline Lender and Letter of Credit Issuer]8
By:
[Name, Title]
By:
[Name, Title]
7 To be used only if the consent of Administrative Agent, Swingline Lender and Letter of Credit Issuer is required by the terms of the Credit Agreement.
8 If applicable.
4932-8980-4591 v.3
Assignment and Assumption Agreement
[Consented to]9 [and Acknowledged] by:10
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
9 To be used only if ▇▇▇▇▇▇▇▇’s consent is required pursuant to the definition of “Eligible Assignee” under the Credit Agreement.
10 To be used only if the assignment is made as the result of a demand by Borrower under the Credit Agreement.
Signature Page to
4932-8980-4591 v.3
Exhibit F – Annex 1
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
(vi) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (vii) it is a Qualified Purchaser; (b) agrees that: (i) it will, independently and without reliance on Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents; and (ii) it will perform in accordance with their terms all of the obligations (and make all of the representations) which by the terms of the Loan Documents are required to be performed (or made) by it as a Lender; (c) appoints and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto in accordance with the Credit Agreement and Loan Documents; (d) acknowledges and agrees that, as a Lender, it may receive confidential information concerning the Borrower Parties and their Affiliates and agrees to use such information in accordance with Section 13.18 of the Credit Agreement; (e) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof; and (f) shall pay to the Administrative Agent an assignment fee to the extent required to be paid by the Assignee or Assignor under Section 13.11(b)(iv) of the Credit Agreement.
4932-8980-4591 v.3
Exhibit F – Annex 1
Remainder of Page Intentionally Left Blank.
4932-8980-4591 v.3
Exhibit G – Page
EXHIBIT G
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent COMPLIANCE CERTIFICATE
FOR [ ] ENDED [ ]
DATE: , 20
ADMINISTRATIVE AGENT: Natixis, New York Branch
BORROWER: TCW STEEL CITY PERPETUAL LEVERED FUND LP
This certificate is delivered under the Revolving Credit Agreement, dated as of April 21, 2025 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), among Borrower, Administrative Agent, and the lenders and other parties from time to time party thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is authorized to execute and deliver this certificate to Administrative Agent on behalf of ▇▇▇▇▇▇▇▇, and that as of [date at the end of the period indicated above] (the “Reporting Date”):
1
4932-8980-4591 v.3
Exhibit G – Page
2
4932-8980-4591 v.3
Exhibit G – Page
Section 10.05(d) of the Credit Agreement, if any; and
[SIGNATURE OF RESPONSIBLE OFFICER]
By:
Name: Title:
3
4932-8980-4591 v.3
Exhibit G – Annex A
ANNEX A
4932-8980-4591 v.3
Exhibit G – Annex B
ANNEX B
4932-8980-4591 v.3
Exhibit G – Annex C
ANNEX C
4932-8980-4591 v.3
Exhibit G – Annex D
ANNEX D
4932-8980-4591 v.3
Exhibit H – Page 1
EXHIBIT H
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent BORROWING BASE CERTIFICATE
, 20
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ Ladies and Gentlemen:
This Borrowing Base Certificate is executed and delivered by TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”), to Natixis, New York Branch, as administrative agent (“Administrative Agent”), pursuant to that certain Revolving Credit Agreement, dated as of April 21, 2025 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), entered into by and among Borrower, Administrative Agent, and the lenders from time to time party thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
On and as of the date hereof, the undersigned Responsible Officer of the Borrower hereby certifies that based upon the information available to the Borrower as of the date hereof:
4932-8980-4591 v.3
Borrowing Base Certificate
This Borrowing Base Certificate is executed on , 20 .
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
Signature Page to
4932-8980-4591 v.3
Exhibit H – Schedule I
SCHEDULE I
Calculation of Available Commitment [To be attached]
Y
Grace Period?
2
Fund Raise Status
100.0%
Unfunded %
TCW Steel City (Levered) - April 16, 2025
Fund Commitments (US$) |
|
Total Commitments Unfunded Commitments Effective Advance Rate |
126,182,965.30 126,182,965.30 85.6% |
Borrowing Base Summary (US$) |
|
Rated Included Investors |
108,000,000.00 |
Non-Rated Included Investors |
0.00 |
Special Included investors |
0.00 |
Designated Investors |
0.00 |
Total Borrowing Base |
108,000,000.00 |
Facility (US$) |
|
Facility Commitment |
350,000,000.00 |
Outstanding Principal Amount under the Facility |
0.00 |
Requested Borrowing Amount |
0.00 |
Remaining Facility Availability |
108,000,000.00 |
All borrowing base investors in red are subject to final credit and legal review.
