1
Exhibit 2f.2g
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
among
ALLIED CAPITAL CORPORATION,
Borrower
BANK OF AMERICA, N.A.,
Administrative Agent
BANC OF AMERICA SECURITIES LLC,
Sole Lead Arranger and Sole Book Manager
FIRST UNION NATIONAL BANK,
Syndication Agent
FLEET NATIONAL BANK,
Documentation Agent
▇▇▇▇▇ BANK N.A.,
Managing Agent
CREDIT LYONNAIS NEW YORK BRANCH,
BRANCH BANKING & TRUST CO.,
CHEVY CHASE BANK, F.S.B.,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
Co-Agents
and
THE LENDERS NAMED HEREIN,
Lenders
UP TO $600,000,000
DATED AS OF AUGUST 3, 2001
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND TERMS .......................................................................... 1
1.1 Definitions ........................................................................ 1
1.2 General; References to Times ....................................................... 17
1.3 Accounting Principles .............................................................. 17
SECTION 2 CREDIT FACILITY ................................................................................ 17
2.1 Loans .............................................................................. 17
2.2 Swing Line Subfacility ............................................................. 18
2.3 LC Subfacility ..................................................................... 19
2.4 Borrowing Procedures ............................................................... 23
2.5 Rates and Payment of Interest on Loans ............................................. 24
2.6 Number of Interest Periods ......................................................... 24
2.7 Repayment of Loans ................................................................. 25
2.8 Prepayments ........................................................................ 25
2.9 Continuation ....................................................................... 25
2.10 Conversion ......................................................................... 26
2.11 Loan Accounts, Notes ............................................................... 26
2.12 Reductions of the Commitments; Option to Extend the Commitments .................... 26
2.13 Increases of Commitments ........................................................... 27
SECTION 3 PAYMENTS, FEES AND OTHER GENERAL PROVISIONS .................................................... 27
3.1 Payments ........................................................................... 27
3.2 Pro Rata Treatment ................................................................. 28
3.3 Sharing of Payments, Etc ........................................................... 28
3.4 Offset ............................................................................. 29
3.5 Booking Borrowings ................................................................. 29
3.6 Several Obligations ................................................................ 29
3.7 Minimum Amounts .................................................................... 29
3.8 Fees ............................................................................... 29
3.9 Computations ....................................................................... 30
3.10 Maximum Rate ....................................................................... 30
3.11 Interest Recapture ................................................................. 30
3.12 Agreement Regarding Interest and Charges ........................................... 31
3.13 Defaulting Lenders ................................................................. 31
SECTION 4 YIELD PROTECTION, ETC .......................................................................... 32
4.1 Increased Cost and Reduced Return .................................................. 32
4.2 Limitation on Types of Loans ....................................................... 33
4.3 Illegality ......................................................................... 34
4.4 Treatment of Affected Loans ........................................................ 34
4.5 Compensation ....................................................................... 35
4.6 Taxes .............................................................................. 35
4.7 Removal of Lenders ................................................................. 37
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
3
SECTION 5 CONDITIONS PRECEDENT ....................................................................... 37
5.1 Initial Conditions Precedent .................................................... 37
5.2 Conditions Precedent to All Loans ............................................... 39
SECTION 6 REPRESENTATIONS AND WARRANTIES ............................................................. 40
6.1 Representations and Warranties . ................................................ 40
6.2 Survival of Representations and Warranties, Etc ................................. 44
SECTION 7 AFFIRMATIVE COVENANTS . .................................................................... 45
7.1 Preservation of Existence and Similar Matters ................................... 45
7.2 Compliance with Applicable Law and Material Contracts ........................... 45
7.3 Maintenance of Property ......................................................... 45
7.4 Conduct of Business ............................................................. 45
7.5 Insurance ....................................................................... 45
7.6 Payment of Taxes and Claims ..................................................... 45
7.7 Visits and Inspections .......................................................... 45
7.8 Use of Proceeds ................................................................. 46
7.9 Environmental Matters ........................................................... 46
7.10 Books and Records ............................................................... 46
7.11 Status of RIC and BDC ........................................................... 46
7.12 ERISA Exemptions ................................................................ 46
7.13 Further Assurances .............................................................. 46
SECTION 8 INFORMATION ................................................................................ 47
8.1 Quarterly Financial Statements .................................................. 47
8.2 Year-End Statements ............................................................. 47
8.3 Compliance Certificate; Asset Reports ........................................... 47
8.4 Other Information ............................................................... 48
SECTION 9 NEGATIVE COVENANTS ......................................................................... 50
9.1 Financial Covenants ............................................................. 50
9.2 Interest Rate Agreements ........................................................ 50
9.3 Liens; Agreements Regarding Liens; Other Matters ................................ 50
9.4 Distributions to Shareholders ................................................... 51
9.5 Merger, Consolidation and Sales of Assets ....................................... 51
9.6 Fiscal Year ..................................................................... 52
9.7 Modifications to Material Contracts ............................................. 52
9.8 Transactions with Affiliates .................................................... 53
9.9 Subsidiary Senior Note Guaranty ................................................. 53
9.10 Employee Benefit Plans .......................................................... 53
9.11 Payment of Obligation ........................................................... 53
SECTION 10 DEFAULT .................................................................................... 53
10.1 Events of Default ............................................................... 53
10.2 Remedies Upon Event of Default .................................................. 56
10.3 Remedies Upon Certain Defaults .................................................. 57
10.4 Allocation of Proceeds .......................................................... 58
(ii) SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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10.5 Performance by Administrative Agent ........................................... 58
10.6 Rights Cumulative ............................................................. 59
10.7 Company Waivers ............................................................... 59
10.8 Delegation of Duties and Rights ............................................... 59
10.9 Not in Control ................................................................ 59
10.10 Course of Dealing ............................................................. 59
10.11 Cumulative Rights ............................................................. 59
SECTION 11 AGREEMENT AMONG LENDERS ................................................................... 60
11.1 Appointment, Powers, and Immunities ........................................... 60
11.2 Reliance by Administrative Agent .............................................. 60
11.3 Defaults ...................................................................... 60
11.4 Rights as Lender .............................................................. 61
11.5 LC Issuer ..................................................................... 61
11.6 Indemnification ............................................................... 61
11.7 Non-Reliance on Administrative Agent and Other Lenders ........................ 62
11.8 Resignation of Administrative Agent ........................................... 62
11.9 Relationship of Lenders ....................................................... 62
11.10 Benefits of Agreement ......................................................... 62
11.11 Obligations Several ........................................................... 62
11.12 Agents ........................................................................ 63
SECTION 12 MISCELLANEOUS ............................................................................. 63
12.1 Notices ....................................................................... 63
12.2 Expenses ...................................................................... 63
12.3 Jurisdiction; Consent to Service of Process; Waiver of Jury Trial ............. 64
12.4 Successors and Assigns ........................................................ 65
12.5 Amendments .................................................................... 67
12.6 Nonliability of Agent and Lenders ............................................. 67
12.7 Confidentiality ............................................................... 67
12.8 INDEMNIFICATION ............................................................... 68
12.9 Severability of Provisions .................................................... 69
12.10 Governing Law ................................................................. 69
12.11 Counterparts .................................................................. 69
12.12 Entirety ...................................................................... 69
12.13 Construction .................................................................. 69
12.14 Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances ......................................................... 69
12.15 Restatement of Existing Agreement ............................................. 70
(iii) SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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SCHEDULES AND EXHIBITS
SCHEDULE 2 - Lenders and Commitments
SCHEDULE 6.1(a) - Qualification
SCHEDULE 6.1(b) - Ownership Structure
SCHEDULE 6.1(g) - Indebtedness
SCHEDULE 6.1(h) - Material Contracts
EXHIBIT A - Form of Assignment and Acceptance Agreement
EXHIBIT B-1 - Form of Notice of Borrowing
EXHIBIT B-2 - Form of LC Request
EXHIBIT C - Form of Notice of Continuation
EXHIBIT D - Form of Notice of Conversion
EXHIBIT E-1 - Form of Second Amended and Restated Revolving Note
EXHIBIT E-2 - Form of Second Amended and Restated Swing Line Note
EXHIBIT F - Form of Opinion of Counsel
EXHIBIT G - Form of Compliance Certificate
(iv) SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is entered into as
of August 3, 2001, by and among ALLIED CAPITAL CORPORATION, a corporation
organized under the laws of the State of Maryland ( "BORROWER"), certain Lenders
(hereinafter defined), certain Agents (hereinafter defined), and BANK OF
AMERICA, N.A., as a Lender and as Administrative Agent (hereinafter defined) for
itself and the other Lenders (hereinafter defined).
RECITALS
A. Borrower has entered into the Amended and Restated Credit
Agreement dated as of May 17, 2000, as amended by that certain Amendment and
Consent Agreement dated as of December 11, 2000 (the "EXISTING AGREEMENT") with
Bank of America, N.A. (in its capacity as "ADMINISTRATIVE AGENT" thereunder and
as Lender) and certain other Lenders party thereto (together with Bank of
America, N.A., the "EXISTING LENDERS"), providing for, among other things, a
revolving credit facility of up to $500,000,000.
B. Subject to the terms and conditions set forth below, Borrower and
Lenders desire to entirely amend, modify, and restate the Existing Agreement.
C. The amendment and restatement of the Existing Agreement hereunder
is not intended by the parties to constitute either a novation or a discharge or
satisfaction of the indebtedness and obligations under the Existing Agreement,
which indebtedness and obligations under the Existing Agreement shall remain
outstanding hereunder on the terms and conditions hereinafter provided.
In consideration of the foregoing and the mutual covenants contained
herein, Borrower, Bank of America, N.A. (in its capacity as Administrative Agent
under this Agreement and the Existing Agreement), and Lenders agree that,
effective upon the Effective Date, the Existing Agreement is amended and
restated in its entirety as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS . As used herein:
"ADJUSTED EBIT" means, for any period with respect to Borrower and
its Consolidated Subsidiaries, income after deduction of all expenses and other
proper charges other than taxes and Interest Expense, all as determined in
accordance with GAAP.
"ADJUSTED EURODOLLAR RATE" means, for any Eurodollar Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by Administrative Agent to be equal to the
quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar Loan
for such Interest Period by (b) one minus the Reserve Requirement for such
Eurodollar Loan for such Interest Period.
"ADMINISTRATIVE AGENT" means Bank of America, N.A., and its
permitted successors or assigns as "Administrative Agent" for the Lenders under
this Agreement.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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"AFFECTED LENDER" has the meaning given that term in SECTION 4.7.
"AFFILIATE" means, as to any Person, any other Person: (a) directly
or indirectly controlling, controlled by, or under common control with such
Person; (b) directly or indirectly owning or holding 5.0% or more of any equity
interest in such Person; or (c) 5.0% or more of whose voting stock or other
equity interest is directly or indirectly owned or held by such Person. For
purposes of this definition, (x) "control" (including with correlative meanings,
the terms "controlling," "controlled by," and "under common control with") means
the possession directly or indirectly of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or by contract or otherwise, other than by
investment advisory contracts entered into in the ordinary course of business of
Borrower or a Subsidiary of Borrower, and (y) neither Administrative Agent nor
any Lender shall be deemed to be an "Affiliate" of Borrower.
"AGENTS" means, collectively, Syndication Agent, Documentation
Agent, Managing Agent, and Co-Agents.
"AGREEMENT" means this Second Amended and Restated Credit Agreement
(as the same may hereafter be amended, modified, supplemented, or restated from
time to time).
"AGREEMENT DATE" means the date as of which this Agreement is dated.
"APPLICABLE LAW" means all applicable provisions of constitutions,
statutes, rules, regulations, and orders of all governmental bodies and all
orders and decrees of all courts, tribunals, and arbitrators.
"APPROVED FUND" means any Fund 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 Banc of America Securities LLC and its successors
and assignees in its capacity as "Lead Arranger."
"ASSET COVERAGE RATIO" shall mean, on a consolidated basis for
Borrower and its Consolidated Subsidiaries, the ratio which the value of total
assets, less all liabilities and indebtedness not represented by senior
securities (all as determined pursuant to the Investment Company Act and any
orders of the Securities and Exchange Commission issued to Borrower thereunder),
bears to the aggregate amount of senior securities representing indebtedness of
Borrower and its Consolidated Subsidiaries.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an Assignment and
Acceptance Agreement among a Lender, an Eligible Assignee, and Administrative
Agent, substantially in the form of EXHIBIT A or such other form as may be
agreed to by such Lender, such Eligible Assignee, and Administrative Agent.
"BANK OF AMERICA" means Bank of America, N.A. and its permitted
successors and assigns.
"BASE RATE" means, for any day, a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate for such day plus one-half of one
percent (0.5%) and (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its "prime rate." Such rate is
a rate set by Bank of America based upon various factors including Bank of
America's costs and desired return,
2 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
8
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 Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Loan bearing interest at a rate based on
the Base Rate.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by any
member of the ERISA Group.
"BOOK VALUE" means, at any date of determination with respect to any
asset, the value thereof as the same would be reflected on a consolidated
balance sheet of Borrower and its Consolidated Subsidiaries as at such time in
accordance with GAAP.
"BORROWER" is defined in the preamble to this Agreement and includes
any permitted successors of Borrower.
"BUSINESS DAY" means (a) any day other than a Saturday, Sunday, or
other day on which banks in New York City, New York are authorized or required
to close and (b) in addition to the foregoing, with reference to a Eurodollar
Loan, any such day that is also a day on which dealings in Dollar deposits are
carried out in the London interbank market and commercial banks are open for
international business in London.
"CAPITALIZED LEASE OBLIGATION" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with such principles.
"CO-AGENTS" means, collectively, Credit Lyonnais New York Branch,
Branch Banking & Trust Co., Chevy Chase Bank, F.S.B., and Deutsche Bank AG, New
York Branch and their respective permitted successors or assigns as "Co-Agents"
under this Agreement.
"COMMERCIAL MORTGAGE LOAN" means a loan secured by a Lien on
improved real estate used for commercial purposes.
"COMMITMENT" means, as to each Lender (other than LC Issuer or Swing
Line Lender), such Lender's obligation to make Loans pursuant to SECTION 2.1 (or
purchase participations in Swing Line Loans pursuant to SECTION 2.2(c) or in LCs
pursuant to SECTION 2.3(b)) in an amount up to, but not exceeding, the amount
set forth for such Lender on SCHEDULE 2 as such Lender's "Commitment Amount" or
as set forth in the applicable Assignment and Acceptance Agreement, as the same
may be reduced or increased from time to time pursuant to SECTIONS 2.12 and 2.13
or as appropriate to reflect any assignments to or by such Lender effected in
accordance with SECTION 12.4.
"COMMITMENT PERCENTAGE" means, as to each Lender (other than LC
Issuer or Swing Line Lender), the ratio, expressed as a percentage, of (a) the
amount of such Lender's Commitment to (b) the sum
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9
of the aggregate amount of the Commitments of all Lenders (other than LC Issuer
and Swing Line Lender) hereunder; provided, however, that if at the time of
determination, the Commitments have terminated or been reduced to zero, the
"COMMITMENT PERCENTAGE" of each such Lender shall be the Commitment Percentage
of such Lender in effect immediately prior to such termination or reduction.
"COMMITMENT USAGE" means, at the time of any determination thereof,
the sum of (a) the Principal Debt plus, without duplication, (b) the LC
Exposure.
"COMPLIANCE CERTIFICATE" means a certificate signed by the chief
financial officer of Borrower, substantially in the form of EXHIBIT G.
"CONSOLIDATED DEBT" shall mean as of the date of any determination
thereof, the aggregate unpaid amount of all Debt of Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED SHAREHOLDERS' EQUITY," as of the date of determination
thereof, shall mean the total shareholders' equity of Borrower and its
Consolidated Subsidiaries as the same would appear on a consolidated balance
sheet of Borrower and its Consolidated Subsidiaries prepared as of such date in
accordance with GAAP, including, in any case, common stock of Borrower (valued
at cost) held in the Allied Capital Corporation Deferred Compensation Trust and
Permitted Preferred Stock of Borrower and its Consolidated Subsidiaries, but
excluding any stock, common or preferred, not both issued and outstanding.
"CONSOLIDATED SUBSIDIARIES" shall mean any Subsidiary which is
required to be consolidated on financial statements of Borrower prepared in
accordance with GAAP.
"CONTINGENT OBLIGATION" as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person: (a) with respect
to any indebtedness, lease, dividend, or other obligation of another Person if
the primary purpose or intent of the Person incurring such liability, or the
primary effect thereof, is to provide assurance to the obligee of such liability
that such liability will be paid or discharged, or that any agreements relating
thereto will be complied with, or that the holders of such liability will be
protected (in whole or in part) against loss with respect thereto; (b) with
respect to any letter of credit issued for the account of that Person or as to
which that Person is otherwise liable for reimbursement of drawings; (c) under
Interest Rate Agreements; or (d) under any foreign exchange contract, currency
swap agreement, or other similar agreement or arrangement designed to protect
that Person against fluctuations in currency values. "Contingent Obligations"
shall include (i) the direct or indirect guaranty, endorsement (other than for
collection or deposit in the ordinary course of business), comaking, discounting
with recourse, or sale with recourse by such Person of the obligation of
another, (ii) the obligation to make take or pay or similar payments if required
regardless of nonperformance by any other party or parties to an agreement, and
(iii) any liability of such Person for the obligations of another through any
agreement to purchase, repurchase, or otherwise acquire such obligation or any
property constituting security therefor, to provide funds for the payment or
discharge of such obligation, or to maintain the solvency, financial condition,
or any balance sheet item or level of income of another. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if not a fixed and determined amount, the
maximum amount so guaranteed. The amount of any Contingent Obligation
outstanding under CLAUSE (c) shall be determined in accordance with the
definition of Interest Rate Agreement. The amount of any Contingent Obligation
outstanding under CLAUSE (d) shall be the net amount determined in good faith by
Administrative
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10
Agent using any convention or method used by Administrative Agent in quantifying
its own exposure under such agreements or arrangements.
"CONTINUE," "CONTINUATION," and "CONTINUED" each refers to the
continuation of a Eurodollar Loan from one Interest Period to another Interest
Period pursuant to SECTION 2.9.
"CONTINUING LENDERS" has the meaning given that term in SECTION
12.15.
"CONVERT," "CONVERSION," and "CONVERTED" each refers to the
conversion of a Loan of one Type into a Loan of another Type pursuant to SECTION
2.10.
"CREDIT EVENT" means any of the following: (a) the making (or deemed
making) of any Loan (except the payment by LC Issuer of drafts under LCs), (b)
the Conversion of a Loan, or (c) the issuance of any LC.
"CREDIT RATING" means, at any time as to any Person, the lowest
rating assigned by a Rating Agency to each series of rated senior unsecured long
term indebtedness of such Person.
"DEBT" means, with respect to any Person, without duplication,
(a) its liabilities for borrowed money and under
repurchase agreements;
(b) its liabilities for the deferred purchase price of
property acquired by such Person (excluding accounts payable arising
in the ordinary course of business, but including, without
limitation, all liabilities created or arising under any conditional
sale or other title retention agreement with respect to any such
property);
(c) its Capitalized Lease Obligations;
(d) all liabilities for borrowed money secured by any
Lien with respect to any property owned by such Person (whether or
not it has assumed or otherwise become liable for such liabilities);
(e) all reimbursement obligations of such Person under
any letters of credit or acceptances (whether or not the same have
been presented for payment), and all obligations of such Person as
the issuer of any letters of credit or acceptances (whether or not
the same have been presented for payment); and
(f) any Contingent Obligation of such Person with
respect to liabilities of a type described in any of CLAUSES (a)
through (e) hereof.
"Debt" of any Person shall include all obligations of such Person of the
character described in CLAUSES (a) through (e) to the extent such Person remains
legally liable in respect thereof notwithstanding that any such obligation is
deemed to be extinguished under GAAP.
"DEFAULT" means any of the events specified in SECTION 10.1, whether
or not there has been satisfied any requirement for the giving of notice, the
lapse of time, or both.
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"DEFAULTING LENDER" has the meaning given that term in SECTION 3.13.
"DOCUMENTATION AGENT" means Fleet National Bank and its permitted
successors or assigns as "Documentation Agent" under this Agreement.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"EFFECTIVE DATE" means the later of: (a) the Agreement Date; and (b)
the date on which all of the conditions precedent set forth in SECTION 5.1 shall
have been satisfied or waived, but (c) must be, if at all, a Business Day
occurring no later than August 3, 2001.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of any
Lender; (iii) an Approved Fund; and (iv) any other Person approved by
Administrative Agent and (unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with SECTION
12.4) Borrower, such approval not to be unreasonably withheld or delayed by
Borrower or Administrative Agent and such approval to be deemed given by
Borrower if no objection is received by the assigning Lender and Administrative
Agent from Borrower within five Business Days after notice of such proposed
assignment has been provided by the assigning Lender to Borrower; provided,
however, that neither Borrower nor an Affiliate of Borrower shall qualify as an
Eligible Assignee.
"ENVIRONMENTAL LAWS" means any Applicable Law relating to
environmental protection or the manufacture, storage, disposal, or clean-up of
Hazardous Materials, including, without limitation, the following: Clean Air
Act, 42 U.S.C. 7401 et seq.; Federal Water Pollution Control Act, 33 U.S.C. 1251
et seq.; Solid Waste Disposal Act, 42 U.S.C. 6901 et seq.; Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq.;
National Environmental Policy Act, 42 U.S.C. 4321 et seq.; regulations of the
Environmental Protection Agency, and any applicable rule of common law and any
judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
"EQUITY ISSUANCE" means any issuance or sale by a Person of its
capital stock or other similar equity security, or any warrants, options, or
similar rights to acquire, or securities convertible into or exchangeable for,
such capital stock or other similar equity security.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA GROUP" means Borrower, any Subsidiary, and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURODOLLAR LOAN" means a Loan bearing interest at a rate based on
the Eurodollar Rate.
"EURODOLLAR RATE" means, for any Eurodollar Loan for any Interest
Period therefor:
(a) the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page
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12
of the Telerate screen (and any successor thereto) that displays an
average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period; or
(b) if for any reason the rate in the preceding CLAUSE
(a) does not appear on such page or service or such page or service
shall cease to be available, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the rate determined
by Administrative Agent to be the offered rate that appears on such
other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period; or
(c) if the rates referenced in the preceding CLAUSES (a)
and (b) are not available, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the rate determined
by Administrative Agent to be the rate of interest at which deposits
in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Loan
being made, continued, or converted and with a term equivalent to
such Interest Period would be offered by Bank of America's London
Branch to major banks in the offshore Dollar market at their request
at approximately 11:00 a.m. (London time) two Business Days prior to
the first day of such Interest Period.
"EVENT OF DEFAULT" means any of the events specified in SECTION
10.1, provided that, any requirement for notice or lapse of time or any other
condition has been satisfied.
"EXCHANGE ACT" has the meaning given that term in SECTION 10.1(m).
"EXISTING AGREEMENT" is defined in the Recitals to this Agreement.
"EXISTING LENDERS" is defined in the Recitals to this Agreement.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 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 Bank of America on
such day on such transactions as determined by Administrative Agent.
"FEES" means the fees and commissions provided for or referred to in
SECTION 3.8 and any other fees payable by Borrower to Administrative Agent, any
other Agent, LC Issuer, Swing Line Lender, or any Lender hereunder or under any
other Loan Document.
"FORECLOSURE PROPERTY" means assets acquired by foreclosure (or sale
in lieu of foreclosure) of any Investment (other than Investments in a
Consolidated Subsidiary) of Borrower or any of its Subsidiaries.
7 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
13
"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.
"GAAP" means, subject to SECTION 1.3, accounting principles as
promulgated from time to time in statements, opinions and pronouncements by the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board and in such statements, opinions, and pronouncements of such
other entities with respect to financial accounting of for-profit entities as
shall be accepted by a substantial segment of the accounting profession in the
United States.
"GOVERNMENTAL APPROVALS" means all authorizations, consents,
approvals, licenses, and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"GOVERNMENTAL AUTHORITY" means any national, state, or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental, quasi-governmental, judicial, public, or statutory
instrumentality, authority, body, agency, bureau, or entity (including, without
limitation, the Federal Deposit Insurance Corporation, the Comptroller of the
Currency, or the Federal Reserve Board, any central bank, or any comparable
authority) or any arbitrator with authority to bind a party at law.
"HAZARDOUS MATERIALS" means all or any of the following: (a)
substances that are defined or listed in, or otherwise classified pursuant to,
any applicable Environmental Laws as "hazardous substances," "hazardous
materials," "hazardous wastes," "toxic substances," or any other formulation
intended to define, list or classify substances by reason of deleterious
properties such as ignitability, corrosivity, reactivity, carcinogenicity,
reproductive toxicity, "TLCP" toxicity, or "EP toxicity"; (b) oil, petroleum, or
petroleum derived substances, natural gas, natural gas liquids, or synthetic gas
and drilling fluids, produced waters, and other wastes associated with the
exploration, development, or production of crude oil, natural gas, or geothermal
resources; (c) any flammable substances or explosives or any radioactive
materials; (d) asbestos in any form; or (e) electrical equipment which contains
any oil or dielectric fluid containing levels of polychlorinated biphenyls in
excess of fifty parts per million.
"INDEBTEDNESS" means, with respect to a Person, at the time of
computation thereof, all of the following (without duplication): (a) obligations
of such Person in respect of money borrowed; (b) obligations of such Person
(other than trade debt incurred in the ordinary course of business), whether or
not for money borrowed (i) represented by notes payable or drafts accepted, in
each case representing extensions of credit, (ii) evidenced by bonds,
debentures, notes, or similar instruments, (iii) consisting of repurchase
agreements, whether on a recourse or a non-recourse basis, or (iv) constituting
purchase money indebtedness, conditional sales contracts, title retention debt
instruments, or other similar instruments, upon which interest charges are
customarily paid or that are issued or assumed as full or partial payment for
property; (c) Capitalized Lease Obligations of such Person; (d) all
reimbursement obligations of such Person under any letters of credit or
acceptances (whether or not the same have been presented for payment), and all
obligations of such Person as the issuer of any letters of credit or acceptances
(whether or not the same have been presented for payment); and (e) all
Indebtedness of other Persons which (i) such Person has guaranteed or which is
otherwise recourse to such Person or (ii) are secured by a Lien on any property
of such Person.
