EXECUTION VERSION
===============================================================================
SENIOR SECURED
REVOLVING CREDIT AGREEMENT
dated as of
December 6, 2006
among
BLACKROCK ▇▇▇▇▇ CAPITAL CORPORATION,
The LENDERS Party Hereto,
CITIBANK, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agent.
$225,000,000
-----------------
CITIGROUP GLOBAL MARKETS, INC. and
▇.▇. ▇▇▇▇▇▇ SECURITIES, INC.,
as Joint Lead Bookrunners and Joint Lead Arrangers
===============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms............................................1
SECTION 1.02. Classification of Loans and Borrowings..................25
SECTION 1.03. Terms Generally.........................................25
SECTION 1.04. Accounting Terms; GAAP..................................26
SECTION 1.05. Currencies; Currency Equivalents........................26
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments.........................................27
SECTION 2.02. Loans and Borrowings....................................28
SECTION 2.03. Requests for Syndicated Borrowings......................29
SECTION 2.04. Swingline Loans.........................................30
SECTION 2.05. Letters of Credit.......................................31
SECTION 2.06. Funding of Borrowings...................................36
SECTION 2.07. Interest Elections......................................37
SECTION 2.08. Termination, Reduction or Increase of the Commitments...38
SECTION 2.09. Repayment of Loans; Evidence of Debt....................41
SECTION 2.10. Prepayment of Loans.....................................43
SECTION 2.11. Fees....................................................45
SECTION 2.12. Interest................................................46
SECTION 2.13. Alternate Rate of Interest..............................47
SECTION 2.14. Increased Costs.........................................48
SECTION 2.15. Break Funding Payments..................................49
SECTION 2.16. Taxes...................................................50
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs....................................52
SECTION 2.18. Mitigation Obligations; Replacement of Lenders..........54
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization; Powers....................................55
SECTION 3.02. Authorization; Enforceability...........................55
SECTION 3.03. Governmental Approvals; No Conflicts....................55
SECTION 3.04. Financial Condition; No Material Adverse Change.........56
SECTION 3.05. Litigation..............................................56
SECTION 3.06. Compliance with Laws and Agreements.....................57
(i)
SECTION 3.07. Taxes...................................................57
SECTION 3.08. ERISA...................................................57
SECTION 3.09. Disclosure..............................................57
SECTION 3.10. Investment Company Act; Margin Regulations..............58
SECTION 3.11. Material Agreements and Liens...........................58
SECTION 3.12. Subsidiaries and Investments............................59
SECTION 3.13. Properties..............................................59
SECTION 3.14. Affiliate Agreements....................................59
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date..........................................59
SECTION 4.02. Each Credit Event.......................................61
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Statements and Other Information..............62
SECTION 5.02. Notices of Material Events..............................64
SECTION 5.03. Existence; Conduct of Business..........................64
SECTION 5.04. Payment of Obligations..................................64
SECTION 5.05. Maintenance of Properties; Insurance....................65
SECTION 5.06. Books and Records; Inspection and Audit Rights..........65
SECTION 5.07. Compliance with Laws....................................65
SECTION 5.08. Certain Obligations Respecting Subsidiaries;
Further Assurances.....................................66
SECTION 5.09. Use of Proceeds.........................................66
SECTION 5.10. Status of RIC and BDC...................................67
SECTION 5.11. Investment Policies.....................................67
SECTION 5.12. Portfolio Valuation and Diversification, Etc............67
SECTION 5.13. Calculation of Borrowing Base...........................70
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness............................................75
SECTION 6.02. Liens...................................................75
SECTION 6.03. Fundamental Changes.....................................76
SECTION 6.04. Investments.............................................77
SECTION 6.05. Restricted Payments.....................................78
SECTION 6.06. Certain Restrictions on Subsidiaries....................79
SECTION 6.07. Certain Financial Covenants.............................79
SECTION 6.08. Transactions with Affiliates............................80
SECTION 6.09. Lines of Business.......................................80
(ii)
SECTION 6.10. No Further Negative Pledge..............................80
SECTION 6.11. Modifications of Longer-Term Documents..................81
SECTION 6.12. Payments of Longer-Term Indebtedness....................81
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices; Electronic Communications......................88
SECTION 9.02. Waivers; Amendments.....................................89
SECTION 9.03. Expenses; Indemnity; Damage Waiver......................91
SECTION 9.04. Successors and Assigns..................................93
SECTION 9.05. Survival................................................97
SECTION 9.06. Counterparts; Integration;
Effectiveness; Electronic Execution....................98
SECTION 9.07. Severability............................................98
SECTION 9.08. Right of Setoff.........................................98
SECTION 9.09. Governing Law; Jurisdiction; Etc........................99
SECTION 9.10. WAIVER OF JURY TRIAL....................................99
SECTION 9.11. Judgment Currency......................................100
SECTION 9.12. Headings...............................................100
SECTION 9.13. Treatment of Certain Information; Confidentiality......100
SECTION 9.14. USA PATRIOT Act........................................102
(iii)
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Investments
SCHEDULE V - Transactions with Affiliates
SCHEDULE VI - ▇▇▇▇▇'▇ Industry Classification Group List
EXHIBIT A - Form of Assignment and Assumption
EXHIBIT B - Form of Guarantee and Security Agreement
EXHIBIT C - Form of Borrowing Base Certificate
EXHIBIT D - Form of Perfection Certificate
EXHIBIT E - Portfolio Pricing Practices
(iv)
Revolving Credit Agreement
Revolving Credit Agreement
SENIOR SECURED REVOLVING CREDIT AGREEMENT dated as of December 6, 2006,
between BLACKROCK ▇▇▇▇▇ CAPITAL CORPORATION, the LENDERS party hereto,
CITIBANK, N.A., as Administrative Agent, JPMORGAN CHASE BANK, N.A., as
Syndication Agent, and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans constituting such Borrowing, are denominated in
Dollars and bearing interest at a rate determined by reference to the
Alternate Base Rate.
"Adjusted Borrowing Base" means the Borrowing Base minus the aggregate
amount of Cash and Cash Equivalents included in the Portfolio Investments held
by the Obligors.
"Adjusted Covered Debt Balance" means, on any date, the aggregate Covered
Debt Amount on such date minus the aggregate amount of Cash and Cash
Equivalents included in the Portfolio Investments held by the Obligors
(excluding any cash held by the Administrative Agent pursuant to Section
2.05(k)).
"Adjusted LIBO Rate" means, for the Interest Period for any Eurocurrency
Borrowing, an interest rate per annum (rounded upwards, if necessary, to the
next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" means Citibank, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Agent's Account" means, for each Currency, an account in
respect of such Currency designated by the Administrative Agent in a notice to
the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"Advance Rate" has the meaning assigned to such term in Section 5.13.
"Affected Currency" has the meaning assigned to such term in Section
2.13.
Revolving Credit Agreement
-2-
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or
is Controlled by or is under common Control with the Person specified.
Anything herein to the contrary notwithstanding, the term "Affiliate" shall
not include any Person that constitutes an Investment held by the Borrower in
the ordinary course of business.
"Affiliate Agreements" means collectively, (a) the Investment Management
Agreement, dated July 25, 2005, between Borrower and BlackRock ▇▇▇▇▇ Capital
Advisors, (b) the Administration Agreement, dated as of August 4, 2005,
between Borrower and BlackRock Financial Management, Inc., (c) Directors and
Officers Liability Insurance Allocation Agreement, dated as of August 10,
2006, between Borrower and BlackRock ▇▇▇▇▇ Capital Advisors and (d) Waiver
Reliance Letter, dated July 25, 2005, to Borrower from BlackRock ▇▇▇▇▇ Capital
Advisors.
"Agreed Foreign Currency" means, at any time, Euros, English Pounds
Sterling, Canadian Dollars, and, with the agreement of each Multicurrency
Lender, any other Foreign Currency, so long as, in respect of any such
specified Foreign Currency or other Foreign Currency, at such time (a) such
Foreign Currency is dealt with in the London interbank deposit market, (b)
such Foreign Currency is freely transferable and convertible into Dollars in
the London foreign exchange market and (c) no central bank or other
governmental authorization in the country of issue of such Foreign Currency
(including, in the case of the Euro, any authorization by the European Central
Bank) is required to permit use of such Foreign Currency by any Multicurrency
Lender for making any Loan hereunder and/or to permit the Borrower to borrow
and repay the principal thereof and to pay the interest thereon, unless such
authorization has been obtained and is in full force and effect.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Dollar Percentage" means, with respect to any Dollar Lender,
the percentage of the total Dollar Commitments represented by such Dollar
Lender's Dollar Commitment. If the Dollar Commitments have terminated or
expired, the Applicable Dollar Percentages shall be determined based upon the
Dollar Commitments most recently in effect, giving effect to any assignments.
"Applicable Financial Statements" means, as at any date, the most-recent
audited financial statements of the Borrower delivered to the Lenders,
provided that if immediately prior to the delivery to the Lenders of new
audited financial statements of the Borrower a Material Adverse Change (the
"Pre-existing MAC") shall exist (regardless of when it occurred), then the
"Applicable Financial Statements" as at said date means the Applicable
Financial Statements in effect immediately prior to such delivery until such
time as the Pre-existing MAC shall no longer exist.
-3-
"Applicable Margin": means (a) with respect to any ABR Loan, 0.00% per
annum; and (b), with respect to any Eurocurrency Loan, 0.875% per annum.
"Applicable Multicurrency Percentage" means, with respect to any
Multicurrency Lender, the percentage of the total Multicurrency Commitments
represented by such Multicurrency Lender's Multicurrency Commitment. If the
Multicurrency Commitments have terminated or expired, the Applicable
Multicurrency Percentages shall be determined based upon the Multicurrency
Commitments most recently in effect, giving effect to any assignments.
"Applicable Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender's Commitments. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans and similar commercial extensions of credit, any other
fund that invests in bank loans and similar commercial extensions of credit
and is managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Approved Third-Party Appraiser" means any Independent third-party
appraisal firm designated by the Borrower in writing to the Administrative
Agent (which designation shall be accompanied by a copy of a resolution of the
Board of Directors of the Borrower that such firm has been approved by the
Borrower for purposes of assisting the Board of Directors of the Borrower in
making valuations of portfolio assets to determine the Borrower's compliance
with the applicable provisions of the Investment Company Act). It is
understood and agreed that, so long as the same are Independent third-party
appraisal firms approved by the Board of Directors of the Borrower, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ & Zukin, Murray, ▇▇▇▇▇▇ & Company and Valuation Research shall
be deemed to be Approved Third-Party Appraisers.
"Arranger" means each of Citigroup Global Markets, Inc., JPMorgan
Securities Inc. and Wachovia Securities, L.L.C.
"Asset Coverage Ratio" means the ratio, determined on a consolidated
basis, without duplication, in accordance with GAAP, of (a) the Value of total
assets of the Borrower and its Subsidiaries, less all liabilities (other than
Indebtedness, including Indebtedness hereunder) of the Borrower and its
Subsidiaries, to (b) the aggregate amount of Indebtedness of the Borrower and
its Subsidiaries.
"Assignment and Assumption" means an Assignment and Assumption entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.
"Assuming Lender" has the meaning assigned to such term in Section
2.08(e).
-4-
"Availability Period" means the period from and including the Effective
Date to but excluding the earlier of the Commitment Termination Date and the
date of termination of the Commitments.
"BlackRock ▇▇▇▇▇ Capital Advisors" means BlackRock ▇▇▇▇▇ Capital Advisors
LLC, a Delaware limited liability company.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means BlackRock ▇▇▇▇▇ Capital Corporation, a Delaware
corporation.
"Borrowing" means (a) all Syndicated ABR Loans of the same Class made,
converted or continued on the same date, (b) all Eurocurrency Loans of the
same Class denominated in the same Currency that have the same Interest Period
or (c) a Swingline Loan.
"Borrowing Base" has the meaning assigned to such term in Section 5.13.
"Borrowing Base Certificate" means a certificate of a Financial Officer
of the Borrower, substantially in the form of Exhibit C and appropriately
completed.
"Borrowing Base Deficiency" means, at any date on which the same is
determined, the amount, if any, that (a) the aggregate Covered Debt Amount as
of such date exceeds (b) the Borrowing Base as of such date.
"Borrowing Request" means a request by the Borrower for a Syndicated
Borrowing in accordance with Section 2.03.
"Business Day" means any day (a) that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by
law to remain closed, (b) if such day relates to a borrowing of, a payment or
prepayment of principal of or interest on, a continuation or conversion of or
into, or the Interest Period for, a Eurocurrency Borrowing denominated in
Dollars, or to a notice by the Borrower with respect to any such borrowing,
payment, prepayment, continuation, conversion, or Interest Period, that is
also a day on which dealings in deposits denominated in Dollars are carried
out in the London interbank market and (c) if such day relates to a borrowing
or continuation of, a payment or prepayment of principal of or interest on, or
the Interest Period for, any Borrowing denominated in any Foreign Currency, or
to a notice by the Borrower with respect to any such borrowing, continuation,
payment, prepayment or Interest Period, that is also a day on which commercial
banks and the London foreign exchange market settle payments in the Principal
Financial Center for such Foreign Currency.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are
-5-
required to be classified and accounted for as capital leases on a balance
sheet or statement of assets and liabilities, as applicable, of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Cash" means any immediately available funds in Dollars or in any
currency other than Dollars which is a freely convertible currency.
"Cash Equivalents" means investments (other than Cash) that are one or
more of the following obligations:
(a) U.S. Government Securities, in each case maturing within one
year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition,
a credit rating of at least A-1 from S&P and at least P-1 from ▇▇▇▇▇'▇;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition
thereof (i) issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America
or any State thereof or under the laws of the jurisdiction or any
constituent jurisdiction thereof of any Agreed Foreign Currency, provided
that such certificates of deposit, banker's acceptances and time deposits
are held in a securities account (as defined in the Uniform Commercial
Code) through which the Collateral Agent can perfect a security interest
therein and (ii) having, at such date of acquisition, a credit rating of
at least A-1 from S&P and at least P-1 from ▇▇▇▇▇'▇; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days from the date of acquisition thereof for U.S.
Government Securities and entered into with (i) a financial institution
satisfying the criteria described in clause (c) of this definition or
(ii) a bank or broker-dealer having (or being a member of a consolidated
group having) at such date of acquisition, a credit rating of at least
A-1 from S&P and at least P-1 from ▇▇▇▇▇'▇,
provided, that (i) in no event shall Cash Equivalents include any obligation
that provides for the payment of interest alone (for example, interest-only
securities or "IOs"); (ii) if any of ▇▇▇▇▇'▇ or S&P changes its rating system,
then any ratings included in this definition shall be deemed to be an
equivalent rating in a successor rating category of ▇▇▇▇▇'▇ or S&P, as the
case may be; (iii) Cash Equivalents (other than U.S. Government Securities or
repurchase agreements) shall not include any such investment of more than 10%
of total assets of the Obligors in any single issuer; and (iv) in no event
shall Cash Equivalents include any obligation that is not denominated in
Dollars or an Agreed Foreign Currency.
-6-
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the date hereof) other than (i) Holding or (ii) any
member of Holding as of the Effective Date who acquires such ownership
indirectly through its membership interest in Holding (in both cases only as
long as BlackRock ▇▇▇▇▇ Capital Advisors or a Permitted Manager remains the
sole manager of Holding), of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower or (b) occupation of a majority of the seats
(other than vacant seats) on the Board of Directors of the Borrower by Persons
who were neither (i) nominated by the requisite members of the Board of
Directors of the Borrower nor (ii) appointed by a majority of the directors so
nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender's or the Issuing Bank's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the date of this
Agreement.
"Citibank" means Citibank, N.A.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Syndicated
Dollar Loans, Syndicated Multicurrency Loans or Swingline Loans; when used in
reference to any Lender, refers to whether such Lender is a Dollar Lender or a
Multicurrency Lender; and, when used in reference to any Commitment, refers to
whether such Commitment is a Dollar Commitment or Multicurrency Commitment.
The "Class" of a Letter of Credit refers to whether such Letter of Credit is a
Dollar Letter of Credit or a Multicurrency Letter of Credit.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" has the meaning assigned to such term in the Guarantee and
Security Agreement.
"Collateral Agent" means Citibank, N.A. in its capacity as Collateral
Agent under the Guarantee and Security Agreement, and includes any successor
Collateral Agent thereunder.
"Collateral and Guarantee Requirement" means, at any time, the
requirement that:
(a) the Administrative Agent shall have received from each Obligor (i)
either (x) a counterpart of the Guarantee and Security Agreement duly executed
and
-7-
delivered on behalf of such Obligor or (y) in the case of any Person that
becomes an Obligor after the Effective Date, a supplement to the Guarantee and
Security Agreement, in the form specified therein, duly executed and delivered
on behalf of such Obligor and (ii) with respect to any Obligor that directly
owns Equity Interests of a Foreign Subsidiary, a counterpart of each Foreign
Pledge Agreement that the Administrative Agent determines, based on the advice
of counsel, to be necessary or advisable in connection with the pledge of, or
the granting of security interests in, Equity Interests of such Foreign
Subsidiary, in each case duly executed and delivered on behalf of such Obligor
and such Foreign Subsidiary;
(b) all outstanding Equity Interests of the Borrower and each Subsidiary
and all other Equity Interests, in each case owned by or on behalf of any
Obligor, shall have been pledged pursuant to the Guarantee and Security
Agreement or a Foreign Pledge Agreement (except that the Obligors shall not be
required to pledge more than 65% of the outstanding voting Equity Interests of
any Foreign Subsidiary that is not an Obligor ) and the Administrative Agent
shall have received certificates or other instruments representing all such
Equity Interests, together with undated stock powers or other instruments of
transfer with respect thereto endorsed in blank;
(c) all Indebtedness of the Borrower and each Subsidiary that is owing to
any Obligor shall be evidenced by a promissory note and shall have been
pledged pursuant to the Guarantee and Security Agreement and the
Administrative Agent shall have received all such promissory notes, together
with undated instruments of transfer with respect thereto endorsed in blank;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the Liens
intended to be created by the Guarantee and Security Agreement and the Foreign
Pledge Agreements and perfect such Liens to the extent required by, and with
the priority required by, the Guarantee and Security Agreement and the Foreign
Pledge Agreements, shall have been filed, registered or recorded or delivered
to the Administrative Agent for filing, registration or recording;
(e) the Administrative Agent shall have received (i) counterparts of a
Mortgage with respect to each Mortgaged Property duly executed and delivered
by the record owner of such Mortgaged Property, (ii) a policy or policies of
title insurance issued by a nationally recognized title insurance company
insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged
Property described therein, free of any other Liens except as expressly
permitted by Section 6.02, together with such endorsements, coinsurance and
reinsurance as the Administrative Agent or the Required Lenders may reasonably
request, and (iii) such surveys, abstracts, appraisals, legal opinions and
other documents as the Administrative Agent or the Required Lenders may
reasonably request with respect to any such Mortgage or Mortgaged Property;
(f) each Obligor shall have obtained all consents and approvals required
to be obtained by it in connection with the execution and delivery of all
Security
-8-
Documents to which it is a party, the performance of its obligations
thereunder and the granting by it of the Liens thereunder; and
(g) within 30 days after the request therefor by the Administrative Agent
(or such longer period as the Administrative Agent may agree in its
discretion), deliver to the Administrative Agent a signed copy of an opinion,
addressed to the Administrative Agent and the other Secured Parties, of
counsel for the Obligors reasonably acceptable to the Administrative Agent as
to such matters set forth in this definition as the Administrative Agent may
reasonably request.
"Commitment Increase" has the meaning assigned to such term in Section
2.08(e).
"Commitment Increase Date" has the meaning assigned to such term in
Section 2.08(e).
"Commitment Termination Date" means December 6, 2010.
"Commitments" means, collectively, the Dollar Commitments and the
Multicurrency Commitments.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Covered Debt Amount" means, on any date, the sum of (x) all of the
Revolving Credit Exposures of all Lenders on such date plus (y) the aggregate
amount of Other Covered Indebtedness on such date minus (z) the LC Exposures
fully cash collateralized on such date pursuant to Section 2.05(k).
"Currency" means Dollars or any Foreign Currency.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings disclosed in
Schedule III.
"Dollar Commitment" means, with respect to each Dollar Lender, the
commitment of such Dollar Lender to make Syndicated Loans, and to acquire
participations in Letters of Credit and Swingline Loans, denominated in
Dollars hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Dollar Credit Exposure hereunder, as such
commitment may be (a) reduced or increased from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Dollar Commitment is set forth on
-9-
Schedule I, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Dollar Commitment, as applicable. The aggregate amount
of the Initial Lenders' Dollar Commitments is $0.
"Dollar Equivalent" means, on any date of determination, with respect to
an amount denominated in any Foreign Currency, the amount of Dollars that
would be required to purchase such amount of such Foreign Currency on the date
two Business Days prior to such date, based upon the spot selling rate at
which the Administrative Agent offers to sell such Foreign Currency for
Dollars in the London foreign exchange market at approximately 11:00 a.m.,
London time, for delivery two Business Days later.
"Dollar LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Dollar Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements in respect of such Letters of
Credit that have not yet been reimbursed by or on behalf of the Borrower at
such time. The Dollar LC Exposure of any Lender at any time shall be its
Applicable Dollar Percentage of the total Dollar LC Exposure at such time.
"Dollar Lender" means the Persons listed on Schedule I as having Dollar
Commitments and any other Person that shall have become a party hereto
pursuant to an Assignment and Assumption that provides for it to assume a
Dollar Commitment or to acquire Revolving Dollar Credit Exposure, other than
any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption.
"Dollar Letters of Credit" means Letters of Credit that utilize the
Dollar Commitments.
"Dollar Loan" means a Loan denominated in Dollars.
"Dollars" or "$" refers to lawful money of the United States of America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the presence, management or release of Hazardous Materials or to
health and safety matters.
