**Execution Version**

 

**THIRD AMENDMENT TO TREASURY SECURED**

**REVOLVING CREDIT AGREEMENT**

 

**THISTHIRD AMENDMENT TO TREASURY SECURED REVOLVING CREDIT AGREEMENT**(this “***Amendment***”), is madeand entered into as of May 23, 2013, by and among NGP CAPITAL RESOURCES COMPANY, a Maryland corporation (the “***Borrower***”),the several banks and other financial institutions from time to time party hereto (collectively, the “***Lenders***”)and SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the “***Administrative Agent***”).

 

**WITNESSETH****:**

 

WHEREAS, the Borrower,the Lenders and the Administrative Agent are parties to a certain Treasury Secured Revolving Credit Agreement, dated as of March31, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “***Credit Agreement***”;capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Credit Agreement),pursuant to which the Lenders have made certain financial accommodations available to the Borrower;

 

WHEREAS, the Borrowerhas requested that the Lenders and the Administrative Agent amend certain provisions of the Credit Agreement, and subject to theterms and conditions hereof, the Lenders are willing to do so;

 

NOW, THEREFORE, forgood and valuable consideration, the sufficiency and receipt of all of which are acknowledged, the Borrower, the Lenders and theAdministrative Agent agree as follows:

 

1.          **Amendments**.

 

(a)          Therecitals of the Credit Agreement are hereby amended by replacing the second recital in its entirety with the following:

 

**WHEREAS**,the Borrower has entered into that certain Third Amended and Restated Revolving Credit Agreement, dated as of May 23, 2013, byand among the Borrower, the several banks and other financial institutions from time to time party thereto (the “InvestmentLenders”) and SunTrust Bank as administrative agent (as the same may be amended, restated, supplemented or otherwise modifiedfrom time to time, the “Investment Credit Agreement”);

 

(b)          Section1.1 of the Credit Agreement is hereby amended by replacing the definitions of “***Adjusted Asset Coverage Ratio***”,“***Asset Coverage Ratio***”, “***Change in Law***”, “***Excluded Taxes***”,“***FATCA***”, “***Foreign Lender***”, “***Governmental Authority***”,“***Indemnified Taxes***”, “***Marketable Securities***”, “***Obligations***”,“***Related Parties***”, “***Required Lenders***” and “***Taxes***”in their entirety with the following definitions:

 

“***AdjustedAsset Coverage Ratio***” shall mean, as of any date, the ratio of (i) Eligible Net Asset Value as of such date to (ii)the sum of (a) Consolidated Total Debt as of such date plus (b) the Net Mark to Market Exposure of Hedging Obligations of the Borrowerand its Subsidiaries as of such date; provided that, solely for purposes of calculating Adjusted Asset Coverage Ratio, ConsolidatedTotal Debt shall exclude all outstanding Indebtedness permitted to be incurred pursuant to Section 7.1(g) in an aggregateamount not to exceed $15,000,000.

 

 

“***AssetCoverage Ratio***” shall mean, as of any date, the ratio of (i) Eligible Net Asset Value as of such date to (ii) ConsolidatedTotal Debt as of such date; provided that, solely for purposes of calculating Adjusted Asset Coverage Ratio, ConsolidatedTotal Debt shall exclude all outstanding Indebtedness permitted to be incurred pursuant to Section 7.1(g) in an aggregateamount not to exceed $15,000,000.

 

“***Changein Law”*** shall mean any of the following: (i) the adoption of any applicable law, rule, regulation or treaty afterthe date of this Agreement, (ii) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementationor application thereof by any Governmental Authority after the date of this Agreement, (iii) compliance by any Lender (or its ApplicableLending Office) or the Issuing Bank (or for purposes of Section 2.16(b), by such Lender’s or the Issuing Bank’sparent corporation, if applicable) with any request, guideline or directive (whether or not having the force of law) of any GovernmentalAuthority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary, (x) theDodd-Frank Wall Street Reform and Consumer Protection act and all requests, rules, guidelines or directives thereunder or issuedin connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements,the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities,in each case, pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted,adopted or issued.

