EX-10.2






Exhibit 10.2




AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of August 28, 2009




among

ALLIED CAPITAL CORPORATION,

Borrower




BANK OF AMERICA, N.A.,

Administrative Agent




BRANCH BANKING AND TRUST COMPANY,

Syndication Agent




SUNTRUST BANK

Documentation Agent




DEUTSCHE BANK AG NEW YORK BRANCH,




MORGAN STANLEY BANK

and

PNC BANK, NATIONAL ASSOCIATION

Managing Agents




and

LENDERS NAMED HEREIN,

Lenders




BANC OF AMERICA SECURITIES LLC,

Sole Lead Arranger and Sole Book Manager

TABLE OF CONTENTS




Page




	 	 	 	 	 	 	 	 	 
	SECTION 1.DEFINITIONS AND TERMS.1	 	 	 	 
	 	1.1	 	 	Definitions1
	 	 	 	 
	 	1.2	 	 	General; References to Times20
	 	 	 	 
	 	1.3	 	 	Accounting Principles21
	 	 	 	 
	 	1.4	 	 	Letter of Credit Amounts21
	 	 	 	 
	SECTION 2.CREDIT FACILITY.21
	 	2.1	 	 	Loans.21
	 	 	 	 
	 	2.2	 	 	Existing LCs.22
	 	 	 	 
	 	2.3	 	 	Rates and Payment of Interest on Loans.26
	 	 	 	 
	 	2.4	 	 	Number of Interest Periods27
	 	 	 	 
	 	2.5	 	 	Repayment of Loans.27
	 	 	 	 
	 	2.6	 	 	Prepayments.27
	 	 	 	 
	 	2.7	 	 	Continuation33
	 	 	 	 
	 	2.8	 	 	Conversion33
	 	 	 	 
	 	2.9	 	 	Loan Accounts, Promissory Notes.33
	 	 	 	 
	SECTION 3.PAYMENTS, FEES AND OTHER GENERAL PROVISIONS.	 	 	34	 
	 	3.1	 	 	Payments34
	 	 	 	 
	 	3.2	 	 	Pro Rata Treatment34
	 	 	 	 
	 	3.3	 	 	Sharing of Payments, Etc34
	 	 	 	 
	 	3.4	 	 	Offset35
	 	 	 	 
	 	3.5	 	 	Booking Borrowings35
	 	 	 	 
	 	3.6	 	 	Several Obligations35
	 	 	 	 
	 	3.7	 	 	Minimum Amounts.35
	 	 	 	 
	 	3.8	 	 	Fees.35
	 	 	 	 
	 	3.9	 	 	Computations36
	 	 	 	 
	 	3.10	 	 	Maximum Rate36
	 	 	 	 
	 	3.11	 	 	Interest Recapture36
	 	 	 	 
	 	3.12	 	 	Agreement Regarding Interest and Charges37
	 	 	 	 
	 	3.13	 	 	Defaulting Lenders.37
	 	 	 	 
	SECTION 4.YIELD PROTECTION, ETC.38	 	 	 	 
	 	4.1	 	 	Increased Cost and Reduced Return.38
	 	 	 	 
	 	4.2	 	 	Inability to Determine Rates40
	 	 	 	 
	 	4.3	 	 	Illegality40
	 	 	 	 
	 	4.4	 	 	Treatment of Affected Loans40
	 	 	 	 
	 	4.5	 	 	Compensation41
	 	 	 	 
	 	4.6	 	 	Taxes.41
	 	 	 	 
	 	4.7	 	 	Removal of Lenders43
	 	 	 	 
	SECTION 5.CONDITIONS PRECEDENT.44	 	 	 	 
	 	5.1	 	 	Conditions Precedent44
	 	 	 	 
	 	5.2	 	 	Subsidiary Guaranty and Collateral Documents46
	 	 	 	 
	SECTION 6.REPRESENTATIONS AND WARRANTIES.47	 	 	 	 
	 	6.1	 	 	Organization; Power; Qualification47
	 	 	 	 
	 	6.2	 	 	Ownership Structure48
	 	 	 	 
	 	6.3	 	 	Authorization; Governmental Authorization; Other Consents48
	 	 	 	 
	 	6.4	 	 	No Contravention49
	 	 	 	 
	 	6.5	 	 	Compliance with Law; Governmental Approvals49
	 	 	 	 
	 	6.6	 	 	Ownership of Assets; Leases49
	 	 	 	 
	 	6.7	 	 	Existing Indebtedness; Future Liens.50
	 	 	 	 
	 	6.8	 	 	Litigation50
	 	 	 	 
	 	6.9	 	 	Taxes50
	 	 	 	 
	 	6.10	 	 	Financial Statements; Material Liabilities51
	 	 	 	 
	 	6.11	 	 	ERISA51
	 	 	 	 
	 	6.12	 	 	Absence of Defaults; Observance of Agreements, Statutes, and Orders.
	 	 	51	 
	 	6.13	 	 	Environmental Matters.51
	 	 	 	 
	 	6.14	 	 	Investment Company52
	 	 	 	 
	 	6.15	 	 	Margin Stock52
	 	 	 	 
	 	6.16	 	 	Affiliate Transactions52
	 	 	 	 
	 	6.17	 	 	Licenses and Permits52
	 	 	 	 
	 	6.18	 	 	Disclosure52
	 	 	 	 
	 	6.19	 	 	RIC Status53
	 	 	 	 
	 	6.20	 	 	Foreign Assets Control Regulations, Etc.53
	 	 	 	 
	 	6.21	 	 	Business53
	 	 	 	 
	 	6.22	 	 	Insurance.53
	 	 	 	 
	 	6.23	 	 	Collateral Documents53
	 	 	 	 
	 	6.24	 	 	Solvency53
	 	 	 	 
	 	6.25	 	 	Binding Effect54
	 	 	 	 
	 	6.26	 	 	Survival of Representations and Warranties, Etc54
	 	 	 	 
	SECTION 7.AFFIRMATIVE COVENANTS.54	 	 	 	 
	 	7.1	 	 	Preservation of Existence and Similar Matters54
	 	 	 	 
	 	7.2	 	 	Compliance with Applicable Law54
	 	 	 	 
	 	7.3	 	 	Maintenance of Property55
	 	 	 	 
	 	7.4	 	 	Insurance55
	 	 	 	 
	 	7.5	 	 	Payment of Taxes and Claims55
	 	 	 	 
	 	7.6	 	 	Visits and Inspections55
	 	 	 	 
	 	7.7	 	 	Books and Records55
	 	 	 	 
	 	7.8	 	 	Conduct of Business56
	 	 	 	 
	 	7.9	 	 	ERISA Exemptions56
	 	 	 	 
	 	7.10	 	 	Collateral Requirements.56
	 	 	 	 
	 	7.11	 	 	Obligations59
	 	 	 	 
	 	7.12	 	 	Further Assurances59
	 	 	 	 
	 	7.13	 	 	Post-Closing Covenants59
	 	 	 	 
	SECTION 8.INFORMATION.59
	 	8.1	 	 	Quarterly Financial Statements59
	 	 	 	 
	 	8.2	 	 	Annual Statements59
	 	 	 	 
	 	8.3	 	 	Compliance Certificate; Investments Reports.60
	 	 	 	 
	 	8.4	 	 	Other Information.61
	 	 	 	 
	 	8.5	 	 	Collateral Report63
	 	 	 	 
	 	8.6	 	 	Asset Report Certificate63
	 	 	 	 
	 	8.7	 	 	Platform; Public/Private Information63
	 	 	 	 
	SECTION 9.NEGATIVE COVENANTS.64	 	 	 	 
	 	9.1	 	 	Financial Covenants64
	 	 	 	 
	 	9.2	 	 	Swap Contracts65
	 	 	 	 
	 	9.3	 	 	Limitation on Liens65
	 	 	 	 
	 	9.4	 	 	Restricted Payments66
	 	 	 	 
	 	9.5	 	 	Merger, Consolidation, Sales of Assets, Change of Control.67
	 	 	 	 
	 	9.6	 	 	Fiscal Year68
	 	 	 	 
	 	9.7	 	 	Transactions with Affiliates68
	 	 	 	 
	 	9.8	 	 	Employee Benefit Plans68
	 	 	 	 
	 	9.9	 	 	Prepayment of Other Debt.69
	 	 	 	 
	 	9.10	 	 	Nature of Business69
	 	 	 	 
	 	9.11	 	 	Amendment of Senior Note Agreement69
	 	 	 	 
	 	9.12	 	 	Section 18(a)(1)(A) of the Investment Company Act70
	 	 	 	 
	 	9.13	 	 	Terrorism Sanctions Regulations70
	 	 	 	 
	SECTION 10.DEFAULT.70
	 	10.1	 	 	Events of Default70
	 	 	 	 
	 	10.2	 	 	Remedies Upon Event of Default73
	 	 	 	 
	 	10.3	 	 	Allocation of Proceeds74
	 	 	 	 
	 	10.4	 	 	Performance by Administrative Agent75
	 	 	 	 
	 	10.5	 	 	Rights Cumulative75
	 	 	 	 
	 	10.6	 	 	Borrower Waivers75
	 	 	 	 
	 	10.7	 	 	Delegation of Duties and Rights75
	 	 	 	 
	 	10.8	 	 	Not in Control75
	 	 	 	 
	 	10.9	 	 	Course of Dealing76
	 	 	 	 
	SECTION 11.AGREEMENT AMONG LENDERS.76	 	 	 	 
	 	11.1	 	 	Appointment, and Authority76
	 	 	 	 
	 	11.2	 	 	Rights as a Lender76
	 	 	 	 
	 	11.3	 	 	Exculpatory Provisions76
	 	 	 	 
	 	11.4	 	 	Reliance by Administrative Agent77
	 	 	 	 
	 	11.5	 	 	Delegation of Duties77
	 	 	 	 
	 	11.6	 	 	Resignation of Administrative Agent77
	 	 	 	 
	 	11.7	 	 	Non-Reliance on Administrative Agent and Other Lenders78
	 	 	 	 
	 	11.8	 	 	No Other Duties, Etc.78
	 	 	 	 
	 	11.9	 	 	Administrative Agent May File Proofs of Claim78
	 	 	 	 
	 	11.10	 	 	Collateral and Guaranty Matters79
	 	 	 	 
	 	11.11	 	 	Cash Management Services Agreements80
	 	 	 	 
	SECTION 12.MISCELLANEOUS.80
	 	12.1	 	 	Notices.80
	 	 	 	 
	 	12.2	 	 	Expenses.83
	 	 	 	 
	 	12.3	 	 	Jurisdiction; Consent to Service of Process; Waiver of Jury Trial.
	 	 	84	 






12.4 Successors and Assigns. 85



12.5 Amendments, Etc. 87



12.6 Nonliability of Agent and Lenders 88



12.7 Confidentiality 89



12.8 INDEMNIFICATION. 89



12.9 Severability of Provisions 90



12.10 Waiver. 90



12.11 Release. 92



12.12 Governing Law 94



12.13 Counterparts 94



12.14 Entirety 94



12.15 Construction 94



12.16 Discharge Only Upon Payment in Full 94



12.17 Payments Set Aside 95



12.18 USA Patriot Act 95



12.19 INTERCREDITOR AGREEMENT. 95



	 	 	 	 	 
	SCHEDULES AND EXHIBITS	 	 	 	 
	Schedule 1

Schedule 2

Schedule 3

Schedule 5.2

Schedule 6.2

Schedule 6.2(c)

Schedule 6.3

Schedule 6.7

Schedule 6.8

Schedule 6.10

Schedule 6.22

Schedule 7.10(d) -

Schedule 7.13

Schedule 8.5

Schedule 9.3

	 	-

-

-

-

-

-

-

-

-

-

-

-

-

-
	 	Existing LCs

Lenders and Commitments

Designated Officers

Control Agreements

Ownership Structure

Specified Agreements

Consents/Filings

Indebtedness

Litigation

Financial Statements

Insurance

Excluded Real Property

Post-Closing Deliverables

Schedule of Assets

Permitted Liens
	Exhibit A-1

Exhibit A-2

Exhibit B

Exhibit C

Exhibit D

Exhibit E

Exhibit F

Exhibit G

Exhibit H

Exhibit I

Exhibit J

	 	-

-

-

-

-

-

-

-

-

-

-
	 	Form of Assignment and Assumption

Form of Administrative Questionnaire

Form of Notice of Continuation

Form of Notice of Conversion

Form of Promissory Note

Form of REO Mortgage

Form of Compliance Certificate

Form of Intercreditor Agreement

Form of Security Agreement

Form of Subsidiary Guaranty

Form of Certificate Regarding Assets






AMENDED AND RESTATED CREDIT AGREEMENT




THIS AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of August 28, 2009, by and among
ALLIED CAPITAL CORPORATION, a corporation organized under the laws of the State of Maryland
(“Borrower”), the Lenders (hereinafter defined), certain Agents (hereinafter defined), and BANK OF
AMERICA, N.A., as a Lender and as Administrative Agent (hereinafter defined) for itself and the
other Lenders.



RECITALS




A. Borrower, Administrative Agent, Agents and Lenders are parties to that certain Credit
Agreement dated as of April 9, 2008 (as amended by the First Amendment to Credit Agreement dated as
of December 30, 2008, the Consent to Extension of Collateral Effective Date dated as of January 30,
2009, the Consent to Second Extension of Collateral Effective Date dated as of February 6, 2009,
the commitment reduction letter dated March 26, 2009, and the commitment reduction letter dated
July 14, 2009, the “Existing Credit Agreement”).



B. Pursuant to the terms of the Existing Credit Agreement, the Lenders have made Revolving
Loans (as defined in the Existing Credit Agreement) and LC Issuer has issued the Existing LCs.



C. Certain Events of Default under and as defined in the Existing Credit Agreement have
occurred and are continuing as of the date hereof, including those referenced in the commitment
reduction letter dated July 14, 2009 (collectively, together with the Applicable Events of Default
(hereinafter defined), the “Existing Defaults”).



D. Borrower has requested that the Lenders waive the Existing Defaults, restructure the
obligations under the Existing Credit Agreement, and amend certain terms and conditions of the
Existing Credit Agreement, and the Lenders and Administrative Agent have agreed to do so in
accordance with the terms and conditions of this Agreement, which amends and restates the Existing
Credit Agreement in its entirety.



Accordingly, in consideration of the mutual covenants contained herein, Borrower, Agents,
Administrative Agent, and Lenders agree that the Existing Credit Agreement is hereby amended and
restated in its entirety, as follows:



	 	 	 
	SECTION 1.

	 	DEFINITIONS AND TERMS.
	 

	 	

	1.1

	 	







Definitions. As used herein:



“Adequate Rating” means a senior unsecured debt rating of A- or higher by Standard & Poor’s
Rating Services or Fitch Ratings, or a rating of A3 or higher by Moody’s Investors Services.



“Adjusted EBIT” means, for any period with respect to Borrower and its Consolidated
Subsidiaries on a consolidated basis, income after deduction of all expenses and other proper
charges other than Taxes, Interest Expense and non-cash employee stock options expense and
excluding (a) net realized gains or losses, (b) net change in unrealized appreciation or
depreciation, (c) gains on re-purchases of Debt, and (d) the amount of interest paid-in-kind
(“PIK”) to the extent such amount exceeds the sum of (i) PIK interest collected in cash and (ii)
realized gains collected in cash (net of realized losses); provided that the amount determined
pursuant to this clause (d)(ii) shall not be less than 0, all as determined in accordance with
GAAP.



“Adjusted Eurodollar Rate” means, for any Eurodollar Loan for any Interest Period therefor,
the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by
Administrative Agent to be equal to the quotient obtained by dividing (a) the Eurodollar Rate for
such Eurodollar Loan for such Interest Period by (b) one minus the Reserve Requirement for such
Eurodollar Loan for such Interest Period.



“Adjusted Interest Expense” means, for any period with respect to Borrower and its
Consolidated Subsidiaries on a consolidated basis, cash interest paid in respect of the stated rate
of interest (including any default rate of interest, if applicable) applicable to any Debt. For
the avoidance of doubt, “Adjusted Interest Expense” shall not include the fees set forth in Section
3.8 to the extent paid on the Closing Date, any other expenses incurred by Borrower or any of its
Consolidated Subsidiaries in connection with the closing of this Agreement (including, but not
limited to, any amounts paid by Borrower pursuant to Section 3.8(g)), and any expenses incurred by
Borrower or its Consolidated Subsidiaries in connection with the closing of the Senior Note
Agreement (including, without limitation, the Make-Whole Fee and the Closing Restructuring Fee
(each as defined in the Senior Note Agreement and as used herein as therein defined) and the
amounts paid to the Existing Noteholders pursuant to Section 5.14(e)(ii) of the Senior Note
Agreement (but solely if the condition set forth in Section 10.4 of the Senior Note Agreement is
satisfied), in each case to the extent included in the calculation of “Interest Expense” as such
term is used in the definition of “Adjusted EBIT”.



“Administrative Agent” means Bank of America, N.A., and its permitted successors or assigns as
“Administrative Agent” for Lenders under this Agreement.



“Administrative Questionnaire” means an Administrative Questionnaire substantially in the form
of Exhibit A-2 or any other form approved by Administrative Agent.



“Affected Lender” has the meaning given that term in Section 4.7.



“Affiliate” means, (a) as to Borrower or any Consolidated Subsidiary, any Person (other than a
Consolidated Subsidiary or Portfolio Company) which directly or indirectly through one or more
intermediaries controls, is controlled by, or is under common control with, Borrower or such
Consolidated Subsidiary; and (b) as to any other Person, any Person which (i) directly or
indirectly, or through one or more intermediaries controls, or is controlled by, or is under common
control with, such Person, (ii) beneficially owns or holds 5.0% or more of any class of the Voting
Stock of such Person, or (iii) 5.0% or more of the Voting Stock (or in the case of a Person which
is not a corporation, 5.0% or more of the Equity Interest) of which is beneficially owned by such
Person. For purposes of this definition, (x) “control” (including with correlative meanings, the
terms “controlling,” “controlled by,” and “under common control with”) means the possession
directly or indirectly of the power to direct or cause the direction of the management and policies
of a Person, whether through the ownership of Voting Stock, by contract, or otherwise, other than
by investment advisory contracts entered into in the ordinary course of business of Borrower or a
Consolidated Subsidiary of Borrower, and (y) neither Administrative Agent nor any Lender shall be
deemed to be an “Affiliate” of Borrower.



“Agents” means, collectively, Syndication Agent, Documentation Agent, and Managing Agents.



“Agreement” means this Amended and Restated Credit Agreement (as the same may hereafter be
amended, modified, supplemented, or restated from time to time).



“Agreement Date” means the date as of which this Agreement is dated.



“Anti-Terrorism Order” means Executive Order No. 13,224 of September 24, 2001, Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.



“Applicable Debt” means (a) Outstanding Public Debt, (b) Debt under the Senior Notes, and (c)
Debt in an aggregate principal amount of $25,000,000 or more.



“Applicable Events of Default” has the meaning given such term in Section 12.10.



“Applicable Law” means all applicable provisions of constitutions, statutes, rules,
regulations, and orders of all governmental bodies and all applicable orders and decrees of all
courts, tribunals, and arbitrators.



“Applicable Rate” means (a) 5.50% per annum for Eurodollar Loans and 4.50% per annum for Base
Rate Loans for the period from the Closing Date through December 31, 2009, and (b) thereafter,
6.00% per annum for Eurodollar Loans and 5.00% per annum for Base Rate Loans.



“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



“Arm’s-Length Transaction” means, at any time and with respect to any property, an
arm’s-length sale at such time between an informed and willing buyer and an informed and willing
seller.



“Arranger” means Banc of America Securities LLC and its successors and assignees in its
capacity as “Lead Arranger” and “Book Manager.”



“Asset Coverage Ratio” shall mean, on a consolidated basis for Borrower and its Consolidated
Subsidiaries, the ratio which the value of total assets, less all liabilities and indebtedness not
represented by Senior Securities (all as determined pursuant to the Investment Company Act and any
orders of the Securities and Exchange Commission issued to Borrower thereunder), bears to the
aggregate amount of Senior Securities representing indebtedness of Borrower and its Consolidated
Subsidiaries.



“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investor advisor.



“Assignment and Assumption” means an Assignment and Assumption agreement among a Lender, an
Eligible Assignee, and Administrative Agent, substantially in the form of Exhibit A-1 or such other
form as may be agreed to by such Lender, such Eligible Assignee, and Administrative Agent.



“Assignment Fee” means a processing and recordation fee charged by Administrative Agent for
each assignment in the amount of $3,500.



“Attorney Costs” means and includes all reasonable fees, expenses, and disbursements of any
law firm or other external counsel.



“Bank of America” means Bank of America, N.A. and its permitted successors and assigns.



“Base Rate” means, for any day, a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate for such day plus one-half of one percent (0.5%), (b) the rate of interest in
effect for such day as publicly announced from time to time by Bank of America as its “prime rate”,
and (c) four percent (4.0%) per annum. The “prime rate” is a rate set by Bank of America based
upon various factors including Bank of America’s costs and desired return, general economic
conditions, and other factors, and is used as a reference point for pricing some loans, which may
be priced at, above, or below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in the public
announcement of such change.



“Base Rate Loan” means a Loan bearing interest at a rate based on the Base Rate.



“Book Value” means, at any date of determination with respect to any asset, the value thereof
as the same would be reflected on a consolidated balance sheet of Borrower and its Consolidated
Subsidiaries as at such time prepared in accordance with GAAP.



“Borrower” is defined in the preamble to this Agreement and includes any permitted successors
or assigns of Borrower.



“Borrower Materials” means all materials and/or information provided by or on behalf of
Borrower to Administrative Agent and/or Arranger.



“Borrower’s Knowledge” means the actual knowledge of the senior officers set forth on Schedule
3 hereto.



“Business Day” means (a) any day other than a Saturday, Sunday, or other day on which banks in
New York City, New York, Dallas, Texas, or the state in which the Principal Office of
Administrative Agent is located are authorized or required to close and (b) in addition to the
foregoing, with reference to a Eurodollar Loan, any such day that is also a day on which dealings
in Dollar deposits are carried out in the London interbank market and commercial banks are open for
international business in London.



“Capitalized Lease” shall mean any lease the obligation for Rentals with respect to which is
required to be capitalized on a consolidated balance sheet of the lessee and its Consolidated
Subsidiaries in accordance with GAAP.



“Capitalized Rentals” of any Person shall mean as of the date of any determination thereof the
amount at which the aggregate Rentals due and to become due under all Capitalized Leases under
which such Person is a lessee would be reflected as a liability on a consolidated balance sheet of
such Person.



“Cash Collateralize” means to pledge and deposit cash with Administrative Agent or the
Collateral Agent, for the benefit of LC Issuer, Administrative Agent, and the Lenders (and, if
required by the Intercreditor Agreement, for the benefit of all Secured Parties as defined in the
Intercreditor Agreement), as collateral for the LC Exposure and the other Obligations, as may be
required herein or by the terms of the other Loan Documents, pursuant to documentation in form and
substance reasonably satisfactory to Administrative Agent and LC Issuer. Derivatives of such word
shall have corresponding meanings.



“Cash Management Bank” means any Person that, at the time it enters into a Cash Management
Services Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such
Cash Management Services Agreement.



“Cash Management Services Agreement” means any agreement to provide cash management services,
including treasury, depository, overdraft, controlled disbursement, automated clearinghouse
transactions, return items, electronic funds transfer, and other cash management arrangements, that
is entered into by and between Borrower or any Consolidated Subsidiary and a Cash Management Bank.



“Change of Control” means if any Person or Persons acting in concert, together with affiliates
thereof, shall in the aggregate, directly or indirectly, control or own (beneficially or otherwise)
more than 50% (by number of shares) of the issued and outstanding Voting Stock of Borrower.



“Change in Law” has the meaning given such term in Section 4.1(a).



“Closing” means consummation of the transactions contemplated by this Agreement upon the
execution and delivery of this Agreement by Borrower and the Lenders hereto and the payment of all
amounts required to be paid pursuant to Sections 5.1(b), 5.1(c), 5.1(d), 5.1(e), and 5.1(f).



“Closing Date” means the date on which the Closing occurs.



“Collateral” means “Collateral” as described in the Security Agreement, together with any
other property and collateral in which a Lien in favor of Collateral Agent may now or hereafter be
created under the Collateral Documents.



“Collateral Agent” means U.S. Bank National Association, in its capacity as collateral agent
under the Collateral Documents, together with its successors and assigns in such capacity appointed
pursuant to the terms hereof.



“Collateral Documents” has the meaning set forth in the Security Agreement.



“Commercial Mortgage Loan” means a loan secured by a Lien on improved real estate used for
commercial purposes.



“Commitment” means, as to each Lender, the amount set forth for such Lender on Schedule 2 as
such Lender’s “Commitment Amount” or as set forth in the applicable Assignment and Assumption, as
the same may be reduced from time to time pursuant to Section 2.6 or as appropriate to reflect any
assignments to or by such Lender effected in accordance with Section 12.4 or to reflect any
non-ratable repayments of an Affected Lender pursuant to Section 4.7.



“Commitment Percentage” means, as to each Lender the ratio, expressed as a percentage, of (a)
the amount of such Lender’s Commitment to (b) the sum of the aggregate amount of the Commitments of
all Lenders.



“Compliance Certificate” means a certificate signed by a Senior Financial Officer of Borrower,
substantially in the form of Exhibit F.



“Consolidated Debt” shall mean as of the date of any determination thereof, the aggregate
unpaid principal amount of all Debt of Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.



“Consolidated Subsidiary” and “Consolidated Subsidiaries” shall mean any and all Subsidiaries
(other than Allied Capital Beteiligungsberatung GmbH, a dormant Consolidated Subsidiary being
liquidated) which are required to be consolidated on financial statements of Borrower prepared in
accordance with GAAP.



“Consolidated Total Adjusted Assets” means the aggregate Book Value (without duplication) of
assets of Borrower and its Consolidated Subsidiaries which (a) constitute Collateral (which for the
avoidance of doubt includes all cash constituting Collateral), or (b) which are owned by a Pledge
LLC; provided that for purposes of determining Consolidated Total Adjusted Assets, the (x)
aggregate Book Value of assets which are owned by all Pledge LLCs shall not exceed 25% of
Consolidated Total Adjusted Assets and (y) the aggregate value of any Excluded Collateral shall not
be included in such determination.



“Contingent Obligation” by any Person means all obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or collection) of such Person
guaranteeing, or in effect guaranteeing, any Indebtedness, dividend or other obligation of any
other Person (the “primary obligor”) in any manner, whether directly or indirectly, including,
without limitation, all obligations incurred through an agreement, contingent or otherwise, by such
Person: (a) to purchase such Indebtedness or obligation or any property or assets constituting
security therefor, (b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, or (ii) to maintain working capital or other balance sheet condition or
otherwise to advance or make available funds for the purchase or payment of such Indebtedness or
obligation, (c) to lease property or to purchase Securities or other property or services primarily
for the purpose of assuring the owner of such Indebtedness or obligation of the ability of the
primary obligor to make payment of the Indebtedness or obligation, or (d) otherwise to assure the
owner of the Indebtedness or obligation of the primary obligor against loss in respect thereof.
For the purposes of all computations made under this Agreement, a Contingent Obligation in respect
of any Indebtedness for borrowed money shall be deemed to be Indebtedness equal to the principal
amount of such Indebtedness for borrowed money which has been guaranteed, and a Contingent
Obligation in respect of any other obligation or liability or any dividend shall be deemed to be
Indebtedness equal to the maximum aggregate amount of such obligation, liability or dividend.



“Continue,” “Continuation,” and “Continued” each refers to the continuation of a Eurodollar
Loan from one Interest Period to another Interest Period pursuant to Section 2.7.