"Environmental Liability" means all liabilities, obligations, damages,
losses, claims, actions, suits, judgments, orders, fines, penalties, fees,
expenses and costs, (including administrative oversight costs, natural
resource damages and remediation costs), whether contingent or otherwise,
arising out of or relating to: (a) compliance or non-compliance with any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any
Hazardous Materials, (d) the release of any Hazardous Materials or (e) any
contract,
-10-
agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire
any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan
(other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), and, on and after
the effectiveness of the Pension Act, any failure by any Plan to satisfy the
minimum funding standards (within the meaning of Section 412 of the Code or
Section 302 of ERISA) applicable to such Plan, whether or not waived; (c) the
filing pursuant to Section 412 of the Code or Section 303 of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) on and after the effectiveness of the Pension Act, a determination that
any Plan is, or is expected to be, in "at-risk" status (within the meaning of
Title IV of ERISA); (f) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention
to terminate any Plan or Plans or to appoint a trustee to administer any Plan;
(g) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability with respect to the withdrawal or partial withdrawal from any Plan
or Multiemployer Plan; or (h) the receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent, in reorganization or in endangered critical status
within the meaning of Section 305 or Title IV of ERISA.
"Eurocurrency", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans constituting such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
-11-
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such recipient is located and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), any withholding tax that is imposed on amounts payable
to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable to such
Foreign Lender's failure or inability (other than as a result of a Change in
Law) to comply with Section 2.16(e), except to the extent, other than in a
case of failure to comply with Section 2.16(e), that such Foreign Lender's (or
its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Financing Subsidiary" means a direct or indirect Subsidiary of the
Borrower to which any Obligor sells, conveys or otherwise transfers (whether
directly or indirectly) Portfolio Investments, which engages in no material
activities other than in connection with the purchase or financing of such
assets and which is designated by the Borrower (as provided below) as a
Financing Subsidiary,
(a) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of which (i) is Guaranteed by any Obligor
(other than Guarantees in respect of Standard Securitization
Undertakings), (ii) is recourse to or obligates any Obligor in any way
other than pursuant to Standard Securitization Undertakings or (iii)
subjects any property of any Obligor, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than
pursuant to Standard Securitization Undertakings or any Guarantee
thereof,
(b) with which no Obligor has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to
such
-12-
Obligor than those that might be obtained at the time from Persons that
are not Affiliates of any Obligor, other than fees payable in the
ordinary course of business in connection with servicing receivables, and
(c) to which no Obligor has any obligation to maintain or preserve
such entity's financial condition or cause such entity to achieve certain
levels of operating results.
Any such designation by the Borrower shall be effected pursuant to a
certificate of a Financial Officer delivered to the Administrative Agent,
which certificate shall include a statement to the effect that, to the best of
such officer's knowledge, such designation complied with the foregoing
conditions. Each Subsidiary of a Financing Subsidiary shall be deemed to be a
Financing Subsidiary and shall comply with the foregoing requirements of this
definition.
"Foreign Currency" means at any time any Currency other than Dollars.
"Foreign Currency Equivalent" means, with respect to any amount in
Dollars, the amount of any Foreign Currency that could be purchased with such
amount of Dollars using the reciprocal of the foreign exchange rate(s)
specified in the definition of the term "Dollar Equivalent".
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Pledge Agreement" means a pledge or charge agreement with
respect to the Collateral that constitutes Equity Interests of a Foreign
Subsidiary, in form and substance reasonably satisfactory to the
Administrative Agent.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, or of any other nation, or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other
Person (the "primary obligor") in any manner, whether directly or indirectly,
and including any obligation of
-13-
the guarantor, direct or indirect, (a) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Guarantee and Security Agreement" means a Guarantee and Security
Agreement dated the date hereof, and in the form of Exhibit B, between the
Borrower, the Administrative Agent, each holder (or a representative or
trustee therefor) from time to time of any Secured Longer-Term Indebtedness,
and the Collateral Agent, as the same shall be modified and supplemented and
in effect from time to time.
"Guarantee Assumption Agreement" means a Guarantee Assumption Agreement
substantially in the form of Exhibit B to the Guarantee and Security Agreement
between the Collateral Agent and an entity that, pursuant to Section 5.08, is
required to become a "Subsidiary Guarantor" under the Guarantee and Security
Agreement (with such changes as the Administrative Agent shall request,
consistent with the requirements of Section 5.08).
"Hazardous Materials" shall mean (a) petroleum products and byproducts,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, radon
gas, chlorofluorocarbons and all other ozone-depleting substances; and (b) any
chemical, material, substance, waste, pollutant or contaminant that is
prohibited, limited or regulated by or pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
currency exchange protection agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement.
"Holding" means BlackRock ▇▇▇▇▇ Capital Holding LLC.
"Increasing Lender" has the meaning assigned to such term in Section
2.08(e).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding
accounts payable incurred in the ordinary course of business), (e) all
Indebtedness of others secured by any Lien on property owned or acquired by
such Person, whether or not
-14-
the Indebtedness secured thereby has been assumed, (f) all Guarantees by such
Person of Indebtedness of others, (g) all Capital Lease Obligations of such
Person, (h) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (i)
all obligations, contingent or otherwise, of such Person in respect of
bankers' acceptances. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Independent" when used with respect to any specified Person means that
such Person (a) does not have any direct financial interest or any material
indirect financial interest in the Borrower or any of its Subsidiaries or
Affiliates (including its investment advisor or any Affiliate thereof) and (b)
is not connected with the Borrower or of its Subsidiaries or Affiliates
(including its investment advisor or any Affiliate thereof) as an officer,
employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions.
"Industry Classification Group" means (a) any of the Moody's
classification groups set forth in Schedule VI hereto, together with any such
classification groups that may be subsequently established by Moody's and
provided by the Borrower to the Lenders, and (b) up to three additional
industry group classifications established by the Borrower pursuant to Section
5.12.
"Initial Lender" means each of Citibank, JPMorgan Chase Bank, N.A. and
Wachovia Bank, National Association.
"Interest Election Request" means a request by the Borrower to convert or
continue a Syndicated Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any Syndicated ABR
Loan, each Quarterly Date, (b) with respect to any Eurocurrency Loan, the last
day of each Interest Period therefor and, in the case of any Interest Period
of more than three months' duration, each day prior to the last day of such
Interest Period that occurs at three-month intervals after the first day of
such Interest Period and (c) with respect to any Swingline Loan, the day that
such Loan is required to be repaid.
"Interest Period" means, for any Eurocurrency Loan or Borrowing, the
period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter or, with respect to such portion of any Eurocurrency
Loan or Borrowing denominated in a Foreign Currency that is scheduled to be
repaid on the Commitment Termination Date, a period of less than one month's
duration commencing on the date of such Loan or Borrowing and ending on the
Commitment Termination Date, as specified in the applicable Borrowing Request
or Interest Election Request; provided that (i) if any
-15-
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day, and (ii)
any Interest Period (other than an Interest Period pertaining to a
Eurocurrency Borrowing denominated in a Foreign Currency that ends on the
Commitment Termination Date that is permitted to be of less than one month's
duration as provided in this definition) that commences on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Loan initially shall be the date on
which such Loan is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Loan, and the date of a Syndicated
Borrowing comprising Loans that have been converted or continued shall be the
effective date of the most recent conversion or continuation of such Loans.
"Investment" means, for any Person: (a) Equity Interests, bonds, notes,
debentures or other securities of any other Person or any agreement to acquire
any Equity Interests, bonds, notes, debentures or other securities of any
other Person (including any "short sale" or any sale of any securities at a
time when such securities are not owned by the Person entering into such
sale); (b) deposits, advances, loans or other extensions of credit made to any
other Person (including purchases of property from another Person subject to
an understanding or agreement, contingent or otherwise, to resell such
property to such Person); or (c) Hedging Agreements.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time.
"Investment Policies" means the investment objectives, policies,
restrictions and limitations set forth in the report of the Borrower to the
SEC on Form 10-K for the fiscal year ended December 31, 2005, including any
amendments, changes, supplements or modifications thereto; provided that any
amendment, change, supplement or modification thereto that (a) is, or could
reasonably be expected to be, material and adverse to the Lenders and (b) was
effected without the prior written consent of the Administrative Agent (with
the approval of the Required Lenders) shall be deemed excluded from the
definition of "Investment Policies" for purposes of this Agreement.
"Issuing Bank" means Citibank, in its capacity as the issuer of Letters
of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(j). In the case of any Letter of Credit to be issued in an Agreed
Foreign Currency, Citibank may designate any of its affiliates as the "Issuing
Bank" for purposes of such Letter of Credit.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of the Dollar LC Exposure and
the Multicurrency LC Exposure, in each case at such time.
-16-
"Lenders" means, collectively, the Dollar Lenders and the Multicurrency
Lenders listed on Schedule I hereto. Unless the context otherwise requires,
the term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Letter of Credit Collateral Account" has the meaning assigned to such
term in Section 2.05(k).
"Letter of Credit Documents" means, with respect to any Letter of Credit,
collectively, any application therefor and any other agreements, instruments,
guarantees or other documents (whether general in application or applicable
only to such Letter of Credit) governing or providing for (a) the rights and
obligations of the parties concerned or at risk with respect to such Letter of
Credit or (b) any collateral security for any of such obligations, each as the
same may be modified and supplemented and in effect from time to time.
"LIBO Rate" means, for the Interest Period for any Eurocurrency Borrowing
denominated in any Currency, the rate appearing on Page 3750 of the Telerate
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits in such currency
in the London or other applicable interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such
Interest Period, as LIBOR for deposits denominated in such Currency with a
maturity comparable to such Interest Period. In the event that such rate is
not available as described above for any reason, then the LIBO Rate for such
Interest Period shall be the rate at which deposits in such Currency in the
amount of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIBOR" means, for any Currency, the rate at which deposits denominated
in such Currency are offered to leading banks in the London interbank market
(or, in the case of English Pounds Sterling, in the eurocurrency market).
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on
or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities, except in favor of the issuer thereof.
-17-
"Loan Documents" means, collectively, this Agreement, the Letter of
Credit Documents and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Local Time" means, with respect to any Loan denominated in or any
payment to be made in any Currency, the local time in the Principal Financial
Center for the Currency in which such Loan is denominated or such payment is
to be made.
"Margin Stock" means "margin stock" within the meaning of Regulations T,
U and X.
"Material Adverse Change" has the meaning assigned to such term in
Section 3.04(b).
"Material Adverse Effect" means a material adverse effect on (a) the
business, Portfolio Investments and other assets, liabilities and financial
condition of the Borrower taken as a whole (excluding in any case a decline in
the net asset value of the Borrower or a change in general market conditions
or values of the Borrower's Portfolio Investments), or (b) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Administrative Agent and the Lenders thereunder.
"Material Indebtedness" means (a) Indebtedness (other than the Loans,
Letters of Credit and Hedging Agreements) of any one or more of the Borrower
and its Subsidiaries in an aggregate principal amount exceeding $25,000,000
and (b) obligations in respect of one or more Hedging Agreements under which
the maximum aggregate amount (giving effect to any netting agreements) that
the Borrower and the Subsidiaries would be required to pay if such Hedging
Agreement(s) were terminated at such time would exceed $25,000,000.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means, initially, each parcel of real property and
the improvements thereto owned by an Obligor, and includes each other parcel
of real property and the improvements thereto owned by an Obligor with respect
to which a Mortgage is granted pursuant to Section 5.08.
"Multicurrency Commitment" means, with respect to each Multicurrency
Lender, the commitment of such Multicurrency Lender to make Syndicated Loans,
and to acquire participations in Letters of Credit and Swingline Loans,
denominated in Dollars and in Agreed Foreign Currencies hereunder, expressed
as an amount representing the
-18-
maximum aggregate amount of such Lender's Revolving Multicurrency Credit
Exposure hereunder, as such commitment may be (a) reduced or increased from
time to time pursuant to Section 2.08 and (b) reduced or increased or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Multicurrency
Commitment is set forth on Schedule I, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Multicurrency Commitment,
as applicable. The aggregate amount of the Initial Lenders' Multicurrency
Commitments is $225,000,000.
"Multicurrency LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Multicurrency Letters of Credit at
such time plus (b) the aggregate amount of all LC Disbursements in respect of
such Letters of Credit that have not yet been reimbursed by or on behalf of
the Borrower at such time. The Multicurrency LC Exposure of any Lender at any
time shall be its Applicable Multicurrency Percentage of the total
Multicurrency LC Exposure at such time.
"Multicurrency Lender" means the Persons listed on Schedule I as having
Multicurrency Commitments and any other Person that shall have become a party
hereto pursuant to an Assignment and Assumption that provides for it to assume
a Multicurrency Commitment or to acquire Revolving Multicurrency Credit
Exposure, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Multicurrency Letters of Credit" means Letters of Credit that utilize
the Multicurrency Commitments.
"Multicurrency Loan" means a Loan denominated in an Agreed Foreign
Currency.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"National Currency" means the currency, other than the Euro, of a
Participating Member State.
"Non-Consenting Lender" has the meaning assigned to such term in Section
9.02(b).
"Obligor" means, collectively, the Borrower and the Subsidiary
Guarantors.
"Other Covered Indebtedness" means, collectively, Secured Longer-Term
Indebtedness, Secured Shorter-Term Indebtedness and Unsecured Shorter-Term
Indebtedness.
"Other Permitted Indebtedness" means (a) accrued expenses and current
trade accounts payable incurred in the ordinary course of the Borrower's
business which are not overdue for a period of more than 90 days or which are
being contested in good
-19-
faith by appropriate proceedings, (b) Indebtedness (other than Indebtedness
for borrowed money) arising in connection with transactions in the ordinary
course of the Borrower's business in connection with its purchasing of
securities, derivatives transactions, reverse repurchase agreements or dollar
rolls to the extent such transactions are permitted under the Investment
Company Act and the Borrower's Investment Policies, provided that such
Indebtedness does not arise in connection with the purchase of Portfolio
Investments other than Cash Equivalents and U.S. Government Securities and (c)
Indebtedness in respect of judgments or awards that have been in force for
less than the applicable period for taking an appeal so long as such judgments
or awards do not constitute an Event of Default under clause (l) of Article
VII.
"Other Secured Indebtedness" means Secured Longer-Term Indebtedness.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery
or enforcement of, or otherwise with respect to, any Loan Document.
"Participating Member State" means any member state of the European
Community that adopts or has adopted the Euro as its lawful currency in
accordance with the legislation of the European Union relating to the European
Monetary Union.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Pension Act" means the Pension Protection Act of 2006, as amended.
"Perfection Certificate" means a certificate in the form of Exhibit D or
any other form approved by the Administrative Agent.
"Permitted Board-Approved Affiliate Transaction" means any transaction
between the Borrower or any of its Subsidiaries, on the one hand, and any
Affiliate of the Borrower, on the other hand (including any amendment,
modification, supplement or waiver of an Affiliate Agreement), that (a) has
been approved by a majority of the independent directors of the Board of
Directors of the Borrower and (b) has been consented to by the Administrative
Agent (such consent not to be unreasonably withheld or delayed).
"Permitted Liens" means (a) Liens imposed by any Governmental Authority
for taxes, assessments or charges not yet due or that are being contested in
good faith and by appropriate proceedings if adequate reserves with respect
thereto are maintained on the books of the Borrower in accordance with GAAP;
(b) Liens of clearing agencies, broker-dealers and similar Liens incurred in
the ordinary course of business, provided that such Liens (i) attach only to
the securities (or proceeds) being purchased or sold and (ii) secure only
obligations incurred in connection with such purchase or sale, and not any
obligation in connection with margin financing; (c) Liens imposed by law, such
as materialmen's, mechanics', carriers', workmens', storage and repairmen's
Liens and other similar Liens arising in the ordinary course of business and
securing obligations
-20-
(other than Indebtedness for borrowed money); (d) Liens incurred or pledges or
deposits made to secure obligations incurred in the ordinary course of
business under workers' compensation laws, unemployment insurance or other
similar social security legislation (other than in respect of employee benefit
plans subject to ERISA) or to secure public or statutory obligations; (e)
Liens securing the performance of, or payment in respect of, bids, insurance
premiums, deductibles or co-insured amounts, tenders, government or utility
contracts (other than for the repayment of borrowed money), surety, stay,
customs and appeal bonds and other obligations of a similar nature incurred in
the ordinary course of business; (f) Liens arising out of judgments or awards
that have been in force for less than the applicable period for taking an
appeal so long as such judgments or awards do not constitute an Event of
Default under clause (l) of Article VII; (g) customary rights of setoff and
liens upon (i) deposits of cash in favor of banks or other depository
institutions in which such cash is maintained in the ordinary course of
business, (ii) cash and financial assets held in securities accounts in favor
of banks and other financial institutions with which such accounts are
maintained in the ordinary course of business and (iii) assets held by a
custodian in favor of such custodian in the ordinary course of business
securing payment of fees, indemnities and other similar obligations; (h) Liens
arising solely from precautionary filings of financing statements under the
Uniform Commercial Code of the applicable jurisdictions in respect of
operating leases entered into by the Borrower or any of its Subsidiaries in
the ordinary course of business; and (i) Liens incurred in connection with any
Hedging Agreement entered into with a Lender (or an Affiliate of a Lender) in
the ordinary course of business and not for speculative purposes.
"Permitted Manager" means (a) any Affiliate of BlackRock ▇▇▇▇▇ Capital
Advisors that succeeds BlackRock ▇▇▇▇▇ Capital Advisors as the sole manager of
Holding in the event that BlackRock ▇▇▇▇▇ Capital Advisors would otherwise be
required under GAAP to consolidate in its financial statements Holding and/or
the Borrower and (b) any other Person succeeding as sole manager of Holding
with the consent of the Required Lenders.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Portfolio Investment" means any Investment held by the Obligors in their
asset portfolio (and solely for purposes of determining the Borrowing Base,
Cash).
"Portfolio Pricing Practices" means the Borrower's written Amended and
Restated Portfolio Pricing Practices as of the date hereof (attached hereto as
Exhibit E) together with any amendment, change, modification or supplement
thereto; provided that
-21-
any amendment, change, supplement or modification thereto that (a) is, or
could reasonably be expected to be, material and adverse to the Lenders and
(b) was effected without (x) the approval of a majority of the independent
directors of the Board of Directors of the Borrower and (y) the consent of the
Administrative Agent (with the approval of the Required Lenders) (such consent
not to be unreasonably withheld or delayed) shall be deemed excluded from the
definition of "Portfolio Pricing Practices" for purposes of this Agreement.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by Citibank as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Principal Financial Center" means, in the case of any Currency, the
principal financial center where such Currency is cleared and settled, as
determined by the Administrative Agent.
"Quarterly Dates" means the last Business Day of March, June, September
and December in each year, commencing on December 31, 2006.
"Register" has the meaning set forth in Section 9.04.
"Regulations D, T, U and X" means, respectively, Regulations D, T, U and
X of the Board of Governors of the Federal Reserve System (or any successor),
as the same may be modified and supplemented and in effect from time to time.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time. The
Required Lenders of a Class (which shall include the terms "Required Dollar
Lenders" and "Required Multicurrency Lenders") means Lenders having Revolving
Credit Exposures and unused Commitments of such Class representing more than
50% of the sum of the total Revolving Credit Exposures and unused Commitments
of such Class at such time.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
capital stock of the Borrower or any of its Subsidiaries, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock
of the Borrower or any option, warrant or other right to acquire any such
shares of capital stock of the Borrower.
-22-
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Dollar Credit Exposure and Revolving Multicurrency Credit Exposure at such
time.
"Revolving Dollar Credit Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Syndicated Loans, and its LC Exposure and Swingline Exposure, at such time
made or incurred under the Dollar Commitments.
"Revolving Multicurrency Credit Exposure" means, with respect to any
Lender at any time, the sum of the outstanding principal amount of such
Lender's Syndicated Loans, and its LC Exposure and Swingline Exposure, at such
time made or incurred under the Multicurrency Commitments.
"RIC" means a person qualifying for treatment as a "regulated investment
company" under the Code.
"S&P" means Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., a New York corporation, or any successor thereto.
"SEC" means the Securities and Exchange Commission.
"Second Currency" has the meaning assigned to such term in Section 9.11.
"Secured Longer-Term Indebtedness" means, as at any date, Indebtedness
(other than Indebtedness hereunder) of the Borrower (which may be Guaranteed
by Subsidiary Guarantors) that (a) has no amortization prior to, and a final
maturity date not earlier than, six months after the Commitment Termination
Date, (b) is incurred pursuant to documentation containing other terms
(including interest, amortization, covenants and events of default) that are
no more restrictive in any material respect upon the Borrower and its
Subsidiaries than those set forth in this Agreement and (c) is not secured by
any assets of any Obligor other than pursuant to the Security Documents and
the holders of which have agreed, in a manner satisfactory to the
Administrative Agent and the Collateral Agent, to be bound by the provisions
of the Security Documents.
"Secured Shorter-Term Indebtedness" means, collectively, (a) any
Indebtedness of the Borrower or any Subsidiary that is secured by any assets
of any Obligor and that does not constitute Secured Longer-Term Indebtedness
and (b) any Indebtedness that is designated as "Secured Shorter-Term
Indebtedness" pursuant to Section 6.11(a).
"Security Documents" means, collectively, the Guarantee and Security
Agreement, all Uniform Commercial Code financing statements filed with respect
to the security interests in personal property created pursuant to the
Guarantee and Security Agreement and all other assignments, pledge agreements,
security agreements, control agreements and other instruments executed and
delivered on or after the date hereof by any of the Obligors pursuant to the
Guarantee and Security Agreement or otherwise
-23-
providing or relating to any collateral security for any of the Secured
Obligations under and as defined in the Guarantee and Security Agreement.