"INTELLECTUAL PROPERTY" has the meaning given that term in SECTION
6.1(r).
8 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
14
"INTERCREDITOR AGREEMENT" means an intercreditor agreement pursuant
to which the Lenders and the holders of any other Debt of Borrower have agreed
to share payments made by any Consolidated Subsidiary under a Subsidiary Bank
Guaranty, a Subsidiary Senior Note Guaranty, or any other guaranty of any Debt
of Borrower on an equal and ratable basis.
"INTEREST EXPENSE" means, with respect to a Person and for any
period, the total consolidated interest expense (including, without limitation,
capitalized interest expense and interest expense attributable to Capitalized
Lease Obligations) of such Person and in any event shall include all interest
expense with respect to any Indebtedness in respect of which such Person is
wholly or partially liable.
"INTEREST PERIOD" means, with respect to any Eurodollar Loan, each
period commencing on the date such Eurodollar Loan is made or the last day of
the next preceding Interest Period for such Loan and ending on the date 7 or 14
days thereafter (solely with respect to Eurodollar Loans made during the thirty
(30) calendar day period immediately following the Effective Date) or on the
numerically corresponding day in the first, second, third, or sixth calendar
month thereafter, as Borrower may select in a Notice of Borrowing, Notice of
Continuation, or Notice of Conversion, as the case may be, except that each
Interest Period for a Eurodollar Loan (other than a 7 or 14 day Interest Period)
that commences on the last Business Day of a calendar month (or on any day for
which there is no numerically corresponding day in the appropriate subsequent
calendar month) shall end on the last Business Day of the appropriate subsequent
calendar month. Notwithstanding the foregoing: (i) if any Interest Period would
otherwise end after the Termination Date, such Interest Period shall end on the
Termination Date, (ii) each Interest Period that would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business Day (or,
except in the case of a 7 or 14 day Interest Period, if such next succeeding
Business Day falls in the next succeeding calendar month, on the next preceding
Business Day), and (iii) notwithstanding the immediately preceding CLAUSE (I),
no Interest Period for any Eurodollar Loan shall have a duration of less than
one month (other than a 7 or 14 day Interest Period), and, if the Interest
Period for any Eurodollar Loan would otherwise be a shorter period, such Loan
shall not be available hereunder for such period.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, or other similar
contractual agreement or arrangement entered into with a nationally recognized
financial institution then having an Investment Grade Rating for the purpose of
protecting against fluctuations in interest rates. For the purposes of this
Agreement, the amount of any obligation under any Interest Rate Agreement shall
be the amount determined in respect thereof as of the end of the most recently
ended fiscal quarter of such Person, based on the assumption that such Interest
Rate Agreement had terminated at the end of such fiscal quarter, and in making
such determination, if such Interest Rate Agreement provides for the netting of
amounts payable by and to such Person thereunder or if such Interest Rate
Agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, together with the rules and regulations promulgated thereunder.
"INVESTMENT" means, with respect to any Person and whether or not
such investment constitutes a controlling interest in such Person (a) the
purchase or other acquisition of any share of capital stock, evidence of
Indebtedness, or other security issued by any other Person; (b) any loan,
advance, or extension of credit to, or contribution (in the form of money or
goods) to the capital of, or the acquisition of a sale leaseback asset from and
the lease thereof to, any other Person; (c) any guaranty of the Indebtedness of
any
9 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
15
other Person; (d) any other investment in any other Person; and (e) any
commitment or option to make an Investment in any other Person.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940,
as amended, and the rules and regulations promulgated thereunder.
"INVESTMENT GRADE RATING" means a Credit Rating of BBB- or higher by
S&P, Baa3 or higher by ▇▇▇▇▇'▇, or the equivalent or higher of either such
rating by another Rating Agency.
"LC" means the letter(s) of credit issued hereunder in the form
agreed upon among Borrower, LC Issuer, and the beneficiary thereof at the time
of issuance thereof pursuant to the terms and conditions of SECTION 2.3 hereof.
"LC AGREEMENT" means a letter of credit application and agreement
(in form and substance satisfactory to Administrative Agent) submitted by
Borrower to LC Issuer for an LC for its own account.
"LC COMMITMENT" means an amount (subject to availability, reduction,
or cancellation as herein provided) equal to $10,000,000.
"LC EXPOSURE" means, at any time and without duplication, the sum of
(a) the aggregate undrawn portion of all uncancelled and unexpired LCs plus (b)
the aggregate unpaid reimbursement obligations of Borrower in respect of
drawings of drafts under any LC.
"LC ISSUER" means Bank of America and its permitted successors as
"LC Issuer" under this Agreement.
"LC REQUEST" means a request pursuant to SECTION 2.3(a),
substantially in the form of EXHIBIT B-2.
"LC SUBFACILITY" means a subfacility for the issuance of LCs (the LC
Exposure in connection with which may never exceed the LC Commitment), as
described in and subject to the limitations of SECTION 2.3.
"LENDERS" means, on any date of determination, the financial
institutions named on SCHEDULE 2, and subject to the terms and conditions of
this Agreement, their respective successors and assigns, but not any Participant
who is not otherwise a party to this Agreement, and including, as the context
requires, LC Issuer and Swing Line Lender.
"LENDING OFFICE" means, for each Lender and for each Type of Loan,
the "LENDING OFFICE" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Loan on SCHEDULE 2 or in the applicable Assignment
and Acceptance Agreement or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms hereof as the
office by which its Loans of such Type are to be made and maintained.
"LIEN" as applied to the property of any Person means: (a) any
security interest, encumbrance, mortgage, deed to secure debt, deed of trust,
pledge, lien, charge, ground lease, or lease constituting a Capitalized Lease
Obligation, conditional sale, or other title retention agreement, or other
security title or
10 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
16
encumbrance of any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or implied, under
which any property of such Person is transferred, sequestered, or otherwise
identified for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person; (c) the filing of any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction; and (d) any agreement by such Person to grant, give, or otherwise
convey any of the foregoing.
"LOAN DOCUMENTS" means (a) this Agreement, the Notes, any Subsidiary
Bank Guaranty, LCs, and LC Agreements, (b) all agreements, documents, or
instruments in favor of Administrative Agent, LC Issuer, or the Lenders ever
delivered pursuant to this Agreement or otherwise delivered in connection with
all or any part of the Obligations on and after the Effective Date, and (c) any
and all future renewals, extensions, restatements, reaffirmations, amendments
of, or supplements to, all or any part of the foregoing.
"LOANS" means any amount disbursed (a) by one or more Lenders to or
for the account of Borrower under the Loan Documents (whether under the
Revolving Facility, the LC Subfacility, or the Swing Line Subfacility), whether
such amount constitutes an original disbursement of funds or the continuation of
any amount outstanding, or payment of a draft under an LC, or (b) by any Lender
in accordance with, and to satisfy the obligations of any Borrower or any
Subsidiary of Borrower under, any Loan Document.
"MANAGING AGENT" means ▇▇▇▇▇ Bank N.A. and its permitted successors
or assigns as "Managing Agent" under this Agreement.
"MATERIAL ADVERSE EFFECT" means a materially adverse effect on (a)
the business, assets, liabilities, financial condition, results of operations,
or business prospects of Borrower and its Consolidated Subsidiaries taken as a
whole, (b) the ability of Borrower to perform its obligations under any Loan
Document to which it is a party which does not result from a material adverse
effect on the items described in the immediate preceding CLAUSE (a), (c) the
validity or enforceability of any of the Loan Documents, (d) the rights and
remedies of the Lenders and Administrative Agent under any of such Loan
Documents, or (e) the timely payment of the principal of or interest on the
Loans or other amounts payable in connection therewith. Except with respect to
representations made or deemed made by Borrower or any Subsidiary in any of the
other Loan Documents to which it is a party, all determinations of materiality
shall be made by the Requisite Lenders in their reasonable judgment unless
expressly provided otherwise.
"MATERIAL CONTRACT" means any contract or other arrangement (other
than Loan Documents), whether written or oral, to which Borrower or any
Subsidiary is a party as to which the breach, nonperformance, cancellation, or
failure to renew by any party thereto could have a Material Adverse Effect.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $10,000,000.
"MATERIAL SUBSIDIARY" means, as of the date of any determination
thereof, any Subsidiary which has total assets having a value (determined in
accordance with the market valuation method pursuant to GAAP) greater than or
equal to $40,000,000.
"MAXIMUM AMOUNT" and "MAXIMUM RATE" respectively mean, for each
Lender, the maximum non-usurious amount and the maximum non-usurious rate of
interest which, under Applicable Law, such Lender is permitted to contract for,
charge, take, reserve, or receive on the Obligations.
11 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
17
"MONEY MARKET RATE" means as to any Swing Line Loan made pursuant to
SECTION 2.2, a rate per annum equal to (a) prior to the second anniversary of
the Effective Date, the sum of (i) 1.50% and (ii) the rate per annum equal to
Bank of America's cost of funds, and (b) on or after the second anniversary of
the Effective Date, the sum of (i) 2.00% and (ii) the rate per annum equal to
Bank of America's cost of funds.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Services, Inc.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"NET PROCEEDS" means, with respect to an Equity Issuance by a
Person, the aggregate amount of all cash (including any cash received by way of
deferred payment pursuant to a promissory note, or otherwise, but only as and
when received) received by such Person in respect of such Equity Issuance net of
investment banking fees, legal fees, accountants fees, underwriting discounts
and commissions, and other customary fees and expenses actually incurred by such
Person in connection with such Equity Issuance.
"NON-CONTINUING LENDER" has the meaning given that term in SECTION
12.15.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness secured by Real
Estate Assets if recourse for the payment of such Indebtedness is limited to
such Real Estate Assets.
"NOTES" means, at the time of any determination thereof, all
outstanding and unpaid Revolving Notes and Swing Line Notes.
"NOTICE OF BORROWING" means a notice in the form of EXHIBIT B-1 to
be delivered to Administrative Agent pursuant to SECTION 2.4(a), evidencing
Borrower's request for a borrowing of Loans.
"NOTICE OF CONTINUATION" means a notice in the form of EXHIBIT C to
be delivered to Administrative Agent pursuant to SECTION 2.9, evidencing
Borrower's request for the Continuation of a Eurodollar Loan.
"NOTICE OF CONVERSION" means a notice in the form of EXHIBIT D to be
delivered to Administrative Agent pursuant to SECTION 2.10, evidencing
Borrower's request for the Conversion of a Loan from one Type to another Type.
"NOTICE OF DEFAULT" has the meaning given that term in SECTION 11.3.
"OBLIGATIONS" means, individually and collectively: (a) the
aggregate principal balance of and all accrued and unpaid interest on, all
Loans, and (b) all other indebtedness, liabilities, obligations, covenants and
duties of Borrower owing to Administrative Agent, LC Issuer, Swing Line Lender,
or any Lender of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents, including, without limitation, all
Fees and indemnification obligations, whether direct or indirect, absolute or
contingent, due or not due, contractual or tortious, liquidated or unliquidated,
and whether or not evidenced by any promissory note.
12 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
18
"OPTION TO EXTEND" has the meaning given that term in SECTION 2.12.
"OTHER RELEVANT SUBSIDIARY" means any Subsidiary, individually or
together with other Subsidiaries, the occurrence of any of the events described
in SECTIONS 10.1(f) or 10.1(g) with respect to which could reasonably be
expected to have a Material Adverse Effect.
"OTHER TAXES" has the meaning given that term in SECTION 4.6(b).
"PARTICIPANT" has the meaning given that term in SECTION 12.4(d).
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor agency.
"PERMITTED LIENS" means, as to any Person: (a) Liens securing taxes,
assessments, and other charges or levies imposed by any Governmental Authority
(excluding any Lien imposed pursuant to any of the provisions of ERISA) or the
claims of materialmen, mechanics, carriers, warehousemen, or landlords for
labor, materials, supplies, or rentals incurred in the ordinary course of
business, which are not at the time required to be paid or discharged under
SECTION 7.6; (b) Liens consisting of deposits or pledges made, in the ordinary
course of business, in connection with, or to secure payment of, obligations
under workmen's compensation, unemployment insurance, or similar Applicable
Laws; (c) Liens in favor of Administrative Agent for the benefit of the Lenders;
and (d) covenants, restrictions, rights of way, easements, and other matters of
public record, and other matters to which like properties are commonly subject,
that singly or in the aggregate do not materially and adversely affect the value
or marketability of, or materially interfere with the use or enjoyment of any
asset of such Person.
"PERMITTED PREFERRED STOCK" means (i) preferred stock that is issued
from time to time by a Subsidiary to the SBA having an aggregate stated value
not exceeding $7,000,000 at any one time outstanding, or (ii) preferred stock
that is issued from time to time by a Subsidiary for the purpose of qualifying
such Subsidiary as a real estate investment trust under Sections 856 through 860
of the Internal Revenue Code and having an aggregate stated value not exceeding
$500,000 at any one time outstanding; provided that, in any event Permitted
Preferred Stock shall not include any voting stock.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or unincorporated organization, or a
government or any agency or political subdivision thereof.
"PLAN" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"POST-DEFAULT RATE" means (a) prior to the second anniversary of the
Effective Date, a rate per annum equal to the lesser of (i) the Maximum Rate and
(ii) the sum of 2.0% plus the Base Rate as in effect from time to time and (b)
on or after the second anniversary of the Effective Date, a rate per annum equal
to the lesser of (i) the Maximum Rate and (ii) the sum of 2.50% plus the Base
Rate as in effect from time to time.
13 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
19
"PRINCIPAL DEBT" means, at any time of determination thereof, the
aggregate unpaid principal balance of all Loans.
"PRINCIPAL OFFICE" means the principal office of Bank of America,
presently located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
"PRIORITY DEBT" means the sum of (i) all Secured Indebtedness of
Borrower and its Consolidated Subsidiaries, (ii) all unsecured Debt of
Consolidated Subsidiaries which are not Subsidiary Bank Guarantors (excluding in
each case, Debt owing to Borrower or another Consolidated Subsidiary), and (iii)
all Unfunded Liabilities.
"QUARTERLY DATE" means the last Business Day of March, June,
September, and December in each year, the first of which shall be September 30,
2001.
"RATING AGENCY" means S&P, Moody's, or any other nationally
recognized securities rating agency selected by Borrower and acceptable to the
Requisite Lenders.
"REAL ESTATE" means fee ownership or co-ownership of, or leaseholds
of, land or improvements thereon.
"REAL ESTATE ASSETS" means (i) Real Estate securing Investments made
in the ordinary course of business, (ii) Commercial Mortgage Loans, and (iii)
Related Collateral.
"REFERENCE 10-Q" means the Form 10-Q filed by Borrower with the
Securities and Exchange Commission for the quarterly period ending March 31,
2001.
"REGISTER" has the meaning given that term in SECTION 12.4(b).
"REIT" means Allied Capital REIT, Inc., a Maryland corporation.
"RELATED COLLATERAL" means, in respect of any Commercial Mortgage
Loan: (i) any and all documents, instruments, agreements, records, or other
collateral of any kind evidencing, securing, guaranteeing, or otherwise relating
to such Commercial Mortgage Loan, including, without limitation, all promissory
notes or other negotiable instruments, mortgages, deeds of trust, or similar
instruments, assignments of leases or rents or other collateral assignments,
financing statements, guaranties, indemnities, servicing agreements, servicing
records, files, surveys, certificates, affidavits, title abstracts, title
insurance policies and commitments, correspondence, opinions, appraisals,
closing documents, computer programs, computer storage media, data bases,
accounting records, and other books and records relating thereto, (ii) any and
all mortgage guaranties and insurance (issued by governmental agencies or
otherwise) and mortgage insurance certificates or other documents evidencing
such mortgage guaranties or insurance relating to any such Commercial Mortgage
Loan and all claims and payments thereunder, (iii) any and all other insurance
policies and insurance proceeds relating to such Commercial Mortgage Loan or the
related real property, (iv) all "general intangibles" as defined in the Uniform
Commercial Code relating to or constituting any and all of the foregoing, and
(v) any and all replacements, substitutions, or distributions on or proceeds of
any and all of the foregoing.
14 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
20
"REQUISITE LENDERS" means (a) on any date of determination prior to
the Termination Date, those Lenders holding 66 2/3% or more of the aggregate
Commitments of all Lenders; and (b) on any date of determination on or after the
Termination Date, those Lenders holding 66 2/3% of the aggregate Principal Debt.
"RESERVE REQUIREMENT" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against, in the case of
Eurodollar Loans, "Eurocurrency liabilities" (as such term is used in Regulation
D of the Board of Governors of the Federal Reserve System, as amended). Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member banks with respect to
any category of liabilities which includes deposits by reference to which the
Adjusted Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Loans. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Reserve Requirement.
"REVOLVING FACILITY" means the credit facility as described in and
subject to the limitations of SECTION 2, including the Swing Line Subfacility
and the LC Subfacility.
"REVOLVING LOAN" means any Loan under the Revolving Facility other
than a Swing Line Loan or the issuance of an LC.
"REVOLVING NOTE" means a promissory note substantially in the form
of EXHIBIT E-1, and all renewals and extensions of all or any part thereof.
"RIC" means a Person qualifying for treatment as a "regulated
investment company" under the Internal Revenue Code.
"SBA" means the United States Small Business Administration.
"SBIC" means Allied Investment Corporation, a Maryland corporation.
"SECURED INDEBTEDNESS" means, with respect to any Person, any
Indebtedness of such Person that is secured in any manner by any Lien.
"SENIOR DEBT" means Debt under the Senior Note Agreements or any
similar facility entered into by Borrower or its Consolidated Subsidiaries.
"SENIOR NOTE AGREEMENTS" mean (a) the Note Agreement, dated as of
April 30, 1998, among Borrower and the purchasers parties thereto, pursuant to
which Borrower has issued its $140,000,000 7.055% Senior Notes, Series A, due
May 30, 2003, its $30,000,000 7.168% Senior Notes, Series B, due May 30, 2005,
and its $10,000,000 9.530% Senior Notes, Series C, due May 30, 2005, and any
replacement thereof; (b) the Note Agreement, dated as of May 1, 1999, among
Borrower and the purchasers parties thereto, pursuant to which Borrower has
issued its $112,000,000 7.39% Senior Notes, Series A, due May 1, 2004, and its
$25,000,000 7.49% Senior Notes, Series B, due May 1, 2006, and any replacement
thereof; (c) the Note Agreement, dated as of November 15, 1999, among Borrower
and the purchasers parties thereto, pursuant
15 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
21
to which Borrower has issued its $102,000,000 8.51% Senior Notes, due November
15, 2004, and any replacement thereof; (d) the Note Agreement, dated as of
August 31, 2000, among Borrower and the purchaser party thereto, pursuant to
which Borrower has issued its $75,000,000 Auction Rate Reset Senior Notes Series
A, due December 2, 2002, and any replacement thereof; and (e) the Note
Agreement, dated as of October 15, 2000, among Borrower and the purchasers
parties thereto, pursuant to which Borrower has issued its $115,000,000 8.54%
Senior Notes, Series A, due October 15, 2005 and its $10,000,000 Floating Rate
Senior Notes, Series B, due October 15, 2005, and any replacement thereof.
"SENIOR NOTES" means the notes issued by Borrower pursuant to the
Senior Note Agreements.
"SOLVENT" means, when used with respect to any Person, that (a) the
fair value and the fair salable value of its assets (excluding any Indebtedness
due from any affiliate of such Person) are each in excess of the fair valuation
of its total liabilities (including all contingent liabilities); (b) such Person
is able to pay its debts or other obligations in the ordinary course as they
mature; and (c) such Person has capital not unreasonably small to carry on its
business and all business in which it proposes to be engaged.
"S&P" means Standard & Poor's Rating Group, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SPECIAL PURPOSE SUBSIDIARY" means a Subsidiary (other than a
Consolidated Subsidiary) of Borrower the sole purpose of which is to purchase
assets from Borrower or a Subsidiary of Borrower and to effect a sale to a third
party (directly or through one or more Subsidiaries of such purchasing
Subsidiary) of the assets so purchased or of securities or Debt secured by or
evidencing an interest in such assets or in the holder thereof, and matters
incidental to the foregoing.
"SUBFACILITY" means, any of the LC Subfacility or the Swing Line
Subfacility.
"SUBSIDIARY" means, for any Person, any corporation, partnership,
limited liability company, or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions of such corporation, partnership, or other entity
(without regard to the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
Notwithstanding the foregoing, any Person that is accounted for under GAAP as a
portfolio Investment of Borrower or a Subsidiary shall not be a Subsidiary of
Borrower or such Subsidiary.
"SUBSIDIARY BANK GUARANTOR" means any Consolidated Subsidiary which
undertakes to be liable for the Obligations of Borrower under the Loan Documents
by execution of a Subsidiary Bank Guaranty.
"SUBSIDIARY BANK GUARANTY" means (a) any agreement pursuant to which
a Consolidated Subsidiary has guaranteed the Obligations of Borrower under the
Loan Documents and (b) any amendments, modifications, supplements, restatements,
ratifications, or reaffirmations of any Subsidiary Bank Guaranty made in
accordance with the Loan Documents.
"SUBSIDIARY SENIOR NOTE GUARANTY" means any agreement pursuant to
which a Consolidated Subsidiary has guaranteed the Debt of Borrower under the
Senior Notes.
16 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
22
"SWING LINE COMMITMENT" means an amount (subject to reduction or
cancellation as herein provided) equal to $50,000,000.
"SWING LINE LENDER" means Bank of America and its permitted
successors as "Swing Line Lender" under this Agreement.
"SWING LINE LOAN" means any Loan made under the Swing Line
Subfacility.
"SWING LINE NOTE" means a promissory note substantially in the form
of EXHIBIT E-2, and all renewals and extensions of all or any part thereof.
"SWING LINE SUBFACILITY" means the subfacility under the Revolving
Facility (the portion of the Loans attributable to which may never exceed in the
aggregate $50,000,000), as described in, and subject to the limitations of,
SECTION 2.2.
"SWING PRINCIPAL DEBT" means, on any date of determination, the
aggregate unpaid principal amount of all Loans outstanding under the Swing Line
Subfacility.
"SYNDICATION AGENT" means First Union National Bank and its
permitted successors or assigns as "Syndication Agent" under this Agreement.
"TAXES" means, for any Person, taxes, assessments, duties, imposts
or other governmental charges, deductions, withholdings, or levies imposed upon
such Person, its income, or any of its properties, franchises, or assets, and
all liabilities with respect thereto.
"TERMINATION DATE" means the earlier of either (a) August 2, 2003,
or, if the Option to Extend has been exercised by Borrower pursuant to ▇▇▇▇▇▇▇
▇.▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇ (▇) such earlier date upon which the whole of the
Commitments are terminated pursuant to SECTIONS 2.12, 10.2(a), or otherwise.
"TYPE" with respect to any Loan, refers to whether such Loan is a
Eurodollar Loan or Base Rate Loan.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time,
the amount (if any) by which (a) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (b) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of Borrower (a) that is
not a Consolidated Subsidiary or (b) is a Consolidated Subsidiary the sole
purpose of which is to acquire, hold, manage, and dispose of Foreclosure
Property, and matters incidental to such purposes.
"WHOLLY OWNED" when used in connection with any Subsidiary means any
corporation, partnership, limited liability company, or other entity of which
all of the equity securities or other ownership interests (other than Permitted
Preferred Stock and, in the case of a corporation, directors' qualifying shares)
are so owned or controlled.
17 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
23
1.2 GENERAL; REFERENCES TO TIMES. References in this Agreement
to "Sections," "Exhibits," and "Schedules" are to sections, exhibits, and
schedules herein and hereto unless otherwise indicated. References in this
Agreement to any document, instrument, or agreement (a) shall include all
exhibits, schedules, and other attachments thereto, (b) shall include all
documents, instruments, or agreements issued or executed in replacement thereof,
to the extent permitted hereby and (c) shall mean such document, instrument, or
agreement, or replacement or predecessor thereto, as amended, supplemented,
restated, or otherwise modified from time to time to the extent permitted hereby
and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the
singular and plural, and pronouns stated in the masculine, feminine, or neuter
gender shall include the masculine, the feminine and the neuter. Unless
explicitly set forth to the contrary, a reference to "Subsidiary" means a
Subsidiary of Borrower or a Subsidiary of such Subsidiary, and a reference to an
"Affiliate" means a reference to an Affiliate of Borrower. Titles and captions
of Sections, subsections, and clauses in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement. Unless
otherwise indicated, all references to time are references to Dallas, Texas,
time.
1.3 ACCOUNTING PRINCIPLES. All accounting and financial terms used
in the Loan Documents and the compliance with each financial covenant therein
shall be determined in accordance with GAAP, and, all accounting principles
shall be applied on a consistent basis so that the accounting principles in a
current period are comparable in all material respects to those applied during
the preceding comparable period. If Borrower or any Lender determines that a
change in GAAP from that in effect on the date hereof has altered the treatment
of certain financial data to its detriment under this Agreement, such party may,
by written notice to the others and Administrative Agent not later than 30 days
after Borrower's delivery of any financial statements pursuant to SECTION 8.1 or
8.2 reflecting such change in GAAP, request renegotiation of the financial
covenants affected by such change. If Borrower and Requisite Lenders have not
agreed on revised covenants within 30 days after delivery of such notice, then,
for purposes of this Agreement, GAAP will mean generally accepted accounting
principles on the date just prior to the date on which the change that gave rise
to the renegotiation occurred.
SECTION 2 CREDIT FACILITY.
