NOTE PURCHASE AGREEMENT DATED OCTOBER 3, 2007

Note Purchase Agreement

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MCG CAPITAL CORP | MCG Capital Corporation

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Title: NOTE PURCHASE AGREEMENT DATED OCTOBER 3, 2007
Governing Law: New York Date: 10/9/2007
Industry: Investment Services Law Firm: Dechert;Schiff Hardin Sector: Financial

NOTE PURCHASE AGREEMENT DATED OCTOBER 3, 2007, Parties: mcg capital corp , mcg capital corporation

Exhibit 99.1

EXECUTION COPY

MCG Capital Corporation

$25,000,000 6.71% Series 2007-A Senior Notes due October 3, 2012

______________

Note Purchase Agreement

_____________

Dated as of October 3, 2007

Table of Contents

(Not a part of the Agreement)

Section Heading Page

- - - Section 1. Authorization of Notes 1
      
      Section 2. Sale and Purchase of Series 2007-A Notes; Additional Series of Notes 1
      - Section 2.1 Sale and Purchase of Series 2007-A Notes 1
        
        Section 2.2 Additional Series of Notes 1
      Section 3. Closing 3
      
      Section 4. Conditions to Closing 4
      - Section 4.1 Representations and Warranties 4
        
        Section 4.2 Performance; No Default 4
        
        Section 4.3 Compliance Certificates 4
        
        Section 4.4 Opinions of Counsel 4
        
        Section 4.5 Purchase Permitted by Applicable Law, Etc 4
        
        Section 4.6 Sale of Other Notes 5
        
        Section 4.7 Payment of Special Counsel Fees 5
        
        Section 4.8 Private Rating 5
        
        Section 4.9 Private Placement Number 5
        
        Section 4.10 Credit and Collection Policy; Investment Ratings Policy 5
        
        Section 4.11 Changes in Corporate Structure 5
        
        Section 4.12 Funding Instructions 5
        
        Section 4.13 Proceedings and Documents 5
      Section 5. Representations and Warranties of the Company 6
      - Section 5.1 Organization; Power and Authority 6
        
        Section 5.2 Authorization, Etc 6
        
        Section 5.3 Disclosure 6
        
        Section 5.4 Organization and Ownership of Shares of Subsidiaries; Affiliates 6
        
        Section 5.5 Financial Statements; Material Liabilities 7
        
        Section 5.6 Compliance with Laws, Other Instruments, Etc 7
        
        Section 5.7 Governmental Authorizations, Etc 8
        
        Section 5.8 Litigation; Observance of Agreements, Statutes and Orders 8
        
        Section 5.9 Taxes 8
        
        Section 5.10 Title to Property; Leases 8
        
        Section 5.11 Licenses, Permits, Etc 9
        
        Section 5.12 Compliance with ERISA 9
        
        Section 5.13 Private Offering by the Company 10
        
        Section 5.14 Use of Proceeds; Margin Regulations 10
        
        Section 5.15 Existing Debt; Future Liens 11
        
        Section 5.16 Foreign Assets Control Regulations, Etc 11
        
        Section 5.17 Status under Certain Statutes 12
        
        Section 5.18 Investment Company Act 12
        
        Section 5.19 Environmental Matters 12
        
        Section 5.20 Series 2007-A Notes Rank Pari Passu 13
        
        Section 5.21 Credit and Collection Policy; Investment Ratings Policy 13
      Section 6. Representations of the Purchasers 13
      - Section 6.1 Purchase for Investment 13
        
        Section 6.2 Source of Funds 13
        
        Section 6.3 Accredited Investor 15
      Section 7. Information as to Company 15
      - Section 7.1 Financial and Business Information 15
        
        Section 7.2 Officer's Certificate 18
        
        Section 7.3 Visitation 19
        
        Section 7.4 Limitation on Disclosure Obligation 19
      Section 8. Payment and Prepayment of the Notes 20
      - Section 8.1 Required Prepayments 20
        
        Section 8.2 Optional Prepayments with Make-Whole Amount 20
        
        Section 8.3 Allocation of Partial Prepayments 21
        
        Section 8.4 Maturity; Surrender, Etc 21
        
        Section 8.5 Purchase of Notes 21
        
        Section 8.6 Make-Whole Amount 22
      Section 9. Affirmative Covenants 23
      - Section 9.1 Compliance with Law 23
        
        Section 9.2 Insurance 23
        
        Section 9.3 Maintenance of Properties 24
        
        Section 9.4 Payment of Taxes and Claims 24
        
        Section 9.5 Corporate Existence, Etc 24
        
        Section 9.6 Books and Records 24
        
        Section 9.7 Credit and Collection Policy; Investment Ratings Policy 24
      Section 10. Negative Covenants 25
      - Section 10.1 Minimum Consolidated Stockholders' Equity 25
        