 

“***ExcludedTaxes***”******shall mean, with respect to any Recipient of any payment to be made by or on account of anyobligation of the Borrower hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes andbranch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having itsprincipal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (orany political subdivision thereof) or (ii) that are Other Connection Taxes, and (b) any U.S. federal withholding Taxes that areimposed on amounts payable to such Recipient pursuant to a law in effect on the date on which (i) such Recipient becomes a Recipientunder this Agreement (other than pursuant to an assignment request by the Borrower under Section 2.23) or (ii) such Recipientdesignates a new lending office, except in each case to the extent that pursuant to Section 2.18, amounts with respect tosuch Taxes were payable either (A) to such Recipient’s assignor immediately before such Recipient became a Recipient underthis Agreement, (B) to such Recipient immediately before it designated a new lending office, (C) any Taxes that are attributableto such Recipient’s failure to comply with Section 2.18(f), or (D) any U.S. federal withholding Taxes imposed underFATCA.

 

“***FATCA***”means sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantivelycomparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereofand any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

“***ForeignLender***”******shall mean (i) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b)if the Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that inwhich the Borrower is resident for tax purposes.

 

“***GovernmentalAuthority***” shall mean the government of the United States of America, any other nation or any political subdivisionthereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entityexercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or

 

 

pertaining to government (includingany supra-national bodies such as the European Union or the European Central Bank).

 

“***IndemnifiedTaxes***” shall mean (i) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on accountof any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in clause (a) above, OtherTaxes.

 

“***MarketableSecurities***” shall mean senior notes registered under the Securities Act of 1933 issued by a corporation incorporatedin the United States and engaged in crude oil, natural gas or other energy related businesses.

 

“***Obligations***”shall mean all amounts owing by the Borrower to the Administrative Agent or any Lender pursuant to or in connection with this Agreementor any other Loan Document, including without limitation, all principal, interest (including any interest accruing after the filingof any petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower,whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations,fees, expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to theAdministrative Agent and any Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect,absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, and all HedgingObligations owed to the Administrative Agent, any Lender or any of their Affiliates incurred in order to limit interest rate orfee fluctuation with respect to the Loans, and all obligations and liabilities incurred in connection with collecting and enforcingthe foregoing, together with all renewals, extensions, modifications or refinancings thereof; provided that “Obligations”shall exclude any Excluded Swap Obligations.

 

“***RelatedParties***” shall mean, with respect to any specified Person, such Person’s Affiliates and the respective managers,administrators, trustees, partners, directors, officers, employees, agents, advisors or other representatives of such Person andsuch Person’s Affiliates.

 

“***RequiredLenders***” shall mean, at any time, Lenders holding more than 66 2/3% of the aggregate outstanding Commitments at suchtime or if the Lenders have no Commitments outstanding, then Lenders holding more than 66 2/3% of the aggregate Credit Exposure;providedhowever, that to the extent that any Lender is a Defaulting Lender, such DefaultingLender and all of its Commitments and Credit Exposure shall be excluded for purposes of determining Required Lenders.

 

“***Taxes***”shall mean any and all present or future taxes, levies, imposts, duties, deductions withholdings (including backup withholding),assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penaltiesapplicable thereto.

 

(c)          Section1.1 of the Credit Agreement is hereby amended by adding the following definitions of “***Commodity Exchange Act***”,“***Defaulting Lender***”, “***Excluded Swap Obligation***”, “***Lender InsolvencyEvent***”, “***Non-Defaulting Lender***”, “***Other Connection Taxes***”, “***ParentCompany***”, “***Recipient***”, “***Swap Obligation***”, “***UnitedStates***”, “***U.S. Person***” and “***Withholding Agent***” in the appropriatealphabetical order:

 

“***Commodity ExchangeAct***” shall mean the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successorstatute.