2.1 LOANS. Subject to the terms and conditions hereof, during the
period from the Effective Date to but excluding the Termination Date, each
Lender severally and not jointly agrees to make Revolving Loans to Borrower in
an aggregate principal amount at any one time outstanding up to, but not
exceeding, the amount of such Lender's Commitment; provided, however, that on
any date of determination, the Commitment Usage shall never exceed the aggregate
amount of the Commitments as in effect from time to time. Subject to the terms
and conditions of this Agreement, during the period from the Effective Date to
but excluding the Termination Date, Borrower may borrow, repay and reborrow
Revolving Loans hereunder.
2.2 SWING LINE SUBFACILITY.
(a) Swing Line Loans. For the convenience of the parties
and as an integral part of the transactions contemplated by the Loan
Documents, Swing Line Lender may make any requested Loan of $250,000
or a greater integral multiple thereof, subject to those terms and
conditions applicable to Loans set forth in CLAUSES (a), (b), and
(c) of the first sentence of SECTION 5.2, directly to Borrower as a
Swing Line Loan without requiring any other Lender to fund its
ratable portion thereof unless and until SECTION 2.2(c) is
applicable; provided that: (i) each such Swing Line Loan must occur
on a Business Day prior to, and not on or after, the Termination
Date; (ii) the aggregate
18 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
24
Swing Principal Debt outstanding on any date of determination shall
not exceed the Swing Line Commitment; (iii) on any date of
determination, the Commitment Usage shall never exceed the aggregate
amount of the Commitments of the Lenders; (iv) such Swing Line Loan
shall not be used to refinance any outstanding Swing Line Loan; (v)
each Swing Line Loan shall be at a rate per annum equal to the
lesser of (x) the Money Market Rate, and (y) the Maximum Rate;
provided further that at any time after Revolving Lenders are
required to fund their participations in any Swing Line Loan
pursuant to SECTION 2.2(c), such Loan shall bear interest at the
Post-Default Rate; and (vi) no additional Swing Line Loan shall be
made at any time after any Lender has refused, notwithstanding the
requirements of SECTION 2.2(c), to fund its participation in any
Swing Line Loan as provided in such Section, and until such funding
shall occur or until the Swing Line Loan has been repaid.
(b) Borrowing Procedure and Repayment. Each Swing Line
Loan under the Swing Line Subfacility shall be available and may be
prepaid on same day telephonic notice from Borrower to Swing Line
Lender and Administrative Agent, so long as such notice is received
by Swing Line Lender and Administrative Agent prior to 1:00 p.m.
Dallas, Texas time. Promptly after receipt by Swing Line Lender of
any telephonic notice, Swing Line Lender will confirm with
Administrative Agent (by telephone or in writing) that
Administrative Agent has also received such notice and, if not,
Swing Line Lender will notify Administrative Agent (by telephone or
in writing) of the contents thereof. Unless Swing Line Lender has
received notice (by telephone or in writing) from Administrative
Agent prior to 2:00 p.m. Dallas, Texas time, on the date of the
proposed Swing Line Loan (i) directing Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the
first proviso to the first sentence of SECTION 2.2(a), or (ii) that
one or more of the applicable conditions specified in SECTION 5.2 is
not then satisfied, then, subject to the terms and conditions
hereof, Swing Line Lender will, not later than 3:00 p.m. Dallas,
Texas time, on the borrowing date specified in such notice, make the
amount of its Swing Line Loan available to Borrower. The principal
amount of each Swing Line Loan shall be repaid in full not later
than the eighth Business Day after the date on which such Swing Line
Loan was funded. All accrued and unpaid interest on any Swing Line
Loan shall be repaid monthly, in arrears, on the first Business Day
of each calendar month.
(c) Participations. Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from Swing Line
Lender a risk participation in such Swing Line Loan in an amount
equal to its Commitment Percentage of such Swing Line Loan. If
Borrower fails to repay any Swing Line Loan as provided herein, and
funds cannot be or are not advanced under the Revolving Facility to
satisfy the obligations under the Swing Line Subfacility (and in any
event upon the earlier to occur of a Default or the Termination
Date), Administrative Agent shall timely notify each Lender of such
failure and of the date and amount not paid. No later than the close
of business on the date such notice is given (if such notice was
given prior to 12:00 noon on any Business Day, or, if made at any
other time, on the next Business Day following the date of such
notice), each Lender shall fund its participation in the relevant
Swing Line Loan, and each Lender shall make available to
Administrative Agent for the account of Swing Line Lender in
immediately available funds such Lender's ratable part of such
unpaid principal amount. All such amounts payable by any Lender
shall include interest thereon from the date on which such payment
is payable by such Lender to, but not including, the date such
amount is paid by such Lender to Administrative Agent, at the
Federal Funds Rate. Each payment by Borrower of all or any part of
any Swing Line Loan shall be paid to Administrative Agent for the
19 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
25
ratable benefit of Swing Line Lender and those Lenders who have
funded their participations in such Swing Line Loan under this
SECTION 2.2(c); provided that, with respect to any such
participation, all interest accruing on the Swing Principal Debt to
which such participation relates prior to the date of funding such
participation shall be payable solely to Swing Line Lender for its
own account.
2.3 LC SUBFACILITY.
(a) LC Commitment. Subject to the terms and conditions
of this Agreement and Applicable Law, LC Issuer agrees, in reliance
upon the agreement of the other Lenders in this SECTION 2.3, to
issue LCs or to amend and renew LCs previously issued by it, upon
Borrower's application therefor (denominated in Dollars) by
delivering to LC Issuer (with a copy to Administrative Agent) a
properly completed LC Request and an LC Agreement with respect
thereto no later than 10:00 a.m. Dallas, Texas time three Business
Days before such LC is to be issued or amended; provided that, (i)
on any date of determination and after giving effect to any LC to be
issued or amended on such date, the Commitment Usage shall never
exceed the aggregate amount of the Commitments then in effect, (ii)
on any date of determination and after giving effect to any LC to be
issued or amended on such date, the LC Exposure shall never exceed
the LC Commitment, (iii) at the time of issuance or amendment of
such LC, no Default or Event of Default shall have occurred and be
continuing, and (iv) each LC must expire no later than the earlier
of the 30th day prior to the Termination Date, or one year from its
issuance; provided further that, (x) any LC may provide for
automatic renewal for periods of up to one year (but no renewal
period may extend beyond the 30th day prior to the Termination Date)
unless LC Issuer has given prior notice to the applicable
beneficiary of its election not to extend such LC; (y) LC Issuer
shall be under no obligation to issue any LC if (A) any order,
judgment, or decree of any Governmental Authority or arbitrator
shall by its terms purport to enjoin or restrain LC Issuer from
issuing such LC, or any law applicable to LC Issuer or any request
or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over LC Issuer shall
prohibit, or request that LC Issuer refrain from, the issuance of
letters of credit generally or such LC in particular or shall impose
upon LC Issuer with respect to such LC any restriction, reserve, or
capital requirement (for which LC Issuer is not otherwise
compensated hereunder) not in effect on the Effective Date, or shall
impose upon LC Issuer any unreimbursed loss, cost, or expense which
was not applicable on the Effective Date and which LC Issuer in good
▇▇▇▇▇ ▇▇▇▇▇ material to it, or (B) the issuance of such LC would
violate one or more policies of LC Issuer; and (z) LC Issuer shall
be under no obligation to amend any LC if (A) LC Issuer would have
no obligation at such time to issue such LC in its amended form
under the terms hereof, or (B) the beneficiary of such LC does not
accept the proposed amendment to such LC. Promptly after receipt of
any LC Request and LC Agreement, LC Issuer will confirm with
Administrative Agent (by telephone or in writing) that
Administrative Agent has received a copy of such LC Request and LC
Agreement from Borrower and, if not, LC Issuer will provide
Administrative Agent with a copy thereof. Upon receipt by LC Issuer
of confirmation from Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms
hereof, LC Issuer shall, on the requested date, issue a LC for the
account of Borrower or enter into the applicable amendment, as the
case may be, in each case in accordance with LC Issuer's usual and
customary business practices. Within the foregoing limits, and
subject to the terms and conditions hereof, Borrower's ability to
obtain LCs shall be fully revolving; accordingly, Borrower may,
prior to the Termination Date, obtain LCs to replace LCs that have
expired or that have been drawn upon and reimbursed.
20 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
26
(b) Participations. Immediately upon the issuance by LC
Issuer of any LC, LC Issuer shall be deemed to have sold and
transferred to each other Lender, and each other such Lender shall
be deemed irrevocably and unconditionally to have purchased and
received from LC Issuer, without recourse or warranty, an undivided
interest and participation, equal to such Lender's Commitment
Percentage of such LC, the LC Agreement, and all rights of LC Issuer
in respect thereof (other than rights to receive certain fees
provided for in SECTION 3.8(d)).
(c) Reimbursement Obligations. To induce LC Issuer to
issue and maintain LCs and to induce Lenders to participate in
issued LCs, Borrower agrees to pay or reimburse LC Issuer (i) on the
date on which any draft is presented under any LC, the amount of any
draft paid or to be paid by LC Issuer, and (ii) promptly, upon
demand, the amount of any applicable fees (in addition to the Fees
described in SECTION 3.8) which LC Issuer customarily charges to a
Person similarly situated in the ordinary course of its business for
amending LC Agreements, for honoring drafts under letters of credit,
and taking similar action in connection with letters of credit;
provided that, (x) if Borrower has not reimbursed LC Issuer for any
drafts paid or to be paid within 24 hours of demand therefor by LC
Issuer, Administrative Agent is hereby irrevocably authorized to
fund such reimbursement obligation as a Loan to the extent of
availability, and if the conditions precedent in this Agreement for
such a Loan (other than any notice requirements or minimum funding
amounts) have, to Administrative Agent's knowledge, been satisfied.
The proceeds of such Loan shall be remitted by Administrative Agent
directly to LC Issuer in payment of Borrower's reimbursement
obligation with respect to the draft under the LC; and (y) if for
any reason, funds are not advanced pursuant to this Agreement, then
Borrower's reimbursement obligation shall continue to be due and
payable. Borrower's obligations under this SECTION 2.3(C) shall be
absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim, or defense to payment
which Borrower may have at any time against LC Issuer or any other
Person, and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including,
without limitation, any of the following circumstances: (A) any lack
of validity or enforceability of this Agreement or any of the Loan
Documents; (B) the existence of any claim, setoff, defense, or other
right which Borrower may have at any time against a beneficiary
named in a LC, any transferee of any LC (or any Person for whom any
such transferee may be acting), LC Issuer, any Lender, or any other
Person, whether in connection with this Agreement, any LC, the
transactions contemplated herein, or any unrelated transactions
(including any underlying transaction between Borrower and the
beneficiary named in any such LC); (C) any draft, certificate, or
any other document presented under the LC proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; and (D) the
occurrence of any Default or Event of Default. To the extent any
funding of a draft has been made by Lenders pursuant to SECTION
2.3(E) or under this Agreement, LC Issuer shall promptly distribute
any such payments received from Borrower with respect to such draft
to all Lenders funding such draft according to their ratable share.
Interest on any amounts remaining unpaid by Borrower (and unfunded
by the proceeds of a Loan under this Agreement) under this clause at
any time from and after the date such amounts become payable until
paid in full shall be payable by Borrower to LC Issuer at the
Post-Default Rate. In the event any payment by Borrower received by
LC Issuer with respect to an LC and distributed to Lenders on
account of their participations therein is thereafter set aside,
avoided, or recovered from LC Issuer in connection with any
receivership, liquidation, or bankruptcy proceeding, each Lender
which received such distribution shall, upon demand by LC Issuer,
contribute such Lender's ratable portion of the amount set aside,
avoided, or recovered, together with interest at the rate required
to be paid by LC Issuer upon the amount required to be repaid by it.
21 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
27
(d) General. LC Issuer shall promptly notify Borrower of
the date and amount of any draft presented for honor under any LC;
provided that, failure to give any such notice shall not affect the
obligations of Borrower hereunder. LC Issuer shall make payment upon
presentment of a draft for honor unless it appears that presentment
on its face does not comply with the terms of such LC, regardless of
whether (i) any default or potential default under any other
agreement has occurred and (ii) the obligations under any other
agreement have been performed by the beneficiary or any other Person
(and LC Issuer shall not be liable for any obligation of any Person
thereunder). LC Issuer and Lenders shall not be responsible for, and
Borrower's reimbursement obligations for honored drafts shall not be
affected by, (i) any matter or event whatsoever (including, without
limitation, the validity, enforceability, sufficiency, accuracy, or
genuineness of documents or of any endorsements thereof, even if
such document should in fact prove to be in any respect invalid,
unenforceable, insufficient, inaccurate, fraudulent, or forged),
(ii) any dispute by Borrower or any Subsidiary with or any Borrower
or any Subsidiary's claims, setoffs, defenses, counterclaims, or
other rights against LC Issuer, any Lender, or any other Person, or
(iii) the occurrence of any Default or Event of Default. However,
nothing in this SECTION 2.3 constitutes a waiver of the rights of
Borrower to assert any claim or defense based upon the gross
negligence or willful misconduct of LC Issuer or any Lender.
(e) Obligation of Lenders. If Borrower fails to
reimburse LC Issuer as provided in SECTION 2.3(c) within 24 hours of
the demand therefor and funds cannot be advanced under the Revolving
Facility or Swing Line Subfacility to satisfy such reimbursement
obligation, then LC Issuer shall so notify Administrative Agent,
which, in turn, shall promptly notify each Lender of Borrower's
failure, of the date and amount of the draft paid, and of such
Lender's Commitment Percentage thereof. Each Lender shall promptly
and unconditionally make available to Administrative Agent (for the
account of LC Issuer) in immediately available funds such Lender's
Commitment Percentage of such unpaid reimbursement obligation, which
funds shall be paid to Administrative Agent on or before the close
of business on the Business Day on which such notice was given by
Administrative Agent to Lenders (if given prior to 1:00 p.m.,
Dallas, Texas time) or on the next succeeding Business Day (if
notice was given after 1:00 p.m., Dallas, Texas time). All such
amounts payable by any such Lender shall include interest thereon
accruing at the Federal Funds Rate from the day the applicable draft
is paid by LC Issuer to (but not including) the date such amount is
paid by such Lender to Administrative Agent. Until each Lender funds
its participation pursuant to this SECTION 2.3(e) to reimburse LC
Issuer for any amount drawn under any LC, interest in respect of
such Lender's Commitment Percentage of such amount shall be solely
for the account of LC Issuer. The obligations of Lenders to make
payments to Administrative Agent (for the account of LC Issuer) with
respect to LCs shall be irrevocable and not subject to any
qualification or exception whatsoever (other than the gross
negligence or willful misconduct of LC Issuer) and shall be made in
accordance with the terms and conditions of this Agreement under all
circumstances, including, without limitation, any of the following
circumstances: (i) any lack of validity or enforceability of this
Agreement or any of the Loan Documents; (ii) the existence of any
claim, setoff, defense, or other right which Borrower may have at
any time against a beneficiary named in a LC, any transferee of any
LC (or any Person for whom any such transferee may be acting), LC
Issuer, any Lender, or any other Person, whether in connection with
this Agreement, any LC, the transactions contemplated herein, or any
unrelated transactions (including any underlying transaction between
Borrower and the beneficiary named in any such LC); (iii) any draft,
certificate, or any other document presented under
22 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
28
the LC proving to be forged, fraudulent, invalid, or insufficient in
any respect or any statement therein being untrue or inaccurate in
any respect; and (iv) the occurrence of any Default or Event of
Default.
(f) Duties of LC Issuer. LC Issuer agrees with each
Lender that it will exercise and give the same care and attention to
each LC as it gives to its other letters of credit, and LC Issuer's
sole liability to each Lender with respect to such LCs (other than
liability arising from the gross negligence or willful misconduct of
LC Issuer) shall be to distribute promptly to each Lender who has
acquired a participating interest therein such Lender's ratable
portion of any payments made to LC Issuer by Borrower pursuant to
SECTION 2.3(C). Each Lender and Borrower agree that, in paying any
draft under any LC, LC Issuer shall not have any responsibility to
obtain any document (other than any documents required by the
respective LC) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person
delivering any such document. LC Issuer, Lenders, and their
respective representatives shall not be liable to any other Lender
or Borrower or any of its Subsidiaries for the use which may be made
of any LC or for any acts or omissions of any beneficiary thereof in
connection therewith. Any action, inaction, error, delay, or
omission taken or suffered by LC Issuer or any of its
representatives under or in connection with any LC, the draws,
drafts, or documents relating thereto, or the transmission,
dispatch, or delivery of any message or advice related thereto, if
in good faith and in conformity with such laws as LC Issuer or any
of its representatives may deem applicable and (unless otherwise
expressly agreed by LC Issuer and Borrower when an LC is issued) the
rules of 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) shall
be binding upon the Borrower and its Subsidiaries and Lenders and
shall not place LC Issuer or any of its representatives under any
resulting liability to Borrower or any of its Subsidiaries or any
Lender. Any action taken or omitted to be taken by LC Issuer under
or in connection with any LC, if taken or omitted in the absence of
gross negligence or willful misconduct of LC Issuer, shall not
create for LC Issuer any resulting liability to Borrower or any of
its Subsidiaries or any Lender.
(g) Cash Collateral. On the Termination Date, or on any
date that the LC Exposure exceeds the LC Commitment, or upon any
demand by Administrative Agent upon the occurrence and during
continuance of an Event of Default, Borrower shall provide to
Administrative Agent, for the benefit of Lenders, (i) cash
collateral in an amount equal to 100% of the LC Exposure existing on
such date, such cash and all interest thereon shall constitute cash
collateral for all LCs, and (ii) such additional cash collateral as
Administrative Agent may from time to time require, so that the cash
collateral amount shall at all times equal or exceed 100% the LC
Exposure. Any cash collateral deposited under this CLAUSE (g), and
all interest earned thereon, shall be held by Administrative Agent
and invested and reinvested at the expense and the written direction
of Borrower, in U.S. Treasury Bills with maturities of no more than
90 days from the date of investment.
(h) INDEMNIFICATION. IN ADDITION TO AMOUNTS PAYABLE AS
ELSEWHERE PROVIDED IN THIS AGREEMENT,BORROWER HEREBY AGREES TO
PROTECT, INDEMNIFY, PAY, AND SAVE ADMINISTRATIVE AGENT, LC ISSUER,
AND EACH LENDER HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS ,
DEMANDS, LIABILITIES , DAMAGES , OR LOSSES OF, OR OWED TO THIRD
PARTIES (INCLUDING ANY OF THE FOREGOING ARISING FROM THE NEGLIGENCE
OF ADMINISTRATIVE AGENT, LC ISSUER, LENDERS ,OR THEIR RESPECTIVE
REPRESENTATIVES), AND ANY AND ALL RELATED COSTS, CHARGES , AND
EXPENSES(INCLUDING REASONABLE ATTORNEYS ' FEES , INCLUDING ALLOCATED
COSTS OF INTERNAL COUNSEL), WHICH ADMINISTRATIVE AGENT,
23 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
29
LC ISSUER, OR ANY LENDER MAY INCUR OR BE SUBJECT TO AS A
CONSEQUENCE, DIRECT OR INDIRECT, OF (A) THE ISSUANCE OF ANY LC, OR
(B) THE FAILURE OF LC ISSUER TO HONOR A DRAFT UNDER SUCH LC AS A
RESULT OF ANY ACT OR OMISSION, WHETHER RIGHTFUL OR WRONGFUL, OF ANY
PRESENT OR FUTURE GOVERNMENTAL AUTHORITY; PROVIDED THAT, BORROWER
SHALL HAVE NO LIABILITY TO INDEMNIFY ADMINISTRATIVE AGENT, LC
ISSUER, OR ANY LENDER IN RESPECT OF ANY LIABILITY ARISING OUT OF THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY OR ANY
REPRESENTATIVES OF SUCH PARTY. THE PROVISIONS OF AND UNDERTAKINGS
AND INDEMNIFICATIONS SET FORTH IN THIS SECTION 2.3(h) SHALL SURVIVE
THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF
THIS AGREEMENT.
(i) LC Agreements. Although referenced in any LC, terms
of any particular agreement or other obligation to the beneficiary
are not in any manner incorporated herein. The fees and other
amounts payable with respect to each LC shall be as provided in this
Agreement, drafts under any LC shall be deemed part of the
Obligations, and in the event of any conflict between the terms of
this Agreement and any LC Agreement, the terms of this Agreement
shall be controlling.
2.4 BORROWING PROCEDURES. The following procedures apply to all
Loans (except Swing Line Loans or the payment by LC Issuer of drafts under LCs):
(a) Requesting Loans. Borrower shall give Administrative
Agent notice pursuant to a Notice of Borrowing or telephonic notice
of each borrowing of Revolving Loans. Each Notice of Borrowing shall
be delivered to Administrative Agent before 12:00 noon (i) in the
case of Eurodollar Loans, on the date two Business Days prior to the
proposed date of such borrowing and (ii) in the case of Base Rate
Loans, on the proposed date of such borrowing. Any such telephonic
notice shall include all information to be specified in a written
Notice of Borrowing and shall be promptly confirmed in writing by
Borrower pursuant to a Notice of Borrowing sent to Administrative
Agent by telecopy on the same day of the giving of such telephonic
notice. Administrative Agent will transmit by telecopy the Notice of
Borrowing (or the information contained in such Notice of Borrowing)
to each Lender promptly upon receipt by Administrative Agent (but in
any event not later than 1:00 p.m. on the date of receipt thereof).
Each Notice of Borrowing or telephonic notice of each borrowing
shall be irrevocable once given and binding on Borrower.
(b) Disbursements of Loan Proceeds. No later than 3:00
p.m. on the date specified in the Notice of Borrowing, each Lender
will make available for the account of its applicable Lending Office
to Administrative Agent at the Principal Office, in immediately
available funds, the proceeds of the Revolving Loan to be made by
such Lender. With respect to Revolving Loans to be made after the
Effective Date, unless Administrative Agent shall have been notified
by any Lender prior to the specified date of borrowing that such
Lender does not intend to make available to Administrative Agent the
Revolving Loan to be made by such Lender on such date,
Administrative Agent may assume that such Lender will make the
proceeds of such Revolving Loan available to Administrative Agent on
the date of the requested borrowing as set forth in the Notice of
Borrowing and Administrative Agent may (but shall not be obligated
to), in reliance upon such assumption, make available to Borrower
the amount of such Revolving Loan to be provided by such Lender.
Subject to satisfaction of the applicable conditions set forth in
SECTION 5 for such borrowing, Administrative Agent will make the
proceeds of such borrowing available to Borrower no later than 4:00
p.m. on the date and at the account specified by Borrower in such
Notice of Borrowing.
24 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
30
2.5 RATES AND PAYMENT OF INTEREST ON LOANS .
(a) Rates. Borrower promises to pay to Administrative
Agent for the account of each Lender, interest on the unpaid
principal amount of each Revolving Loan for the period from and
including the date of the making of such Revolving Loan to but
excluding the date such Revolving Loan shall be paid in full, at the
following per annum rates:
(i) during such periods as such Revolving
Loan is a Base Rate Loan, the lesser of (A) the Base
Rate (as in effect from time to time) and (B) the
Maximum Rate; and
(ii) during such periods as such Revolving
Loan is a Eurodollar Loan, the lesser of (A) the sum of
the Adjusted Eurodollar Rate for such Revolving Loan for
the Interest Period therefor, plus 1.25% and (B) the
Maximum Rate.
Notwithstanding the foregoing, (i) on and after the second
anniversary of the Effective Date, Borrower hereby promises to pay
to Administrative Agent (for the account of each Lender) interest at
0.50% per annum in excess of the rates otherwise payable under the
preceding CLAUSE (i) or (ii), whichever is applicable, on the
aggregate outstanding principal balance under all Revolving Loans
made by such Lender and on any other amount payable by Borrower to
such Lender hereunder or under any other Loan Document, (ii) during
the continuance of an Event of Default, and prior to maturity or
acceleration of the Obligations, Borrower hereby promises to pay to
Administrative Agent (for the account of each Lender) interest at 2%
per annum in excess of the rates otherwise payable hereunder on the
aggregate outstanding principal balance under all Revolving Loans
made by such Lender and on any other amount payable by Borrower to
such Lender hereunder or under any other Loan Document, including
without limitation, any overdue accrued but unpaid interest to the
extent permitted under Applicable Law, and (iii) upon the maturity
or acceleration of the Obligations in accordance with the terms
hereof, Borrower promises to pay to Administrative Agent (for the
account of each Lender) interest at the Post-Default Rate on such
amounts.
(b) Payment of Interest. Accrued interest on each
Revolving Loan shall be payable as provided in each of the following
clauses which apply to such Revolving Loan: (i) in the case of a
Base Rate Loan, monthly on the last Business Day of each calendar
month, (ii) in the case of a Eurodollar Loan, on the last day of
each Interest Period therefor; provided that, with respect to
Eurodollar Loans having an Interest Period in excess of three
months, then accrued interest shall also be due and payable at the
end of each three-month period occurring after the commencement of
such Interest Period until such Eurodollar Rate borrowing is paid or
converted, (iii) in the case of a Eurodollar Loan, upon the payment,
prepayment or Continuation thereof or the Conversion of such Loan to
a Loan of another Type (but only on the principal amount so paid,
prepaid, Continued, or Converted), and (iv) in the case of any Base
Rate Loan, upon the payment or prepayment thereof in full. Interest
payable during the continuance of an Event of Default but prior to
maturity or acceleration of the Obligations shall be payable in
accordance with the immediately preceding sentence. Interest payable
at the Post-Default Rate shall be payable from time to time on
demand. Promptly after the determination of any interest rate
provided for herein or any change therein, Administrative Agent
shall give notice thereof to the Lenders to which such interest is
payable and to Borrower. All determinations by Administrative Agent
of an interest rate hereunder shall be conclusive and binding on the
Lenders and Borrower for all purposes, absent manifest error.
25 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
31
2.6 NUMBER OF INTEREST PERIODS. There may be no more than ten different
Interest Periods for Eurodollar Loans outstanding at the same time.
2.7 REPAYMENT OF LOANS. Borrower shall repay the entire outstanding
Principal Debt and all accrued but unpaid interest thereon on the Termination
Date.