“Control Event” means (i) the execution by Borrower or any of its Consolidated Subsidiaries or
Affiliates of any agreement or letter of intent with respect to any proposed transaction or event
or series of transactions or events which, individually or in the aggregate, may reasonably be
expected to result in a Change of Control, (ii) the execution of any written agreement which, when
fully performed by the parties thereto, would result in a Change of Control, or (iii) the making of
any written offer by any person (as such term is used in section 13(d) and section 14(d)(2) of the
Exchange Act as in effect on the date of the Closing) or related persons constituting a group (as
such term is used in Rule 13d-5 under the Exchange Act as in effect on the date of the Closing) to
the holders of the common stock of Borrower, which offer, if accepted by the requisite number of
holders, would result in a Change of Control.



“Controlled Foreign Corporation” has the meaning set forth in the Security Agreement.



“Convert,” “Conversion,” and “Converted” each refers to the conversion of a Loan of one Type
into a Loan of another Type pursuant to Section 2.8.



“Credit Rating” means, at any time as to any Person, the lowest rating assigned by a Rating
Agency to each series of rated senior unsecured long term indebtedness of such Person.



“Custody Control Agreement” has the meaning set forth in the Security Agreement.



“Debt” means, with respect to any Person, at the time of computation thereof, all of the
following (without duplication); provided that solely for the purposes of calculating compliance
with the financial covenants in Section 9.1, “Debt” shall not include clause (f) below:




(a) its liabilities for borrowed money and under repurchase agreements (whether on a
recourse or non-recourse basis);




(b) its liabilities, whether or not for money borrowed (i) represented by notes payable
or drafts accepted, in each case representing extensions of credit or (ii) evidenced by
bonds, debentures, notes, or similar instruments;




(c) its liabilities for the deferred purchase price of property acquired by such Person
(excluding accounts payable arising in the ordinary course of business, but including all
liabilities created or arising under any conditional sales contracts or other title
retention agreement with respect to any property, and any or other similar instruments upon
which interest charges are customarily paid or that are issued or assumed as full or partial
payment for such property);




(d) its Capitalized Rentals;




(e) all liabilities for borrowed money secured by any Lien with respect to any property
owned by such Person (whether or not it has assumed or otherwise become liable for such
liabilities);




(f) all reimbursement obligations of such Person under any letters of credit or
acceptances or instruments serving a similar function issued or accepted for its account by
banks and other financial institutions (whether or not the same have been presented for
payment), and all obligations of such Person as the issuer of any letters of credit,
acceptances or such other instruments (whether or not the same have been presented for
payment);




(g) its liabilities under Swap Contracts entered into for the purpose of hedging
interest rate or currency risks with respect to Debt; and




(h) any Contingent Obligation of such Person with respect to liabilities of a type
described in any of clauses (a) through (g) hereof;




provided that any amount receivable by Borrower or any of its Consolidated Subsidiaries
under a Swap Contract referred to in the preceding clause (g), as determined in accordance
with the definition of Swap Contract, shall apply as an offset in the calculation of the
total amount of Debt if and only if (i) the counterparty in such Swap Contract has an
Adequate Rating or (ii) in the event such counterparty ceases to maintain an Adequate
Rating, such counterparty has posted collateral to the benefit of Borrower or the relevant
Consolidated Subsidiary to secure such receivable, in which case, the amount of such
receivable that shall apply as an offset in the calculation of the total amount of Debt
shall be limited to the fair market value of such collateral.




“Debt” of any Person shall include all obligations of such Person of the character described
in clauses (a) through (g) to the extent such Person remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.



“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.



“Default” means an event or condition the occurrence or existence of which would, with the
giving of notice, the lapse of time, or both, become an Event of Default.



“Defaulting Lender” has the meaning given that term in Section 3.13.



“De Minimis Employee Buybacks” means the acquisition for a de minimis purchase price by
Borrower from employees or directors of Borrower of unexercised options issued under Borrower’s
Amended Stock Option Plan; provided (a) such acquisition is made to facilitate the refinancing of a
substantial portion of the Obligations and (b) the aggregate purchase price for all such
acquisitions at any time while the Obligations are outstanding does not exceed $500,000.



“Deposit Account Control Agreement” has the meaning set forth in the Security Agreement.



“Disclosure Documents” means Borrower’s Form 10-K for the fiscal year ended December 31, 2008,
Borrower’s Form 10-Qs for the fiscal quarterly periods ended March 31, 2009 and June 30, 2009,
respectively, and its current reports filed on Form 8-K subsequent to August 10, 2009.



“Disposition” or “Dispose” means the sale, transfer, license, lease, or other disposition
(including any sale and leaseback transaction) of any property by any Person (or the granting of
any option or other right to do any of the foregoing), including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights or
claims associated therewith. For the avoidance of doubt, (a) the bona fide repayment or prepayment
in the customary course of business of any Indebtedness owing from a Portfolio Company to Borrower
or any Consolidated Subsidiary (and the transfer, assignment, sale, or release of any instrument or
other asset relating thereto) shall not be considered a Disposition of such asset and (b) the sale
of Borrower’s or any Consolidated Subsidiary’s machinery, equipment, vehicles, furniture, or
fixtures shall not be considered a “Disposition” of an asset.



“Documentation Agent” means SunTrust Bank, and its permitted successors or assigns as
“Documentation Agent” under this Agreement.



“Dollars” or “$” means the lawful currency of the United States of America.



“Eligible Assignee” means (a) a Lender; (b) an Affiliate of any Lender; (c) an Approved Fund;
and (d) any other Person approved by Administrative Agent and (unless an Event of Default has
occurred and is continuing at the time any assignment is effected in accordance with Section 12.4)
Borrower, such approval not to be unreasonably withheld or delayed by Borrower or Administrative
Agent and such approval to be deemed given by Borrower if no objection is received by the assigning
Lender and Administrative Agent from Borrower within five Business Days after notice of such
proposed assignment has been provided by the assigning Lender to Borrower; provided, however, that
neither Borrower nor an Affiliate of Borrower nor any Portfolio Company shall qualify as an
Eligible Assignee.



“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of Hazardous Materials, but only to the extent
applicable to Borrower or any other Grantor.



“Equity Interests” means, with respect to any Person, all of the shares of capital stock of
(or other ownership or profit interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are outstanding on any date of
determination.



“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, together with the regulations thereunder, in each case as in
effect from time to time. References to sections of ERISA shall be construed to also refer to any
successor sections.



“ERISA Affiliate” shall mean any corporation, trade, or business (other than any Portfolio
Company) that is, along with Borrower, a member of a controlled group of corporations or a group of
trades or businesses under common control, as described in sections 414(b) and 414(c),
respectively, of the Code or section 4001(14) of ERISA.



“Eurodollar Loan” means a Loan bearing interest at a rate based on the Eurodollar Rate.



“Eurodollar Rate” means, for any Interest Period, with respect to a Eurodollar Loan, the
greater of (a) the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source providing quotations of
BBA LIBOR as designated by Administrative Agent from time to time) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period and (ii) 3.00% per annum. If such rate is not available at such time for any
reason, then the “Eurodollar Rate” for such Interest Period shall be the rate per annum determined
by Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the Eurodollar Loan being
continued or converted by Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.



“Event of Default” means any of the events specified in Section 10.1; provided that, any
requirement for notice or lapse of time or any other condition has been satisfied.



“Excess Collateral” has the meaning set forth in the Security Agreement.



“Exchange Act” has the meaning given that term in Section 6.15.



“Excluded Assets” has the meaning set forth in the Security Agreement.



“Excluded Collateral” means, as of any applicable date of determination, Excess Collateral for
which the Perfection Requirement has not been timely satisfied as of such date of determination
pursuant to the terms of the Security Agreement.



“Excluded Taxes” means, with respect to Administrative Agent, any Lender, LC Issuer, or any
other recipient of any payment to be made by or on account of any obligation of Borrower hereunder,
(a) taxes imposed on or measured by its overall net income (however denominated), and franchise
taxes imposed on it (in lieu of net income taxes), 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 or any similar tax imposed by any other
jurisdiction in which Borrower is located, and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by Borrower under Section 4.7), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto
(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 having the force of law) to comply with
Section 4.6(e), except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment), to receive additional
amounts from Borrower with respect to such withholding tax pursuant to Section 4.6.



“Existing Credit Agreement” has the meaning specified in the Recitals.



“Existing Note Agreements” has the meaning set forth in the Senior Note Agreement.



“Existing LCs” means all letters of credit issued and outstanding under the Existing Credit
Agreement and identified on Schedule 1, which remain issued and outstanding on the Closing Date.



“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded upwards, if necessary,
to the nearest 1/100 of 1%) charged to Bank of America on such day on such transactions as
determined by Administrative Agent.



“Fee Letter” means the fee letter agreement dated as of August 28, 2009, between Borrower and
Administrative Agent (as amended or modified from time to time).



“Fees” means the fees and commissions provided for or referred to in Section 3.8 and any other
fees payable by Borrower to Administrative Agent, any other Agent, LC Issuer, or any Lender
hereunder or under any other Loan Document.



“Financing Documents” has the meaning set forth in the Senior Note Agreement.



“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other
than that in which Borrower is resident for tax purposes. For purposes of this definition, the
United States, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.



“GAAP” means generally accepted accounting principles at the time in the United States.



“Governmental Approvals” means all authorizations, consents, approvals, licenses, and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.



“Governmental Authority” means (a) the government of (i) the United States of America or any
state or other political subdivision thereof, or (ii) any jurisdiction in which Borrower or any
Consolidated Subsidiary conducts all or any part of its business, or which asserts jurisdiction
over any properties of Borrower or any Consolidated Subsidiary, or (b) any entity exercising
executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any
such government.



“Grantors” means, collectively, Borrower, the Subsidiary Grantors, and any other Person that
now or hereafter grants a Lien on its property or assets to secure the Obligations, and
individually, any of the foregoing.



“Hazardous Materials” means any and all pollutants, toxic, or hazardous wastes or other
substances that pose a hazard to health and safety, the removal of which are required by Applicable
Law, or the generation, manufacture, refining, production, processing, treatment, storage,
handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or
filtration of which is or shall be restricted, prohibited, or penalized by any Applicable Law
including, but not limited to, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum, petroleum products, lead based paint, radon gas, or similar restricted,
prohibited or penalized substances.



“Indebtedness” with respect to any Person means, at any time, without duplication,




(a) its liabilities for borrowed money and its redemption obligations in respect of
mandatorily redeemable preferred stock;




(b) its liabilities for the deferred purchase price of property acquired by such
Person (excluding accounts payable arising in the ordinary course of business but including
all liabilities created or arising under any conditional sale or other title retention
agreement with respect to any such property);




(c) all liabilities appearing on its balance sheet in accordance with GAAP in respect
of Capitalized Leases;




(d) all liabilities for borrowed money secured by any Lien with respect to any
property owned by such Person (whether or not it has assumed or otherwise become liable for
such liabilities);




(e) all its liabilities in respect of unreimbursed drawings under letters of credit or
instruments serving a similar function issued or accepted for its account by banks and
other financial institutions (whether or not representing obligations for borrowed money);




(f) Swap Contracts of such Person; and




(g) any Contingent Obligation of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.



Indebtedness of any Person shall include all obligations of such Person of the character
described in clauses (a) through (g) to the extent such Person remains legally liable in respect
thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.



“Indemnified Taxes” means Taxes other than Excluded Taxes.



“Intercreditor Agreement” means the Intercreditor and Collateral Agency Agreement
substantially in the form of Exhibit G hereto dated as the date hereof by and among Administrative
Agent (on behalf of itself and the Lenders), the Collateral Agent, and the Noteholders and
consented and agreed to by Borrower, each of the Subsidiary Grantors, and Pledge LLC, the form and
substance of which is acceptable to the Requisite Lenders, as the same may be amended, modified,
restated, supplemented, or replaced from time to time in accordance with the terms thereof.



“Interest Expense” means, with respect to a Person and for any period, the total consolidated
interest expense (including capitalized interest expense, interest expense attributable to
Capitalized Leases, and losses attributable to the extinguishment of Debt) of such Person and in
any event shall include all interest expense with respect to any Debt in respect of which such
Person is wholly or partially liable.



“Interest Period” means, with respect to any Eurodollar Loan, each period commencing on the
date such Eurodollar Loan is converted or continued, as applicable, or the last day of the next
preceding Interest Period for such Loan and ending on the date 7, 14, or 21 days or on the
numerically corresponding day in the first, second, third, or sixth calendar month thereafter, as
Borrower may select in a Notice of Continuation or Notice of Conversion, as the case may be, except
that each Interest Period for a Eurodollar Loan (other than a 7, 14, or 21 day Interest Period)
that commences on the last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month) shall end on the last
Business Day of the appropriate subsequent calendar month. Notwithstanding the foregoing: (i) if
any Interest Period would otherwise end after the Maturity Date, such Interest Period shall end on
the Maturity Date, (ii) each Interest Period that would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day (or, except in the case of a 7, 14, or
21 day Interest Period, if such next succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day), and (iii) notwithstanding the immediately preceding
clause (i), no Interest Period for any Eurodollar Loan shall have a duration of less than one month
(other than a 7, 14, or 21 day Interest Period), and, if the Interest Period for any Eurodollar
Loan would otherwise be a shorter period, such Loan shall not be available hereunder for such
period.



“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, together with the
rules and regulations promulgated thereunder.



“Investment” means, with respect to any Person and whether or not such investment constitutes
a controlling interest in such Person (a) the purchase or other acquisition of any share of capital
stock, evidence of Debt, or other security issued by any other Person; (b) any loan, advance, or
extension of credit to, or contribution (in the form of money or goods) to the capital of, or the
acquisition of a sale leaseback asset from and the lease thereof to, any other Person; (c) any
guaranty of the Debt of any other Person; (d) any other investment in any other Person; and (e) any
commitment or option to make an Investment in any other Person.



“Investment Company Act” means the Investment Company Act of 1940, as amended, and the rules
and regulations promulgated thereunder.



“Investment Grade Rating” means a Credit Rating of BBB– or higher by S&P, Baa3 or higher by
Moody’s, or the equivalent or higher of either such rating by another Rating Agency.



“ISP” means, with respect to any Existing LC, the rules of the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



“LC Agreement” means, with respect to any Existing LC, a letter of credit application and
agreement submitted by Borrower to LC Issuer for such Existing LC for its own account.



“LC Exposure” means, at any time and without duplication, the sum of (a) the aggregate undrawn
portion of all uncancelled and unexpired Existing LCs plus (b) the aggregate unpaid reimbursement
obligations of Borrower in respect of drawings of drafts under any Existing LC. For purposes of
computing the amount available to be drawn under any Existing LC, the amount of such Existing LC
shall be determined in accordance with Section 1.4. For all purposes of this Agreement, if on any
date of determination an Existing LC has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Existing LC shall be deemed to
be “outstanding” in the amount so remaining available to be drawn.



“LC Fee” has the meaning specified in Section 3.8.



“LC Issuer” means Bank of America and its permitted successors as “LC Issuer” under this
Agreement.



“Lenders” means the Lenders from time to time party hereto, and, as the context requires,
includes LC Issuer. As of the Closing Date, the Lenders are the Persons named as Lenders on
Schedule 2 hereto.



“Lending Office” means, as to any Lender, the office or offices of such Lender described as
such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify Borrower and Administrative Agent.



“Lien” has the meaning set forth in the Security Agreement.



“Loan Documents” means (a) this Agreement, the Promissory Notes, Existing LCs, LC Agreements,
the Intercreditor Agreement, each Subsidiary Guaranty, the Collateral Documents, and the Fee
Letter, (b) all agreements, documents, or instruments in favor of Administrative Agent, LC Issuer,
or Lenders executed and delivered by Borrower or any Consolidated Subsidiary pursuant to this
Agreement or otherwise delivered by Borrower or any Consolidated Subsidiary in connection with all
or any part of the Obligations on and after the Closing Date, and (c) any and all future renewals,
extensions, restatements, reaffirmations, amendments of, or supplements to, all or any part of the
foregoing.



“Loan Parties” means, collectively, Borrower, each Subsidiary Guarantor, and each Grantor.



“Loans” means the extensions of credit in the form of loans made by Lenders to Borrower under
the Existing Credit Agreement that remain outstanding on the Closing Date as such loans are
Continued and Converted.



“Major Event of Default” has the meaning set forth in the Intercreditor Agreement.



“Managing Agents” means, collectively, Deutsche Bank AG New York Branch, Morgan Stanley Bank
and PNC Bank, National Association, and their respective permitted successors or assigns as
“Managing Agents” under this Agreement.



“Material” means material in relation to the business, operations, affairs, financial
condition, assets, or properties of Borrower and its Consolidated Subsidiaries taken as a whole.



“Material Adverse Effect” means a material adverse effect on (a) the business, affairs,
financial condition, operations, assets, or properties, of Borrower and its Consolidated
Subsidiaries taken as a whole, (b) the ability of Borrower to perform its material obligations
under (i) this Agreement, (ii) the Security Agreement, (iii) the Intercreditor Agreement, or (iv)
the remaining Loan Documents (taken as a whole, for all such remaining Loan Documents), (c) the
validity or enforceability of (i) this Agreement, (ii) the Security Agreement, (iii) the
Intercreditor Agreement, or (iv) the remaining Loan Documents (taken as a whole for all such
remaining Loan Documents), or (d) the rights and remedies of Lenders and Administrative Agent under
(i) this Agreement, (ii) the Security Agreement, (iii) the Intercreditor Agreement, or (iv) the
remaining Loan Documents (taken as a whole for all such remaining Loan Documents). Except with
respect to representations made or deemed made by Borrower or any Consolidated Subsidiary in this
Agreement or in any of the other Loan Documents to which it is a party, all determinations of
materiality shall be made by the Requisite Lenders in their reasonable judgment unless expressly
provided otherwise.



“Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in
excess of $25,000,000.



“Material Subsidiary” means, as of the date of any determination thereof, any Consolidated
Subsidiary which has total assets having a value (determined from time to time in accordance with
the market valuation method pursuant to GAAP) greater than or equal to $60,000,000.



“Maturity Date” means the earlier of (a) November 13, 2010, or (b) such earlier date upon
which the Obligations are declared due and payable in accordance with the terms hereof.



“Maximum Amount” and “Maximum Rate” respectively mean, for each Lender, the maximum
non-usurious amount and the maximum non-usurious rate of interest which, under Applicable Law, such
Lender is permitted to contract for, charge, take, reserve, or receive on the Obligations.



“Moody’s” means Moody’s Investors Services, Inc.



“Multiemployer Plan” has the meaning as in ERISA.



“Net Proceeds” means, with respect to any Disposition by Borrower or any Consolidated
Subsidiary, the excess, if any, of (a) the sum of cash and cash equivalents received in connection
with, and which relate to, such transaction (including any cash or cash equivalents received by way
of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as
and when so received) over (b) the sum of (i) the principal amount of any Debt that is secured by
the applicable asset and that is required to be repaid in connection with such transaction (other
than Debt under the Financing Documents), (ii) the reasonable and customary out-of-pocket expenses
incurred by Borrower or such Consolidated Subsidiary in connection with such transaction, including
selling expenses such as reasonable brokers’ or finders’ fees or commissions, incentive bonuses or
compensation paid to third parties, legal, accounting and other professional and transactional fees
and transfer and similar taxes reasonably estimated to be paid within three months after the date
of the relevant transaction, (iii) income taxes reasonably estimated to be actually payable within
two years after the date of the relevant transaction as a result of any gain recognized in
connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause
(iii) exceeds the amount of taxes actually required to be paid in cash in respect of such
Disposition, the aggregate amount of such excess shall constitute Net Proceeds, (iv) amounts
provided as a reserve, in accordance with GAAP, against (A) any liabilities under any
indemnification obligations associated with such Disposition or (B) any other liabilities retained
by Borrower or any of its Consolidated Subsidiaries associated with the properties sold in such
Disposition (provided that, to the extent and at the time any such amounts are released from such
reserve, such amounts shall constitute Net Proceeds), (v) Borrower’s good faith estimate of
payments required to be made within 180 days of such Disposition with respect to unassumed
liabilities relating to the properties sold (provided that, to the extent such cash proceeds are
not used to make payments in respect of such unassumed liabilities within 180 days after such
Disposition, such cash proceeds shall constitute Net Proceeds), and (vi) Borrower’s good faith
estimate of all reserves necessary or prudent to be held with respect to earn-outs or similar
contingent or future liabilities related to such Disposition (provided that, to the extent and at
the time any such amounts are released from such reserve, such amounts shall constitute Net
Proceeds).



“Note Obligations” has the meaning set forth in the Intercreditor Agreement.



“Noteholders” means, collectively, as of any date of determination, the holders of Senior
Notes.



“Notice of Continuation” means a notice in the form of Exhibit B to be delivered to
Administrative Agent pursuant to Section 2.7, evidencing Borrower’s request for the Continuation of
a Eurodollar Loan.



“Notice of Conversion” means a notice in the form of Exhibit C to be delivered to
Administrative Agent pursuant to Section 2.8, evidencing Borrower’s request for the Conversion of a
Loan from one Type to another Type.



“Obligations” means, individually and collectively: (a) the aggregate principal balance of and
all accrued and unpaid interest on, all Loans, and (b) all other indebtedness, liabilities,
obligations, covenants and duties of Borrower or any other Loan Party owing to Administrative
Agent, LC Issuer, or any Lender of every kind, nature and description, under or in respect of this
Agreement or any of the other Loan Documents, and all indebtedness and obligations of Borrower or
any of its Consolidated Subsidiaries under any Cash Management Services Agreement owing to a Cash
Management Bank, in each case including all Fees and indemnification obligations, whether direct or
indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, and whether or not evidenced by any promissory note.



“Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws and any amendments thereto (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating agreement
and any amendments thereto; and (c) with respect to any partnership, joint venture, trust, or other
form of business entity, the partnership, joint venture, or other applicable agreement of formation
or organization and any amendments thereto, and any agreement, instrument, filing, or notice with
respect thereto filed in connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any
certificate or articles of formation or organization of such entity.



“Other Taxes” means all present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.



“Outstanding Public Debt” means, at any time, the then outstanding principal amount of
Indebtedness issued under the Indenture by and between Borrower and The Bank of New York, dated as
of June 16, 2006, as supplemented by (a) the First Supplemental Indenture by and between Borrower
and The Bank of New York, dated as of July 25, 2006, pursuant to which Borrower has issued its
$400,000,000 6.625% Notes due July 15, 2011, (b) the Second Supplemental Indenture by and between
Borrower and The Bank of New York, dated as of December 8, 2006, pursuant to which Borrower has
issued its $250,000,000 6.0% Notes due April 1, 2012, and (c) the Third Supplemental Indenture by
and between Borrower and The Bank of New York, dated as of March 28, 2007, pursuant to which
Borrower has issued its $230,000,000 6.875% Notes due April 15, 2047.



“Participant” has the meaning given that term in Section 12.4(d).



“PBGC” means the Pension Benefit Guaranty Corporation and any successor agency.



“Perfection Requirement” has the meaning set forth in the Security Agreement.



“Permitted Liens” has the meaning given that term in Section 9.3.



“Permitted Preferred Stock” means preferred stock that is issued from time to time by a
Consolidated Subsidiary for the purpose of qualifying such Consolidated Subsidiary as a real estate
investment trust under Sections 856 through 860 of the Internal Revenue Code and having an
aggregate stated value not exceeding $500,000 at any one time outstanding; provided that, in any
event Permitted Preferred Stock shall not include any Voting Stock.



“Person” means an individual, corporation, partnership, limited liability company,
association, trust or unincorporated organization, or a government or any agency or political
subdivision thereof.



“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan)
which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412
and 430 of the Internal Revenue Code and either (a) is maintained, or contributed to, by Borrower
or any ERISA Affiliate for employees of Borrower or any ERISA Affiliate or (b) has at any time
within the preceding five years been maintained, or contributed to, by Borrower or any Person which
was at such time an ERISA Affiliate for employees of Borrower or any Person which was at such time
an ERISA Affiliate.



“Platform” has the meaning given that term in Section 8.7.



“Pledge LLC” means one or more Wholly-Owned Consolidated Subsidiaries, each of which (a) has
title to personal or real property which would constitute Collateral but for limitations in the
documents which govern such personal or real property which restrict the grant of a Lien in respect
thereof, (b) has no Debt outstanding other than (i) Debt owing to Borrower which has been evidenced
by a promissory note and the holder thereof has pledged the same to the Collateral Agent pursuant
to the Collateral Documents, and (ii) Debt arising under the Subsidiary Guaranty executed by Pledge
LLC, and (c) has had all of its Voting Stock and Debt owing to Borrower pledged to the Collateral
Agent as Collateral.



“Portfolio Company” means any Person that is accounted for under GAAP as a portfolio
Investment of either Borrower or a Subsidiary of Borrower.



“Post-Default Rate” means (a) when used with respect to Obligations other than LC Fees, an
interest rate equal to the sum of (i) the Base Rate plus the Applicable Rate and (ii) 2% per annum;
provided, however, that with respect to a Eurodollar Loan, the Post-Default Rate shall be an
interest rate equal to the interest rate applicable to such Loan as specified in Section 2.3(a)(ii)
plus 2% per annum, and (b) when used with respect to LC Fees, a rate equal to the rate specified in
Section 3.8(e) plus 2% per annum.



“Principal Debt” means, at any time of determination thereof (but without duplication), the
aggregate unpaid principal balance of all Loans plus the LC Exposure.



“Principal Office” means either (a) so long as Bank of America is Administrative Agent, the
office of Bank of America presently located at 2001 Clayton Rd, Concord, CA 94520; or (b) if Bank
of America is no longer Administrative Agent, then the office of the successor Administrative Agent
appointed pursuant to Section 11.6.



“Priority Debt” means (without duplication) (a) all Debt of Borrower and its Consolidated
Subsidiaries secured by a Lien, (b) all liabilities of Borrower and its Consolidated Subsidiaries
in respect of Swap Contracts if such liabilities are secured by a Lien or are obligations of a
Consolidated Subsidiary, and (c) all unsecured Debt of Consolidated Subsidiaries (excluding in each
case, any Debt or liability owing to Borrower or a Subsidiary Guarantor).



“Promissory Note” means a promissory note substantially in the form of Exhibit D, and all
renewals and extensions of all or any part thereof.



“Quarterly Date” means the fifteenth (15th) day of March, June, September, and
December in each year, the first of which shall be September 15, 2009.



“Rating Agency” means S&P, Moody’s, or any other nationally recognized securities rating
agency selected by Borrower and acceptable to Administrative Agent.



“Reference 10-K” means the Form 10-K filed by Borrower with the Securities and Exchange
Commission for the fiscal year ending December 31, 2008.



“Register” has the meaning given that term in Section 12.4(c).



“Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents, trustees and advisors of such Person and of such
Person’s Affiliates.



“Rentals” shall mean and include as of the date of any determination thereof all fixed
payments (including as such all payments which the lessee is obligated to make to the lessor on
termination of the lease or surrender of the property) payable by Borrower or any Consolidated
Subsidiary, as lessee or sublessee under a lease of real or personal property, but shall be
exclusive of any amounts required to be paid by Borrower or any Consolidated Subsidiary (whether or
not designated as rents or additional rents) on account of maintenance, repairs, insurance, taxes
and similar charges. Fixed rents under any so-called “percentage leases” shall be computed solely
on the basis of the minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.



“REO” means that certain real property owned in fee simple by Allied Capital Holdings LLC,
known as Holiday Inn West Chester and located at 943 South High Street, West Chester, Pennsylvania.



“Reportable Event” means a reportable event within the meaning of Section 4043 of ERISA for
which the reporting to the PBGC is not waived.



“Required Secured Creditors” has the meaning set forth in the Intercreditor Agreement.



“Requisite Lenders” means on any date of determination those Lenders holding more than 51% of
the aggregate Principal Debt.



“Reserve Requirement” means, at any time, the maximum rate at which reserves (including any
marginal, special, supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the Federal Reserve System (or
any successor) by member banks of the Federal Reserve System against, in the case of Eurodollar
Loans, “Eurocurrency liabilities” (as such term is used in Regulation D of the Board of Governors
of the Federal Reserve System, as amended). Without limiting the effect of the foregoing, the
Reserve Requirement shall reflect any other reserves required to be maintained by such member banks
with respect to (i) any category of liabilities which includes deposits by reference to which the
Adjusted Eurodollar Rate is to be determined, or (ii) any category of extensions of credit or other
assets which includes Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve Requirement.