        Section 10.2 Limitation on Debt 25
        
        Section 10.3 Interest Charges Coverage Ratio 25
        
        Section 10.4 Available Assets Coverage Ratio 25
        
        Section 10.5 Merger, Consolidation and Sale of Assets, Etc 25
        
        Section 10.6 Line of Business 28
        
        Section 10.7 Transactions with Affiliates 28
        
        Section 10.8 Terrorism Sanctions Regulations 29
      Section 11. Events of Default 29
      
      Section 12. Remedies on Default, Etc 31
      - Section 12.1 Acceleration 31
        
        Section 12.2 Other Remedies 31
        
        Section 12.3 Rescission 32
        
        Section 12.4 No Waivers or Election of Remedies, Expenses, Etc 32
      Section 13. Registration; Exchange; Substitution of Notes 32
      - Section 13.1 Registration of Notes 32
        
        Section 13.2 Transfer and Exchange of Notes 32
        
        Section 13.3 Replacement of Notes 33
      Section 14. Payments on Notes 34
      - Section 14.1 Place of Payment 34
        
        Section 14.2 Home Office Payment 34
        
        Section 14.3 Paying Agent 34
      Section 15. Expenses, Etc 34
      - Section 15.1 Transaction Expenses 34
        
        Section 15.2 Survival 35
      Section 16. Survival of Representations and Warranties; Entire Agreement 35
      
      Section 17. Amendment and Waiver 36
      - Section 17.1 Requirements 36
        
        Section 17.2 Solicitation of Holders of Notes 36
        
        Section 17.3 Binding Effect, Etc 36
        
        Section 17.4 Notes Held by Company, Etc 37
      Section 18. Notices 37
      
      Section 19. Reproduction of Documents 38
      
      Section 20. Confidential Information 38
      
      Section 21. Substitution of Purchaser or Additional Purchaser 39
      
      Section 22. Miscellaneous 40
      - Section 22.1 Successors and Assigns 40
        
        Section 22.2 Payments Due on Non-Business Days 40
        
        Section 22.3 Accounting Terms; Modifications to GAAP 40
        
        Section 22.4 Severability 41
        
        Section 22.5 Construction, Etc 41
        
        Section 22.6 Counterparts 41
        
        Section 22.7 Governing Law 41
        
        Section 22.8 Jurisdiction and Process; Waiver of Jury Trial 41

Attachments to Note Purchase Agreement:

Schedule A - Information Relating to Purchasers

Schedule B - Defined Terms

Schedule 5.3 - Disclosure Documents

Schedule 5.4 - Subsidiaries of the Company and Ownership of Subsidiary Stock

Schedule 5.5 - Financial Statements

Schedule 5.15 - Existing Debt

Exhibit 1 - Form of 6.71% Series 2007-A Senior Notes due October 3, 2012

Exhibit 4.4(a) - Form of Opinion of Special Counsel for the Company

Exhibit 4.4(b) - Form of Opinion of Special Counsel for the Purchasers

Exhibit S - Form of Supplement to Note Purchase Agreement

MCG Capital Corporation

1100 Wilson Boulevard, Suite 3000

Arlington, Virginia 22209

6.71% Series 2007-A Senior Notes due October 3, 2012

Dated as of October 3, 2007

To the Purchasers listed in
the attached Schedule A :

Ladies and Gentlemen:

MCG Capital Corporation, a Delaware corporation (the "Company" ), agrees with the purchasers whose names appear at the end hereof (each, a "Purchaser" and, collectively, the "Purchasers" ) as follows:

Authorization of Notes.
The Company will authorize the issue and sale of $25,000,000 aggregate principal amount of its 6.71% Series 2007-A Senior Notes due October 3, 2012 (the "Series 2007-A Notes" ). The Series 2007-A Notes, together with each Series of Additional Notes which may from time to time be issued pursuant to the provisions of Section 2.2 are collectively referred to herein as the "Notes." As used herein, the term "Notes" shall mean (irrespective of Series or tranche unless otherwise specified) all notes originally delivered pursuant to this Agreement or any Supplement and any such notes issued in substitution therefor pursuant to Section 13 of this Agreement. The Series 2007-A Notes shall be substantially in the form set out in Exhibit 1 . Certain capitalized and other terms used in this Agreement are defined in Schedule B ; and references to a "Schedule" or an "Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
Sale and Purchase of Series 2007-A Notes; Additional Series of Notes.
2. Sale and Purchase of Series 2007-A Notes. Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3 , Series 2007-A Notes in the principal amount specified opposite such Purchaser's name in Schedule A at the purchase price of 100% of the principal amount thereof. Each Purchaser's obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
4. Additional Series of Notes .
5. 2. The Company may, at any time on or prior to March 31, 2008, in its sole discretion but subject to the terms hereof, issue and sell one or more additional Series of its unsecured promissory notes under the provisions of this Agreement pursuant to a supplement (a "Supplement" ) substantially in the form of Exhibit S .
  4. Each additional Series of Notes (the "Additional Notes" ) issued pursuant to a Supplement shall be subject to the following terms and conditions:
  5. 2. each Series of Additional Notes, when so issued, shall be differentiated from all previous Series by sequential alphabetical designation inscribed thereon;
    4. Additional Notes of the same Series may consist of more than one different and separate tranches and may differ with respect to outstanding principal amounts, maturity dates, interest rates and premiums, if any, and price and terms of redemption or payment prior to maturity, but all such different and separate tranches of the same Series shall, if and to the extent this Agreement requires or permits voting by Series, vote as a single class and constitute one Series;
    6. each Series of Additional Notes shall be dated the date of issue, bear interest at such rate or rates, mature on such date or dates, be subject to such put rights and mandatory and optional prepayment on the dates and at the premiums, if any, have such additional or different conditions precedent to closing, such representations and warranties and such additional covenants and defaults as shall be specified in the Supplement under which such Additional Notes are issued and upon execution of any such Supplement, this Agreement shall be deemed amended (i) to reflect such additional put rights, covenants and defaults without further action on the part of the holders of the Notes outstanding under this Agreement, provided , that any such additional put rights, covenants and defaults shall inure to the benefit of all holders of the Notes only for so long as any Additional Notes issued pursuant to such Supplement remain outstanding and (ii) to reflect such representations and warranties as are contained in such Supplement for the benefit of the holders of such Additional Notes in accordance with the provisions of Section 16;
    8. each Series of Additional Notes issued under this Agreement shall be in substantially the form of Exhibit 1 to Exhibit S with such variations, omissions and insertions as are necessary or permitted hereunder;
    10. the minimum principal amount of any Note issued under a Supplement shall be $1,000,000, except as may be necessary to evidence the outstanding amount of any Note originally issued in a denomination of $1,000,000 or more;
    12. all Additional Notes shall constitute unsecured Senior Debt of the Company and shall rank pari passu with all other outstanding Notes; and
    14. no Additional Notes shall be issued hereunder if at the time of issuance thereof and after giving effect to the application of the proceeds thereof, (i) any Default or Event of Default shall have occurred and be continuing or (ii) a waiver of Default or Event of Default shall be in effect (unless such waiver expressly permits the issuance of Additional Notes).
  6. The right of the Company to issue, and the obligation of the Additional Purchasers to purchase, any Additional Notes shall be subject to the following conditions precedent, in addition to the conditions specified in the Supplement pursuant to which such Additional Notes may be issued:
  7. 2. a duly authorized Senior Financial Officer shall execute and deliver to each Additional Purchaser and each holder of Notes an Officer's Certificate dated the date of issue of such Series of Additional Notes stating that such officer has reviewed the provisions of this Agreement (including all Supplements) and setting forth the information and computations (in sufficient detail) required to establish whether after giving effect to the issuance of the Additional Notes and after giving effect to the application of the proceeds thereof, the Company is in compliance with the requirements of Section 10.2(a) if tested on the date of such issuance and not on the last day of the immediately preceding fiscal quarter of the Company;
    4. the Company and each such Additional Purchaser shall execute and deliver a Supplement substantially in the form of Exhibit S ; and
    6. each Additional Purchaser shall have confirmed in the Supplement that the representations set forth in Section 6 are true with respect to such Additional Purchaser on and as of the date of issue of such Additional Notes.
Closing.
The sale and purchase of the 2007-A Notes to be purchased by each Purchaser shall occur at the offices of Schiff Hardin LLP, 900 Third Avenue, 23rd Floor, New York, New York 10022, at 11:00 a.m., New York, New York time, at a closing (the "Closing" ) on October 3, 2007. At the Closing, the Company will deliver to each Purchaser the Series 2007-A Notes to be purchased by such Purchaser in the form of a single Series 2007-A Note (or such greater number of Series 2007-A Notes in denominations of at least $1,000,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser's name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company. If at the Closing the Company shall fail to tender such Series 2007-A Notes to any Purchaser as provided above in this Section 3 , or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser's satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.
Conditions to Closing .