 

 

“***DefaultingLender***” shall mean, at any time, (i) any Lender that has failed for two (2) or more Business Days to comply withits obligations under this Agreement to make a Loan or to make any other payment due hereunder (each a “funding obligation”),unless such Lender has notified the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’sdetermination that one or more conditions precedent to funding has not been satisfied (which conditions precedent, together withany applicable Default, will be specifically identified in such writing), (ii) any Lender that has notified the AdministrativeAgent or the Borrower in writing, or has stated publicly, that it does not intend to comply with any such funding obligation hereunder,unless such writing or public statement states that such position is based on such Lender’s determination that one or moreconditions precedent to funding cannot be satisfied (which conditions precedent, together with any applicable Default, will bespecifically identified in such writing or public statement), (iii) any Lender that has defaulted on its obligation to fund generallyunder any other loan agreement, credit agreement or other financing agreement, (iv) any Lender that has, for three (3) or moreBusiness Days after written request of the Administrative Agent or the Borrower, failed to confirm in writing to the AdministrativeAgent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender will ceaseto be a Defaulting Lender pursuant to this clause (iv) upon the Administrative Agent’s and the Borrower’s receipt ofsuch written confirmation), or (v) any Lender with respect to which a Lender Insolvency Event has occurred and is continuing. Anydetermination by the Administrative Agent that a Lender is a Defaulting Lender will be conclusive and binding, absent manifesterror, and such Lender shall be deemed to be a Defaulting Lender upon notification of such determination by the AdministrativeAgent to the Borrower and the Lenders.

 

“***ExcludedSwap Obligation***” shall mean, with respect to any Subsidiary Guarantor, any Swap Obligation if, and to the extentthat, all or a portion of the Guarantee of such Subsidiary Guarantor of, or the grant by such Subsidiary Guarantor of a securityinterest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or anyrule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof)by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” asdefined in the Commodity Exchange Act at the time the Guarantee of such Subsidiary Guarantor becomes effective with respect tosuch related Swap Obligation.

 

“***LenderInsolvency Event***” shall mean that (i) a Lender or its Parent Company is insolvent, or is generally unable to payits debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignmentfor the benefit of its creditors, or (ii) a Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization,liquidation or similar proceeding, or a receiver, trustee, conservator, custodian or the like has been appointed for such Lenderor its Parent Company, or such Lender or its Parent Company has taken any action in furtherance of or indicating its consent toor acquiescence in any such proceeding or appointment, or (iii) a Lender or its Parent Company has been adjudicated as, or determinedby any Governmental Authority having regulatory authority over such Person or its assets to be, insolvent.

 

“***Non-DefaultingLender***” shall mean, at any time, a Lender that is not a Defaulting Lender at such time.

 

“***OtherConnection Taxes***” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or formerconnection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient havingexecuted, delivered, become a party to, performed its obligations under, received payments under, received or perfected a

 

 

security interest under, engagedin any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

 

“***ParentCompany***” shall mean, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board RegulationY), if any, of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the sharesof such Lender.

 

“***Recipient***” shallmean, as applicable, (a) the Administrative Agent and (b) any Lender.

 

“***SwapObligation***” shall mean, with respect to any Subsidiary Guarantor, any obligation to pay or perform under any agreement,contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

 

“***United States***”or “U.S.” shall mean the United States of America.

 

“***U.S. Person***”shall mean any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 

“***Withholding Agent***”means the Borrower and the Administrative Agent.