2.8 PREPAYMENTS.
(a) Optional. Subject to SECTION 4.5, Borrower may prepay any Loan
made to it at any time without premium or penalty.
(b) Mandatory.
(i) If at any time the Commitment Usage exceeds the aggregate
amount of the Commitments of the Lenders in effect at such time, or
the Swing Principal Debt exceeds the Swing Line Commitment, then
Borrower shall immediately pay to Administrative Agent for the
respective accounts of the appropriate Lenders the amount of such
excess; provided that, on any such date that a mandatory prepayment
is due under this SECTION 2.8(b)(i), if no Principal Debt is then
outstanding, but the LC Exposure exceeds the aggregate Commitments
of the Lenders then in effect, then Borrower shall provide to
Administrative Agent (for itself and for the benefit of Lenders
holding participations in the LC Subfacility) cash collateral in an
amount at least equal to 100% of such excess.
(ii) If (A) as a result of any asset disposition by Borrower
or any of its Subsidiaries, Borrower or any such Subsidiary is
required to redeem or prepay (or to offer to redeem or prepay) any
Debt (other than the Obligations) by a particular date (the "SUBJECT
DATE") in an amount equal to all or a portion of the net cash
proceeds received by such entity from such asset disposition
(the "ASSET DISPOSITION PROCEEDS"), and (B) such obligations to
redeem or prepay (or to offer to redeem or prepay) such other Debt
may be avoided by prepayment of the Obligations in an amount equal
to such Asset Disposition Proceeds on or prior to the Subject Date,
then not less than 30 days prior to the Subject Date, Borrower shall
pay to Administrative Agent (for the ratable benefit of Lenders) a
mandatory prepayment of the Obligations (and the Commitments shall
be concurrently reduced) in an amount equal to such Asset
Disposition Proceeds.
If Borrower is required to pay any outstanding Eurodollar Loans by reason
of this Section prior to the end of the applicable Interest Period
therefor, then Borrower shall pay all amounts due under SECTION 4.5.
2.9 CONTINUATION. So long as no Default or Event of Default shall have
occurred and be continuing, Borrower may on any Business Day, with respect to
any Eurodollar Loan, elect to maintain such Eurodollar Loan or any portion
thereof as a Eurodollar Loan, as applicable, by selecting a new Interest Period
for such Loan. Each new Interest Period selected under this Section shall
commence on the last day of the immediately preceding Interest Period. Each
selection of a new Interest Period shall be made by Borrower giving to
Administrative Agent a Notice of Continuation not later than 12:00 noon on the
second Business Day prior to the date of any such Continuation. Such notice by
Borrower of a Continuation shall be by telephone or telecopy, confirmed
immediately in writing if by telephone, in the form of a Notice of Continuation,
26 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
32
specifying (a) the proposed date of such Continuation, (b) the Eurodollar Loan,
or portion thereof, subject to such Continuation and (c) the duration of the
selected Interest Period, all of which shall be specified in such manner as is
necessary to comply with all limitations on Loans outstanding hereunder. Each
Notice of Continuation shall be irrevocable by and binding on Borrower once
given. Promptly after receipt of a Notice of Continuation (and in any event not
later than 1:00 p.m. on the date of receipt thereof), Administrative Agent shall
notify each Lender by telex or telecopy, or other similar form of transmission
of the proposed Continuation. If Borrower shall fail to select in a timely
manner a new Interest Period for any Eurodollar Loan in accordance with this
Section, such Loan will automatically, on the last day of the current Interest
Period therefor, Convert into a Base Rate Loan.
2.10 CONVERSION. Borrower may on any Business Day, upon Borrower's giving
of a Notice of Conversion to Administrative Agent, Convert all or a portion of a
Revolving Loan of one Type into a Revolving Loan of another Type. Any Conversion
of a Eurodollar Loan into a Base Rate Loan shall be made on, and only on, the
last day of an Interest Period for such Eurodollar Loan. Each such Notice of
Conversion shall be given by Borrower not later than 12:00 noon (a) on the
Business Day prior to the date of any proposed Conversion into Base Rate Loans
or (b) on the second Business Day prior to the date of any proposed Conversion
into Eurodollar Loans. Promptly upon receipt of a Notice of Conversion (and in
any event not later than 1:00 p.m. on the date of receipt thereof),
Administrative Agent shall notify each Lender by telecopy or other similar form
of transmission of the proposed Conversion. Subject to the restrictions
specified above, each Notice of Conversion shall be by telephone or telecopy
confirmed immediately in writing if by telephone, in the form of a Notice of
Conversion, specifying (i) the requested date of such Conversion, (ii) the Type
of Revolving Loan to be Converted, (iii) the portion of such Type of Revolving
Loan to be Converted, (iv) the Type of Revolving Loan into which such Revolving
Loan is to be Converted, and (v) if such Conversion is into a Eurodollar Loan,
the requested duration of the Interest Period of such Revolving Loan. Each
Notice of Conversion shall be irrevocable by and binding on Borrower once given.
Notwithstanding the foregoing, the right to convert from a Base Rate Loan to a
Eurodollar Loan, or to continue a Eurodollar Loan, shall not be available during
the occurrence of a Default or an Event of Default.
2.11 LOAN ACCOUNTS, NOTES.
(a) Loan Accounts; Noteless Transaction. The Principal Debt owed to
each Lender shall be evidenced by one or more loan accounts or records
maintained by such Lender and by Administrative Agent in the ordinary
course of business. The loan accounts or records maintained by
Administrative Agent (including, without limitation, the Register) and
each Lender shall be conclusive evidence absent manifest error of the
amount of the Loans made to Borrower from each Lender under this Agreement
(and subfacilities thereunder) and the interest and principal payments
thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of Borrower under the
Loan Documents to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by
any Lender and the accounts and records of Administrative Agent in respect
of such matters, the accounts and records of such Lender shall control
absent manifest error.
(b) Notes. Upon the request of any Lender made through
Administrative Agent, the Principal Debt owed to such Lender may be
evidenced by one or more of the following Notes (as the case may be): (i)
a Revolving Note (with respect to Principal Debt other than under the
Swing Line Subfacility) and (ii) a Swing Line Note (with respect to
Principal Debt arising under the Swing Line Subfacility).
27 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
33
2.12 REDUCTIONS OF THE COMMITMENTS; OPTION TO EXTEND THE COMMITMENTS.
Borrower shall have the right to terminate or reduce the aggregate unused amount
of the Commitments of the Lenders (other than the portion of the Commitments
applicable to Swing Line Loans or issued and outstanding LCs) at any time and
from time to time without penalty or premium upon not less than fifteen Business
Days prior written notice to Administrative Agent of each such termination or
reduction, which notice shall specify the effective date thereof and the amount
of any such reduction and shall be irrevocable once given and effective only
upon receipt by Administrative Agent. Administrative Agent will promptly
transmit such notice to each Lender. The Swing Line Commitment and the LC
Commitment (as the case may be) shall be automatically and permanently reduced
from time to time, on the date of each reduction in the Commitments of the
Lenders, by the amount, if any, by which the applicable Subfacility exceeds the
aggregate Commitments of the Lenders then in effect, after giving effect to such
reduction of the Commitments. The Commitments, once terminated or reduced, may
not be increased or reinstated. If, fifteen Business Days prior to the second
anniversary of the Effective Date, Borrower has not delivered written notice to
Administrative Agent of its election to terminate the Commitments in whole, then
Borrower shall be deemed to have exercised its option to extend the Commitments
for an additional one year (the "OPTION TO EXTEND") without any further action
or approval by Administrative Agent or Lenders.
2.13 INCREASES OF COMMITMENTS. Borrower may from time to time request any
one or more Lenders to increase their respective Commitments or request other
financial institutions first approved by Administrative Agent to agree to a
Commitment, so that the total Commitments may be increased to no more than
$600,000,000. Any such Commitment increase must be effected by an amendment that
is executed in accordance with SECTION 12.5 by Borrower, Administrative Agent,
and the one or more Lenders who have agreed to increase their Commitments or by
new Lenders who have agreed to new Commitments in accordance with SECTION 12.5.
No Lender is obligated to increase its Commitment under any circumstances, and
no Lender's Commitment may be increased except by its execution of an amendment
to this Agreement in accordance with SECTION 12.5. Each new Lender providing
such additional Commitment shall be a "Lender" hereunder, entitled to the rights
and benefits, and subject to the duties, of a Lender under the Loan Documents.
In such case, each Lender's Commitment Percentage shall be recalculated to
reflect the new proportionate share of the revised total Commitments and the
Lender responsible for the additional Commitments (the "PURCHASING LENDER")
shall, immediately upon receiving notice from Administrative Agent, pay to each
Lender an amount equal to its pro rata share of the Revolving Loans (and any
funded participations by Lenders under the Swing Line Subfacility and the LC
Subfacility) outstanding as of such date. All such payments with respect to the
Revolving Loans shall reduce the outstanding principal balance owed to each
Lender receiving such payments and shall represent Revolving Loans to Borrower
by the purchasing Lender; all such payments with respect to funded
participations under the Swing Line Subfacility or LC Subfacility (as the case
may be) shall reduce the applicable participation of each Lender receiving such
payment and shall represent the purchase by the purchasing Lender of a
participation under the Swing Line Subfacility or the LC Subfacility (as the
case may be). The purchasing Lender shall be entitled to share ratably in
interest accruing on the balances purchased, at the rates provided herein for
such balances, from and after the date of purchase. All new Revolving Loans
occurring after an increase of the total Commitments shall be funded in
accordance with the Lender's revised Commitment Percentages.
SECTION 3 PAYMENTS, FEES AND OTHER GENERAL PROVISIONS.
3.1 PAYMENTS. Each payment or prepayment on the Obligations shall be made
in Dollars, without condition or deduction for setoff, counterclaim, defense, or
recoupment, and is due and must be paid
28 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
34
at Administrative Agent's Principal Office in Dallas, Texas in funds which are
or will be available for immediate use by Administrative Agent by 12:00 noon on
the day due. Payments made after 12:00 noon shall be deemed made on the Business
Day next following. If no Default or Event of Default exists and if no order of
application is otherwise specified in the Loan Documents, payments and
prepayments of the Obligations shall be applied first to Fees, second to accrued
interest then due and payable on the Principal Debt, and then to the remaining
Obligations in the order and manner as Borrower may direct. If a Default or
Event of Default exists (or if Borrower fails to give direction as permitted in
the preceding sentence), any payment or prepayment shall be applied to the
Obligations in accordance with SECTION 10.4. Administrative Agent shall pay to
each Lender any payment or prepayment to which such Lender is entitled hereunder
on the same day Administrative Agent shall have received the same from Borrower;
provided such payment or prepayment is received by Administrative Agent prior to
12:00 noon, and otherwise before 12:00 noon on the Business Day next following.
If and to the extent Administrative Agent shall not make such payments to the
Lenders when due as set forth in the preceding sentence, such unpaid amounts
shall accrue interest, payable by Administrative Agent, at the Federal Funds
Rate from the due date until (but not including) the date on which
Administrative Agent makes such payments to the Lenders.
3.2 PRO RATA TREATMENT. Except to the extent otherwise provided herein:
(a) each borrowing of a Revolving Loan from the Lenders under SECTION 2.1 shall
be made from the Lenders, each payment of the Fees under SECTION 3.8(a) and
3.8(e) shall be made for account of the Lenders, and each termination or
reduction of the amount of the Commitments under SECTION 2.12 shall be applied
to the respective Commitments of the Lenders, pro rata according to the amounts
of their respective Commitment Percentages; (b) each payment or prepayment of
principal of Revolving Loans shall be made for account of the Lenders pro rata
in accordance with the respective unpaid principal amounts of the Revolving
Loans held by them; provided that, if immediately prior to giving effect to any
such payment in respect of any Revolving Loans the outstanding principal amount
of the Revolving Loans shall not be held by the Lenders pro rata in accordance
with their respective Commitment Percentages in effect at the time such
Revolving Loans were made, then such payment shall be applied to the Revolving
Loans in such manner as shall result, as nearly as is practicable, in the
outstanding principal amount of the Revolving Loans being held by the Lenders
pro rata in accordance with their respective Commitment Percentages; (c) each
payment of interest on Revolving Loans shall be made for account of the Lenders
pro rata in accordance with the amounts of interest on such Revolving Loans then
due and payable to the respective Lenders; (d) each payment of principal or
interest under the Swing Line Subfacility shall be made for the account of Swing
Line Lender and each other Lender purchasing a participation in the Swing Line
Subfacility and shall be shared pro rata among such Lenders, as determined on
any date of determination for any such Lender as the proportion which the Swing
Principal Debt (or participations therein) owed to such Lender bears to the
Swing Principal Debt owed to all Lenders; (e) each payment with respect to the
LC Subfacility shall be made for the account of LC Issuer and each other Lender
purchasing a participation in any LC and related reimbursement obligations and
shall be shared pro rata among such Lenders, as determined on any date of
determination for any such Lender as the proportion which the Principal Debt
arising under the LC Subfacility (or participations therein) owed to such Lender
bears to the Principal Debt under the LC Subfacility owed to all Lenders; and
(f) the making, Conversion, and Continuation of Revolving Loans of a particular
Type (other than Conversions provided for by SECTION 4.4) shall be made pro rata
among the Lenders according to the amounts of their respective Commitment
Percentages, and the then current Interest Period for each Lender's portion of
each Revolving Loan of such Type shall be coterminous.
3.3 SHARING OF PAYMENTS, ETC. Except as contemplated in SECTION 4.7, if
any Lender shall obtain any payment (whether voluntary, involuntary, or
otherwise, including, without limitation, as a result of
29 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
35
exercising its rights under SECTION 3.4) which is in excess of its ratable share
of any such payment, such Lender shall purchase from the other Lenders such
participations as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such purchasing
Lender, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section may, to the fullest
extent permitted by Applicable Law, exercise all of its rights of payment
(including the right of offset) with respect to such participation as fully as
if such Lender were the direct creditor of Borrower in the amount of such
participation.
3.4 OFFSET. Upon the occurrence and during the continuance of an Event of
Default, each Lender shall be entitled to exercise (for the benefit of the
Lenders in accordance with SECTION 3.3) the rights of offset and/or banker's
lien against each and every account and other property, or any interest therein,
which Borrower may now or hereafter have with, or which is now or hereafter in
the possession of, such Lender to the extent of the full amount of the
Obligations (other than special accounts, trust accounts, or escrow accounts
maintained by Borrower in a fiduciary capacity or as an agent for unrelated
third parties).
3.5 BOOKING BORROWINGS. To the extent permitted by Applicable Law, any
Lender may make, carry, or transfer its Loans at, to, or for the account of any
of its branch offices or the office of any of its Affiliates; provided that, no
Affiliate shall be entitled to receive any greater payment under SECTION 4 than
the transferor Lender would have been entitled to receive with respect to such
Loans.
3.6 SEVERAL OBLIGATIONS . No Lender shall be responsible for the failure
of any other Lender to make a Loan or to perform any other obligation to be made
or performed by such other Lender hereunder, and the failure of any Lender to
make a Loan or to perform any other obligation to be made or performed by it
hereunder shall not relieve the obligation of any other Lender to make any Loan
or to perform any other obligation to be made or performed by such other Lender.
3.7 MINIMUM AMOUNTS.
(a) Borrowings and Conversions. Each borrowing of Base Rate Loans
shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $1,000,000 in excess thereof. Each borrowing of Eurodollar
Loans, and each Conversion of Loans to Eurodollar Loans shall be in an
aggregate minimum amount of $1,000,000 and integral multiples of
$1,000,000 in excess of that amount.
(b) Prepayments. Each voluntary prepayment of Loans shall be in an
aggregate minimum amount of $1,000,000.
(c) Reductions of Commitments. Each reduction of the Commitments
under SECTION 2.12 shall be in an aggregate minimum amount of $5,000,000
and integral multiples of $1,000,000 in excess thereof.
3.8 FEES.
(a) Facility Fee. Borrower agrees to pay to Administrative Agent for
the account of the Lenders a facility fee in an amount equal to 0.25%
multiplied by the amount of the average daily
30 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
36
Commitment (whether used or unused), in each case during the period from
and including the last payment date (or in respect of the initial payment,
the Effective Date) to and excluding the payment date for such
installment. Such facility fee shall be payable quarterly in arrears on
each Quarterly Date and on the Termination Date, beginning with September
30, 2001.
(b) Upfront Fee. On the Effective Date, Borrower agrees to pay an
upfront fee to Administrative Agent for the account of the Lenders in the
amount stated next to such Lender's name on the attached SCHEDULE 2.
(c) Extension Premium. On the second anniversary of the Effective
Date, Borrower agrees to pay an additional fee to Administrative Agent for
the account of the Lenders in an amount equal to 0.20% multiplied by the
aggregate outstanding Commitments of the Lenders after giving effect to
any reductions of the Commitments on such date.
(d) Administrative, Letter of Credit, and Other Fees. Borrower
agrees to pay the administrative, letter of credit, and other fees of
Administrative Agent and LC Issuer set forth in that certain separate
letter agreement dated July 20, 2001, among Borrower, Administrative
Agent, LC Issuer, and Arranger.
(e) LC Fees. As an inducement for the issuance (including, without
limitation, any extension) of each LC, Borrower agrees to pay to LC Issuer
(for the account of each Lender) according to each Lender's Commitment
Percentage under the Revolving Facility on the day the fee is payable, an
issuance fee payable quarterly in arrears for so long as each such LC is
outstanding, on the last Business Day of each March, June, September, and
December and on the expiry date of the LC. The issuance fee for each LC or
any extension thereof shall be in an amount equal to the product of (i)
(A) 1.25% (calculated on a per annum basis) until, but not including, the
second anniversary of the Effective Date or (B) 1.75% (calculated on a per
annum basis) on and after the second anniversary of the Effective Date
multiplied by (ii) the average daily undrawn amount of such LC.
3.9 COMPUTATIONS . Unless otherwise expressly set forth herein, any
accrued interest on any Base Rate Loan due hereunder shall be computed on the
basis of a 365/366 day year, and in all other instances, any accrued interest on
any Eurodollar Loan, any Fees or other Obligations due hereunder shall be
computed on the basis of a year of 360 days and the actual number of days
elapsed.
3.10 MAXIMUM RATE. Regardless of any provision contained in any Loan
Document, neither Administrative Agent nor any Lender shall ever be entitled to
contract for, charge, take, reserve, receive, or apply, as interest on the
Obligations, or any part thereof, any amount in excess of the Maximum Rate, and,
if the Lenders ever do so, then such excess shall be deemed a partial prepayment
of principal and treated hereunder as such and any remaining excess shall be
refunded to Borrower. In determining if the interest paid or payable exceeds the
Maximum Rate, Borrower and the Lenders shall, to the maximum extent permitted
under Applicable Law, (a) treat all Loans as but a single extension of credit
(and Lenders and Borrower agree that such is the case and that provision herein
for multiple Loans is for convenience only), (b) characterize any nonprincipal
payment as an expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d) amortize, prorate,
allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligations; 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
31 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
37
for the actual period of existence thereof exceeds the Maximum Amount, the
Lenders shall refund such excess, and, in such event, the Lenders shall not, to
the extent permitted by Applicable Law, be subject to any penalties provided by
any Applicable Laws for contracting for, charging, taking, reserving, or
receiving interest in excess of the Maximum Amount.
3.11 INTEREST RECAPTURE. If the designated rate applicable to any Loan
exceeds the Maximum Rate, the rate of interest on such Loan shall be limited to
the Maximum Rate, but any subsequent reductions in such designated rate shall
not reduce the rate of interest thereon below the Maximum Rate until the total
amount of interest accrued thereon equals the amount of interest which would
have accrued thereon if such designated rate had at all times been in effect. In
the event that at maturity (stated or by acceleration), or at final payment of
the Principal Debt, the total amount of interest paid or accrued is less than
the amount of interest which would have accrued if such designated rates had at
all times been in effect, then, at such time and to the extent permitted by law,
Borrower shall pay an amount equal to the difference between (a) the lesser of
the amount of interest which would have accrued if such designated rates had at
all times been in effect and the amount of interest which would have accrued if
the Maximum Rate had at all times been in effect, and (b) the amount of interest
actually paid or accrued on the Principal Debt.
3.12 AGREEMENT REGARDING INTEREST AND CHARGES. The parties hereto hereby
agree and stipulate that the only charge imposed upon Borrower for the use of
money in connection with this Agreement is and shall be the interest
specifically described in SECTION 2.5(a). Notwithstanding the foregoing, the
parties hereto further agree and stipulate that all agency fees, syndication
fees, facility fees, underwriting fees, default charges, late charges, funding
or "breakage" charges, increased cost charges, attorneys' fees and reimbursement
for costs and expenses paid by Administrative Agent, LC Issuer, Swing Line
Lender, or any Lender to third parties or for damages incurred by Administrative
Agent, LC Issuer, Swing Line Lender, or any Lender, are charges made to
compensate Administrative Agent, LC Issuer, Swing Line Lender, or any such
Lender for underwriting or administrative services and costs or losses performed
or incurred, and to be performed or incurred, by Administrative Agent, LC
Issuer, Swing Line Lender, and the Lenders in connection with this Agreement and
shall under no circumstances be deemed to be charges for the use of money.
3.13 DEFAULTING LENDERS.
(a) Generally. If for any reason any Lender (a "DEFAULTING LENDER")
shall fail or refuse to perform any of its obligations under this
Agreement or any other Loan Document to which it is a party within the
time period specified for performance of such obligation or, if no time
period is specified, if such failure or refusal continues for a period of
two Business Days after notice from Administrative Agent, then, in
addition to the rights and remedies that may be available to
Administrative Agent or Borrower under this Agreement or Applicable Law,
such Defaulting Lender's right to participate in the administration of the
Loans, this Agreement, and the other Loan Documents, including without
limitation, any right to vote in respect of, to consent to, or to direct
any action or inaction of Administrative Agent or to be taken into account
in the calculation of the Requisite Lenders, shall be suspended during the
pendency of such failure or refusal. If a Lender is a Defaulting Lender
because it has failed to make timely payment to Administrative Agent of
any amount required to be paid to Administrative Agent hereunder (without
giving effect to any notice or cure periods), in addition to other rights
and remedies which Administrative Agent or Borrower may have under the
immediately preceding provisions or otherwise, Administrative Agent shall
be entitled (i) to collect interest from such Defaulting Lender on such
delinquent payment for the period
32 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
38
from the date on which the payment was due until the date on which the
payment is made at the Federal Funds Rate, and (ii) to withhold or setoff
and to apply in satisfaction of the defaulted payment and any related
interest, any amounts otherwise payable to such Defaulting Lender under
this Agreement or any other Loan Document. Any amounts received by
Administrative Agent in respect of a Defaulting Lender's Loans shall not
be paid to such Defaulting Lender and shall be held uninvested by
Administrative Agent and either applied against the purchase price of such
Loans under the following SUBSECTION (b) or paid to such Defaulting Lender
upon the Defaulting Lender's curing of its default. Borrower shall not
have any liability in respect of such action by Administrative Agent.
(b) Purchase of Defaulting Lender's Commitment. Any Lender who is
not a Defaulting Lender shall have the right, but not the obligation, in
its sole discretion, to acquire all of a Defaulting Lender's Commitment.
Any Lender desiring to exercise such right shall give written notice
thereof to Administrative Agent no sooner than two Business Days and not
later than ten Business Days after such Defaulting Lender became a
Defaulting Lender. If more than one Lender exercises such right, each such
Lender shall have the right to acquire an amount of such Defaulting
Lender's Commitment in proportion to the Commitments of the other Lenders
exercising such right. Upon any such purchase, the Defaulting Lender's
interest in the Revolving Loans and any funded participations under the
Swing Line Subfacility and the LC Subfacility and its rights hereunder
(but not its liability in respect thereof or under the Loan Documents or
this Agreement to the extent the same relate to the period prior to the
effective date of the purchase) shall terminate on the date of purchase,
and the Defaulting Lender shall promptly execute all documents reasonably
requested to surrender and transfer such interest to the purchaser thereof
including an appropriate Assignment and Acceptance Agreement and,
notwithstanding SECTION 12.4(a), shall pay to Administrative Agent an
assignment fee in the amount of $3,500. The purchase price for the
Commitment of a Defaulting Lender shall be equal to the amount of the
principal balance of the Revolving Loans (together with the principal
amount of any funded participations in any Swing Line Loans held by the
Defaulting Lender pursuant to SECTION 2.2(c) and any funded participations
under the LC Subfacility held by the Defaulting Lender pursuant to SECTION
2.3(b)) outstanding and owed by Borrower to the Defaulting Lender. Prior
to payment of such purchase price to a Defaulting Lender, Administrative
Agent shall apply against such purchase price any amounts retained by
Administrative Agent pursuant to the second to last sentence of the
immediately preceding SUBSECTION (a). The Defaulting Lender shall be
entitled to receive amounts owed to it by Borrower under the Loan
Documents which accrued prior to the date of the default by the Defaulting
Lender, to the extent the same are received by Administrative Agent from
or on behalf of Borrower. There shall be no recourse against any Lender or
Administrative Agent for the payment of such sums except to the extent of
the receipt of payments from any other party or in respect of the
Revolving Loans or the principal amount of any funded participations in
any Swing Line Loan or in any LC and related reimbursement obligations
under the LC Subfacility. If, prior to a Lender's acquisition of a
Defaulting Lender's Commitment pursuant to this subsection, such
Defaulting Lender shall cure the event or condition which caused it to
become a Defaulting Lender and shall have paid all amounts owing by it
hereunder as a result thereof, then such Lender shall no longer have the
right to acquire such Defaulting Lender's Commitment.
33 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
39
SECTION 4 YIELD PROTECTION, ETC.