“Responsible Officer” means the chief executive officer, president, chief financial officer,
chief accounting officer, treasurer, assistant treasurer or controller of Borrower. Any document
delivered hereunder that is signed by a Responsible Officer of Borrower shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of Borrower and such Responsible Officer shall be conclusively presumed to have acted on
behalf of Borrower.



“RIC” means a Person qualifying for treatment as a “regulated investment company” under the
Internal Revenue Code.



“S&P” means Standard & Poor’s Rating Group, a division of McGraw-Hill Companies, Inc.



“Second Tier Collateral” has the meaning set forth in the Security Agreement.



“Secured Cash Management Obligations” means obligations of Borrower or any Consolidated
Subsidiary owed to a Cash Management Bank under a Cash Management Services Agreement; provided,
however, that if such Cash Management Bank ceases to be a Lender or an Affiliate of a Lender, such
obligations will be “Secured Cash Management Obligations” as herein defined only to the extent that
they constitute “Bank Obligations” as defined in the Intercreditor Agreement.



“Secured Debt” means, without duplication, (a) the Debt outstanding from time to time pursuant
to this Agreement, and (b) the Debt outstanding from time to time under the Senior Notes, all of
which shall be determined on a consolidated basis in accordance with GAAP.



“Secured Party” has the meaning set forth in the Intercreditor Agreement.



“Securities Account Control Agreements” has the meaning set forth in the Security Agreement.



“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time in effect.



“Security” shall have the same meaning as in Section 2(1) of the Securities Act.



“Security Agreement” means that certain Pledge, Assignment, and Security Agreement
substantially in the form of Exhibit H hereto dated as of the date hereof, by and among Borrower,
each Subsidiary Grantor, and the Collateral Agent for the benefit of the Secured Parties, the form
and substance of which is acceptable to the Requisite Lenders, as such agreement may be amended,
restated, joined, and supplemented from time to time.



“Security Interest” has the meaning set forth in the Security Agreement.



“Senior Financial Officer” means the chief financial officer, chief operating officer, chief
accounting officer, treasurer, or controller of Borrower or any Consolidated Subsidiary, as
applicable; provided, that the term “Senior Financial Officer”, when used in this Agreement without
reference to any particular entity, shall mean a Senior Financial Officer of Borrower.



“Senior Funded Debt” means any Debt of Borrower which is classified as long term debt in
accordance with GAAP (including, without limitation, the Senior Note Agreement) other than
Subordinated Debt.



“Senior Note Agreement” means that certain Amended, Restated and Consolidated Note Agreement,
dated as of the date hereof by and among Borrower and the Noteholders, which amends, restates, and
consolidates the terms and provisions of certain note agreements therein referenced and provides
for the issuance by Borrower of the Senior Notes, as the same may be amended in accordance with the
Intercreditor Agreement.



“Senior Note Redemption” means any prepayment, redemption, purchase, defeasance, satisfaction,
or acquisition of any Senior Notes by Borrower or any Subsidiary (whether mandatory, voluntary, as
a result of the exercise of call rights, or otherwise), in any manner (in whole or in part), but
expressly excluding the payment of regularly-scheduled principal reductions pursuant to Section
10.1 of the Senior Note Agreement as in effect on the Closing Date made while there is no Special
Event of Default or “Payment Default” (as such term is defined in the Intercreditor Agreement).



“Senior Notes” means Borrower’s notes issued pursuant to the Senior Note Agreement, as
follows: $500,000 in aggregate principal amount of Borrower’s Series A-1 Senior Notes due June 15,
2010, $253,250,000 in aggregate principal amount of Borrower’s Series A-2 Senior Notes due June 15,
2010, $500,000 in aggregate principal amount of Borrower’s Series B-1 Senior Notes due June 15,
2011, $253,250,000 in aggregate principal amount of Borrower’s Series B-2 Senior Notes due June 15,
2011, $500,000 in aggregate principal amount of Borrower’s Series C-1 Senior Notes due March 31,
2012, $253,250,000 in aggregate principal amount of Borrower’s Series C-2 Senior Notes due March
31, 2012, and Borrower’s Series CMW Senior Notes due April 1, 2012 (collectively, as amended,
restated, replaced, supplemented or otherwise modified from time to time in accordance with the
terms thereof and the Intercreditor Agreement).



“Senior Secured Obligations” means the Note Obligations and the Obligations.



“Senior Securities” means senior securities (as such term is defined and determined pursuant
to the Investment Company Act and any order of the Securities Exchange Commission issued to the
Company thereunder).



“Special Collateral Account” has the meaning set forth in the Intercreditor Agreement.



“Special Event of Default” has the meaning set forth in the Intercreditor Agreement.



“Subordinated Debt” means all unsecured Debt of Borrower which shall contain or have
applicable thereto subordination provisions reasonably acceptable to the Requisite Lenders
providing for the subordination thereof to other Debt of Borrower (including, without limitation,
the Obligations).



“Subsidiary” with respect to any Person shall mean (a) any corporation, partnership,
association, or other business entity at least 50% of the outstanding shares of Voting Stock or
similar interests of which are owned, directly or indirectly, by such Person (including, without
limitation, any limited partnership in which such Person, directly or indirectly, shall have at
least a 50% vote on matters as to which limited partners may vote), (b) any general or limited
partnership of which such Person shall be a general partner or as to which such Person otherwise
shall have unlimited liability, (c) any general or limited partnership a general partner of which
can be changed or removed by such Person (other than removals that could be accomplished by
voluntary withdrawal of such general partner only), or (d) any general or limited partnership in
which (i) the amount represented by such Person’s capital account shall be equal to at least 50% of
the aggregate amount represented by the total of all partners’ capital accounts or (ii) such Person
shall be allocated at least 50% of the profit (or loss) or distributable cash of the partnership;
provided, however, that the term “Subsidiary”, when used in this Agreement without reference to any
particular Person, shall mean a Subsidiary of the Borrower; and provided further that no Portfolio
Company shall be deemed a Subsidiary of Borrower or any of its Subsidiaries.



“Subsidiary Grantors” means, collectively, all Consolidated Subsidiaries (other than a Pledge
LLC) and, individually, any of the foregoing.



“Subsidiary Guarantors” means, collectively, all Consolidated Subsidiaries and, individually,
any of the foregoing.



“Subsidiary Guaranty” means any agreement pursuant to which a Subsidiary Guarantor has
unconditionally guaranteed the payment and performance of the Obligations and the Note Obligations,
which Subsidiary Guaranty shall be in substantially the form of Exhibit I hereto and in form and
substance reasonably satisfactory to the Requisite Lenders.



“Swap Contract” means (a) any and all interest rate swap transactions, basis swap
transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap
transactions, floor transactions, currency options, spot contracts or any other similar
transactions or any of the foregoing (including any options to enter into any of the foregoing),
and (b) any and all transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc. or any International Foreign Exchange Master
Agreement. For the purposes of this Agreement, the amount of the obligation (whether positive or
negative) under any Swap Contract shall be the amount payable or receivable by Borrower or any of
its Consolidated Subsidiaries determined in respect thereof as of the end of the then most recently
ended fiscal quarter of such Person, based on the assumption that such Swap Contract had terminated
at the end of such fiscal quarter, and in making such determination, if any agreement relating to
such Swap Contract provides for the netting of amounts payable by and to such Person thereunder or
if any such agreement provides for the simultaneous payment of amounts by and to such Person, then
in each such case, the amount of such obligation shall be the net amount so determined.



“Syndication Agent” means Branch Banking and Trust Company, and its permitted successors or
assigns as “Syndication Agent” under this Agreement.



“Taxes” means, for any Person, taxes, assessments, duties, imposts, or other governmental
charges, deductions, withholdings, or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets, and all liabilities with respect thereto.



“Total Outstandings” has the meaning set forth in the Intercreditor Agreement.



“Type” with respect to any Loan, refers to whether such Loan is a Eurodollar Loan or Base Rate
Loan.



“Unfunded Liabilities” means, with respect to any Plan at any time, the amount (if any) by
which (a) the value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044 of ERISA, exceeds
(b) the fair market value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then most recent
valuation date for such Plan.



“Uniform Commercial Code” means the Uniform Commercial Code as adopted in the applicable
jurisdiction from time to time.



“Unreimbursed Amount” has the meaning given such term in Section 2.2(c).



“Voting Stock” shall mean Securities of any class or classes, the holders of which are
ordinarily, in the absence of contingencies, entitled to elect a majority of the corporate
directors (or Persons performing similar functions).



“Wholly-Owned” when used in connection with any Consolidated Subsidiary shall mean a
Consolidated Subsidiary of which all of the issued and outstanding shares of stock (except shares
required as directors’ qualifying shares and Permitted Preferred Stock) shall be owned by Borrower
and/or one or more of its Wholly-Owned Subsidiaries.



1.2 General; References to Times. References in this Agreement to “Sections,”
“Exhibits,” and “Schedules” are to sections, exhibits, and schedules herein and hereto unless
otherwise indicated. References in this Agreement to any document, instrument, or agreement (a)
shall include all exhibits, schedules, and other attachments thereto, (b) shall include all
documents, instruments, or agreements issued or executed in replacement thereof, to the extent
permitted hereby and (c) shall mean such document, instrument, or agreement, or replacement or
predecessor thereto, as amended, supplemented, restated, or otherwise modified from time to time to
the extent permitted hereby and in effect at any given time. Wherever from the context it appears
appropriate, each term stated in either the singular or plural shall include the singular and
plural, and pronouns stated in the masculine, feminine, or neuter gender shall include the
masculine, the feminine and the neuter. Unless explicitly set forth to the contrary, a reference
to “Subsidiary” means a Subsidiary of Borrower or a Subsidiary of such Subsidiary, and a reference
to an “Affiliate” means a reference to an Affiliate of Borrower. Titles and captions of Sections,
subsections, and clauses in this Agreement are for convenience only, and neither limit nor amplify
the provisions of this Agreement. The words “include”, “includes”, and “including” shall be deemed
to be followed by the phrase “without limitation”. Unless otherwise indicated, all references to
time are references to Dallas, Texas, time.



1.3 Accounting Principles. All accounting and financial terms used in the Loan
Documents and the compliance with each financial covenant therein shall be determined in accordance
with GAAP, and, for such purposes, to the extent consistent with GAAP, all accounting principles
shall be applied on a consistent basis so that the accounting principles in a current period are
comparable in all material respects to those applied during the preceding comparable period. If
Borrower or any Lender determines that a change in GAAP from that in effect on the date hereof has
altered the treatment of certain financial data to its detriment under this Agreement, such party
may, by written notice to the others and Administrative Agent not later than 30 days after
Borrower’s delivery of any financial statements pursuant to Section 8.1 or 8.2 reflecting such
change in GAAP, request renegotiation of the financial covenants affected by such change. If
Borrower and Requisite Lenders have not agreed on revised covenants within 30 days after delivery
of such notice, then, for purposes of this Agreement, GAAP will mean generally accepted accounting
principles on the date immediately prior to the date on which the change that gave rise to the
renegotiation occurred. For purposes of determining compliance with the financial covenants
contained in Section 9.1 of this Agreement (or incorporated herein by reference pursuant to Section
9.1(e) hereof), any election by Borrower to measure an item of Debt or Indebtedness using fair
value (as permitted by Financial Accounting Standards Board 159 or any similar accounting standard)
shall be disregarded and such determination shall be made instead using the outstanding amount of
such Indebtedness or Debt.



1.4 Letter of Credit Amounts. Unless otherwise specified herein, the amount of an
Existing LC at any time shall be deemed to be the stated amount of such Existing LC in effect at
such time; provided, however, that with respect to any Existing LC that, by its terms or the terms
of any Existing LC Agreement or other document, agreement, or instrument entered into by LC Issuer
and Borrower (or any Consolidated Subsidiary) related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Existing LC shall be deemed to be the
maximum stated amount of such Existing LC after giving effect to all such increases, whether or not
the maximum stated amount is in effect at such time.



	 	 	 	 	 
	SECTION 2.	 	CREDIT FACILITY.
	 	2.1	 	 	Loans.

	 	 	 	 	 








(a) No Commitment to Make New Loans. The unpaid principal balance of the
Loans as of the Closing Date is $50,000,000. Amounts repaid or prepaid by Borrower from
and after the Closing Date may not be reborrowed, and no Lender has any commitment to
make any additional Loans. The Loans shall be repaid as provided in this Agreement and
may not be reborrowed. The parties hereto acknowledge that the Commitments of the
Lenders to make Loans pursuant to Section 2.1 of the Existing Credit Agreement, the
commitment of the Swing Line Lender (as defined in the Existing Credit Agreement and as
used herein as therein defined) to make Swing Line Loans (as defined in the Existing
Credit Agreement and as used herein as therein defined) under Section 2.3 of the
Existing Credit Agreement, and the commitment of LC Issuer to issue, amend and extend
Letters of Credit (as defined in the Existing Credit Agreement and as used herein as
therein defined) under the Existing Credit Agreement have been, and are, terminated, and
no Lender has any obligation to make any Loans, the Swing Loan Lender has no obligation
to make any Swingline Loan, and LC Issuer has no obligation to issue, amend, extend or
renew any Letter of Credit. For the avoidance of doubt, nothing contained herein shall
impair or affect the obligation of the Lenders to purchase participations in Existing
LCs in accordance with the terms of this Agreement.




(b) Amendment and Restatement of Existing Credit Agreement. The parties
hereto agree that, on the Closing Date: (i) the Obligations (as defined in this
Agreement) represent, among other things, the restatement, renewal, amendment,
extension, and modification of the “Obligations” (as defined in the Existing Credit
Agreement); (ii) this Agreement is intended to, and does hereby, restate, renew, extend,
amend, modify, supersede, and replace the Existing Credit Agreement in its entirety;
(iii) the Promissory Notes (to the extent requested by any Lender) executed pursuant to
this Agreement amend, renew, extend, modify, replace, restate, substitute for, and
supersede in their entirety (but do not extinguish the Debt arising under) the
promissory notes issued pursuant to the Existing Credit Agreement; (iv) the entering
into and performance of their respective obligations under the Loan Documents and the
transactions evidenced hereby do not constitute a novation nor shall they be deemed to
have terminated, extinguished, or discharged the indebtedness under the Existing Credit
Agreement, all of which indebtedness shall continue under and be governed by this
Agreement and the other Loan Documents, except as expressly provided otherwise herein.
After the Closing Date, promissory notes, if any, issued to such Lender under the
Existing Credit Agreement shall be deemed to be, without any further action of the
parties, amended to reflect the terms of this Agreement.




2.2 Existing LCs.




(a) Existing LCs. LC Issuer has issued the Existing LCs. All Existing LCs
shall be subject to and governed by the terms and conditions of this Agreement. From and
after the Closing Date, Borrower shall not request, and LC Issuer shall not issue, any
additional Letters of Credit pursuant to this Agreement, and Borrower shall not request,
and LC Issuer shall not renew or extend, any Existing LCs.




(b) Participations. Each Lender has irrevocably and unconditionally
purchased and received from LC Issuer, without recourse or warranty, an undivided
interest and participation, equal to such Lender’s Commitment Percentage of each
Existing LC, the LC Agreement related thereto, and all rights of LC Issuer in respect
thereof (other than rights to receive certain fees provided for in Section 3.8(e)).




(c) Reimbursement Obligations. To induce LC Issuer to maintain the
Existing LCs and to induce Lenders to participate in the Existing LCs, Borrower agrees
to pay or reimburse LC Issuer (through Administrative Agent) (i) on or prior to the date
of any payment by LC Issuer under an Existing LC, the amount of any draft paid or to be
paid by LC Issuer, and (ii) promptly, upon demand, the amount of any applicable fees (in
addition to the Fees described in Section 3.8) which LC Issuer customarily charges to a
Person similarly situated in the ordinary course of its business for honoring drafts
under letters of credit, and taking similar action in connection with letters of credit.
If Borrower fails to reimburse LC Issuer for any drafts paid by LC Issuer on the date
of LC Issuer’s payment thereof (the amount of any such unreimbursed drawing being
referred to herein as the “Unreimbursed Amount”), Borrower shall be obligated to pay LC
Issuer interest on all such amounts remaining unpaid at the Post-Default Rate until paid
in full. Borrower’s obligations under this Section 2.2(c) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim, or defense to payment which Borrower may have at any time against LC
Issuer or any other Person, and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including any of the following
circumstances: (A) any lack of validity or enforceability of this Agreement or any of
the Loan Documents; (B) the existence of any claim, setoff, defense, or other right
which Borrower may have at any time against a beneficiary named in an Existing LC, any
transferee of any Existing LC (or any Person for whom any such transferee may be
acting), LC Issuer, any Lender, or any other Person, whether in connection with this
Agreement, any Existing LC, the transactions contemplated herein, or any unrelated
transactions (including any underlying transaction between Borrower and the beneficiary
named in any such Existing LC); (C) any draft, certificate, or any other document
presented under the Existing LC proving to be forged, fraudulent, invalid, or
insufficient in any respect or any statement therein being untrue or inaccurate in any
respect; (D) any payment by LC Issuer under such Existing LC against presentation of a
draft or certificate that does not strictly comply with the terms of such LC; or any
payment made by LC Issuer under such Existing LC to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary or any
transferee of such Existing LC, including any arising in connection with any proceeding
under any Debtor Relief Law; (E) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, Borrower or any
Subsidiary; and (F) the occurrence of any Default or Event of Default. In the event any
payment by Borrower received by LC Issuer with respect to an Existing LC and distributed
to Lenders on account of their participations therein is required to be returned under
any of the circumstances described in Section 12.17 (including pursuant to any
settlement entered into by LC Issuer in its discretion) each Lender shall pay to
Administrative Agent for the account of LC Issuer its Commitment Percentage thereof on
demand of Administrative Agent, plus interest thereon from the date of such demand to
the date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of Lenders under this
clause shall survive the payment in full of the Obligations and the termination of this
Agreement.




(d) General. Upon receipt from the beneficiary of any Existing LC of any
notice of a drawing under such Existing LC, LC Issuer shall promptly notify Borrower of
the date and amount of any draft presented for honor under any Existing LC; provided
that, failure to give any such notice shall not affect the obligations of Borrower
hereunder. LC Issuer shall make payment upon presentment of a draft for honor unless it
appears that presentment on its face does not comply with the terms of such Existing LC,
regardless of whether (i) any default or potential default under any other agreement has
occurred and (ii) the obligations under any other agreement have been performed by the
beneficiary or any other Person (and LC Issuer shall not be liable for any obligation of
any Person thereunder). LC Issuer, Lenders, Administrative Agent and their respective
Related Parties and any correspondent, participant or assignee of LC Issuer shall not be
responsible for, and Borrower’s reimbursement obligations for honored drafts shall not
be affected by, (i) any matter or event whatsoever (including the validity,
enforceability, sufficiency, accuracy, or genuineness of documents or of any
endorsements thereof, even if such document should in fact prove to be in any respect
invalid, unenforceable, insufficient, inaccurate, fraudulent, or forged), (ii) any
dispute by Borrower or any Subsidiary with or any Borrower or any Subsidiary’s claims,
setoffs, defenses, counterclaims, or other rights against LC Issuer, any Lender, or any
other Person, (iii) the occurrence of any Default or Event of Default, (iv) any action
taken or omitted in connection herewith at the request or with the approval of Lenders
or the Requisite Lenders, as applicable; (v) any action taken or omitted in the absence
of gross negligence or willful misconduct; or (vi) any matters set forth in clauses (A)
through (F) of Section 2.2(c). However, nothing in this Section 2.2 constitutes a waiver
of the rights of Borrower to assert any claim or defense based upon the gross negligence
or willful misconduct of LC Issuer to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by Borrower which Borrower
proves were caused by LC Issuer’s willful misconduct or gross negligence or LC Issuer’s
willful failure to pay under any Existing LC after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of the Existing LC. Any notice given by LC Issuer or Administrative Agent
pursuant to this Section 2.2(d) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




(e) Obligation of Lenders. In the event any Unreimbursed Amount exists,
then LC Issuer shall so notify Administrative Agent, which, in turn, shall promptly
notify each Lender of the Unreimbursed Amount and such Lender’s Commitment Percentage
thereof. Each Lender shall promptly and unconditionally make available to
Administrative Agent (for the account of LC Issuer) in immediately available funds such
Lender’s Commitment Percentage of such unpaid reimbursement obligation, which funds
shall be paid to Administrative Agent on or before the close of business on the Business
Day on which such notice was given by Administrative Agent to Lenders (if given prior to
1:00 p.m., Dallas, Texas time) or on the next succeeding Business Day (if notice was
given after 1:00 p.m., Dallas, Texas time). All such amounts payable by any such Lender
shall include interest thereon accruing at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by LC Issuer in accordance with banking
industry rules on interbank compensation from the day the applicable draft is paid by LC
Issuer to (but not including) the date such amount is paid by such Lender to
Administrative Agent. Until each Lender funds its participation pursuant to this
Section 2.2(e) to reimburse LC Issuer for any amount drawn under any Existing LC,
interest in respect of such Lender’s Commitment Percentage of such amount shall be
solely for the account of LC Issuer; provided that, once a Lender funds its
participation (together with any interest owed with respect thereto) in accordance with
this Section 2.2(e), then interest with respect to such Lender’s Commitment Percentage
of the Unreimbursed Amount shall accrue for the account of such Lender from the date
such funding from such Lender was due hereunder. The obligations of Lenders to make
payments to Administrative Agent (for the account of LC Issuer) with respect to Existing
LCs shall be irrevocable and not subject to any qualification or exception whatsoever
(other than the gross negligence or willful misconduct of LC Issuer) and shall be made
in accordance with the terms and conditions of this Agreement under all circumstances,
including any of the following circumstances: (i) any lack of validity or enforceability
of this Agreement or any of the Loan Documents; (ii) the existence of any claim, setoff,
defense, or other right which such Lender may have at any time against a beneficiary
named in an Existing LC, any transferee of any Existing LC (or any Person for whom any
such transferee may be acting), LC Issuer, any Lender, or any other Person, whether in
connection with this Agreement, any Existing LC, the transactions contemplated herein,
or any unrelated transactions (including any underlying transaction between Borrower and
the beneficiary named in any such Existing LC); (iii) any draft, certificate, or any
other document presented under the Existing LC proving to be forged, fraudulent,
invalid, or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; and (iv) the occurrence of any Default or Event of Default.




(f) Duties of LC Issuer. LC Issuer agrees with each Lender that it will
exercise and give the same care and attention to each Existing LC as it gives to its
other letters of credit, and LC Issuer’s sole liability to each Lender with respect to
such Existing LCs (other than liability arising from the gross negligence or willful
misconduct of LC Issuer) shall be to distribute promptly to each Lender who has acquired
a participating interest therein such Lender’s ratable portion of any payments made to
LC Issuer by Borrower pursuant to Section 2.2(c). Each Lender and Borrower agree that,
in paying any draft under any Existing LC, LC Issuer shall not have any responsibility
to obtain any document (other than any documents required by the respective Existing LC)
or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person delivering any such document, regardless of any notice or
information to the contrary, and LC Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or
assign an Existing LC or the rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for any reason. LC Issuer,
Lenders, and their respective representatives shall not be liable to any other Lender or
Borrower or any of its Subsidiaries for the use which may be made of any Existing LC or
for any acts or omissions of any beneficiary thereof in connection therewith; provided,
however, that this is not intended to, and shall not, preclude Borrower from pursuing
such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. Any action, inaction, error, delay, or omission taken or
suffered by LC Issuer or any of its representatives under or in connection with any
Existing LC, the draws, drafts, or documents relating thereto, or the transmission,
dispatch, or delivery of any message or advice related thereto, if in good faith and in
conformity with such laws as LC Issuer or any of its representatives may deem applicable
and (unless otherwise expressly agreed by LC Issuer and Borrower when an Existing LC is
issued) the ISP shall be binding upon Borrower and its Consolidated Subsidiaries and
Lenders and shall not place LC Issuer or any of its representatives under any resulting
liability to Borrower or any of its Consolidated Subsidiaries or any Lender.




(g) Cash Collateral. Borrower shall provide to Administrative Agent, for
the benefit of Lenders, (i) Cash Collateral in an amount equal to 100% of the LC
Exposure, (A) on November 1, 2009, if any LC Exposure remains outstanding, (B) upon any
demand by Administrative Agent upon the occurrence and during the continuance of an
Event of Default, and (C) at such other times as required by this Agreement, and (ii)
such additional Cash Collateral as Administrative Agent may from time to time require,
in each case so that the Cash Collateral amount shall at all times equal or exceed 100%
of the LC Exposure. Any Cash Collateral deposited under this clause (g) shall be
maintained by Administrative Agent in blocked, non-interest bearing deposit accounts at
Bank of America. Borrower hereby grants to Administrative Agent, for the benefit of LC
Issuer and Lenders, a security interest in all such cash and deposit accounts and all
balances therein, and all proceeds of the foregoing. If required by the Intercreditor
Agreement, Cash Collateral may be held by the Collateral Agent in such account as may be
required by the Intercreditor Agreement.




(h) Indemnification. In addition to amounts payable as elsewhere provided
in this Agreement, Borrower hereby agrees to protect, indemnify, pay, and save
Administrative Agent, LC Issuer, and each Lender harmless from and against any and all
claims, demands, liabilities, damages, or losses of, or owed to third parties (including
any of the foregoing arising from the negligence of Administrative Agent, LC Issuer,
Lenders, or their respective representatives), and any and all related costs, charges,
and expenses (including Attorney Costs), which Administrative Agent, LC Issuer, or any
Lender has actually incurred as a consequence, direct or indirect, of (A) the issuance
of any Existing LC, or (B) the failure of LC Issuer to honor a draft under such Existing
LC as a result of any act or omission, whether rightful or wrongful, of any present or
future Governmental Authority; provided that, Borrower shall have no liability to
indemnify Administrative Agent, LC Issuer, or any Lender in respect of any liability
arising out of the gross negligence or willful misconduct of such party or any
representatives of such party. The provisions of and undertakings and indemnifications
set forth in this Section 2.2(h) shall survive the satisfaction and payment of the
Obligations and termination of this Agreement.




(i) LC Agreements. Although referenced in any Existing LC, terms of any
particular agreement or other obligation to the beneficiary are not in any manner
incorporated herein. The fees and other amounts payable with respect to each Existing
LC shall be as provided in this Agreement, drafts under any Existing LC shall be deemed
part of the Obligations, and in the event of any conflict between the terms of this
Agreement and any LC Agreement, the terms of this Agreement shall be controlling.




(j) Letters of Credit Issued for Portfolio Companies. Notwithstanding that
an Existing LC issued or outstanding hereunder is in support of any obligations of, or
is for the account of, a Portfolio Company, Borrower shall be obligated to reimburse LC
Issuer hereunder for any and all drawings under such Existing LC. Borrower hereby
acknowledges that the issuance of Existing LCs for the account of a Portfolio Company
inures to the benefit of Borrower, and that Borrower’s business derives substantial
benefits from the businesses of such Portfolio Company.




(k) Applicability of ISP. Unless otherwise expressly agreed by LC Issuer
and Borrower when an Existing LC was issued (including any such agreement applicable to
an Existing LC), the rules of the ISP shall apply to each Existing LC.




2.3 Rates and Payment of Interest on Loans.




(a) Rates. Borrower promises to pay to Administrative Agent, for the
account of each Lender, interest on the unpaid principal amount of each Loan for the
period from and including the Closing Date to but excluding the date such Loan shall be
paid in full, at the following per annum rates:




(i) during such periods as such Loan is a Base Rate Loan, the lesser of (A) the
sum of the Base Rate (as in effect from time to time) plus the Applicable Rate, and
(B) the Maximum Rate; and




(ii) during such periods as such Loan is a Eurodollar Loan, the lesser of
(A) the sum of the Adjusted Eurodollar Rate for such Loan (for the Interest Period
therefor) plus the Applicable Rate, and (B) the Maximum Rate.