"Shareholders' Equity" means, at any date, the amount determined on a
consolidated basis, without duplication, in accordance with GAAP, of
shareholders' equity or net assets, as applicable, for the Borrower and its
Subsidiaries at such date.
"Special Equity Interest" means any Equity Interest that is subject to a
Lien in favor of creditors of the issuer of such Equity Interest, provided
that (a) such Lien was created to secure Indebtedness owing by such issuer to
such creditors, (b) such Indebtedness was (i) in existence at the time the
Obligors acquired such Equity Interest, (ii) incurred or assumed by such
issuer substantially contemporaneously with such acquisition or (iii) already
subject to a Lien granted to such creditors and (c) unless such Equity
Interest is not intended to be included in the Collateral, the documentation
creating or governing such Lien does not prohibit the inclusion of such Equity
Interest in the Collateral.
"Specified Currency" has the meaning assigned to such term in Section
9.11.
"Specified Place" has the meaning assigned to such term in Section 9.11.
"Standard Securitization Undertakings" means, collectively, (a) customary
arm's-length servicing obligations (together with any related performance
guarantees), (b) obligations (together with any related performance
guarantees) to refund the purchase price or grant purchase price credits for
dilutive events or misrepresentations (in each case unrelated to the
collectibility of the assets sold or the creditworthiness of the associated
account debtors or loan obligors) and (c) representations, warranties,
covenants and indemnities (together with any related performance guarantees)
of a type that are reasonably customary in accounts receivable or loan
securitizations.
"Statutory Reserve Rate" means, for the Interest Period for any
Eurocurrency Borrowing, a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the arithmetic mean, taken over each day in such Interest Period, of the
aggregate of the maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by the
Board to which the Administrative Agent is subject for eurocurrency funding
(currently referred to as "Eurocurrency liabilities" in Regulation D). Such
reserve percentages shall include those imposed pursuant to Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to
any Lender under Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date
of any change in any reserve percentage.
-24-
"Subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as
any other corporation, limited liability company, partnership, association or
other entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.
Anything herein to the contrary notwithstanding, the term "Subsidiary" shall
not include any Person that constitutes an Investment held by the Borrower in
the ordinary course of business and that is not, under GAAP, consolidated on
the financial statements of the Borrower and its Subsidiaries. Unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Subsidiary Guarantor" means any Subsidiary that is a Guarantor under the
Guarantee and Security Agreement.
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be the sum of (i) its Applicable Dollar Percentage of
the total Swingline Exposure at such time incurred under the Dollar
Commitments and (ii) its Applicable Multicurrency Percentage of the total
Swingline Exposure at such time incurred under the Multicurrency Commitments.
"Swingline Lender" means Citibank, in its capacity as lender of Swingline
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndicated", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are made pursuant
to Section 2.01.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Transactions" means the execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, the borrowing of
Loans, the use of the proceeds thereof and the issuance of Letters of Credit
hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans constituting such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Uniform Commercial Code" means the Uniform Commercial Code as in effect
from time to time in the State of New York.
-25-
"Unsecured Longer-Term Indebtedness" means any Indebtedness of the
Borrower (which may be Guaranteed by Subsidiary Guarantors) that (a) has no
amortization prior to, and a final maturity date not earlier than, six months
after the Commitment Termination Date, (b) is incurred pursuant to
documentation containing other terms (including interest, amortization,
covenants and events of default) and, in each case, no more restrictive in any
material respect upon the Borrower and its Subsidiaries than those set forth
in this Agreement and (c) is not secured by any assets of any Obligor.
"Unsecured Shorter-Term Indebtedness" means, collectively, (a) any
Indebtedness of the Borrower or any Subsidiary that is not secured by any
assets of any Obligor and that does not constitute Unsecured Longer-Term
Indebtedness and (b) any Indebtedness that is designated as "Unsecured
Shorter-Term Indebtedness" pursuant to Section 6.11(a).
"U.S. Government Securities" means securities that are direct obligations
of, and obligations the timely payment of principal and interest on which is
fully guaranteed by, the United States or any agency or instrumentality of the
United States the obligations of which are backed by the full faith and credit
of the United States and in the form of conventional bills, bonds, and notes.
"Value" has the meaning assigned to such term in Section 5.13.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Syndicated Dollar Loan" or "Syndicated Multicurrency Loan"), by Type (e.g.,
an "ABR Loan") or by Class and Type (e.g., a "Syndicated Multicurrency LIBOR
Loan"). Borrowings also may be classified and referred to by Class (e.g., a
"Dollar Borrowing", "Multicurrency Borrowing" or "Syndicated Borrowing"), by
Type (e.g., an "ABR Borrowing") or by Class and Type (e.g., a "Syndicated ABR
Borrowing" or "Syndicated Multicurrency LIBOR Borrowing"). Loans and
Borrowings may also be identified by Currency.
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person's
-26-
successors and assigns, (c) the words "herein", "hereof" and "hereunder", and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies
the Borrower that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied
immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Currencies; Currency Equivalents.
(a) Currencies Generally. At any time, any reference in the definition of
the term "Agreed Foreign Currency" or in any other provision of this Agreement
to the Currency of any particular nation means the lawful currency of such
nation at such time whether or not the name of such Currency is the same as it
was on the date hereof. Except as provided in Section 2.10(b) and the last
sentence of Section 2.17(a), for purposes of determining (i) whether the
amount of any Borrowing or Letter of Credit under the Multicurrency
Commitments, together with all other Borrowings and Letters of Credit under
the Multicurrency Commitments then outstanding or to be borrowed at the same
time as such Borrowing, would exceed the aggregate amount of the Multicurrency
Commitments, (ii) the aggregate unutilized amount of the Multicurrency
Commitments, (iii) the Revolving Credit Exposure, (iv) the Multicurrency LC
Exposure, (v) the Covered Debt Amount and (vi) the Borrowing Base or the Value
or the fair market value of any Portfolio Investment, the outstanding
principal amount of any Borrowing or Letter of Credit that is denominated in
any Foreign Currency or the Value or the fair market value of any Portfolio
Investment that is denominated in any Foreign Currency shall be deemed to be
the Dollar Equivalent of the amount of the Foreign Currency of such Borrowing,
Letter of Credit or Portfolio Investment, as the case may be, determined as of
the date of such Borrowing or Letter of Credit (determined in accordance with
the last sentence of the definition of the term "Interest Period") or the date
of valuation of such Portfolio Investment, as the case may be; provided, that
the "dollar equivalent" of the Value or the fair market value of any Portfolio
Investment that is denominated in any Foreign Currency shall be determined in
accordance with Section 5.12(b). Wherever in this Agreement in connection with
a Borrowing or Loan an amount, such as a required minimum or multiple amount,
is expressed in Dollars, but such Borrowing or Loan
-27-
is denominated in a Foreign Currency, such amount shall be the relevant
Foreign Currency Equivalent of such Dollar amount (rounded to the nearest
1,000 units of such Foreign Currency).
(b) Special Provisions Relating to Euro. Each obligation hereunder of any
party hereto that is denominated in the National Currency of a state that is
not a Participating Member State on the date hereof shall, effective from the
date on which such state becomes a Participating Member State, be
redenominated in Euro in accordance with the legislation of the European Union
applicable to the European Monetary Union; provided that, if and to the extent
that any such legislation provides that any such obligation of any such party
payable within such Participating Member State by crediting an account of the
creditor can be paid by the debtor either in Euros or such National Currency,
such party shall be entitled to pay or repay such amount either in Euros or in
such National Currency. If the basis of accrual of interest or fees expressed
in this Agreement with respect to an Agreed Foreign Currency of any country
that becomes a Participating Member State after the date on which such
currency becomes an Agreed Foreign Currency shall be inconsistent with any
convention or practice in the interbank market for the basis of accrual of
interest or fees in respect of the Euro, such convention or practice shall
replace such expressed basis effective as of and from the date on which such
state becomes a Participating Member State; provided that, with respect to any
Borrowing denominated in such currency that is outstanding immediately prior
to such date, such replacement shall take effect at the end of the Interest
Period therefor.
Without prejudice to the respective liabilities of the Borrower to the
Lenders and the Lenders to the Borrower under or pursuant to this Agreement,
each provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time, in
consultation with the Borrower, reasonably specify to be necessary or
appropriate to reflect the introduction or changeover to the Euro in any
country that becomes a Participating Member State after the date hereof;
provided that the Administrative Agent shall provide the Borrower and the
Lenders with prior notice of the proposed change with an explanation of such
change in sufficient time to permit the Borrower and the Lenders an
opportunity to respond to such proposed change.
ARTICLE II
THE CREDITS
SECTION 2.01. The Commitments. Subject to the terms and conditions set
forth herein:
(a) each Dollar Lender agrees to make Syndicated Loans in Dollars to
the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in (i) such Lender's
Revolving Dollar Credit Exposure exceeding such Lender's Dollar
Commitment, (ii) the aggregate Revolving Dollar Credit Exposure of all of
the Dollar Lenders exceeding the
-28-
aggregate Dollar Commitments or (iii) the total Covered Debt Amount
exceeding the Borrowing Base then in effect; and
(b) each Multicurrency Lender agrees to make Syndicated Loans in
Dollars and in Agreed Foreign Currencies to the Borrower from time to
time during the Availability Period in an aggregate principal amount that
will not result in (i) such Lender's Revolving Multicurrency Credit
Exposure exceeding such Lender's Multicurrency Commitment, (ii) the
aggregate Revolving Multicurrency Credit Exposure of all of the
Multicurrency Lenders exceeding the aggregate Multicurrency Commitments
or (iii) the total Covered Debt Amount exceeding the Borrowing Base then
in effect.
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Syndicated Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made as part of
a Borrowing consisting of Loans of the same Class, Currency and Type made by
the applicable Lenders ratably in accordance with their respective Commitments
of the applicable Class. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Type of Loans. Subject to Section 2.13, each Syndicated Borrowing of
a Class shall be constituted entirely of ABR Loans or of Eurocurrency Loans of
such Class denominated in a single Currency as the Borrower may request in
accordance herewith. Each ABR Loan shall be denominated in Dollars. Each
Lender at its option may make any Eurocurrency Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that
any exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts. Each Borrowing (whether Eurocurrency, Syndicated ABR
or Swingline) shall be in an aggregate amount of $1,000,000 or a larger
multiple of $1,000,000; provided that a Syndicated ABR Borrowing of a Class
may be in an aggregate amount that is equal to the entire unused balance of
the total Commitments of such Class or that is required to finance the
reimbursement of an LC Disbursement of such Class as contemplated by Section
2.05(f). Borrowings of more than one Class, Currency and Type may be
outstanding at the same time; provided that no more than ten Eurocurrency
Borrowings may be outstanding at the same time.
(d) Limitations on Interest Periods. Notwithstanding any other provision
of this Agreement, the Borrower shall not be entitled to request (or to elect
to convert to or continue as a Eurocurrency Borrowing) any Borrowing if the
Interest Period requested therefor would end after the Commitment Termination
Date.
-29-
SECTION 2.03. Requests for Syndicated Borrowings.
(a) Notice by the Borrower. To request a Syndicated Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone
(i) in the case of a Eurocurrency Borrowing denominated in Dollars, not later
than 12:00 noon, New York City time, three Business Days before the date of
the proposed Borrowing, (ii) in the case of a Eurocurrency Borrowing
denominated in a Foreign Currency, not later than 12:00 noon, London time,
three Business Days before the date of the proposed Borrowing or (iii) in the
case of a Syndicated ABR Borrowing, not later than 11:00 noon, New York City
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower.
(b) Content of Borrowing Requests. Each telephonic and written Borrowing
Request shall specify the following information in compliance with Section
2.02:
(i) whether such Borrowing is to be made under the Dollar
Commitments or the Multicurrency Commitments;
(ii) the aggregate amount and Currency of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) in the case of a Syndicated Borrowing denominated in Dollars,
whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(v) in the case of a Eurocurrency Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the
term "Interest Period" and permitted under Section 2.02(d); and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
(c) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each applicable Lender of the details
thereof and of the amounts of such Lender's Loan to be made as part of the
requested Borrowing.
(d) Failure to Elect. If no election as to the Class of a Syndicated
Borrowing is specified, then the requested Syndicated Borrowing shall be
deemed to be under the Multicurrency Commitments. If no election as to the
Currency of a Syndicated Borrowing is specified, then the requested Syndicated
Borrowing shall be denominated in Dollars. If no election as to the Type of a
Syndicated Borrowing is specified, then the requested Borrowing shall be a
Eurocurrency Borrowing having an Interest Period of one month and, if an
Agreed Foreign Currency has been specified, the requested Syndicated
-30-
Borrowing shall be a Eurocurrency Borrowing denominated in such Agreed Foreign
Currency and having an Interest Period of one month. If a Eurocurrency
Borrowing is requested but no Interest Period is specified, (i) if the
Currency specified for such Borrowing is Dollars (or if no Currency has been
so specified), the requested Borrowing shall be a Eurocurrency Borrowing
denominated in Dollars having an Interest Period of one month's duration, and
(ii) if the Currency specified for such Borrowing is an Agreed Foreign
Currency, the Borrower shall be deemed to have selected an Interest Period of
one month's duration.
SECTION 2.04. Swingline Loans.
(a) Agreement to Make Swingline Loans. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline
Loans under each Commitment to the Borrower from time to time during the
Availability Period, in Dollars and in Agreed Foreign Currencies, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans of both Classes
exceeding the Dollar Equivalent of $25,000,000, (ii) the total Revolving
Dollar Credit Exposures exceeding the aggregate Dollar Commitments, (iii) the
total Revolving Multicurrency Credit Exposures exceeding the aggregate
Multicurrency Commitments or (iv) the total Covered Debt Amount exceeding the
Borrowing Base then in effect; provided that the Swingline Lender shall not be
required to make a Swingline Loan to refinance an outstanding Swingline Loan.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) Notice of Swingline Loans by the Borrower. To request a Swingline
Loan, the Borrower shall notify the Administrative Agent of such request by
telephone (confirmed by telecopy), (i) in the case of a Swingline Loan
denominated in Dollars, not later than 2:00 p.m., New York City time, on the
day of such proposed Swingline Loan and (ii) in the case of a Swingline Loan
denominated in a Foreign Currency, not later than 1:00 p.m., London time, on
the day of such proposed Swingline Loan. Each such notice shall be irrevocable
and shall specify the requested date (which shall be a Business Day), the
amount of the requested Swingline Loan and whether such Swingline Loan is to
be made under the Dollar Commitments or the Multicurrency Commitments. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Collateral Agent (or, in the case of
a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(f), by remittance to the Issuing Bank) (x) in the
case of a Swingline Loan, denominated in Dollars, by 3:00 p.m., New York City
time, on the requested date of such Swingline Loan and (y) in the case of a
Swingline Loan denominated in a Foreign Currency, by 3:00 p.m., London time,
on the requested date of such Swingline Loan.
(c) Participations by Lenders in Swingline Loans. The Swingline Lender
may by written notice given to the Administrative Agent (i) not later than
10:00 a.m., New York City time, on any Business Day, in the case of Swingline
Loans
-31-
denominated in Dollars and (ii) not later than 1:00 p.m., London time, on any
Business Day, in the case of Swingline Loans denominated in any Foreign
Currency, require the Lenders of the applicable Class to acquire
participations on such Business Day in all or a portion of the Swingline Loans
of such Class outstanding. Such notice to the Administrative Agent shall
specify the aggregate amount of Swingline Loans in which the applicable
Lenders will participate. Promptly upon receipt of such notice, the
Administrative Agent will give notice thereof to each applicable Lender,
specifying in such notice such Lender's Applicable Dollar Percentage or
Applicable Multicurrency Percentage of such Swingline Loan or Loans. Each
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above in this paragraph, to pay to the Administrative Agent, for
account of the Swingline Lender, such Lender's Applicable Dollar Percentage or
Applicable Multicurrency Percentage, as the case may be, of such Swingline
Loan or Loans, provided that no Lender shall be required to purchase a
participation in a Swingline Loan pursuant to this Section 2.04(c) if (x) the
conditions set forth in Section 4.02 would not be satisfied in respect of a
Borrowing at the time such Swingline Loan was made and (y) the Required
Lenders of the respective Class shall have so notified the Swingline Lender in
writing and shall not have subsequently determined that the circumstances
giving rise to such conditions not being satisfied no longer exist.
Subject to the foregoing, each Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this
paragraph (c) is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments of the respective Class, and
that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever. Each Lender shall comply with its
obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall
promptly pay to the Swingline Lender the amounts so received by it from the
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the Swingline Lender from the Borrower (or other party on behalf of the
Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender
of the proceeds of a sale of participations therein shall be promptly remitted
to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders
that shall have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not
relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein, in
addition to the Loans provided for in Section 2.01, the Borrower may request
the Issuing
-32-
Bank to issue, at any time and from time to time during the Availability
Period and under either the Dollar Commitments or Multicurrency Commitments,
Letters of Credit denominated in Dollars or (in the case of Letters of Credit
under the Multicurrency Commitments) in any Agreed Foreign Currency for its
own account in such form as is acceptable to the Issuing Bank in its
reasonable determination. Letters of Credit issued hereunder shall constitute
utilization of the applicable Commitments up to the aggregate amount available
to be drawn thereunder.
(b) Notice of Issuance, Amendment, Renewal or Extension. To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (d) of this Section), the amount and
Currency of such Letter of Credit, whether such Letter of Credit is to be
issued under the Dollar Commitments or the Multicurrency Commitments, the name
and address of the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by the Issuing Bank, the Borrower also shall submit a letter of
credit application on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating
to any Letter of Credit, the terms and conditions of this Agreement shall
control.
(c) Limitations on Amounts. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to represent
and warrant that), after giving effect to such issuance, amendment, renewal or
extension (i) the aggregate LC Exposure of the Issuing Bank (determined for
these purposes without giving effect to the participations therein of the
Lenders pursuant to paragraph (e) of this Section) shall not exceed
$25,000,000, (ii) the total Revolving Dollar Credit Exposures shall not exceed
the aggregate Dollar Commitments, (iii) the total Revolving Multicurrency
Credit Exposures shall not exceed the aggregate Multicurrency Commitments and
(iv) the total Covered Debt Amount shall not exceed the Borrowing Base then in
effect.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date twelve months after the
date of the issuance of such Letter of Credit (or, in the case of any renewal
or extension thereof, twelve months after such renewal or extension, so long
as such renewal or extension occurs within three months of such then-current
expiration date) and (ii) the date that is five Business Days prior to the
Commitment Termination Date; provided, however, that
-33-
any Letter of Credit with a one-year term may, upon the request of the
Borrower, include a provision whereby such Letter of Credit shall be renewed
automatically for additional consecutive periods of one year or less (but not
beyond the date that is five Business Days prior to the Commitment Termination
Date) unless the Issuing Bank notifies the beneficiary thereof at least 30
days prior to the then-applicable expiration date that such Letter of Credit
will not be renewed; provided further, however, that a Letter of Credit cash
collateralized by the Borrower pursuant to Section 2.05(k) may expire after
the Commitment Termination Date.
(e) Participations. By the issuance of a Letter of Credit of a Class (or
an amendment to a Letter of Credit increasing the amount thereof) by the
Issuing Bank, and without any further action on the part of the Issuing Bank
or the Lenders, the Issuing Bank hereby grants to each Lender of such Class,
and each Lender of such Class hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Applicable
Dollar Percentage or Applicable Multicurrency Percentage, as the case may be,
of the aggregate amount available to be drawn under such Letter of Credit.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the applicable Commitments, provided that no Lender shall be
required to purchase a participation in a Letter of Credit pursuant to this
Section 2.05(e) if (x) the conditions set forth in Section 4.02 would not be
satisfied in respect of a Borrowing at the time such Letter of Credit was
issued and (y) the Required Lenders of the respective Class shall have so
notified the Issuing Bank in writing and shall not have subsequently
determined that the circumstances giving rise to such conditions not being
satisfied no longer exist.
In consideration and in furtherance of the foregoing, each Lender of a
Class hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for account of the Issuing Bank, such Lender's
Applicable Dollar Percentage or Applicable Multicurrency Percentage, as the
case may be, of each LC Disbursement made by the Issuing Bank in respect of
Letters of Credit of such Class promptly upon the request of the Issuing Bank
at any time from the time of such LC Disbursement until such LC Disbursement
is reimbursed by the Borrower or at any time after any reimbursement payment
is required to be refunded to the Borrower for any reason. Such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
Each such payment shall be made in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment to
the Issuing Bank or, to the extent that the Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to
-34-
reimburse the Issuing Bank for any LC Disbursement shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse the Issuing Bank
in respect of such LC Disbursement by paying to the Administrative Agent an
amount equal to such LC Disbursement not later than 1:00 p.m., New York City
time, on (i) the Business Day that the Borrower receives notice of such LC
Disbursement, if such notice is received prior to 10:00 a.m., New York City
time, or (ii) the Business Day immediately following the day that the Borrower
receives such notice, if such notice is not received prior to such time,
provided that, if such LC Disbursement is not less than $1,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 or 2.04 that such payment be financed with a
Syndicated ABR Borrowing or a Swingline Loan of the respective Class in an
equivalent amount and, to the extent so financed, the Borrower's obligation to
make such payment shall be discharged and replaced by the resulting Syndicated
ABR Borrowing or Swingline Loan.
If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each applicable Lender of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Lender's
Applicable Dollar Percentage or Applicable Multicurrency Percentage, as the
case may be, thereof.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever
and irrespective of (i) any lack of validity or enforceability of any Letter
of Credit, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply strictly with
the terms of such Letter of Credit, and (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but
for the provisions of this Section, constitute a legal or equitable discharge
of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit by the Issuing Bank or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of
-35-
which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank's gross
negligence or willful misconduct when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof.