Rated Included Investors Sponsor ▇▇▇▇▇'▇ S&P Sub-Agg Commitment Investor Commitment Sum of UC and RC Conc limit Excess Concentration Eligible Commitment Advance Rate Borrowing Base |
|||||||||||
USAA Pension Trust |
United Services Automobile Association |
Aaa |
AA+ |
100,000,000 |
100,000,000 |
100.0% |
0 |
100,000,000 |
90.0% |
90,000,000 |
|
Nationwide Life Insurance Company (Aggregate) |
Nationwide Life Insurance Company |
A2 |
A+ |
20,000,000 |
20,000,000 |
100.0% |
0 |
20,000,000 |
90.0% |
18,000,000 |
|
[CALSTRS] |
[State of California] |
Aa3 |
AA- |
0 |
0 |
100.0% |
0 |
0 |
90.0% |
0 |
|
[Chubb] |
[Chubb] |
A2 |
A |
0 |
0 |
100.0% |
0 |
0 |
90.0% |
0 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Rated Included Investors |
|
|
|
|
120,000,000 |
120,000,000 |
100.0% 0 120,000,000 90.0% |
108,000,000 |
|||
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|
|
|
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|
|
|
|||
Non-Rated Included Investors |
Sponsor |
▇▇▇▇▇'▇ |
S&P |
Sub-Agg Commitment |
Investor Commitment |
Sum of UC and RC |
Conc limit Excess Concentration Eligible Commitment Advance Rate |
Borrowing Base |
|||
|
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|
|
|
|
|
|
|
|||
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|
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|
|
|
|||
Total Non-Rated Included Investors |
|
|
|
|
0 |
0 |
50.0% 0 0 90.0% |
0 |
|||
|
|
|
|
|
|
|
|
|
|||
Special Included Investors |
Sponsor |
▇▇▇▇▇'▇ |
S&P |
Sub-Agg Commitment |
Investor Commitment |
Sum of UC and RC |
Conc limit Excess Concentration Eligible Commitment Advance Rate |
Borrowing Base |
|||
|
|
|
|
|
|
|
|
|
|||
|
|
|
|
|
|
|
|
|
|||
Total Special Included Investors |
|
|
|
|
0 |
0 |
35.0% 0 0 65.0% |
0 |
|||
|
|
|
|
|
|
|
|
|
|||
Designated Investors |
Sponsor |
▇▇▇▇▇'▇ |
S&P |
Sub-Agg Commitment |
Investor Commitment |
Sum of UC and RC |
Conc limit Excess Concentration Eligible Commitment Advance Rate |
Borrowing Base |
|||
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|
|
|
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|
|
|||
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|
|
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|
|
|
|
|||
Total Designated Investors |
|
|
|
|
0 |
0 |
50.0% 0 0 65.0% |
0 |
|||
|
|
|
|
|
|
|
|
|
|||
Total Eligible Investors |
|
|
|
|
120,000,000 |
120,000,000 |
120,000,000 |
108,000,000 |
|||
|
|
|
|
|
|
|
|
|
|||
Excluded Investor |
Sponsor |
▇▇▇▇▇'▇ |
S&P |
Sub-Agg Commitment |
Investor Commitment |
Sum of UC and RC |
Conc limit Excess Concentration Eligible Commitment Advance Rate |
Borrowing Base |
|||
PNC Credit Investor, LLC |
PNC Financial Services |
|
|
|
6,182,965 |
6,182,965 |
|
|
|||
|
|
|
|
|
|
|
|
|
|||
Total Excluded Investors |
|
|
|
|
6,182,965 |
6,182,965 |
0 |
0 |
|||
|
|
|
|
|
|
|
|
|
|||
Total (All Investors) |
|
|
|
|
126,182,965 |
126,182,965 |
120,000,000 |
108,000,000 |
|||
|
|
|
|
|
|
|
|
|
|||
Effective Advance Rate (Against All Investors) |
|
|
|
|
|
|
|
85.6% |
|||
Page 1 of 1
Investor Name ($) |
Sponsor Name (If Applicable) |
Total Commitment |
Funded Commitment |
Unfunded Commitment |
PNC Credit Investor, LLC |
PNC Financial Services |
6,182,965 |
0.0 |
6,182,965.3 |
USAA Pension Trust |
United Services Automobile Association |
100,000,000.0 |
0.0 |
100,000,000.0 |
Nationwide Life Insurance Company |
Nationwide Life Insurance Company |
15,000,000.0 |
0.0 |
15,000,000.0 |
Nationwide Mutual Insurance Company |
Nationwide Life Insurance Company |
5,000,000.0 |
0.0 |
5,000,000.0 |
[CALSTRS] |
[State of California] |
0.0 |
0.0 |
0.0 |
[Chubb] |
[Chubb] |
0.0 |
0.0 |
0.0 |
|
|
0.0 |
0.0 |
0.0 |
|
|
0.0 |
0.0 |
0.0 |
|
|
0.0 |
0.0 |
0.0 |
Total |
|
126,182,965 |
0 |
126,182,965 |
Investor Name |
1 |
2 |
3 |
4 |
5 |
Actual |
[PNC] |
6,182,965 |
6,182,965 |
19,064,143 |
19,064,143 |
19,064,143 |
6,182,965.3 |
USAA Pension Trust |
100,000,000 |
100,000,000 |
100,000,000 |
100,000,000 |
100,000,000 |
100,000,000.0 |
Nationwide Life Insurance Company |