Notwithstanding the foregoing, during the continuance of an Event of Default, Borrower
hereby promises to pay to Administrative Agent (for the account of each Lender) interest at
the applicable Post-Default Rate on the aggregate outstanding principal balance under all
Loans made by such Lender and on any other amount payable by Borrower to such Lender
hereunder or under any other Loan Document, including any overdue accrued but unpaid
interest to the extent permitted under Applicable Law.




(b) Payment of Interest. Accrued interest on each Loan shall be payable as
provided in each of the following clauses which apply to such Loan: (i) in the case of
a Base Rate Loan, monthly on the fifteenth (15th) day of each calendar month,
(ii) in the case of a Eurodollar Loan, on each Quarterly Date and on the last day of
each Interest Period therefor, and (iii) in the case of a Eurodollar Loan, upon the
payment, prepayment, or Continuation thereof, or the Conversion of such Loan to a Loan
of another Type (but only on the principal amount so paid, prepaid, Continued, or
Converted). Interest payable at the Post-Default Rate shall be payable from time to
time on demand. Promptly after the determination of any interest rate provided for
herein or any change therein, Administrative Agent shall give notice thereof (via
electronic transmission or facsimile) to Lenders to which such interest is payable and
to Borrower. All determinations by Administrative Agent of an interest rate hereunder
shall be conclusive and binding on Lenders and Borrower for all purposes, absent
manifest error.



2.4 Number of Interest Periods. There may be no more than six (6) different Interest
Periods for Eurodollar Loans outstanding at the same time.




2.5 Repayment of Loans.




(a) Scheduled Principal Debt Payments. On each of the dates shown below
Borrower shall reduce the Principal Debt to an amount not greater than the corresponding
“Maximum Amount of Principal Debt” indicated below by either making principal payments
in respect of Loans or reducing the LC Exposure or a combination thereof (provided that,
delivery of Cash Collateral for LC Exposure shall not reduce the Principal Debt):



	 	 	 	 	 
	Date

	 	Maximum Amount of Principal Debt (after application of any

principal payment or LC reduction made on such date)

	 

	 	 	 	 
	September 30, 2009

	 	$	57,500,000	 
	 

	 	 	 	 
	November 1, 2009

	 	$	50,000,000	 
	 

	 	 	 	 
	November 13, 2010

	 	$	0	 
	 

	 	 	 	 







Each payment in respect of Loans and each reduction of LC Exposure made under this
Section shall reduce the amount of the aggregate “Commitments” as defined in this
Agreement.




(b) Maturity. On the Maturity Date Borrower shall (a) repay the entire
outstanding principal amount of all Loans outstanding, together with all accrued and
unpaid interest and fees, and (b) Cash Collateralize, in an amount equal to 100% of any
and all LC Exposure then existing, in accordance with Section 2.2(g).




2.6 Prepayments.




(a) Optional. Subject to Section 4.5, Borrower may, upon notice to
Administrative Agent, at any time or from time to time voluntarily prepay Loans in whole
or in part without premium or penalty; provided that (A) such notice must be received by
Administrative Agent not later than 12:00 noon (i) in the case of Eurodollar Loans, on
the date two Business Days prior to any date of prepayment of Eurodollar Rate Loans and
(2) on the date of prepayment of Base Rate Loans; and (B) any voluntary prepayment of
Loans shall be in the minimum principal amount specified by Section 3.7(b). Each such
notice shall specify the date and amount of prepayment and the Type(s) of Loans to be
prepaid, and, if Eurodollar Loans are to be prepaid, the Interest Period(s) of such
Loans. Each prepayment pursuant to this Section 2.6(a) shall be paid to the Lenders in
accordance with their respective Commitment Percentages.




(b) Discounted Prepayments.




(i) Discounted Prepayment Offer. From time to time Borrower may, offer
to prepay all or a portion of the Loans at a discounted amount (each a “Discounted
Prepayment”), so long as (i) the offer is made to all Lenders on a ratable basis at
the same time and upon the same terms and (ii) any such Discounted Prepayment shall
include not only the discounted Loan paid, but also an amount equal to all accrued
and unpaid interest and fees due and payable on the Loan so prepaid (calculated
without giving effect to such discount). Borrower shall give written notice (the
“Offer Notice”) to Administrative Agent of any Discounted Prepayment offer not less
than eight (8) Business Days before the date specified in the notice for
consummation of such Discounted Prepayment (the “Consummation Date”). Such Offer
Notice shall be irrevocable and shall specify: (A) the proposed Consummation Date;
(B) the percentage discount to par value of the principal amount of the Loans
(expressed as a percentage of par value) (the “Percentage Discount”) being offered
to the Lenders; (C) the maximum principal amount of the Loans offered to be
purchased (the “Maximum Offer”); (D) the date upon which acceptances of the offer
must be received (which date must be not sooner than the second Business Day after
the Offer Notice is given by Administrative Agent to the Lenders); which Offer
Notice shall be accompanied by a certificate of a Senior Financial Officer (v)
confirming that the terms and date of the proposed Discounted Prepayment are the
same as those being concurrently offered to the Noteholders with respect to any
discounted purchase of Senior Notes, and that attached to such certificate is a copy
of the written offer materials given or to be given to the Noteholders; (w)
confirming that the Maximum Offer is not less than the Lenders’ ratable part of the
aggregate offers currently being made to the Lenders and the Noteholders, such
ratable part being determined based on the proportion that the Obligations
(exclusive of any LC Exposure that is Cash Collateralized) bears to the sum of (1)
the Obligations (exclusive of any LC Exposure that is Cash Collateralized) plus (2)
the Note Obligations; (x) containing a representation and warranty that Borrower is
not aware of any material non-public information (“MNPI”) with respect to Borrower
or any of its Subsidiaries that either (i) has not been disclosed to the Lenders
(other than Lenders that do not wish to receive MNPI with respect to Borrower or its
Subsidiaries) prior to such time or (ii) if not disclosed to the Lenders, could
reasonably be expected to have a material adverse effect upon, or otherwise be
material, (A) to a Lender’s decision to offer Loans to Borrower to be prepaid, (B)
to the market price of the Loans or (C) for purposes of United States Federal and
state securities laws; and (y) containing a covenant that Borrower agrees that if
prior to the date of the Discounted Prepayment, any representation or warranty made
by it in such certificate will not be true and correct as of each Acceptance
(defined below) date and the date of the Discounted Prepayment, it will promptly so
notify the Administrative Agent in writing of such fact, who will promptly notify
each Accepting Lender, and acknowledging that after such notification, any Accepting
Lender may revoke its Acceptance within two Business Days of receiving such
notification.




(ii) Acceptances of Discounted Payment Offer. Administrative Agent
shall promptly notify the Lenders of such Offer Notice and shall specify therein the
date and time by which each Lender’s acceptances of such offer must be received by
Administrative Agent (which date may not be sooner than the second Business Day
after the date such notice is given to the Lenders by Administrative Agent, the
“Acceptance Deadline”). Lenders that elect to accept such Discounted Prepayment
offer (each being herein referred to as an “Accepting Lender”) shall notify
Administrative Agent in writing on or before the Acceptance Deadline, indicating
such Lender’s election to accept such offer (each being herein referred to as an
“Acceptance”) and specifying the amount of the Loans (the “Acceptance Amount”) such
Lender is willing to subject to the proposed Discounted Prepayment (each being
herein referred to as an “Final Acceptance”). Any Lender not responding to
Administrative Agent by the Acceptance Deadline shall be deemed to have declined
such Discounted Prepayment offer. Acceptances shall be deemed received only upon
actual receipt by Administrative Agent.




(iii) Notification of Borrower regarding Acceptance of Discounted
Prepayment Offer. Promptly after the Acceptance Deadline, the Administrative
Agent shall compile all Acceptances. If the aggregate Loans that the Accepting
Lenders are willing to subject to the Discounted Prepayment (the “Aggregate
Acceptance Amount”) exceeds the Maximum Offer, then each Accepting Lender’s
Acceptance Amount shall be reduced to an amount (the “Adjusted Acceptance Amount”)
equal to (x) the Acceptance Amount of such Accepting Lender multiplied by (y) the
proportion (expressed as a percentage) that such Accepting Lender’s Acceptance
Amount bears to the aggregate amount of the Acceptance Amounts of all Accepting
Lenders. Administrative Agent shall advise Borrower and the Accepting Lenders of
the Adjusted Acceptance Amount of each Accepting Lender.




(iv) Discounted Prepayment. On the Consummation Date, Borrower shall
prepay the Loans owed to each Accepting Lender in an amount equal to the product of
(A) such Lender’s Acceptance Amount or Adjusted Acceptance Amount, as the case may
be, multiplied by (B) the Percentage Discount (the “Prepayment Amount”), together
with all interest and fees accrued and unpaid with respect to such Acceptance Amount
or Adjusted Acceptance Amount, as the case may be. On the Consummation Date, upon
payment by Borrower of the Prepayment Amount, the Commitment of each Accepting
Lender shall be reduced by an amount equal to such Accepting Lender’s Final
Acceptance Amount and the Commitment Percentage of such Accepting Lender shall be
adjusted accordingly.




(v) Failure to Pay Prepayment Amount. To the extent any portion of the
Discounted Prepayment owed to any Accepting Lender is not paid on the Consummation
Date, then (A) the Discounted Prepayments paid to all Accepting Lenders on the
Consummation Date and the amount of any discounted purchase price paid to any
Noteholders electing to sell their Senior Notes (or a portion thereof) at a discount
on the Consummation Date will be adjusted as set forth in Section 2.6(c)(iii); (B)
the aggregate Discounted Prepayments actually paid to the Accepting Lenders shall be
allocated pro rata among the Accepting Lenders in proportion to their Acceptance
Amounts or Adjusted Acceptance Amounts, as the case may be; and (C) the Commitment
of each Accepting Lender shall only be reduced by an amount equal to the product of
(x) the Acceptance Amount or Adjusted Acceptance Amount, as the case may be, of such
Accepting Lender multiplied by (y) the proportion (expressed as a percentage) that
the amount of the Loans actually prepaid to such Accepting Lender on the
Consummation Date bears to such Accepting Lender’s Prepayment Amount; and the
Commitment Percentage of such Accepting Lender shall be adjusted accordingly.




(vi) Pro Rata. Each prepayment made by Borrower to an Accepting Lender
shall be applied to repay Loans made by such Lender pro rata among all Loans made by
such Lender, so that such Lender’s pro rata share of each Eurodollar Loan (and of
the Base Rate Loan, if any) outstanding will be the same.




(c) Mandatory Prepayments. Subject to the application of payments in
accordance with Section 2.6(d):




(i) Asset Dispositions. If Borrower or any of its Consolidated
Subsidiaries Disposes of any assets which results in the realization of Net
Proceeds, then at the time required by the Intercreditor Agreement, Borrower shall
prepay the Principal Debt (in the case of the following clauses (A) and (B)) or the
Obligations (in the case of the following clause (C)) in an amount equal to the
following:




(A) if no Major Event of Default then exists, (x) 6% of the Net
Proceeds of such Disposition, plus (y) in the event that the amount of any
concurrent prepayment made to the Noteholders exceeds an amount equal to 50%
of such Net Proceeds (such excess being herein referred to as the
“Additional Disposition Prepayment Amount”), Borrower shall prepay the
Principal Debt in an additional amount equal to the Lenders’ ratable portion
of such Additional Disposition Prepayment Amount in the proportion that the
aggregate Principal Debt (inclusive of LC Exposure which is not Cash
Collateralized) bears to the Total Outstandings (inclusive of any
“Make-Whole” payments then due and owing or arising in connection with such
prepayment); provided, however, that if no Event of Default has occurred and
is continuing, Borrower shall not be required to make prepayments pursuant
to clause (x) of this subsection (A) until the later of (x) November 1,
2009, or (y) the date upon which the aggregate Net Proceeds from all
Dispositions consummated after the Closing Date equals $120,000,000;




(B) if a Major Event of Default (but not a Special Event of Default)
then exists, the Lenders’ ratable portion of such Net Proceeds in the
proportion that the aggregate Principal Debt (inclusive of LC Exposure which
is not Cash Collateralized) bears to the Total Outstandings (exclusive of
any “Make-Whole” payments then due and owing or arising in connection with
such prepayment); or




(C) if a Special Event of Default then exists, the Lenders’ ratable
portion of such Net Proceeds (after payment of the amounts owed in respect
of fees, expenses, and indemnities of the Collateral Agent as provided in
Section 4.2(a), clause “FIRST” of the Intercreditor Agreement) in the
proportion that the Obligations (exclusive of any LC Exposure that is Cash
Collateralized) bears to the sum of (x) the Obligations (exclusive of any LC
Exposure that is Cash Collateralized) plus (y) the Note Obligations
(inclusive of any “Make-Whole” payments then due and owing or arising in
connection with such prepayment).




(ii) Incurrence of Unsecured Debt. Concurrently with receipt by
Borrower or any Consolidated Subsidiary of the proceeds of the incurrence of any
unsecured Debt, Borrower shall prepay the Obligations, and to the extent required by
the Senior Note Agreement, prepay the Senior Notes, in an aggregate amount equal to
100% of the proceeds (net of underwriting discounts and commissions and reasonable
and customary out-of-pocket expenses incurred by Borrower or such Consolidated
Subsidiary in connection therewith) of the issuance of such unsecured Debt; provided
that the amount of the prepayment of the Obligations shall not be less than the
Lenders’ ratable share of such proceeds, which ratable share shall be determined by
ratably allocating the amount of such proceeds to the Obligations in the proportion
that the Principal Debt (exclusive of any LC Exposure that is Cash Collateralized)
bears to the sum of (x) the Principal Debt (exclusive of any LC Exposure that is
Cash Collateralized) plus (y) the Note Obligations (inclusive of any “Make-Whole”
payments then due and owing or arising in connection with such prepayment).




(iii) Senior Note Redemption. Concurrently with any Senior Note
Redemption not otherwise addressed in clauses (i), (ii), or (iv) of this Section
2.6, Borrower shall prepay the Obligations in an amount determined by allocating the
Aggregate Redemption and Prepayment Amount proportionately. As used in this clause
(iii),




“Aggregate Redemption and Prepayment Amount” means the sum of (x) the
aggregate amount paid by Borrower in connection with such Senior Note
Redemptions plus (y) the amount of the concurrent prepayments of the
Obligations; and




“proportionately” means in the proportion that the Principal Debt
(exclusive of any LC Exposure that is Cash Collateralized) bears to the sum
of (x) the Principal Debt (exclusive of any LC Exposure that is Cash
Collateralized) plus (y) the principal amount of the Senior Notes and any
“Make-Whole” payments then due and owing or arising in connection with such
prepayment.




The foregoing provisions of this clause (iii) shall not apply to a repurchase
of any Senior Note for a purchase price less than an amount equal to 100% of the
remaining principal balance of such Senior Note (such 100% amount being herein
referred to as “Par”) pursuant to an offer made to Noteholders in compliance with
Section 10.10 of the Senior Note Agreement as in effect on the date hereof; provided
that contemporaneously with such offer, Borrower made an offer to the Lenders in
compliance with Section 2.6(b), and Borrower makes prepayments to all Lenders that
accept such offer, in accordance with the terms of such offer as required in Section
2.6(b). In the event that the aggregate purchase price paid by Borrower to the
Noteholders pursuant to any such repurchase of Senior Notes at less than Par, when
aggregated with the aggregate amount of any concurrent voluntary prepayment of any
portion of the Obligations at a discounted amount paid pursuant to Section 2.6(b)
(collectively, the “Discounted Payments”), are not sufficient to fully pay the
amounts owed to the Noteholders electing to receive such discounted purchase amount
(the “Electing Noteholders”) and the amounts owed to the Lenders electing to receive
such discounted prepayment (the “Electing Lenders”), then the Discounted Payments
received shall be allocated ratably between the Electing Noteholders and the
Electing Lenders in the proportion that either (x) the principal portion of the
Discounted Payments owed to such Electing Lenders or (y) the principal portion
(inclusive of any “Make-Whole” payments then due and owing or arising in connection
with such discounted purchase) owed to the Electing Noteholders, as the case may be,
bears to the sum of the amounts in clauses (x) and (y) preceding. Nothing herein
shall constitute a waiver by such Electing Lenders to receive the full amount of the
discounted prepayment owed to such Lenders.




(iv) Change of Control; Sale of All or Substantially All of Borrower’s
Assets. If a Change of Control occurs or any prepayment is required under the
terms of Section 9.5(d), then concurrently with the consummation of any such Change
of Control (or such earlier date as any prepayment of the Senior Notes is paid as a
result of a “Change in Control” arising under the Senior Note Agreement) or
concurrently with the receipt of the Net Proceeds of any transaction that
constitutes (or is part of a series of transactions that constitutes) a Disposition
of all or substantially all of the assets of Borrower (a “Total Sale”), Borrower
shall prepay the Obligations in full and Cash Collateralize all outstanding Existing
LCs; provided that, (A) if any prepayments by reason of or otherwise concurrently
with a Total Sale are not sufficient to pay all Obligations (including Cash
Collateralization of all LC Exposure) and pay all Note Obligations then due, then
the aggregate amount of any such prepayments received by the Lenders and the
Noteholders shall be allocated ratably among the Lenders and the Noteholders in the
proportion that either (x) the Obligations (exclusive of any LC Exposure that is
Cash Collateralized) or (y) the Note Obligations (inclusive of any “Make-Whole”
payments then due and owing or arising in connection with such prepayment), as the
case may be, bears to sum of the amounts in clauses (x) and (y) preceding; and (B)
if either the prepayments made to the Lenders as a result of a Change of Control are
not sufficient to pay fully all Obligations (including Cash Collateralization of all
LC Exposure) or the amounts paid to the Noteholders that exercised their optional
tender rights with respect to a “Change in Control” under and pursuant to the Senior
Note Agreement (the “Tendering Noteholders”) are not sufficient to pay fully the
Note Obligations then due to the Tendering Noteholders, then the aggregate amount of
such prepayments actually received by the Lenders and such amounts actually received
by such Tendering Noteholders shall be allocated ratably among the Lenders and the
Tendering Noteholders in the proportion that either (x) the Obligations (exclusive
of any LC Exposure that is Cash Collateralized) or (y) the Note Obligations owed to
the Tendering Noteholders (inclusive of any “Make-Whole” payments then due and owing
or arising in connection with such optional tenders, if any), as the case may be,
bears to the sum of the amounts in clauses (x) and (y) preceding. Nothing herein
shall constitute a waiver by the Lenders to receive the full amount of any such
prepayments owed to the Lenders hereunder.




(d) Reductions in Commitment; Application of Payments. Each prepayment
(including any reduction of LC Exposure effected thereby) made by Borrower pursuant to
this Section 2.6 shall reduce the amount of the aggregate “Commitments” as defined in
this Agreement. Each mandatory prepayment made pursuant to Section 2.6(c) at a time
when no Default or Event of Default (or in the case of Section 2.6(c)(i), a Special
Event of Default) exists shall be applied: first, to payment of the unpaid principal of
the Loans and unpaid reimbursement obligations with respect to Existing LCs, together
with accrued and unpaid interest and fees thereon, ratably among the Lenders and the LC
Issuer in proportion to such respective amounts payable to them; second, to
Administrative Agent (or, if required by the Intercreditor Agreement, the Collateral
Agent), to be held as Cash Collateral, in an amount equal to 100% of the aggregate
undrawn amount of Existing LCs; and third, to other Obligations in the order set forth
in Section 10.3. Each voluntary prepayment made pursuant to Sections 2.6(a) or 2.6(b)
at a time when no Default or Event of Default exists shall be applied in accordance with
Section 3.1. Each prepayment made pursuant to this Section 2.6 at any time when a
Default or Event of Default exists (or in the case of Section 2.6(c)(i), a Special Event
of Default) shall be applied in accordance with Section 10.3. Each prepayment of Loans
pursuant to this section shall be applied to principal debt payments in direct order of
maturities.




(e) Break Funding Costs. If Borrower is required to pay any outstanding
Eurodollar Loans by reason of this Section 2.6 prior to the end of the applicable
Interest Period therefor, then Borrower shall pay all amounts due under Section 4.5.




(f) Interest. Any prepayment of a Eurodollar Loan shall be accompanied by
all accrued interest on the amount prepaid, together with any additional amounts
required by Section 4.5.



2.7 Continuation. So long as no Default or Event of Default shall have occurred and
be continuing, Borrower may on any Business Day, with respect to any Eurodollar Loan, elect to
maintain such Eurodollar Loan or any portion thereof as a Eurodollar Loan, as applicable, by
selecting a new Interest Period for such Loan. Each new Interest Period selected under this
Section shall commence on the last day of the immediately preceding Interest Period. Each
selection of a new Interest Period shall be made by Borrower giving to Administrative Agent a
Notice of Continuation not later than 12:00 noon on the second Business Day prior to the date of
any such Continuation. Such notice by Borrower of a Continuation shall be by telephone or
telecopy, confirmed immediately in writing if by telephone, in the form of a Notice of
Continuation, specifying (a) the proposed date of such Continuation, (b) the Eurodollar Loan, or
portion thereof, subject to such Continuation, and (c) the duration of the selected Interest
Period, all of which shall be specified in such manner as is necessary to comply with all
limitations on Loans outstanding hereunder. Each Notice of Continuation shall be irrevocable by
and binding on Borrower once given. Promptly after receipt of a Notice of Continuation (and in any
event not later than 1:00 p.m. on the date of receipt thereof), Administrative Agent shall notify
each Lender by telex or telecopy, or other similar form of transmission of the proposed
Continuation. If Borrower shall fail to select in a timely manner a new Interest Period for any
Eurodollar Loan in accordance with this Section, such Loan will automatically, on the last day of
the current Interest Period therefore, Convert into a Base Rate Loan.



2.8 Conversion. Borrower may on any Business Day, upon Borrower’s giving of a Notice
of Conversion to Administrative Agent, Convert all or a portion of a Loan of one Type into a Loan
of another Type. Any Conversion of a Eurodollar Loan into a Base Rate Loan shall be made on, and
only on, the last day of an Interest Period for such Eurodollar Loan. Each such Notice of
Conversion shall be given by Borrower not later than 12:00 noon (a) on the Business Day prior to
the date of any proposed Conversion into Base Rate Loans or (b) on the second Business Day prior to
the date of any proposed Conversion into Eurodollar Loans. Promptly upon receipt of a Notice of
Conversion (and in any event not later than 1:00 p.m. on the date of receipt thereof),
Administrative Agent shall notify each Lender by telecopy or other similar form of transmission of
the proposed Conversion. Subject to the restrictions specified above, each Notice of Conversion
shall be by telephone or telecopy confirmed immediately in writing if by telephone, in the form of
a Notice of Conversion, specifying (i) the requested date of such Conversion, (ii) the Type of Loan
to be Converted, (iii) the portion of such Type of Loan to be Converted, (iv) the Type of Loan into
which such Loan is to be Converted, and (v) if such Conversion is into a Eurodollar Loan, the
requested duration of the Interest Period of such Loan. Each Notice of Conversion shall be
irrevocable by and binding on Borrower once given. Notwithstanding the foregoing, Borrower shall
not have the right to convert from a Base Rate Loan to a Eurodollar Loan, or to continue a
Eurodollar Loan, during the occurrence and continuance of a Default or an Event of Default.




2.9 Loan Accounts, Promissory Notes.




(a) Loan Accounts; Noteless Transaction. The Principal Debt owed to each
Lender shall be evidenced by one or more loan accounts or records maintained by such
Lender and by Administrative Agent in the ordinary course of business. The loan
accounts or records maintained by Administrative Agent (including the Register) and each
Lender shall be conclusive evidence absent manifest error of the amount of the Loans
made to Borrower from each Lender under this Agreement and the interest and principal
payments thereon. Any failure to so record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrower under the Loan Documents to pay any
amount owing with respect to the Obligations. In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
Administrative Agent in respect of such matters, the accounts and records of such Lender
shall control absent manifest error.




(b) Promissory Notes. Upon the request of any Lender made through
Administrative Agent, the Principal Debt owed to such Lender may be evidenced by a
Promissory Note.



SECTION 3. PAYMENTS, FEES AND OTHER GENERAL PROVISIONS.



3.1 Payments. Each payment or prepayment on the Obligations shall be made in Dollars,
without condition or deduction for setoff, counterclaim, defense, or recoupment, and is due and
must be paid at Administrative Agent’s Principal Office in funds which are or will be available for
immediate use by Administrative Agent by 12:00 noon on the day due. Payments made after 12:00 noon
shall be deemed made on the Business Day next following. If no Default or Event of Default exists
and if no order of application is otherwise specified herein or in the other Loan Documents,
payments and prepayments of the Obligations shall be applied first to Fees, second to accrued
interest then due and payable on the Principal Debt, and then to the remaining Obligations in the
order and manner as Borrower may direct. If a Default or Event of Default exists and if no order
of application is otherwise specified herein or in the other Loan Documents (or if Borrower fails
to give direction as permitted in the preceding sentence), any payment or prepayment shall be
applied to the Obligations in accordance with Section 10.3. Administrative Agent shall pay to each
Lender any payment or prepayment to which such Lender is entitled hereunder on the same day
Administrative Agent shall have received the same from Borrower; provided such payment or
prepayment is received by Administrative Agent prior to 12:00 noon, and otherwise before 12:00 noon
on the Business Day next following. If and to the extent Administrative Agent shall not make such
payments to Lenders when due as set forth in the preceding sentence, such unpaid amounts shall
accrue interest, payable by Administrative Agent, at the Federal Funds Rate from the due date until
(but not including) the date on which Administrative Agent makes such payments to Lenders.



3.2 Pro Rata Treatment. Except to the extent otherwise provided herein: (a) each
payment of the Fees under Sections 3.8(a), 3.8(b), 3.8(e), and 3.8(g) shall be made for the account
of Lenders pro rata in accordance with the amount of their respective Commitment Percentages, (b)
each payment or prepayment of principal of Loans shall be made for account of Lenders pro rata in
accordance with the respective unpaid principal amounts of the Loans held by them; (c) each payment
of interest on Loans shall be made for account of Lenders pro rata in accordance with the amounts
of interest on such Loans then due and payable to the respective Lenders; (d) each payment with
respect to the Existing LCs shall be made for the account of LC Issuer and each other Lender
purchasing a participation in any Existing LC and related reimbursement obligations and shall be
shared pro rata among such Lenders, as determined on any date of determination for any such Lender
as the proportion which the Principal Debt arising under the Existing LCs (or participations
therein) owed to such Lender bears to the Principal Debt under the Existing LCs owed to all
Lenders; and (e) the Conversion and Continuation of Loans of a particular Type (other than
Conversions provided for by Section 4.4) shall be made pro rata among Lenders according to the
amounts of their respective Commitment Percentages, and the then current Interest Period for each
Lender’s portion of each Loan of such Type shall be coterminous.



3.3 Sharing of Payments, Etc. Except as contemplated in Section 4.7, if any Lender
shall obtain any payment (whether voluntary, involuntary, or otherwise, including as a result of
exercising its rights under Section 3.4) which is in excess of its ratable share of any such
payment, such Lender shall purchase from the other Lenders such participations as shall be
necessary to cause such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender under any of the circumstances described in Section 12.17 (including
pursuant to any settlement entered into by the purchasing Lender in its discretion), the purchase
shall be rescinded and the purchase price restored to the extent of such recovery. Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to this Section 3.3 may,
to the fullest extent permitted by Applicable Law, exercise all of its rights of payment (including
the right of offset) with respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.



3.4 Offset. Upon the occurrence and during the continuance of an Event of Default,
each Lender shall be entitled to exercise (for the benefit of Lenders in accordance with
Section 3.3) the rights of offset and/or banker’s lien against each and every account and other
property, or any interest therein, which Borrower may now or hereafter have with, or which is now
or hereafter in the possession of, such Lender to the extent of the full amount of the Obligations
(other than special accounts, trust accounts, or escrow accounts maintained by Borrower in a
fiduciary capacity or as an agent for unrelated third parties or any Portfolio Company), so long as
the amounts offset are paid to Collateral Agent to the extent required by the Intercreditor
Agreement.