The parties hereto expressly agree that:
(i) the Issuing Bank may accept documents that appear on their face
to be in substantial compliance with the terms of a Letter of Credit
without responsibility for further investigation, regardless of any
notice or information to the contrary, and may make payment upon
presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;
(ii) the Issuing Bank shall have the right, in its sole discretion,
to decline to accept such documents and to make such payment if such
documents are not in strict compliance with the terms of such Letter of
Credit; and
(iii) this sentence shall establish the standard of care to be
exercised by the Issuing Bank when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms
thereof (and the parties hereto hereby waive, to the extent permitted by
applicable law, any standard of care inconsistent with the foregoing).
(h) Disbursement Procedures. The Issuing Bank shall, within a reasonable
time following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly after such examination notify the Administrative Agent and the
Borrower by telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Bank and the
applicable Lenders with respect to any such LC Disbursement.
(i) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to Syndicated ABR Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement within
two Business Days following the date when due pursuant to paragraph (f) of
this Section, then the provisions of Section 2.12(d) shall apply. Interest
accrued pursuant to this paragraph shall be for account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (f) of this Section to reimburse the Issuing Bank shall
be for account of such Lender to the extent of such payment.
-36-
(j) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement between the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay
all unpaid fees accrued for account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the rights and obligations of
the replaced Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context
shall require. After the replacement of the Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of the Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(k) Cash Collateralization. If the Borrower shall be required to provide
cover for LC Exposure pursuant to Section 2.09(a), Section 2.10(b), Section
2.10(c) or the last paragraph of Article VII, the Borrower shall immediately
deposit into a segregated collateral account or accounts (herein,
collectively, the "Letter of Credit Collateral Account") in the name and under
the dominion and control of the Administrative Agent Cash denominated in the
Currency of the Letter of Credit under which such LC Exposure arises in an
amount equal to the amount required under Section 2.09(a), Section 2.10(c) or
the last paragraph of Article VII, as applicable. Such deposit shall be held
by the Administrative Agent as collateral in the first instance for the LC
Exposure under this Agreement and thereafter for the payment of the "Secured
Obligations" under and as defined in the Guarantee and Security Agreement, and
for these purposes the Borrower hereby grants a security interest to the
Administrative Agent for the benefit of the Lenders in the Letter of Credit
Collateral Account and in any financial assets (as defined in the Uniform
Commercial Code) or other property held therein.
SECTION 2.06. Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately
available funds by 1:00 p.m., Local Time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the
Lenders; provided that Swingline Loans shall be made as provided in Section
2.04. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to an account of
the Borrower designated by the Borrower in the applicable Borrowing Request;
provided that Syndicated ABR Borrowings made to finance the reimbursement of
an LC Disbursement as provided in Section 2.05(f) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Presumption by the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date
-37-
of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date
in accordance with paragraph (a) of this Section and may, in reliance upon
such assumption, make available to the Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the Federal Funds Effective Rate or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections.
(a) Elections by the Borrower for Syndicated Borrowings. Subject to
Section 2.03(d), the Loans constituting each Syndicated Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency Borrowing, shall have the Interest Period specified in
such Borrowing Request. Thereafter, the Borrower may elect to convert such
Borrowing to a Borrowing of a different Type or to continue such Borrowing as
a Borrowing of the same Type and, in the case of a Eurocurrency Borrowing, may
elect the Interest Period therefor, all as provided in this Section; provided,
however, that (i) a Syndicated Borrowing of a Class may only be continued or
converted into a Syndicated Borrowing of the same Class, (ii) a Syndicated
Borrowing denominated in one Currency may not be continued as, or converted
to, a Syndicated Borrowing in a different Currency, (iii) no Eurocurrency
Borrowing denominated in a Foreign Currency may be continued if, after giving
effect thereto, the aggregate Revolving Multicurrency Credit Exposures would
exceed the aggregate Multicurrency Commitments, and (iv) a Eurocurrency
Borrowing denominated in a Foreign Currency may not be converted to a
Borrowing of a different Type. The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders of the respective
Class holding the Loans constituting such Borrowing, and the Loans
constituting each such portion shall be considered a separate Borrowing. This
Section shall not apply to Swingline Borrowings, which may not be converted or
continued.
(b) Notice of Elections. To make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section
2.03 if the Borrower were requesting a Syndicated Borrowing of the Type
resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly (but no later than the close of business on
the date of such request) by hand delivery or telecopy to the Administrative
Agent of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
-38-
(c) Content of Interest Election Requests. Each telephonic and written
Interest Election Request shall specify the following information in
compliance with Section 2.02:
(i) the Borrowing (including the Class) to which such Interest
Election Request applies and, if different options are being elected with
respect to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) of this paragraph shall
be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether, in the case of a Borrowing denominated in Dollars,
the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period therefor after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period" and permitted under Section 2.02(d).
(d) Notice by the Administrative Agent to the Lenders. Promptly following
receipt of an Interest Election Request, the Administrative Agent shall advise
each applicable Lender of the details thereof and of such Lender's portion of
each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the Borrower fails to deliver
a timely and complete Interest Election Request with respect to a Eurocurrency
Borrowing prior to the end of the Interest Period therefor, then, unless such
Borrowing is repaid as provided herein, (i) if such Borrowing is denominated
in Dollars, at the end of such Interest Period such Borrowing shall be
converted to a Syndicated Eurocurrency Borrowing of the same Class having an
Interest Period of one month, and (ii) if such Borrowing is denominated in a
Foreign Currency, the Borrower shall be deemed to have selected an Interest
Period of one month's duration. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing no outstanding Eurocurrency
Borrowing may have an Interest Period of more than one month's duration.
SECTION 2.08. Termination, Reduction or Increase of the Commitments.
(a) Scheduled Termination. Unless previously terminated, the Commitments
of each Class shall terminate on the Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Borrower may at any time
terminate, or from time to time reduce, the Commitments of any Class; provided
that (i) each reduction of the Commitments of a Class shall be in an amount
that is $5,000,000
-39-
or a larger multiple of $5,000,000 in excess thereof and (ii) the Borrower
shall not terminate or reduce the Commitments of either Class if, after giving
effect to any concurrent prepayment of the Syndicated Loans of such Class in
accordance with Section 2.10, the total Revolving Credit Exposures of such
Class would exceed the total Commitments of such Class.
(c) Notice of Voluntary Termination or Reduction. The Borrower shall
notify the Administrative Agent of any election to terminate or reduce the
Commitments under paragraph (b) of this Section at least three Business Days
prior to the effective date of such termination or reduction, specifying such
election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the applicable Lenders of the
contents thereof. Each notice delivered by the Borrower pursuant to this
Section shall be irrevocable; provided that a notice of termination of the
Commitments of a Class delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction of
the Commitments of a Class shall be permanent. Each reduction of the
Commitments of a Class shall be made ratably among the Lenders of such Class
in accordance with their respective Commitments.
(e) Increase of the Commitments.
(i) Requests for Increase by Borrower. The Borrower may, at any
time, propose that the Commitments hereunder of a Class be increased
(each such proposed increase being a "Commitment Increase") by notice to
the Administrative Agent, specifying each existing Lender (each an
"Increasing Lender") and/or each additional lender (each an "Assuming
Lender") that shall have agreed to an additional Commitment and the date
on which such increase is to be effective (the "Commitment Increase
Date"), which shall be a Business Day at least three Business Days after
delivery of such notice and at least 30 days prior to the Commitment
Termination Date; provided that:
(A) the minimum amount of the Commitment of any Assuming
Lender, and the minimum amount of the increase of the Commitment of
any Increasing Lender, as part of such Commitment Increase shall be
$25,000,000 or a larger multiple of $5,000,000 in excess thereof;
(B) immediately after giving effect to such Commitment
Increase, the total Commitments of all of the Lenders hereunder
shall not exceed $500,000,000;
(C) each Assuming Lender shall be consented to by the
Administrative Agent and the Issuing Bank (each such consent not to
be unreasonably withheld or delayed);
-40-
(D) no Default shall have occurred and be continuing on such
Commitment Increase Date or shall result from the proposed
Commitment Increase; and
(E) the representations and warranties contained in this
Agreement shall be true and correct on and as of the Commitment
Increase Date as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as
of a specific date, as of such specific date).
(ii) Effectiveness of Commitment Increase by Borrower. Each Assuming
Lender, if any, shall become a Lender hereunder as of such Commitment
Increase Date and the Commitment of the respective Class of any
Increasing Lender and such Assuming Lender shall be increased as of such
Commitment Increase Date; provided that:
(x) the Administrative Agent shall have received on or prior to
12:00 noon, New York City time, on such Commitment Increase Date (or
on or prior to a time on an earlier date specified by the
Administrative Agent) a certificate of a duly authorized officer of
the Borrower stating that each of the applicable conditions to such
Commitment Increase set forth in the foregoing paragraph (i) has
been satisfied; and
(y) each Assuming Lender or Increasing Lender shall have
delivered to the Administrative Agent, on or prior to 12:00 noon,
New York City time, on such Commitment Increase Date (or on or prior
to a time on an earlier date specified by the Administrative Agent),
an agreement, in form and substance satisfactory to the Borrower and
the Administrative Agent, pursuant to which such Lender shall,
effective as of such Commitment Increase Date, undertake a
Commitment or an increase of Commitment in each case of the
respective Class, duly executed by such Assuming Lender and the
Borrower and acknowledged by the Administrative Agent.
Promptly following satisfaction of such conditions, the Administrative
Agent shall notify the Lenders of such Class (including any Assuming
Lenders) thereof and of the occurrence of the Commitment Increase Date by
facsimile transmission or electronic messaging system.
(iii) Commitments of Assuming Lenders. From and after the time at
which the total Commitments of all the Lenders hereunder exceed
$300,000,000, an amount equal to 50% of any Commitment of any Lender
other than an Initial Lender proposed pursuant to paragraph (i) shall
ratably reduce the respective Commitment of each Initial Lender, provided
that the total reductions of an Initial Lender's Commitment pursuant to
this paragraph (iii) shall not exceed $25,000,000.
-41-
(iv) Recordation into Register. Upon its receipt of an agreement
referred to in clause (ii)(y) above executed by an Assuming Lender or any
Increasing Lender, together with the certificate referred to in clause
(ii)(x) above, the Administrative Agent shall, if such agreement has been
completed, (x) accept such agreement, (y) record the information
contained therein in the Register and (z) give prompt notice thereof to
the Borrower.
(v) Adjustments of Borrowings upon Effectiveness of Increase. On the
Commitment Increase Date, the Borrower shall (A) prepay the outstanding
Loans (if any) of the affected Class in full, (B) simultaneously borrow
new Loans of such Class hereunder 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 Lender
will be subsequently borrowed from such Lender and (y) the existing
Lenders, the Increasing Lenders and the Assuming 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 Increase and, with respect to the
Initial Lenders, any decrease in Commitments pursuant to paragraph (iii))
and (C) pay to the Lenders of such Class the amounts, if any, payable
under Section 2.15 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 as so increased (or, with respect to the
Initial Lenders, decreased).
SECTION 2.09. Repayment of Loans; Evidence of Debt.
(a) Repayment. The Borrower hereby unconditionally promises to pay the
Loans of each Class as follows:
(i) to the Administrative Agent for account of the Lenders of such
Class the outstanding principal amount of the Syndicated Loans of such
Class on the Commitment Termination Date;
(ii) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan of such Class denominated in Dollars, on the earlier
of the Commitment Termination Date and the first date after such
Swingline Loan is made that is the 15th or last day of a calendar month
and is at least ten Business Days after such Swingline Loan is made;
provided that on each date that a Syndicated Borrowing of such Class is
made, the Borrower shall repay all Swingline Loans of such Class then
outstanding; and
(iii) to the Swingline Lender the then unpaid principal amount of
each Swingline Loan of such Class denominated in a Foreign Currency, on
the earlier
-42-
of the Commitment Termination Date and the fifth Business Day after such
Swingline Loan is made.
In addition, on the Commitment Termination Date, the Borrower shall
deposit into the Letter of Credit Collateral Account Cash in an amount equal
to 102% of the undrawn face amount of all Letters of Credit outstanding on the
close of business on the Commitment Termination Date, such deposit to be held
by the Administrative Agent as collateral security for the LC Exposure under
this Agreement in respect of the undrawn portion of such Letters of Credit.
(b) Manner of Payment. Prior to any repayment or prepayment of any
Borrowings of any Class hereunder, the Borrower shall select the Borrowing or
Borrowings of such Class to be paid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 12:00
noon, New York City time, three Business Days before the scheduled date of
such repayment; provided that each repayment of Borrowings of a Class shall be
applied to repay any outstanding ABR Borrowings of such Class before any other
Borrowings of such Class. If the Borrower fails to make a timely selection of
the Borrowing or Borrowings to be repaid or prepaid, such payment shall be
applied, first, to pay any outstanding ABR Borrowings of the applicable Class
and, second, to other Borrowings of such Class in the order of the remaining
duration of their respective Interest Periods (the Borrowing with the shortest
remaining Interest Period to be repaid first). Each payment of a Syndicated
Borrowing shall be applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Records by Lenders. Each Lender shall maintain in
accordance with its usual practice records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts and Currency of principal and interest payable and paid
to such Lender from time to time hereunder.
(d) Maintenance of Records by the Administrative Agent. The
Administrative Agent shall maintain records in which it shall record (i) the
amount and Currency of each Loan made hereunder, the Class and Type thereof
and each Interest Period therefor, (ii) the amount and Currency of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender of such Class hereunder and (iii) the amount and
Currency of any sum received by the Administrative Agent hereunder for account
of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the records maintained
pursuant to paragraph (c) or (d) of this Section shall be prima facie
evidence, absent obvious error, of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such records or any error therein shall not
in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans of any Class made
by it be evidenced by a promissory note. In such event, the Borrower shall
-43-
prepare, execute and deliver to such Lender a promissory note payable to such
Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the payee named therein
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, subject to
the requirements of this Section.
(b) Mandatory Prepayments due to Changes in Exchange Rates.
(i) Determination of Amount Outstanding. On each Quarterly Date and,
in addition, promptly upon the receipt by the Administrative Agent of a
Currency Valuation Notice (as defined below), the Administrative Agent
shall determine the aggregate Revolving Multicurrency Credit Exposure.
For the purpose of this determination, the outstanding principal amount
of any Loan that is denominated in any Foreign Currency shall be deemed
to be the Dollar Equivalent of the amount in the Foreign Currency of such
Loan, determined as of such Quarterly Date or, in the case of a Currency
Valuation Notice received by the Administrative Agent prior to 11:00
a.m., New York City time, on a Business Day, on such Business Day or, in
the case of a Currency Valuation Notice otherwise received, on the first
Business Day after such Currency Valuation Notice is received. Upon
making such determination, the Administrative Agent shall promptly notify
the Multicurrency Lenders and the Borrower thereof.
(ii) Prepayment. If, on the date of such determination the aggregate
Revolving Multicurrency Credit Exposure exceeds 105% of the aggregate
amount of the Multicurrency Commitments as then in effect, the Borrower
shall, if requested by the Required Multicurrency Lenders (through the
Administrative Agent), prepay the Syndicated Multicurrency Loans and
Swingline Multicurrency Loans (and/or provide cover for Multicurrency LC
Exposure as specified in Section 2.05(k)) within 15 Business Days
following the Borrower's receipt of such request in such amounts as shall
be necessary so that after giving effect thereto the aggregate Revolving
Multicurrency Credit Exposure does not exceed the Multicurrency
Commitments.
For purposes hereof, "Currency Valuation Notice" means a notice given by the
Required Multicurrency Lenders to the Administrative Agent stating that such
notice is a "Currency Valuation Notice" and requesting that the Administrative
Agent determine the aggregate Revolving Multicurrency Credit Exposure. The
Administrative Agent shall not be required to make more than one valuation
determination pursuant to Currency Valuation Notices within any rolling
one-month period.
-44-
Any prepayment pursuant to this paragraph shall be applied, first, to
Swingline Multicurrency Loans outstanding, second, to Syndicated Multicurrency
Loans outstanding and third, as cover for Multicurrency LC Exposure.
(c) Mandatory Prepayments due to Borrowing Base Deficiency. In the event
that at any time any Borrowing Base Deficiency shall exist, the Borrower shall
prepay the Loans (or provide cover for Letters of Credit as contemplated by
Section 2.05(k)) or reduce Other Covered Indebtedness in such amounts as shall
be necessary so that such Borrowing Base Deficiency is immediately cured;
provided that (i) the aggregate amount of such prepayment of Loans (and cover
for Letters of Credit) shall be at least equal to the Revolving Credit
Exposure's ratable share of the aggregate prepayment and reduction of Other
Covered Indebtedness and (ii) if, within five Business Days after delivery of
a Borrowing Base Certificate demonstrating such Borrowing Base Deficiency
(and/or at such other times as the Borrower has knowledge of such Borrowing
Base Deficiency), the Borrower shall present the Administrative Agent a plan
reasonably feasible in the opinion of the Administrative Agent to enable such
Borrowing Base Deficiency to be cured within 30 Business Days (which
30-Business Day period shall include the five Business Days permitted for
delivery of such plan), then such prepayment or reduction shall not be
required to be effected immediately but may be effected in accordance with
such plan (with such modifications as the Borrower may reasonably determine
and as are reasonably acceptable to the Administrative Agent), so long as such
Borrowing Base Deficiency is cured within such 30-Business Day period.
(d) Mandatory Prepayments due to Non-Approved Change in Investment
Policies. In the event that at any time the Borrower or any of its
Subsidiaries shall amend, change, supplement or otherwise modify the
Investment Policies in a manner that is, or that could reasonably be expected
to be, material and adverse to the Lenders (and, for the avoidance of doubt,
without the Borrower or such Subsidiary having obtained the consent referred
to in clause (ii) of the proviso to the definition of Investment Policies),
the Borrower shall prepay the Loans then outstanding in full, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder; provided that no prepayment shall be required to the extent
such amendment, change, supplement or modification is mandated by provisions
of the Investment Company Act applicable to the Borrower and its Subsidiaries.
(e) Notices, Etc. The Borrower shall notify the Administrative Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurocurrency Borrowing, not later than 12:00 noon, New York
City time (or, in the case of a Borrowing denominated in a Foreign Currency,
12:00 noon, London time), three Business Days before the date of prepayment,
(ii) in the case of prepayment of a Syndicated ABR Borrowing, not later than
12:00 noon, New York City time, on the date of prepayment, (iii) in the case
of prepayment of a Swingline Loan denominated in Dollars, not later than 12:00
noon, New York City time, on the date of prepayment or (iv) in the case of a
prepayment of a Swingline Loan denominated in a Foreign Currency, not later
than 1:00 p.m., London time, on the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date, the principal amount of
each
-45-
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of prepayment is given in connection
with a conditional notice of termination of the Commitments of a Class as
contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice relating to a Syndicated
Borrowing, the Administrative Agent shall advise the affected Lenders of the
contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required
amount of a mandatory prepayment. Each prepayment of a Syndicated Borrowing of
a Class shall be applied ratably to the Loans of such Class included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12 and shall be made in the manner specified in
Section 2.09(b).
SECTION 2.11. Fees.
(a) Commitment Fee. The Borrower agrees to pay to the Administrative
Agent for account of each Lender a commitment fee, which shall accrue at a
rate per annum equal to 0.175% on the average daily unused amount of the
Dollar Commitment and Multicurrency Commitment, as applicable, of such Lender
during the period from and including the date hereof to but excluding the
earlier of the date such Commitment terminates and the Commitment Termination
Date. Accrued commitment fees shall be payable within one Business Day after
each Quarterly Date and on the earlier of the date the Commitments of the
respective Class terminate and the Commitment Termination Date, commencing on
the first such date to occur after the date hereof. All commitment fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). For purposes of computing commitment fees, the Commitment of any Class
of a Lender shall be deemed to be used to the extent of the outstanding
Syndicated Loans and LC Exposure of such Class of such Lender (and the
Swingline Exposure of such Class of such Lender shall be disregarded for such
purpose).
(b) Letter of Credit Fees. The Borrower agrees to pay (i) to the
Administrative Agent for account of each Lender a participation fee with
respect to its participations in Letters of Credit of each Class, which shall
accrue at a rate per annum equal to the Applicable Margin applicable to
interest on Eurocurrency Loans on the average daily amount of such Lender's LC
Exposure of such Class (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Commitment of such Class terminates and the date on which such Lender ceases
to have any LC Exposure of such Class, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well
as the Issuing Bank's standard fees with respect to
-46-
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees
accrued through and including each Quarterly Date shall be payable on the
third Business Day following such Quarterly Date, commencing on the first such
date to occur after the Effective Date; provided that all such fees with
respect to the Letters of Credit of a Class shall be payable on the date on
which the Commitments of such Class terminate and any such fees accruing after
the date on which such Commitments terminate shall be payable on demand. Any
other fees payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) Administrative Agent Fees. The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent.
(d) Payment of Fees. All fees payable hereunder shall be paid on the
dates due, in Dollars and immediately available funds, to the Administrative
Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances absent obvious error.
SECTION 2.12. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing (including each
Swingline Loan denominated in Dollars) shall bear interest at a rate per annum
equal to the Alternate Base Rate plus the Applicable Margin; provided that in
the case of Swingline Loans such interest rate shall be reduced by 0.175% per
annum (such amount being the commitment fee rate payable pursuant to Section
2.11(a)).
(b) Eurocurrency Loans. The Loans constituting each Eurocurrency
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the related Interest Period for such Borrowing plus the Applicable
Margin.
(c) Foreign Currency Swingline Loans. Swingline Loans denominated in
Foreign Currencies shall bear interest at a rate per annum agreed between the
Borrower and the Swingline Lender at the time the respective Swingline Loans
are made (which rate shall be calculated net of 0.175% per annum (such amount
being the commitment fee rate payable pursuant to Section 2.11(a))); provided
that if any such Loan shall continue outstanding for more than five Business
Days, such Loan shall be deemed automatically converted into a Eurocurrency
Loan held solely by the Swingline Lender with consecutive Interest Periods of
one-month's duration.
