Exhibit 10.30
AMENDMENT NO. 5, CONSENT AND WAIVER
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 5, CONSENT AND
WAIVER TO CREDIT AGREEMENT (this “ Amendment ”)
dated as of May 27, 2005, is entered into among GLADSTONE BUSINESS
LOAN, LLC, as the Borrower, TAHOE FUNDING CORP., LLC and PUBLIC
SQUARE FUNDING LLC, as CP Lenders (collectively, the “ CP
Lenders ”), DEUTSCHE BANK AG, NEW YORK BRANCH (“
Deutsche Bank ”) and KEYBANK, NATIONAL ASSOCIATION
(“ KeyBank ”), as Committed Lenders
(collectively, the “ Committed Lenders ”),
Deutsche Bank and KeyBank as Managing Agents (in such capacity,
collectively the “ Managing Agents ”) and
Deutsche Bank as Administrative Agent (in such capacity, the
“ Administrative Agent ”). Capitalized
terms used herein without definition shall have the meanings
ascribed thereto in the “Credit Agreement” referred to
below.
PRELIMINARY STATEMENTS
A.
Reference is made to that certain
Credit Agreement dated as of May 19, 2003 among the Borrower,
Gladstone Advisers, Inc., as Servicer, the CP Lenders, the
Committed Lenders, the Managing Agents and the Administrative Agent
(as amended, modified or supplemented from time to time, including,
without limitation, by that certain Resignation, Appointment and
Consent dated as of September 28, 2004, and as further amended,
restated, supplemented or modified from time to time, the “
Credit Agreement ”).
B.
The parties hereto have agreed to
(i) amend certain provisions of the Credit Agreement upon the terms
and conditions set forth herein and (ii) consent to the
modification by the Borrower and the Servicer of the Credit and
Collection Policy.
SECTION 1. Amendment
. Subject to the satisfaction of the conditions precedent set
forth in Section 4 hereof, the parties hereto hereby
agree:
(i)
to amend Section
1.1 by adding the following new definitions in alphabetical order,
as follows:
Post-Termination Revolver Loan
Fundings : means an
advance by the Committed Lenders, made on or following the Revolver
Loan Funding Date, which may be used for the sole purpose of
funding advances requested by Obligors under the Revolver
Loans.
Revolver Loan
: means each Loan with respect
to which the Borrower has a revolving credit commitment to advance
amounts to the applicable Obligor during a specified
term.
Revolver Loan Funding
: has the meaning given to
such term in Section 2.14 .
Revolver Loan Funding
Account : has the meaning
given to such term in Section 2.14 .
Revolver Loan Funding Account
Shortfall : means, on any
date, the amount, if any, by which the Revolver Loan Funding Amount
at such time exceeds the aggregate amount on deposit in the
Revolver Loan Funding Accounts.
Revolver Loan Funding Account
Surplus : means, on
any date, the amount, if any, by which the amount on deposit in the
Revolver Loan Funding Accounts exceeds the Revolver Loan Funding
Amount at such time.
Revolver Loan Funding
Amount : has the meaning
given to such term in Section 2.14 .
Revolver Loan Funding
Date : means the
Termination Date, if Revolver Loans are outstanding on such
date.
Servicing Fee Limit
Amount : means, for
each Payment Date, an amount equal to 50% of the Servicing Fee for
the related Settlement Period.
(ii)
to delete the
definition of “ Commitment Termination Date ” in
its entirety, and substitute the following therefor:
Commitment Termination
Date : means May 26,
2006, or such later date to which the Commitment Termination Date
may be extended (if extended) in the sole discretion of the Lenders
in accordance with the terms of Section 2.1(b) .
(iii)
to amend the
definition of “ Credit and Collection Policy ”
to delete the reference to “ Section 7.8(g) ”
set forth therein and substitute a reference to “ Section
7.9(g) ” therefor.
(iv)
to delete clause
(viii) of the definition of “Eligible Loan” and
substitute the following therefor:
(viii)
the Loan bears interest, which is
due and payable no less frequently than quarterly, except for (i)
Loans which bear interest which is due and payable no less
frequently than semi-annually, provided that the aggregate
Outstanding Loan Balances of such Loans do not exceed 10% of the
Aggregate Outstanding Loan Balance and (ii) PIK Loans,
(v)
to add the
following clauses (xxii) and (xxiii) to the definition of “
Eligible Loan ” in appropriate numeric order
therein:
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(xxii)
if such Loan is a Revolver Loan, it
shall be secured by a first priority, perfected security interest
on certain assets of the Obligor which shall include, without
limitation, accounts receivable and inventory; and
(xxiii) if
such Loan is a Revolver Loan, the revolving credit commitment of
the Borrower to the applicable Obligor thereunder (A) is between
$500,000 and $5,000,000, (B) shall have a term to maturity of one
year or less and (C) shall permit borrowings thereunder not more
frequently than once per week.
