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SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT") is entered
into as of January 18, 2000, by and among ALLIED CAPITAL CORPORATION, a
corporation organized under the laws of the State of Maryland ("BORROWER"),
U.S. BANK NATIONAL ASSOCIATION ("U.S. BANK"), and BANK OF AMERICA, N.A. (f/k/a
Bank of America National Trust and Savings Association, successor by merger to
Bank of America, N.A., f/k/a NationsBank, N.A.), as Administrative Agent (in
such capacity, the "Administrative Agent") for the Lenders under the Credit
Agreement (hereinafter defined).
R E C I T A L S
A. Borrower, Administrative Agent, and certain other Agents and
Lenders are parties to that certain Credit Agreement dated as of March 9, 1999
(with the Effective Date being March 10, 1999), as amended by that certain
First Amendment to Credit Agreement dated as of May 7, 1999 (the "CREDIT
AGREEMENT"). Unless otherwise indicated herein, all terms used with their
initial letter capitalized are used herein with their meaning as defined in the
Credit Agreement; all Section references are to Sections in the Credit
Agreement; and all Paragraph references are to Paragraphs in this Amendment.
B. Pursuant to SECTION 2.12, Borrower has requested an increase in the
aggregate Commitments under the Agreement, by requesting U.S. Bank to become a
Lender with a Commitment of $20,000,000 (the new Commitment referred to herein
as the "SUPPLEMENTAL COMMITMENT").
C. Subject to and upon the following terms and conditions, U.S. Bank
has agreed to the Supplemental Commitment, and Administrative Agent has agreed
to the addition of U.S. Bank as a new Lender.
D. Accordingly, in accordance with the requirements of SECTIONS 2.12
and 12.5 and subject to and upon the following terms and conditions, Borrower,
Administrative Agent, and U.S. Bank are entering into this Amendment (i) to add
U.S. Bank as a "Lender" with a Commitment of $20,000,000 as a new Lender,
pursuant to SECTION 2.12 of the Credit Agreement, and (ii) to amend SCHEDULE 2
to the Credit Agreement to reflect the Supplemental Commitment.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, U.S. Bank, and Administrative Agent agree, as follows:
PARAGRAPH 1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 SUPPLEMENTAL COMMITMENT AND CONSENT TO NEW LENDER.
(a) Pursuant to SECTION 2.12, effective on and after the
Amendment Effective Date (hereinafter defined), U.S. Bank agrees to be a
new Lender having the Commitment set forth opposite its name on ANNEX A
hereto. Accordingly, each Lender's Commitment Percentage shall be
recalculated to reflect the new proportionate share of the revised total
Commitments as stated on ANNEX A hereto.
(b) Furthermore, to the extent any Revolving Loans are
outstanding on the Amendment Effective Date (excluding any Loans made on
such date), then on such date, U.S. Bank shall pay to Administrative
Agent (for ratable distribution to the other Lenders) an amount equal to
its pro rata share of the Revolving Loans then outstanding, which are
deemed assumed and purchased from the
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other Lenders. All such payments shall reduce the outstanding principal
balance of the Revolving Notes of each Lender receiving such payments and
shall represent Revolving Loans to Borrower by U.S. Bank. U.S. Bank
shall be entitled to share ratably in interest accruing in accordance
with the Loan Documents.
(c) To the extent a payment contemplated in PARAGRAPH 1.1(b), if
any, occurs on a date other than the last day of any Interest Period for
any outstanding Eurodollar Loans, Borrower agrees to pay to each Lender
(upon the request of each such Lender) the amounts required by SECTION
4.5(a) in connection therewith.
(d) On the Amendment Effective Date, U.S. Bank shall be entitled
to the rights and benefits and subject to the duties of a Lender under
the Loan Documents.
(e) By execution hereof, Administrative Agent and Borrower
consent to the addition of U.S. Bank as a "LENDER" under the Loan
Documents.
1.2 DEFINITIONS AND TERMS. On and after the Amendment Effective Date
(hereinafter defined), (i) each reference to "Lender" or "Lenders" in the
Credit Agreement and the related Loan Documents shall include U.S. Bank, and
(ii) each reference to SCHEDULE 2 shall be to the Second Revised SCHEDULE 2 as
set forth on ANNEX A, as the same may hereafter be amended or modified in
accordance with the Loan Documents.
1.3 CONFIRMATIONS AND AGREEMENTS OF U.S. BANK. U.S. Bank severally
(a) confirms that it has received a copy of the Credit Agreement, together with
copies of the consolidated and consolidating balance sheets of Borrower and its
Consolidated Subsidiaries most recently delivered under the Credit Agreement
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Amendment, including,
without limitation, the transaction contemplated in this PARAGRAPH 1; (b)
agrees that it will, independently and without reliance upon the Administrative
Agent or any Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (c) appoints and
authorizes Administrative Agent to take such action as "Administrative Agent"
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to Administrative Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(d) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (e) shall deliver to Administrative Agent any
U.S. Internal Revenue Service or other forms required under SECTION 4.6 of the
Credit Agreement.