(d) Default Interest. Notwithstanding the foregoing, if any principal of
or interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration,
by mandatory prepayment or otherwise, such overdue amount shall bear interest,
after as well as before
-47-
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided above
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided in paragraph (a) of this Section.
(e) Payment of Interest. Accrued interest on each Loan shall be payable
in arrears on each Interest Payment Date for such Loan in the Currency in
which such Loan is denominated and, in the case of Syndicated Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of a
Syndicated ABR Loan prior to the Commitment Termination Date), accrued
interest on the principal amount repaid or prepaid shall be payable on the
date of such repayment or prepayment and (iii) in the event of any conversion
of any Eurocurrency Borrowing denominated in Dollars prior to the end of the
Interest Period therefor, accrued interest on such Borrowing shall be payable
on the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on the basis of
a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of
the Interest Period for any Eurocurrency Borrowing of a Class (the Currency of
such Borrowing herein called the "Affected Currency"):
(a) the Administrative Agent determines (which
determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate for the Affected Currency for such Interest
Period; or
(b) the Administrative Agent is advised by the Required
Lenders of such Class that the Adjusted LIBO Rate for the
Affected Currency for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or
maintaining their respective Loans included in such Borrowing
for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the affected Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and such
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Syndicated
Borrowing to, or the continuation of any Syndicated Borrowing as, a
Eurocurrency Borrowing denominated in the Affected Currency shall be
-48-
ineffective and, if the Affected Currency is Dollars, such Syndicated
Borrowing (unless prepaid) shall be continued as, or converted to, a
Syndicated ABR Borrowing, (ii) if the Affected Currency is Dollars and any
Borrowing Request requests a Eurocurrency Borrowing denominated in Dollars,
such Borrowing shall be made as a Syndicated ABR Borrowing and (iii) if the
Affected Currency is a Foreign Currency, any Borrowing Request that requests a
Eurocurrency Borrowing denominated in the Affected Currency shall be
ineffective.
SECTION 2.14. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurocurrency Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lenders of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
the Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or the Issuing Bank, as
the case may be, in Dollars, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Bank determines
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender's or the Issuing Bank's
capital or on the capital of such Lender's or the Issuing Bank's holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Swingline Loans and Letters of Credit held by, such Lender,
or the Letters of Credit issued by the Issuing Bank, to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies and the policies of
such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), by an amount deemed to be material by such Lender or Issuing Bank,
then from time to time the Borrower will pay to such Lender or the Issuing
Bank, as the case may be, in Dollars, such additional amount or amounts as
will compensate such Lender or the Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered.
-49-
(c) Certificates from Lenders. A certificate of a Lender or the Issuing
Bank setting forth the amount or amounts, in Dollars, necessary to compensate
such Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be promptly delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender or the Issuing Bank, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to demand
such compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than six months prior to the date
that such Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the six-month
period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurocurrency Loan other than on the last day of an
Interest Period therefor (including as a result of an Event of Default), (b)
the conversion of any Eurocurrency Loan other than on the last day of an
Interest Period therefor, (c) the failure to borrow, convert, continue or
prepay any Syndicated Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be
revocable under Section 2.10(e) and is revoked in accordance herewith), or (d)
the assignment as a result of a request by the Borrower pursuant to Section
2.18(b) of any Eurocurrency Loan other than on the last day of an Interest
Period therefor, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event (excluding in
any event, loss of anticipated profits). In the case of a Eurocurrency Loan,
the loss to any Lender attributable to any such event shall be deemed to
include an amount determined by such Lender to be equal to the excess, if any,
of
(i) the amount of interest that such Lender would pay for a
deposit equal to the principal amount of such Loan denominated in
the Currency of such Loan for the period from the date of such
payment, conversion, failure or assignment to the last day of the
then current Interest Period for such Loan (or, in the case of a
failure to borrow, convert or continue, the duration of the Interest
Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were
equal to the Adjusted LIBO Rate for such Currency for such Interest
Period, over
(ii) the amount of interest that such Lender would earn on such
principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be
bid by such Lender (or an
-50-
affiliate of such Lender) for deposits denominated in such Currency
from other banks in the eurocurrency market at the commencement of
such period.
Payment under this Section shall be made upon request of a Lender delivered
not later than five Business Days following the payment, conversion, or
failure to borrow, convert, continue or prepay that gives rise to a claim
under this Section accompanied by a certificate of such Lender setting forth
the amount or amounts that such Lender is entitled to receive pursuant to this
Section, which certificate shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.16. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any
other Loan Document shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if
the Borrower shall be required to deduct any Indemnified Taxes or
Other Taxes from such payments, then (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) the Administrative Agent, Lender or Issuing Bank (as
the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) Payment of Other Taxes by the Borrower. In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Bank for, and within 10
Business Days after written demand therefor, pay the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the
-51-
return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in
which the Borrower is located, or any treaty to which such jurisdiction is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law, if
requested by the Borrower or the Administrative Agent, as will permit such
payments to be made without withholding or at a reduced rate of withholding.
In addition, any Foreign Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent as will enable the Borrower or the Administrative Agent to determine
whether or not such Foreign Lender is subject to backup withholding or
information reporting requirements.
In addition, upon reasonable request of the Borrower or the
Administrative Agent, each Foreign Lender shall deliver such forms promptly
upon the expiration or invalidity of any form previously delivered by such
Foreign Lender, provided it is legally able to do so at the time.
(f) Treatment of Certain Refunds. If the Administrative Agent, any Lender
or an Issuing Bank determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section with respect to the Taxes or
Other Taxes giving rise to such refund), net of all reasonable out-of-pocket
expenses of the Administrative Agent, any Lender or an Issuing Bank, as the
case may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that
the Borrower, upon the request of the Administrative Agent, any Lender or an
Issuing Bank, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, any Lender or an Issuing Bank in the
event the Administrative Agent, any Lender or an Issuing Bank is required to
repay such refund to such Governmental Authority. This subsection shall not be
construed to require the Administrative Agent, any Lender or an Issuing Bank
to make available its tax returns or its books or records (or any other
information relating to its taxes that it deems confidential) to the Borrower
or any other Person.
-52-
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) Payments by the Borrower. The Borrower shall make each payment
required to be made by it hereunder (whether of principal, interest, fees or
reimbursement of LC Disbursements, or under Section 2.14, 2.15 or 2.16, or
otherwise) or under any other Loan Document (except to the extent otherwise
provided therein) prior to 2:00 p.m., Local Time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at the Administrative Agent's
Account, except as otherwise expressly provided in the relevant Loan Document
and except payments to be made directly to the Issuing Bank or the Swingline
Lender as expressly provided herein and payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03, which shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received
by it for account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that
is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension.
All amounts owing under this Agreement (including commitment fees,
payments required under Section 2.14, and payments required under Section 2.15
relating to any Loan denominated in Dollars, but not including principal of,
and interest on, any Loan denominated in any Foreign Currency or payments
relating to any such Loan required under Section 2.15, which are payable in
such Foreign Currency) or under any other Loan Document (except to the extent
otherwise provided therein) are payable in Dollars. Notwithstanding the
foregoing, if the Borrower shall fail to pay any principal of any Loan when
due (whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), the unpaid portion of such Loan shall, if such Loan is not
denominated in Dollars, automatically be redenominated in Dollars on the due
date thereof (or, if such due date is a day other than the last day of the
Interest Period therefor, on the last day of such Interest Period) in an
amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such principal shall be payable on demand; and if the
Borrower shall fail to pay any interest on any Loan that is not denominated in
Dollars, such interest shall automatically be redenominated in Dollars on the
due date therefor (or, if such due date is a day other than the last day of
the Interest Period therefor, on the last day of such Interest Period) in an
amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such interest shall be payable on demand.
(b) Application of Insufficient Payments. If at any time insufficient
funds are received by and available to the Administrative Agent to pay fully
all amounts of principal, unreimbursed LC Disbursements, interest and fees of
a Class then due hereunder, such funds shall be applied (i) first, to pay
interest and fees of such Class then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts
-53-
of interest and fees of such Class then due to such parties, and (ii) second,
to pay principal and unreimbursed LC Disbursements of such Class then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements of such Class then due
to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein:
(i) each Syndicated Borrowing of a Class shall be made from the Lenders of
such Class, each payment of commitment fee under Section 2.11 shall be made
for account of the Lenders of the applicable Class, and each termination or
reduction of the amount of the Commitments of a Class under Section 2.08 shall
be applied to the respective Commitments of the Lenders of such Class, pro
rata according to the amounts of their respective Commitments of such Class;
(ii) each Syndicated Borrowing of a Class shall be allocated pro rata among
the Lenders of such Class according to the amounts of their respective
Commitments of such Class (in the case of the making of Syndicated Loans) or
their respective Loans of such Class that are to be included in such Borrowing
(in the case of conversions and continuations of Loans); (iii) each payment or
prepayment of principal of Syndicated Loans of a Class by the Borrower shall
be made for account of the Lenders of such Class pro rata in accordance with
the respective unpaid principal amounts of the Syndicated Loans of such Class
held by them; and (iv) each payment of interest on Syndicated Loans of a Class
by the Borrower shall be made for account of the Lenders of such Class pro
rata in accordance with the amounts of interest on such Loans of such Class
then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender of any Class shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment
in respect of any principal of or interest on any of its Syndicated Loans, or
participations in LC Disbursements or Swingline Loans, of such Class resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount of its Syndicated Loans, and participations in LC Disbursements and
Swingline Loans, and accrued interest thereon of such Class then due than the
proportion received by any other Lender of such Class, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Syndicated Loans, and participations in LC Disbursements
and Swingline Loans, of other Lenders of such Class to the extent necessary so
that the benefit of all such payments shall be shared by the Lenders of such
Class ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Syndicated Loans, and participations in
LC Disbursements and Swingline Loans, of such Class; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise
-54-
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall have
received notice from the Borrower prior to the date on which any payment is
due to the Administrative Agent for account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or the Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender shall
fail to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(e), 2.06(b) or 2.17(e), then the Administrative Agent may, in
its discretion (notwithstanding any contrary provision hereof), apply any
amounts thereafter received by the Administrative Agent for account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests
compensation under Section 2.14, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.16, then such Lender shall use reasonable
efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another
of its offices, branches or affiliates, if, in the judgment of such Lender,
such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.14 or 2.16, as the case may be, in the future and (ii)
would not subject such Lender to any cost or expense not required to be
reimbursed by the Borrower and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.14, or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.16, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such
-55-
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Issuing Bank and the Swingline Lender), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in
LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.14 or
payments required to be made pursuant to Section 2.16, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required of the Borrower or such Subsidiary, as applicable.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
the Borrower's corporate powers and have been duly authorized by all necessary
corporate action and, if required, by all necessary shareholder action. This
Agreement has been duly executed and delivered by the Borrower and
constitutes, and each of the other Loan Documents when executed and delivered
will constitute, 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).
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except for (i) such as have been
or will be obtained or made and are in full force and effect and (ii) filings
and recordings in respect of the Liens created pursuant to the Security
Documents, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of
-56-
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default in any material respect
under any indenture, agreement or other instrument binding upon the Borrower
or any of its Subsidiaries or assets, or give rise to a right thereunder to
require any payment to be made by any such Person, and (d) except for the
Liens created pursuant to the Security Documents, will not result in the
creation or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) Financial Statements. The Borrower has heretofore delivered to the
Lenders the following financial statements:
(i) the audited consolidated statement of assets and liabilities and
statements of operations, changes in net assets and cash flows of the
Borrower and its Subsidiaries as of and for the fiscal year ended
December 31, 2005, reported on by Deloitte & Touche LLP, independent
public accountants, in the form of the report of the Borrower to the SEC
on Form 10-K for such year; and
(ii) the unaudited interim consolidated statement of assets and
liabilities and statements of operations, changes in net assets and cash
flows of the Borrower and its Subsidiaries as of and for the three-and
six-month periods ended, respectively, March 31, 2006 and June 30, 2006,
in the form of the report of the Borrower to the SEC on Form 10-Q for
such periods, in each case certified by a Financial Officer of the
Borrower.
Such financial statements present fairly, in all material respects, the
consolidated financial position and results of operations and cash flows of
the Borrower and its Subsidiaries as of such dates and for such periods in
accordance with GAAP, subject, in the case of such interim statements, to
year-end audit adjustments and the absence of footnotes.
(b) No Material Adverse Change. Since the date of the most recent
Applicable Financial Statements, there has not been any event, development or
circumstance (herein, a "Material Adverse Change") that has had or could
reasonably be expected to have a material adverse effect on (i) the business,
Portfolio Investments and other assets, liabilities and financial condition of
the Borrower taken as a whole (excluding in any case a decline in the net
asset value of the Borrower or a change in general market conditions or values
of the Borrower's Portfolio Investments), or (ii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Administrative Agent and the Lenders thereunder.
SECTION 3.05. Litigation.
(a) Actions, Suits and Proceedings. There are no actions, suits,
investigations or proceedings by or before any arbitrator or Governmental
Authority now pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) that could
reasonably be expected, individually or
-57-
in the aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that involve this Agreement or the Transactions.
(b) Disclosed Matters. Since the date of this Agreement, there has been
no change in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.06. Compliance with Laws and Agreements. (a) Each of the
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries is subject to any contract or other
arrangement, the performance of which by the Borrower could reasonably be
expected to result in a Material Adverse Effect.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (w) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (x)
has become subject to any Environmental Liability, (y) has received notice of
any claim with respect to any Environmental Liability or (z) knows of any
basis for any Environmental Liability.
SECTION 3.07. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all material Tax returns and reports required to
have been filed and has paid or caused to be paid all material Taxes required
to have been paid by it, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which such Person has set aside on
its books adequate reserves or (b) to the extent that the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.08. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.09. Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower to
the Lenders in connection with the negotiation of this Agreement and the other
Loan Documents or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements
-58-
therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.
SECTION 3.10. Investment Company Act; Margin Regulations.
(a) Status as Business Development Company. The Borrower is a company
that has elected to be regulated as a "business development company" within
the meaning of the Investment Company Act and qualifies as a RIC.
(b) Compliance with Investment Company Act. The business and other
activities of the Borrower and its Subsidiaries, including the making of the
Loans hereunder, the application of the proceeds and repayment thereof by the
Borrower and the consummation of the Transactions contemplated by the Loan
Documents do not result in a violation or breach in any material respect of
the applicable provisions of the Investment Company Act or any rules,
regulations or orders issued by the SEC thereunder.
(c) Investment Policies. The Borrower is in compliance with its
Investment Policies, except to the extent that the failure to so comply could
not reasonably be expected to be material and adverse to the Lenders.
(d) Use of Credit. Neither the Borrower nor any of its Subsidiaries 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, and no part of the proceeds of any
extension of credit hereunder will be used to buy or carry any Margin Stock.
SECTION 3.11. Material Agreements and Liens.
(a) Material Agreements. As of the Effective Date, Part A of Schedule II
is a complete and correct list of each outstanding credit agreement, loan
agreement, indenture, purchase agreement, guarantee, letter of credit or other
arrangement providing for or otherwise relating to any Indebtedness or any
extension of credit (or commitment for any extension of credit) to, or
guarantee by, the Borrower or any of its Subsidiaries, and the aggregate
principal or face amount outstanding or that is, or may become, outstanding
under each such arrangement is correctly described in Part A of Schedule II.
(b) Liens. As of the Effective Date, Part B of Schedule II is a complete
and correct list of each Lien (other than Permitted Liens) securing
outstanding Indebtedness of any Person covering any property of the Borrower
or any of its Subsidiaries, and the aggregate Indebtedness secured (or that
may be secured) by each such Lien and the property covered by each such Lien
is correctly described in Part B of Schedule II.
-59-
SECTION 3.12. Subsidiaries and Investments.
(a) Subsidiaries. As of the Effective Date, the Borrower has no
Subsidiaries.
(b) Investments. As of the Effective Date, set forth in Schedule IV is a
complete and correct list of all Investments (other than Investments of the
types referred to in clauses (b), (c) and (d) of Section 6.04) held by the
Borrower or any of its Subsidiaries in any Person and, for each such
Investment, (x) the identity of the Person or Persons holding such Investment
and (y) the nature of such Investment. Except as disclosed in Schedule IV, as
of the Effective Date each of the Borrower and its Subsidiaries owns, free and
clear of all Liens (other than Liens created pursuant to the Security
Documents), all such Investments.
SECTION 3.13. Properties.
(a) Title Generally. Each of the Borrower and its Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property
material to its business, except for minor defects in title that do not
interfere with its ability to conduct its business as currently conducted or
to utilize such properties for their intended purposes.
(b) Intellectual Property. Each of the Borrower and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the use thereof
by the Borrower and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.14. Affiliate Agreements. As of the date hereof, the Borrower
has heretofore delivered to each of the Lenders true and complete copies of
each of the Affiliate Agreements (including and schedules and exhibits
thereto, and any amendments, supplements or waivers executed and delivered
thereunder). As of the date of hereof, each of the Affiliate Agreements is in
full force and effect.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. The effectiveness of this Agreement and of
the obligations of the Lenders to make Loans and of the Issuing Bank to issue
Letters of Credit hereunder shall not become effective until the date on which
the Administrative Agent shall have received each of the following documents,
each of which shall be satisfactory to the Administrative Agent (and to the
extent specified below, to each Lender) in form and substance (or such
condition shall have been waived in accordance with Section 9.02):
-60-
(a) Executed Counterparts. From each party hereto either (i) a
counterpart of this Agreement 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 Agreement) that such party has
signed a counterpart of this Agreement.
(b) Opinion of Counsel to the Borrower. A favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective
Date) 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).
(c) Corporate Documents. 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 the Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
(d) Officer's Certificate. A certificate, dated the Effective Date and
signed by the President, a Vice President or a Financial Officer of the
Borrower, confirming compliance with the conditions set forth in the lettered
clauses of the first sentence of Section 4.02.
(e) Liens. Results of a recent lien search in each relevant jurisdiction
with respect to the Borrower, confirming the priority of the Liens in favor of
the Collateral Agent created pursuant to the Security Documents and revealing
no liens on any of the assets of the Borrower or its Subsidiaries except for
liens permitted under Section 6.02 or liens to be discharged on or prior to
the Effective Date pursuant to documentation satisfactory to the
Administrative Agent.
(f) Collateral and Guarantee Agreement. The Collateral and Guarantee
Requirement shall have been satisfied and the Administrative Agent shall have
received a completed Perfection Certificate dated the Effective Date and
signed by a Financial Officer or legal officer of the Borrower, together with
all attachments contemplated thereby, including the results of a search of the
Uniform Commercial Code (or equivalent) filings made with respect to the
Obligors in the jurisdictions contemplated by the Perfection Certificate and
copies of the financing statements (or similar documents) disclosed by such
search and evidence reasonably satisfactory to the Administrative Agent that
the Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been or will contemporaneously with the
initial funding of Loans on the Effective Date be released.
(g) Perfection of Security Interests. The Collateral Agent shall have
received executed copies of (i) a securities account control agreement between
the
-61-
Collateral Agent , the Custodian (as defined in the Guarantee and Security
Agreement) and the Borrower and (ii) a bailee letter and acknowledgement by
the Collateral Agent acknowledged and agreed to by the Custodian, each
satisfactory to the Administrative Agent.
(h) Other Documents. Such other documents as the Administrative Agent or
any Lender or special New York counsel to Citibank may reasonably request.
The effectiveness of this Agreement and of the obligation of each Lender
to make its initial extension of credit hereunder is also subject to the
payment by the Borrower of 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 Agreement and the other Loan Documents and the
extensions of credit hereunder (to the extent that statements for such fees
and expenses have been delivered to the Borrower).
Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective unless, in addition to the satisfaction of the conditions set
forth above in this Section, this Agreement shall have been entered into on or
prior to 3:00 p.m. (or such later time as the Administrative Agent may, in its
sole discretion, agree), New York City time, on December 31, 2006. The
Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to make
any Loan, and of the Issuing Bank to issue, amend, renew or extend any Letter
of Credit, is additionally subject to the satisfaction of the following
conditions:
(a) the representations and warranties of the Borrower set forth in this
Agreement and in the other Loan Documents shall be 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 such Loan or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, or, as to any such representation or warranty
that refers to a specific date, as of such specific date;
(b) at the time of and immediately after giving effect to such Loan or
the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default shall have occurred and be continuing; and
(c) either (i) the aggregate Covered Debt Amount (after giving effect to
such extension of credit) shall not exceed the Borrowing Base reflected on the
Borrowing Base Certificate most recently delivered to the Administrative Agent
or (ii) the Borrower shall have delivered an updated Borrowing Base
Certificate
-62-
demonstrating that the Covered Debt Amount (after giving effect to such
extension of credit) shall not exceed the Borrowing Base after giving effect
to such extension of credit as well as any concurrent acquisitions of
Portfolio Investments or payment of outstanding Loans or Other Covered
Indebtedness.