15,000,000 |
15,000,000 |
15,000,000 |
15,000,000 |
15,000,000 |
15,000,000.0 |
Nationwide Mutual Insurance Company |
5,000,000 |
5,000,000 |
5,000,000 |
5,000,000 |
5,000,000 |
5,000,000.0 |
[CALSTRS] |
0 |
0 |
200,000,000 |
200,000,000 |
200,000,000 |
0.0 |
[Chubb] |
0 |
0 |
50,000,000 |
50,000,000 |
50,000,000 |
0.0 |
|
|
|
|
|
|
|
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2
Fund Raise Status
TCW Steel City (Levered) - April 16, 2025 $126,182,965.30 $0.00 $126,182,965.30 120,000,000 120,000,000 370,000,000 370,000,000 370,000,000
Uncalled (%) |
Called (%) |
100.0% |
0.0% |
x x x
4932-8980-4591 v.3
Exhibit I – Page
EXHIBIT I
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent FACILITY INCREASE REQUEST
, 20
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Ladies and Gentlemen:
This facility increase request (this “Facility Increase Request”) is executed and delivered by TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”) to NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), pursuant to that certain Revolving Credit Agreement, dated as of April 21, 2025 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), entered into by and among Borrower, Administrative Agent, and the lenders from time to time party thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Borrower hereby requests an increase in the Maximum Commitment pursuant to Section 2.17 of the Credit Agreement to $ 11 (the “Facility Increase”), and that the Facility Increase be effective on or after , 20 .
In connection with the Facility Increase requested hereby, Borrower hereby represents, warrants, and certifies to Administrative Agent for the benefit of Lenders that:
Section 8 of the Credit Agreement is true and correct in all material respects, with the
11 Amount of Facility Increase must be in the minimum amount of $10,000,000.
1
4932-8980-4591 v.3
Exhibit I – Page
same force and effect as if made on and as of such date (except to the extent that such representations and warranties specifically refer to any earlier date, in which case they shall be true and correct as of such earlier date and except that for the purposes of this Facility Increase Request, the representations and warranties contained in Section 8.06 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 9.01 of the Credit Agreement);
In the event that between the date hereof and the date of the Facility Increase, (i) any event should occur which could reasonably be expected to be a Default or Event of Default or (ii) any representation, warranty or certification set forth above is materially inaccurate if made on the date of the Facility Increase, Borrower shall notify Administrative Agent.
Remainder of Page Intentionally Left Blank; Signature Page Follows.
2
4932-8980-4591 v.3
Facility Increase Request
This Facility Increase Request is executed on , 20 . The undersigned hereby certifies each and every matter contained herein to be true and correct.
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
Signature Page to
4932-8980-4591 v.3
Exhibit J – Page
EXHIBIT J
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent FACILITY EXTENSION REQUEST
, 20
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ Ladies and Gentlemen:
This Facility Extension Request (the “Request”) is executed and delivered by TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”) to NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), pursuant to that certain Revolving Credit Agreement, dated as of April 21, 2025 (as it may be amended, modified, supplemented, restated or amended and restated from time to time, the “Credit Agreement”), entered into by and among ▇▇▇▇▇▇▇▇, Administrative Agent and the lenders from time to time party thereto. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
Pursuant to Section 2.16 of the Credit Agreement, Borrower hereby notifies you that it elects to extend the Stated Maturity Date to , 20 12 (the “Extension”). The extension fees are set forth in a separate fee letter.