 

(d)          Sections2.16(a) and (b) of the Credit Agreement are hereby amended in their entirety as follows:

 

(a)          Ifany Change in Law shall:

 

(i)          impose,modify or deem applicable any reserve, special deposit or similar requirement that is not otherwise included in the determinationof the Adjusted LIBO Rate hereunder against assets of, deposits with or for the account of, or credit extended by, any Lender (exceptany such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or****

 

(ii)         imposeon any Lender or the eurodollar interbank market any other condition affecting this Agreement or any Eurodollar Loans made by suchLender; or

 

(iii)        subjectany Recipient to any Taxes (other than Indemnified Taxes and Excluded Taxes) on its loans, loan principal, letters of credit, commitments,or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

 

and the result of any of the foregoingis to increase the cost to such Lender of making, converting into, continuing or maintaining a Eurodollar Loan or to reduce theamount received or receivable by such Lender hereunder (whether of principal, interest or any other amount), then, from time totime, such Lender may provide the Borrower (with a copy thereof to the Administrative Agent) with written notice and demand withrespect to such increased costs or reduced amounts, and within five (5) Business Days after receipt of such notice and demand theBorrower shall pay to such Lender such additional amounts as will compensate such Lender for any such increased costs incurredor reduction suffered.

 

(b)          Ifany Lender shall have determined that on or after the date of this Agreement any Change in Law regarding capital requirements hasor would have the effect of reducing the rate of return on such Lender’s capital (or on the capital of such Lender’sparent corporation) as a consequence of its obligations hereunder to a level below that which such Lender or such Lender’sparent corporation could have achieved but for such Change in Law (taking into consideration such Lender’s policies or thepolicies of such Lender’s parent corporation with respect to capital adequacy) then, from time to time,

 

 

 

 

within five (5) BusinessDays after receipt by the Borrower of written demand by such Lender (with a copy thereof to the Administrative Agent), the Borrowershall pay to such Lender such additional amounts as will compensate such Lender or such Lender’s parent corporation for anysuch reduction suffered.

 

(e)          Section2.18 of the Credit Agreement is hereby amended in its entirety as follows:

 

**Section2.18.****Taxes.**

 

(a)          Forpurposes of this Section 2.18, the term “applicable law” includes FATCA.

 

(b)          Anyand all payments by or on account of any obligation of the Borrower or any other Loan Party hereunder or under any other Loan Documentshall be made without deduction or withholding for any Taxes; provided that if any applicable law (as determined in thegood faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment,then the applicable Withholding Agent shall make such deduction or withholding and timely pay the full amount deducted or withheldto the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax or, then the sumpayable by the Borrower or other Loan Party, as applicable, shall be increased as necessary so that after making all required deductionsand withholdings (including deductions and withholdings applicable to additional sums payable under this Section 2.18(b))the applicable Recipient shall receive an amount equal to the sum it would have received had no such deductions or withholdingsbeen made.

 

(c)          Inaddition, without limiting the provisions of subsection (b) of this Section 2.18, the Borrower shall timely pay to the relevantGovernmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it forthe payment of, any Other Taxes.

 

(d)          TheBorrower shall indemnify each Recipient, within ten (10) Business Days after written demand therefor, for the full amount of anyIndemnified Taxes paid or payable by such Recipient or required to be withheld or deducted from a payment to such Recipient (includingIndemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.18) and any reasonableexpenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed orasserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrowerby the applicable Recipient (with a copy to the Administrative Agent in the case of a Recipient other than the Administrative Agent)shall be conclusive, absent manifest error.

 

(e)          Assoon as practicable after any payment of Indemnified Taxes by the Borrower or any other Loan Party to a Governmental Authority,the Borrower or other Loan Party, as applicable, shall deliver to the Administrative Agent an original or a certified copy of areceipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidenceof such payment reasonably satisfactory to the Administrative Agent.

 

(f)          Taxforms.