Each Borrowing and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in the
preceding sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been
paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower, the
audited consolidated statement of assets and liabilities and related
statements of operations, changes in net assets and cash flows of the Borrower
and its Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by Deloitte & Touche LLP or other independent public accountants
of recognized national standing to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied; provided that the
requirements set forth in this clause (a) may be fulfilled by providing to the
Administrative Agent and the Lenders the report of the Borrower to the SEC on
Form 10-K for the applicable fiscal year;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, the consolidated statement of
assets and liabilities and related statements of operations, changes in net
assets and cash flows of the Borrower and its Subsidiaries as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for (or, in the
case of the statement of assets and liabilities, as of the end of) the
corresponding period or periods of the previous fiscal year, all certified by
a Financial Officer of the Borrower as presenting fairly in all material
respects the financial condition and results of operations of the Borrower and
its Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the
-63-
absence of footnotes; provided that the requirements set forth in this clause
(b) may be fulfilled by providing to the Lenders the report of the Borrower to
the SEC on Form 10-Q for the applicable quarterly period;
(c) concurrently with any delivery of financial statements under clause
(a) or (b) of this Section, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether the Borrower has knowledge that a
Default has occurred and, if a Default has occurred, specifying the details
thereof and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations demonstrating compliance
with Sections 6.01, 6.02, 6.04, 6.05 and 6.07 and (iii) stating whether any
material change in GAAP as applied by (or in the application of GAAP by) the
Borrower has occurred since the date of the most recent audited financial
statements delivered pursuant to Section 5.01(a) and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) as soon as available and in any event not later than the last
Business Day of the calendar month following each monthly accounting period
(ending on the last day of each calendar month) of the Borrower and its
Subsidiaries, a Borrowing Base Certificate as at the last day of such
accounting period;
(e) promptly but no later than five Business Days after the Borrower
shall at any time have knowledge that there is a Borrowing Base Deficiency, a
Borrowing Base Certificate as at the date the Borrower has knowledge of such
Borrowing Base Deficiency indicating the amount of the Borrowing Base
Deficiency as at the date the Borrower obtained knowledge of such deficiency
and the amount of the Borrowing Base Deficiency as of the date not earlier
than one Business Day prior to the date the Borrowing Base Certificate is
delivered pursuant to this paragraph;
(f) promptly upon receipt thereof, copies of all significant reports
submitted by the Borrower's independent public accountants in connection with
each annual, interim or special audit or review of any type of the financial
statements or related internal control systems of the Borrower or any of its
Subsidiaries delivered by such accountants to the management or Board of
Directors of the Borrower;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any of its Subsidiaries with the SEC, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or
with any national securities exchange, as the case may be;
(h) promptly following any request therefor, on and after the
effectiveness of the Pension Act, copies of (i) any documents described in
Section 502(k) of the Code that the Borrower or any of its ERISA Affiliates
may request
-64-
with respect to any Multiemployer Plan and (ii) any notices described in
Section 502(l) of the Code that the Borrower or any of its ERISA Affiliates
may request with respect to any Plan or Multiemployer Plan; provided that if
the Borrower or its ERISA Affiliates have not requested such documents or
notices from the administrator or sponsor of the applicable Plan or
Multiemployer Plan, Borrower or its ERISA Affiliates shall promptly make a
request for such documents or notices from the such administrator or sponsor
and shall provide copies of such documents and notices promptly after receipt
thereof; and
(i) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries, or compliance with the terms of this
Agreement and the other Loan Documents, as the Administrative Agent or
any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any of its Affiliates that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result
in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement
of a Financial Officer or other executive officer of the Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and
the rights, licenses, permits, privileges and franchises material to the
conduct of its business; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section
6.03.
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including tax liabilities
and material contractual obligations, that, if not paid, could reasonably be
expected to result in
-65-
a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will,
and will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such
risks as are customarily maintained by companies engaged in the same or
similar businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection and Audit Rights.
(a) Books and Records; Inspection Rights. The Borrower will, and will
cause each of its Subsidiaries to, keep, or cause to be kept, books of record
and account in accordance with GAAP. The Borrower will, and will cause each of
its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested, provided that the Borrower or such Subsidiary shall be
entitled to have its representatives and advisors present during any
inspection of its books and records.
(b) Audit Rights. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by Administrative Agent
(including any consultants, accountants, lawyers and appraisers retained by
the Administrative Agent) to conduct evaluations and appraisals of the
Borrower's computation of the Borrowing Base and the assets included in the
Borrowing Base, all at such reasonable times and as often as reasonably
requested. The Borrower shall pay the reasonable fees and expenses of any
representatives retained by the Administrative Agent to conduct any such
evaluation or appraisal; provided that the Borrower shall not be required to
pay such fees and expenses for more than one such evaluation or appraisal
during any calendar year unless an Event of Default has occurred and is
continuing at the time of any subsequent evaluation or appraisal during such
calendar year. The Borrower also agrees to modify or adjust the computation of
the Borrowing Base to the extent required by the Administrative Agent or the
Required Lenders as a result of any such evaluation or appraisal, provided
that if the Borrower demonstrates that such evaluation or appraisal is
incorrect, the Borrower shall be permitted to re-adjust its computation of the
Borrowing Base.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations,
including the
-66-
applicable provisions of the Investment Company Act and all Environmental
Laws, and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
Without limiting the generality of the foregoing, the Borrower will, and will
cause its Subsidiaries to, conduct its business and other activities in
compliance in all material respects with the applicable provisions of the
Investment Company Act (including, without limiting the foregoing, Section
18(a)(1)(A) and any applicable "asset coverage" maintenance requirement) and
any applicable rules, regulations or orders issued by the SEC thereunder.
SECTION 5.08. Certain Obligations Respecting Subsidiaries; Further
Assurances.
(a) New Subsidiaries. In the event that the Borrower or any of its
Subsidiaries shall form or acquire any new Subsidiary the Borrower will cause
the Collateral and Guarantee Requirement with respect to any Equity Interest
in or Indebtedness of such Subsidiary owned by or on behalf of any Obligor to
be satisfied with respect to such Subsidiary. If such new Subsidiary (other
than a Financing Subsidiary) is or shall become an Obligor, the Borrower will
cause the entire Collateral and Guarantee Requirement to be satisfied by and
with respect to such Subsidiary.
(b) Further Assurances. (i) The Borrower will, and will cause each of the
Subsidiary Guarantors to, take such action from time to time as shall
reasonably be requested by the Administrative Agent to effectuate the purposes
and objectives of this Agreement. Without limiting the generality of the
foregoing, the Borrower will, and will cause each of the Subsidiary Guarantors
to, take such action from time to time as may be required under any applicable
law, or that the Administrative Agent or the Required Lenders may reasonably
request, to cause the Collateral and Guarantee Requirement to be and remain
satisfied, all at the expense of the Obligors. The Borrower also agrees to
provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.
(ii) The Borrower shall provide the Administrative Agent with a copy
of any amendment, supplement or modification to the Portfolio Pricing
Practices as soon as practicable after its adoption and accompanied by a
copy of a resolution (if any) of the Board of Directors of the Borrower
that such amendment, supplement or modification has been approved by the
Borrower.
SECTION 5.09. Use of Proceeds. The Borrower will use the proceeds of the
Loans only for general corporate purposes of the Borrower in the ordinary
course of business, including the acquisition and funding (either directly or
through one or more wholly-owned Subsidiaries) of secured and unsecured
leveraged loans, mezzanine loans, high-yield securities, convertible
securities, preferred stock, common stock and other Portfolio Investments;
provided that neither the Administrative Agent nor any Lender shall have any
responsibility as to the use of any of such proceeds. No part of the proceeds
of any Loan will be used in violation of applicable law or, directly or
indirectly,
-67-
for the purpose, whether immediate, incidental or ultimate, of buying or
carrying any Margin Stock. Margin Stock shall be purchased by the Obligors
only with the proceeds of Indebtedness not directly or indirectly secured by
Margin Stock, or with the proceeds of equity capital of the Borrower.
SECTION 5.10. Status of RIC and BDC. The Borrower shall at all times
maintain its status as a RIC under the Code, and as a "business development
company" under the Investment Company Act.
SECTION 5.11. Investment Policies. The Borrower shall at all times be in
compliance with its Investment Policies, except to the extent that the failure
to so comply could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.12. Portfolio Valuation and Diversification, Etc.
(a) Industry Classification Groups. For purposes of this Agreement, the
Borrower shall in its reasonable determination assign each Portfolio
Investment to an Industry Classification Group. To the extent that any
Portfolio Investment is not correlated with the risks of other Portfolio
Investments in an Industry Classification Group established by ▇▇▇▇▇'▇, such
Portfolio Investment may be assigned by the Borrower to the Industry
Classification Group that is most closely correlated to such Portfolio
Investment. In the absence of any correlation, the Borrower shall be
permitted, upon notice to the Administrative Agent and each Lender to create
up to three additional industry classification groups for purposes of this
Agreement.
(b) Portfolio Valuation, Etc.
(i) Settlement Date Basis. Solely for purposes of determining the
Borrowing Base, all determinations of whether an investment is to be
included as a Portfolio Investment shall be determined on a
settlement-date basis (meaning that any investment that has been
purchased will not be treated as a Portfolio Investment until such
purchase has settled, and any Portfolio Investment which has been sold
will not be excluded as a Portfolio Investment until such sale has
settled), provided that to the extent that any investment has not been
paid for in full, only the portion thereof that has been paid for in full
and with respect to which the Borrower has ownership rights in the
investment and the power to transfer rights in the investment shall be
included as a Portfolio Investment. For the avoidance of doubt, this
paragraph (b)(i) is not intended to require the Borrower to reflect
investment transactions on a settlement-date basis in any financial
statements or books of record or other documents required to be prepared
in accordance with GAAP if doing so would cause such financial
statements, books of record or other documents to fail to be in
accordance with GAAP.
(ii) Determination of Values. The Borrower shall determine the
values of its Portfolio Investments in accordance with its Portfolio
Pricing Practices. Solely for purposes of determining the Borrowing Base,
the Value of any
-68-
Portfolio Investment of the Borrower and its Subsidiaries shall be
increased by the net unrealized gain as at the date such Value is
determined of any Hedging Agreement entered into to hedge risks
associated with such Portfolio Investment and reduced by the net
unrealized loss as at such date of any such Hedging Agreement (such net
unrealized gain or net unrealized loss, on any date, to be equal to the
aggregate amount receivable or payable under the related Hedging
Agreement if the same were terminated on such date).
(A) Unquoted Investments--External Review. With respect to each
Portfolio Investment for which market quotation(s) are not readily
available, the Borrower shall request an Approved Third-Party
Appraiser to assist the Board of Directors of the Borrower in
determining the fair market value of such Portfolio Investment, as
at the last day of each fiscal quarter, provided that
(x) the Value of any such Portfolio Investment (i.e., a
Portfolio Investment for which market quotations are not
readily available) acquired during a fiscal quarter shall be
deemed to be no more than the cost of such Portfolio Investment
until such time as the fair market value of such Portfolio
Investment is determined in accordance with the foregoing
provisions of this sub-clause (A) as at the last day of such
fiscal quarter or, as applicable, fiscal year;
(y) notwithstanding the foregoing, the Board of Directors
of the Borrower may determine the fair market value of any such
Portfolio Investment (i.e., a Portfolio Investment for which
market quotation(s) are not readily available) in accordance
with the Portfolio Pricing Practices (and without the
assistance of an Approved Third-Party Appraiser); provided that
for purposes of calculating the Borrowing Base:
(i) the combined aggregate Value of all First-Tier
Non-Appraised Portfolio Investments and Second-Tier
Non-Appraised Portfolio Investments shall not at any time
exceed 10% of the Borrowing Base, and the Borrowing Base
shall be reduced to the extent such combined aggregate
Value would otherwise exceed 10% of the Borrowing Base;
(ii) the aggregate Value of all Second-Tier
Non-Appraised Portfolio Investments shall not at any time
exceed 5% of the Borrowing Base, and the Borrowing Base
shall be reduced to the extent such aggregate Value would
otherwise exceed 5% of the Borrowing Base; and
(iii) the Value of any Disqualified Non-Appraised
Portfolio Investment shall be deemed to be zero.
-69-
(B) Internal Review. The Borrower shall conduct internal
reviews of all Portfolio Investments at least once each calendar
week which shall take into account any events of which the Borrower
has knowledge that adversely affect the value of the Portfolio
Investments. If the value of any Portfolio Investment as most
recently determined by the Borrower pursuant to this Section
5.12(b)(ii)(B) is lower than the value of such Portfolio Investment
as most recently determined pursuant to Section 5.12(b)(ii)(A), such
lower value shall be deemed to be the "Value" of such Portfolio
Investment for purposes hereof;
(C) Failure to Determine Values. If the Borrower shall fail to
determine the value of any Portfolio Investment for which market
quotation(s) are not readily available as at any date pursuant to
the requirements of the foregoing sub-clauses (A) or (B), then the
"Value" of such Portfolio Investment as at such date shall be deemed
to be zero.
For purposes of the foregoing, the following terms have the following
meanings:
"Non-Appraised Portfolio Investment" means, with respect to any fiscal
quarter, any Portfolio Investment for which market quotation(s) are not
readily available and for which the fair market value thereof was determined
by the Board of Directors as at the last day of such fiscal quarter without
the assistance of an Approved Third-Party Appraiser.
"First-Tier Non-Appraised Portfolio Investment" means any Non-Appraised
Portfolio Investment from and after the end of the first full fiscal quarter
following the later of (i) the end of the most recent fiscal quarter as of
which the fair market value of such investment was determined with the
assistance of an Approved Third Party Appraiser and (ii) the end of the fiscal
quarter in which such investment was first included as a Portfolio Investment,
other than a Second-Tier Non-Appraised Portfolio Investment or a Disqualified
Non-Appraised Portfolio Investment.
"Second-Tier Non-Appraised Portfolio Investment" means any Non-Appraised
Portfolio Investment from and after the end of the second full fiscal quarter
following the later of (i) the end of the most recent fiscal quarter as of
which the fair market value of such investment was determined with the
assistance of an Approved Third Party Appraiser and (ii) the end of the fiscal
quarter in which such investment was first included as a Portfolio Investment.
"Disqualified Non-Appraised Portfolio Investment" means any Non-Appraised
Portfolio Investment from and after the end of the fourth full fiscal quarter
following the later of (i) the end of the most recent fiscal quarter as of
which the fair market value of such investment was determined with the
assistance of an Approved Third Party Appraiser and (ii) the end of the fiscal
quarter in which such investment was first included as a Portfolio Investment.
-70-
The determination of whether any Portfolio Investment is a Non-Appraised
Portfolio Investment, First-Tier Non-Appraised Portfolio Investment,
Second-Tier Non-Appraised Portfolio Investment or Disqualified Non-Appraised
Portfolio Investment as at the last day of any fiscal quarter shall be
effective as at such last day and continue in effect to but excluding the last
day of the next fiscal quarter. Such determination need not be made until on
or prior to the date upon which the financial statements for such fiscal
quarter are delivered or required to be delivered, whichever is earlier,
pursuant to Section 5.01(a) or (b), as applicable.
Notwithstanding the foregoing, determinations as to whether a Non-Appraised
Portfolio Investment held as of the date hereof is a First-Tier Non-Appraised
Portfolio Investment, a Second-Tier Non-Appraised Portfolio Investment or a
Disqualified Non-Appraised Portfolio Investment, shall, with respect to clause
(ii) of each such definition, be calculated with respect to the fiscal quarter
in which such investment was first acquired by the Borrower.
(c) Diversification Requirements. The Borrower will, and will cause its
Subsidiaries (other than Financing Subsidiaries that are exempt from the
provisions of the Code applicable to RIC's), subject to applicable grace
periods set forth in the Code, to comply with the portfolio diversification
and similar requirements set forth in the Code applicable to RIC's.
SECTION 5.13. Calculation of Borrowing Base. For purposes of this
Agreement, the "Borrowing Base" shall be determined, as at any date of
determination, as the sum of the Advance Rates of the Value of each Portfolio
Investment (excluding any cash held by the Administrative Agent pursuant to
Section 2.05(k)), provided that:
(a) the Advance Rate applicable to that portion of the aggregate Value of
the Portfolio Investments of all issuers in a consolidated group of
corporations or other entities, in accordance with GAAP, that exceeds 10% of
Shareholders' Equity of the Borrower (which, for purposes of this calculation
shall exclude the aggregate amount of investments in, and advances to,
Financing Subsidiaries) shall be 50% of the Advance Rate otherwise applicable;
(b) the Advance Rate applicable to that portion of the aggregate Value of
the Portfolio Investments of all issuers in a consolidated group of
corporations or other entities, exceeding 20% of Shareholders' Equity of the
Borrower (which, for purposes of this calculation shall exclude the aggregate
amount of investments in, and advances to, Financing Subsidiaries) shall be
0%;
(c) the portion of the Borrowing Base attributable to common equity,
warrants and Non-Performing Portfolio Investments shall not exceed 30% of the
Covered Debt Amount and the Borrowing Base shall be reduced to the extent such
portion would otherwise exceed 30% of the Covered Debt Amount;
(d) the Advance Rate applicable to that portion of the aggregate Value of
the Portfolio Investments in any single Industry Classification Group that
-71-
exceeds 20% of Shareholders' Equity of the Borrower (which for purposes of
this calculation shall exclude the aggregate amount of investments in, and
advances to, Financing Subsidiaries) shall be 0%; provided that, with respect
to the Portfolio Investments in a single Industry Classification Group from
time to time designated by the Borrower to the Administrative Agent, such 20%
figure shall be increased to 30% and, accordingly, only to the extent that the
Value for such single Industry Classification Group exceeds 30% of the
Shareholders' Equity shall the Advance Rate applicable to such excess Value be
0%;
(e) no Portfolio Investment may be included in the Borrowing Base until
such time as such Portfolio Investment has been Delivered (as defined in the
Guarantee and Security Agreement) to the Collateral Agent, and then only for
so long as such Portfolio Investment continues to be Delivered as contemplated
therein; and
(f) to the extent that more than one Advance Rate is applicable to any
particular Portfolio Investment, the Borrower may apply the highest of such
Advance Rates to the Value of such Portfolio Investment for purposes of
determining the Borrowing Base.
As used herein, the following terms have the following meanings:
"Advance Rate" means, as to any Portfolio Investment and subject to
adjustment as provided in Section 5.13(a) and (c), the following percentages
with respect to such Portfolio Investment:
Portfolio Investment Quoted Unquoted
------------------- ------ --------
Cash, Cash Equivalents and
Short-Term U.S. Government Securities 100% n.a.
Long-Term U.S. Government Securities 95% n.a.
Other Short-Term Securities 92% n.a.
Performing First Lien Bank Loans 90% 80%
Performing Second Lien Bank Loans 80% 70%
Performing Unsecured Bank Loans 75% 65%
Performing Cash Pay High Yield Securities 70% 60%
Performing Cash Pay Mezzanine Investments 65% 55%
Performing Non-Cash Pay High Yield Securities 60% 50%
Performing Non-Cash Pay Mezzanine Investments 55% 45%
Non-Performing First Lien Bank Loans 65% 55%
Non-Performing Second Lien Bank Loans 55% 45%
Non-Performing Unsecured Bank Loans 50% 40%
Non-Performing High Yield Securities 50% 40%
Non-Performing Mezzanine Investments 50% 40%
Performing Common Equity 50% 40%
Non-Performing Common Equity 25% 0%
-72-
"Bank Loans" means debt obligations (including, without limitation, term
loans, revolving loans, debtor-in-possession financings, the funded and
unfunded portion of revolving credit lines and letter of credit facilities and
other similar loans and investments including interim loans and senior
subordinated loans) which are generally under a syndicated loan or credit
facility.
"Capital Stock" of any Person means any and all shares of corporate stock
(however designated) of, and any and all other equity interests and
participations representing ownership interests (including membership
interests and limited liability company interests) in, such Person.
"Cash" has the meaning assigned to such term in Section 1.01 of the
Credit Agreement.
"Cash Equivalents" has the meaning assigned to such term in Section 1.01
of the Credit Agreement.
"First Lien Bank Loan" means a Bank Loan that is entitled to the benefit
of a first lien and first priority perfected security interest on a
substantial portion of the assets of the respective borrower and guarantors
obligated in respect thereof.
"High Yield Securities" means debt Securities and Preferred Stock, in
each case (a) issued by public or private issuers, (b) issued pursuant to an
effective registration statement or pursuant to Rule 144A under the Securities
Act (or any successor provision thereunder) and (c) that are not Cash
Equivalents, Mezzanine Investments or Bank Loans.
"Long-Term U.S. Government Securities" means U.S. Government Securities
maturing more than one year from the applicable date of determination.
"Mezzanine Investments" means debt Securities (including convertible debt
Securities (other than the "in-the-money" equity component thereof)) and
Preferred Stock in each case (a) issued by public or private issuers, (b)
issued without registration under the Securities Act, (c) not issued pursuant
to Rule 144A under the Securities Act (or any successor provision thereunder),
(d) that are not Cash Equivalents and (e) contractually subordinated in right
of payment to other debt of the same issuer.
"Non-Performing Common Equity" means Capital Stock (other than Preferred
Stock) and warrants of an issuer having any debt outstanding that is
non-Performing.
"Non-Performing First Lien Bank Loans" means First Lien Bank Loans other
than Performing First Lien Bank Loans.
"Non-Performing High Yield Securities" means High Yield Securities other
than Performing High Yield Securities.
-73-
"Non-Performing Mezzanine Investments" means Mezzanine Investments other
than Performing Mezzanine Investments.
"Non-Performing Second Lien Bank Loans" means Second Lien Bank Loans
other than Performing Second Lien Bank Loans.
"Non-Performing Unsecured Bank Loans" are Unsecured Bank Loans, other
than Performing Unsecured Bank Loans.
"Other Short-Term Securities" means debt Securities maturing within one
year from the date of acquisition and having, at such date of acquisition a
credit rating of at least A-2 from S&P or at least P-2 from ▇▇▇▇▇'▇, in each
case that are not Cash Equivalents or Short-Term U.S. Government Securities.
"Performing" means (a) with respect to any Portfolio Investment that is
debt, the issuer of such Portfolio Investment is not in default of any payment
obligations in respect thereof, after the expiration of any applicable grace
period and (b) with respect to any Portfolio Investment that is Preferred
Stock, the issuer of such Portfolio Investment has not failed to meet any
scheduled redemption obligations or to pay its latest declared cash dividend,
after the expiration of any applicable grace period.
"Performing Cash Pay High Yield Securities" means High Yield Securities
(a) as to which, at the time of determination, not less than 2/3rds of the
interest (including accretions and "pay-in-kind" interest) for the current
monthly, quarterly, semi-annual or annual period (as applicable) is payable in
cash and (b) which are Performing.