3.5 Booking Borrowings. To the extent permitted by Applicable Law, any Lender may
make, carry, or transfer its Loans at, to, or for the account of any of its branch offices or the
office of any of its Affiliates; provided that, no Affiliate shall be entitled to receive any
greater payment under Section 4 than the transferor Lender would have been entitled to receive with
respect to such Loans.



3.6 Several Obligations. The obligations of Lenders hereunder are several and not
joint. No Lender shall be responsible for the failure of any other Lender to fund participations
in Existing LCs, or to perform any other obligation to be made or performed by such other Lender
hereunder, and the failure of any Lender to fund any such participation, or to perform any other
obligation to be made or performed by it hereunder shall not relieve the obligation of any other
Lender to fund any such participation, or to perform any other obligation to be made or performed
by such other Lender.




3.7 Minimum Amounts.




(a) Conversions. Each Conversion of Loans to Eurodollar Loans shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $1,000,000 in excess
of that amount.




(b) Prepayments. Each voluntary prepayment of Loans shall be in an
aggregate minimum amount of $1,000,000.




3.8 Fees.




(a) Facility Fee. Borrower agrees to pay to Administrative Agent (for the
account of each Lender in accordance with its daily Commitment Percentage) a nonrefundable
facility fee in an amount equal to 0.50% (calculated on a per annum basis) multiplied by
the amount of the daily amount of the Principal Debt. The facility fee shall accrue until
no Loans or LC Exposure remains outstanding. Such facility fee shall be payable quarterly
in arrears on each Quarterly Date and, without duplication, on the Maturity Date, beginning
with September 15, 2009.




(b) Upfront Fee. On the Closing Date, Borrower agrees to pay a
nonrefundable upfront fee to Administrative Agent for the ratable account of Lenders in
an amount equal to two percent (2%) of the principal amount of the Loans outstanding as
of the Closing Date.




(c) Outstanding Fees. On the Closing Date, Borrower agrees to pay all fees
payable to Bank of America, N.A. and Banc of America Securities LLC under that certain
engagement letter dated December, 2008 which have not been paid by Borrower prior to the
Closing Date.




(d) Administrative; Other Fees. Borrower agrees to pay to Administrative
Agent for its own account the fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable for any
reason whatsoever




(e) LC Fees. Borrower agrees to pay to LC Issuer (for the account of each
Lender in accordance with its daily average Commitment Percentage), an LC fee payable
quarterly in arrears commencing on the Closing Date and for so long as each such
Existing LC is outstanding, on each Quarterly Date and on the expiry date of the
Existing LC. The LC fee for each Existing LC shall be in an amount equal to the product
of (i) 5.00% (calculated on a per annum basis) multiplied by (ii) the maximum amount
available to be drawn under each Existing LC that is outstanding (“LC Fee”).
Notwithstanding anything to the contrary contained herein, upon the request of the
Requisite Lenders, while an Event of Default exists, all LC Fees shall accrue at the
Post-Default Rate.




(f) LC Issuer Fees. In addition to the fees provided for in the Fee
Letter, Borrower agrees to pay directly to LC Issuer (for its own account) the customary
issuance, presentation, amendment and other processing fees, and other standard costs
and charges, of LC Issuer relating to Existing LCs as from time to time in effect. Such
reasonable and customary fees and standard costs and charges are due and payable 30 days
after demand or invoicing therefor and are nonrefundable.




(g) Restructuring Fee. If any Loans or LC Exposure remain outstanding on
January 31, 2010, Borrower agrees to pay on such date to Administrative Agent, for the
account of the Lenders, a restructuring fee in an amount equal to one percent (1.0%) of
the principal amount of the Loans outstanding on such date, and such fee shall be
distributed to the Lenders on a pro rata basis based on their Commitment Percentages.



3.9 Computations. Other than calculations in respect of interest at the Bank of
America “prime” rate (which shall be made on the basis of actual number of days elapsed in a
365/366 day year), all calculations of interest and fees are made on the basis of actual number of
days elapsed in a 360 day year. Each determination by Administrative Agent of an interest rate or
fee hereunder shall be conclusive and binding for all purposes, absent manifest error.



3.10 Maximum Rate. Regardless of any provision contained in any Loan Document,
neither Administrative Agent nor any Lender shall ever be entitled to contract for, charge, take,
reserve, receive, or apply, as interest on the Obligations, or any part thereof, any amount in
excess of the Maximum Rate, and, if Lenders ever do so, then such excess shall be deemed a partial
prepayment of principal and treated hereunder as such and any remaining excess shall be refunded to
Borrower. In determining if the interest paid or payable exceeds the Maximum Rate, Borrower and
Lenders shall, to the maximum extent permitted under Applicable Law, (a) treat all Loans as but a
single extension of credit (and Lenders and Borrower agree that such is the case and that provision
herein for multiple Loans is for convenience only), (b) characterize any nonprincipal payment as an
expense, fee, or premium rather than as interest, (c) exclude voluntary prepayments and the effects
thereof, and (d) amortize, prorate, allocate, and spread the total amount of interest throughout
the entire contemplated term of the Obligations; provided that, if the Obligations are paid and
performed in full prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum Amount, Lenders shall
refund such excess, and, in such event, Lenders shall not, to the extent permitted by Applicable
Law, be subject to any penalties provided by any Applicable Laws for contracting for, charging,
taking, reserving, or receiving interest in excess of the Maximum Amount.



3.11 Interest Recapture. If the designated rate applicable to any Loan exceeds the
Maximum Rate, the rate of interest on such Loan shall be limited to the Maximum Rate, but any
subsequent reductions in such designated rate shall not reduce the rate of interest thereon below
the Maximum Rate until the total amount of interest accrued thereon equals the amount of interest
which would have accrued thereon if such designated rate had at all times been in effect. In the
event that at maturity (stated or by acceleration), or at final payment of the Principal Debt, the
total amount of interest paid or accrued is less than the amount of interest which would have
accrued if such designated rates had at all times been in effect, then, at such time and to the
extent permitted by law, Borrower shall pay an amount equal to the difference between (a) the
lesser of the amount of interest which would have accrued if such designated rates had at all times
been in effect and the amount of interest which would have accrued if the Maximum Rate had at all
times been in effect, and (b) the amount of interest actually paid or accrued on the Principal
Debt.



3.12 Agreement Regarding Interest and Charges. The parties hereto hereby agree and
stipulate that the only charge imposed upon Borrower for the use of money in connection with this
Agreement is and shall be the interest specifically described in Section 2.3(a). Notwithstanding
the foregoing, the parties hereto further agree and stipulate that all agency fees, syndication
fees, facility fees, underwriting fees, default charges, late charges, funding or “breakage”
charges, increased cost charges, attorneys’ fees and reimbursement for costs and expenses paid by
Administrative Agent, LC Issuer, or any Lender to third parties or for damages incurred by
Administrative Agent, LC Issuer, or any Lender, are charges made to compensate Administrative
Agent, LC Issuer, or any such Lender for underwriting or administrative services and costs or
losses performed or incurred, and to be performed or incurred, by Administrative Agent, LC Issuer,
and Lenders in connection with this Agreement and shall under no circumstances be deemed to be
charges for the use of money.




3.13 Defaulting Lenders.




(a) Generally. If for any reason any Lender (a “Defaulting Lender”) (i)
shall fail or refuse to perform any of its obligations under this Agreement or any other
Loan Document to which it is a party within the time period specified for performance of
such obligation or, if no time period is specified, if such failure or refusal continues
for a period of two Business Days after notice from Administrative Agent, or (ii) shall
be deemed insolvent or becomes the subject of a bankruptcy or insolvency proceeding,
then, in addition to the rights and remedies that may be available to Administrative
Agent or Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right
to participate in the administration of the Loans, this Agreement, and the other Loan
Documents, including any right to vote in respect of, to consent to, or to direct any
action or inaction of Administrative Agent or to be taken into account in the
calculation of the Requisite Lenders, shall be suspended during the pendency of such
failure or refusal. If a Lender is a Defaulting Lender because it has failed to make
timely payment to Administrative Agent of any amount required to be paid to
Administrative Agent hereunder (without giving effect to any notice or cure periods), in
addition to other rights and remedies which Administrative Agent or Borrower may have
under the immediately preceding provisions or otherwise, Administrative Agent shall be
entitled (i) to collect interest from such Defaulting Lender on such delinquent payment
for the period from the date on which the payment was due until the date on which the
payment is made at the Federal Funds Rate, and (ii) to withhold or setoff and to apply
in satisfaction of the defaulted payment and any related interest, any amounts otherwise
payable to such Defaulting Lender under this Agreement or any other Loan Document. Any
amounts received by Administrative Agent in respect of a Defaulting Lender’s Loans shall
not be paid to such Defaulting Lender and shall be held uninvested by Administrative
Agent and either applied against the purchase price of such Loans under the following
subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of
its default. Borrower shall not have any liability in respect of such action by
Administrative Agent.




(b) Purchase of Defaulting Lender’s Rights and Obligations. Any Lender who
is not a Defaulting Lender shall have the right, but not the obligation, in its sole
discretion, to acquire all of a Defaulting Lender’s Loans, LC Exposure, and other rights
and obligations under this Agreement. Any Lender desiring to exercise such right shall
give written notice thereof to Administrative Agent no sooner than two Business Days and
not later than ten Business Days after such Defaulting Lender became a Defaulting
Lender. If more than one Lender exercises such right, each such Lender shall have the
right to acquire an amount of such Defaulting Lender’s Loans and other rights and
obligations under this Agreement in proportion to the Commitments of the other Lenders
exercising such right. Upon any such purchase, the Defaulting Lender’s interest in the
Loans and any funded participations in the Existing LCs and its rights hereunder (but
not its liability in respect thereof or under the Loan Documents or this Agreement to
the extent the same relate to the period prior to the effective date of the purchase)
shall terminate on the date of purchase, and the Defaulting Lender shall promptly
execute all documents reasonably requested to surrender and transfer such interest to
the purchaser thereof including an appropriate Assignment and Assumption and,
notwithstanding Section 12.4(b), shall pay to Administrative Agent an Assignment Fee,
unless such fee is waived by Administrative Agent in its sole discretion. The purchase
price paid to a Defaulting Lender for a purchase made pursuant to this Section shall be
equal to the amount of the outstanding principal balance of the Defaulting Lender’s
Loans (together with any funded participations in the Existing LCs held by the
Defaulting Lender pursuant to Section 2.2(b)). Prior to payment of such purchase price
to a Defaulting Lender, Administrative Agent shall apply against such purchase price any
amounts retained by Administrative Agent pursuant to the second to last sentence of the
immediately preceding subsection (a). The Defaulting Lender shall be entitled to
receive amounts owed to it by Borrower under the Loan Documents which accrued prior to
the date of the default by the Defaulting Lender, to the extent the same are received by
Administrative Agent from or on behalf of Borrower. There shall be no recourse against
any Lender or Administrative Agent for the payment of such sums except to the extent of
the receipt of payments from any other party or in respect of the Loans or the principal
amount of any funded participations in any Existing LC and related reimbursement
obligations with respect to the Existing LCs. If, prior to a Lender’s acquisition of a
Defaulting Lender’s Loans and interests pursuant to this subsection (b), such Defaulting
Lender shall cure the event or condition which caused it to become a Defaulting Lender
and shall have paid all amounts owing by it hereunder as a result thereof, then such
Lender shall no longer have the right to acquire such Defaulting Lender’s interests.



	 	 	 	 	 
	SECTION 4.	 	YIELD PROTECTION, ETC.
	 	4.1	 	 	Increased Cost and Reduced Return.

	 	 	 	 	 








(a) If, after the date hereof, the adoption of any Applicable Law, rule, or
regulation, or any change in any Applicable Law, or any change in the interpretation or
administration thereof by any Governmental Authority, or compliance by any Lender (or
its applicable Lending Office) with any request or directive (whether or not having the
force of law) of any such Governmental Authority (each a “Change in Law”):




(i) shall impose, modify, or deem applicable any reserve, special deposit,
assessment, compulsory loan, insurance charge, or similar requirement (other than
the Reserve Requirement utilized in the determination of the Adjusted Eurodollar
Rate) relating to any extensions of credit or other assets of, or any deposits with
or other liabilities, or participations of, any Lender (or its applicable Lending
Office); or




(ii) shall impose on any Lender (or its applicable Lending Office) or on the
London interbank market any other condition, cost, or expense affecting the Loan
Documents, Eurodollar Loans made by such Lender, or any LC or participation in an
Existing LC, (excluding Taxes, which are addressed in Section 4.6);




(iii) and the result of any of the foregoing is to increase the cost to such
Lender (or its applicable Lending Office) of Converting into, Continuing, or
maintaining any Eurodollar Loans (or to maintain any Existing LC) or to reduce any
sum received or receivable by such Lender (or its applicable Lending Office) under
the Loan Documents with respect to any Eurodollar Loans, then Borrower shall pay to
such Lender on demand such amount or amounts as will compensate such Lender for such
increased cost or reduction. If any Lender requests compensation by Borrower under
this Section 4.1(a), Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such Lender to Continue Loans of
the Type with respect to which such compensation is requested, or to Convert Loans
of any other Type into Loans of such Type, until the event or condition giving rise
to such request ceases to be in effect (in which case the provisions of Section 4.4
shall be applicable); provided that, such suspension shall not affect the right of
such Lender to receive the compensation so requested.




(b) If, after the date hereof, any Lender determines that any Change in Law
affecting such Lender (or its applicable Lending Office) or such Lender’s holding
company, if any, regarding capital has or would have the effect of reducing the rate of
return on the capital of such Lender or such Lender’s holding company as a consequence
of such Lender’s obligations hereunder to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or its holding company’s policies with respect to capital
adequacy), then from time to time upon demand Borrower shall pay to such Lender or such
Lender’s holding company such additional amount or amounts as will compensate such
Lender for such reduction.




(c) Each Lender shall promptly notify Borrower and Administrative Agent of any
event of which it has knowledge, occurring after the date hereof, which will entitle
such Lender to compensation pursuant to this Section 4.1 and will designate a different
applicable Lending Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section 4.1 shall
furnish to Borrower and Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.




(d) Failure or delay on the part of any Lender to demand compensation pursuant to
this Section 4.1 shall not constitute a waiver of such Lender’s right to demand such
compensation, provided that Borrower shall not be required to compensate
a Lender pursuant to this Section 4.1 for any increased costs incurred or reductions
suffered more than nine (9) months prior to the date that such Lender notifies Borrower
of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the nine
(9)-month period referred to above shall be extended to include the period of
retroactive effect thereof).



4.2 Inability to Determine Rates. If on or prior to the first day of any Interest
Period for any Eurodollar Loan:




(a) Dollar deposits are not being offered to banks in the London interbank
Eurodollar market for the applicable amount and Interest Period of such Eurodollar Loan;




(b) Administrative Agent determines (which determination shall be conclusive) that
by reason of circumstances affecting the relevant market, adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for such Interest Period; or




(c) the Requisite Lenders determine (which determination shall be conclusive) and
notify Administrative Agent that the Adjusted Eurodollar Rate will not adequately and
fairly reflect the cost to Lenders of continuing the Eurodollar Loans for such Interest
Period;




then Administrative Agent shall give Borrower and Lenders prompt notice. Thereafter,
commencing on the last day(s) of the then current Interest Period(s) and for so long as
such condition remains in effect, the Loans shall bear interest at the Base Rate and
Lenders shall be under no obligation to Continue Eurodollar Loans or to Convert Base Rate
Loans into Eurodollar Loans, and Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Eurodollar Loans, either prepay such Loans or
Convert such Loans into Base Rate Loans in accordance with the terms of this Agreement.



4.3 Illegality. Notwithstanding any other provision of this Agreement, in the event that
it becomes unlawful (or any Governmental Authority has asserted that is unlawful) for any Lender or
its applicable Lending Office to maintain Eurodollar Loans hereunder or to determine or charge
interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then such Lender shall promptly notify Borrower thereof (through
Administrative Agent) and such Lender’s obligation to Continue Eurodollar Loans and to Convert
other Base Rate Loans into Eurodollar Loans shall be suspended until such time as such Lender may
again make, maintain, and fund Eurodollar Loans (in which case the provisions of Section 4.4 shall
be applicable).



4.4 Treatment of Affected Loans. If the obligation of any Lender to Continue, or to
Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to Section 4.1, 4.2, or
4.3 hereof, such Lender’s Eurodollar Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Eurodollar Loans (or, in the case of a
Conversion required by Section 4.3 hereof, on such earlier date as such Lender may specify to
Borrower with a copy to Administrative Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 4.1, 4.2, or 4.3 hereof that gave rise
to such Conversion no longer exist:




(a) to the extent that such Lender’s Eurodollar Loans have been so Converted, all
payments and prepayments of principal that would otherwise be applied to such Lender’s
Eurodollar Loans shall be applied instead to its Base Rate Loans; and




(b) all Loans that would otherwise be Continued by such Lender as Eurodollar Loans
shall be made or Continued instead as Base Rate Loans, and all Loans of such Lender that
would otherwise be Converted into Eurodollar Loans shall be Converted instead into (or
shall remain as) Base Rate Loans.



If such Lender gives notice to Borrower (with a copy to Administrative Agent) that the
circumstances specified in Section 4.1, 4.2, or 4.3 hereof that gave rise to the Conversion of such
Lender’s Eurodollar Loans pursuant to this Section 4.4 no longer exist (which such Lender agrees to
do promptly upon such circumstances ceasing to exist) at a time when Eurodollar Loans made by other
Lenders are outstanding, such Lender’s Base Rate Loans shall be automatically Converted, on the
first day(s) of the next succeeding Interest Period(s) for such outstanding Eurodollar Loans, to
the extent necessary so that, after giving effect thereto, all Loans held by Lenders holding
Eurodollar Loans and by such Lender are held pro rata (as to principal amounts, Types, and Interest
Periods) in accordance with their respective Commitments.



4.5 Compensation. Upon the request of any Lender (with a copy to Administrative
Agent) from time to time, Borrower shall pay to such Lender such amount or amounts as shall be
sufficient (in the reasonable opinion of such Lender) to compensate such Lender for, and hold such
Lender harmless from, any loss, cost, or expense incurred by it as a result of:




(a) any payment, prepayment, or Conversion of a Eurodollar Loan for any reason
(including the acceleration of the Loans pursuant to Section 10.2) on a date other than
the last day of the Interest Period for such Loan;




(b) any failure by Borrower for any reason (including the failure of any condition
precedent specified in Section 5 to be satisfied) to Convert, Continue, or prepay a
Eurodollar Loan on the date for such Conversion, Continuation, or prepayment specified
in the relevant notice of prepayment, Continuation, or Conversion under this Agreement;
or




(c) any assignment of a Eurodollar Loan on a day other than the last day of the
Interest Period therefor as a result of a request by Borrower pursuant to Section 4.7;



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. Borrower shall also pay any reasonable and customary
administrative fees charged by such Lender in connection with the foregoing.




4.6 Taxes.




(a) General. Any and all payments by Borrower to or for the account of any
Lender, Administrative Agent, or LC Issuer hereunder or under any other Loan Document
shall be made free and clear of and without reduction or withholding for Indemnified
Taxes or Other Taxes; provided that, if Borrower shall be required by law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, (i) the sum payable
shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 4.6) such Lender,
Administrative Agent, or LC Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such deductions been made, (ii) Borrower shall make
such deductions, and (iii) Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with Applicable Law.




(b) Payment of Other Taxes by Borrower. Without limiting the provisions of
subsection 4.6 above, Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with Applicable Law.




(c) INDEMNIFICATION FOR TAXES. Borrower agrees to indemnify each
Lender, Administrative Agent, and LC Issuer for the full amount of any Indemnified Taxes
and Other Taxes (including any Indemnified Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 4.6 other than Excluded
Taxes) paid by such Lender, Administrative Agent, or LC Issuer (as the case may be) and
any liability (including penalties, interest, and expenses) arising therefrom or with
respect thereto. A certificate as to the amount of such payment or liability delivered
to Borrower by a Lender or LC Issuer (with a copy to Administrative Agent), or by
Administrative Agent on its own behalf or on behalf of a Lender or LC Issuer, shall be
conclusive absent manifest error.




(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by Borrower to a Governmental Authority, Borrower shall
deliver to Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return reporting such
payment or other evidence of such payment reasonably satisfactory to Administrative
Agent.




(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption
from or reduction of withholding tax under the law of the jurisdiction in which Borrower
is resident for tax purposes, or any treaty to which such jurisdiction is a party, with
respect to payments hereunder or under any other Loan Document shall deliver to Borrower
(with a copy to Administrative Agent), at the time or times prescribed by Applicable Law
or reasonably requested by Borrower or Administrative Agent, such properly completed and
executed documentation prescribed by Applicable Law as will permit such payments to be
made without withholding or at a reduced rate of withholding. Without limiting the
generality of the foregoing, each Lender shall deliver to Borrower and Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to
the date on which such Lender becomes a Lender under this Agreement (and from time to
time thereafter, including upon the expiration or obsolescence of any previously
delivered form, upon the request of Borrower or Administrative Agent, but only if such
Lender is legally entitled to do so), whichever of the following is applicable:




(i) duly completed copies of Internal Revenue Service Form W-8BEN (or any
successor form), claiming eligibility for benefits of an income tax treaty to which
the United States is a party,




(ii) duly completed copies of Internal Revenue Service Form W-8ECI (or any
successor form),




(iii) duly completed copies of Internal Revenue Service Form W-8IMY (or any
successor form), together with any required attachments thereto; or




(iv) duly completed copies of Internal Revenue Service Forms W-9 (or any
successor form).



In addition, each Lender shall deliver to Borrower and Administrative Agent, upon request of
Borrower or Administrative Agent, any other form prescribed by Applicable Law as a basis for
claiming exemption from or a reduction in United States federal withholding tax, duly completed,
together with such supplementary documentation as may be prescribed by Applicable Law to permit
Borrower or Administrative Agent to determine the withholding or deduction required to be made.




(f) Failure to Provide Withholding Forms; Change in Tax Law. For any
period with respect to which a Lender has failed to provide Borrower and Administrative
Agent with the appropriate form required to be provided pursuant to Section 4.6(e), such
Lender shall not be entitled to indemnification under this Section 4.6 with respect to
Indemnified Taxes imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from or subject to a reduced rate of withholding tax, become
subject to Indemnified Taxes because of its failure to deliver a form required
hereunder, Borrower shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Indemnified Taxes. Each Lender which fails to
provide to Borrower in a timely manner such forms shall reimburse Borrower or
Administrative Agent upon demand for any penalties paid by Borrower or Administrative
Agent as a result of any failure of Borrower to withhold the required amounts that are
caused by such Lender’s failure to provide the required forms in a timely manner.




(g) Changes in Applicable Lending Office. If Borrower is required to pay
additional amounts to or for the account of any Lender pursuant to this Section 4.6,
then such Lender will use best efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its applicable Lending Office so as to
eliminate or reduce any such additional payments or amounts which may thereafter accrue
if such change, in the judgment of such Lender, is not otherwise disadvantageous to such
Lender.




(h) Treatment of Certain Refunds. If Administrative Agent, any Lender or
LC Issuer determines, in its sole discretion, that it has received a refund of or credit
for any Indemnified Taxes or Other Taxes as to which it has been indemnified by Borrower
or with respect to which Borrower has paid additional amounts pursuant to this
Section 4.6, it shall pay to Borrower an amount equal to such refund or credit (but only
to the extent of indemnity payments made, or additional amounts paid, by Borrower under
this Section 4.6 with respect to the Indemnified Taxes or Other Taxes giving rise to
such refund or credit), net of all out-of-pocket expenses of Administrative Agent, such
Lender or LC Issuer, as the case may be, and without interest (other than any interest
paid by the relevant Governmental Authority with respect to such refund or credit),
provided that, Borrower, upon the request of Administrative Agent, such Lender or LC
Issuer, agrees to repay the amount paid over to Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to Administrative
Agent, such Lender or LC Issuer in the event Administrative Agent, such Lender or LC
Issuer is required to repay such refund or credit to such Governmental Authority. This
subsection (h) shall not be construed to require Administrative Agent, any Lender, or LC
Issuer to make available its tax returns (or any other information relating to its Taxes
that it deems confidential) to Borrower or any other Person.




(i) Survival. Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in this
Section 4.6 shall survive payment in full of the Obligations.



4.7 Removal of Lenders. If (a) a Lender or a Participant requests compensation pursuant to
Sections 4.1 or 4.6 and the Requisite Lenders are not also doing the same, or (b) the obligation of
a Lender to Continue or to Convert Loans into Eurodollar Loans shall be suspended pursuant to
Section 4.1 or Section 4.3, but the obligation of the Requisite Lenders shall not have been
suspended under such Sections, Borrower may either (i) demand that such Lender or Participant (the
“Affected Lender”), and upon such demand the Affected Lender shall promptly, assign its LC Exposure
and all of its Loans to an Eligible Assignee subject to and in accordance with the provisions of
Section 12.4 for a purchase price equal to the aggregate principal balance of Loans then owing to
the Affected Lender (together with any participation held by the Affected Lender in any Existing LC
and related reimbursement obligations with respect to such Existing LCs pursuant to Section 2.2(b))
plus any accrued but unpaid interest thereon, accrued but unpaid Fees owing to the Affected Lender,
and any amounts owing to the Affected Lender under Section 4, or (ii) pay to the Affected Lender
the aggregate principal balance of Loans (together with any participation held by the Affected
Lender in any Existing LC and related reimbursement obligations with respect to such Existing LCs
pursuant to Section 2.2(b)) then owing to the Affected Lender plus any accrued but unpaid interest
thereon, accrued but unpaid Fees owing to the Affected Lender, and any amounts owing to the
Affected Lender under SECTION 4, whereupon the Affected Lender shall no longer be a party hereto or
have any rights or obligations hereunder or under any of the other Loan Documents, subject to the
survival of certain provisions as set forth in Section 12.16. Each of Administrative Agent and the
Affected Lender shall reasonably cooperate in effectuating the replacement of an Affected Lender
under this Section 4.7, but at no time shall Administrative Agent, the Affected Lender, or any
other Lender be obligated in any way whatsoever to initiate any such replacement or to assist in
finding an Eligible Assignee. The exercise by Borrower of its rights under this Section 4.7 shall
be at Borrower’s sole cost and expense and at no cost or expense to Administrative Agent, the
Affected Lender, or any of the other Lenders. The terms of this Section 4.7 shall not in any way
limit Borrower’s obligation to pay to any Affected Lender compensation owing to such Affected
Lender pursuant to Section 4.



SECTION 5. CONDITIONS PRECEDENT.



5.1 Conditions Precedent. The effectiveness of this Agreement is subject to the
satisfaction of the conditions precedent set forth in this Section 5.1 and in Section 5.2; it being
understood and agreed that except as otherwise specified in, and subject to the terms and
provisions of, Section 7.13 and Schedule 7.13, all such conditions shall be deemed satisfied upon
the Closing:




(a) Administrative Agent’s receipt of the following, each of which shall be
originals, telecopies or electronic facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by an authorized officer of Borrower and the
other parties thereto, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form and
substance reasonably satisfactory to Administrative Agent (and, where indicated, each of
the Lenders or the Requisite Lenders):




(i) Counterparts of this Agreement executed by Borrower, Administrative Agent,
LC Issuer, and the Requisite Lenders;




(ii) With respect to any Lender requesting a Promissory Note pursuant to
Section 2.9(b), a Promissory Note payable to each such requesting Lender;




(iii) Such documents and certifications as Administrative Agent may reasonably
require with respect to the Loan Parties, to evidence due organization or formation,
valid existence and good standing, and qualification to do business in its state of
organization;




(iv) Such certificates of resolution or other action, incumbency certificates
and other certificates as Administrative Agent may reasonably require evidencing the
identity, authority and capacity of the Responsible Officers authorized to act on
behalf of the Loan Parties in connection with this Agreement and the other Loan
Documents;




(v) Opinions of Sutherland Asbill & Brennan and Dickstein Shapiro LLP, as
counsel to Borrower, addressed to Administrative Agent and Lenders, substantially
similar to the opinions provided to the Noteholders in connection with the closing
of the Senior Note Agreement, and in form and substance reasonably acceptable to
Administrative Agent;




(vi) A schedule (based on asset values as of June 30, 2009) containing the
information described in Section 8.5;




(vii) A certificate regarding assets, substantially in the form of Exhibit J,
executed by a legal officer of Borrower;




(viii) A certificate executed by a Responsible Officer of Borrower certifying
that, to such officer’s knowledge:




(A) the conditions specified in Sections 5.1(g) and 5.1(h) have been
fulfilled; and




(B) Borrower has not changed its jurisdiction of incorporation or been
a party to any merger or consolidation and has not succeeded to all or any
substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to
Section 6.10; and




(ix) The agreements, documents and other items described in Section 5.2, in
form and substance satisfactory to Administrative Agent and the Requisite Lenders.