In connection with the Extension elected hereby, Borrower hereby represents, warrants, and certifies to Administrative Agent for the benefit of Lenders that:
12 Note to Borrower: Date that is not later than 12 months after the then-effective Stated Maturity Date.
1
4932-8980-4591 v.3
Exhibit J – Page
In the event that between the date hereof and the date of the Extension, (i) any event should occur which could reasonably be expected to be an Event of Default or Default or (ii) any representation, warranty or certification set forth above is materially inaccurate if made on the date of the Stated Maturity Date in effect immediately prior to the Extension, Borrower shall notify Administrative Agent.
Remainder of Page Intentionally Left Blank; Signature Page(s) Follow.
2
4932-8980-4591 v.3
Facility Extension Request
The undersigned hereby certifies each and every matter contained herein to be true and correct.
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
Accepted and Approved:
NATIXIS, NEW YORK BRANCH, as Administrative Agent
By:
[Name, Title]
By:
[Name, Title]
[EXTENDING LENDER]
By:
[Name, Title]
Signature Page to
4932-8980-4591 v.3
Exhibit K – Page
EXHIBIT K
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent
LENDER GROUP JOINDER AGREEMENT
, 20
Reference is made to that certain Revolving Credit Agreement dated as of April 21, 2025 (as amended, modified or restated from time to time, the “Credit Agreement”) by and among TCW STEEL CITY PERPETUAL LEVERED FUND LP, as Borrower, Natixis, New York Branch, as Administrative Agent[, and the Conduit Lenders,] Committed Lenders and Funding Agents from time to time party thereto. Capitalized terms used and not otherwise defined herein are used with the meanings set forth or incorporated by reference in the Credit Agreement.
(the “New Funding Agent”), [ (the “New Conduit ▇▇▇▇▇▇(s)”),]
(the “New Committed Lender(s)”, and together with the New Funding Agent [and the New Conduit ▇▇▇▇▇▇(s)], the “New Lender Group”), the Administrative Agent and the Borrower agree as follows:
1
4932-8980-4591 v.3
Exhibit K – Page
completed and executed by it as a Funding Agent, Conduit Lender or Committed Lender;
(b) appoints and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers and discretion under the Credit Agreement and the Loan Documents as are delegated to the Administrative Agent by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto; (c) in the case of [the New Conduit ▇▇▇▇▇▇(s) and] the New Committed Lender(s), appoints and authorizes the New Funding Agent as its Funding Agent to take such action as a Funding Agent on its behalf and to exercise such powers under the Credit Agreement, as are delegated to the Funding Agents by the terms thereof;
Remainder of Page Intentionally Left Blank; Signature Page(s) Follow.
2
Signature Page to
Lender Group Joinder Agreement
4932-8980-4591 v.3
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first above written.
[NEW CONDUIT LENDER[S]: [NEW CONDUIT ▇▇▇▇▇▇]
By:
Name:
Title:]
[Address]
[NEW COMMITTED LENDER[S]]: [NEW COMMITTED LENDER]
By:
Name:
Title:
[Address]
NEW FUNDING AGENT: [NEW FUNDING AGENT]
By:
Name:
Title:
[Address]
Signature Page to
Lender Group Joinder Agreement
4932-8980-4591 v.3
Consented to this day of , 20 by:
NATIXIX, NEW YORK BRANCH, as Administrative Agent
By:
[Name, Title]
By:
[Name, Title]
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
4932-8980-4591 v.3
Exhibit K – Schedule I
Schedule I
Dated , 20
Section 1.
The “Commitment(s)” with respect to the New Committed Lender(s) [is][are]: [New Committed Lender] $[ ]
Section 2.
The “Lender Group Limit” with respect to the New Lender Group is $[ ].
4932-8980-4591 v.3
Exhibit L – Page
EXHIBIT L
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent BORROWER JOINDER AGREEMENT
[ ], 20
Reference is made to that certain Revolving Credit Agreement dated as of April 21, 2025 (as amended, modified or restated from time to time, the “Credit Agreement”) by and among TCW STEEL CITY PERPETUAL LEVERED FUND LP, as borrower (the “Initial Borrower”), NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), and the other agents and lenders from time to time party thereto. Capitalized terms used and not otherwise defined herein are used with the meanings set forth or incorporated by reference in the Credit Agreement.