Each Purchaser's obligation to purchase and pay for the Series 2007-A Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser's satisfaction, prior to or at the Closing, of the following conditions:
Representations and Warranties of the Company.
The Company represents and warrants to each Purchaser that, as of the date of this Agreement:
2. Organization; Power and Authority. The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation, and is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the corporate power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the Series 2007-A Notes and to perform the provisions hereof and thereof.
4. Authorization, Etc. This Agreement and the Series 2007-A Notes have been duly authorized by all necessary corporate action on the part of the Company, and this Agreement constitutes, and upon execution and delivery thereof each Series 2007-A Note will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and (b) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
6. Disclosure. This Agreement, the documents, certificates or other writings listed in Schedule 5.3 and the financial statements of the Company listed in Schedule 5.5 , in each case, delivered to the Purchasers prior to September 10, 2007 by or on behalf of the Company (this Agreement, and such documents, certificates or other writings and such financial statements being referred to, collectively, as the "Disclosure Documents" ), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. Except as disclosed in the Disclosure Documents, since December 31, 2006, there has been no change in the financial condition, operations, business, properties or prospects of the Company and its Subsidiaries except changes that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.
8. Organization and Ownership of Shares of Subsidiaries; Affiliates.
9. 2. Schedule 5.4 contains (except as noted therein) complete and correct lists (1) of the Company's Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by the Company and each other Subsidiary, (2) of the Company's Affiliates, other than Undisclosed Affiliates and Subsidiaries and (3) of the Company's directors and executive officers.
  4. All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by the Company or another Subsidiary free and clear of any Lien (except as otherwise disclosed in Schedule 5.4 ).
  6. Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact.
  8. No Subsidiary is a party to, or otherwise subject to any legal, regulatory, contractual or other restriction (other than this Agreement, the agreements listed on Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of capital stock or similar equity interests of such Subsidiary.
10. Financial Statements; Material Liabilities. The Company has delivered, or has otherwise made available, to each Purchaser copies of the financial statements of the Company and its Subsidiaries listed on Schedule 5.5 . All of said financial statements (including, in each case, the related schedules and notes thereto) fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.
12. Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by the Company of this Agreement and the Series 2007-A Notes will not (a) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, corporate charter or by-laws or any material lease or other material agreement or instrument to which the Company or any Subsidiary is bound or by which the Company or any Subsidiary or any of their respective properties may be bound or affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to the Company or any Subsidiary or (c) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company or any Subsidiary.
14. Governmental Authorizations, Etc. Subject to the accuracy of the representations made by each Purchaser in Section 6.1 , no consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in favor of or by the Company in connection with the execution, delivery or performance by the Company of this Agreement or the Series 2007-A Notes.
16. Litigation; Observance of Agreements, Statutes and Orders.
17. 2. There are no actions, suits or proceedings pending or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental Authority that, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
  4. There are no investigations pending or, to the knowledge of the Company, threatened, against or affecting the Company or any Subsidiary or any property of the Company or any Subsidiary by any Governmental Authority that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
  6. Neither the Company nor any Subsidiary is in default under any term of any agreement or instrument to which it is a party or by which it is bound, or any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in violation of any applicable law, ordinance, rule or regulation (including, without limitation, Environmental Laws or the USA Patriot Act) of any Governmental Authority, which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
18. Taxes. The Company and its Subsidiaries have filed all income tax and other material tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (a) the amount of which is not, individually or in the aggregate, Material or (b) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company or a Subsidiary, as the case may be, has established adequate reserves in accordance with GAAP. The Company knows of no basis for any other tax or assessment that could reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of federal, state or other taxes for all fiscal periods are adequate in accordance with GAAP. The federal income tax liabilities of the Company and its Subsidiaries have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended December 31, 2003.
20. Title to Property; Leases. The Company and its Subsidiaries have good and sufficient title to their respective owned properties that, individually or in the aggregate, are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company or any Subsidiary after said date (except for such properties as have been sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement. All leases that, individually or in the aggregate, are Material are valid and subsisting and are in full force and effect in all material respects.
22. Licenses, Permits, Etc.
23. 2. The Company and its Subsidiaries own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks, trade names and domain names or rights thereto, that, individually or in the aggregate, are Material, without known conflict with the rights of others, except for conflicts that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
  4. To the best knowledge of the Company, no product of the Company or any of its Subsidiaries infringes in any material respect any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name, domain name or other right owned by any other Person.