(b) Payment of the Fees then due as described in or referenced by Section 3.8;




(c) Payment of all accrued and unpaid interest and fees due with respect to the
Existing Credit Agreement;




(d) Payment of all fees, charges and disbursements of counsel to Administrative
Agent to the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its reasonable
estimate of such fees, charges and disbursements incurred or to be incurred by it
through the closing proceedings (provided that such estimate shall not thereafter
preclude a final settling of accounts between Borrower and Administrative Agent);




(e) Payment of all fees, charges, and disbursements of FTI Consulting, Inc., in
connection with the Existing Credit Agreement and the transactions contemplated hereby,
to the extent invoiced prior to or on the Closing Date;




(f) Payment of all reasonable fees, charges, and disbursements of the Collateral
Agent and counsel to the Collateral Agent, to the extent agreed by Borrower and the
Collateral Agent pursuant to the schedule of fees dated as of July 28, 2009;




(g) The representations and warranties of Borrower and the other Loan Parties in
this Agreement and the other Loan Documents shall be true and correct;




(h) Except for the Applicable Events of Default waived pursuant to Section 12.10,
no Default or Event of Default shall have occurred and be continuing; and




(i) There shall (i) be no actions, suits, or proceedings pending or, to Borrower’s
Knowledge, threatened in writing with respect to this Agreement or any other Loan
Document, and (ii) not exist any judgment, order, injunction, or other restraint issued
or filed, or a hearing seeking injunctive relief or other restraint pending or notified,
prohibiting, or imposing materially adverse conditions on the transactions contemplated
by this Agreement or any other Loan Document.



5.2 Subsidiary Guaranty and Collateral Documents. Borrower shall deliver on or before
the Closing Date the following, each in form and substance satisfactory to Administrative Agent and
the Requisite Lenders:




(a) One or more Subsidiary Guaranties, substantially in the form of Exhibit I, duly
executed by each of the Consolidated Subsidiaries;




(b) The Security Agreement, in substantially the form of Exhibit H, duly executed
by Borrower and each Consolidated Subsidiary (other than Pledge LLC), together with such
of the following as shall be required by Administrative Agent or the Requisite Lenders:




(i) (A) evidence that the originals of the certificates evidencing the Equity
Interests pledged pursuant to the Security Agreement, are either in the custody of a
custodian subject to a duly executed Custody Control Agreement (as defined in the
Security Agreement and as used herein as therein defined) in form and substance
reasonably satisfactory to the Collateral Agent (acting at the direction of the
Required Secured Creditors) or have been delivered to the Collateral Agent, and that
original undated equity powers with respect to such Equity Interests have been
executed and delivered to Collateral Agent, (B) evidence that original instruments
evidencing the debt pledged pursuant to the Security Agreement are in the custody of
a custodian subject to a duly executed Custody Control Agreement or have been
delivered to the Collateral Agent, together with executed allonge endorsements with
respect to debt instruments delivered to the Collateral Agent, and (C) copies of any
and all third party consents received with respect to the Equity Interests and the
debt pledged pursuant to the Security Agreement;




(ii) financing statements in form appropriate for filing under the Uniform
Commercial Code of all jurisdictions that the Collateral Agent (acting at the
direction of the Required Secured Creditors) and Administrative Agent may deem
reasonably necessary or customary in order to perfect the Liens created under the
Security Agreement, covering the Collateral described in the Security Agreement to
the extent such Liens may be perfected by the filing of such financing statements;




(iii) completed requests for information, dated on or before the Closing Date
listing all effective financing statements filed in the jurisdictions referred to in
clause (B) above that name any of Borrower, Pledge LLC or a Consolidated Subsidiary
as debtor, together with copies of such financing statements; and




(iv) reasonably satisfactory evidence of, or arrangements satisfactory to
Administrative Agent for, the completion of all other actions, recordings, and
filings of or with respect to the Security Agreement that the Collateral Agent
(acting at the direction of the Required Secured Creditors) and Administrative Agent
deem reasonably necessary or customary in order to perfect the Liens on the
Collateral (other than Second Tier Collateral not subject to the Perfection
Requirement) created thereby (including receipt of UCC-3 termination statements and
landlord’s and bailees’ waiver and consent agreements);




(c) the Custody Control Agreements, delivered pursuant to the Security Agreement
and set forth on Schedule 5.2 hereto, duly executed by the applicable custodian,
grantor, and Collateral Agent;




(d) the Deposit Account Control Agreements, delivered pursuant to the Security
Agreement and set forth on Schedule 5.2, duly executed by the applicable depository, the
applicable grantor, and Collateral Agent;




(e) the Securities Account Control Agreements, delivered pursuant to the Security
Agreement and set forth on Schedule 5.2, duly executed by the applicable securities
intermediary, the applicable grantor, and Collateral Agent;




(f) The Intercreditor Agreement, substantially in the form of Exhibit G, duly
executed by the parties thereto;




(g) A copy of the fully executed Senior Note Agreement certified by a Responsible
Officer of Borrower as true and complete, in form and substance reasonably satisfactory
to Administrative Agent;




(h) The operating agreement of each Consolidated Subsidiary that is a limited
liability company shall have been amended to provide for, among other things, the pledge
or grant of a security interest in each such Consolidated Subsidiary’s membership
interest to the Collateral Agent for the benefit of the Secured Parties and such amended
operating agreements shall each be in form and substance reasonably satisfactory to
Administrative Agent;




(i) The Collateral Agent shall have received certificates of insurance evidencing
insurance coverage with respect to the Collateral as required by the Loan Documents and
naming the Collateral Agent for the benefit of the Lenders and the Noteholders as loss
payee/mortgagee and/or additional insured, as applicable, with respect to all
Collateral, as required by the Collateral Documents; and




(j) Delivery of, or arrangements reasonably satisfactory to Administrative Agent
for delivery of, such other certificates, documents, consents or opinions as
Administrative Agent may deem necessary or desirable in order to perfect the Liens
created under the Security Agreement (other than with respect to Second Tier Collateral
not subject to the Perfection Requirement) or to protect the Lenders’ rights with
respect thereto (including receipt of UCC-3 termination statements and landlord’s and
bailees’ waiver and consent agreements).



Without limiting the generality of the provisions of Section 11.4, for purposes of determining
compliance with the conditions specified in this Section 5, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.



SECTION 6. REPRESENTATIONS AND WARRANTIES.



In order to induce Administrative Agent and each Lender to enter into this Agreement, Borrower
represents and warrants to Administrative Agent, LC Issuer, and each Lender as follows:



6.1 Organization; Power; Qualification. Each Loan Party is a corporation, limited
liability company, or other legal entity, duly organized or formed, validly existing and in good
standing under the jurisdiction of its incorporation or formation, has all requisite power and
authority and all necessary licenses and permits to own or hold under lease the properties it
purports to own or hold under lease and to operate such properties and to carry on its respective
business as now being and hereafter proposed to be conducted except where the failure to obtain
such licenses or permits could not be reasonably expected to have a Material Adverse Effect, and is
duly qualified and is in good standing as a foreign corporation, limited liability company, or
other legal entity, and authorized to do business, in each jurisdiction in which the character of
its properties owned or leased by or the nature of its business requires such qualification or
authorization, except where the failure to be so qualified or authorized could not reasonably be
expected to have a Material Adverse Effect.



6.2 Ownership Structure. As of the Agreement Date, Schedule 6.2 correctly sets forth
the corporate structure and ownership interests of the Consolidated Subsidiaries including the
correct legal name of each Consolidated Subsidiary, its jurisdiction of formation, and the
percentage equity or voting interest in such Consolidated Subsidiary owned by Borrower and each
Consolidated Subsidiary. As of the Agreement Date, A.C. Corporation and Pledge LLC are the only
Material Subsidiaries. Except as set forth in such Schedule, and except for Permitted Preferred
Stock:




(a) No Consolidated Subsidiary has issued to any third party any securities
convertible into such Consolidated Subsidiary’s capital stock or other equity interests
or any options, warrants, or other rights to acquire any securities convertible into
such capital stock or other equity interests, and




(b) All of the outstanding Equity Interests of each Consolidated Subsidiary shown
on Schedule 6.2 as being owned by Borrower and its Consolidated Subsidiaries have been
validly issued, are fully paid and nonassessable, and are owned by Borrower or a
Consolidated Subsidiary free and clear of all Liens, warrants, and options (except for
Permitted Liens).




(c) To the Borrower’s Knowledge, no Consolidated Subsidiary is a party to, or
otherwise subject to any legal, regulatory, contractual or other restriction (other than
this Agreement, the Senior Note Agreement, the agreements listed on Schedule 6.2(c), and
customary limitations imposed by corporate law or similar statutes) restricting the
ability of such Consolidated Subsidiary to pay dividends out of profits or make any
other similar distributions of profits to Borrower or any of its Consolidated
Subsidiaries that owns outstanding Equity Interests of such Consolidated Subsidiary.



6.3 Authorization; Governmental Authorization; Other Consents.




(a) Each Loan Party has the right and power, and has taken all necessary action to
authorize it, to borrow and incur obligations with respect to the Loans and to incur
reimbursement obligations with respect to the Existing LCs. Each Loan Party has the
right and power, and has taken all necessary action to authorize it to execute, deliver,
and perform each of the Loan Documents to which it is a party in accordance with their
respective terms and to consummate the transactions contemplated hereby and thereby.
The Loan Documents have been duly executed and delivered by the duly authorized officers
of each Loan Party that is a party thereto, and each is a legal, valid, and binding
obligation of such Loan Party, enforceable against it in accordance with its respective
terms, subject to applicable bankruptcy, creditor’s rights, and similar laws affecting
the rights and remedies of creditors generally.




(b) Except as set forth on Schedule 6.3, to Borrower’s Knowledge, after reasonable
inquiry, no approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other Person is necessary or
required in connection with:




(i) the execution, delivery or performance by, or enforcement against, any Loan
Party of the Loan Documents;




(ii) the grant by any Grantor of the Liens granted by it pursuant to the
Collateral Documents;




(iii) except for the filing of appropriate UCC financing statements and the
execution of the Control Agreements as contemplated by the Collateral Documents, the
perfection or maintenance of the Liens created under the Collateral Documents; or




(iv) the exercise by the Collateral Agent or Administrative Agent, or any
Lender of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents;




except, in each case under both this Section 6.3(a) and Section 6.3(b), (x) for any such
approval, consent, exemption, authorization, action, notice or filing that has been
obtained, given or made and is in full force and effect on the Closing Date or (y) as
may be required by the terms of the contracts which are the subject of the Lien being
granted under the Collateral Documents.



6.4 No Contravention. The execution, delivery and performance by each Loan Party of each
Loan Document to which such Loan Party is or is to be a party do not and will not




(a) contravene the terms of any of such Loan Party’s Organization Documents;




(b) to the Borrower’s Knowledge, conflict with or result in any material breach or
contravention of, or the creation of any material Lien (other than Liens contemplated by
the Collateral Documents), or require any material payment to be made under:




(i) any loan agreement, indenture or other similar agreement evidencing
material Indebtedness or any other Material agreement to which such Loan Party is a
party or is subject, or by which such Loan Party or the respective properties of
such entities are bound; or




(ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Grantor or its property is subject; or




(c) violate any law or regulation applicable to such Loan Party which could
reasonably be expected to have a Material Adverse Effect.



6.5 Compliance with Law; Governmental Approvals. To Borrower’s Knowledge, Borrower and
each Consolidated Subsidiary is in compliance with each Governmental Approval applicable to it and
in compliance with all other Applicable Laws relating to it, except for noncompliances which, and
Governmental Approvals the failure to possess which, would not, individually or in the aggregate,
cause a violation under Section 9.12 or could reasonably be expected to have a Material Adverse
Effect.



6.6 Ownership of Assets; Leases. Borrower and its Consolidated Subsidiaries have good and
sufficient title to their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet of Borrower listed
on Schedule 6.10 or purported to have been acquired by Borrower or any of its Consolidated
Subsidiaries after said date (except as sold or otherwise disposed of in the ordinary course of
business), in each case, to Borrower’s Knowledge, free and clear of Liens prohibited by this
Agreement. To Borrower’s Knowledge, all leases that individually or in the aggregate are Material
are valid and subsisting and are in full force and effect in all material respects.




6.7 Existing Indebtedness; Future Liens. 




(a) Except as described therein, Schedule 6.7 sets forth a complete and correct
list of all outstanding Indebtedness of Borrower and each of its Consolidated
Subsidiaries as of August 18, 2009 (including, in the case of material Indebtedness, a
description of the obligors and obligees, principal amount outstanding and collateral
therefor, if any, and Contingent Obligations in respect thereof, if any), since which
date there has been no material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Indebtedness of Borrower or its Consolidated
Subsidiaries. After giving effect to the transactions contemplated by the Loan
Documents and the Senior Note Agreement and related Financing Documents, neither
Borrower nor any Consolidated Subsidiary is in default beyond any applicable notice
and/or grace period in the payment of principal or interest on any material Indebtedness
nor is in default beyond any applicable notice and/or grace period under any instrument
or instruments or agreements under and subject to which any such Indebtedness has been
issued and no event has occurred and is continuing under the provisions of any such
instrument or agreement, and no condition exists with respect to any such Indebtedness,
which with the lapse of time or the giving of notice, or both, would permit one or more
Persons to cause such Indebtedness to become due and payable before its stated maturity
or before its regularly scheduled dates of payment.




(b) To Borrower’s Knowledge, neither Borrower nor any Consolidated Subsidiary has
agreed or consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or hereafter acquired,
to be subject to a Lien not permitted by Section 9.3.



6.8 Litigation. Except as set forth on Schedule 6.8 or as otherwise disclosed on the Form
10-Q filed by Borrower on August 10, 2009, there are no actions, suits, investigations, or
proceedings pending, or to the knowledge of Borrower, threatened) against Borrower or any
Consolidated Subsidiary or any property of Borrower or any Consolidated Subsidiary in any court or
before any arbitrator of any kind or before or by any Governmental Authority that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect.



6.9 Taxes. All tax returns required to be filed by Borrower or any Consolidated Subsidiary
in any jurisdiction have, in fact, been filed, and all Taxes, assessments, fees and other
governmental charges upon Borrower or any Consolidated Subsidiary or upon any of their respective
properties, income or franchises, which are shown to be due and payable in such returns have been
paid, except to the extent such failure to file or to pay would not materially and adversely affect
the properties, business, profits or condition (financial or otherwise) of Borrower and its
Consolidated Subsidiaries, taken as a whole. For all taxable years ending on or before December
31, 2004, the Federal income tax liability of Borrower has been satisfied and either the period of
limitations on assessment of additional Federal income tax has expired or Borrower has entered into
an agreement with the Internal Revenue Service closing conclusively the total tax liability for the
taxable year. Borrower does not know of any proposed additional tax assessment against it for
which adequate provision has not been made on its accounts, and no material controversy in respect
of additional Federal or state income taxes due since said date is pending or Borrower’s Knowledge
threatened. To Borrower’s Knowledge, the provisions for Taxes in the financial statements of
Borrower and its Consolidated Subsidiaries are adequate for all open years.



6.10 Financial Statements; Material Liabilities. Borrower has furnished or made available
to each Lender copies of the financial statements of Borrower and its Consolidated Subsidiaries
listed in Schedule 6.10. All of said financial statements (including in each case the related
schedules and notes) present fairly, in all material respects, the consolidated financial position
of Borrower and its Consolidated Subsidiaries as at their respective dates and the consolidated
results of operations, changes in net assets, and cash flows for the respective periods so
specified and have been prepared in accordance with GAAP consistently applied throughout the period
involved except as set forth in the notes thereto (subject, in the case of any interim financial
statements, to normal year-end adjustments). Borrower and its Consolidated Subsidiaries do not
have any Material liabilities that are not disclosed in such financial statements or otherwise
disclosed in the Disclosure Documents.



6.11 ERISA. Borrower and each ERISA Affiliate has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is
in compliance with the presently applicable provisions of ERISA and the Internal Revenue Code with
respect to each Plan except for noncompliances which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Neither Borrower nor any ERISA Affiliate
has any contingent liability with respect to any post-retirement “welfare benefit plan” (as such
term is defined in ERISA) other than liability under part 6 of subtitle B of Title I of ERISA
(COBRA continuation coverage). Neither Borrower nor any ERISA Affiliate has ever contributed to,
or had any obligation to contribute to, any Plan or any Multiemployer Plan.




6.12 Absence of Defaults; Observance of Agreements, Statutes, and Orders. 




(a) After giving effect to Section 12.10 of this Agreement and Section 18.13(b) of
the Senior Note Agreement, to Borrower’s Knowledge, neither Borrower nor any
Consolidated Subsidiary is in default under its Organization Documents, or under any
agreement or instrument to which it is a party or by which it is bound, or any order,
judgment, decree or ruling of any court, arbitrator or Governmental Authority or is in
violation of any Applicable Law, ordinance, rule or regulation (including without
limitation Environmental Laws or the USA Patriot Act) of any Governmental Authority,
which default or violation, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.




(b) After giving effect to Section 12.10 of this Agreement, no Default or Event of
Default has occurred and is continuing.




6.13 Environmental Matters.




(a) To Borrower’s Knowledge, neither Borrower nor any Consolidated Subsidiary has
received any written notice of any claim, and no proceeding has been instituted raising
any claim against Borrower or any of its Consolidated Subsidiaries or any of their
respective real properties now or formerly owned, leased or operated by any of them or
other assets, alleging any damage to the environment or violation of any Environmental
Laws, except, in each case, such as could not reasonably be expected to have a Material
Adverse Effect;




(b) To Borrower’s Knowledge, no facts exist which would give rise to any claim,
public or private, of violation of Environmental Laws or damage to the environment
emanating from, occurring on or in any way related to real properties now or formerly
owned, leased or operated by Borrower or any Consolidated Subsidiary, except, in each
case, such as could not reasonably be expected to have a Material Adverse Effect;




(c) Neither Borrower nor any Consolidated Subsidiary has stored any Hazardous
Materials on real properties now, or to Borrower’s Knowledge, formerly owned, leased or
operated by any of them and has not disposed of any Hazardous Materials, in each case,
in a manner contrary to any Environmental Laws and, in each case, in any manner that
could reasonably be expected to have a Material Adverse Effect; and




(d) To Borrower’s Knowledge, all buildings on all real properties now owned, leased
or operated by Borrower or any Consolidated Subsidiary thereof are in compliance with
applicable Environmental Laws, except where failure to comply could not reasonably be
expected to have a Material Adverse Effect.



6.14 Investment Company. Borrower has elected to be regulated as a “business development
company” within the meaning of the Investment Company Act. Except with respect to Borrower as a
business development company under the Investment Company Act, neither Borrower nor any
Consolidated Subsidiary is subject to regulation under the Public Utility Holding Company Act of
2005, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as
amended.



6.15 Margin Stock. None of the transactions contemplated in the Loan Documents will
violate or result in a violation of Section 7 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), or any regulation issued pursuant thereto, including, without limitation,
Regulations U, T and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter
II. Neither Borrower nor any Consolidated Subsidiary is engaged principally, or as one of its
important activities, in the business of purchasing or carrying margin stock or extending credit
for the purpose, whether immediate, incidental, or ultimate, of buying or carrying “margin stock”
within the meaning of Regulation U (as enacted by the Board of Governors of the Federal Reserve
System, as amended). None of the proceeds from the Existing Loans or Existing LCs has been used to
purchase, or refinance any borrowing the proceeds of which were used to purchase, any such margin
stock.



6.16 Affiliate Transactions. To Borrower’s Knowledge, except as permitted by Section 9.7,
neither Borrower nor any Consolidated Subsidiary is a party to or bound by any agreement or
arrangement (whether oral or written) to which any Affiliate of Borrower or any Consolidated
Subsidiary is a party.



6.17 Licenses and Permits. Borrower and its Consolidated Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are
Material, without known conflict with the rights of others.



6.18 Disclosure. This Agreement and the documents or certificates delivered to
Administrative Agent or the Lenders (or to the professional advisors for Administrative Agent or
the Lenders) by or on behalf of any Loan Party in connection with the transactions contemplated by
the Loan Documents, the Disclosure Documents, and the financial statements listed in Schedule 6.10,
taken as a whole, do not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in light of the circumstances
under which they were made. Except as disclosed in the Disclosure Documents, the Loan Documents
and the documents and certificates delivered in connection herewith or the financial statements
listed in Schedule 6.10, since December 31, 2008, there has been no change in the financial
condition, operations, business, or properties of Borrower and its Consolidated Subsidiaries, taken
as whole, that could reasonably be expected to have a Material Adverse Effect. There is no fact
known to Borrower that could reasonably be expected to have a Material Adverse Effect that has not
been set forth herein, in the schedules attached hereto or in the Disclosure Documents.



	 	 	 	 	 	 	 
	6.19	 	RIC Status. Borrower qualifies for treatment as a RIC under the Internal Revenue Code.
	 	 	 
	
 
	 	 	6.20	 	 	Foreign Assets Control Regulations, Etc.
	
 
	 	 	 	 	 	 







(a) Borrower’s use of the proceeds of the Existing Loans and the Existing LCs did
not violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle B,
Chapter V, as amended) or any enabling legislation or executive order relating thereto.




(b) Neither Borrower nor any Consolidated Subsidiary thereof (i) is a Person
described or designated in the Specially Designated Nationals and Blocked Persons List
of the Office of Foreign Assets Control or in Section 1 of the Anti Terrorism Order or
(ii) to Borrower’s Knowledge, engages in any dealings or transactions with any such
Person. Borrower and its Consolidated Subsidiaries are in compliance, in all material
respects, with all applicable provisions of the USA Patriot Act.




(c) No part of the proceeds from the Existing Loans has been (and will not be)
used, directly or indirectly, by Borrower or a Consolidated Subsidiary for any payments
to any governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended,
assuming in all cases that such Act applies to Borrower.



6.21 Business. As of the Agreement Date, Borrower and its Consolidated Subsidiaries are
substantially engaged in the businesses described in the Reference 10-K.




6.22 Insurance.




(a) Borrower and its Consolidated Subsidiaries maintain insurance coverage with
reputable insurers reasonably believed by Borrower to be financially sound in such forms
and amounts and against such risks as are customary for corporations and limited
liability companies of established reputation engaged in the same or a similar business
and owning and operating similar properties.




(b) Schedule 6.22 sets forth a description of all insurance maintained by or on
behalf of Borrower and the Subsidiary Guarantors as of the Closing Date. As of the
Closing Date, all premiums due in respect of such insurance have been paid.



6.23 Collateral Documents. Subject to the terms and provisions thereof, the provisions of
the Collateral Documents are effective to create in favor of the Collateral Agent for the benefit
of the Secured Parties a legal, valid and enforceable Lien on all right, title and interest of the
respective Grantors in the Collateral described therein. Except with respect to the Mortgage
referenced in Section 7.10(d), to Borrower’s Knowledge, after reviewing applicable public records,
the Lien created by the Collateral Documents constitutes a first priority Lien, subject to no other
Liens (other than Permitted Liens).



6.24 Solvency. To Borrower’s Knowledge, immediately after the Closing and after giving
effect to the transactions contemplated in this Agreement and each Loan Party’s contribution rights
from the other Loan Parties, (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) each
Loan Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (c) no Loan Party will have
unreasonably small capital with which to conduct the business in which it is engaged as such
business is now conducted and proposed to be conducted after the Closing.



6.25 Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is a party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
a party thereto in accordance with its terms, subject to applicable bankruptcy, creditor’s rights
and similar laws affecting the rights and remedies of creditors generally.



6.26 Survival of Representations and Warranties, Etc. All statements contained in any
certificate, financial statement, or other instrument delivered by or on behalf of Borrower or any
Consolidated Subsidiary to Administrative Agent or any Lender pursuant to or in connection with
this Agreement or any of the other Loan Documents (including, but not limited to, any such
statement made in or in connection with any amendment thereto or any statement contained in any
certificate, financial statement, or other instrument delivered by or on behalf of Borrower prior
to the Agreement Date and delivered to Administrative Agent or any Lender in connection with
closing the transactions contemplated hereby) shall constitute representations and warranties made
by Borrower under this Agreement, and shall survive the effectiveness of this Agreement, the
execution and delivery of the Loan Documents, and the making of the Loans. All representations and
warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and
as of the Closing Date, except to the extent that such representations and warranties expressly
relate solely to an earlier date (in which case such representations and warranties shall have been
true and accurate on and as of such earlier date) and except for changes in factual circumstances
specifically permitted hereunder. All such representations and warranties have been or will be
relied upon by Administrative Agent and each Lender, regardless of any investigation made by
Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent
or any Lender may have had notice or knowledge of any Default at the time of the making of any
Loan, and shall continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Existing LC shall remain outstanding.



SECTION 7. AFFIRMATIVE COVENANTS.



For so long as this Agreement is in effect and thereafter until the payment in full of the
Obligations and the termination or expiration of all Existing LCs, unless the Requisite Lenders
(or, if required pursuant to Section 12.5, all Lenders) shall otherwise consent in the manner
provided for in Section 12.5, Borrower shall:



7.1 Preservation of Existence and Similar Matters. Except as otherwise permitted
under Section 9.5, preserve and maintain in full force and effect, and cause each Consolidated
Subsidiary to preserve and maintain in full and force and effect, its respective corporate
existence, and all licenses, registrations, permits, and other Governmental Approvals necessary to
the proper conduct of its business except where the failure to maintain such licenses
registrations, permits, and Governmental Approvals would not have a Material Adverse Effect.



7.2 Compliance with Applicable Law. Promptly comply, and cause each Consolidated
Subsidiary to promptly comply: (a) In all material respects with, and not violate in any material
respect the Investment Company Act so long as it is subject thereto, and (b) in all material
respects with all other Applicable Laws to which it is subject (including, without limitation, the
Occupational Safety and Health Act of 1970, as amended, ERISA, and all Environmental Laws),
including the obtaining of all Governmental Approvals, the failure with which to comply could
reasonably be expected to have a Material Adverse Effect or would result in any Lien (other than a
Permitted Lien) on a material part of the property or assets of Borrower or any Consolidated
Subsidiary.



7.3 Maintenance of Property. In addition to the requirements of any of the other Loan
Documents, (a) maintain, preserve and keep and cause each Consolidated Subsidiary to preserve and
keep, all of its material properties which are used in the conduct of its business, in good repair,
and working order, ordinary wear and tear excepted, and (b) from time to time make or cause to be
made, and cause each Consolidated Subsidiary to make or cause to be made, all necessary repairs,
renewals, and replacements, to such properties as Borrower may determine to be appropriate to the
conduct of its business.



7.4 Insurance. Maintain, and cause each Consolidated Subsidiary to maintain,
insurance coverage with reputable insurance companies reasonably believed by Borrower to be
financially sound in such form and amounts and against such risks as are (a) customary for
corporations and limited liability companies of established reputation engaged in the same or a
similar business and owning and operating similar properties, (b) otherwise contemplated by the
terms of the Loan Documents, and (c) as may be required by Applicable Law.