"Performing Cash Pay Mezzanine Investments" means Mezzanine Investments
(a) as to which, at the time of determination, not less than 2/3rds of the
interest (including accretions and "pay-in-kind" interest) for the current
monthly, quarterly, semi-annual or annual period (as applicable) is payable in
cash and (b) which are Performing.
"Performing Common Equity" means Capital Stock (other than Preferred
Stock) and warrants of an issuer all of whose outstanding debt is Performing.
"Performing First Lien Bank Loans" means First Lien Bank Loans which are
Performing.
"Performing Non-Cash Pay High Yield Securities" means Performing High
Yield Securities other than Performing Cash Pay High Yield Securities.
"Performing Non-Cash Pay Mezzanine Investments" means Performing
Mezzanine Investments other than Performing Cash Pay Mezzanine Investments.
"Performing Second Lien Bank Loans" means Second Lien Bank Loans which
are Performing.
-74-
"Performing Unsecured Bank Loans" means Unsecured Bank Loans which are
Performing.
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding
up of such Person, to any shares (or other interests) of other Capital Stock
of such Person, and shall include, without limitation, cumulative preferred,
non-cumulative preferred, participating preferred and convertible preferred
Capital Stock.
"Second Lien Bank Loan" means a Bank Loan that is entitled to the benefit
of a second lien and second priority perfected security interest on a
substantial portion of the assets of the respective borrower and guarantors
obligated in respect thereof.
"Securities" means common and preferred stock, units and participations,
member interests in limited liability companies, partnership interests in
partnerships, notes, bonds, debentures, trust receipts and other obligations,
instruments or evidences of indebtedness, including debt instruments of public
and private issuers and tax-exempt securities (including warrants, rights, put
and call options and other options relating thereto, representing rights, or
any combination thereof) and other property or interests commonly regarded as
securities or any form of interest or participation therein, but not including
Bank Loans.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Short-Term U.S. Government Securities" means U.S. Government Securities
maturing within one year of the applicable date of determination.
"U.S. Government Securities" has the meaning assigned to such term in
Section 1.01 of the Credit Agreement.
"Unsecured Bank Loan" means a Bank Loan other than a First Lien Bank Loan
or a second Lien Bank Loan.
"Value" means, with respect to any Portfolio Investment, the value as
determined pursuant to Section 5.12(b)(ii).
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full
and all
-75-
Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. Indebtedness. The Borrower will not, nor will it permit any
of its Subsidiaries to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Secured Longer-Term Indebtedness and Unsecured Longer-Term
Indebtedness in an aggregate amount that (i) taken together with other
then-outstanding Indebtedness, does not exceed the amount required to comply
with the provisions of Section 6.07(b) and (ii) in the case of Secured
Longer-Term Indebtedness, taken together with Indebtedness permitted under
clauses (a) and (g) of this Section 6.01 does not exceed the Borrowing Base;
(c) Other Permitted Indebtedness;
(d) Indebtedness of Financing Subsidiaries;
(e) repurchase obligations arising in the ordinary course of business
with respect to U.S. Government Securities;
(f) obligations payable to clearing agencies, brokers or dealers in
connection with the purchase or sale of securities in the ordinary course of
business;
(g) Secured Shorter-Term Indebtedness and Unsecured Shorter-Term
Indebtedness in an aggregate amount (determined at the time of the incurrence
of such Indebtedness) not exceeding 5% of Shareholders' Equity and that (i)
taken together with other then-outstanding Indebtedness, does not exceed the
amount required to comply with the provisions of Section 6.07(b) and (ii)
taken together with Indebtedness permitted under clause (a), and Secured
Longer-Term Indebtedness permitted under clause (b), of this Section 6.01,
does not exceed the Borrowing Base; and
(h) obligations (including Guarantees) in respect of Standard
Securitization Undertakings.
SECTION 6.02. Liens. The Borrower will not, nor will it permit any of its
Subsidiaries to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:
(a) any Lien on any property or asset of the Borrower existing on the
date hereof and set forth in Part B of Schedule II, provided that (i) no such
Lien shall extend to any other property or asset of the Borrower or any of its
Subsidiaries and (ii) any such Lien shall secure only those obligations which
it
-76-
secures on the date hereof and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(b) Liens created pursuant to the Security Documents;
(c) Liens securing obligations of Financing Subsidiaries;
(d) Liens on Special Equity Interests included in the Portfolio
Investments of the Borrower but only to the extent securing obligations in the
manner provided in the definition of "Special Equity Interests" in Section
1.01;
(e) Liens securing Indebtedness or other obligations in an aggregate
principal amount not exceeding $10,000,000 at any one time outstanding (which
may cover Portfolio Investments, but only to the extent released from the Lien
in favor of the Collateral Agent in accordance with the requirements of
Section 10.03 of the Guarantee and Security Agreement), so long as at the time
thereof the aggregate amount of Indebtedness permitted under clauses (a), (b)
and (g) of Section 6.01, does not exceed the lesser of (i) the Borrowing Base
and (ii) the amount required to comply with the provisions of Section 6.07(b);
and
(f) Permitted Liens.
SECTION 6.03. Fundamental Changes. The Borrower will not, nor will it
permit any of its Subsidiaries (other than Financing Subsidiaries) to,
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution). The Borrower will not, nor will it permit any of its
Subsidiaries (other than Financing Subsidiaries) to, enter into any
transaction of merger or consolidation or amalgamation, or acquire any
business or property from, or capital stock of, or be a party to any
acquisition of, any Person, except for purchases or acquisitions of Portfolio
Investments and other assets in the normal course of the day-to-day business
activities of the Borrower and its Subsidiaries and not in violation of the
terms and conditions of this Agreement or any other Loan Document. The
Borrower will not, nor will it permit any of its Subsidiaries (other than
Financing Subsidiaries) to, convey, sell, lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, any part of its assets,
whether now owned or hereafter acquired, but excluding (x) assets sold or
disposed of in the ordinary course of business (including to make expenditures
of cash and dispositions of investments in connection with exits and work-outs
in the normal course of the day-to-day business activities of the Borrower and
its Subsidiaries) and (y) subject to the provisions of clause (d) below,
Portfolio Investments (to the extent not otherwise included in clause (x) of
this Section).
Notwithstanding the foregoing provisions of this Section:
(a) any Subsidiary Guarantor of the Borrower may be merged or
consolidated with or into the Borrower or any other Subsidiary Guarantor;
provided that (i) at the time thereof and after giving effect thereto, no
Default shall have occurred or be continuing, (ii) if any such transaction
shall be between a Subsidiary Guarantor and a wholly owned Subsidiary
Guarantor, the wholly owned Subsidiary Guarantor shall be the continuing or
surviving corporation and
-77-
(iii) if any such transaction shall be between the Borrower and a Subsidiary
Guarantor, the Borrower shall be the continuing or surviving corporation;
(b) any Subsidiary of the Borrower may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or otherwise)
to the Borrower or any wholly owned Subsidiary Guarantor of the Borrower;
(c) the capital stock of any Subsidiary of the Borrower may be sold,
transferred or otherwise disposed of to the Borrower or any wholly owned
Subsidiary Guarantor of the Borrower;
(d) the Obligors may sell, transfer or otherwise dispose of Portfolio
Investments to a Financing Subsidiary so long as (i) after giving effect to
such release (and any concurrent acquisitions of Portfolio Investments or
payment of outstanding Loans or Other Covered Indebtedness) the Covered Debt
Amount does not exceed the Borrowing Base and the Borrower delivers a
certificate of a Financial Officer to such effect to the Administrative Agent
and (ii) either (x) the amount of any excess availability under the Borrowing
Base immediately prior to such release is not diminished as a result of such
release or (y) the Borrowing Base immediately after giving effect to such
release is at least 110% of the Covered Debt Amount;
(e) the Borrower or any Subsidiary may merge or consolidate with any
other Person so long as at the time thereof and after giving effect thereto,
no Default shall have occurred or be continuing and provided that (i) if any
such transaction shall be between the Borrower and another Person, the
Borrower shall be the continuing or surviving corporation, (ii) if any such
transaction shall be between a wholly-owned Subsidiary Guarantor and another
Person (other than the Borrower), a wholly owned Subsidiary Guarantor shall be
the continuing or surviving corporation and (iii) if any such transaction
shall be between a Subsidiary Guarantor and another Person (other than the
Borrower or a wholly-owned Subsidiary Guarantor), a Subsidiary Guarantor shall
be the continuing or surviving corporation; and
(f) the Borrower and its Subsidiaries may sell, lease, transfer or
otherwise dispose of equipment or other property or assets that do not consist
of Portfolio Investments so long as the aggregate amount of all such sales,
leases, transfer and dispositions does not exceed $10,000,000 in any fiscal
year.
SECTION 6.04. Investments. The Borrower will not, nor will it permit any
of its Subsidiaries to, acquire, make or enter into, or hold, any Investments
except:
(a) operating deposit accounts with banks;
(b) Investments by the Borrower and the Subsidiary Guarantors in the
Borrower and the Subsidiary Guarantors;
-78-
(c) Hedging Agreements entered into in the ordinary course of the
Borrower's and its Subsidiaries' financial planning and not for speculative
purposes;
(d) Portfolio Investments by the Borrower and its Subsidiaries to the
extent such Portfolio Investments are permitted under the provisions of the
Investment Company Act applicable to business development companies and the
Borrower's Investment Policies;
(e) Investments in Financing Subsidiaries; and
(f) additional Investments up to but not exceeding $10,000,000 in the
aggregate.
For purposes of clause (f) of this Section, the aggregate amount of an
Investment at any time shall be deemed to be equal to (A) the aggregate amount
of cash, together with the aggregate fair market value of property, loaned,
advanced, contributed, transferred or otherwise invested that gives rise to
such Investment minus (B) the aggregate amount of dividends, distributions or
other payments received in cash in respect of such Investment, provided that
in no event shall the aggregate amount of such Investment be deemed to be less
than zero; the amount of an Investment shall not in any event be reduced by
reason of any write-off of such Investment nor increased by any increase in
the amount of earnings retained in the Person in which such Investment is made
that have not been dividended, distributed or otherwise paid out.
SECTION 6.05. Restricted Payments. The Borrower will not, nor will it
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except that the Borrower may
declare and pay:
(a) dividends with respect to the capital stock of the Borrower to the
extent payable in additional shares of the Borrower's common stock;
(b) dividends and distributions in either case in cash or other property
(excluding for this purpose the Borrower's common stock) in any taxable year
of the Borrower in amounts not to exceed the amount that is estimated in good
faith by the Borrower to be required to (i) reduce to zero for such taxable
year or for the previous taxable year, its investment company taxable income
(within the meaning of section 852(b)(2) of the Code), and reduce to zero the
tax imposed by section 852(b)(3) of the Code, and (ii) avoid federal excise
taxes for such taxable year imposed by section 4982 of the Code;
(c) dividends and distributions in each case in cash or other property
(excluding for this purpose the Borrower's common stock) in addition to the
dividends and distributions permitted under the foregoing clauses (a) and (b),
so long as on the date of such Restricted Payment and after giving effect
thereto:
(i) no Default shall have occurred and be continuing; and
-79-
(ii) the aggregate amount of Restricted Payments made during any
taxable year of the Borrower after the date hereof under this clause (c)
shall not exceed the sum of (x) an amount equal to 10% of the taxable
income of the Borrower for such taxable year determined under section
852(b)(2) of the Code, but without regard to subparagraphs (A), (B) or
(D) thereof, minus (y) the amount, if any, by which dividends and
distributions made during such taxable year pursuant to the foregoing
clause (b) (whether in respect of such taxable year or the previous
taxable year) based upon the Borrower's estimate of taxable income
exceeded the actual amounts specified in subclauses (i) and (ii) of such
foregoing clause (b) for such taxable year.
(d) other Restricted Payments so long as (i) on the date of such other
Restricted Payment and after giving effect thereto (x) the Covered Debt Amount
does not exceed 90% of the Borrowing Base and (y) no Default shall have
occurred and be continuing and (ii) on the date of such other Restricted
Payment the Borrower delivers to the Administrative Agent and each Lender a
Borrowing Base Certificate as at such date demonstrating compliance with
subclause (x) after giving effect to such Restricted Payment. For purposes of
preparing such Borrowing Base Certificate, (A) the fair market value of
Portfolio Investments for which market quotations are readily available shall
be the most recent quotation available for such Portfolio Investment and (B)
the fair market value of Portfolio Investments for which market quotations are
not readily available shall be the Value set forth in the Borrowing Base
Certificate most recently delivered by the Borrower to the Administrative
Agent and the Lenders pursuant to Section 5.01(d); provided that the Borrower
shall reduce the Value of any Portfolio Investment referred to in this
subclause (B) to the extent necessary to take into account any events of which
the Borrower has knowledge that adversely affect the value of such Portfolio
Investment.
Nothing herein shall be deemed to prohibit the payment of Restricted
Payments by any Subsidiary of the Borrower to the Borrower or to any other
Subsidiary Guarantor.
SECTION 6.06. Certain Restrictions on Subsidiaries. The Borrower will not
permit any of its Subsidiaries (other than Financing Subsidiaries) to enter
into or suffer to exist any indenture, agreement, instrument or other
arrangement that prohibits or restrains, in each case in any material respect,
or imposes materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances, guarantees or Investments or the sale,
assignment, transfer or other disposition of property.
SECTION 6.07. Certain Financial Covenants.
(a) Minimum Shareholders' Equity. The Borrower will not permit
Shareholders' Equity at the last day of any fiscal quarter of the Borrower to
be less than the greater of (i) 40% of the total assets of the Borrower and
its Subsidiaries as at the last
-80-
day of such fiscal quarter (determined on a consolidated basis, without
duplication, in accordance with GAAP) and (ii) $300,000,000 plus 25% of the
net proceeds of the sale of Equity Interests by the Borrower and its
Subsidiaries after the Effective Date.
(b) Asset Coverage Ratio. The Borrower will not permit the Asset Coverage
Ratio to be less than 2.00 to 1 at any time.
(c) Liquidity Test. The Borrower will not permit the aggregate Value of
the Portfolio Investments that can be converted to Cash in fewer than 10
Business Days without more than a 5% change in price (as determined by the
Borrower in its reasonable discretion) to be less than 10% of the Covered Debt
Amount for more than 30 Business Days during any period when the Adjusted
Covered Debt Balance is greater than 90% of the Adjusted Borrowing Base.
SECTION 6.08. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, enter into any material
transactions with any of its Affiliates, even if otherwise permitted under
this Agreement, except (a) transactions in the ordinary course of business at
prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm's-length basis from unrelated
third parties, (b) transactions between or among the Borrower and its
Subsidiaries not involving any other Affiliate, (c) Restricted Payments
permitted by Section 6.05, (d) the transactions provided in the Affiliate
Agreements, (e) transactions described on Schedule V, (f) any Investment that
results in the creation of an Affiliate and (g) Permitted Board-Approved
Affiliate Transactions.
SECTION 6.09. Lines of Business. The Borrower will not, nor will it
permit any of its Subsidiaries to, engage to any material extent in any
business other than in accordance with its Investment Policies.
SECTION 6.10. No Further Negative Pledge. The Borrower will not, and will
not permit any of its Subsidiaries (other than Financing Subsidiaries) to,
enter into any agreement, instrument, deed or lease which prohibits or limits
the ability of any Obligor to create, incur, assume or suffer to exist any
Lien upon any of its properties, assets or revenues, whether now owned or
hereafter acquired, or which requires the grant of any security for an
obligation if security is granted for another obligation, except the
following: (a) this Agreement and the other Loan Documents; (b) covenants in
documents creating Liens permitted by Section 6.02 prohibiting further Liens
on the assets encumbered thereby; (c) customary restrictions contained in
leases not subject to a waiver; and (d) any other agreement that does not
restrict in any manner (directly or indirectly) Liens created pursuant to the
Loan Documents on any Collateral securing the "Secured Obligations" under and
as defined in the Guarantee and Security Agreement and does not require the
direct or indirect granting of any Lien securing any Indebtedness or other
obligation by virtue of the granting of Liens on or pledge of property of any
Obligor secure the Loans or any Hedging Agreement.
-81-
SECTION 6.11. Modifications of Longer-Term Documents. Without the prior
consent of the Administrative Agent (with the approval of the Required
Lenders), the Borrower will not consent to any modification, supplement or
waiver of:
(a) any of the provisions of any agreement, instrument or other document
evidencing or relating to any Secured Longer-Term Indebtedness or Unsecured
Longer-Term Indebtedness that would result in such Indebtedness not meeting
the requirements of the definition of "Secured Longer-Term Secured
Indebtedness" and "Unsecured Longer-Term Indebtedness", as applicable, set
forth in Section 1.01 of this Agreement, unless (i) in the case of Secured
Longer-Term Indebtedness, such Indebtedness would have been permitted to be
incurred as Secured Shorter-Term Indebtedness at the time of such
modification, supplement or waiver and the Borrower so designates such
Indebtedness as "Secured Shorter-Term Indebtedness" (whereupon such
Indebtedness shall be deemed to constitute "Secured Shorter-Term Indebtedness"
for all purposes of this Agreement) and (ii) in the case of Unsecured
Longer-Term Indebtedness, such Indebtedness would have been permitted to be
incurred as Unsecured Shorter-Term Indebtedness at the time of such
modification, supplement or waiver and the Borrower so designates such
Indebtedness as "Unsecured Shorter-Term Indebtedness" (whereupon such
Indebtedness shall be deemed to constitute "Unsecured Shorter-Term
Indebtedness" for all purposes of this Agreement) or
(b) any material provision of any of the Affiliate Agreements (other than
any Permitted Board-Approved Affiliate Transaction), unless such modification,
supplement or waiver is not less favorable to the Borrower than could be
obtained on an arm's-length basis from unrelated third parties.
SECTION 6.12. Payments of Longer-Term Indebtedness. The Borrower will
not, nor will it permit any of its Subsidiaries (other than Financing
Subsidiaries) to, purchase, redeem, retire or otherwise acquire for value, or
set apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any
voluntary payment or prepayment of the principal of or interest on, or any
other amount owing in respect of, any Secured Longer-Term Indebtedness or
Unsecured Longer-Term Indebtedness (other than the refinancing of Secured
Longer-Term Indebtedness or Unsecured Longer-Term Indebtedness with
Indebtedness permitted under Section 6.01), except for (a) regularly scheduled
payments, prepayments or redemptions of principal and interest in respect
thereof required pursuant to the instruments evidencing such Indebtedness, or
(b) payments and prepayments of Secured Longer-Term Indebtedness required to
comply with requirements of Section 2.10(c).
-82-
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur and be
continuing:
(a) the Borrower shall (i) fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable (in the case of clause (e) below, subject to
applicable cure periods), whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise or (ii) fail to deposit any amount into
the Letter of Credit Collateral Account as required by Section 2.09(a) on the
Commitment Termination Date;
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or under any other Loan Document, when
and as the same shall become due and payable, and such failure shall continue
unremedied for a period of five or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any of its Subsidiaries in or in connection with this
Agreement or any other Loan Document or any amendment or modification hereof
or thereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any
other Loan Document or any amendment or modification hereof or thereof, shall
prove to have been incorrect when made or deemed made in any material respect;
(d) the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in (i) Section 5.03 (with respect to the Borrower's
existence) or Section 5.08(a) or in Article VI or any Obligor shall default in
the performance of any of its obligations contained in Section 7 of the
Guarantee and Security Agreement or (ii) Sections 5.01(e) and (f) or 5.02 and
such failure shall continue unremedied for a period of five or more days after
notice thereof by the Administrative Agent (given at the request of any
Lender) to the Borrower;
(e) a Borrowing Base Deficiency shall occur and continue unremedied for a
period of five or more Business Days after delivery of a Borrowing Base
Certificate demonstrating such Borrowing Base Deficiency pursuant to Section
5.01(e); provided that it shall not be an Event of Default hereunder if the
Borrower shall present the Administrative Agent with a plan reasonably
feasible in the opinion of the Administrative Agent (with the approval of the
Required Lenders) to enable such Borrowing Base Deficiency to be cured within
30 Business Days (which 30-Business Day period shall include the five Business
-83-
Days permitted for delivery of such plan), so long as such Borrowing Base
Deficiency is cured within such 30-Business Day period;
(f) the Borrower or any Obligor, as applicable, shall fail to observe or
perform any covenant, condition or agreement contained in this Agreement
(other than those specified in clause (a), (b), (d) or (e) of this Article) or
any other Loan Document and such failure shall continue unremedied for a
period of 30 or more days after notice thereof from the Administrative Agent
(given at the request of any Lender) to the Borrower; provided that no Event
of Default shall exist as a result of the -------- Borrower's failure to
deliver copies of the reports described in Section 5.01(f) to the
Administrative Agent or any Lender if (i) the Borrower's independent public
accountants require, as a condition to the Administrative Agent's or such
Lender's receipt of such reports, that the Administrative Agent and/or such
Lender execute a release, indemnification or similar agreement and (ii) the
Administrative Agent or such Lender refuse to execute such agreement;
(g) the Borrower or any of its Subsidiaries shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and
payable;
(h) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its
or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (h) shall not apply to
secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(i) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any of its Subsidiaries or its debts, or
of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Subsidiaries or
for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed and unstayed for a period of 60 or more
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(j) the Borrower or any of its Subsidiaries shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (i) of this Article,
(iii) apply for or consent to the
-84-
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any of its Subsidiaries or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for
the purpose of effecting any of the foregoing;
(k) the Borrower or any of its Subsidiaries shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(l) one or more judgments for the payment of money in an aggregate amount
in excess of $25,000,000 shall be rendered against the Borrower or any of its
Subsidiaries or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to attach or levy upon any assets of the Borrower or any of its
Subsidiaries to enforce any such judgment;
(m) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(n) a Change in Control shall occur;
(o) BlackRock ▇▇▇▇▇ Capital Advisors shall cease to be the investment
advisor for the Borrower;
(p) BlackRock ▇▇▇▇▇ Capital Advisors shall cease to be the sole manager
of Holding; provided that it shall not be an Event of Default hereunder if it
is succeeded by a Permitted Manager;
(q) the Liens created by the Security Documents shall, at any time with
respect to Portfolio Investments having an aggregate Value in excess of 5% of
the aggregate Value of all Portfolio Investments, not be valid and perfected
(to the extent perfection by filing, registration, recordation, possession or
control is required herein or therein) in favor of the Collateral Agent, free
and clear of all other Liens (other than Liens permitted under Section 6.02 or
under the respective Security Documents); or
(r) except for expiration in accordance with its terms, any of the
Security Documents shall for whatever reason be terminated or cease to be in
full force and effect in any material respect, or the enforceability thereof
shall be contested by the Borrower;
then, and in every such event (other than an event with respect to the
Borrower described in clause (i) or (j) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall
-85-
terminate immediately, and (ii) declare the Loans then outstanding to be due
and payable in whole (or in part, in which case any principal not so declared
to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; and in case of any event with respect to
the Borrower described in clause (i) or (j) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
In the event that the Loans shall be declared, or shall become, due and
payable pursuant to the immediately preceding paragraph then, upon notice from
the Administrative Agent or Lenders with LC Exposure representing more than
50% of the total LC Exposure demanding the deposit of cash collateral pursuant
to this paragraph, the Borrower shall immediately deposit into the Letter of
Credit Collateral Account cash in an amount equal to the LC Exposure as of
such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default with respect
to the Borrower described in clause (i) or (j) of this Article.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent hereunder and under the other Loan Documents
and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary
-86-
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise in writing by the Required
Lenders, and (c) except as expressly set forth herein and in the other Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent
by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or
therein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein or therein, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed or sent by
the proper Person. The Administrative Agent also may rely upon any statement
made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for
the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by
the Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying the Lenders,
the Issuing Bank and the Borrower. Upon any such resignation, the Required
Lenders shall have the right, with the consent of the Borrower not to be
unreasonably withheld (or,
-87-
if an Event of Default has occurred and is continuing in consultation with the
Borrower), to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent's resignation shall
nonetheless become effective and (1) the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and (2) the Required
Lenders shall perform the duties of the Administrative Agent (and all payments
and communications provided to be made by, to or through the Administrative
Agent shall instead be made by or to each Lender directly) until such time as
the Required Lenders appoint a successor agent as provided for above in this
paragraph. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder (if not already
discharged therefrom as provided above in this paragraph). The fees payable by
the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 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.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.