  6. To the best knowledge of the Company, there is no violation by any Person of any right of the Company or any of its Subsidiaries with respect to any patent, copyright, proprietary software, service mark, trademark, trade name, domain name or other right owned or used by the Company or any of its Subsidiaries, except for violations that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
24. Compliance with ERISA.
25. 2. The Company and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in Section 3 of ERISA), and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions or to Section 401(a)(29) or 412 of the Code or Section 4068 of ERISA, other than such liabilities or Liens as would not be, individually or in the aggregate, Material.
  4. The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan's most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan's most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities by an amount that, individually or in the aggregate for all Plans, is Material. The term "benefit liabilities" has the meaning specified in Section 4001 of ERISA and the terms "current value" and "present value" have the meanings specified in Section 3 of ERISA.
  6. The Company and its ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under Section 4201 or 4204 of ERISA in respect of Multiemployer Plans that, individually or in the aggregate, are Material.
  8. The expected postretirement benefit obligation (determined as of the last day of the Company's most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by Section 4980B of the Code) of the Company and its Subsidiaries is not Material.
  10. The execution and delivery of this Agreement and the issuance and sale of the Series 2007-A Notes hereunder by the Company will not involve any transaction that is subject to the prohibitions of Section 406 of ERISA or in connection with which a tax could be imposed pursuant to Section 4975(c)(1)(A)-(D) of the Code. The representation by the Company to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser's representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Series 2007-A Notes to be purchased by such Purchaser.
26. Private Offering by the Company. Neither the Company nor anyone acting on its behalf has offered the Series 2007-A Notes or, within the period of six-months prior to the Closing, any similar securities with which the Series 2007-A Notes could be integrated for purposes of the Securities Act for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers, each of which has been offered the Series 2007-A Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Series 2007-A Notes to the registration requirements of Section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.
28. Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the sale of the Series 2007-A Notes for general corporate purposes. No part of the proceeds from the sale of the Series 2007-A Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute more than 20% of the value of the consolidated assets of the Company and its Subsidiaries and the Company does not have any present intention that margin stock will constitute more than 20% of the value of such assets. As used in this Section, the terms "margin stock" and "purpose of buying or carrying" shall have the meanings assigned to them in said Regulation U.
30. Existing Debt; Future Liens.
31. 2. Except as described therein, Schedule 5.15 sets forth, as of October 1, 2007, (1) a complete and correct list of all outstanding Debt of the Company and its Subsidiaries having an outstanding principal balance in excess of $1,000,000 (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any, and Guaranty thereof, if any), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Debt and (2) the aggregate principal amount of outstanding Debt of the Company and its Subsidiaries in respect of obligations that, individually, have an outstanding principal balance of $1,000,000 or less, since which date there has been no Material change in the aggregate amount of such Debt. Neither the Company nor any Subsidiary is in default and no forbearance or temporary waiver of default is currently in effect, in the payment of any principal or interest on any Debt of the Company or such Subsidiary and no event or condition exists with respect to any Debt of the Company or any Subsidiary the outstanding principal amount of which exceeds $1,000,000 that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Debt to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
  4. Except as disclosed in Schedule 5.15 , neither the Company nor any Subsidiary has agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 10.4 .
  6. Neither the Company nor any Subsidiary is a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of the Company or such Subsidiary, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other organizational document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt of the Company, except as specifically indicated in Schedule 5.15 .
32. Foreign Assets Control Regulations, Etc.
33. 2. Neither the sale of the Series 2007-A Notes by the Company hereunder nor its use of the proceeds thereof as described in Section 5.14 will violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.
  4. Neither the Company nor any Subsidiary (1) is a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (2) engages in any dealings or transactions with any such Person. The Company and its Subsidiaries are in compliance, in all material respects, with the USA Patriot Act.
  6. No part of the proceeds from the sale of the Series 2007-A Notes hereunder will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that such Act applies to the Company.
34. Status under Certain Statutes. Neither the Company nor any Subsidiary is subject to regulation under the Public Utility Holding Company Act of 1935, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended.
36. Investment Company Act.
37. 2. The Company is an "investment 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.
  4. The Company conducts its business and other activities in compliance in all material respects with the applicable provisions of the Investment Company Act and any applicable rules, regulations or orders issued by the SEC thereunder.
  6. The business and other activities of the Company, including, but not limited to, the issuance and sale of the Series 2007-A Notes hereunder, the application of the proceeds and the repayment thereof by the Company and the consummation of the transactions contemplated by this Agreement and the Series 2007-A Notes do not violate in any material respect, with respect to the Company, the provisions of the Investment Company Act or any rules, regulations or orders issued by the SEC thereunder.
  8. Immediately after giving effect to the issuance and sale of the Series 2007-A Notes hereunder, the Asset Coverage Ratio shall not be less than 2.0 to 1.0.