(vi)
to delete the
definition of “ Excess Concentration Amount ”
and substitute the following therefor:
Excess Concentration
Amount: On any
date of determination, the sum of, without duplication, (a) the
aggregate amount by which the Outstanding Loan Balances of Eligible
Loans included as part of the Collateral, the Obligors of which are
residents of any one state, exceeds 40% of the Aggregate
Outstanding Loan Balance, (b) the aggregate amount by which the
Outstanding Loan Balances of Eligible Loans included as part of the
Collateral, the Obligors of which are in the same Industry, exceeds
25% of the Aggregate Outstanding Loan Balance, (c) the aggregate
amount by which the Outstanding Loan Balance of each Eligible Loan
included as part of the Collateral exceeds the Large Loan Limit
applicable to such Eligible Loan, (d) the aggregate amount by which
the Outstanding Loan Balances of all Eligible Loans included as
part of the Collateral whose interest payments are due and payable
less frequently than monthly exceeds 66 2/3% of the Aggregate
Outstanding Loan Balance, (e) the aggregate amount by which the
Outstanding Loan Balances of all Eligible Loans included as part of
the Collateral which are PIK Loans exceeds 40% of the Aggregate
Outstanding Loan Balance, (f) the aggregate amount by which the
Outstanding Loan Balances of all Eligible Loans included as part of
the Collateral which are PIK Loans having a PIK accrual component
greater than 3.0% exceeds 25% of the Aggregate Outstanding Loan
Balance, (g) the aggregate amount by which the Outstanding Loan
Balances of all Eligible Loans that have original terms to maturity
greater than 84 months exceeds 10% of the Aggregate Outstanding
Loan Balance, (h) the aggregate amount by which the Outstanding
Loan Balances of Qualifying Syndicated Loans included as part of
the Collateral, for which no Subsequent Delivery Trust
Receipt
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(as defined in the Custody
Agreement) has been received exceeds $30,000,000, (i) the aggregate
Outstanding Loan Balances of all Loans which (A) do not have a
long-term credit rating from either S&P or Moody’s and
(B) are not priced by Standard & Poor’s Securities
Evaluations, Inc. on a quarterly basis and have not been so priced
by Standard & Poor’s Securities Evaluations, Inc. for a
period in excess of (x) with respect to the Loans described in
Annex III to that certain Amendment No. 4 hereto dated as of
September 28, 2004, 45 days from September 28, 2004 or (y)
otherwise, 135 days from the date such Loan becomes a Transferred
Loan, provided , however, that the requirements of this
clause (i) shall not apply to the Marcal RE Loan, (j) the
aggregate amount by which the Outstanding Loan Balances of all
Eligible Loans included as part of the Collateral which are
Revolver Loans exceeds $20,000,000 and (k) the aggregate amount by
which the Outstanding Loan Balances of all Eligible Loans that are
unsecured exceeds 10% of the Aggregate Outstanding Loan
Balance.
(vii)
to delete the
definition of “ Payment Date ” in its entirety,
and substitute the following therefor:
Payment Date
: means the seventh (7th) day of
each calendar month or, if such day is not a Business Day, the next
succeeding Business Day; provided that for purposes of
distributions required pursuant to Section 2.8(a)(vii) only,
“Payment Date” shall mean any Business Day.
(viii)
to amend Section
2.1(a) to delete the sentences “Such Funding Request shall be
delivered not later than 5:00 p.m. (New York City time) on the date
which is four (4) Business Days prior to the requested Funding
Date. Following receipt by the Administrative Agent of a
Funding Request, the Administrative Agent shall forward such
Funding Request to each Managing Agent not later than 12:00 p.m.
(New York City time) on the date which is three (3) Business Days
prior to the requested Funding Date.” and substitute the
following therefor:
Such Funding Request shall be
delivered not later than 10:00 a.m. (New York City time) on the
date which is one (1) Business Day prior to the requested Funding
Date. Following receipt by the Administrative Agent of a
Funding Request, the Administrative Agent shall forward such
Funding Request to each Managing Agent not later than 11:00 a.m.
(New York City time) that day.
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(ix)
to amend Section
2.2(c) to insert the phrase, “ provided that the
requirements of this Section 2.2(c) shall apply only with
respect to the first Advance to be made with respect to a Revolver
Loan” at the end of the first sentence thereof;
(x)
to amend Section
2.2(e) to delete the phrase “at least $3,000,000” and
substitute the phrase “at least $3,000,000, or, if such
Advance is to be made with respect to a Revolver Loan, at least
$100,000” therefor;
(xi)
to amend Section
2.3(b) to delete the phrase “at least three (3) Business Days
prior to the proposed Funding Date (or such shorter period of time
or later date as may be agreed to by the Required Committed
Lenders)” and substitute the phrase “at least one (1)
Business Day prior to the date of such repayment”
therefor
(xii)
to further amend
Section 2.3(b) to delete the phrase “$1,000,000 with integral
multiples of $100,000 above such amount” and substitute the
phrase “$1,000,000 with integral multiples of $100,000 above
such amount, or, with respect to any partial prepayment made in
connection with payments received in respect of a Revolver Loan,
$100,000 with integral multiples of $100,000 above such
amount” therefor;
(xiii)
to delete
“Section 2.8 Settlement Procedures” in its
entirety and substitute the section set forth in Annex I
therefor;
(xiv)
to amend Article
II to add the following Section 2.14 in numeric order
therein:
Section 2.14
Revolver Loan
Funding . (a) Upon the occurrence of a Revolver Loan
Funding Date (i) each CP Lender shall make an assignment to its
related Committed Lenders of its Advances Outstanding in respect of
Revolver Loans at such time and (ii) each Committed Lender shall
make an advance (each, a “ Revolver Loan Funding
”) in an amount equal to such Committed Lender’s
ratable share of the aggregate outstanding unfunded commitments
under the Revolver Loans (collectively, the “ Revolver
Loan Funding Amount ”). Upon receipt of the
proceeds of such Revolver Loan Funding, the Administrat