Except as otherwise provided in Section 9.02(b) with respect to this
Agreement, the Administrative Agent may, with the prior consent of the
Required Lenders (but not otherwise), consent to any modification, supplement
or waiver under any of the Loan Documents; provided that, without the prior
consent of each Lender, the Administrative Agent shall not (except as provided
herein or in the Security Documents) release all or substantially all of the
Collateral or otherwise terminate all or substantially all of the Liens under
any Security Document providing for collateral security, agree to additional
obligations being secured by all or substantially all of such collateral
security, alter the relative priorities of the obligations entitled to the
benefits of the Liens created under the Security Documents with respect to all
or substantially all of the Collateral, except that no such consent shall be
required, and the Administrative Agent is hereby authorized, to release any
Lien covering property that is the subject of either a disposition of property
permitted hereunder or a disposition to which the Required Lenders have
consented.
-88-
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices; Electronic Communications.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention of Chief Financial Officer, (Telecopy No. (212)
▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to Citibank, N.A., ▇ ▇▇▇▇▇ ▇▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (212)
▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇; e-mail
▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇);
(iii) if to the Issuing Bank, to Citibank, N.A., ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (212)
▇▇▇-▇▇▇▇; Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇; e-mail
▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇);
(iv) if to the Swingline Lender with respect to Swingline Loans
denominated in Dollars, to Citibank, N.A., ▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇;
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇; e-mail ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇); and
(v) if to the Swingline Lender with respect to Swingline Loans
denominated in Foreign Currencies, to Citibank International plc; ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇ Square, Canary Wharf; ▇▇▇▇▇▇ ▇▇▇ ▇▇▇;
United Kingdom; Attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Telecopy No. ▇▇▇▇▇ ▇▇ ▇▇▇▇
3824; Telephone No. ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇); and
(vi) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the
date of receipt. Notices delivered through electronic communications to the
extent provided in paragraph (b) below, shall be effective as provided in said
paragraph (b).
(b) Electronic Communications. Notices and other communications to the
Lenders and the Issuing Bank hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to
-89-
procedures approved by the Administrative Agent; provided that the foregoing
shall not apply to notices to any Lender or the Issuing Bank pursuant to
Section 2.06 if such Lender or the Issuing Bank, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it;
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon
the sender's receipt of an acknowledgement from the intended recipient (such
as by the "return receipt requested" function, as available, return e-mail or
other written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
(c) Documents to be Delivered under Sections 5.01 and 5.12(a). For so
long as an intralinks or equivalent website is available to each of the
Lenders hereunder, the Borrower may satisfy its obligation to deliver
documents to the Administrative Agent or the Lenders under Sections 5.01 and
5.12(a) by delivering one hard copy thereof to the Administrative Agent and
either an electronic copy or a notice identifying the website where such
information is located for posting by the Administrative Agent on intralinks
or such equivalent website; provided that the Administrative Agent shall have
no responsibility to maintain access to intralinks or an equivalent website.
SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by the Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of
-90-
whether the Administrative Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default at the time.
(b) Amendments to this Agreement. Neither this Agreement nor any
provision hereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower and the
Required Lenders or by the Borrower and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall:
(i) increase the Commitment of any Lender without the written
consent of such Lender,
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b), (c) or (d) in a manner that would alter
the pro rata sharing of payments, or making of disbursements, required
thereby without the written consent of each Lender affected thereby, or
(v) change any of the provisions of this Section or the percentage
in the definition of the term "Required Lenders" or any other provision
hereof specifying the number or percentage of Lenders required to waive,
amend or modify any rights hereunder or make any determination or grant
any consent hereunder, without the written consent of each Lender
affected thereby;
provided further that (x) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent, the Issuing Bank or
the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case
may be and (y) the consent of Lenders holding not less than two-thirds of the
Revolving Credit Exposure and unused Commitments will be required (A) for any
adverse change affecting the provisions of this Agreement relating to the
Borrowing Base (including the definitions used therein), or the provisions of
Section 5.12(c)(ii), and (B) for any release of any material portion of the
Collateral other than for fair value or as otherwise permitted hereunder or
under the other Loan Documents.
Anything in this Agreement to the contrary notwithstanding, no waiver or
modification of any provision of this Agreement or any other Loan Document
that could reasonably be expected to adversely affect the Lenders of any Class
in a manner that does not affect all Classes equally shall be effective
against the Lenders of such Class unless
-91-
the Required Lenders of such Class shall have concurred with such waiver or
modification.
If any Lender has failed to consent to a proposed amendment, waiver, or
modification which pursuant to the terms of paragraph (b) of this Section
requires the consent of such Lender affected (such Lender, a "Non-Consenting
Lender") and with respect to which the Required Lenders shall have granted
their consent, the Borrower shall have the right to replace such
Non-Consenting Lender by requiring such Non-Consenting Lender to assign its
obligations under this Agreement (including all of its Commitments, Loans and
LC Exposure at the time owing to such Non-Consenting Lender) to one or more
assignees reasonably acceptable to the Administrative Agent and the Issuing
Bank; provided that (i) all obligations with respect to such assigned
Commitments, Loans and LC Exposure being replaced shall be paid in full to
such Non-Consenting Lender concurrently with such assignment and (ii) the
replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus
accrued and unpaid interest thereon. In connection with any such assignment,
subparagraphs (C) and (D) of Section 9.04(b)(ii), the first sentence of
Section 9.04(b)(iii) and paragraphs (c) and (d) of Section 9.04 shall apply.
(c) Amendments to Security Documents. No Security Document nor any
provision thereof may be waived, amended or modified, nor may the Liens
thereof be spread to secure any additional obligations (including any increase
in Loans hereunder, but excluding any such increase pursuant to a Commitment
Increase under Section 2.08(e) to an amount not greater than $500,000,000)
except pursuant to an agreement or agreements in writing entered into by the
Borrower, and by the Collateral Agent with the consent of the Required
Lenders; provided that, (i) without the written consent of each Lender, no
such agreement shall release all or substantially all of the Obligors from
their respective obligations under the Security Documents and (ii) without the
written consent of each Lender, no such agreement shall release all or
substantially all of the collateral security or otherwise terminate all or
substantially all of the Liens under the Security Documents, alter the
relative priorities of the obligations entitled to the Liens created under the
Security Documents (except in connection with securing additional obligations
equally and ratably with the Loans and other obligations hereunder) with
respect to all or substantially all of the collateral security provided
thereby, or release all or substantially all of the guarantors under the
Guarantee and Security Agreement from their guarantee obligations thereunder,
except that no such consent shall be required, and the Administrative Agent is
hereby authorized (and so agrees with the Borrower) to direct the Collateral
Agent under the Guarantee And Security Agreement, to release any Lien covering
property (and to release any such guarantor) that is the subject of either a
disposition of property permitted hereunder or a disposition to which the
Required Lenders have consented.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, the Collateral
Agent, the Arrangers and their Affiliates, including the reasonable fees,
charges and disbursements
-92-
of counsel for the Administrative Agent and the Collateral Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby
shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by
the Issuing Bank in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or any demand for payment thereunder, (iii)
all out-of-pocket expenses incurred by the Administrative Agent, the Issuing
Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect thereof and (iv) and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security
interest contemplated by any Security Document or any other document referred
to therein.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (other than Taxes or
Other Taxes which shall only be indemnified by the Borrower to the extent
provided in Section 2.16), including the fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obligations
hereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is
a party thereto or (iv) any actual or alleged presence or release of Hazardous
Materials on or from any property currently or formerly owned or operated by
the Borrower or the Subsidiaries, or any Environmental Liability related in
any way to the Borrower or the Subsidiaries; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from (i) the willful misconduct or gross negligence of such Indemnitee or (ii)
a claim brought by the Borrower or any Obligor against such Indemnitee for
breach in bad faith of such Indemnitee's obligations under this Agreement or
the other Loan Documents, if the Borrower or such Obligor has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction.
-93-
The Borrower shall not be liable to any Indemnitee for any special,
indirect, consequential or punitive damages arising out of, in connection
with, or as a result of the Transactions asserted by an Indemnitee against the
Borrower or any other Obligor, provided that the foregoing limitation shall
not be deemed to impair or affect the Obligations of the Borrower under the
preceding provisions of this subsection.
(c) Reimbursement by Lenders. To the extent that the Borrower fails to
pay any amount required to be paid by it to the Administrative Agent, the
Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent, the Issuing Bank or the Swingline Lender in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or
Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit) and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the Issuing Banks and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Assignments by Lenders.
(i) Assignments Generally. Subject to the conditions set forth in
clause (ii) below, any Lender may assign to one or more assignees all or
a portion of its
-94-
rights and obligations under this Agreement (including all or a portion
of its Commitments and the Loans and LC Exposure at the time owing to it)
with the prior written consent (such consent not to be unreasonably
withheld or delayed) of:
(A) the Borrower, provided that no consent of the Borrower
shall be required for an assignment to a Lender or an Affiliate of a
Lender or, if an Event of Default has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent and the Issuing Bank.
(ii) Certain Conditions to Assignments. Assignments shall be
subject to the following additional conditions:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans and LC Exposure
of a Class, the amount of the Commitment or Loans and LC Exposure of
such Class of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent)
shall not be less than U.S. $5,000,000 unless each of the Borrower
and the Administrative Agent otherwise consent, provided that no
such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;
(B) each partial assignment of any Class of Commitments or
Loans and LC Exposure shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and
obligations under this Agreement in respect of such Class of
Commitments, Loans and LC Exposure;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption in
substantially the form of Exhibit A hereto, together with a
processing and recordation fee of U.S. $3,500 (which fee shall not
be payable in connection with an assignment to a Lender or to an
Affiliate of a Lender or an Approved Fund), for which the Borrower
and the Guarantors shall not be obligated; and
(D) the assignee, if it shall not already be a Lender of the
applicable Class, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(iii) Effectiveness of Assignments. Subject to acceptance and
recording thereof pursuant to paragraph (c) of this Section, from and
after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.03 with
-95-
respect to facts and circumstances occurring prior to the effective date
of such assignment). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section
9.04 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance
with paragraph (e) of this Section.
(c) Maintenance of Registers by Administrative Agent. The Administrative
Agent, acting for this purpose as an agent of the Borrower, shall maintain at
one of its offices in New York City a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amount of the Loans and
LC Disbursements owing to, each Lender pursuant to the terms hereof from time
to time (the "Registers" and each individually, a "Register"). The entries in
the Registers shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded
in the Registers pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The
Registers shall be available for inspection by the Borrower, the Issuing Bank
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Acceptance of Assignments by Administrative Agent. Upon its receipt
of a duly completed Assignment and Assumption executed by an assigning Lender
and an assignee, the assignee's completed Administrative Questionnaire (unless
the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.
(e) Special Purposes Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a "Granting Lender") may grant to a special
purpose funding vehicle (an "SPC") owned or administered by such Granting
Lender, identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide all or any
part of any Loan that such Granting Lender would otherwise be obligated to
make; provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall, subject to the terms of this Agreement, make such Loan pursuant to the
terms hereof, (iii) the rights of any such SPC shall be derivative of the
rights of the Granting Lender, and such SPC shall be subject to all of the
restrictions upon the Granting Lender herein contained, and (iv) no SPC shall
be entitled to the benefits of Sections 2.14 (or any other increased costs
protection provision), 2.15 or 2.16. Each SPC shall be conclusively presumed
to have made arrangements with its Granting Lender for the exercise of voting
and other rights hereunder in a manner which is acceptable to the SPC, the
Administrative Agent, the Lenders and the Borrower, and each of the
Administrative Agent, the Lenders and the Obligors shall be entitled to rely
upon and
-96-
deal solely with the Granting Lender with respect to Loans made by or through
its SPC. The making of a Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Loan were made by
the Granting Lender.
Each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding senior indebtedness of
any SPC, it will not institute against, or join any other person in
instituting against, such SPC, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or similar proceedings under the laws of
the United States or any State thereof, in respect of claims arising out of
this Agreement; provided that the Granting Lender for each SPC hereby agrees
to indemnify, save and hold harmless each other party hereto for any loss,
cost, damage and expense arising out of their inability to institute any such
proceeding against its SPC. In addition, notwithstanding anything to the
contrary contained in this Section, any SPC may (i) without the prior written
consent of the Borrower and the Administrative Agent and without paying any
processing fee therefor, assign all or a portion of its interests in any Loans
to its Granting Lender or to any financial institutions providing liquidity
and/or credit facilities to or for the account of such SPC to fund the Loans
made by such SPC or to support the securities (if any) issued by such SPC to
fund such Loans (but nothing contained herein shall be construed in derogation
of the obligation of the Granting Lender to make Loans hereunder); provided
that neither the consent of the SPC or of any such assignee shall be required
for amendments or waivers hereunder except for those amendments or waivers for
which the consent of participants is required under paragraph (f) below, and
(ii) disclose on a confidential basis (in the same manner described in Section
9.13(b)) any non-public information relating to its Loans to any rating
agency, commercial paper dealer or provider of a surety, guarantee or credit
or liquidity enhancement to such SPC.
(f) Participations. Any Lender may sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights
and obligations under this Agreement and the other Loan Documents (including
all or a portion of its Commitments and the Loans and LC Disbursements owing
to it); provided that (i) such Lender's obligations under this Agreement and
the other Loan Documents shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the Issuing Bank
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. Any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any
provision of this Agreement or any other Loan Document; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to paragraph (g) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.14, 2.15
and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment
-97-
pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender; provided such Participant agrees to be subject to
Section 2.17(d) as though it were a Lender hereunder.
(g) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.14, 2.15 or 2.16 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.16 unless the sale of the participation
to such Participant is made with the Borrower's prior written consent and such
Participant agrees, for the benefit of the Borrower, to comply with paragraphs
(e) and (f) of Section 2.16 as though it were a Lender and in the case of a
Participant claiming exemption for portfolio interest under Section 871(h) or
881(c) of the Code, the applicable Lender shall provide the Borrower with
satisfactory evidence that the participation is in registered form and shall
permit the Borrower to review such register as reasonably needed for the
Borrower to comply with its obligations under applicable laws and regulations.
(h) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including any such pledge or assignment to
a Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such assignee for such Lender as a party hereto.
(i) No Assignments to the Borrower or Affiliates. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate
any interest in any Loan or LC Exposure held by it hereunder to the Borrower
or any of its Affiliates or Subsidiaries without the prior consent of each
Lender.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03
and Article VIII shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated
-98-
hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or
any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness; Electronic
Execution.
(a) Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract between and among the parties relating to
the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page to this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
(b) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall
be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender
-99-
under this Section are in addition to other rights and remedies (including
other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) Submission to Jurisdiction. The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or
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 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 the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The 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 in any
court referred to in paragraph (b) of this Section. 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.
(d) Service of Process. Each party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Section 9.01.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) 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
-100-
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or any Foreign Currency, as
the case may be (the "Specified Currency"), and payment in New York City or
the country of the Specified Currency, as the case may be (the "Specified
Place"), is of the essence, and the Specified Currency shall be the currency
of account in all events relating to Loans denominated in the Specified
Currency. The payment obligations of the Borrower under this Agreement shall
not be discharged or satisfied by an amount paid in another currency or in
another place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on conversion to the Specified Currency and transfer to the
Specified Place under normal banking procedures does not yield the amount of
the Specified Currency at the Specified Place due hereunder. If for the
purpose of obtaining judgment in any court it is necessary to convert a sum
due hereunder in the Specified Currency into another currency (the "Second
Currency"), the rate of exchange that shall be applied shall be the rate at
which in accordance with normal banking procedures the Administrative Agent
could purchase the Specified Currency with the Second Currency on the Business
Day next preceding the day on which such judgment is rendered. The obligation
of the Borrower in respect of any such sum due from it to the Administrative
Agent or any Lender hereunder or under any other Loan Document (in this
Section called an "Entitled Person") shall, notwithstanding the rate of
exchange actually applied in rendering such judgment, be discharged only to
the extent that on the Business Day following receipt by such Entitled Person
of any sum adjudged to be due hereunder in the Second Currency such Entitled
Person may in accordance with normal banking procedures purchase and transfer
to the Specified Place the Specified Currency with the amount of the Second
Currency so adjudged to be due; and the Borrower hereby, as a separate
obligation and notwithstanding any such judgment, agrees to indemnify such
Entitled Person against, and to pay such Entitled Person on demand, in the
Specified Currency, the amount (if any) by which the sum originally due to
such Entitled Person in the Specified Currency hereunder exceeds the amount of
the Specified Currency so purchased and transferred.
SECTION 9.12. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.13. Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. The Borrower acknowledges that from
time to time financial advisory, investment banking and other services may be
offered or provided to the Borrower or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and the Borrower hereby authorizes
each Lender to share any information delivered to such Lender by the Borrower
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary
or affiliate, it being understood that any
-101-
such subsidiary or affiliate receiving such information shall be bound by the
provisions of paragraph (b) of this Section as if it were a Lender hereunder.
Such authorization shall survive the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent, the Lenders and
the Issuing Bank agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates' respective partners, directors, officers,
employees, agents, advisors and other representatives (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 purporting to have jurisdiction over it (including any
self-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 hereto, (e) in connection with the exercise of any remedies hereunder or
under any other Loan Document or any action or proceeding relating to this
Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (x) any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement or (y) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the
Borrower and its obligations, (g) with the consent of the Borrower, (h) to the
extent such Information (x) becomes publicly available other than as a result
of a breach of this Section or (y) becomes available to the Administrative
Agent, any Lender, the Issuing Bank or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower, (i) to Gold
Sheets and other similar bank trade publications; such information to consist
of deal terms and other information regarding the credit facilities evidenced
by this Agreement customarily found in such publications, (j) to a Person that
is an investor or prospective investor in a Securitization (as defined below)
that agrees that its access to information regarding the Borrower and the
Loans is solely for purposes of evaluating an investment in such
Securitization, (k) to a Person that is a trustee, collateral manager,
servicer, noteholder or secured party in a Securitization in connection with
the administration, servicing and reporting on the assets serving as
collateral for such Securitization, or (l) to a nationally recognized rating
agency that requires access to information regarding the Loan Parties, the
Loans and Loan Documents in connection with ratings issued with respect to a
Securitization. For purposes of this Section, "Securitization" means a public
or private offering by a Lender or any of its Affiliates or their respective
successors and assigns, of securities which represent an interest in, or which
are collateralized, in whole or in part, by the Loans or the Loan Documents.
For purposes of this Section, "Information" means all information
received from the Borrower or any of its Subsidiaries relating to the Borrower
or any of its Subsidiaries or any of their respective businesses, other than
any such information that is available to the Administrative Agent, any Lender
or the Issuing Bank on a nonconfidential basis prior to disclosure by the
Borrower or any of its Subsidiaries; provided that, in the case of information
received from the Borrower or any of its
-102-
Subsidiaries after the date hereof, such information is clearly identified 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.
SECTION 9.14. USA PATRIOT Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), it is required to obtain, verify
and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will
allow such Lender to identify the Borrower in accordance with said Act.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized officers as of the day and year first above
written.
BLACKROCK ▇▇▇▇▇ CAPITAL CORPORATION,
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: CFO
LENDERS:
CITIBANK, N.A., individually and as
Administrative Agent,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: 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