38. Environmental Matters.
39. 2. Neither the Company nor any Subsidiary has knowledge of any claim or has received any notice of any claim, and no proceeding has been instituted raising any claim against the Company or any of its Subsidiaries or any of their respective real properties now or formerly owned, leased or operated by any of them or other assets, alleging any damage to the environment or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.
  4. Neither the Company nor any Subsidiary has knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.
  6. Neither the Company nor any Subsidiary has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them or has disposed of any Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that could reasonably be expected to result in a Material Adverse Effect.
  8. All buildings on all real properties now owned, leased or operated by the Company or any Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply could not reasonably be expected to result in a Material Adverse Effect.
40. Series 2007-A Notes Rank Pari Passu. The obligations of the Company under this Agreement and the Series 2007-A Notes rank at least pari passu in right of payment with all other unsecured Senior Debt (actual or contingent) of the Company, including, without limitation, all unsecured Senior Debt of the Company described in Schedule 5.15 .
42. Credit and Collection Policy; Investment Ratings Policy. The copies of the Credit and Collection Policy and the Investment Ratings Policy delivered to each Purchaser pursuant to Section 4.10 are true, complete and correct copies of the Credit and Collection Policy and Investment Ratings Policy as in effect on the date of the Closing.
Representations of the Purchasers.
2. Purchase for Investment. Each Purchaser severally represents that it is purchasing the Series 2007-A Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser's or such pension's or trust fund's property shall at all times be within such Purchaser's or such pension or trust fund's control. Each Purchaser understands that the Series 2007-A Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Series 2007-A Notes.
4. Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a "Source" ) to be used by such Purchaser to pay the purchase price of the Series 2007-A Notes to be purchased by such Purchaser hereunder:
5. 2. the Source is an "insurance company general account" (as the term is defined in the United States Department of Labor's Prohibited Transaction Exemption ( "PTE" ) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the National Association of Insurance Commissioners (the "NAIC Annual Statement" )) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser's state of domicile; or
  4. the Source is a separate account that is maintained solely in connection with such Purchaser's fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or
  6. the Source is either (1) an insurance company pooled separate account, within the meaning of PTE 90-1 or (2) a bank collective investment fund, within the meaning of PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
  8. the Source constitutes assets of an "investment fund" (within the meaning of Part V of PTE 84-14 (the "QPAM Exemption" )) managed by a "qualified professional asset manager" or "QPAM" (within the meaning of Part V of the QPAM Exemption), no employee benefit plan's assets that are included in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a Person controlling or controlled by the QPAM (applying the definition of "control" in Section V(e) of the QPAM Exemption) owns a 5% or more interest in the Company and (1) the identity of such QPAM and (2) the names of all employee benefit plans whose assets are included in such investment fund have been disclosed to the Company in writing pursuant to this clause (d); or
  10. the Source constitutes assets of a "plan(s)" (within the meaning of Section IV of PTE 96-23 (the "INHAM Exemption" )) managed by an "in-house asset manager" or "INHAM" (within the meaning of Part IV of the INHAM exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a Person controlling or controlled by the INHAM (applying the definition of "control" in Section IV(d) of the INHAM Exemption) owns a 5% or more interest in the Company and (1) the identity of such INHAM and (2) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
  12. the Source is a governmental plan; or
  14. the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA and of Section 4975 of the Code.
  As used in this Section 6.2 , the terms "employee benefit plan," "governmental plan" and "separate account" shall have the respective meanings assigned to such terms in Section 3 of ERISA.
6. Accredited Investor. Each Purchaser represents that it is an "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act acting for its own account (and not for the account of others) or as a fiduciary or agent for others (which others are also "accredited investors"). Each Purchaser further represents that such Purchaser has had the opportunity to ask questions of the Company and received answers concerning the terms and conditions of the sale of the Series 2007-A Notes.
Information as to Company.
2. Financial and Business Information . The Company shall deliver to each holder of Notes that is an Institutional Investor:
3. 2. Quarterly Statements - within 60 days (or such shorter period as is 15 days greater than the period applicable to the filing of the Company's Quarterly Report on Form 10-Q (the "Form 10-Q" ) with the SEC regardless of whether the Company is subject to the filing requirements thereof) after the end of each quarterly fiscal period in each fiscal year of the Company (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of,
  3. 2. a consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarter,
    4. a consolidated schedule of investments of the Company and its Subsidiaries as at the end of such quarter (the "Quarterly Schedule of Investments" ),
    6. consolidated statements of operations of the Company and its Subsidiaries for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter, and
    8. consolidated statements of changes in net assets and cash flows of the Company and its Subsidiaries for the portion of the fiscal year ending with such quarter,