 

(i)          AnyLender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent, on or prior to the date on which suchLender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or theAdministrative Agent), duly executed originals of IRS Form W-9 certifying, that such Lender is exempt from U.S. federal backupwithholding tax. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver suchother documentation

 

 

prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower orthe Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

 

(ii)         AnyLender that is a Foreign Lender and that is entitled to an exemption from or reduction of withholding Tax under the Code or anytreaty to which the United States is a party with respect to payments under this Agreement shall deliver to the Borrower and theAdministrative Agent, at the time or times prescribed by applicable law, such properly completed and executed documentation prescribedby applicable law or reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made withoutwithholding or at a reduced rate of withholding. Without limiting the generality of the foregoing, each Lender that is a ForeignLender shall, to the extent it is legally entitled to do so, (w) on or prior to the date such Lender becomes a Lender under thisAgreement, (x) on or prior to the date on which any such form or certification expires or becomes obsolete, (y) after the occurrenceof any event requiring a change in the most recent form or certification previously delivered by it pursuant to this subsection,and (z) from time to time upon the reasonable request by the Borrower or the Administrative Agent, deliver to the Borrower andthe Administrative Agent (in such number of copies as shall be requested by the Borrower or the Administrative Agent), whicheverof the following is applicable:

 

(A)         ifsuch Lender is claiming eligibility for benefits of an income tax treaty to which the United States is a party (x) with respectto payments of interest under any Loan Document, duly executed originals of IRS Form W-8BEN, or any successor form thereto, establishingan exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty,and (y) with respect to any other applicable payments under any Loan Document, duly executed originals of IRS Form W-8BEN, or anysuccessor form thereto, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “businessprofits” or “other income” article of such tax treaty;

 

(B)         dulyexecuted originals of IRS Form W-8ECI, or any successor form thereto, certifying that the payments received by such Lender areeffectively connected with such Lender’s conduct of a trade or business in the United States;

 

(C)         ifsuch Lender is claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Code,duly executed originals of IRS Form W-8BEN, or any successor form thereto, together with a certificate (a “U.S. Tax ComplianceCertificate”) upon which such Lender certifies that (1) such Lender is not a bank for purposes of Section 881(c)(3)(A)of the Code, or the obligation of the Borrower hereunder is not, with respect to such Lender, a loan agreement entered into inthe ordinary course of its trade or business, within the meaning of that Section, (2) such Lender is not a 10% shareholder of theBorrower within the meaning of Section 871(h)(3) or Section 881(c)(3)(B) of the Code, (3) such Lender is not a controlled foreigncorporation that is related to the Borrower within the meaning of Section 881(c)(3)(C) of the Code, and (4) the interest paymentsin question are not effectively connected with a U.S. trade or business conducted by such Lender; or

 

(D)         ifsuch Lender is not the beneficial owner (for example, a partnership or a participating Lender granting a typical participation),duly executed originals of IRS Form W-8IMY, or any successor form thereto, accompanied by IRS

 

 

Form W-9, IRS Form W-8ECI, IRSForm W-8BEN, a U.S. Tax Compliance Certificate, and/or other certification documents from each beneficial owner, as applicable.

 

(iii)        EachLender agrees that if any form or certification it previously delivered under this Section expires or becomes obsolete or inaccuratein any respect and such Lender is not legally entitled to provide an updated form or certification, it shall promptly notify theBorrower and the Administrative Agent of its inability to update such form or certification.

 

(g)          Ifa payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lenderwere to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b)of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribedby law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribedby applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonablyrequested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to complywith their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCAor to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.18(g), “FATCA”shall include any amendments made to FATCA after the date of this Agreement.

 

(h)          Ifany party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which ithas been indemnified pursuant to this Section 2.18 (including by the payment of additional amounts pursuant to this Section 2.18),it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made underthis Section 2.18 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) ofsuch indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect tosuch refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amountpaid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority)in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anythingto the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifyingparty pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax positionthan the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not beendeducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had neverbeen paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any otherinformation relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

 

(f)          Section2.22 of the Credit Agreement is hereby amended in its entirety as follows:

 

**Section2.22.****Mitigation of Obligations.**If any Lender requests compensation under Section 2.16, or requiresthe Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account ofany Lender pursuant to Section 2.18, then such Lender shall (at the request of the Borrower) use reasonable efforts to designatea different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to anotherof its offices, branches or affiliates, if, in the sole judgment of such Lender, such designation or assignment (i) would eliminateor reduce amounts payable under Section 2.16 or Section 2.18, as the case may be, in the future and (ii) would notsubject such Lender to any unreimbursed cost or expense and would not otherwise be

 

 

disadvantageous to such Lender. The Borrowerhereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with such designation or assignment.

