AMENDMENT No. 1 AND AGREEMENT dated as of February 8,
2007 (this "Amendment") to the Senior Secured Revolving Credit
Agreement dated as of December 6, 2006 (as amended,
supplemented or otherwise modified from time to time, the
"Credit Agreement") among BLACKROCK ▇▇▇▇▇ CAPITAL CORPORATION
(the "Borrower"), CITIBANK, N.A., as Administrative Agent,
JPMORGAN CHASE BANK, N.A., as Syndication Agent, and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Documentation Agent (together,
the "Existing Lenders").
WHEREAS, pursuant to the Credit Agreement, the Existing Lenders have
agreed to extend credit to the Borrower on the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrower has requested that the Existing Lenders amend
certain provisions of the Credit Agreement as set forth in this Amendment and
the Lenders whose signatures appear below are willing to amend such provisions
of the Credit Agreement on the terms and subject to the conditions set forth
herein.
WHEREAS, the Borrower has requested that ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CORPORATION, BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC. and UBS LOAN FINANCE LLC
(together, the "Additional Lenders") become Lenders under the Credit Agreement
and provide additional Commitments to extend credit to the Borrower on the terms
and subject to the conditions set forth in the Credit Agreement; and
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein
have the meanings assigned to them in the Credit Agreement as amended hereby.
SECTION 2. Amendments to Section 1.01. (a) The following new
definitions are hereby added to Section 1.01 of the Credit Agreement in
appropriate alphabetical order:
"Amendment Effective Date" means February 8, 2007.
"Reaffirmation Agreement" means the Reaffirmation Agreement dated
February 8, 2007 between the Borrower and Citibank, as Administrative Agent and
Collateral Agent, as the same shall be modified and supplemented from time to
time.
(b) The definition of the term "Collateral and Guarantee Requirement"
is hereby amended by (i) deleting the text "the Guarantee and Security
Agreement" in clause (a) and substituting the text "each of the Guarantee and
Security Agreement and the Reaffirmation Agreement" therefor.
(c) The definition of the term "Initial Lender" in Section 1.01 of the
Credit Agreement is hereby amended by (i) deleting the text "and" and
substituting the text "," therefor and (ii) inserting the following text
immediately before the period at the end of such definition:
", ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, Bear ▇▇▇▇▇▇▇ Corporate Lending Inc.
and UBS Loan Finance LLC"
(d) The definition of the term "Multicurrency Commitment" is hereby
amended by deleting the amount "$225,000,000" and substituting in lieu therefor
the amount "$400,000,000".
(e) The definition of the term "Security Documents" is hereby amended
by inserting the text "the Reaffirmation Agreement," immediately after the text
"the Guarantee and Security Agreement,".
SECTION 3. Amendment of Section 2.08. (a) Section 2.08(e)(i)(B) of the
Credit Agreement is hereby amended by deleting the amount "$500,000,000" and
substituting in lieu therefor the amount "$1,000,000,000".
(b) Section 2.08(e)(iii) of the Credit Agreement is hereby amended by
deleting such paragraph in its entirety and by inserting in lieu therefor the
following text:
"[Reserved]"
(c) Section 2.08(e)(v) of the Credit Agreement is hereby amended by (i)
deleting the text "and, with respect to the Initial Lenders, any decrease in
Commitments pursuant to paragraph (iii)" at the end of clause (B) of such
paragraph in its entirety and (ii) deleting the text in parentheses "(or, with
respect to the Initial Lenders, decreased)" at the end of such paragraph in its
entirety.
SECTION 4. Amendment of Section 3.04. Section 3.04(a)(ii) of the Credit
Agreement is hereby amended by (i) deleting the text "and six-month" and
substituting the text ", six- and nine-month" therefor and (ii) deleting the
text "and June 30, 2006" and substituting the text ", June 30, 2006 and
September 30, 2006" therefor.
SECTION 5. Amendment of Section 3.12. Section 3.12(a) of the Credit
Agreement is hereby amended by deleting the text "Effective Date" and
substituting the text "Amendment Effective Date" therefor.
SECTION 6. Amendment of Section 9.02. Section 9.02(b) of the Credit
Agreement is hereby amended by deleting the text "Section 5.12(c)(ii)" at the
end of clause (A) of the second proviso and substituting the text "Section
5.12(c)" therefor.
SECTION 7. Amendment of Schedule I. Schedule I to the Credit Agreement
is hereby deleted in its entirety and replaced with Schedule I hereto.
SECTION 8. Agreement of the Additional Lenders. On the Amendment
Effective Date (as defined below), each Additional Lender by its signature below
becomes a Lender under the Credit Agreement and agrees to the terms of this
Amendment and the Credit Agreement as amended hereby. Each reference to a
"Lender" in the Credit Agreement shall be deemed to include the Additional
Lenders.
SECTION 9. Adjustments of Borrowings upon Effectiveness of Amendment.
On the Amendment Effective Date (as defined below), the Borrower shall (A)
prepay, in full, the Loans (if any) outstanding under any Class of Commitments
under the Credit Agreement that is affected by the Commitments of the Additional
Lenders, (B) simultaneously borrow new Loans of such Class under the Credit
Agreement in an amount equal to such prepayment; provided that with respect to
subclauses (A) and (B), (x) the prepayment to, and borrowing from, any Existing
Lender shall be effected by book entry to the extent that any portion of the
amount prepaid to such Existing Lender will be subsequently borrowed from such
Existing Lender and (y) the Existing Lenders and the Additional Lenders shall
make and receive payments among themselves, in a manner acceptable to the
Administrative Agent, so that, after giving effect thereto, the Loans of such
Class are held ratably by the Lenders of such Class in accordance with the
respective Commitments of such Class of such Lenders (after giving effect to
such Commitment of the Additional Lenders) and (C) pay to the Existing Lenders
of such Class the amounts, if any, payable under Section 2.15 of the Credit
Agreement as a result of any such prepayment. Concurrently therewith, the
Lenders of such Class shall be deemed to have adjusted their participation
interests in any outstanding Letters of Credit of such Class so that such
interests are held ratably in accordance with their Commitments of such Class
(after giving effect to such Commitment of the Additional Lenders).