4.1 INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any Applicable
Law, rule, or regulation, or any change in any Applicable Law, or any
change in the interpretation or administration thereof by any
Governmental Authority, or compliance by any Lender (or its applicable
Lending Office) with any request or directive (whether or not having the
force of law) of any such Governmental Authority:
(i) shall subject such Lender (or its applicable Lending
Office) to any Tax, duty, or other charge with respect to any
Eurodollar Loans, its Note (if any), or its obligation to make
Eurodollar Loans, or change the basis of taxation of any amounts
payable to such Lender (or its applicable Lending Office) under
the Loan Documents in respect of any Eurodollar Loans (other
than Taxes imposed on the overall net income of such Lender by
the jurisdiction in which such Lender has its principal office or
such applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other
than the Reserve Requirement utilized in the determination of the
Adjusted Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its applicable Lending Office),
including the Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its applicable
Lending Office) or on the London interbank market any other
condition affecting the Loan Documents or any of such extensions
of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Eurodollar Loans or to reduce any sum
received or receivable by such Lender (or its applicable Lending Office)
under the Loan Documents with respect to any Eurodollar Loans, then
Borrower shall pay to such Lender on demand such amount or amounts as
will compensate such Lender for such increased cost or reduction. If any
Lender requests compensation by Borrower under this SECTION 4.1(a),
Borrower may, by notice to such Lender (with a copy to Administrative
Agent), suspend the obligation of such Lender to make or Continue
Revolving Loans of the Type with respect to which such compensation is
requested, or to Convert Revolving Loans of any other Type into
Revolving Loans of such Type, until the event or condition giving rise
to such request ceases to be in effect (in which case the provisions of
SECTION 4.4 shall be applicable); provided that, such suspension shall
not affect the right of such Lender to receive the compensation so
requested.
(b) If, after the date hereof, any Lender shall have determined
that the adoption of any Applicable Law regarding capital adequacy or
any change therein or in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
Governmental Authority (excluding those of the foregoing applying to a
Lender solely by reason of a formal determination by the applicable
regulator that such Lender is
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
34
40
in a financially troubled condition) has or would have the effect of
reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request,
or directive (taking into consideration its policies with respect to
capital adequacy), then from time to time upon demand Borrower shall pay
to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) Each Lender shall promptly notify Borrower and Administrative
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section and will designate a different applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
Section shall furnish to Borrower and Administrative Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender may use any reasonable averaging
and attribution methods.
4.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Eurodollar Loan:
(a) Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Requisite Lenders determine (which determination shall be
conclusive) and notify Administrative Agent that the Adjusted Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Loans for such Interest Period; then Administrative
Agent shall give Borrower prompt notice thereof specifying the relevant
Revolving Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to
make additional Eurodollar Loans, Continue Eurodollar Loans, or to
Convert Base Rate Loans into Eurodollar Loans, and Borrower shall, on
the last day(s) of the then current Interest Period(s) for the
outstanding Eurodollar Loans, either prepay such Loans or Convert such
Loans into Base Rate Loans in accordance with the terms of this
Agreement.
4.3 ILLEGALITY. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its applicable Lending
Office to make, maintain, or fund Eurodollar Loans hereunder, then such Lender
shall promptly notify Borrower thereof and such Lender's obligation to make or
Continue Eurodollar Loans and to Convert other Base Rate Loans into Eurodollar
Loans shall be suspended until such time as such Lender may again make,
maintain, and fund Eurodollar Loans (in which case the provisions of SECTION 4.4
shall be applicable).
4.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to
make a Eurodollar Loan or to Continue, or to Convert Base Rate Loans into,
Eurodollar Loans shall be suspended pursuant to SECTION 4.1, 4.2, or 4.3 hereof,
such Lender's Eurodollar Loans shall be automatically Converted into Base Rate
Loans on the last day(s) of the then current Interest Period(s) for Eurodollar
Loans (or, in the case of a Conversion required by SECTION 4.3 hereof, on such
earlier date as such Lender may specify to Borrower with a copy to
Administrative Agent) and, unless and until such Lender gives notice as provided
below that
35 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
41
the circumstances specified in SECTION 4.1, 4.2,or 4.3 hereof that gave rise to
such Conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such
Lender as Eurodollar Loans shall be made or Continued instead as Base
Rate Loans, and all Loans of such Lender that would otherwise be
Converted into Eurodollar Loans shall be Converted instead into (or
shall remain as) Base Rate Loans.
If such Lender gives notice to Borrower (with a copy to Administrative Agent)
that the circumstances specified in SECTION 4.1, 4.2, or 4.3 hereof that gave
rise to the Conversion of such Lender's Eurodollar Loans pursuant to this
SECTION 4.4 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Revolving Loans held by the Lenders holding Eurodollar Loans
and by such Lender are held pro rata (as to principal amounts, Types, and
Interest Periods) in accordance with their respective Commitments.
4.5 COMPENSATION. Upon the request of any Lender, Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment (including, without limitation, any
principal reduction effected pursuant to SECTION 2.13 as a result of an
increase in the Commitment), or Conversion of a Eurodollar Loan for any
reason (including, without limitation, the acceleration of the Revolving
Loans pursuant to SECTION 10.2) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in SECTION
5 to be satisfied) to borrow, Convert, Continue, or prepay a Eurodollar
Loan on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Agreement.
4.6 TAXES.
(a) General. Any and all payments by Borrower to or for the
account of any Lender or Administrative Agent hereunder or under any
other Loan Document shall be made free and clear of and without
deduction for any and all present or future Taxes with respect
thereto, excluding, in the case of each Lender and Administrative Agent,
Taxes imposed on its income and franchise Taxes imposed on it by any
jurisdiction under the laws of which such Lender (or its applicable
Lending Office) or Administrative Agent (as the case may be) is
organized or any political subdivision thereof (all such non-excluded
Taxes referred to as "NON-EXCLUDED TAXES"). If Borrower shall be
required by law to deduct any Non-Excluded Taxes from or in respect of
any sum payable under
36 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
42
this Agreement or any other Loan Document to any Lender or
Administrative Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this SECTION 4.6)
such Lender or Administrative Agent receives an amount equal to the sum
it would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with Applicable Law, and (iv) Borrower shall furnish to
Administrative Agent, at its address referred to in SECTION 12.1, the
original or a certified copy of a receipt evidencing payment thereof
within 30 days of such payment.
(b) Stamp and Documentary Tax. In addition, Borrower agrees to
pay any and all present or future stamp or documentary taxes and any
other excise or property Taxes which arise from any payment made under
this Agreement or any other Loan Document or from the execution or
delivery of, or otherwise with respect to, this Agreement or any other
Loan Document (hereinafter referred to as "OTHER TAXES").
(c) INDEMNIFICATION FOR TAXES. BORROWER AGREES TO INDEMNIFY EACH
LENDER AND ADMINISTRATIVE AGENT FOR THE FULL AMOUNT OF NON-EXCLUDED
TAXES AND OTHER TAXES (INCLUDING, WITHOUT LIMITATION, ANY NON-EXCLUDED
TAXES OR OTHER TAXES IMPOSED OR ASSERTED BY ANY JURISDICTION ON AMOUNTS
PAYABLE UNDER THIS SECTION 4.6) PAID BY SUCH LENDER OR ADMINISTRATIVE
AGENT (AS THE CASE MAY BE) AND ANY LIABILITY (INCLUDING PENALTIES,
INTEREST, AND EXPENSES) ARISING THEREFROM OR WITH RESPECT THERETO. THIS
INDEMNIFICATION SHALL BE MADE WITHIN 10 DAYS FROM THE DATE SUCH LENDER
OR ADMINISTRATIVE AGENT (AS THE CASE MAY BE) MAKES WRITTEN DEMAND
THEREFOR.
(d) Withholding Tax Forms. Each Lender organized under the laws
of a jurisdiction outside the United States, on or prior to the date of
its execution and delivery of this Agreement in the case of each Lender
listed on the signature pages hereof and on or prior to the date on
which it becomes a Lender in the case of each other Lender, and from
time to time thereafter, including, without limitation, upon the
expiration or obsolescence of any previously delivered form or upon the
written request of Borrower or Administrative Agent (but only so long as
such Lender remains eligible to do so) shall provide Borrower and
Administrative Agent with (i) two duly completed copies of Internal
Revenue Service Form W-8BEN, W-8ECI, W-8IMY, W-9, or other applicable or
successor form, as the case may be and (ii) any other governmental forms
or certificates which are necessary or required under an applicable tax
treaty or otherwise by law to reduce or eliminate withholding tax, which
has been reasonably requested by Borrower or Administrative Agent. If an
event (including without limitation any change in treaty, law, or
regulation) has occurred prior to the date on which any delivery
required by the preceding sentence would otherwise be required which
renders all such forms inapplicable or which would prevent any Lender
from duly completing and delivering any such form with respect to it and
such Lender advises Borrower and Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax, such Lender shall not be required to
deliver such forms.
(e) Failure to Provide Withholding Forms; Change in Tax Law. For
any period with respect to which a Lender has failed to provide Borrower
and Administrative Agent with the appropriate form required to be
provided pursuant to SECTION 4.6(d), such Lender shall not be entitled
37 SECOND AMENDED AND RESTATED CREDIT AGREEMENT
43
to indemnification under this SECTION 4.6 with respect to Non-Excluded
Taxes imposed by the United States; provided, however, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Non-Excluded Taxes because of its
failure to deliver a form required hereunder, Borrower shall take such
steps as such Lender shall reasonably request to assist such Lender to
recover such Non-Excluded Taxes. Each Lender which fails to provide to
Borrower in a timely manner such forms shall reimburse Borrower or
Administrative Agent upon demand for any penalties paid by Borrower or
Administrative Agent as a result of any failure of Borrower to withhold
the required amounts that are caused by such Lender's failure to provide
the required forms in a timely manner.
(f) Changes in Applicable Lending Office. If Borrower is required
to pay additional amounts to or for the account of any Lender pursuant
to this SECTION 4.6, then such Lender will use best efforts (consistent
with legal and regulatory restrictions) to change the jurisdiction of
its applicable Lending Office so as to eliminate or reduce any such
additional payments or amounts which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise disadvantageous
to such Lender.
(g) Refund or Credit of Tax. If any Lender or Administrative
Agent, as the case may be, obtains a refund of any Non-Excluded Tax or
Other Tax for which payment has been made by Borrower pursuant to
this SECTION 4.6, or receives a full or partial credit in computing its
tax liability in any jurisdiction, which credit in the good faith
judgment of such Lender or Administrative Agent, as the case may be (and
without any obligation to disclose its tax records to Borrower), is
attributable to any such Non-Excluded Tax or Other Tax, the amount of
such refund or the appropriate portion of such credit (together with any
interest received thereon) promptly shall be paid to Borrower.
(h) Survival. Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of
Borrower contained in this SECTION 4.6 shall survive the termination of
the Commitments and the payment in full of the Obligations.
4.7 REMOVAL OF LENDERS. If (a) a Lender or a Participant requests
compensation pursuant to SECTIONS 4.1 or 4.6 and the Requisite Lenders are not
also doing the same, or (b) the obligation of a Lender to make Eurodollar Loans
or to Continue, or to Convert Loans into Eurodollar Loans shall be suspended
pursuant to SECTION 4.1 or SECTION 4.3, but the obligation of the Requisite
Lenders shall not have been suspended under such Sections, Borrower may either
(i) demand that such Lender or Participant (the "AFFECTED LENDER"), and upon
such demand the Affected Lender shall promptly, assign its Commitment and all of
its Loans to an Eligible Assignee subject to and in accordance with the
provisions of SECTION 12.4 for a purchase price equal to the aggregate principal
balance of Loans then owing to the Affected Lender (together with any
participation held by the affected Lender in any Swing Line Loan pursuant to
SECTION 2.2(c) or in any LC and related reimbursement obligations under the LC
Subfacility pursuant to SECTION 2.3(b)) plus any accrued but unpaid interest
thereon, accrued but unpaid Fees owing to the Affected Lender, and any amounts
owing the Affected Lender under SECTION 4, or (ii) pay to the Affected Lender
the aggregate principal balance of Loans (together with any participation held
by the Affected Lender in any Swing Line Loan pursuant to SECTION 2.2(c)or in
any LC and related reimbursement obligations under the LC Subfacility pursuant
to SECTION 2.3(b)) then owing to the Affected Lender plus any accrued but unpaid
interest thereon, accrued but unpaid Fees owing to the Affected Lender, and any
amounts owing the Affected Lender under SECTION 4, whereupon the Affected Lender
shall no longer be a party hereto or have any rights
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
38
44
or obligations hereunder or under any of the other Loan Documents, subject to
the survival of certain provisions as set forth in SECTION 12.14. Each of
Administrative Agent and the Affected Lender shall reasonably cooperate in
effectuating the replacement of an Affected Lender under this Section, but at no
time shall Administrative Agent, the Affected Lender, or any other Lender be
obligated in any way whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. The exercise by Borrower of its rights under this
Section shall be at Borrower's sole cost and expenses and at no cost or expense
to Administrative Agent, the Affected Lender, or any of the other Lenders. The
terms of this Section shall not in any way limit Borrower's obligation to pay to
any Affected Lender compensation owing to such Affected Lender pursuant
to SECTION 4.
SECTION 5 CONDITIONS PRECEDENT.
5.1 INITIAL CONDITIONS PRECEDENT. The effectiveness of this Agreement is
subject to the following conditions precedent:
(a) Administrative Agent shall have received each of the
following, in form and substance satisfactory to the Lenders:
(i) Counterparts of this Agreement executed by each of the
parties hereto;
(ii) With respect to any Lender requesting Notes pursuant
to SECTION 2.11(b), a Revolving Note, in the form of EXHIBIT E-1,
one payable to each such requesting Lender (as the case may be);
(iii) If requested by Swing Line Lender pursuant to
SECTION 2.11(b), a Swing Line Note in the form of EXHIBIT E-2,
payable to Swing Line Lender;
(iv) Copies (certified by the Secretary or Assistant
Secretary of Borrower) of the Articles of Incorporation and
Bylaws of Borrower;
(v) An opinion of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel
to Borrower, addressed to Administrative Agent and the Lenders,
in substantially the form of EXHIBIT F;
(vi) A certificate of incumbency signed by the Secretary
or Assistant Secretary of Borrower with respect to each of the
officers of Borrower authorized to execute and deliver the Loan
Documents and the officers of Borrower then authorized to deliver
Notices of Borrowing, LC Requests, Notices of Continuation, and
Notices of Conversion;
(vii) Copies (certified by the Secretary or Assistant
Secretary of Borrower) of all corporate action taken by Borrower
to authorize the execution, delivery, and performance of the Loan
Documents;
(viii) A copy of each of the documents, instruments, and
agreements evidencing any of the Indebtedness described
on SCHEDULE 6.1(g)and a copy of each Material Contract described
on SCHEDULE 6.1(h), certified as true, correct, and complete by
the chief financial officer of Borrower;
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
39
45
(ix) The Fees then due under SECTION 3.8;
(x) A Compliance Certificate calculated as of March 31,
2001;
(xi) Payment by Borrower of all outstanding Indebtedness
owed to any Non-Continuing Lender, if any, under the Existing
Agreement, together with a payoff letter in form and substance
reasonably acceptable to Administrative Agent.
(xii) Repayment of all accrued and unpaid interest under
the Existing Agreement and repayment of all unpaid fees and other
amounts payable under the Existing Agreement.
(xiii) A certificate from Borrower (in form and substance
satisfactory to Administrative Agent), certifying that as of the
Effective Date:
(A) there shall not have occurred any event, condition,
situation, or status since the date of the information
contained in (i) the financial and business projections,
budgets, pro forma data, and forecasts concerning Borrower
and its Subsidiaries delivered to Administrative Agent and
the Lenders prior to the Effective Date or (ii) the facts
or information represented or provided to Lenders prior to
the Effective Date as set forth in Borrower's most recent
10-K and 10-Q or represented or provided by Borrower in
the meeting with the Lenders conducted on June 15, 2001,
which event, condition, situation, or status has had or
could reasonably be expected to result in a material
adverse change in the business, assets, liabilities
(actual or contingent), operations, condition (financial
or otherwise), or prospects of Borrower and its
Subsidiaries, taken as a whole;
(B) there is no litigation, action, suit, investigation,
or other arbitral, administrative, or judicial proceeding
pending or threatened which could reasonably be expected
to (x) result in a Material Adverse Effect or (y) restrain
or enjoin, impose materially burdensome conditions on, or
otherwise materially and adversely affect the ability of
Borrower to fulfill its obligations under the Loan
Documents; and
(C) Borrower and its Subsidiaries shall have received all
approvals, consents, and waivers, and shall have made or
given all necessary filings and notices as shall be
required to consummate the transactions contemplated
hereby without the occurrence of any default under,
conflict with, or violation of (x) any Applicable Law or
(y) any agreement, document, or instrument to which
Borrower or any Subsidiary is a party or by which any of
them or their respective properties is bound (including
without limitation, the Senior Note Agreements), except
for such approvals, consents, waivers, filings, and
notices the receipt, making, or giving of which would not
reasonably be likely to (1) have a Material Adverse
Effect, or (2) restrain or enjoin, impose materially
burdensome conditions on, or otherwise materially and
adversely affect the ability of Borrower to fulfill its
obligations under the Loan Documents; and
(xiv) Such other documents, agreements and instruments as
Administrative Agent on behalf of the Lenders may reasonably
request.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
40
46
(b) In the good faith judgment of Administrative Agent and the
Lenders, there shall not have occurred or exist any material disruption
of financial or capital markets that could reasonably be expected to
materially and adversely affect the transactions contemplated by the
Loan Documents.
5.2 CONDITIONS PRECEDENT TO ALL LOANS OR LC ISSUANCES. The obligation of
the Lenders to make any Loans (other than Loans constituting the payment by LC
Issuer of drafts under LCs) or the obligation of LC Issuer to issue any LC is
subject to the further conditions precedent that: (a) Borrower is in compliance
with the Asset Coverage Ratio requirements as set forth in SECTION 9.1(e)
immediately prior to the making of such Loan and immediately after giving effect
thereto; (b) no Default or Event of Default shall have occurred and be
continuing as of the date of the making of such Loan or would exist immediately
after giving effect thereto; (c) the representations and warranties made or
deemed made by Borrower and its Subsidiaries in the Loan Documents to which any
of them is a party, shall be true and correct on and as of the date of the
making of such Loan with the same force and effect as if made on and as of such
date except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and
except for changes in factual circumstances specifically and expressly permitted
hereunder; (d) in the case of the borrowing of Loans (other than Swing Line
Loans), Administrative Agent shall have received a timely Notice of Borrowing;
and (e) in the case of the issuance of an LC, Administrative Agent shall have
timely received an LC Request (together with the applicable LC Agreement) and
the Fees provided for in SECTION 3.8 for the account of LC Issuer and the
Lenders entitled thereto. Each Credit Event shall constitute a certification by
Borrower to the effect set forth in the preceding sentence (both as of the date
of the giving of notice relating to such Credit Event and, unless Borrower
otherwise notifies Administrative Agent prior to the date of such Credit Event,
as of the date of the occurrence of such Credit Event). In addition, if such
Credit Event is the making of a Loan or the issuance of an LC, Borrower shall be
deemed to have represented to Administrative Agent and the Lenders at the time
such Loan is made or LC is issued that all conditions to the making of such Loan
or the issuance of such LC contained in SECTION 5 have been satisfied. Each
condition precedent in this Agreement is material to the transactions
contemplated in this Agreement, and time is of the essence in respect of each
thereof. Subject to the prior approval of Requisite Lenders, the Lenders may
fund any Loan or LC Issuer may issue any LC without all conditions being
satisfied, but, to the extent permitted by Applicable Law, the same shall not be
deemed to be a waiver of the requirement that each such condition precedent be
satisfied as a prerequisite for any subsequent funding or issuance, unless
Requisite Lenders specifically waive each such item in writing.
SECTION 6 REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES. In order to induce Administrative
Agent and each Lender to enter into this Agreement and to make Loans and to
induce LC Issuer to issue LCs, Borrower represents and warrants to
Administrative Agent, LC Issuer, and each Lender as follows:
(a) Organization; Power; Qualification. Except as disclosed
on SCHEDULE 6.1(a), each of Borrower and its Subsidiaries is a
corporation, partnership, or other legal entity, duly organized or
formed, validly existing and in good standing under the jurisdiction of
its incorporation or formation, has the power and authority to own or
lease its respective properties and to carry on its respective business
as now being and hereafter proposed to be conducted, and is duly
qualified and is in good standing as a foreign corporation, partnership,
or other legal entity, and authorized to do business, in
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each jurisdiction in which the character of its properties or the nature
of its business requires such qualification or authorization and where
the failure to be so qualified or authorized would have, in each
instance, a Material Adverse Effect.
(b) Ownership Structure. As of the Agreement Date, SCHEDULE 6.1
(b) correctly sets forth the corporate structure and ownership interests
of the Subsidiaries including the correct legal name of each Subsidiary,
its jurisdiction of formation, the Persons holding equity interests in
such Subsidiary, and their percentage equity or voting interest in such
Subsidiary. As of the Agreement Date, SBIC, REIT, and Allied Capital,
CMT Inc. are the only Material Subsidiaries. Except as set forth in such
Schedule, and except for Permitted Preferred Stock:
(i) No Consolidated Subsidiary has issued to any third
party any securities convertible into such Consolidated
Subsidiary's capital stock or other equity interests or any
options, warrants, or other rights to acquire any securities
convertible into such capital stock or other equity interests,
and
(ii) The outstanding capital stock of, or other equity
interests in, each Consolidated Subsidiary are owned by Borrower
and its Consolidated Subsidiaries indicated on such Schedule free
and clear of all Liens, warrants, options and rights of others of
any kind whatsoever. All such outstanding capital stock and other
equity interests have been validly issued and, in the case of
capital stock, are fully paid and nonassessable.
(c) Authorization of Agreement, Notes, Loan Documents, and
Borrowings. Borrower has the right and power, and has taken all
necessary action to authorize it, to borrow hereunder or to request the
issuance of an LC and to incur reimbursement obligations with respect
thereto. Borrower has the right and power, and has taken all necessary
action to authorize it to execute, deliver, and perform each of the Loan
Documents to which it is a party in accordance with their respective
terms and to consummate the transactions contemplated hereby and
thereby. The Loan Documents have been duly executed and delivered by the
duly authorized officers of Borrower, and each is a legal, valid, and
binding obligation of Borrower, enforceable against it in accordance
with its respective terms.
(d) Compliance of Agreement, Notes, Loan Documents, and Borrowing
with Laws, etc. The execution, delivery and performance of this
Agreement, the Notes, if any, and the other Loan Documents in accordance
with their respective terms, and the borrowings hereunder do not and
will not, by the passage of time, the giving of notice, or otherwise:
(i) require any Governmental Approval, other than such as have been
obtained and are in full force and effect, or violate any Applicable Law
(including all Environmental Laws) relating to Borrower or any
Subsidiary; (ii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation or the bylaws of Borrower or
the organizational documents of any Subsidiary, or any indenture,
agreement, or other instrument to which Borrower or any Subsidiary is a
party or by which it or any of its respective properties may be bound;
or (iii) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter acquired by
Borrower or any Subsidiary.
(e) Compliance with Law; Governmental Approvals. Borrower and
each Subsidiary is in compliance with each Governmental Approval
applicable to it and in compliance with all other
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Applicable Laws relating to it, except for noncompliances which, and
Governmental Approvals the failure to possess which, would not,
individually or in the aggregate, cause a Default or Event of Default or
have a Material Adverse Effect.
(f) Ownership of Assets; Liens. Each of Borrower and its
Consolidated Subsidiaries has good title to all of its assets. There are
no Liens against any of such assets except for Liens permitted by
SECTION 9.3.
(g) Indebtedness. SCHEDULE 6.1(g) is, as of the Effective Date, a
complete and correct listing of all Indebtedness of Borrower and its
Subsidiaries, including all guaranties of Borrower and its Subsidiaries
and all letters of credit and acceptance facilities extended to Borrower
or any Subsidiary.
(h) Material Contracts. SCHEDULE 6.1(h) is a true, correct, and
complete listing of all Material Contracts as of the Effective Date.
(i) Litigation. There are no actions, suits, or proceedings
pending (nor, to the knowledge of Borrower or any Subsidiary, are there
any actions, suits, or proceedings threatened, nor is there any basis
therefor) against or in any other way relating adversely to or affecting
Borrower or any Subsidiary or any of its respective property in any
court or before any arbitrator of any kind or before or by any other
Governmental Authority which is reasonably likely to be adversely
determined and result in a Material Adverse Effect, and there are no
strikes, slow downs, work stoppages or walkouts, or other labor disputes
in progress or threatened relating to Borrower or any Subsidiary.
(j) Taxes. All federal, state, and other tax returns of Borrower
and its Consolidated Subsidiaries required by Applicable Law to be filed
have been duly filed, and all federal, state, and other Taxes upon
Borrower and any of its Consolidated Subsidiaries and their respective
properties, income, profits, and assets which are due and payable have
been paid, except any such nonpayment which is at the time permitted
under SECTION 7.6. None of the United States income tax returns of
Borrower and its Consolidated Subsidiaries are under audit as of the
Agreement Date. All charges, accruals, and reserves on the books of
Borrower and each of its Consolidated Subsidiaries in respect of any
Taxes are in accordance with GAAP.
(k) Financial Statements: No Material Adverse Change. Borrower
has furnished to each Lender copies of (i) the audited consolidated
balance sheet of Borrower and its Consolidated Subsidiaries for the
fiscal year ending December 31, 2000, and the related consolidated
statements of operations, changes in net assets, and cash flows for the
fiscal year ending on such date, with the opinion thereon of ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, LLP, and (ii) the unaudited consolidated balance sheet of
Borrower and its Consolidated Subsidiaries for the one-fiscal quarter
period ending March 31, 2001, and the related consolidated statements of
operations, changes in net assets, and cash flows for the one-fiscal
quarter period ending on such date. Such balance sheets and statements
(including in each case related schedules and notes) present fairly, in
accordance with GAAP consistently applied throughout the periods
involved, the consolidated financial position of Borrower as at their
respective dates and the results of operations, changes in net assets,
and cash flows for such periods (subject, as to interim statements, to
changes resulting from normal year-end audit adjustments). Neither
Borrower nor any of its Consolidated Subsidiaries has on the Agreement
Date any material contingent liabilities, other liabilities, liabilities
for Taxes, unusual or long-term commitments or
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unrealized or forward anticipated losses from any unfavorable
commitments, except as referred to or reflected or provided for in said
financial statements. Since March 31, 2001, there has been no material
adverse change in the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise), or
prospects of Borrower and its Consolidated Subsidiaries taken as a
whole. Each of Borrower and its Consolidated Subsidiaries is Solvent.