 

(g)          Section2.23 of the Credit Agreement is hereby amended in its entirety as follows:

 

**Section2.23.****Replacement of Lenders.** If (a) any Lender requests compensation under Section 2.16, orif the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority forthe account of any Lender pursuant to Section 2.18, or (b) any Lender is a Defaulting Lender, or (c) in connection with any proposedamendment, modification, termination, waiver or consent with respect to any of the provisions of this Agreement or the Loan Documents,the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “***NonConsenting Lender***”) whose consent is required shall not have been obtained, then the Borrower may, at its sole expenseand effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse(in accordance with and subject to the restrictions set forth in Section 10.4(b)), all of its interests, rights (other thanits existing rights to payments pursuant to Section 2.16 or 2.18, as applicable) and obligations under this Agreementand the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender,if a Lender accepts such assignment) (a “***Replacement Lender***”); provided that:

 

(a)          theBorrower shall have received the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld;

 

(b)          suchLender shall have received payment of an amount equal to the outstanding principal amount of all Loans owed to it, accrued interestthereon, accrued fees and all other amounts payable to it hereunder, from the assignee (in the case of such outstanding principaland accrued interest) and from the Borrower (in the case of all other amounts);

 

(c)          inthe case of a claim for compensation under Section 2.16 or payments required to be made pursuant to Section 2.18,such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignmentand delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowerto require such assignment and delegation cease to apply;

 

(d)          inthe case of a Non Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respectof which such terminated Lender was a Non Consenting Lender.

 

A Lender shall not be required to make any such assignment anddelegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower torequire such assignment and delegation cease to apply.

 

(h)          ArticleII of the Credit Agreement is hereby amended by adding the following new Section 2.24 to the end of such Article as follows:

 

**Section2.24.****Defaulting Lenders.**Notwithstanding anything to the contrary contained in this Agreement, ifany Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permittedby applicable law: 

 

 

(a)          SuchDefaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shallbe restricted as set forth in the definition of Required Lenders.

 

(b)          Anypayment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received by the Administrative Agentfrom a Defaulting Lender pursuant to Section 10.7 shall be applied at such time or times as may be determined by the AdministrativeAgent as follows: *first*, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;*second*, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respectof which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the AdministrativeAgent; *third*, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and releasedpro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under thisAgreement; *fourth*, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competentjurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of itsobligations under this Agreement; *fifth*, so long as no Default or Event of Default exists, to the payment of any amountsowing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such DefaultingLender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and *sixth*, to such DefaultingLender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment ofthe principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y)such Loans were made at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shallbe applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of anyLoans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitmentsunder the applicable Loan without giving effect to Section 2.19. Any payments, prepayments or other amounts paid or payableto a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.24(d)(ii)shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

 

(c)          NoDefaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender(and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that DefaultingLender).

 

(d)          Section7.1(g) of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

(g)          otherunsecured Indebtedness in an aggregate principal amount not to exceed $15,000,000 at any time outstanding;

 

(e)          Section10.1(a) of the Credit Agreement is hereby amended by replacing the notice information for the Administrative Agent as follows:

 

 

 

 

(f)          Section10.2(b) of the Credit Agreement is hereby amended by adding the following sentence to the end of clause (b) as follows:

 

Notwithstanding anything to thecontrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder,except that the Commitment of such Lender may not be increased or extended without the consent of such Lender.