(the “Joining Party”), the Administrative Agent and the Borrower Parties agree as follows:
13 Remove brackets if joining party is a Qualified Borrower; delete bracketed language if joining party is a Borrower.
1
4932-8980-4591 v.3
Exhibit L – Page
Remainder of Page Intentionally Left Blank; Signature Page(s) Follow.
2
Signature Page to Joinder Agreement
4932-8980-4591 v.3
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.
JOINING PARTY:
By:
Name:
Title:
[Address]
Signature Page to Joinder Agreement
4932-8980-4591 v.3
NATIXIS, NEW YORK BRANCH, as Administrative Agent
By:
[Name, Title]
By:
[Name, Title]
TCW STEEL CITY PERPETUAL LEVERED
FUND LP, as Borrower
By:
[Name, Title]
4932-8980-4591 v.3
Exhibit M – Page
EXHIBIT M
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Revolving Credit Agreement dated as of April 21, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among TCW Steel City Perpetual Levered Fund LP, as Borrower, Natixis, New York Branch, as Administrative Agent, and the lenders from time to time party thereto.
Pursuant to the provisions of Section 4.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished Administrative Agent and Borrower with a certificate of its non-
U.S. Person status on IRS Form W-8BEN (or W-8BEN-E, if applicable). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform ▇▇▇▇▇▇▇▇ and Administrative Agent, and (2) the undersigned shall have at all times furnished Borrower and Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF ▇▇▇▇▇▇]
By:
[Name, Title]
Date: , 20[ ]
1
4932-8980-4591 v.3
Exhibit M – Page
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Revolving Credit Agreement dated as of April 21, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among TCW Steel City Perpetual Levered Fund LP, as Borrower, Natixis, New York Branch, as Administrative Agent, and the lenders from time to time party thereto.
Pursuant to the provisions of Section 4.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(iii) it is not a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN (or W-8BEN-E, if applicable). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
[Name, Title]
Date: , 20[ ]
2
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Exhibit M – Page
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Revolving Credit Agreement dated as of April 21, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among TCW Steel City Perpetual Levered Fund LP, as Borrower, Natixis, New York Branch, as Administrative Agent, and the lenders from time to time party thereto.
Pursuant to the provisions of Section 4.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation,
(iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN (or W-8BEN-E, if applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN (or W-8BEN-E, if applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By:
[Name, Title]
Date: , 20[ ]
3
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Exhibit M – Page
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Revolving Credit Agreement dated as of April 21, 2025 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among TCW Steel City Perpetual Levered Fund LP, as Borrower, Natixis, New York Branch, as Administrative Agent, and the lenders from time to time party thereto.
Pursuant to the provisions of Section 4.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished Administrative Agent and Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN (or W-8BEN-E, if applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN (or W-8BEN-E, if applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform ▇▇▇▇▇▇▇▇ and Administrative Agent, and (2) the undersigned shall have at all times furnished Borrower and Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF ▇▇▇▇▇▇]
By:
[Name, Title]
Date: , 20[ ]
4
4932-8980-4591 v.3
Exhibit N – Page
EXHIBIT N
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent REQUEST FOR LETTER OF CREDIT
, 20
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ With a copy to:
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇▇▇
Ladies and Gentlemen:
This Request for Letter of Credit is executed and delivered by TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”[ and “Applicant”]) and [QUALIFIED BORROWER], a [ ] (“Qualified Borrower” and together with Borrower, the “Applicant”)], to NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), pursuant to Section 2.08 of that certain Revolving Credit Agreement, dated as of April 21, 2025 (as amended, modified, supplemented, or restated from time to time, the “Credit Agreement”), by and among Borrower, Administrative Agent, and the lenders from time to time party thereto. Capitalized
14 [NTD: Natixis to confirm contact information.]
1
4932-8980-4591 v.3
Exhibit N – Page
terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement. Applicant has contemporaneously executed and delivered to Letter of Credit Issuer an Application and Agreement for Letter of Credit dated , 20 . In the event of a conflict between the terms of the Credit Agreement and said Application and Agreement for Letter of Credit, the terms of the Credit Agreement will control.