1.4 NOTES. On the Amendment Effective Date (hereinafter defined),
Borrower shall execute and deliver to U.S. Bank a Revolving Note reflecting the
respective Commitment of such Lender, after giving effect to the Supplemental
Commitment contemplated and effected in accordance with PARAGRAPH 1.
PARAGRAPH 2. AMENDMENT EFFECTIVE DATE. This Amendment shall be binding upon
U.S. Bank, Administrative Agent, Borrower, and each other Lender on the last
day (the "AMENDMENT EFFECTIVE DATE") upon which (a) counterparts of this
Amendment shall have been executed and delivered to Administrative Agent by
Borrower, Administrative Agent, and U.S. Bank, or when Administrative Agent
shall have received, telecopied, telexed, or other evidence satisfactory to it
that all such parties have executed and are delivering to Administrative Agent
counterparts thereof; (b) the Note is executed by Borrower and delivered in
accordance with PARAGRAPH 1.4 hereof; (c) to the extent required by PARAGRAPH
1.1(b), all assumptions and related payments have been made by U.S. Bank to
Administrative Agent; (d) Borrower shall have paid to Administrative Agent (for
distribution to U.S. Bank) the respective upfront fees payable to U.S.
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Bank as indicated on ANNEX A; and (e) Borrower shall have delivered to
Administrative Agent copies (certified by the Secretary or Assistant Secretary
of Borrower) of all corporate action taken by Borrower to authorize the
execution, delivery, and performance of this Amendment, and any related Debt
incurrence.
PARAGRAPH 3. REPRESENTATIONS AND WARRANTIES. As a material inducement to U.S.
Bank and Administrative Agent to execute and deliver this Amendment, Borrower
hereby represents and warrants to U.S. Bank, the other Lenders, and
Administrative Agent (with the knowledge and intent that such parties are
relying upon the same in entering into this Amendment) the following: (a) the
representations and warranties in the Credit Agreement and in all other Loan
Documents are true and correct on the date hereof in all material respects, as
though made on the date hereof, except to the extent that such representations
and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate as of such
earlier date); (b) no Default or Event of Default exists under the Loan
Documents or will exist after giving effect to the transactions contemplated by
this Amendment; and (c) this Amendment has been duly authorized and approved by
all necessary corporate action and requires the consent of no other Person, and
upon execution and delivery, this Amendment shall be binding and enforceable
against Borrower in accordance with its terms.
PARAGRAPH 4. MISCELLANEOUS.
4.1 EFFECT ON LOAN DOCUMENTS. The Credit Agreement and all related
Loan Documents shall remain unchanged and in full force and effect, except as
provided in this Amendment, and are hereby ratified and confirmed. On and
after the Amendment Effective Date, all references to the "Credit Agreement" or
the "Agreement" shall be to the Credit Agreement as herein amended. The
execution, delivery, and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any rights of the Lenders
under the Credit Agreement or any Loan Documents, nor constitute a waiver under
the Credit Agreement or any other provision of the Loan Documents.
4.2 REFERENCE TO MISCELLANEOUS PROVISIONS. This Amendment and the
other documents delivered pursuant to this Amendment are part of the Loan
Documents referred to in the Credit Agreement, and the provisions relating to
Loan Documents set forth in SECTION 12 are incorporated herein by reference the
same as if set forth herein verbatim.
4.3 COSTS AND EXPENSES. Borrower agrees to pay promptly the
reasonable fees and expenses of counsel to Administrative Agent for services
rendered in connection with the preparation, negotiation, reproduction,
execution, and delivery of this Amendment.
4.4 COUNTERPARTS. This Amendment may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes, and all of which constitute, collectively, one agreement; but, in
making proof of this Amendment, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that all parties
execute the same counterpart so long as identical counterparts are executed by
Borrower, U.S. Bank, and Administrative Agent.
4.5 ENTIRETY. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
4.6 PARTIES. This Amendment binds and inures to Borrower,
Administrative Agent, U.S. Bank, the other Lenders, and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment in
multiple counterparts as of the respective dates indicated on each signature
page hereof, but effective as of the Amendment Effective Date.
REMAINDER OF THIS PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE TO FOLLOW.