 

(g)          Section10.7 of the Credit Agreement is hereby amended in its entirety as follows:

 

**Section10.7.****Right of Setoff.** In addition to any rights now or hereafter granted under applicable law andnot by way of limitation of any such rights, each Lender shall have the right, at any time or from time to time upon the occurrenceand during the continuance of an Event of Default, without prior notice to the Borrower, any such notice being expressly waivedby the Borrower to the extent permitted by applicable law, to set off and apply against all deposits (general or special, timeor demand, provisional or final) of the Borrower at any time held or other obligations at any time owing by such Lender to orfor the credit or the account of the Borrower against any and all Obligations held by such Lender irrespective of whether suchLender shall have made demand hereunder and although such Obligations may be unmatured. Each Lender agrees promptly to notifythe Administrative Agent and the Borrower after any such set-off and any application made by such Lender; provided, thatthe failure to give such notice shall not affect the validity of such set-off and application. Each Lender agrees to apply allamounts collected from any such set-off to the Obligations before applying such amounts to any other Indebtedness or other obligationsowed by the Borrower and any of its Subsidiaries to such Lender.

 

(h)          Schedule4.14 to the Credit Agreement is hereby amended and restated in its entirety in the form attached hereto as Exhibit A.

 

2.          **Conditionsto Effectiveness of this Amendment.**Notwithstanding any other provision of this Amendment and without affecting in anymanner the rights of the Lenders hereunder, it is understood and agreed that this Amendment shall not become effective, and theBorrower shall have no rights under this Amendment, until the Administrative Agent shall have received (i) such fees as the Borrowerhas previously agreed to pay the Administrative Agent or any of its affiliates in connection with this Amendment, (ii) reimbursementor payment of its costs and expenses incurred in connection with this Amendment or the Credit Agreement (including reasonable fees,charges and disbursements of King & Spalding LLP, counsel to the Administrative Agent), (iii) executed counterparts to thisAmendment from the Borrower and the Lenders, (iv) a favorable written opinion of counsel to the Borrower, addressed to the Administrativeand each of the Lenders, and covering such matters relating to the Borrower, the Amendment and the transactions contemplated thereinas the Administrative Agent shall reasonably request and (v) executed counterparts to the Investment Credit Agreement from eachof the parties party thereto.

 

3.          **Representationsand Warranties.** To induce the Lenders and the Administrative Agent to enter into this Amendment, the Borrower hereby representsand warrants to the Lenders and the Administrative Agent that:

 

(a)          TheBorrower and each of its Subsidiaries (other than any Foreclosed Subsidiary) (i) is duly organized, validly existing and in goodstanding as a corporation, partnership or limited liability company

 

 

under the laws of the jurisdiction of itsorganization, (ii) has all requisite power and authority to carry on its business as now conducted, and (iii) is duly qualifiedto do business, and is in good standing, in each jurisdiction where such qualification is required, except where a failure to beso qualified would not reasonably be expected to result in a Material Adverse Effect;

 

(b)          Theexecution, delivery and performance by the Borrower of the Loan Documents to which it is a party are within the Borrower’sorganizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or member,action;

 

(c)          Theexecution, delivery and performance by the Borrower of this Amendment and of the other Loan Documents to which it is a party (i)do not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except thoseas have been obtained or made and are in full force and effect, (ii) will not violate any Requirements of Law applicable to theBorrower or any of its Subsidiaries or any judgment, order or ruling of any Governmental Authority, (iii) will not violate or resultin a default under any indenture, material agreement or other material instrument binding on the Borrower or any of its Subsidiariesor any of its assets or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiariesand (iv) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, exceptLiens (if any) created under the Loan Documents;

 

(d)          ThisAmendment has been duly executed and delivered for the benefit of or on behalf of the Borrower and constitutes a legal, valid andbinding obligation of the Borrower, enforceable against the Borrower in accordance with its terms except as the enforceabilityhereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights andremedies in general; and

 

(e)          Aftergiving effect to this Amendment, the representations and warranties contained in the Credit Agreement and the other Loan Documentsare true and correct in all material respects, and no Default or Event of Default has occurred and is continuing as of the datehereof.