(l) ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance
with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan except for noncompliances which
would not, individually or in the aggregate, cause a Default or an Event
of Default or have a Material Adverse Effect. No member of the ERISA
Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code in respect of any Plan, (ii)
failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to
any Plan or Benefit Arrangement, which has resulted or could result in
the imposition of a Lien or the posting of a bond or other security
under ERISA or the Internal Revenue Code, or (iii) incurred any
liability under Title IV of ERISA, other than a liability to the PBGC
for premiums under Section 4007 of ERISA.
(m) Absence of Defaults. Neither Borrower nor any Material
Subsidiary is in default under its articles of incorporation, bylaws,
partnership agreement, or other similar organizational documents, and no
event has occurred, which has not been remedied, cured or waived: (i)
which constitutes a Default or an Event of Default; or (ii) which
constitutes, or which with the passage of time, the giving of notice, a
determination of materiality, the satisfaction of any condition, or any
combination of the foregoing, would constitute, a default or event of
default by Borrower or any Subsidiary under any Indebtedness, Material
Contract, any other agreement (other than this Agreement) or judgment,
decree, or order to which Borrower or any Subsidiary is a party or by
which Borrower or any Subsidiary or any of their respective properties
may be bound where such default or event of default could, individually
or in the aggregate, have a Material Adverse Effect.
(n) Environmental Laws. Borrower and its Subsidiaries have
obtained all Governmental Approvals which are required under
Environmental Laws, and are in compliance with all terms and conditions
of such Governmental Approvals, which the failure to obtain or to comply
with could reasonably be expected to have a Material Adverse Effect.
Each of Borrower and its Subsidiaries is also in compliance with all
other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables contained in the
Environmental Laws the failure with which to comply could have a
Material Adverse Effect. Neither Borrower nor any Subsidiary is aware
of, or has received notice of, any past, present, or future events,
conditions, circumstances, activities, practices, incidents, actions, or
plans which, with respect to Borrower or any of its Subsidiaries may
interfere with or prevent compliance or continued compliance with
Environmental Laws, or may give rise to any common-law or legal
liability, or otherwise form the basis of any claim, action, demand,
suit, proceeding, hearing, study, or investigation, based on or related
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling or the emission, discharge, release, or
threatened release into the environment, of any pollutant, contaminant,
chemical, or industrial, toxic, or other Hazardous Materials that could
be reasonably expected to have a Material Adverse Effect; and there is
no civil, criminal, or administrative action, suit, demand, claim,
hearing, notice, or demand letter, notice of violation, investigation,
or proceeding pending or, to the
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knowledge of Borrower or any Subsidiary, after due inquiry, threatened,
against Borrower or any of its Subsidiaries relating in any way to
Environmental Laws that could be reasonably expected to have a Material
Adverse Effect.
(o) Investment Company; Public Utility Holding Company. Borrower
is a "business development company" within the meaning of the Investment
Company Act. Neither Borrower nor any Subsidiary is (i) a "holding
company" or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a
"holding company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (ii) except for other Subsidiaries
that are business development companies, subject to any other Applicable
Law which purports to regulate or restrict its ability to borrow money
or to consummate the transactions contemplated by this Agreement or to
perform its obligations under any Loan Document to which it is a party.
(p) Margin Stock. Neither Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose, whether immediate, incidental, or
ultimate, of buying or carrying "margin stock" within the meaning
of Regulation U (as enacted by the Board of Governors of the Federal
Reserve System, as amended). "Margin Stock" (as defined in Regulation U)
constitutes less than 25% of those assets of Borrower or any Subsidiary
which are subject to any limitation on sale, pledge, or other
restrictions hereunder.
(q) Affiliate Transactions. Except as permitted by SECTION 9.8,
neither Borrower nor any Subsidiary is a party to or bound by any
agreement or arrangement (whether oral or written) to which any
Affiliate of Borrower or any Subsidiary is a party. Neither Borrower nor
any Subsidiary is a party to any agreement or arrangement which
restricts or prohibits the payment of dividends or the repayment of
inter-company loans by a Subsidiary to Borrower, except for SBA approval
of dividends paid by SBIC, which Borrower has no reason to believe will
not be granted by the SBA.
(r) Intellectual Property. Borrower and each Subsidiary owns or
has the right to use, under valid license agreements or otherwise, all
patents, licenses, franchises, trademarks, trademark rights, trade
names, trade name rights, trade secrets, and copyrights (collectively,
"INTELLECTUAL PROPERTY") used in the conduct of its businesses as now
conducted and as contemplated by the Loan Documents, which the failure
to own or have the right to use could reasonably be expected to have a
Material Adverse Effect, without known conflict with any patent,
license, franchise, trademark, trade secret, trade name, copyright, or
other proprietary right of any other Person.
(s) Accuracy and Completeness of Information. All written
information, reports, and other papers and data furnished to
Administrative Agent or any Lender by, on behalf of, or at the direction
of, Borrower or any Subsidiary were, at the time the same were so
furnished, complete and correct in all material respects, to the extent
necessary to give the recipient a true and accurate knowledge of the
subject matter, or, in the case of financial statements, present fairly,
in accordance with GAAP consistently applied throughout the periods
involved, the financial position of the Persons involved as at the date
thereof and the results of operations for such periods. As of the
Agreement Date, no fact is known to Borrower or any Subsidiary which has
had, or may in the future have (so far as Borrower or any Subsidiary can
reasonably foresee), a Material Adverse Effect which has not been set
forth in the financial statements referred to in SECTION 6.1(k) or in
such information, reports or other papers or data or otherwise disclosed
in writing to Administrative Agent and the
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Lenders prior to the Effective Date. No document furnished or written
statement made to Administrative Agent or any Lender in connection with
the negotiation, preparation, or execution of this Agreement or any of
the other Loan Documents contains or will contain any untrue statement
of a fact material to the creditworthiness of Borrower or any Subsidiary
or omits or will omit to state a material fact necessary in order to
make the statements contained therein not misleading. Notwithstanding
the first and third sentences of this SECTION 6.1(s), as to projected
financial information, Borrower represents and warrants only that such
information, at the time furnished to Administrative Agent or any
Lender, was prepared in good faith based on reasonable assumptions under
the circumstances.
(t) RIC Status. Each of Borrower and SBIC qualifies as a RIC.
(u) Not Plan Assets. The assets of Borrower or any Subsidiary do
not and will not constitute "plan assets," within the meaning of ERISA,
the Internal Revenue Code and the respective regulations promulgated
thereunder. The execution, delivery and performance of this Agreement,
and the borrowing and repayment of amounts hereunder, do not and will
not constitute "prohibited transactions" under ERISA or the Internal
Revenue Code.
(v) Business. As of the Agreement Date, Borrower and its
Subsidiaries are substantially engaged in the businesses described in
the Reference 10-Q.
6.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All statements
contained in any certificate, financial statement, or other instrument delivered
by or on behalf of Borrower or any Subsidiary to Administrative Agent or any
Lender pursuant to or in connection with this Agreement or any of the other Loan
Documents (including, but not limited to, any such statement made in or in
connection with any amendment thereto or any statement contained in any
certificate, financial statement, or other instrument delivered by or on behalf
of Borrower prior to the Agreement Date and delivered to Administrative Agent or
any Lender in connection with closing the transactions contemplated hereby)
shall constitute representations and warranties made by Borrower under this
Agreement. All representations and warranties made under this Agreement and the
other Loan Documents shall be deemed to be made at and as of the Agreement Date,
the Effective Date, and at and as of the date of the occurrence of any Credit
Event, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and
warranties shall have been true and accurate on and as of such earlier date) and
except for changes in factual circumstances specifically permitted hereunder.
All such representations and warranties shall survive the effectiveness of this
Agreement, the execution and delivery of the Loan Documents, and the making of
the Loans.
SECTION 7 AFFIRMATIVE COVENANTS.
For so long as this Agreement is in effect and thereafter until the
payment in full of the Obligations and the termination or expiration of all LCs,
unless the Requisite Lenders (or, if required pursuant to SECTION 12.5, all of
the Lenders) shall otherwise consent in the manner provided for in SECTION 12.5,
Borrower shall:
7.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS. Except as otherwise
permitted under SECTION 9.5, preserve and maintain, and Borrower shall cause
each Material Subsidiary to preserve and maintain, its respective existence,
rights, franchises, licenses, and privileges in the jurisdiction of its
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incorporation or formation and qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification and authorization and where
the failure to be so authorized and qualified could have a Material Adverse
Effect.
7.2 COMPLIANCE WITH APPLICABLE LAW AND MATERIAL CONTRACTS. Comply, and
Borrower shall cause each Material Subsidiary to comply, with (a) all Applicable
Laws (including, without limitation, ERISA, Environmental Laws, and the
Investment Company Act), including the obtaining of all Governmental Approvals,
the failure with which to comply could have a Material Adverse Effect, and (b)
all material terms and conditions of all Material Contracts to which it is a
party.
7.3 MAINTENANCE OF PROPERTY. In addition to the requirements of any of
the other Loan Documents, (a) protect and preserve, and Borrower shall cause
each Material Subsidiary to protect and preserve, all of its material
properties, including, but not limited to, all Intellectual Property, and
maintain in good repair, working order, and condition all tangible properties,
ordinary wear and tear excepted, and (b) from time to time make or cause to be
made, and Borrower shall cause each Material Subsidiary to make, all needed and
appropriate repairs, renewals, replacements, and additions to such properties,
so that the business carried on in connection therewith may be properly and
effectively conducted at all times.
7.4 CONDUCT OF BUSINESS. Together with its Subsidiaries, at all times
carry on their business described in the Reference 10-Q.
7.5 INSURANCE. In addition to the requirements of any of the other Loan
Documents, maintain, and Borrower shall cause each Material Subsidiary to
maintain, insurance with financially sound and reputable insurance companies
against such risks and in such amounts as is customarily maintained by Persons
engaged in similar businesses or as may be required by Applicable Law.
7.6 PAYMENT OF TAXES AND CLAIMS. Pay or discharge, and Borrower shall
cause each Material Subsidiary to pay and discharge, when due (a) all Taxes
imposed upon it or upon its income or profits or upon any properties belonging
to it, and (b) all lawful claims of materialmen, mechanics, carriers,
warehousemen, and landlords for labor, materials, supplies, and rentals which,
if unpaid, might become a Lien on any properties of such Person; provided,
however, that this Section shall not require the payment or discharge of any
such Tax or claim which is being contested in good faith by appropriate
proceedings which operate to suspend the collection thereof and for which
adequate reserves have been established on the books of Borrower or such
Subsidiary, as applicable, in accordance with GAAP.
7.7 VISITS AND INSPECTIONS. Permit, and Borrower shall cause each
Material Subsidiary to permit, representatives or agents of Administrative Agent
or any Lender, from time to time, as often as may be reasonably requested and at
the expense of Administrative Agent (unless an Event of Default shall be
continuing in which case the exercise by Administrative Agent of its rights
under this Section shall be at the expense of Borrower), but only during normal
business hours, to: (a) visit and inspect all properties of Borrower and each
Material Subsidiary; (b) inspect and make extracts from their respective books
and records, including, but not limited to, management letters prepared by
independent accountants; and (c) discuss with its principal officers and its
independent accountants, its business, assets, liabilities, financial
conditions, results of operations, and business prospects. If requested by
Administrative Agent, Borrower shall execute an authorization letter addressed
to its accountants authorizing Administrative Agent or any Lender to discuss the
financial affairs of Borrower and any Material Subsidiary with its accountants.
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7.8 USE OF PROCEEDS. Use the proceeds of Loans to repay existing
Indebtedness owed to any Non-Continuing Lender under the Existing Agreement, to
repay all accrued and unpaid interest and fees under the Existing Agreement, to
pay the fees and expenses related to the amendment and restatement of the
Existing Agreement, and for working capital and general corporate purposes of
Borrower and its Subsidiaries. Borrower shall not, and Borrower shall not permit
any Subsidiary to, use any part of such proceeds to purchase or carry, or to
reduce or retire or refinance any credit incurred to purchase or carry, any
margin stock (within the meaning of Regulations T, U, and X of the Board of
Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any such margin stock.
7.9 ENVIRONMENTAL MATTERS. Comply, and Borrower shall cause all of its
Subsidiaries to comply, with all Environmental Laws, the failure with which to
comply could have a Material Adverse Effect. If Borrower or any Subsidiary shall
(a) receive notice that any violation of any Environmental Law may have been
committed or is about to be committed by such Person, (b) receive notice that
any administrative or judicial complaint or order has been filed or is about to
be filed against Borrower or any Subsidiary alleging violations of any
Environmental Law or requiring Borrower or any Subsidiary to take any action in
connection with the release of Hazardous Materials, or (c) receive any notice
from a Governmental Authority or private party alleging that Borrower or any
Subsidiary may be liable or responsible for costs associated with a response to
or cleanup of a release of a Hazardous Materials or any damages caused thereby,
and such notices, individually or in the aggregate, could have a Material
Adverse Effect, Borrower shall provide Administrative Agent with a copy of such
notice within ten days after the receipt thereof by Borrower or any of the
Subsidiaries. Borrower and the Subsidiaries shall promptly take all actions
necessary to prevent the imposition of any Liens on any of their respective
properties arising out of or related to any Environmental Laws.
7.10 BOOKS AND RECORDS. Maintain, and Borrower shall cause each of the
Subsidiaries to maintain, books and records pertaining to its business
operations in such detail, form and scope as is consistent with good business
practice in accordance with GAAP.
7.11 STATUS OF RIC AND BDC. At all times maintain, and cause SBIC to
maintain, its status as a RIC under the Internal Revenue Code, and as a
"business development company" under the Investment Company Act.
7.12 ERISA EXEMPTIONS. Not, and Borrower shall not permit any
Subsidiary to, permit any of its respective assets to become or be deemed to be
"plan assets" within the meaning of ERISA, the Internal Revenue Code and the
respective regulations promulgated thereunder.
7.13 FURTHER ASSURANCES. At Borrower's cost and expense, upon the
request of Administrative Agent, duly execute and deliver or cause to be duly
executed and delivered, to Administrative Agent and the Lenders such further
instruments, documents, and certificates, and do and cause to be done such
further acts that may be necessary or advisable in the opinion of Administrative
Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
SECTION 8 INFORMATION.
For so long as this Agreement is in effect and thereafter until payment
in full of the Obligations and the termination or expiration of all LCs, unless
the Requisite Lenders (or, if required pursuant to SECTION 12.5,
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all of the Lenders) shall otherwise consent in the manner set forth in SECTION
12.5, Borrower shall furnish to each Lender (or to Administrative Agent if so
provided below) at its Lending Office:
8.1 QUARTERLY FINANCIAL STATEMENTS. As soon as available and in any
event within 45 days after the close of each of the first, second, and third
fiscal quarters of Borrower, the consolidated balance sheets of Borrower and its
Consolidated Subsidiaries as at the end of each such period and the related
consolidated statements of operations, changes in net assets, and cash flows of
Borrower and its Consolidated Subsidiaries for each such period, setting forth
in each case in comparative form the figures for the corresponding periods of
the previous fiscal year, all of which shall be certified by the chief financial
officer of Borrower, in his or her opinion, to present fairly, in accordance
with GAAP, the consolidated financial position of Borrower and its Consolidated
Subsidiaries as at the date thereof and the results of operations for such
period (subject to normal year-end audit adjustments).
8.2 YEAR-END STATEMENTS. As soon as available and in any event within 90
days after the end of each fiscal year of Borrower, the consolidated and
consolidating balance sheets of Borrower and its Consolidated Subsidiaries as at
the end of such fiscal year and the related consolidated and (except in the case
of the statement of changes in net assets) consolidating statements of
operations, changes in net assets, and cash flows of Borrower and its
Consolidated Subsidiaries for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year, all of which
shall be certified by (a) the chief financial officer of Borrower, in his or her
opinion, to present fairly, in accordance with GAAP, the financial position of
Borrower and its Consolidated Subsidiaries as at the date thereof and the result
of operations for such period and (b) independent certified public accountants
of recognized national standing acceptable to the Requisite Lenders, whose
opinion shall be unqualified and in scope and substance satisfactory to the
Requisite Lenders and who shall have authorized Borrower to deliver such
financial statements and opinion thereon to Administrative Agent and the Lenders
pursuant to this Agreement.
8.3 COMPLIANCE CERTIFICATE; ASSET REPORTS.
(a) At the time the financial statements are furnished pursuant
to SECTIONS 8.1 and 8.2, a Compliance Certificate: (i) setting forth in
reasonable detail as at the end of such quarterly accounting period or
fiscal year, as the case may be, the calculations required to establish
whether or not Borrower and its Consolidated Subsidiaries were in
compliance with the covenants contained in SECTION 9.1, (ii) stating
that, to the best of his or her knowledge, information, and belief, no
Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default and its nature, when it
occurred, and whether it is continuing and the steps being taken by
Borrower with respect to such event, condition, or failure. At the time
the financial statements are furnished pursuant to SECTION 8.2, Borrower
will deliver to the Lenders a certificate of the independent accountants
performing the audit of such financial statements acknowledging that
Borrower was in compliance with the financial covenants of SECTION 9.1,
and setting forth the procedures used to make such determination.
(b) Within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, and within 90 days after the end of
the last fiscal quarter of each fiscal year, the following reports with
respect to Investments of Borrower and its Consolidated Subsidiaries, as
of the end of such fiscal quarter, in form and scope acceptable to
Administrative Agent:
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(i) A consolidated statement of Investments as presented
in Borrower's consolidated financial statements;
(ii) A report of unrealized and realized gains (losses)
(with detail as to unrealized gains and losses by portfolio
company for private finance Investments and in the aggregate for
Commercial Mortgage Loans, and other Investments); and
(iii) A delinquency report identifying loans over 120 days
past-due.
8.4 OTHER INFORMATION.
(a) Not later than 90 days prior to the last day of each fiscal
year of Borrower, pro forma projected consolidated financial statements
for Borrower and its Consolidated Subsidiaries reflecting the forecasted
financial condition and results of operations of Borrower and its
Consolidated Subsidiaries on a quarterly basis for the next succeeding
year, accompanied by calculations establishing whether or not Borrower
would be in compliance on a pro forma basis with the covenants contained
in SECTION 9.1, in each case in form and detail reasonably acceptable to
the Administrative Agent;
(b) Promptly upon receipt thereof, copies of all reports, if any,
submitted to Borrower or its Board of Directors by its independent
public accountants, including, without limitation, any management
report;
(c) Within five Business Days of the filing thereof, copies of
all registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent), reports on Forms
10-K, 10-Q, and 8-K (or their equivalents) and all other periodic
reports which Borrower shall file with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any
national securities exchange;
(d) Promptly upon the mailing thereof to the shareholders of
Borrower generally, copies of all financial statements, reports, and
proxy statements so mailed and promptly upon the issuance thereof copies
of all press releases issued by Borrower;
(e) If and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent, or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of
an intent to terminate, impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or appoint a trustee to
administer, any Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of the Internal
Revenue Code, a copy of such application; (v) gives notice of intent to
terminate any Plan under Section 4041(c) of ERISA, a copy of such notice
and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of
such notice; or (vii) fails to make any payment or
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contribution to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a
Lien or the posting of a bond or other security, a certificate of the
chief financial officer of Borrower setting forth details as to such
occurrence and action, if any, which Borrower or applicable member of
the ERISA Group is required or proposes to take;
(f) To the extent Borrower or any Subsidiary is aware of the
same, prompt notice of the commencement of any proceeding or
investigation by or before any Governmental Authority and any action or
proceeding in any court or other tribunal or before any arbitrator
against or in any other way relating adversely to, or adversely
affecting, Borrower or any Subsidiary or any of their respective
properties, assets, or businesses which, if determined or resolved
adversely to such Person, could have a Material Adverse Effect; and
prompt notice of the receipt of notice that any United States income tax
returns of Borrower or any of its Subsidiaries are being audited;
(g) To the extent not previously delivered to the Lenders, a copy
of the articles of incorporation, bylaws, partnership agreement, or
other similar organizational documents of Borrower, any Material
Subsidiary, and any amendment thereto, in each case within five Business
Days of the effectiveness thereof;
(h) Prompt notice of any change in the business, assets,
liabilities, financial condition, results of operations, or business
prospects of Borrower or any Subsidiary which has had or may have a
Material Adverse Effect,
(i) Prompt notice of the occurrence of any Default or Event of
Default or any event which constitutes or which with the passage of
time, the giving of notice, or otherwise, would constitute a default or
event of default by Borrower or any Subsidiary under any Material
Contract to which any such Person is a party or by which any such Person
or any of its respective properties may be bound;
(j) Prompt notice of any order, judgment, or decree in excess of
$5,000,000 having been entered against Borrower or any Subsidiary or any
of their respective properties or assets;
(k) Prompt notice, which notice shall, in the case of a Material
Subsidiary, be delivered no later than five days following the
occurrence, of the acquisition, incorporation, or other creation of any
Subsidiary, the purpose for such Subsidiary, the nature of the assets
and liabilities thereof, and whether such Subsidiary is a Material
Subsidiary;
(l) At the time the quarterly financial statements are furnished
in accordance with SECTION 8.1, a list of the Persons who are Material
Subsidiaries as of the date of the balance sheet included in such
quarterly financial statements;
(m) Promptly upon entering into any Material Contract after the
Agreement Date, a copy to Administrative Agent of such Material
Contract; and
(n) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents, or
further information regarding the business, assets,
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liabilities, financial condition, results of operations, or business
prospects of Borrower or any of its Material Subsidiaries as
Administrative Agent or any Lender may reasonably request.
SECTION 9 NEGATIVE COVENANTS.
For so long as this Agreement is in effect and thereafter until the
payment in full of the Obligations and the termination or expiration of all LCs,
unless the Requisite Lenders (or, if required pursuant to SECTION 12.5, all of
the Lenders) shall otherwise consent in the manner set forth in SECTION 12.5,
Borrower shall not, directly or indirectly:
9.1 FINANCIAL COVENANTS. Permit:
(a) Ratio of Consolidated Debt to Consolidated Shareholders'
Equity. The ratio of Consolidated Debt to Consolidated Shareholders'
Equity to exceed 1.50 to 1.00 at the end of any fiscal quarter.
(b) Minimum Tangible Net Worth. Consolidated Shareholders' Equity
to be less than (i) $845,000,000 plus (ii) 75% of the Net Proceeds of
all Equity Issuances effected by Borrower or any of its Consolidated
Subsidiaries at any time after March 31, 2001 (excluding the Net
Proceeds of any Equity Issuance by a Consolidated Subsidiary to a
Consolidated Subsidiary or to Borrower).
(c) Ratio of Adjusted EBIT to Interest Expense. The ratio of the
Adjusted EBIT to Interest Expense of Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis as of the last day of
each fiscal quarter for the period of four successive fiscal quarters
ended on such day, to be less than 1.80 to 1.00 at the end of such
fiscal quarter.
(d) Priority Debt. The aggregate principal amount of Priority
Debt to exceed 25% of Consolidated Shareholders' Equity.
(e) Asset Coverage Ratio. The Asset Coverage Ratio to be less
than 2 to 1.
9.2 INTEREST RATE AGREEMENTS. Enter into, or permit any Consolidated
Subsidiary to enter into, any Interest Rate Agreement except in the ordinary
course of business pursuant to bona fide hedging transactions and not for
speculation.
9.3 LIENS; AGREEMENTS REGARDING LIENS; OTHER MATTERS.
(a) Create, assume, or incur, or permit or suffer to exist (or
permit any Consolidated Subsidiary to create, incur, assume, or permit
or suffer to exist) any Lien upon any of its assets, including, without
limitation, the equity interests of Borrower or any Subsidiary in their
respective Subsidiaries, other than:
(i) the Permitted Liens;
(ii) Liens securing the Obligations, if any; and
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(iii) Liens securing Indebtedness (including Liens in
existence on the Effective Date and securing the Indebtedness
described on SCHEDULE 6.1(g)), so long as the aggregate
Indebtedness secured by all such Liens is permitted within the
limitations of SECTION 9.1.
(b) Except for SBA consents that may be required for SBIC, create
or otherwise cause or suffer to exist or become effective, or permit any
Subsidiary to create or otherwise cause or suffer to exist or become
effective, any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary to: (i) pay dividends or make any other
distribution on any of such Subsidiary's capital stock or other equity
interests owned by Borrower or any other Subsidiary of Borrower; (ii)
pay any Indebtedness owed to Borrower or any other Subsidiary; (iii)
make loans or advances to Borrower or any other Subsidiary; or (iv)
transfer any of its property or assets to Borrower or any other
Subsidiary.
(c) Create, incur, assume, or permit to exist, directly or
indirectly, or permit any Consolidated Subsidiary, directly or
indirectly, to create, incur, assume, or permit to exist (upon the
happening of a contingency or otherwise) any Lien (except Liens
permitted by SECTION 9.3(a)) on or with respect to any property that
secures Indebtedness of Borrower or its Consolidated Subsidiaries,
including, without limitation, Indebtedness outstanding under the Senior
Notes or the Senior Note Agreements, unless Borrower makes, or causes to
be made, effective provision whereby the Obligations will be equally and
ratably secured with any and all other Debt of Borrower or its
Consolidated Subsidiaries thereby secured; provided that, such security
is granted pursuant to an agreement reasonably satisfactory to the
Requisite Lenders.