7.5 Payment of Taxes and Claims. Pay and discharge, and cause each Consolidated Subsidiary
to pay and discharge, all lawful Taxes, imposed upon Borrower or such Consolidated Subsidiary,
respectively, or upon or in respect of all or any part of the property or business of the Borrower
or such Consolidated Subsidiary, all material trade accounts payable in accordance with usual and
customary business terms, and all claims for work, labor, or materials, which if unpaid might
become a Lien upon any property of Borrower or such Consolidated Subsidiary, provided, however,
that Borrower or such Consolidated Subsidiary shall not be required to pay any such Tax, account
payable, or claim if (i) the validity, applicability or amount thereof is being contested in good
faith by appropriate actions or proceedings which will prevent the forfeiture or sale of any
material property of Borrower or such Consolidated Subsidiary or any material interference with the
use thereof by Borrower or such Consolidated Subsidiary, and (ii) Borrower or such Consolidated
Subsidiary shall set aside on its books, reserves deemed by it to be adequate with respect thereto.



7.6 Visits and Inspections. Permit Administrative Agent or any Lender (or such
Persons as Administrative Agent or such Lender may designate) to visit and inspect, under
Borrower’s guidance, any of the properties of Borrower or any Consolidated Subsidiary, to examine
all of their books of account, records, reports and other papers, to make copies and extracts
therefrom and to discuss their respective affairs, finances, and accounts with their respective
officers, employees, and independent registered public accounting firm (and by this provision
Borrower authorizes said accountants to discuss with Administrative Agent, any Lender, or their
designated agent or representative the finances and affairs of Borrower and its Consolidated
Subsidiaries) all at such reasonable times (subject to any and all Applicable Laws, and, so long as
no Default or Event of Default shall have occurred and be continuing, upon reasonable prior notice.
Any visitation shall be at the sole expense of Administrative Agent or such Lender, unless a
Default or Event of Default shall have occurred and be continuing or Administrative Agent, any
Lender, or the holder of any other evidence of Applicable Debt of Borrower or any Consolidated
Subsidiary gives any written notice of a claimed default or takes any other action of which
Borrower is aware with respect to a claimed default, in which case, any such visitation or
inspection shall be at the sole expense of Borrower.



7.7 Books and Records. Keep, and cause each Consolidated Subsidiary to keep, proper books
of record and account in which full and correct entries will be made of all material dealings or
transactions of, or in relation to, the business and affairs of Borrower or such Consolidated
Subsidiary, in accordance with GAAP consistently applied (except for changes disclosed in the
financial statements furnished to Administrative Agent and the Lenders pursuant to SECTION 8 and
concurred with by the independent registered public accounting firm referred to in clause Section
8.2).



7.8 Conduct of Business. At all times maintain its status as a RIC under the Internal
Revenue Code, and as a “business development company” under the Investment Company Act. Borrower
will not and will not permit any Consolidated Subsidiary to (a) become a Person described or
designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign
Assets Control or in Section 1 of the Anti Terrorism Order or (b) knowingly engage in any dealings
or transactions with any such Person.



7.9 ERISA Exemptions. Not, and Borrower shall not permit any Consolidated Subsidiary
to, permit any of their respective assets to become or be deemed to be “plan assets” within the
meaning of ERISA, the Internal Revenue Code and the respective regulations promulgated thereunder.




7.10 Collateral Requirements.




(a) Collateral Documents. (i) Comply with and perform, and cause each
Consolidated Subsidiary to comply with and perform, in all material respects each of the
terms, conditions, and covenants set forth in the Collateral Documents to which it is a
party, and (ii) cause the representations and warranties set forth in the Collateral
Documents to be true and correct in all material respects as of the Closing Date as
provided in the Collateral Documents.




(b) Additional Collateral. If at any time Borrower or any Consolidated
Subsidiary shall grant to any one or more of the Collateral Agent or a holder of any
Senior Secured Obligation additional credit support (excluding any Senior Secured
Obligations) or collateral of any kind as additional security to secure the Senior
Secured Obligations, then Borrower shall, or shall cause such Consolidated Subsidiary
to, (i) grant or provide to the Collateral Agent for the benefit of the Secured Parties
the same credit support or collateral so that the Obligations shall at all times be
secured on an equal and ratable basis with the other Senior Secured Obligations, and
(ii) deliver an opinion of counsel (which may be issued by the general counsel or chief
legal officer of Borrower) to the effect that such additional credit support and the
Collateral Documents relating to any such Collateral have been duly authorized, executed
and delivered by Borrower or such Consolidated Subsidiary, as applicable, constitute the
legal, valid and binding obligations of Borrower or such Consolidated Subsidiary, as
applicable, are enforceable against Borrower or such Consolidated Subsidiary in
accordance with the terms thereof, and covering such other matters as Administrative
Agent or the Requisite Lenders may reasonably request. In addition, any such credit
support and new Collateral shall at all times be subject to and governed by the terms of
the Intercreditor Agreement.




(c) Additional Consolidated Subsidiaries. (i) Within ten days after the
time that any Person becomes, after the Closing Date, a Consolidated Subsidiary of
Borrower as a result of the creation of such Consolidated Subsidiary, a merger, or other
consolidation permitted by Section 9.5 of this Agreement or otherwise, or (ii) subject
to the foregoing clause (i), concurrently with any Consolidated Subsidiary becoming a
co-borrower or guarantor under the Senior Notes, cause (A) such Consolidated Subsidiary
to execute a joinder to the acknowledgement and consent to the Intercreditor Agreement
reasonably satisfactory to Collateral Agent (acting at the direction of the Required
Secured Parties), (B) such Consolidated Subsidiary to execute a Subsidiary Guaranty in
substantially the form of Exhibit I and reasonably satisfactory to Collateral Agent
(acting at the direction of the Required Secured Parties), (C) such Consolidated
Subsidiary (other than any Pledge LLC) to become a party to the Security Agreement and
shall grant a valid and perfected, and to Borrower’s Knowledge, first priority Security
Interest (subject to any Permitted Liens) in all of its real and personal property
(other than real and personal property which constitute Excluded Assets, subject to the
terms of the Security Agreement), and, with respect to perfection, other than Second
Tier Collateral that is not subject to a Perfection Requirement, whether tangible or
intangible, pursuant to a joinder agreement in form and substance reasonably
satisfactory to Collateral Agent (acting at the direction of the Required Secured
Parties), (D) 100% of such Consolidated Subsidiary’s Equity Interests (65% in the case
of any Controlled Foreign Corporation, provided that, immediately upon
the amendment of the Internal Revenue Code to allow the pledge of a greater percentage
of the voting power of capital stock in a Controlled Foreign Corporation without adverse
Tax consequences, the Collateral shall include, and Collateral Agent’s Lien shall attach
to, such greater percentage of capital stock of each Controlled Foreign Corporation)
shall be pledged under the Collateral Documents to secure the Obligations, and (E) such
Consolidated Subsidiary to deliver to the Collateral Agent and Administrative Agent such
board resolutions, officer’s certificates, corporate and other documents, and opinions
of counsel (which may be issued by the general counsel or chief legal officer of
Borrower) as Administrative Agent shall reasonably request in connection with the
actions described in clauses (A), (B), (C), and (D) above.




(d) Deed of Trust/Mortgage. Within the later of 90 days after the Closing
Date and 30 days after the date upon which the existing purchase agreement for the
Mortgaged Property is terminated, but in no event later than 180 days from the Closing
Date, Administrative Agent shall have received copies of the deed of trust, trust deed,
deed to secure debt, and mortgage, as applicable, in form and substance reasonably
satisfactory to Administrative Agent, the Collateral Agent and their counsel covering
all interests in real property held in fee simple by Borrower or any Consolidated
Subsidiary (other than Pledge LLC) (other than the properties listed on
Schedule 7.10(d)) (collectively, the “Mortgaged Property”) duly executed by the
appropriate Grantor (collectively, the “Mortgage”), together with:




(i) evidence that counterparts of the Mortgage have been duly executed,
acknowledged, and delivered and are in form suitable for filing or recording in all
filing or recording offices that Administrative Agent may reasonably deem necessary
or customary in order to create a valid and subsisting Lien on the Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured Parties,
subject to no other Liens other than Permitted Liens, and that all filing,
documentary, stamp, intangible, and recording Taxes and fees have been paid;




(ii) a fully paid American Land Title Association Lender’s Extended Coverage
title insurance policy (the “Mortgage Policy”), on each Mortgaged Property, with
endorsements and in amounts reasonably acceptable to Administrative Agent, issued,
coinsured, and reinsured by title insurers acceptable to Administrative Agent,
insuring the Mortgage to be a valid and subsisting Lien on such Mortgaged Property,
free and clear of all defects (including, but not limited to, mechanics’ and
materialmen’s Liens) and encumbrances, excepting only Permitted Liens and other
Liens acceptable to Administrative Agent, and providing for such other affirmative
insurance (including such endorsements for mechanics’ and materialmen’s Liens and
any additional endorsements as are reasonably required by Administrative Agent but
excluding endorsements for zoning or creditors’ rights coverage) and such
coinsurance and direct access reinsurance as Administrative Agent may deem necessary
or desirable;




(iii) evidence that all other action that Administrative Agent and the
Collateral Agent (acting at the direction of the Required Secured Parties) may
reasonably deem necessary in order to create valid and subsisting Liens on Mortgaged
Property, subject to no other Liens other than Permitted Liens, has been taken; and




(iv) completed Uniform Commercial Code fixture financing statements for the
appropriate jurisdiction deemed reasonably necessary by the Collateral Agent (acting
at the direction of the Required Secured Parties) and Administrative Agent to
perfect the Collateral Agent’s (on behalf of the Secured Parties) security interests
with respect to the fixtures, machinery, and equipment located at the Mortgaged
Property naming the applicable grantor as debtor, and the Collateral Agent (on
behalf of the Secured Parties) as secured party.




For the avoidance of doubt, the Mortgage for the REO shall be substantially in the
form attached hereto as Exhibit E, reasonably acceptable to Administrative Agent,
and executed and delivered on the Closing Date, with the understanding that the
aforementioned requirements relating thereto shall be completed within the later of
90 days after the Closing Date and 30 days after the date upon which the existing
purchase agreement for the Mortgaged Property is terminated, but in no event later
than 180 days from the Closing Date.




(e) Landlord Subordination Agreement. Borrower shall use commercially
reasonable efforts to deliver within 45 days of the Closing Date an executed landlord
subordination agreement for the property located at 1919 Pennsylvania Avenue, N.W.,
Washington, D.C. 2006 in form and substance reasonably satisfactory to Administrative
Agent.




(f) Additional Undertakings. Borrower will use commercially reasonable
efforts to obtain the consent or approval of all third parties required to permit
Borrower and the Subsidiary Grantors to subject all of their assets (other than the
Excluded Assets, subject to the terms of the Security Agreement) and, with respect to
perfection, Second Tier Collateral that is not subject to a Perfection Requirement) to
the Lien of the Collateral Documents. In determining whether to obtain any such consent
or approval, Borrower may take into account the cost or charges imposed by third parties
(on either Borrower or any entity in which Borrower or a Consolidated Subsidiary has an
investment) to grant any such consent or approval and/or any undue burden where the
efforts would not justify obtaining such consent or approval in view of the value of the
property proposed to be subject to such Lien as reasonably determined by Borrower. In
addition, Borrower shall not be obligated to obtain consents or approvals in respect of
assets which in the reasonable judgment of Borrower cannot be pledged, or as to which
the consent to pledge cannot be sought, without substantially impairing the value of the
asset or the ability of Borrower or a Subsidiary Grantor to manage the asset in the
ordinary course of its business. Without limiting the obligation of Borrower set forth
above, to the extent any personal property of Borrower or a Subsidiary Grantor cannot be
pledged as Collateral on account of contractual limitations applicable to such property
but may be transferred to a Pledge LLC, such personal property shall be transferred to a
Pledge LLC. Borrower shall use commercially reasonable efforts to ensure that the
documents which govern Investments made subsequent to the date of the Closing do not
restrict the ability of Borrower to subject any such Investment to the Lien of the
Collateral Documents; provided that, so long as it has used such efforts, Borrower will
not be precluded from making an Investment as to which the governing documents contain
such a restriction.



7.11 Obligations. Borrower shall pay the Obligations in accordance with the terms and
provisions of the Loan Documents.



7.12 Further Assurances. At Borrower’s cost and expense, upon the reasonable request of
Administrative Agent, duly execute and deliver (and cause each Consolidated Subsidiary to duly
execute and deliver) or cause to be duly executed and delivered, to Administrative Agent,
Collateral Agent and/or Lenders such further instruments, documents, and certificates, and do and
cause to be done such further acts that may be necessary or customary in the reasonable opinion of
Administrative Agent to carry out more effectively the provisions and purposes of this Agreement
and the other Loan Documents.



7.13 Post-Closing Covenants. Borrower agrees to furnish the items, and to take the
actions, described on Schedule 7.13, in each case within the time periods therein specified (with
such extensions of time as may be agreed to by Administrative Agent, so long as any such extension
does not exceed a period of 90 days without the consent of Requisite Lenders).



SECTION 8. INFORMATION.



For so long as this Agreement is in effect and thereafter until payment in full of the
Obligations and the termination or expiration of all Existing LCs, unless the Requisite Lenders
(or, if required pursuant to Section 12.5, all Lenders) shall otherwise consent in the manner set
forth in Section 12.5, Borrower shall furnish or make available to each Lender (or to
Administrative Agent if so provided below) at its Lending Office:



8.1 Quarterly Financial Statements. As soon as available and in any event within 50
days (or such period that is 5 Business Days greater than the period applicable to the required
filing date of Borrower’s Quarterly Report on Form 10-Q) after the end of each of the first,
second, and third fiscal quarters of Borrower, copies of:




(a) consolidated balance sheets of Borrower and its Consolidated Subsidiaries as of
the close of such quarterly fiscal period, setting forth in comparative form the
consolidated figures for the fiscal year then most recently ended;




(b) consolidated statements of operations of Borrower and its Consolidated
Subsidiaries for such quarterly fiscal period and for the portion of the fiscal year
ending with such quarterly fiscal period, in each case setting forth in comparative form
the consolidated figures for the corresponding periods of the preceding fiscal year; and




(c) consolidated statements of changes in net assets and cash flows of Borrower and
its Consolidated Subsidiaries for the portion of the fiscal year ending with such
quarterly fiscal period, setting forth in comparative form the consolidated figures for
the corresponding period of the preceding fiscal year;



all of which shall be in reasonable detail and certified by a Senior Financial Officer of Borrower,
to be complete and correct in all material respects.



8.2 Annual Statements. As soon as available and in any event within 95 days (or such
period that is 5 Business Days greater than the period applicable to the required filing date of
Borrower’s Annual Report on Form 10-K) after the close of each fiscal year of Borrower, copies of:




(a) the consolidated balance sheets of Borrower and its Consolidated Subsidiaries
as at the close of such fiscal year;




(b) consolidated statements of operations, changes in net assets, and cash flows of
Borrower and its Consolidated Subsidiaries for such fiscal year; and




(c) consolidated statement of investments of Borrower and its Consolidated
Subsidiaries as at the close of such fiscal year;




setting forth in comparative form the consolidated figures as at the end of and for the previous
fiscal year (except in the case of such statement of investments), and in each case all in
reasonable detail and certified by (a) a Senior Financial Officer of Borrower, to be complete
and correct in all material respects, and to present fairly, in all material respects in
accordance with GAAP, the financial position of Borrower and its Consolidated Subsidiaries as at
the date thereof and the result of operations for such period and (b) independent certified
public accountants of recognized national standing acceptable to the Requisite Lenders, whose
opinion shall be unqualified and shall certify that the consolidated financial statements
present fairly, in all material respects, the consolidated financial position of Borrower and
its Consolidated Subsidiaries as of the end of the fiscal year being reported on and the
consolidated results of their operations, changes in net assets and cash flows for said year in
conformity with GAAP and that the examination of such accountants in connection with such
financial statements has been conducted in accordance with generally accepted auditing standards
and included such tests of the accounting records and such other auditing procedures as said
accountants deemed necessary in the circumstances and such accountants shall have authorized
Borrower to deliver such financial statements and opinion and certifications thereon to
Administrative Agent and Lenders pursuant to this Agreement.




8.3 Compliance Certificate; Investments Reports.




(a) At the time the financial statements are furnished pursuant to Sections 8.1 and
8.2, a Compliance Certificate: (i) setting forth in reasonable detail as at the end of
such quarterly accounting period or fiscal year, as the case may be, the calculations
required to establish whether or not Borrower and its Consolidated Subsidiaries were in
compliance with the covenants contained in Section 9.1 and 9.4, and (ii) stating that,
to the best knowledge, information, and belief of the Senior Financial Officer of
Borrower, no Default or Event of Default exists, or, if such is not the case, specifying
such Default or Event of Default and its nature, when it occurred, and whether it is
continuing, and the steps being taken by Borrower with respect to such event, condition,
or failure. At the time the financial statements are furnished pursuant to Section 8.2,
Borrower will deliver to Lenders a certificate of the independent accountants performing
the audit of such financial statements acknowledging (subject to normal and customary
qualifications and assumptions) that Borrower was in compliance with the financial
covenants of Section 9.1, and setting forth the procedures used to make such
determination.




(b) At the time the financial statements are furnished pursuant to Sections 8.1 and
8.2, the following reports with respect to Investments of Borrower and its Consolidated
Subsidiaries, as of the end of such fiscal quarter, in form and scope acceptable to
Administrative Agent:




(i) A consolidated statement of Investments presented in Borrower’s
consolidated financial statements;




(ii) A report of unrealized and realized gains (losses) (with detail as to
unrealized gains and losses by Portfolio Company for private finance Investments and
in the aggregate for Commercial Mortgage Loans, and other Investments); and




(iii) A delinquency report of loans over 120 days past due.




8.4 Other Information.




(a) Not later than 90 days prior to the last day of each fiscal year of Borrower, pro
forma projected consolidated financial statements for Borrower and its Consolidated
Subsidiaries reflecting the forecasted financial condition and results of operations of
Borrower and its Consolidated Subsidiaries on a quarterly basis for the next succeeding
year, accompanied by calculations establishing whether or not Borrower would be in
compliance on a pro forma basis with the covenants contained in Section 9.1, in each case
in form and detail reasonably acceptable to Administrative Agent;




(b) Promptly upon receipt thereof, one copy of each interim or special audit made by
an independent registered public accounting firm of the books of Borrower or any
Consolidated Subsidiary and any management letter received from such accountants;




(c) Promptly upon their becoming available (or in the case of registration
statements, promptly after their becoming effective), copies of all effective registration
statements (other than the exhibits thereto, any prospectus supplements, and any effective
registration statements on Form S-8 or its equivalent), and reports on Forms 10-K, 10-Q,
and 8-K (or their equivalents) filed by Borrower with the Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any national securities
exchange;




(d) Promptly upon the mailing thereof to the shareholders of Borrower generally,
copies of all financial statements, reports, and proxy statements so mailed;




(e) Promptly upon a Responsible Officer of Borrower becoming aware of the occurrence
thereof, written notice of (i) any Reportable Event with respect to any Plan hereafter
maintained by Borrower or any ERISA Affiliate; (ii) the institution of any steps by
Borrower, any ERISA Affiliate, the PBGC, or any other person to terminate any such Plan;
(iii) the institution of any steps by Borrower or any ERISA Affiliate to withdraw from any
such Plan; (iv) a non-exempt “prohibited transaction” within the meaning of Section 406 of
ERISA in connection with any such Plan; (v) any material contingent liability of Borrower
or any Consolidated Subsidiary with respect to any post-retirement welfare liability
hereafter existing; or (vi) the taking of any action by, or the threatening of the taking
of any action by, the Internal Revenue Service, the Department of Labor, or the PBGC with
respect to any of the foregoing;




(f) To the extent Borrower or any Consolidated Subsidiary is aware of the same,
prompt notice of the commencement of any proceeding or investigation by or before any
Governmental Authority and any action or proceeding in any court or other tribunal or
before any arbitrator against or in any other way relating adversely to, or adversely
affecting, Borrower or any Consolidated Subsidiary or any of their respective properties,
assets, or businesses which, if determined or resolved adversely to such Person, could
reasonably be expected to have a Material Adverse Effect; and prompt notice of the receipt
of notice that any United States income Tax returns of Borrower or any of its Consolidated
Subsidiaries are being audited;




(g) To the extent not previously delivered to Administrative Agent, a copy of the
articles of incorporation, bylaws, partnership agreement, or other similar organizational
documents of Borrower, any Consolidated Subsidiary, and any amendment thereto, in each
case within five (5) Business Days of the effectiveness thereof;




(h) Prompt notice of any change in the business, assets, liabilities, financial
condition, or results of operations of Borrower or any Consolidated Subsidiary which has
had or could reasonably be expected to have a Material Adverse Effect;




(i) When any Event of Default has occurred, or if the holder of any Applicable Debt
of Borrower or any other Loan Party gives any notice of a claimed default or takes any
other action with respect to a claimed default of which Borrower is aware, Borrower agrees
to give notice to Administrative Agent within three Business Days of such event.




(j) Prompt notice of any order, judgment, or decree in excess of $25,000,000 having
been entered against Borrower or any Consolidated Subsidiary or any of their respective
properties or assets and promptly upon them becoming available, copies of such orders,
judgments, or decrees;




(k) Prompt notice, which notice shall, in the case of a Material Subsidiary, be
delivered no later than five Business Days following the occurrence of the acquisition,
incorporation, or other creation of any Consolidated Subsidiary, the purpose for such
Consolidated Subsidiary, the nature of the assets and liabilities thereof, and whether
such Consolidated Subsidiary is a Material Subsidiary;




(l) At the time the quarterly financial statements are furnished in accordance with
Section 8.1, a list of the Persons who are Material Subsidiaries as of the date of the
balance sheet included in such quarterly financial statements;




(m) (i) Concurrently with the delivery to the Noteholders, Borrower shall deliver to
Administrative Agent copies of all financial and other information and certificates
(including compliance certificates) and reports delivered to such Noteholders pursuant to
the Senior Note Agreement or any document evidencing Senior Secured Obligations or with
respect to the Collateral (but only to the extent not previously made available to
Administrative Agent or the Lenders), (ii) not less than five days prior to the execution
thereof, a copy of any proposed amendment to the Senior Note Agreement, any Senior Note or
any other Financing Document (other than any Collateral Document) executed or to be
executed in connection therewith, and (iii) promptly following execution thereof, one copy
of such amendment referred to in the preceding clause (ii);




(n) (i) Not less than ten (10) Business Days prior to execution thereof, a copy of
(A) each amendment to the Collateral Documents proposed by Borrower, and (B) each document
or agreement which, if executed and delivered, would become an additional Collateral
Document, and (ii) promptly following execution thereof, one copy of each of the documents
referred to in the preceding clause (i);




(o) Within five (5) Business Days after any Responsible Officer has knowledge of the
occurrence of any Control Event or Change of Control, give written notice of such Control
Event or Change of Control to Administrative Agent and each Lender; and




(p) From time to time and promptly upon each request, such data, certificates,
reports, statements, opinions of counsel, documents, or further information regarding the
business, assets, liabilities, financial condition or results of operations of Borrower or
any of its Consolidated Subsidiaries as Administrative Agent or any Lender may reasonably
request.



Documents required to be delivered pursuant to Sections 8.1, 8.2, 8.4(c), or 8.4(d) (to the
extent any such documents are included in materials otherwise filed with the Securities and
Exchange Commission) may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which Borrower posts such documents, or provides a link thereto
on Borrower’s website on the Internet at www.alliedcapital.com; or (ii) on which such documents are
posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
Administrative Agent); provided that: (x) Borrower shall deliver paper copies of
such documents to Administrative Agent or any Lender that requests Borrower to deliver such paper
copies until a written request to cease delivering paper copies is given by Administrative Agent or
such Lender and (y) Borrower shall notify Administrative Agent and each Lender (by telecopier or
electronic mail) of the posting of any such documents and provide to Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance Borrower shall be required to provide paper copies of
the Compliance Certificates required by Section 8.3 to Administrative Agent. Except for such
Compliance Certificates, Administrative Agent shall have no obligation to request the delivery or
to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



8.5 Collateral Report. Concurrently with the delivery of the financial statements
required to be delivered pursuant to Sections 8.1 and 8.2, Borrower shall deliver a schedule
(substantially in the form set forth on Schedule 8.5) which lists by type and Book Value (i) all of
the assets of Borrower and its Consolidated Subsidiaries, (ii) all of the assets of Borrower and
its Consolidated Subsidiaries which are subject to the Lien of the Collateral Documents, (iii) all
of the assets which are owned by a Pledge LLC, and (iv) all of the assets which are neither subject
to the Lien of the Collateral Documents nor owned by a Pledge LLC.



8.6 Asset Report Certificate. Within ten (10) Business Days after the end of each
calendar month, the Asset Report Certificate (as defined in the Security Agreement) required to be
delivered by Section 4.2.2 of Security Agreement.



8.7 Platform; Public/Private Information. Borrower hereby acknowledges that (a)
Administrative Agent and/or Arranger will make available to Lenders and LC Issuer materials and/or
information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by
posting Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of Lenders (each, a “Public Lender”) may have personnel who do not wish to receive
material non-public information with respect to Borrower or its Affiliates, or the respective
securities of any of the foregoing, and who may be engaged in investment and other market-related
activities with respect to such Persons’ securities. Borrower hereby agrees that so long as
Borrower is the issuer of any outstanding debt or equity securities that are registered or issued
pursuant to a private offering or is actively contemplating issuing any such securities (w) all
Borrower Materials that are to be made available to Public Lenders shall be clearly and
conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear
prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” Borrower shall
be deemed to have authorized Administrative Agent, Arranger, LC Issuer and Lenders to treat such
Borrower Materials as not containing any material non-public information with respect to Borrower
or its securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be treated
as set forth in Section 12.7); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Side Information;” and (z)
Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Side Information.” Notwithstanding the foregoing, Borrower shall be under no obligation to
mark any Borrower Materials “PUBLIC.”



SECTION 9. NEGATIVE COVENANTS.



For so long as this Agreement is in effect and thereafter until the payment in full of the
Obligations and the termination or expiration of all Existing LCs, unless the Requisite Lenders
(or, if required pursuant to Section 12.5, all Lenders) shall otherwise consent in the manner set
forth in Section 12.5, Borrower shall not (and shall not permit any Consolidated Subsidiary to),
directly or indirectly:



9.1 Financial Covenants. Permit:




(a) Ratio of Adjusted EBIT to Interest Expense. The ratio of Adjusted EBIT
to Adjusted Interest Expense of Borrower and its Consolidated Subsidiaries, determined on
a consolidated basis as of the last day of each fiscal quarter for the period of four
successive fiscal quarters ended on such day, to be less than (i) 1.05 to 1.0 for the
fiscal quarter ending September 30, 2009, (ii) 0.95 to 1.0 for the fiscal quarter ending
December 31, 2009, (iii) 0.80 to 1.0 for the fiscal quarter ending March 31, 2010, and
(iv) 0.75 to 1.0 for the fiscal quarters ending June 30, 2010 and September 30, 2010.




(b) Priority Debt; Limitation on Debt.




(i) Any Priority Debt to be outstanding, other than: (A) Senior Secured
Obligations, (B) Capitalized Leases for equipment used in the ordinary course of
business of Borrower and its Consolidated Subsidiaries in an aggregate principal
amount not in excess of $5,000,000, (C) Swap Contracts entered into in the ordinary
course of business of Borrower and its Consolidated Subsidiaries as permitted by
Sections 9.2 and 9.3, and (D) unsecured Debt of a Consolidated Subsidiary owing to
Borrower or to another Consolidated Subsidiary that is a Subsidiary Grantor, so long
as such Debt is evidenced by a promissory note which is pledged to the Collateral
Agent in accordance with and pursuant to the Collateral Documents. Notwithstanding
the foregoing, in no event shall any Pledge LLC have outstanding Debt other than (x)
pursuant to the Subsidiary Guaranty executed by such Pledge LLC in favor of the
Collateral Agent for the benefit of the Secured Parties and (y) unsecured Debt owing
to Borrower; it being understood that any such Debt and/or evidence of such Debt
shall only be held by Borrower and pledged to the Collateral Agent and may not be
transferred, assigned, sold or otherwise conveyed to any other party.