1 Applicant hereby requests that Letter of Credit Issuer [issue][amend] a Letter of Credit as follows:
For issuances:
Proposed Issuance Date:
Stated Amount: $ Expiry Date:
Beneficiary Name and Address:
Documents to be Presented
in Case of Drawing [please attach as a schedule hereto]
Full Text of Certificate to be Presented
in Case of Drawing [please attach as a schedule hereto]
For amendments:
Letter of Credit to be Amended
Proposed Date of Amendment (a Business Day) Nature of Proposed Amendment
Remainder of Page Intentionally Left Blank; Signature Page Follows.
2
4932-8980-4591 v.3
Request for Letter of Credit
This Request for Letter of Credit is executed on , 20 . The undersigned hereby [certifies] [certify] each and every matter contained herein [(to the extent applicable)] to be true and correct.
APPLICANT:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
Signature Page to
4932-8980-4591 v.3
Exhibit N – Schedule I
SCHEDULE I
DATED AS OF , 20
Calculation of Available Commitment [To be attached]
4932-8980-4591 v.3
Exhibit O
EXHIBIT O
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent PREPAYMENT NOTICE
, 20
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Natixis, New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ Ladies and Gentlemen:
Please accept this as written notification that TCW STEEL CITY PERPETUAL LEVERED FUND LP, a Delaware limited partnership (“Borrower”) will repay all or a portion of the Obligations to NATIXIS, NEW YORK BRANCH, as administrative agent (“Administrative Agent”), in connection with that certain Revolving Credit Agreement, dated as of April 21, 2025 (as it may be amended, modified, supplemented, restated or amended and restated from time to time, the “Credit Agreement”; capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement), entered into by and among Borrower, Administrative Agent and the lenders from time to time party thereto, pursuant to the following:
Amount:
Currency:
Loan Type:
Date of Payment:
4932-8980-4591 v.3
Exhibit O
Remainder of Page Intentionally Left Blank; Signature Page(s) Follow.
4932-8980-4591 v.3
Exhibit O
The undersigned hereby certifies each and every matter contained herein to be true and correct.
BORROWER:
TCW STEEL CITY PERPETUAL LEVERED FUND LP
By:
[Name, Title]
4932-8980-4591 v.3
Exhibit P – Page 1
EXHIBIT P
to Revolving Credit Agreement by and among
TCW STEEL CITY PERPETUAL LEVERED FUND LP,
as ▇▇▇▇▇▇▇▇, and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent INTERMEDIATE ENTITY ACKNOWLEDGMENT
This INTERMEDIATE ENTITY ACKNOWLEDGMENT (as amended, modified, supplemented or restated from time to time, this “Acknowledgment”) is executed and delivered as of [●], 202_, by each of the entities listed as an “Intermediate Entity” on Schedule A hereto (each, individually and not jointly, an “Intermediate Entity”), and each such Intermediate Entity’s General Partner, if any, listed as a “General Partner” on the same line for such Intermediate Entity on Schedule A hereto (with respect to such Intermediate Entity, the “General Partner”) in favor of the entity listed as the “Secured Party” on the same line for such Intermediate Entity on Schedule A hereto, and not to any other Person, including without limitation, any other Secured Party set forth on any other line on Schedule A hereto (with respect to such Intermediate Entity only, the “Secured Party”) and NATIXIS, NEW YORK BRANCH, as Administrative Agent (as defined herein) for the Secured Parties (as used herein, the term “Lender Secured Parties” will have the equivalent meaning of “Secured Party” as defined in the Credit Agreement).
Recitals
4932-8980-4591 v.3
Exhibit P – Page
into, as applicable, (a) an Intermediate Entity Subscription Agreement of such Intermediate Entity, (b) the applicable Secured Party Governing Agreement and/or (c) an Intermediate Entity Loan, in each case as set forth on the same line for such Intermediate Entity and Secured Party on Schedule A hereto (together with this Acknowledgment, collectively, the “Secured Party Subscription Documents”), whereby such Intermediate Entity has subscribed for Subscriber Interests in such Secured Party or committed to advance an Intermediate Entity Loan to such Secured Party (the aggregate Capital Commitments of the Intermediate Entity in such Secured Party are referred to herein as the “Intermediate Entity Capital Commitments”) and made certain agreements to make Capital Contributions to such Secured Party (an “Intermediate Entity Capital Contribution”), in each case to satisfy any Capital Call made by such Secured Party (a “Secured Party Capital Call”).