9.4 DISTRIBUTIONS TO SHAREHOLDERS. If an Event of Default specified in
SECTION 10.1(a) or SECTION 10.1(b)occurs and is not cured within ten Business
Days thereafter, if a Default or an Event of Default specified in SECTION
10.1(f) or SECTION 10.1(g)shall have occurred and be continuing, or if as a
result of the occurrence of any other Event of Default the Obligations have been
accelerated pursuant to SECTION 10.2(a), make (a) any dividend or other
distribution on account of any of its capital stock; (b) any acquisition for
value of any capital stock of Borrower; or (c) any payment made to retire, or to
obtain the surrender of, any outstanding warrants, options, or other rights to
acquire any capital stock of Borrower.
9.5 MERGER, CONSOLIDATION AND SALES OF ASSETS.
(a) (i) Enter into, or permit any Consolidated Subsidiary to
enter into, any transaction of merger or consolidation; (ii) liquidate,
wind-up, or dissolve itself (or suffer any liquidation or dissolution)
or permit any Consolidated Subsidiary to do any of the foregoing; (iii)
convey, sell, lease, sublease, transfer, or otherwise dispose of, in one
transaction or a series of transactions, all or any substantial part of
its business or assets, or the capital stock of or other equity
interests in any of its Consolidated Subsidiaries, in each case whether
now owned or hereafter acquired (a "SALE") or permit any Consolidated
Subsidiary to do any of the foregoing; provided, however, that, so long
as no Default or Event of Default is or would be in existence at the
time of such event or immediately after giving effect thereto:
(A) Any Consolidated Subsidiary may merge or consolidate
with or into, or effect a Sale to, Borrower or any Wholly Owned
Subsidiary, so long as (1) in any merger or consolidation
involving Borrower, Borrower shall be the surviving or continuing
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corporation and (2) in any merger or consolidation involving a
Wholly Owned Subsidiary (and not Borrower), a Wholly Owned
Subsidiary shall be the surviving or continuing corporation;
(B) In addition to the transactions permitted under CLAUSE
(E) below, Borrower may convey, sell, lease, sublease, transfer,
or otherwise dispose of, in one transaction or a series of
transactions, its business or assets, or the capital stock of or
other equity interests in any of its Consolidated Subsidiaries,
in each case whether now owned or hereafter acquired, to any of
its Consolidated Subsidiaries, so long as (1) the Book Value of
such assets sold (in one or a series of transactions) in a given
fiscal year does not exceed 15% of the total assets of Borrower
determined at the close of the immediately preceding fiscal year,
or (2) the operations of such assets sold generated does not
exceed 15% of the consolidated operating profit of Borrower
during the immediately preceding fiscal year;
(C) A Consolidated Subsidiary may liquidate;
(D) Borrower or any Consolidated Subsidiary may merge or
consolidate with any other corporation; provided that, Borrower
or a Wholly Owned Subsidiary shall be the continuing or surviving
corporation and;
(E) Borrower or any Consolidated Subsidiary may effect a
Sale of Investments (other than Investments in a Consolidated
Subsidiary) or Foreclosure Property to third parties, to any
Special Purpose Subsidiary, or (solely with respect to
Foreclosure Property) to any Unrestricted Subsidiary in arm's
length transactions on a non-recourse basis, so long as the
purchaser of such Investment or Foreclosure Property does not and
will not have a claim against or interest in any other assets of
Borrower or any Consolidated Subsidiary to support the value of
the assets so sold or to enhance the creditworthiness of
securities or Debt secured by or evidencing an interest in such
assets or in the holder thereof; and
(F) Borrower or any Consolidated Subsidiary may effect a
Sale of capital stock or other equity interests in an
Unrestricted Subsidiary to third parties in arm's length
transactions; or
(b) Permit any Consolidated Subsidiary to issue any voting stock
of such Consolidated Subsidiary except to satisfy the rights of minority
shareholders to receive issuances of stock, which are non-dilutive to
Borrower and/or any Consolidated Subsidiary; provided that, the
foregoing restrictions do not apply to issuances of voting stock to
Borrower or to a Wholly Owned Subsidiary or the issuance of directors'
qualifying shares.
As used in this Section, a sale of assets will be deemed a "substantial
part" of the assets of Borrower and its Consolidated Subsidiaries if (y) the
Book Value of such assets sold (in one or a series of transactions) in a given
fiscal year (except those assets transferred pursuant to CLAUSE (B), (E), or (F)
above sold in the ordinary course of business) exceeds 15% of the total assets
of Borrower and its Consolidated Subsidiaries determined at the close of the
immediately preceding fiscal year, or (z) the operations of such assets sold
(except those assets transferred pursuant to CLAUSE (B), (E), or (F) above sold
in the ordinary course of business) generated 15% or more of the consolidated
operating profit of Borrower and its Consolidated Subsidiaries during the
immediately preceding fiscal year.
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9.6 FISCAL YEAR. Change its fiscal year from that in effect as of the
Agreement Date.
9.7 MODIFICATIONS TO MATERIAL CONTRACTS. Enter into, or permit any
Subsidiary to enter into, any amendment or modification to any Material Contract
which could have a Material Adverse Effect or default in the performance of any
obligations of Borrower or any Subsidiary under any Material Contract or permit
any Material Contract to be canceled or terminated prior to its stated maturity.
9.8 TRANSACTIONS WITH AFFILIATES. Permit to exist or enter into, and
will not permit any of its Subsidiaries to permit to exist or enter into, any
transaction (including the purchase, sale, lease, or exchange of any property or
the rendering of any service) with any Affiliate of Borrower or with any
director, officer, or employee of Borrower, any Subsidiary, or any other
Affiliate, except transactions involving consideration in aggregate amount for
all such transactions not in excess of $5,000,000 per fiscal year, and
transactions in the ordinary course of, and pursuant to the reasonable
requirements of the, business of Borrower or any of its Subsidiaries and upon
fair and reasonable terms which are no less favorable to Borrower or such
Subsidiary than would be obtained in a comparable arm's length transaction with
a Person that is not an Affiliate.
9.9 SUBSIDIARY SENIOR NOTE GUARANTY. Permit any Consolidated Subsidiary
to guarantee (including without limitation, any Subsidiary Senior Note Guaranty)
or assume or agree to become liable in any way, either directly or indirectly,
for any Debt of Borrower or any Consolidated Subsidiary (other than (i)
guaranties or assumptions of Debt of a Consolidated Subsidiary so long as such
Debt does not constitute Senior Debt and (ii) guaranties of the Obligations),
unless and until Borrower shall first furnish to Administrative Agent (a) an
unconditional Subsidiary Bank Guaranty, (b) an Intercreditor Agreement, and (c)
an opinion of counsel to the effect that such Subsidiary Bank Guaranty has been
duly authorized, executed, and delivered by such Consolidated Subsidiary and
constitutes the legal, valid, and binding obligation of such Consolidated
Subsidiary, enforceable against such Consolidated Subsidiary in accordance with
the terms thereof, and covering such other matters as the Requisite Lenders may
reasonably request.
9.10 EMPLOYEE BENEFIT PLANS. Engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Internal Revenue Code).
9.11 PAYMENT OF OBLIGATION. Borrower shall pay the Obligations in
accordance with the terms and provisions of the Loan Documents. Borrower and its
Consolidated Subsidiaries shall not (a) if an Event of Default shall have
occurred and be continuing, make any voluntary prepayment of principal of, or
interest on, any other Debt (other than the Obligations), whether subordinate to
the Obligations or not or (b) use proceeds from the Loans to make any payment or
prepayment of principal of, or interest on, or sinking fund payment in respect
of any other Debt of Borrower or any of its Subsidiaries.
SECTION 10 DEFAULT.
10.1 EVENTS OF DEFAULT. Each of the following shall constitute an Event
of Default, whatever the reason for such event and whether it shall be voluntary
or involuntary or be effected by operation of Applicable Law or pursuant to any
judgment or order of any Governmental Authority:
(a) Default in Payment of Principal. Borrower shall fail to pay
when due (whether upon demand, at maturity, by reason of acceleration,
or otherwise) the principal of any of the Loans.
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(b) Default in Payment of Other Amounts. Borrower shall fail to
pay when due any interest on any of the Loans or any of the other
payment Obligations (other than the principal of any Loan) owing by
Borrower under this Agreement or any other Loan Document and such
failure shall continue for a period of three Business Days after the
earlier of (i) the date upon which Borrower obtains knowledge of such
failure or (ii) the date upon which Borrower has received written notice
of such failure from Administrative Agent.
(c) Default in Performance. (i) Borrower shall fail (or, where
applicable, shall fail to cause any Subsidiary) to perform or observe
any term, covenant, condition or agreement on its part to be performed
or observed contained in SECTIONS 7.11, 7.12, 8.4(i), or in SECTION 9 or
(ii) Borrower shall fail (or, where applicable, shall fail to cause any
Subsidiary) to perform or observe any term, covenant, condition, or
agreement contained in this Agreement or any other Loan Document to
which it is a party and not otherwise mentioned in this Section and in
the case of this CLAUSE (ii) such failure shall continue for a period of
30 days after the earlier of (x) the date upon which Borrower obtains
knowledge of such failure or (y) the date upon which Borrower has
received written notice of such failure from Administrative Agent.
(d) Misrepresentations. Any written statement, representation, or
warranty made or deemed made by or on behalf of Borrower or any
Subsidiary under this Agreement or under any other Loan Document, or any
amendment hereto or thereto, or in any other writing or statement at any
time furnished or made or deemed made by or on behalf of Borrower or any
Subsidiary to Administrative Agent or any Lender in connection with this
Agreement or the other Loan Documents, shall at any time prove to have
been incorrect or misleading in any material respect when furnished or
made.
(e) Indebtedness Cross-Default.
(i) Borrower or any Consolidated Subsidiary shall fail to
pay when due and payable the principal of, or interest on, any
Indebtedness (other than the Loans) or any Contingent Obligations
having an aggregate outstanding principal amount of $5,000,000 or
more, or
(ii) the maturity of any Indebtedness (other than the
Loans) of Borrower or any Consolidated Subsidiary having an
aggregate outstanding principal amount of $5,000,000 or more
shall have (x) been accelerated in accordance with the provisions
of any indenture, contract, or instrument evidencing, providing
for the creation of, or otherwise concerning such Indebtedness or
(y) been required to be prepaid prior to the stated maturity
thereof; or
(iii) any other event shall have occurred and be
continuing with respect to any Indebtedness (other than the
Loans) of Borrower or any Consolidated Subsidiary having an
aggregate outstanding principal amount of $5,000,000 or more
which, with or without the passage of time, the giving of notice,
or otherwise, would permit any holder or holders of such
Indebtedness, any trustee or agent acting on behalf of such
holder or holders, or any other Person to accelerate the maturity
of any such Indebtedness or require any such Indebtedness to be
prepaid prior to its stated maturity.
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(f) Voluntary Bankruptcy Proceeding. Borrower, any Consolidated
Subsidiary, or any Other Relevant Subsidiary shall: (i) commence a
voluntary case under the Bankruptcy Code of 1978, as amended or other
federal bankruptcy laws (as now or hereafter in effect); (ii) file a
petition seeking to take advantage of any other Applicable Laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; (iii) consent to, or
fail to contest in a timely and appropriate manner, any petition filed
against it in an involuntary case under such bankruptcy laws or other
Applicable Laws or consent to any proceeding or action described in the
immediately following subsection; (iv) apply for or consent to, or fail
to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or
liquidator of itself or of a substantial part of its property, domestic
or foreign; (v) admit in writing its inability to pay its debts as they
become due; (vi) make a general assignment for the benefit of creditors;
(vii) make a conveyance fraudulent as to creditors under any Applicable
Law; or (viii) take any corporate or similar action for the purpose of
effecting any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against Borrower, any Consolidated Subsidiary or any
Other Relevant Subsidiary, in any court of competent jurisdiction
seeking: (i) relief under the Bankruptcy Code of 1978, as amended or
other federal bankruptcy laws (as now or hereafter in effect) or under
any other Applicable Laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding-up, or composition or adjustment of
debts; or (ii) the appointment of a trustee, receiver custodian,
liquidator or the like of such Person, or of all or any substantial part
of the assets domestic or foreign, of such Person, and such case or
proceeding is not dismissed within 60 days after it is commenced.
(h) Contest of Loan Documents. Borrower or any Subsidiary shall
disavow, revoke, or terminate any Loan Document to which it is a party
or shall otherwise challenge or contest in any action, suit, or
proceeding in any court or before any Governmental Authority the
validity or enforceability of this Agreement, any Note, or any other
Loan Document.
(i) Judgment. A judgment or order for the payment of money shall
be entered against Borrower or any Consolidated Subsidiary by any court
or other tribunal which exceeds, individually or together with all other
such judgments or orders entered against Borrower and its Consolidated
Subsidiaries, $5,000,000 in amount (or which shall otherwise have a
Material Adverse Effect) and such judgment or order shall continue
unpaid for a period of 30 days without being stayed or dismissed through
appropriate appellate proceedings.
(j) Attachment. A warrant, writ of attachment, execution, or
similar process shall be issued against any property of Borrower or any
Consolidated Subsidiary which exceeds, individually or together with all
other such warrants, writs, executions, and processes, $5,000,000 in
amount and such warrant, writ, execution, or process shall not be
discharged, vacated, stayed, or bonded for a period of 30 days;
provided, however, that if a bond has been issued in favor of the
claimant or other Person obtaining such warrant, writ, execution, or
process, the issuer of such bond shall execute a waiver or subordination
agreement in form and substance satisfactory to Administrative Agent
pursuant to which the issuer of such bond subordinates its right of
reimbursement, contribution, or subrogation to the Obligations and
waives or subordinates any Lien it may have on the assets of Borrower or
any of its Consolidated Subsidiaries.
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(k) ERISA. Any member of the ERISA Group shall fail to pay when
due an amount or amounts aggregating in excess of $10,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings
under Title IV of ERISA to terminate, to impose liability (other than
for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there
shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $10,000,000.
(l) Loan Documents. An Event of Default (as defined therein)
shall occur under any of the other Loan Documents.
(m) Change of Control.
(i) Any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT")) is or becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that a Person will be deemed to have "beneficial
ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of more than
25% of the total voting power of the then outstanding voting
stock of Borrower; or
(ii) During any twelve-month period (commencing on or
after the Agreement Date), a majority of the Board of Directors
of Borrower shall no longer be composed of individuals (A) who
were members of such Board of Directors on the first date of such
period, (B) whose election or nomination to such Board of
Directors was approved by individuals referred to in CLAUSE (A)
above constituting at the time of such election or nomination at
least a majority of such Board of Directors or (C) whose election
or nomination to such Board of Directors was approved by
individuals referred to in CLAUSES (A) and (B) above constituting
at the time of such election or nomination at least a majority of
such Board of Directors.
(n) Dissolution. Any order, judgment, or decree is entered
against Borrower, any Material Subsidiary or any Other Relevant
Subsidiary decreeing the dissolution or split up of such Person, and
such order remains undischarged or unstayed for a period in excess of 30
days.
(o) Payment of Certain Other Agreements. The payment directly or
indirectly (including, without limitation, any payment in respect of any
sinking fund, defeasance, or redemption) by Borrower or any of its
Consolidated Subsidiaries of any Debt, including without limitation, the
Senior Notes, in a manner or at a time during which such payment is not
permitted under the terms of the Loan Documents, or under any instrument
or document evidencing or creating such Debt.
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(p) LCs. LC Issuer shall have been served with, or becomes
otherwise subject to, a court order, injunction, or other process or
decree restraining or seeking to restrain it from paying any drafts
under any LC and either (i) there has been a draft under such LC which
LC Issuer would otherwise be obligated to pay and Borrower has refused
to reimburse LC Issuer for such payment or (ii) the expiration date of
such LC has occurred but the right of any beneficiary thereunder to draw
under such LC has been extended past the expiration date in connection
with the pendency of the related court action or proceeding and Borrower
has failed to deposit with Administrative Agent cash collateral in an
amount equal to the maximum drawing which could be made under such LC.
10.2 REMEDIES UPON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default the following provisions shall apply:
(a) Acceleration; Termination of Facilities.
(i) Automatic. Upon the occurrence of an Event of Default
specified in SECTIONS 10.1(f) or 10.1(g), (A) the entire unpaid
balance of the Obligations of Borrower under the Loan Documents
shall become immediately and automatically due and payable by
Borrower without presentment, demand, protest, or other notice of
any kind, all of which are expressly waived by Borrower and
Borrower shall be required to provide cash collateral in an
amount equal to 100% of the LC Exposure then existing in
accordance with SECTION 2.3(g) and (B) each of the Commitments
(including the Swing Line Commitment and LC Commitment) and the
obligation of Lenders to make Loans and the obligation of LC
Issuer to issue LCs shall immediately and automatically
terminate;
(ii) Optional. If any other Event of Default shall have
occurred and be continuing, Administrative Agent may, and at the
direction of the Requisite Lenders shall (subject to the terms
of SECTION 11): (A) declare the entire unpaid balance of the
Obligations under the Loan Documents, or any part thereof,
immediately due and payable; whereupon the same shall immediately
become due and payable without presentment, demand, protest, or
other notice of any kind, all of which are expressly waived by
Borrower, (B) demand Borrower to provide cash collateral in an
amount equal to 100% of the LC Exposure then existing in
accordance with SECTION 2.3(g), and (C) terminate the Commitments
(including the Swing Line Commitment and the LC Commitment) and
the obligation of Lenders to make Loans hereunder and the
obligation of LC Issuer to issue LCs hereunder.
(b) Loan Documents. The Requisite Lenders may direct
Administrative Agent to, and Administrative Agent if so directed shall
(subject to the terms of SECTION 11), exercise any and all of its rights
under any and all of the other Loan Documents.
(c) Applicable Law. The Requisite Lenders may direct
Administrative Agent to, and Administrative Agent if so directed shall,
exercise all other rights and remedies it may have under any Applicable
Law, including without limitation, (i) reduce any claim to judgment;
(ii) to the extent permitted by Applicable Law, exercise (or request
each Lender to, and each Lender shall be entitled to, exercise) the
rights of offset or banker's Lien against the interest of Borrower and
each Consolidated Subsidiary in and to every account (other than special
accounts, trust accounts, or escrow accounts maintained by Borrower in a
fiduciary capacity or as an agent for unrelated third parties) and other
property of Borrower and each Consolidated Subsidiary which are in the
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possession of Administrative Agent or any Lender to the extent of the
full amount of the Obligations (to the extent permitted by Applicable
Law, Borrower and each Consolidated Subsidiary being deemed directly
obligated to each Lender in the full amount of the Obligations for such
purposes); and (iii) exercise any and all other legal or equitable
rights afforded by the Loan Documents, the Applicable Laws of the State
of Texas, or any other applicable jurisdiction as Administrative Agent
shall deem appropriate, or otherwise, including, but not limited to, the
right to bring suit or other proceedings before any Governmental
Authority either for specific performance of any covenant or condition
contained in any of the Loan Documents or in aid of the exercise of any
right granted to Administrative Agent or any Lender in any of the Loan
Documents.
10.3 REMEDIES UPON CERTAIN DEFAULTS. Upon the occurrence of a Default
specified in SECTIONS 10.1(f) or 10.1(g), the Commitments (including the Swing
Line Commitment and the LC Commitment) shall immediately and automatically
terminate.
10.4 ALLOCATION OF PROCEEDS. If a Default or Event of Default shall have
occurred and be continuing, all payments received by Administrative Agent, LC
Issuer, Swing Line Lender, or any Lender under any of the Loan Documents, in
respect of any principal of or interest on the Obligations or any other amounts
payable by Borrower hereunder or thereunder (including proceeds from the
exercise of any rights), shall be applied by Administrative Agent in the
following order and priority:
(a) Amounts due to Administrative Agent, LC Issuer, and the
Lenders in respect of Fees and expenses due under SECTION 12.2;
(b) Payments of interest on the Revolving Loans and the Swing
Line Loans to be applied for the ratable benefit of Lenders, Swing Line
Lender, and any participating Lenders under the Swing Line Subfacility
pursuant to SECTION 2.2(c);
(c) Payment of all unpaid reimbursement obligations with respect
to any LCs issued pursuant to the Agreement which are due and payable
and which remain unfunded by any Loan, provided that, such payments
shall be allocated ratably among LC Issuer and the Lenders which have
funded their participations in such LC;
(d) Payments of outstanding Swing Principal Debt; provided that,
such payments shall be made solely to Swing Line Lender, unless the
Lenders have funded participations in the Swing Principal Debt in
accordance with SECTION 2.2(c), in which case such payment shall be
allocated pro rata among Swing Line Lender and the participating
Lenders;
(e) Payments of principal outstanding under the Revolving Loans,
to be applied for the ratable benefit of the Lenders;
(f) As a deposit with Administrative Agent (for the benefit of LC
Issuer and the Lenders which have purchased participations in any
outstanding LC), as security for, and to provide for the payment of, any
reimbursement obligations, if any, thereafter arising with respect to
any issued and outstanding LCs issued pursuant to the Agreement;
(g) Amounts due to Administrative Agent and the Lenders pursuant
to SECTION 12.8;
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(h) Payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the Lenders;
and
(i) Any amount remaining after application as provided above,
shall be paid to Borrower or whomever else may be legally entitled
thereto.
10.5 PERFORMANCE BY ADMINISTRATIVE AGENT. If Borrower shall fail to
perform any covenant, duty, or agreement contained in any of the Loan Documents,
Administrative Agent may perform or attempt to perform such covenant, duty, or
agreement on behalf of Borrower after the expiration of any cure or grace
periods set forth herein. In such event, Borrower shall, at the request of
Administrative Agent, promptly pay any amount reasonably expended by
Administrative Agent in such performance or attempted performance to
Administrative Agent, together with interest thereon at the applicable
Post-Default Rate from the date of such expenditure until paid. Notwithstanding
the foregoing, neither Administrative Agent nor any Lender shall have any
liability or responsibility whatsoever for the performance of any obligation of
Borrower under this Agreement or any other Loan Document.
10.6 RIGHTS CUMULATIVE. The rights and remedies of Administrative Agent
and the Lenders under this Agreement and each of the other Loan Documents shall
be cumulative and not exclusive of any rights or remedies which any of them may
otherwise have under Applicable Law.
10.7 COMPANY WAIVERS. To the extent permitted by Applicable Law,
Borrower and each Subsidiary Bank Guarantor, if any, hereby waive presentment
and demand for payment, protest, notice of intention to accelerate, notice of
acceleration, and notice of protest and nonpayment, and agree that their
respective liability with respect to the Obligations (or any part thereof) shall
not be affected by any renewal or extension in the time of payment of the
Obligations (or any part thereof), by any indulgence, or by any release or
change in any security for the payment of the Obligations (or any part thereof).
10.8 DELEGATION OF DUTIES AND RIGHTS. The Lenders and Administrative
Agent may perform any of their duties or exercise any of their rights under the
Loan Documents by or through their respective representatives.
10.9 NOT IN CONTROL. Nothing in any Loan Document shall, or shall be
deemed to (a) give Administrative Agent or any Lender the right to exercise
control over the assets (including real property), affairs, or management of
Borrower or any Subsidiary, (b) preclude or interfere with compliance by
Borrower or any Subsidiary with any Applicable Law, or (c) require any act or
omission by Borrower or any Subsidiary that may be harmful to Persons or
property. Any "Material Adverse Effect" or other materiality qualifier in any
representation, warranty, covenant, or other provision of any Loan Document is
included for credit documentation purposes only and shall not, and shall not be
deemed to, mean that Administrative Agent or any Lender acquiesces in any
non-compliance by Borrower or any Subsidiary with any Applicable Law or
document, or that Administrative Agent or any Lender does not expect Borrower or
any Subsidiary to promptly, diligently, and continuously carry out all
appropriate removal, remediation, and termination activities required or
appropriate in accordance with all Environmental Laws. Administrative Agent and
the Lenders have no fiduciary relationship with or fiduciary duty to Borrower or
any Subsidiary arising out of or in connection with the Loan Documents, and the
relationship between Administrative Agent and the Lenders, on the one hand, and
Borrower and its Subsidiaries, on the other hand, in connection with the Loan
Documents is solely that of debtor and creditor. The power of Administrative
Agent and the Lenders under the Loan Documents is limited to the rights provided
in the Loan Documents, which rights exist solely to
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assure payment and performance of the Obligations and may be exercised in a
manner calculated by Administrative Agent and Lenders in their respective good
faith business judgment.
10.10 COURSE OF DEALING. The acceptance by Administrative Agent or the
Lenders at any time and from time to time of partial payment on the Obligations
shall not be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Requisite Lenders, or the Lenders of any Default shall be
deemed to be a waiver of any other then-existing or subsequent Default. No delay
or omission by Administrative Agent, Requisite Lenders, or the Lenders in
exercising any right under the Loan Documents shall impair such right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such right preclude other or further exercise
thereof, or the exercise of any other right under the Loan Documents or
otherwise.
10.11 CUMULATIVE RIGHTS. All rights available to Administrative Agent
and the Lenders under the Loan Documents are cumulative of and in addition to
all other rights granted to Administrative Agent and the Lenders at law or in
equity, whether or not the Obligations are due and payable and whether or not
Administrative Agent or the Lenders have instituted any suit for collection,
foreclosure, or other action in connection with the Loan Documents.
SECTION 11 AGREEMENT AMONG LENDERS.
11.1 APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender (including any
Lender in its capacity as LC Issuer or Swing Line Lender) hereby irrevocably
appoints and authorizes Administrative Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such other powers as are reasonably
incidental thereto. Administrative Agent (which term as used in this sentence
and in SECTION 11.5 and the first sentence of SECTION 11.6 hereof shall include
its Affiliates and its own and its Affiliates' officers, directors, employees,
and agents): (a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or fiduciary
for any Lender; (b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other document referred
to or provided for in, or received by any of them under, any Loan Document, or
for the value, validity, effectiveness, genuineness, enforceability, or
sufficiency of any Loan Document, or any other document referred to or provided
for therein or for any failure by any party hereto or any other Person to
perform any of its obligations thereunder; (c) shall not be responsible for or
have any duty to ascertain, inquire into, or verify the performance or
observance of any covenants or agreements by the parties hereto or the
satisfaction of any condition or to inspect the property (including the books
and records) of Borrower or its Subsidiaries or Affiliates; (d) shall not be
required to initiate or conduct any litigation or collection proceedings under
any Loan Document; and (e) shall not be responsible for any action taken or
omitted to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct. Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care.