 

4.          **Acknowledgmentof Perfection of Security Interest.**The Borrower hereby acknowledges that, as of the date hereof, the security interestsand liens granted to the Administrative Agent and the Lenders under the Credit Agreement and the other Loan Documents are in fullforce and effect, are properly perfected and are enforceable in accordance with the terms of the Credit Agreement and the otherLoan Documents.

 

5.          **Effectof Amendment**. Except as set forth expressly herein, all terms of the Credit Agreement, as amended hereby, and the otherLoan Documents shall be and remain in full force and effect and shall constitute the legal, valid, binding and enforceable obligationsof the Borrower to the Lenders and the Administrative Agent. The execution, delivery and effectiveness of this Amendment shallnot, except as expressly provided herein, operate as a waiver of any right, power or remedy of the Lenders under the Credit Agreement,nor constitute a waiver of any provision of the Credit Agreement. This Amendment shall constitute a Loan Document for all purposesof the Credit Agreement.

 

6.          **GoverningLaw.**

 

(a)          ThisAmendment shall be construed in accordance with and be governed by the law (without giving effect to the conflict of law principlesthereof) of the State of New York.

 

(b)          TheBorrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the UnitedStates District Court of the Southern District of New York, and

 

 

of any state court of the State of NewYork sitting in New York County and any appellate court from any thereof, in any action or proceeding arising out of or relatingto this Amendment or any other Loan Document or the transactions contemplated hereby or thereby, or for recognition or enforcementof any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of anysuch action or proceeding may be heard and determined in such New York state court or, to the extent permitted by applicable law,such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusiveand may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Amendmentor any other Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any actionor proceeding relating to this Amendment or any other Loan Document against the Borrower or its properties in the courts of anyjurisdiction.

 

(c)          TheBorrower irrevocably and unconditionally waives any objection which it may now or hereafter have to the laying of venue ofany such suit, action or proceeding described in paragraph (b) of Section 10.5 of the Credit Agreement and brought in any courtreferred to in paragraph (b) of Section 10.5 of the Credit Agreement. Each of the parties hereto irrevocably waives, to the fullestextent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in anysuch court.

 

(d)          Eachparty to this Amendment irrevocably consents to the service of process in the manner provided for notices in Section 10.1 of theCredit Agreement. Nothing in this Amendment or in any other Loan Document will affect the right of any party hereto to serve processin any other manner permitted by law.

 

7.          **NoNovation.** This Amendment is not intended by the parties to be, and shall not be construed to be, a novation of the CreditAgreement or an accord and satisfaction in regard thereto.

 

8.          **Costsand Expenses**. The Borrower agrees to pay on demand all costs and expenses of the Administrative Agent in connection withthe preparation, execution and delivery of this Amendment, including, without limitation, the reasonable fees and out-of-pocketexpenses of outside counsel for the Administrative Agent with respect thereto.

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9.          **Counterparts.**This Amendment may be executed by one or more of the parties hereto in any number of separate counterparts,each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument.Delivery of an executed counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be as effectiveas delivery of a manually executed counterpart hereof.

 

10.         **BindingNature.** This Amendment shall be binding upon and inure to the benefit of the parties hereto, their respective successors,successors-in-titles, and assigns.

 

11.         **EntireUnderstanding.** This Amendment sets forth the entire understanding of the parties with respect to the matters set forthherein, and shall supersede any prior negotiations or agreements, whether written or oral, with respect thereto.

 

[*Signature Pages To Follow*]

 

 

**Execution Version**

 

IN WITNESS WHEREOF,the parties hereto have caused this Amendment to be duly executed, under seal in the case of the Borrower, by its respective authorizedofficers as of the day and year first above written.