SECTION 10. Representations and Warranties of the Borrower. The
Borrower represents and warrants to the Administrative Agent and to each of the
Lenders that:
(a) This Amendment is within the Borrower's corporate powers and has
been duly authorized by all necessary corporate action and, if required, by
all necessary shareholder action. This Amendment has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding
obligation of the Borrower, enforceable in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(b) the representations and warranties of the Borrower set forth in the
Credit Agreement and in the other Loan Documents are true and correct in
all material respects (except to the extent any such representation or
warranty is itself qualified by materiality or reference to a Material
Adverse Effect, in which case it shall be true and correct in all respects)
on and as of the date of this Amendment or, as to any such representation
or warranty that refers to a specific date, as of such specific date;
(c) immediately before and after giving effect to this Amendment, the
aggregate Covered Debt Amount does not exceed the Borrowing Base reflected
on the Borrowing Base Certificate most recently delivered to the
Administrative Agent; and
(d) immediately before and after giving effect to this Amendment, no
Default has occurred and is continuing.
SECTION 11. Conditions to Effectiveness. This Amendment and the
Commitments of the Additional Lenders shall not become effective until the date
on which all the following conditions are satisfied:
(a) Opinion of Counsel to the Borrower. The Administrative Agent shall
have received a favorable written opinion (addressed to the Administrative
Agent and the Lenders and dated the Amendment Effective Date (as defined
below)) of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York counsel for
the Borrower in form and substance reasonably acceptable to the
Administrative Agent (and the Borrower hereby instructs such counsel to
deliver such opinion to the Lenders and the Administrative Agent).
(b) Corporate Documents. The Administrative Agent shall have received
such documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Borrower, the authorization of this Amendment and any other
legal matters relating to the Borrower or this Amendment, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(c) Officer's Certificate. The Administrative Agent shall have received
a certificate, dated the Amendment Effective Date (as defined below) and
signed by the President, a Vice President, the Chief Operating Officer or a
Financial Officer of the Borrower, confirming that the representations and
warranties set forth in Section 10 hereof are true and correct.
(d) Liens. The Administrative Agent shall have received the results of
a recent lien search in each relevant jurisdiction with respect to the
Borrower which shall confirm the priority of the Liens in favor of the
Collateral Agent created pursuant to the Security Documents and reveal no
Liens on any of the assets of the Borrower or its Subsidiaries except for
Liens under the Security Documents or permitted under Section 6.02 of the
Credit Agreement.
(e) Reaffirmation Agreement. A Reaffirmation Agreement substantially in
the form of Exhibit A hereto (the "Reaffirmation Agreement") shall have
been executed and delivered by each party thereto.
(f) Other Documents. The Administrative Agent shall have received such
other documents as it or any Lender or special New York counsel to Citibank
may reasonably request.
(g) Prepayment of Loans. The Borrower shall have (A) prepaid in full
all Loans (if any) outstanding under any Class of Commitments under the
Credit Agreement that is affected by the Commitments of the Additional
Lenders as set forth in Section 9 hereof and (B) paid to the Existing
Lenders of such Class the amounts, if any, payable under Section 2.15 of
the Credit Agreement as a result of any such prepayment.
(h) Payment of Fees and Expenses. The Borrower shall have paid in full
such fees as the Borrower shall have agreed to pay to any Lender or the
Administrative Agent in connection herewith, including the reasonable fees
and expenses of Cravath, Swaine & ▇▇▇▇▇ LLP, special New York counsel to
Citibank, in connection with the negotiation, preparation, execution and
delivery of this Amendment and the Reaffirmation Agreement (to the extent
that statements for such fees and expenses have been delivered to the
Borrower).
SECTION 12. Effectiveness. Subject to the immediately preceding
Section, this Amendment shall become effective as of February 8, 2007 (such
date, the "Amendment Effective Date") when the Administrative Agent shall have
received from each party hereto either (i) a counterpart of this Amendment
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page to this Amendment) that such party has signed a counterpart of
this Amendment.
SECTION 13. Credit Agreement. Except as expressly set forth herein,
this Amendment (a) shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent or the Borrower under the Credit Agreement or
any other Loan Document and (b) shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document, all of which are
ratified and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle the Borrower to a consent to,
or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
After the date hereof, any reference in the Loan Documents to the Credit
Agreement shall mean the Credit Agreement as modified hereby.
SECTION 14. Applicable Law; Waiver of Jury Trial. (A) THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE
CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION 15. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an executed
signature page to this Amendment by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
SECTION 16. Headings. The Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first written above.
BLACKROCK ▇▇▇▇▇ CAPITAL CORPORATION,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Operating Officer
EXISTING LENDERS:
CITIBANK, N.A., individually and as
Administrative Agent,
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Managing Director
JPMORGAN CHASE BANK, N.A., individually
and as Syndication Agent,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
individually and as Documentation Agent,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
ADDITIONAL LENDERS:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.,
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
UBS LOAN FINANCE LLC,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Director