(x) has entered into the Intermediate Entity Security Agreement dated as of the date hereof made by the Intermediate Entities and their General Partners in favor of the applicable Secured Parties, and (y) to the extent applicable, has entered into that certain Intermediate Entity Assignment of Collateral Account dated as of the date hereof, executed by, inter alios, each Intermediate Entity party thereto, in favor of such secured party listed as “Secured Party” on the same line for such Intermediate Entity (as amended, modified, supplemented or restated from time to time, the “Intermediate Entity Assignment of Account”; together with the Intermediate Entity Security Agreement, if applicable, are collectively referred to herein as the “Intermediate Entity Security Documents”; the collateral described in the applicable Intermediate Entity Security Documents (as relates to such Intermediate Entity and its General Partner) is collectively referred to herein as the “Intermediate Entity Collateral”).
YORK BRANCH, as administrative agent (“Administrative Agent”), and the other agents and lenders from time to time party thereto, the applicable Secured Party has agreed to collaterally pledge and assign to the applicable assignee for further assignment by such secured party, directly or indirectly, to Administrative Agent (or, if no such intermediary assignee exists between such Secured Party and Administrative Agent, directly to Administrative Agent) as security for the repayment of the Obligations under the Credit Agreement: (i) the Intermediate Entity Collateral and (ii) such Secured Party’s rights to initiate Secured Party Capital Calls, such Secured Party’s rights to receive payment of all Intermediate Entity Capital Contributions and, if applicable, such Secured Party’s rights to make requests from Intermediate Entity to advance funds in the form of a loan.
AGREEMENTS
(x) the Subscriber Capital Commitments of such Intermediate Entity’s Subscribers into such Intermediate
2
4932-8980-4591 v.3
Exhibit P – Page
Entity are reduced, terminated or forgiven in accordance with the applicable Subscriber Subscription Documents, or (y) any of such Intermediate Entity’s Subscriber defaults in its obligation to make its Subscriber Capital Contribution to such Intermediate Entity and such Subscriber does not cure such default, resulting in a reduction or termination of such Subscriber’s Subscriber Capital Commitment by such Intermediate Entity in exercising its remedies under the applicable Subscriber Subscription Documents, then such Intermediate Entity’s Intermediate Entity Capital Commitment shall be reduced by the amount of any such reduction, termination or forgiveness.
(ii) this Acknowledgment and the rights of each Secured Party hereunder may be collaterally pledged and assigned by such Secured Party to the applicable assignee for further assignment by such assignee, directly or indirectly, to Administrative Agent (or, if no such Intermediate Entity assignee exists between such Secured Party and Administrative Agent, directly to Administrative Agent), for the benefit of the Lender Secured Parties and their respective successors and assigns, as security for the Obligations under the Credit Agreement, and (iii) the Lender Secured Parties would not enter into the Credit Agreement but for the execution, delivery and performance of this Acknowledgment.
Partner:
3
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Exhibit P – Page
Contributions to the applicable Secured Party (an “Agent Call”), then such Intermediate Entity will make such Intermediate Entity Capital Contributions to Administrative Agent as the ultimate assignee of the rights of the applicable Secured Party, consistent with its obligation to make Intermediate Entity Capital Contributions under the applicable Secured Party Subscription Documents, and such Intermediate Entity will pay such Intermediate Entity Capital Contributions into the applicable Collateral Account for application to such amounts as may be due and payable under the Credit Agreement. Each Intermediate Entity agrees that, so long as any Obligations are outstanding and the Credit Agreement remains effective, such Intermediate Entity will absolutely and unconditionally fund such Agent Calls to the applicable Collateral Account without defense, counterclaim or offset of any kind, including any defense arising under Section 365(c) of the U.S. Bankruptcy Code, if applicable, provided that such agreement to fund shall not act as a waiver by such Intermediate Entity to assert independently any claim that such Intermediate Entity may have against any Secured Party or any other Loan Party.
4
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Exhibit P – Page
Secured Party or Agent Call made by Administrative Agent as the ultimate assignee of the rights of the applicable Secured Party in accordance with the applicable Secured Party Subscription Documents, such Intermediate Entity will, immediately upon demand, pay into the applicable Collateral Account all costs and expenses (including court costs and attorney’s fees) incurred by Administrative Agent or the other Lender Secured Parties, or both, in the enforcement of such Secured Party Capital Call or Agent Call or the preservation of the applicable Secured Party’s rights or Administrative Agent’s rights to exercise such Secured Party’s right to make a Secured Party Capital Call on behalf of such Secured Party for the benefit of the Lender Secured Parties.