11.2 RELIANCE BY ADMINISTRATIVE AGENT. Administrative Agent and LC
Issuer shall be entitled to rely upon any certification, notice, instrument,
writing, or other communication (including, without limitation, any thereof by
telephone or telecopy) believed by it to be genuine and correct and to have been
signed, sent, or made by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel
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(including counsel for the parties hereto), independent accountants, and other
experts selected by Administrative Agent and LC Issuer. Administrative Agent may
deem and treat each Lender as the owner and holder of the Principal Debt owed to
such Lender for all purposes hereof unless and until Administrative Agent
receives and accepts an Assignment and Acceptance Agreement executed in
accordance with SECTION 12.4. As to any matters not expressly provided for by
this Agreement, Administrative Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Requisite Lenders, and such instructions shall be
binding on all of the Lenders; provided, however, that Administrative Agent
shall not be required to take any action that exposes Administrative Agent to
personal liability or that is contrary to any Loan Document or Applicable Law or
unless it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
taking any such action.
11.3 DEFAULTS. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of Default unless
Administrative Agent has received written notice from a Lender or Borrower
specifying such Default or Event of Default and stating that such notice is a
"NOTICE OF DEFAULT". In the event that Administrative Agent receives such a
notice of the occurrence of a Default or Event of Default, Administrative Agent
shall give prompt notice thereof to the Lenders. Administrative Agent shall
(subject to SECTION 11.2 hereof) take such action with respect to such Default
or Event of Default as shall reasonably be directed by the Requisite Lenders;
provided that, unless and until Administrative Agent shall have received such
directions, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the Lenders.
11.4 RIGHTS AS LENDER. With respect to its Commitment and the Loans made
by it, Bank of America (and any successor acting as Administrative Agent), in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as Administrative Agent, and the term "LENDER" or "LENDERS" shall, unless
the context otherwise indicates, include Administrative Agent in its individual
capacity. Bank of America (and any successor acting as Administrative Agent) and
its Affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any party
hereto or any of its Subsidiaries or Affiliates as if it were not acting as
Administrative Agent (collectively, "other activities"), and Bank of America
(and any successor acting as Administrative Agent) and its Affiliates may accept
fees and other consideration from any party hereto or any of its Subsidiaries or
Affiliates for services in connection with this Agreement or otherwise without
having to account for the same to the Lenders. Without limiting the rights of
the Lenders specifically set forth in the Loan Documents, Administrative Agent
and its Affiliates shall not be responsible to account to Lenders for such other
activities, and no Lender shall have any interest in any other activities, any
present or future guaranties by or for the account of Borrower which are not
contemplated or included in the Loan Documents, any present or future offset
exercised by Administrative Agent and its Affiliates in respect of such other
activities, any present or future property taken as security for any such other
activities, or any property now or hereafter in the possession or control of
Administrative Agent or its Affiliates which may be or become security for the
obligations of Borrower arising under the Loan Documents by reason of the
general description of indebtedness secured or of property contained in any
other agreements, documents or instruments related to any such other
activities; provided that, if any payments in respect of such guaranties or such
property or the proceeds thereof shall be applied to reduction of the
obligations of Borrower arising under the Loan Documents, then each Lender shall
be entitled to share in such application ratably.
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11.5 LC ISSUER. LC Issuer shall act on behalf of the Lenders with
respect to any LC issued by it and the documents associated therewith until such
time (and except for so long) as Administrative Agent may agree at the request
of Required Lenders to act for LC Issuer with respect thereto; provided,
however, that LC Issuer shall have all of the benefits and immunities (a)
provided to Administrative Agent in this SECTION 11 with respect to any acts
taken or omissions suffered by LC Issuer in connection with LCs issued by it or
proposed to be issued by it and LC Agreements as fully as if the terms
"Administrative Agent" or "Agents" as used in this SECTION 11 included LC Issuer
with respect to such acts or omissions, and (b) as additionally provided herein
with respect to LC Issuer.
11.6 INDEMNIFICATION. The Lenders agree to indemnify Administrative
Agent (to the extent not reimbursed under SECTION 12.2 or SECTION 12.8, but
without limiting the obligations of Borrower under such Section) ratably in
accordance with their respective Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against
Administrative Agent (including by any Lender) in any way relating to or arising
out of any Loan Document or the transactions contemplated thereby or any action
taken or omitted by Administrative Agent under any Loan Document; provided that
no Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of Administrative Agent. Without
limitation of the foregoing, each Lender agrees to reimburse Administrative
Agent promptly upon demand for its ratable share of any costs or expenses
payable by Borrower under SECTION 12.2, to the extent that Administrative Agent
is not promptly reimbursed for such costs and expenses by Borrower. The
agreements contained in this Section shall survive payment in full of the
Obligations and termination or expiration of all LCs.
11.7 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
agrees that it has, independently and without reliance on Administrative Agent
or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the parties hereto and their
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under the Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished to the Lenders by
Administrative Agent hereunder, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition, or business of any party hereto or
any of its Subsidiaries or Affiliates that may come into the possession of
Administrative Agent or any of its Affiliates.
11.8 RESIGNATION OF ADMINISTRATIVE AGENT. Administrative Agent may
resign at any time by giving notice thereof to the Lenders and Borrower. Upon
any such resignation, the Requisite Lenders shall have the right to appoint a
successor Administrative Agent, subject, so long as no Default or Event of
Default has occurred and is continuing, to the approval by Borrower of the
successor Administrative Agent, which approval shall not be unreasonably
withheld, conditioned, or delayed, and any request for approval shall be deemed
granted on the fifth Business Day after Borrower's receipt of such request for
approval if Borrower has not responded. If no successor Administrative Agent
shall have been so appointed by the Requisite Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent's giving
of notice of resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank organized under the laws of the United States of America having
combined capital and surplus of at least $100,000,000. Upon the acceptance of
any
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appointment as Administrative Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder, and each Lender shall execute such documents as any
Lender may reasonably request to reflect such change in and under the Loan
Documents. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this SECTION 11 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Administrative Agent.
11.9 RELATIONSHIP OF LENDERS. Nothing herein shall be construed as
creating a partnership or joint venture among Administrative Agent and the
Lenders.
11.10 BENEFITS OF AGREEMENT. None of the provisions of this SECTION 11
shall inure to the benefit of Borrower or any Subsidiary of Borrower or any
other Person other than the Lenders; consequently, either Borrower or any
Subsidiary or any other Person shall be entitled to rely upon, or to raise as a
defense, in any manner whatsoever, the failure of Administrative Agent or any
Lender to comply with such provisions.
11.11 OBLIGATIONS SEVERAL. The obligations of the Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the obligations
of the other Lenders hereunder, nor will the failure of one Lender to perform
any of its obligations hereunder relieve the other Lenders from the performance
of their respective obligations hereunder.
11.12 AGENTS. None of the Lenders identified in this Agreement as
"Syndication Agent," "Documentation Agent," "Managing Agent," or "Co-Agents"
shall have any rights, powers, obligations, liabilities, responsibilities, or
duties under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified as a
"Syndication Agent," "Documentation Agent," "Managing Agent," or "Co-Agent"
shall have or be deemed to have any fiduciary relationship with any Lender.
SECTION 12 MISCELLANEOUS.
12.1 NOTICES. Unless otherwise provided herein, communications provided
for hereunder shall be in writing and shall be mailed, telecopied or delivered
as follows:
If to Borrower:
Allied Capital Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Administrative Agent, LC Issuer, and Swing Line Lender:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Lender:
To such Lender's address or telecopy number, as applicable, set
forth on SCHEDULE 2 hereto or in the applicable Assignment and
Acceptance Agreement.
or, as to each party at such other address as shall be designated by such party
in a written notice to the other parties delivered in compliance with
this SECTION 12.1. All such notices and other communications shall be effective
(a) if mailed, when received; (b) if telecopied, when transmitted; or (c) if
hand delivered, when delivered. Notwithstanding the immediately preceding
sentence, all notices or communications to Administrative Agent or any Lender
under SECTION 2 shall be effective only when actually received. Neither
Administrative Agent nor any Lender shall incur any liability to Borrower (nor
shall Administrative Agent incur any liability to the Lenders) for acting upon
any telephonic notice referred to in this Agreement which Administrative Agent
or such Lender, as the case may be, believes in good faith to have been given by
a Person authorized to deliver such notice or for otherwise acting in good faith
under hereunder, except in the case of gross negligence or willful misconduct.
12.2 EXPENSES. Borrower agrees to pay on demand all costs and expenses
of Administrative Agent, Arranger, and LC Issuer in connection with the
syndication, preparation, execution, delivery, administration, modification, and
amendment of this Agreement, the other Loan Documents, and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and expenses of counsel for Administrative Agent and LC Issuer (including the
cost of internal counsel) with respect thereto and with respect to advising
Administrative Agent as to its rights and responsibilities under the Loan
Documents. Borrower further agrees to pay on demand all costs and expenses of
Administrative Agent and the Lenders, if any (including, without limitation,
reasonable attorneys' fees and expenses and the cost of internal counsel), in
connection with the enforcement (whether through negotiations, legal
proceedings, or otherwise) of the Loan Documents and the other documents to be
delivered hereunder. All costs and expenses of Administrative Agent, LC Issuer,
and Lenders described in this SECTION 12.2 are part of the Obligations and, if
Borrower shall not have paid such costs and expenses on or before the 60th day
from the date an invoice is presented to Borrower, Administrative Agent is
hereby irrevocably authorized to fund such obligation as a Swing Line Loan to
the extent of availability under the Swing Line Subfacility.
12.3 JURISDICTION; CONSENT TO SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW
YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY THEREOF, IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION OR
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ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.
EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT OR
ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS AGAINST BORROWER OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(b) BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS IN ANY NEW YORK STATE OR FEDERAL COURT. EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) BORROWER AND EACH OTHER PARTY HERETO CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 12.1. NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(d) EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
EACH PARTY HERETO (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (2) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
12.4 SUCCESSORS AND ASSIGNS.
(a) Each Lender may assign to one or more Eligible Assignees all
or a portion of its rights, obligations, or rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment or its Revolving Loans, together with any funded
participations under the Swing Line Subfacility and the LC Subfacility);
provided, however, that:
(i) Each such assignment shall be to an Eligible Assignee;
(ii) Except in the case of an assignment to another Lender
or an assignment of all of a Lender's rights and obligations
under this Agreement, any such partial assignment
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shall be in an amount at least equal to $10,000,000 or an
integral multiple of $1,000,000 in excess thereof;
(iii) Each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and each Note (to the extent the
Principal Debt owed to the assigning Lender is evidenced by any
Notes); and
(iv) The parties to such assignment shall execute and
deliver to Administrative Agent for its acceptance an Assignment
and Acceptance Agreement in the form of EXHIBIT A hereto,
together with any Notes subject to such assignment (to the extent
the Principal Debt owed to the assigning Lender is evidenced by
any Notes) and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance Agreement, the assignee thereunder shall be a party hereto
and, to the extent of such assignment, have the obligations, rights, and
benefits of a Lender hereunder and the assigning Lender shall, to the
extent of such assignment, relinquish its rights and be released from
its obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, Administrative Agent
and Borrower shall make appropriate arrangements so that, if required,
new Notes are issued to the assignor and the assignee. If the assignee
is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to Borrower and Administrative Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with SECTION 4.6.
(b) Administrative Agent shall maintain at its address referred
to in SECTION 12.1 a copy of each Assignment and Acceptance Agreement
delivered to and accepted by it and a register for the recordation of
the names and addresses of the Lenders and the Commitment of, and
principal amount of the Revolving Loans owing to, each Lender from time
to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and
Borrower, Administrative Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for
inspection by Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance Agreement
executed by the parties thereto, together with any Notes subject to such
assignment (to the extent the Principal Debt owed to the assigning
Lender is evidenced by any Notes) and payment of the processing fee,
Administrative Agent shall, if such Assignment and Acceptance Agreement
has been completed and is in substantially the form of EXHIBIT A hereto,
(i) accept such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the Register, and (iii) give prompt
notice thereof to the parties thereto and Borrower.
(d) Each Lender may sell participations to one or more Persons
(each a "PARTICIPANT") in all or a portion of its rights, obligations or
rights and obligations under this Agreement (including all or a portion
of its Commitment or its Loans); provided, however, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) the Participant shall be
entitled to the benefit of the yield protection provisions contained
in SECTION 4 and the right of set-off contained
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in SECTION 3.4 (provided that Borrower shall not be obligated to pay any
amount in excess of the amount that would be due to such Lender from
whom such participation was purchased under such Sections as though no
participation had been sold), and (iv) Borrower shall continue to deal
solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement, and such Lender shall
retain the sole right to enforce the obligations of Borrower relating to
its Loans and its Notes (to the extent the Principal Debt owed to such
Lender is evidenced by any Notes) and to approve any amendment,
modification, or waiver of any provision of this Agreement (other
than amendments, modifications, or waivers decreasing the amount of
principal of or the rate at which interest is payable on such Loans or
Note, extending any scheduled principal payment date or date fixed for
the payment of interest on such Loans or Note, or extending its
Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Notes (to the extent the Principal Debt
owed to such Lender is evidenced by any Notes) to any Federal Reserve
Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any "operating circular"
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning Borrower or
any of its Subsidiaries in the possession of such Lender from time to
time to Eligible Assignees and Participants (including prospective
assignees and participants), subject, however, to the provisions
of SECTION 12.7.
(g) Notwithstanding anything to the contrary contained herein, if
at any time Bank of America assigns all of its Commitment and Loans
pursuant to CLAUSE (a) above, Bank of America may, (i) upon 30 days'
notice to Borrower and the Lenders, resign as LC Issuer and/or (ii) upon
30 days' notice to Borrower, terminate the Swing Line Subfacility. In
the event of any such resignation as LC Issuer or termination of the
Swing Line Subfacility, Borrower shall be entitled to appoint from among
the Lenders a successor LC Issuer or Swing Line Lender hereunder, with
the consent of such successor LC Issuer or successor Swing Line Lender,
as the case may be; provided, however, that no failure by Borrower to
appoint any such successor shall affect the resignation of Bank of
America as LC Issuer or the termination of the Swing Line Subfacility,
as the case may be. Bank of America shall retain all the rights and
obligations of LC Issuer hereunder with respect to all LCs outstanding
as of the effective date of its resignation as LC Issuer and all LC
Exposure with respect thereto, including the right to require Lenders to
fund participations pursuant to SECTION 2.3. If Bank of America
terminates the Swing Line Subfacility, it shall retain all the rights of
Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such
termination, including the right to require Lenders to fund
participations in outstanding Swing Line Loans pursuant to SECTION
2.2(c).
12.5 AMENDMENTS. Any provision of this Agreement or any other Loan
Document may be amended or waived if, but only if, such amendment or waiver is
in writing and is:
(a) Executed by Borrower, Administrative Agent, and the
particular existing or new Lender if it purports (subject to SECTION
2.13) to increase that Lender's Commitment or add such new Lender as a
new Lender pursuant to SECTION 2.13.
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75
(b) Executed by Borrower, Administrative Agent or LC Issuer (as
the case may be), and executed or approved in writing by all Lenders if
action of all Lenders is specifically provided in any Loan Document or
if it purports to (i) increase the Commitments of the Lenders (except
increases in accordance with SECTION 2.13); (ii) reduce the principal
of, or rate of interest on, any Revolving Loan; reduce any reimbursement
obligation with respect to any LC; or reduce any Fees or other amounts
payable hereunder; (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or interest on any Revolving Loan,
the payment of any reimbursement obligation with respect to any LC, the
payment of any Fees or other amounts payable hereunder, or the
termination of any Commitment; or (iv) change the percentage of the
Commitments or of the aggregate Principal Debt, or the number of
Lenders, which shall be required for the Lenders or any of them to take
any action under this Section or any other provision of this Agreement.
(c) Otherwise (i) for this Agreement, executed by Borrower,
Administrative Agent or LC Issuer (as the case may be), and Requisite
Lenders or (ii) for other Loan Documents, approved in writing by
Requisite Lenders and executed by Borrower, Administrative Agent or LC
Issuer (as the case may be), and any other party to that Loan Document.
12.6 NONLIABILITY OF AGENT AND LENDERS. The relationship between
Borrower and the Lenders and Administrative Agent shall be solely that of
borrower and lender. Administrative Agent and the Lenders shall have no
fiduciary responsibilities to Borrower; and no provision in this Agreement or in
any of the other Loan Documents, and no course of dealing between or among any
of the parties hereto, shall be deemed to create any fiduciary duty owing by
Administrative Agent or any Lender to any Lender, Borrower, or any Subsidiary.
Neither Administrative Agent nor any Lender undertakes any responsibility to
Borrower to review or inform Borrower of any matter in connection with any phase
of Borrower's business or operations.
12.7 CONFIDENTIALITY. Each of Administrative Agent, LC Issuer, Swing
Line Lender, and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its affiliates' directors, officers, employees, and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (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 Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, 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 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 Borrower; (g) with the consent of
Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
Administrative Agent, LC Issuer, Swing Line Lender, or any Lender on a
nonconfidential basis from a source other than Borrower; or (i) to the National
Association of Insurance Commissioners or any other similar organization or any
nationally recognized rating agency that requires access to information about a
Lender's or its affiliates' investment portfolio in connection with ratings
issued with respect to such Lender or its affiliates. For the purposes of this
Section, "INFORMATION" means all information received from Borrower relating to
Borrower or its business, other than any such information that is available to
Administrative Agent, LC Issuer, Swing Line Lender, or any Lender on a
nonconfidential basis prior to disclosure by Borrower; provided that, in the
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case of information received from Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section 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.
12.8 INDEMNIFICATION.
(A) BORROWER AGREES TO INDEMNIFY AND HOLD HARMLESS ADMINISTRATIVE
AGENT, ARRANGER, LC ISSUER, SWING LINE LENDER, AND EACH LENDER AND EACH
OF THEIR AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ATTORNEYS, AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM AND
AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND
EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES)
THAT MAY BE INCURRED BY OR ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED
PARTY, IN EACH CASE ARISING OUT OF OR IN CONNECTION WITH OR BY REASON OF
(INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY INVESTIGATION,
LITIGATION, OR PROCEEDING OR PREPARATION OF DEFENSE IN CONNECTION
THEREWITH) THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE LOANS,
EXCEPT TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR
EXPENSE IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF
COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE CASE OF AN INVESTIGATION,
LITIGATION OR OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS SECTION
12.8 APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH
INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY BORROWER, ITS
DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR ANY
OTHER PERSON OR ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND
WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED.
BORROWER AGREES NOT TO ASSERT ANY CLAIM AGAINST ADMINISTRATIVE AGENT,
ARRANGER, LC ISSUER, SWING LINE LENDER, ANY LENDER, ANY OF THEIR
AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
ATTORNEYS, AGENTS, AND ADVISERS, ON ANY THEORY OF LIABILITY, FOR
SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR
OTHERWISE RELATING TO THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE
LOANS.
(B) WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER AGREEMENT OF
BORROWER HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF BORROWER CONTAINED
IN THIS SECTION 12.8 SHALL SURVIVE THE PAYMENT IN FULL OF THE LOANS AND
ALL OTHER AMOUNTS PAYABLE UNDER THIS AGREEMENT.
12.9 SEVERABILITY OF PROVISIONS. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisions or affecting the validity or enforceability of such
provision in any other jurisdiction.
12.10 GOVERNING LAW. THE LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND THE LAWS OF THE
STATE OF NEW
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
71
▇▇
▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SHALL GOVERN THE RIGHTS AND DUTIES OF
THE PARTIES TO THE LOAN DOCUMENTS AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT,
AND INTERPRETATION OF THE LOAN DOCUMENTS.
12.11 COUNTERPARTS. This Agreement and any amendments, waivers, consents
or supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which counterparts together
shall constitute but one and the same instrument.
12.12 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF BORROWER AND ITS
SUBSIDIARIES, LENDERS, AND ADMINISTRATIVE AGENT SHALL BE DETERMINED SOLELY FROM
WRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS
AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN
DOCUMENTS EXECUTED BY BORROWER OR ANY OF ITS SUBSIDIARIES, ANY LENDER, AND/OR
ADMINISTRATIVE AGENT, (TOGETHER WITH ALL COMMITMENT LETTERS AND FEE LETTERS ONLY
AS THEY RELATE TO THE PAYMENT OF FEES AFTER THE CLOSING DATE) REPRESENT THE
FINAL AGREEMENT BETWEEN BORROWER AND ITS SUBSIDIARIES, LENDERS, AND
ADMINISTRATIVE AGENT, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH PARTIES.
12.13 CONSTRUCTION. Administrative Agent, Borrower, and each Lender
acknowledge that each of them has had the benefit of legal counsel of its own
choice and has been afforded an opportunity to review this Agreement and the
other Loan Documents with its legal counsel and that this Agreement and the
other Loan Documents shall be construed as if jointly drafted by Administrative
Agent, the other Agents, Borrower, and each Lender.
12.14 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The obligations of Borrower and each Subsidiary under the Loan
Documents shall remain in full force and effect until termination of the
Commitments and payment in full of the Loans and of all interest, fees, and
other amounts of the Obligations then due and owing (and termination or
expiration of all outstanding LCs, if any, unless Administrative Agent shall
otherwise consent with the approval of Requisite Lenders), except that SECTIONS
4, 11, and 12, and any other provisions under the Loan Documents expressly
intended to survive by the terms hereof or by the terms of the applicable Loan
Documents, shall survive such termination. If at any time any payment of the
principal of or interest on the Obligations or any other amount payable by
Borrower or its Subsidiaries under any Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy, or
reorganization of such entity or otherwise, the obligations of such entity under
the Loan Documents with respect to such payment shall be reinstated as though
such payment had been due but not made at such time.
12.15 RESTATEMENT OF EXISTING AGREEMENT. The parties hereto agree that,
on the Effective Date, after all conditions precedent set forth in SECTION
5.1 have been satisfied or waived: (a) the Obligations (as defined in this
Agreement) represent, among other things, the restatement, renewal, amendment,
extension, and modification of the "Obligations" (as defined in the Existing
Agreement); (b) this Agreement is intended to, and does hereby, restate, renew,
extend, amend, modify, supersede, and replace the Existing Agreement in its
entirety; (c) the Notes, if any, executed pursuant to this Agreement amend,
renew, extend, modify, replace, restate, substitute for, and supersede in their
entirety (but do not extinguish, the Debt arising
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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78
under) the promissory notes issued pursuant to the Existing Agreement, which
existing promissory notes shall be returned to Administrative Agent promptly
after the Effective Date, marked "canceled and replaced," and, thereafter,
delivered by Administrative Agent or each such Lender to Borrower; and (d) the
entering into and performance of their respective obligations under the Loan
Documents and the transactions evidenced hereby do not constitute a novation nor
shall they be deemed to have terminated, extinguished, or discharged the
indebtedness under the Existing Agreement, all of which indebtedness shall
continue under and be governed by this Agreement and the other Loan Documents,
except as expressly provided otherwise herein. On the Effective Date, (i) all
outstanding Indebtedness under the Existing Agreement owed to any "Lender" that
is not continuing as a Lender under this Agreement (each a "NON-CONTINUING
LENDER") shall be repaid in full by Borrower and such Non-Continuing Lender's
commitment under the Existing Agreement shall be terminated; (ii) with respect
to Existing Lenders which are continuing as Lenders under this Agreement (the
"CONTINUING LENDERS"), Administrative Agent shall make appropriate allocations
and adjustments in the initial funding instructions to the Lenders to reflect
the modifications effected by the Loan Documents to each Continuing Lender's
Commitment and Commitment Percentage; and (iii) with respect to "Eurodollar
Loans" under the Existing Agreement, each Continuing Lender hereby waives,
effective as of the Effective Date, any loss, cost, or expense incurred as a
result of the amendment and restatement of such Existing Agreement.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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79
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
ALLIED CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President & Treasurer
Signature Page to
Second Amended and Restated Credit Agreement
80
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
BANK OF AMERICA, N.A., as Administrative
Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Principal
Signature Page to
Second Amended and Restated Credit Agreement
81
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
BRANCH BANKING & TRUST CO., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Signature Page to
Second Amended and Restated Credit Agreement
82
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
CHEVY CHASE BANK, F.S.B., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to
Second Amended and Restated Credit Agreement
83
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
Signature Page to
Second Amended and Restated Credit Agreement
84
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page to
Second Amended and Restated Credit Agreement
85
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
DEUTSCHE BANK AG, NEW YORK BRANCH,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Signature Page to
Second Amended and Restated Credit Agreement
86
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Signature Page to
Second Amended and Restated Credit Agreement
87
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
FIRSTAR BANK, NATIONAL ASSOCIATION, as
a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Signature Page to
Second Amended and Restated Credit Agreement
88
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
FIRSTRUST BANK, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Signature Page to
Second Amended and Restated Credit Agreement
89
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
FLEET NATIONAL BANK., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Title: Managing Director
Signature Page to
Second Amended and Restated Credit Agreement
90
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
LASALLE BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: AVP
Signature Page to
Second Amended and Restated Credit Agreement
91
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
MERCANTILE-SAFE DEPOSIT & TRUST
COMPANY, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Signature Page to
Second Amended and Restated Credit Agreement
92
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
▇▇▇▇▇ BANK N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Vice President
Signature Page to
Second Amended and Restated Credit Agreement
93
Signature Page to that certain Second Amended and Restated Credit
Agreement dated as of the date first stated above, among Allied Capital
Corporation, as Borrower, Bank of America, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
SOVEREIGN BANK, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
Signature Page to
Second Amended and Restated Credit Agreement