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EXECUTION VERSION
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SENIOR SECURED
REVOLVING CREDIT AGREEMENT
dated as of
December 6, 2006
among
BLACKROCK KELSO 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
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CITIGROUP GLOBAL MARKETS, INC. and
J.P. MORGAN SECURITIES, INC.,
as Joint Lead Bookrunners and Joint Lead Arrangers
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<PAGE>
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)
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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)
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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)
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SCHEDULE I - Commitments
SCHEDULE II - Material Agreements and Liens
SCHEDULE III - Litigation
SCHEDULE IV - Investments
SCHEDULE V - Transactions with Affiliates
SCHEDULE VI - Moody's 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)
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Revolving Credit Agreement
Revolving Credit Agreement
SENIOR SECURED REVOLVING CREDIT AGREEMENT dated as of December 6,
2006,
between BLACKROCK KELSO 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
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"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
Kelso 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 Kelso Capital Advisors and (d)
Waiver
Reliance Letter, dated July 25, 2005, to Borrower from BlackRock
Kelso 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.
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"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,
Houlihan
Lokey, Howard & Zukin, Murray, Devine & 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).
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"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 Kelso Capital Advisors" means BlackRock Kelso 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 Kelso 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
<PAGE>
-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
Moody's;
(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 Moody's; 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 Moody's,
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 Moody's 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 Moody's 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.
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"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 Kelso 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
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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
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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
<PAGE>
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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,
<PAGE>
-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.
<PAGE>
-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
<PAGE>
-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
<PAGE>
-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 Kelso 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
<PAGE>
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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
<PAGE>
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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.
<PAGE>
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"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.
<PAGE>
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"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 Moody's 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
<PAGE>
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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
<PAGE>
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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
<PAGE>
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(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 Kelso
Capital
Advisors that succeeds BlackRock Kelso Capital Advisors as the sole
manager of
Holding in the event that BlackRock Kelso 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
<PAGE>
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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.
<PAGE>
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"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
<PAGE>
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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.
<PAGE>
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"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.
<PAGE>
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"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
<PAGE>
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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
<PAGE>
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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
<PAGE>
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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.
<PAGE>
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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
<PAGE>
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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
<PAGE>
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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
<PAGE>
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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
<PAGE>
-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
<PAGE>
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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
<PAGE>
-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.
<PAGE>
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(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
<PAGE>
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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.
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(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
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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);
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(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 (o
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