    setting forth, in the case of clauses (1), (3) and (4) of this Section 7.1(a) , in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that delivery within the time period specified above of copies of the Company's Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC together with the Quarterly Schedule of Investments to the extent not included in such Form 10-Q shall be deemed to satisfy the requirements of this Section 7.1(a) , provided, further, that the Company shall be deemed to have made such delivery of such Form 10-Q if it shall have timely made such Form 10-Q available on "EDGAR" and through its home page on the worldwide web (which, at the date of this Agreement, is located at: http//www.mcgcapital.com) and shall have caused to be given timely notice thereof to each holder of the Notes, which notice may be by electronic mail to each such holder's e-mail address specified for such communications in Schedule A , or at such other e-mail address (or, if such holder is not a Purchaser, at such e-mail address) as such holder shall have specified to the Company in writing, of such availability (such availability and notice being referred to as "Electronic Delivery" ) in which event, if required hereby, the Company shall, concurrently therewith, separately deliver the Quarterly Schedule of Investments and the Company shall be deemed to have made such separate concurrent delivery of such schedule if it shall have timely given Electronic Notification thereof;
  4. Annual Statements - within 105 days (or such shorter period as is 15 days greater than the period applicable to the filing of the Company's Annual Report on Form 10-K (the "Form 10-K" ) with the SEC regardless of whether the Company is subject to the filing requirements thereof) after the end of each fiscal year of the Company, duplicate copies of,
  5. 2. a consolidated balance sheet of the Company and its Subsidiaries as at the end of such year,
    4. a consolidated schedule of investments of the Company and its Subsidiaries as at the end of such year (the "Annual Schedule of Investments" ), and
    6. consolidated statements of operations, changes in net assets and cash flows of the Company and its Subsidiaries for such year,
    setting forth, in the case of clauses (1) and (3) of this Section 7.1(b) , in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon of independent certified public accountants of recognized national standing or other independent certified public accountants reasonably acceptable to the Required Holders, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with the applicable standards of the Public Company Accounting Oversight Board (United States), and that such audit provides a reasonable basis for such opinion in the circumstances, provided that the delivery within the time period specified above of the Company's Form 10-K for such fiscal year prepared in accordance with the requirements therefor and filed with the SEC together with the Annual Schedule of Investments to the extent not included in such Form 10-K, shall be deemed to satisfy the requirements of this Section 7.1(b) , provided, further, that the Company shall be deemed to have made such delivery of such Form 10-K if it shall have timely made Electronic Delivery thereof, in which event, if required hereby, the Company shall, concurrently therewith, separately deliver the Annual Schedule of Investments and the Company shall be deemed to have made such separate concurrent delivery of such schedule if it shall have timely given Electronic Notification thereof;
  6. SEC and Other Reports - promptly upon their becoming available, one copy of (1) each financial statement, report, notice (other than notices of quarterly dividends) or proxy statement sent by the Company or any Subsidiary to its public securities holders generally and (2) each regular or periodic report, each registration statement that shall have become effective (without exhibits except as expressly requested by such holder), and each final prospectus and all amendments thereto filed by the Company or any Subsidiary with the SEC and of all press releases and other statements made available generally by the Company or any Subsidiary to the public concerning developments that are Material, provided that the Company shall not be required to deliver, pursuant to this Section 7.1(c) , any Form 10-K or Form 10-Q delivered, or deemed delivered, by the Company pursuant to Section 7.1(a) or Section 7.1(b) and provided further that the Company shall be deemed to have made such delivery of such reports and other information if it shall have timely made Electronic Delivery thereof or made available such reports and other information on IntraLinks® or a similar service reasonably acceptable to the Required Holders and, in either case, shall have caused to be given timely notice to each such holder of the Notes, which may include notice by electronic mail to each such holder's e-mail address specified for such communications in Schedule A , or at such other e-mail address (or, if such holder is not a Purchaser, at such e-mail address) as such holder shall have specified to the Company in writing, of such Electronic Delivery or the availability of such reports and other information on IntraLinks® or such other similar service (such availability and notice thereof being referred to as "Electronic Notification" );
  8. Notice of Default or Event of Default - promptly, and in any event within five Business Days after a Responsible Officer becoming aware (1) of the existence of any Event of Default, (2) of the existence of any Default, (3) that any Person has given any notice or taken any action with respect to a claimed default hereunder or (4) that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11(f) , a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;
  10. ERISA Matters - promptly, and in any event within five Business Days after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
  11. 2. with respect to any Plan, any reportable event, as defined in Section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date of the Closing; or
    4. the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or
    6. any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect;
  12. Notices from Governmental Authority - promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Company or any Subsidiary from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect, provided that the Company shall be deemed to have made such delivery of such notice if it shall have timely given Electronic Notification thereof;
  14. Supplements - to the extent not otherwise provided, promptly and in any event within 10 Business Days after the execution and delivery of any Supplement, a copy thereof; and
  16. Requested Information - with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company or any of its Subsidiaries (including, but without limitation, actual copies of the Company's Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the Notes as from time to time may be reasonably requested by any such holder of Notes.
4. Officer's Certificate. Each set of financial statements delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer setting forth (which, in the case of Electronic Delivery of any such financial statements, shall be by separate concurrent delivery of such certificate to each holder of Notes, provided that the Company shall be deemed to have made such separate concurrent delivery of such certificate if it shall have timely given Electronic Notification thereof):