5
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6
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Exhibit P – Page
7
4932-8980-4591 v.3
Exhibit P – Page
8
4932-8980-4591 v.3
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BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS ACKNOWLEDGMENT OR IN ANY OTHER LOAN DOCUMENT WILL AFFECT ANY RIGHT THAT ANY SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS ACKNOWLEDGMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY INTERMEDIATE ENTITY, GENERAL PARTNER, ANY INVESTOR OR ITS RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER; AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS OF AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
(i) Recourse. Notwithstanding anything to the contrary herein, the obligations of each Intermediate Entity and each General Partner hereunder are subject to the recourse and nonrecourse provisions of Section 13.17 of the Credit Agreement.
9
4932-8980-4591 v.3
Exhibit P – Page
the applicable Secured Party (and their respective successors and permitted assigns), as contemplated in this sentence.
Remainder of Page Intentionally Left Blank; Signature Pages Follow.
10
Signature Page to Intermediate Entity Acknowledgment
4932-8980-4591 v.3
Executed as of the date set forth above.
INTERMEDIATE ENTITIES:
[NAME OF ENTITY].
By: Name:
Title:
[NAME OF ENTITY].
By: Name:
Title:
Signature Page to Intermediate Entity Acknowledgment
4932-8980-4591 v.3
GENERAL PARTNERS:
[NAME OF GENERAL PARTNER]
By: Name
Title
[NAME OF GENERAL PARTNER]
By: Name
Title
Signature Page to Intermediate Entity Acknowledgment
4932-8980-4591 v.3
SECURED PARTIES:
[NAME OF ENTITY].
By: Name:
Title:
[NAME OF ENTITY].
By: Name:
Title:
4932-8980-4591 v.3
Schedule A to Intermediate Entity Acknowledgment
Name of |
Intermediate Entity |
General Partner |
Name of |
Name of |
Secured Party |
Intermediate |
Intermediate |
Governing |
(if any) |
Subscriber(s) |
Secured Party |
Governing |
Entity |
Entity |
Agreement |
|
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|
Agreement |
Subscription |
|
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|
|
Agreement/ |
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|
|
Intermediate |
|
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|
|
|
Entity Loan |
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4932-8980-4591 v.3
Exhibit P – Annex A
ANNEX A
JOINDER AGREEMENT TO INTERMEDIATE ENTITY ACKNOWLEDGMENT
THIS JOINDER AGREEMENT (this “Joinder Agreement”), dated as of [●], 20 , is entered into by each of the entities executing this Joinder Agreement as an “Intermediate Entity” (each an “Additional Intermediate Entity”), and each Additional Intermediate Entity’s General Partner, if any, listed as a “General Partner” on the same line for such Intermediate Entity on Schedule A hereto (with respect to such Additional Intermediate Entity, the “General Partner”), in favor of the entity listed as the “Secured Party” on the same line for each such Additional Intermediate Entity on Schedule A hereto, and not in favor of any other Person, including without limitation, any other Secured Party set forth on any other line on Schedule A hereto (each an “Additional Secured Party”) and NATIXIS, NEW YORK BRANCH, as Administrative Agent for the benefit of the Lender Secured Parties. Capitalized terms not defined herein shall have the meanings assigned to such terms in the Credit Agreement (as defined in the Acknowledgment referred to below).
Remainder of Page Intentionally Left Blank; Signature Pages Follow.
4932-8980-4591 v.3
Intermediate Entity Acknowledgment
Executed on the date first above written.
ADDITIONAL INTERMEDIATE ENTITIES: [NAME OF ADDITIONAL INTERMEDIATE
ENTITY]
By: Name:
Title:
[NAME OF ADDITIONAL INTERMEDIATE ENTITY]
By: Name:
Title:
GENERAL PARTNERS:
[NAME OF GENERAL PARTNER]
By: Name:
Title:
[NAME OF GENERAL PARTNER]
By: Name:
Title:
Signature Page to Joinder Agreement to
4932-8980-4591 v.3
Exhibit P – Annex A
Schedule A to Intermediate Entity Acknowledgment
Name of |
Intermediate |
General |
Name of |
Name of |
Secured |
Intermediate |
Intermediate |
Entity |
Partner |
Subscriber(s) |
Secured |
Party |
Entity |
Entity |
Governing |
(if any) |
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Party |
Governing |
Subscription |
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Agreement |
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Agreement |
Agreement/ |
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Intermediate |
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Entity Loan |
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