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Signature Page to that certain Second Amendment to Credit Agreement dated
as of January 18, 2000 amending that certain Credit Agreement dated as of March
9, 1999 (with the Effective Date being March 10, 1999), as amended by that
certain First Amendment to Credit Agreement dated as of May 7, 1999 among
Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
ALLIED CAPITAL CORPORATION, as Borrower
By
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Name:
------------------------------
Title:
-----------------------------
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Signature Page to that certain Second Amendment to Credit Agreement dated
as of January 18, 2000 amending that certain Credit Agreement dated as of March
9, 1999 (with the Effective Date being March 10, 1999), as amended by that
certain First Amendment to Credit Agreement dated as of May 7, 1999 among
Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
BANK OF AMERICA, N.A.,
as Administrative Agent and a Lender
By
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
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Signature Page to that certain Second Amendment to Credit Agreement dated
as of January 18, 2000 amending that certain Credit Agreement dated as of March
9, 1999 (with the Effective Date being March 10, 1999), as amended by that
certain First Amendment to Credit Agreement dated as of May 7, 1999 among
Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
U.S. BANK NATIONAL ASSOCIATION, as a new
Lender
By
-----------------------------------
Name:
------------------------------
Title:
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ANNEX A
SECOND REVISED SCHEDULE 2
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REVOLVING
FACILITY COMMITMENT UPFRONT
NAME AND ADDRESS OF LENDERS COMMITTED PERCENTAGE FEE
SUMS
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Bank of America, N.A. $52,500,000.00 14.583333% $131,250.00
Financial Services
901 Main Street, 66th Floor
Dallas, Texas 75202-3748
Attn: Shelly K. Harper
Tel: 214-209-0567
Fax: 214-209-0604
Email: shelly.k.harper@bankofamerica.com
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FleetBoston, N.A. $50,000,000.00 13.888889% $125,000.00
100 Federal Street
Mail Stop 01-10-08
Boston, MA 02110
Attn: Robert Storer
Tel: 617-434-3737
Fax: 617-434-1537
Email: robert_t_storer@fleet.com
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First Union National Bank $50,000,000.00 13.888889% $125,000.00
One First Union Center, NC0610
301 South College Street
Charlotte, NC 28288
Attn: Raj Shah
Tel: 704-374-6230
Fax: 704-383-7611
Email: raj.shah@capmark.funb.com
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Riggs Bank N.A. $50,000,000.00 13.888889% $125,000.00
808 17th Street NW
10th Floor
Washington, DC 20006
Attn: David Olson
Tel: 202-835-5105
Fax: 202-835-5977
Email: david_olson@riggsbank.com
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REVOLVING
FACILITY COMMITMENT UPFRONT
NAME AND ADDRESS OF LENDERS COMMITTED PERCENTAGE FEE
SUMS
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Chevy Chase Bank, F.S.B. $30,000,000.00 8.333333% $60,000.00
8401 Connecticut Avenue
9th Floor
Chevy Chase, MD 20815
Attn: Rich Amador
Tel: 301-986-7139
Fax: 301-986-7038
Email: ramador@chevychasebank.com
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Credit Lyonnais New York Branch $30,000,000.00 8.333333% $60,000.00
1301 Avenue of the Americas
12th Floor
New York, NY 10019
Attn: W. Jay Buckley
Tel: 212-261-7340
Fax: 212-261-3401
Email: buckley@clamericas.com
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Branch Banking & Trust Co. $30,000,000.00 8.333333% $60,000.00
110 S. Stratford Road
Suite 301
Winston-Salem, NC 27104
Attn: Cory Boyte
Tel: 336-733-3259
Fax: 336-733-3254
Email: cboyte@bbtnet.com
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LaSalle National Bank $20,000,000.00 5.555556% $30,000.00
135 South LaSalle Street
Suite 362
Chicago, IL 60603
Attn: David H. Sherer
Tel: 312-904-2722
Fax: 312-904-2982
Email: david.sherer@abnamro.com
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United Bank $20,000,000.00 5.555556% $30,000.00
2071 Chain Bridge Road
Vienna, VA 22182
Attn: Keith Harding
Tel: 703-442-7154
Fax: 703-448-7126
Email: kharding@unitedbank-va.com
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REVOLVING
FACILITY COMMITMENT UPFRONT
NAME AND ADDRESS OF LENDERS COMMITTED PERCENTAGE FEE
SUMS
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U.S. Bank National Association $20,000,000.00 5.555556% $17,137.00
One Illinois Center, Suite 3000
Mail Drop ILIC3000
111 East Wacker Drive
Chicago, IL 60601
Attn: R. Michael Newton
Tel: 312-228-9405
Fax: 312-228-9402
Email: michael.newton@usbank.com
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Firstrust Bank $ 7,500,000.00 2.083333% $9,375.00
15 E. Ridge Pike
Conshohocken, PA 19428
Attn: John P. Hollingsworth
Tel: 610-238-5030
Fax: 610-238-5066
Email: jholling@firstrust.com
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Totals $360,000,000.00 100.000000% $772,762.00
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