5. 2. Covenant Compliance - the information (including detailed calculations) required in order to establish whether the Company was in compliance with the requirements of Section 10.1 through Section 10.5 , inclusive, and any covenant in a Supplement which specifically provides that it shall have the benefit of this clause (a) during the quarterly or annual period covered by the statements then being furnished (including with respect to each such Section and covenant, where applicable, the calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Sections or covenants, and the calculation of the amount, ratio or percentage then in existence); and
  4. Event of Default - a statement that such Senior Financial Officer has reviewed the relevant terms hereof (including all Supplements) and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company and its Subsidiaries from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Company or any Subsidiary to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.
6. Visitation. The Company shall permit the representatives of each holder of Notes that is an Institutional Investor:
7. 2. No Event of Default - if no Event of Default then exists, at the expense of such holder and upon reasonable prior notice to the Company, but no more than once in any fiscal year, to visit the principal executive office of the Company, to discuss the affairs, finances and accounts of the Company and its Subsidiaries with the Company's officers, and (with the consent of the Company, which consent will not be unreasonably withheld) its independent public accountants, and (with the consent of the Company, which consent will not be unreasonably withheld) to visit the other offices and properties of the Company and each Subsidiary, all at such reasonable times and as requested in writing; and
  4. Event of Default - if an Event of Default then exists, at the expense of the Company and upon reasonable prior notice to the Company, to visit and inspect any of the offices or properties of the Company or any Subsidiary, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company and its Subsidiaries), all at such times and as often as may be reasonably requested.
8. Limitation on Disclosure Obligation . The Company shall not be required to disclose the following information pursuant to Section 7.1(f) , Section 7.1(g) or Section 7.3 :
9. 2. information that the Company determines after consultation with independent counsel qualified to advise on such matters that, notwithstanding the confidentiality requirements of Section 20 , it would be prohibited from disclosing by applicable law, rule, regulation or order without making public disclosure thereof;
  4. information that the Company determines after consultation with independent counsel qualified to advise on such matters that, notwithstanding the confidentiality requirements of Section 20 , the Company is prohibited from disclosing by the terms of an obligation of confidentiality contained in any agreement with any non-Affiliate binding upon the Company and not entered into in contemplation of this clause (b), provided that the Company shall use commercially reasonable efforts to obtain consent from the party in whose favor the obligation of confidentiality was made to permit the disclosure of the relevant information; or
  6. information the reason for the non-disclosure of which is solely to preserve an attorney-client privilege available to the Company or a Subsidiary, as applicable, and that the Company determines, after consultation with independent counsel qualified to advise on such matters, would, if disclosed, no longer be entitled to the benefit of such attorney-client privilege notwithstanding the confidentiality requirements of Section 20 , provided that (1) such information was not made subject to such attorney-client privilege in contemplation of this clause (c) and (2) such non-disclosure is necessary to preserve such attorney-client privilege.
Promptly after a request therefor from any holder of Notes that is an Institutional Investor, the Company will provide such holder with a written opinion of counsel (which counsel may be in-house counsel and/or which opinion may (i) be subject to such assumptions, qualifications and exceptions as are typically included in opinions of such type and (ii) be addressed to the Company) substantiating that the information requested is not required to be disclosed to such holder pursuant to this Section 7.4 and, if at the time of such request no Default or Event of Default shall exist, the cost of providing such opinion, if provided by independent counsel, shall be shared equally between the Company and the requesting holder(s).
Payment and Prepayment of the Notes.
2. Required Prepayments.
3. 2. Series 2007-A Notes. The Series 2007-A Notes shall not be subject to any required prepayment and the entire unpaid principal amount of the Series 2007-A Notes shall become due and payable on the stated maturity date thereof.
  4. Required Prepayment of Additional Notes . Each Series and tranche, if applicable, of Additional Notes shall be subject to required prepayments as specified in the Supplement pursuant to which such Series and tranche, if applicable, of Additional Notes were issued.
4. Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, any Series of Notes, in an amount not less than $5,000,000 of the aggregate principal amount of such Series of Notes then outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, plus accrued and unpaid interest thereon to the date of such prepayment and the applicable Make-Whole Amount, if any, determined for the prepayment date with respect to such principal amount. Notwithstanding the foregoing, the Company may not prepay any Series of Notes under this Section 8.2 if a Default or Event of Default shall have occurred and be continuing or would result from such optional prepayment unless all Notes at the time outstanding are prepaid on a pro rata basis. The Company will give each holder of Notes of the Series to be prepaid (with a copy to each other holder of Notes) written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes of each Series to be prepaid on such date, the principal amount of each Note held by such holder to be prepaid (determined in accordance with Section 8.3 ), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated applicable Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes being prepaid a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.
6. Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes of a Series, the principal amount of the Notes of such Series to be prepaid shall be allocated among all of the Notes of such Series at the time outstanding in proportion, as nearly as practicab

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