(ii) After the Agreement Date, incur any unsecured Debt unless (A) such
unsecured Debt has a stated maturity beyond March 31, 2012 and (B) all of the
proceeds (net of underwriting discounts and commissions and reasonable and customary
out-of-pocket expenses incurred in connection therewith) of the issuance of such
unsecured Debt were used to (1) ratably prepay (x) the Senior Notes in accordance
with Section 10.4 of the Note Agreement and (y) the Obligations in accordance with
Sections 2.6(c)(ii) and 9.9(a) or (2) refinance Outstanding Public Debt at the
maturity of such Outstanding Public Debt.




(c) Asset Coverage Ratio. The Asset Coverage Ratio to be less than (i) 1.35
to 1.0 on the last day of each fiscal quarter ending September 30, 2009, December 31,
2009, and March 31, 2010, and (ii) 1.40 to 1.00 on the last day of each quarter ending on
June 30, 2010 and September 30, 2010. For the avoidance of doubt, Borrower will not
incur any indebtedness evidenced by Senior Securities if at the time of such incurrence
the Asset Coverage Ratio is less than 2.0 to 1.0.




(d) Ratio of Consolidated Total Adjusted Assets to Secured Debt. On the last
day of each quarterly fiscal period as noted below, the ratio of Consolidated Total
Adjusted Assets to Secured Debt to be less than (i) 1.75 to 1.00 on the last day of each
quarterly period ending September 30, 2009, December 31, 2009, and March 31, 2010, and
(ii) 2.00 to 1.00 on the last day of each quarterly period ending June 30, 2010 and
September 30, 2010.




(e) Additional Financial Covenants. If Borrower shall at any time enter
into one or more agreements (including any amendment of an existing agreement) pursuant
to which Senior Funded Debt in an aggregate principal amount greater than $30,000,000
shall be outstanding and such agreement contains one or more financial covenants which in
the reasonable opinion of Administrative Agent are more restrictive on Borrower or any of
its Consolidated Subsidiaries than the financial covenants contained in this Agreement or
are not otherwise provided for in this Agreement, then such more restrictive financial
covenants and any related definitions (the “Additional Financial Covenants”) shall
automatically be deemed to be incorporated into Section 9.1 of this Agreement by
reference and Section 10.1(c) shall be deemed to be amended to include such Additional
Financial Covenants from the time such other agreement becomes binding upon Borrower or
the applicable Consolidated Subsidiary until such time as such other Senior Funded Debt
is repaid in full and all commitments related thereto are terminated; provided, that if
at the time of any such repayment or the termination of any such commitment a Default or
Event of Default shall exist under this Agreement, then such covenants shall continue in
full force and effect so long as such Default or Event of Default continues to exist. So
long as such Additional Financial Covenants shall be in effect, no modification or waiver
of such Additional Financial Covenants shall be effective unless the Requisite Lenders
shall have consented thereto pursuant to Section 12.5 hereof. Promptly but in no event
more than 10 Business Days following the execution of any agreement providing for
Additional Financial Covenants, Borrower shall furnish Administrative Agent with a copy
of such agreement. Upon written request of Administrative Agent, Borrower will enter
into an amendment to this Agreement pursuant to which this Agreement will be formally
amended to incorporate the Additional Financial Covenants on the terms set forth herein.




(f) Valuing Debt For Purposes of Calculating Financial Covenants. For
purposes of calculating compliance with this Section 9.1, all Debt will be valued at par.



9.2 Swap Contracts. Enter into, or permit any Consolidated Subsidiary to enter into,
any Swap Contract except in the ordinary course of business with a nationally recognized financial
institution then having an Investment Grade Rating pursuant to transactions that are entered into
for bona fide purposes of managing Borrower’s interest rate and currency risk and not for
speculation.



9.3 Limitation on Liens. Permit, or permit any Consolidated Subsidiary to, create or
incur, or suffer to be incurred or to exist, any Lien on its or their property or assets, whether
now owned or hereafter acquired, or upon any income or profits therefrom, or transfer any property
for the purpose of subjecting the same to the payment of obligations in priority to the payment of
its or their general creditors, or acquire or agree to acquire any property or assets upon
conditional sales agreements or other title retention devices, except the following (such Liens,
collectively, “Permitted Liens”):




(a) Liens for property taxes and assessments or governmental charges or levies and
Liens securing claims or demands of mechanics and materialmen, provided payment thereof is
not at the time required by Section 7.5;




(b) Liens of or resulting from any judgment or award, the time for the appeal or
petition for rehearing of which shall not have expired, or in respect of which Borrower or
a Consolidated Subsidiary shall at any time in good faith be prosecuting an appeal or
proceeding for a review and in respect of which a stay of execution pending such appeal or
proceeding for review shall have been obtained;




(c) Liens that are normal, customary and/or incidental to the conduct of business or
the ownership of properties and assets (including Liens in connection with the making of
loans to customers, worker’s compensation, unemployment insurance and other like laws,
warehousemen’s and attorneys’ liens, banker’s liens and statutory landlords’ liens) and
Liens to secure the performance of bids, tenders or trade contracts, or to secure statutory
obligations, surety or appeal bonds or other Liens of like general nature incurred in the
ordinary course of business and not in connection with (i) the borrowing of money or (ii)
obligations pursuant to ERISA, provided in each case, the obligation secured is not overdue
or, if overdue, is being contested in good faith by appropriate actions or proceedings and
adequate reserves have been established;




(d) minor survey exceptions or minor encumbrances, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes, or zoning or
other restrictions as to the use of real properties, which are necessary for the conduct of
the activities of Borrower and its Consolidated Subsidiaries or which customarily exist on
properties of corporations engaged in similar activities and similarly situated and which
do not in any event materially impair their use in the operation of the business of
Borrower and its Consolidated Subsidiaries;




(e) Liens securing Indebtedness of a Consolidated Subsidiary to Borrower or to another
Wholly-Owned Consolidated Subsidiary;




(f) Liens securing Capitalized Leases permitted under Section 9.1(b);




(g) Liens set forth on Schedule 9.3; and




(h) Liens created under, or expressly permitted by, the Collateral Documents,
including the Liens securing the Senior Notes, the other Senior Secured Obligations and
Indebtedness arising out of Swap Contracts permitted under Section 9.2 in an amount not to
exceed in the aggregate $10,000,000, so long as the Obligations shall at all times be
equally and ratably secured thereby and the Intercreditor Agreement shall be in full force
and effect.



9.4 Restricted Payments. Except as hereafter provided:




(a) Declare or pay any dividends, either in cash or property, on any of its Equity
Interests of any class to a Person other than Borrower or a Consolidated Subsidiary (except
(i) dividends in the minimum amount as Borrower reasonably estimates to be required to
maintain its status as a RIC; provided, that during the continuance of any Event of Default
no more than ten percent (10%) of such dividend may be paid in cash and (ii) dividends paid
by Allied Capital REIT, Inc. to its preferred stockholders (other than Borrower) in an
aggregate amount not to exceed $10,000 annually).




(b) Directly or indirectly, or through any Consolidated Subsidiary, purchase, redeem
or retire any of its Equity Interests (other than De Minimis Employee Buybacks) of any
class held by any Person other than Borrower or a Consolidated Subsidiary; or




(c) Make any other payment or distribution, either directly or indirectly or through
any Consolidated Subsidiary, in respect of its capital stock held by any Person other than
Borrower or a Subsidiary Guarantor;




(such declarations or payments of dividends, purchases, redemptions, or retirements of
capital stock and warrants, rights, or options and all such other payments or distributions
being herein collectively called “Restricted Payments”).




Borrower will not, nor will it permit any Consolidated Subsidiary to, declare any dividend
which constitutes a Restricted Payment payable more than 80 days after the date of
declaration thereof; provided that dividends payable in the fourth quarter and any year-end
extra dividend which constitute a Restricted Payment may be payable up to 120 days after
the date of declaration thereof.




For purposes of this Section 9.4, the amount of any Restricted Payment declared, paid or
distributed in property shall be deemed to be the greater of the Book Value or fair market
value (as determined in good faith by the board of directors of Borrower) of such property
at the time of the making of the Restricted Payment in question.




9.5 Merger, Consolidation, Sales of Assets, Change of Control.




(a) Except as provided in clauses 9.5(b), (c), and (d) below: (i) Consolidate with
or be a party to a merger with any other Person; (ii) liquidate, wind-up, or dissolve
(or suffer any liquidation or dissolution); or (iii) Dispose of, in one transaction or a
series of transactions, all or substantially all of its assets, including the capital
stock of or other Equity Interests in any Consolidated Subsidiary, in each case whether
now owned or hereafter acquired.




(b) So long as no Default or Event of Default then exists or arises, any
Consolidated Subsidiary may merge or consolidate with or into, or effect a Disposition
of all or substantially all of its assets to, Borrower or any Wholly-Owned Consolidated
Subsidiary that is a Guarantor, so long as (i) (x) in any merger or consolidation
involving Borrower, Borrower shall be the surviving or continuing corporation and (y) in
any merger or consolidation involving a Wholly-Owned Consolidated Subsidiary (and not
Borrower), a Wholly-Owned Consolidated Subsidiary that is a Guarantor and Grantor shall
be the surviving or continuing corporation; and (ii) Administrative Agent shall have
received copies of such documents of assumption and legal opinions (which may be issued
by the general counsel or chief legal officer of Borrower) as it may reasonably request
to confirm that the obligations of, and Liens in favor of the Collateral Agent on the
property of, the parties to such transaction are not adversely affected thereby.




(c) So long as no Default or Event of Default then exists or arises, any
Consolidated Subsidiary that is not a Material Subsidiary may liquidate, wind-up or
dissolve;




(d) Dispose of its assets (including, but not limited to, Investments), except to
the extent that, and subject to the provisions of clause (e) below: (i) no Enforcement
Direction (as defined in the Intercreditor Agreement) has been issued to the Collateral
Agent with respect to any Collateral and remains pending, (ii) each such Disposition
shall be an Arm’s Length Transaction, (iii) any and all rights of the Company or any
Consolidated Subsidiary in any and all Net Proceeds and other consideration (other than
Excluded Assets, subject to the terms of the Security Agreement) received in connection
with such sale shall (subject to the provisions of the Security Agreement regarding
Second Tier Collateral) become subject to a perfected and, to Borrower’s Knowledge,
first priority, Security Interest or Lien (subject to Permitted Liens) in favor of the
Collateral Agent on the date received by Borrower or such Consolidated Subsidiary, and
(iv) the portion of the Net Proceeds from such Disposition that is required to be
prepaid under each of the Intercreditor Agreement, Section 2.6(c)(i) of this Agreement,
and Sections 10.3 and 12.2(b) of the Note Agreement shall be deposited directly into the
Special Collateral Account or sent to the Collateral Agent at the times set forth in the
Intercreditor Agreement and promptly deposited into the Special Collateral Account and
shall be applied to the prepayment of the Obligations and the Note Obligations in
accordance with the terms of the Intercreditor Agreement. Transfers between and among
Borrower and Subsidiary Guarantors shall be excluded from the operation of this clause
(d) so long as (x) the Collateral Agent has a valid, fully perfected, enforceable, and
to Borrower’s Knowledge, first priority Security Interest in all right, title, and
interest of Borrower and the Subsidiary Grantors in the property subject to such
Disposition and (y) the obligations under the applicable Subsidiary Guaranty are fully
enforceable against such Subsidiary Guarantor. Any Liens in favor of the Collateral
Agent on assets which are the subject of a permitted Disposition shall be released as
provided in the Intercreditor Agreement.




(e) In no event will Borrower Dispose of all or substantially all of its assets
unless contemporaneously therewith the Loans are repaid in full, Borrower has deposited
with Administrative Agent (or Collateral Agent, if required by the Intercreditor
Agreement), Cash Collateral in an amount equal to 100% of the undrawn amount of Existing
LCs then outstanding, and any and all other Obligations are paid in full.




(f) Permit any Consolidated Subsidiary to issue any Voting Stock of such
Consolidated Subsidiary except to satisfy the rights of minority shareholders to receive
issuances of stock which are non-dilutive to Borrower and/or any Consolidated
Subsidiary; provided that, the foregoing restrictions do not apply to issuances of
Voting Stock to Borrower or to a Wholly-Owned Consolidated Subsidiary or the issuance of
directors’ qualifying shares.




(g) Take any action, or permit any officer to take any action, to effect or
participate in the completion of a Change of Control unless the Change of Control is
consummated contemporaneously with the prepayment of the Obligations pursuant to Section
2.6(c)(iv).



9.6 Fiscal Year. Change its fiscal year from that in effect as of the Agreement Date.



9.7 Transactions with Affiliates. Permit to exist or enter into, and will not permit
any of its Consolidated Subsidiaries to permit to exist or enter into, any transaction or
arrangement with any Affiliate (including the purchase, sale, lease, or exchange of any property or
the rendering of any service) or with any director, officer, or employee of Borrower, any
Consolidated Subsidiary, or any other Affiliate, except transactions in the ordinary course of, and
pursuant to the reasonable requirements of the, business of Borrower or such Consolidated
Subsidiary and upon fair and reasonable terms which are no less favorable to Borrower or such
Consolidated Subsidiary than would be obtained in a comparable arm’s length transaction with a
Person that is not an Affiliate.



9.8 Employee Benefit Plans. Withdraw, or permit any Consolidated Subsidiary to
withdraw, from any Multiemployer Plan to which it may hereafter contribute or permit any employee
benefit plan hereafter maintained by it to be terminated if such withdrawal or termination could
result in Material withdrawal liability (as described in Part 1 of Subtitle E of Title IV of ERISA)
or the imposition of a Material Lien on any property of Borrower or any Consolidated Subsidiary
pursuant to section 4068 of ERISA.




9.9 Prepayment of Other Debt.




(a) Directly or indirectly, prepay, redeem, purchase, defease, satisfy, or acquire
prior to the stated maturity thereof, in any manner, any Debt (other than the Obligations
in accordance with the terms of this Agreement and the Public Debt Redemptions permitted
by Section 9.9(b)), whether subordinated or not, or make any offer or tender to do any of
the foregoing, except Senior Note Redemptions, so long as (i) no Default or Event of
Default then exists or arises after giving effect to such Senior Note Redemption, and (ii)
concurrently with the payment made in connection with any Senior Note Redemption to any
holder of the Senior Notes, Borrower shall prepay the Principal Debt (including Cash
Collateralization of any LC Exposure) to the extent required pursuant to Section 2.6(c).
Any Senior Note that has been purchased, repurchased, redeemed, prepaid, or acquired by
Borrower in full shall be surrendered to Borrower and cancelled and shall not be reissued,
and no instrument evidencing Note Obligations shall be issued in lieu of any prepaid
principal amount of the Senior Note.




(b) Directly or indirectly, or permit any Affiliate to directly or indirectly,
prepay, redeem, purchase, repurchase, tender, or acquire any series of Outstanding Public
Debt prior to the stated maturity of such series (each such transaction being herein
referred to as a “Public Debt Redemption”) except, so long as no Default or Event of
Default shall exist, Borrower may make Public Debt Redemptions of Outstanding Public Debt
of those series that are due and payable in the years 2011 and 2012 prior to such series
stated maturity at any price (not exceeding the par value thereof), provided that (i) the
aggregate purchase price paid in connection with all such Public Debt Redemptions does not
exceed $200,000,000 during the term of this Agreement, and (ii) after giving effect to any
such Public Debt Redemption, Borrower has cash and cash equivalents in an aggregate amount
equal to the greater of (A) 100% of the amount necessary to repay, pay, or fund the sum of
(1) all outstanding Secured Debt and Outstanding Public Debt scheduled to mature plus (2)
all other funding commitments of Borrower with respect to its investments in Portfolio
Companies to the extent projected by Borrower to become due and payable (and not
subsequently repaid), in each case in the six (6) months following any such Public Debt
Redemption and (B) 50% of the amount necessary to repay, pay, or fund the sum of (1) all
outstanding Secured Debt and Outstanding Public Debt scheduled to mature plus (2) all
other funding commitments of Borrower with respect to its investments in Portfolio
Companies to the extent projected by Borrower to become due and payable (and not
subsequently repaid), in each case in the twelve (12) months following any such Public
Debt Redemption. In determining whether a funding commitment is projected to become due
and payable, such determination shall be made in good faith by a Senior Financial Officer
of Borrower based on existing contracts and the current and past practices of Borrower and
the applicable Portfolio Companies. Any instrument evidencing Outstanding Public Debt
that has been repurchased, redeemed, purchased, paid, prepaid, or acquired in full shall
be surrendered to Borrower and cancelled and shall not be reissued, and no instrument
evidencing Outstanding Public Debt shall be issued in lieu of any prepaid principal amount
of any Outstanding Public Debt.



9.10 Nature of Business. Neither Borrower nor any Consolidated Subsidiary will engage
in any business if, as a result, the general nature of the business, taken on a consolidated basis,
which would then be engaged in by Borrower and its Consolidated Subsidiaries would be substantially
changed from the general nature of the business engaged in by Borrower and its Consolidated
Subsidiaries on the date of this Agreement as described in the Reference 10-K.



9.11 Amendment of Senior Note Agreement. Borrower will not, without the written
consent of the Requisite Lenders, enter into any amendment of, or modification or supplement to,
the Senior Note Agreement, any Senior Note, or any Financing Document, or enter into any other
agreements with any Noteholder with respect to the Senior Notes or the Senior Note Agreement, if
such amendment, modification, supplement or additional agreement would have the direct or indirect
effect of any of the following: (a) shortening the scheduled date of maturity or accelerating the
date for any payment of principal, interest, or any other amount; (b) increasing the maximum
principal amount of any Senior Notes or adding to such amount; (c) shortening the time for, or
increasing the amount of, any required payment or prepayment of principal, interest or other
amounts (including, without limitation, in connection with any Disposition of assets of Borrower or
any Consolidated Subsidiary), (d) increasing the interest rate or effective interest rate on any
Senior Note (whether by changing a contractual or default rate), (e) increasing the amount of or
imposing additional fees or costs, or (f) imposing any additional restrictions on Borrower’s
ability to sell assets, to make payments on the Principal Debt, other than those restrictions set
forth in the Senior Note Agreement as in effect on the Closing Date, (g) adding material covenants
or other restrictions or making more onerous existing covenants, or (h) contravening the provisions
of the Intercreditor Agreement.



9.12 Section 18(a)(1)(A) of the Investment Company Act. Borrower will not, for so
long as any of the Principal Debt remains outstanding, violate Section 18(a)(1)(A) of the
Investment Company Act, as modified by Section 61(a)(1) of the Investment Company Act, whether or
not it is subject to those sections or any successor provisions thereto of the Investment Company
Act.



9.13 Terrorism Sanctions Regulations. Not permit any Consolidated Subsidiary to (a)
become a Person described or designated in the Specially Designated Nationals and Blocked Persons
List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (b)
knowingly engage in any dealings or transactions with any such Person.



SECTION 10. DEFAULT.



10.1 Events of Default. Each of the following shall constitute an Event of Default,
whatever the reason for such event and whether it shall be voluntary or involuntary or be effected
by operation of Applicable Law or pursuant to any judgment or order of any Governmental Authority:




(a) Default in Payment of Principal. Borrower shall fail to pay when due
(whether upon demand, at maturity, by reason of acceleration, or otherwise) the principal
of any of the Loans.




(b) Default in Payment of Other Amounts. Borrower shall fail to pay when due
any interest on any of the Loans or any of the other payment Obligations (other than the
principal of any Loan) owing by Borrower under this Agreement (including, without
limitation, pursuant to Section 7.11) or any other Loan Document and such failure shall
continue for a period of three (3) Business Days after the earlier of (i) the date on
which a Senior Financial Officer first obtains personal knowledge of such default or (ii)
the date upon which Borrower has received written notice of such failure from
Administrative Agent.




(c) Default in Performance. (i) Borrower shall fail (or, where applicable,
shall fail to cause any Consolidated Subsidiary) to perform or observe any term, covenant,
condition, or agreement on its part to be performed or observed contained in Sections 7.8,
7.9, 8.4(i), 9.1, 9.2, 9.3, 9.4, 9.5, 9.9, 9.11, or 9.12 and such default shall continue
for more than five (5) Business Days, or (ii) Borrower or any other Loan Party, shall fail
(or, where applicable, shall fail to cause any Consolidated Subsidiary) to perform or
observe any term, covenant, condition, or agreement contained in this Agreement, and in
the case of this clause (ii) such failure shall continue for a period of 30 days after the
earlier of (x) the date upon which a Senior Financial Officer first obtains actual
personal knowledge of such failure or (y) the date upon which Borrower has received
written notice of such failure from Collateral Agent or Administrative Agent.




(d) Misrepresentations. Any representation, or warranty made or deemed made
by or on behalf of Borrower or any other Loan Party in this Agreement or any other Loan
Document, or in any certificate at any time furnished to Administrative Agent or any
Lender in connection with this Agreement or the other Loan Documents, shall at any time
prove to have been untrue in any material respect when furnished or made.




(e) Cross-Default.




(i) Borrower or any Consolidated Subsidiary shall fail to pay when due (whether
by lapse of time, by declaration, by call for redemption, or otherwise) the
principal of, or interest on, any Consolidated Debt (other than the Principal Debt)
having an aggregate unpaid principal amount in excess of $25,000,000, and such
default shall continue beyond the period of grace, if any, allowed with respect
thereto; or




(ii) Default or the happening of any event shall occur under any indenture,
agreement or other instrument under which Consolidated Debt (other than the
Obligations) of Borrower or any Consolidated Subsidiary having an aggregate unpaid
principal amount in excess of $25,000,000 may be issued and the holder or holders of
such Consolidated Debt (or a trustee or agent acting on their behalf) shall cause,
or shall be lawfully or contractually entitled to cause, the acceleration of the
maturity of such Consolidated Debt or Borrower or a Consolidated Subsidiary has
become obligated to purchase, prepay, or redeem such Consolidated Debt or one or
more Persons have the right to require Borrower or any Consolidated Subsidiary to
purchase, prepay or redeem such Consolidated Debt; or




(iii) the occurrence under any Swap Contract of a termination date prior to the
stated or contracted termination date as a result of defaults by Borrower or any
Consolidated Subsidiary and the liability of Borrower or any Consolidated Subsidiary
as a result thereof (determined consistently with the definition of Swap Contract),
individually or in the aggregate, is greater than $25,000,000.




(f) Voluntary Bankruptcy Proceeding. Borrower or any Material Subsidiary
shall: (i) commence a voluntary case under the Bankruptcy Code of 1978, as amended or any
other federal Debtor Relief Law; (ii) file a petition seeking to take advantage of any
other Debtor Relief Law; (iii) consent to, or fail to contest in a timely manner, any
petition filed against it in an involuntary case under any Debtor Relief Law or consent to
any proceeding or action described in the immediately following subsection (g); or (iv)
apply for or consent to, or fail to contest in a timely manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of the
major part of its property;




(g) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be
commenced against Borrower or any Material Subsidiary in any court of competent
jurisdiction seeking relief under the Bankruptcy Code of the United States of 1978, as
amended or any other Debtor Relief Laws and such case or proceeding is not dismissed
within 60 days; or the appointment of a trustee, receiver, custodian, liquidator or
similar officer for Borrower or any Material Subsidiary or for the major part of its
property and such appointment is not discharged within 60 days; or Borrower or any
Material Subsidiary becomes insolvent or bankrupt, is generally not paying its debts as
they become due or makes an assignment for the benefit of creditors.




(h) Contest of Loan Documents. Any Loan Party contests in any manner the
validity or enforceability of any provision of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any provision of any Loan
Document, or purports to revoke, terminate or rescind any provision of any Loan Document;
or any material provision of any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect, and
such material provision is not restored or otherwise remedied within thirty (30) days
after the earlier of (i) a Responsible Officer obtaining actual knowledge of such
occurrence and (ii) Borrower receiving written notice of such occurrence from
Administrative Agent or Collateral Agent.




(i) Judgment. A final judgment or order for the payment of money shall be
entered against Borrower or any Material Subsidiary or against any property or assets of
Borrower or any Material Subsidiary by any court or other tribunal which exceeds,
individually or together with all other such judgments or orders entered against Borrower
and its Material Subsidiaries at the time remaining unpaid, $25,000,000 in amount and such
judgment or order shall continue unpaid for a period of 60 days without being stayed,
vacated, or bonded through appropriate appellate proceedings.




(j) Attachment. A warrant, writ of attachment, execution, or similar process
shall be issued against any property of Borrower or any Consolidated Subsidiary which
exceeds, individually or together with all other such warrants, writs, executions, and
processes, $25,000,000 in amount and such warrant, writ, execution, or process shall not
be discharged, vacated, stayed, or bonded for a period of 30 days; provided, however, that
if a bond has been issued in favor of the claimant or other Person obtaining such warrant,
writ, execution, or process, the issuer of such bond shall execute a waiver or
subordination agreement in form and substance satisfactory to Administrative Agent
pursuant to which the issuer of such bond subordinates its right of reimbursement,
contribution, or subrogation to the Obligations and waives or subordinates any Lien it may
have on the assets of Borrower or any of its Consolidated Subsidiaries.




(k) ERISA. Borrower or any ERISA Affiliate shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have become liable
to pay under Title IV of ERISA; or notice of intent to terminate a Material Plan shall be
filed under Title IV of ERISA by Borrower or any ERISA Affiliate, any plan administrator,
or any combination of the foregoing; or the PBGC shall institute proceedings under Title
IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007
of ERISA) in respect of, or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which could
cause Borrower or any ERISA Affiliate to incur a current payment obligation in excess of
$25,000,000.




(l) Loan Documents. A default shall occur in the observance or performance
of any other provision of any of the other Loan Documents which is not remedied within the
grace period specified for such default in the applicable Loan Document or, if no grace
period is specified, within thirty (30) days after the earlier of (i) the day on which a
Senior Financial Officer first obtains actual personal knowledge of such default, or (ii)
the day on which written notice thereof is given to Borrower by the Collateral Agent,
Administrative Agent, or any Lender.




(m) LCs. LC Issuer shall have been served with, or becomes otherwise
subject to, a court order, injunction, or other process or decree restraining or seeking
to restrain it from paying any drafts under any Existing LC and either (i) there has been
a draft under such Existing LC which LC Issuer would otherwise be obligated to pay and
Borrower has refused to reimburse LC Issuer for such payment or (ii) the expiration date
of such Existing LC has occurred but the right of any beneficiary thereunder to draw
under such Existing LC has been extended past the expiration date in connection with the
pendency of the related court action or proceeding and Borrower has failed to deposit
with Administrative Agent Cash Collateral in an amount equal to the maximum drawing which
could be made under such Existing LC.




(n) Collateral Documents. Any Lien on Collateral granted and perfected under
any Collateral Document executed and/or delivered pursuant to Section 6.23 or Section 7.10
shall for any reason (other than pursuant to the terms thereof or as a result of any or
inaction by any Secured Party) cease to constitute a valid and perfected Lien with the
same priority as in effect on the first date such Lien shall have been perfected in such
Collateral (other than non-material items), and (i) such Lien is not restored or otherwise
remedied within thirty (30) days after the earlier of (A) a Responsible Officer obtaining
actual knowledge of such occurrence and (B) Borrower receiving written notice of such
occurrence from Administrative Agent or Collateral Agent, and (ii) the ratio of
Consolidated Total Adjusted Assets (excluding the assets with respect to which such Lien
is no longer so valid or perfected) to Secured Debt shall be less than the ratio required
for the immediately preceding fiscal quarter as set forth in Section 9.1(d).



10.2 Remedies Upon Event of Default. Upon the occurrence and continuance of an Event
of Default the following provisions shall apply:




(a) Acceleration; Termination of Facilities.




(i) Automatic. Upon the occurrence of an Event of Default specified in
Sections 10.1(f) or 10.1(g), the entire unpaid balance of the Obligations of
Borrower under the Loan Documents shall become immediately and automatically due and
payable by Borrower without presentment, demand, protest, or other notice of any
kind, all of which are expressly waived by Borrower and Borrower shall be required
to provide Cash Collateral in an amount equal to 100% of the LC Exposure then
existing in accordance with Section 2.2(g);




(ii) Optional. If any Event of Default (other than pursuant to Section
10.1(f) or 10.1(g)) shall have occurred and be continuing, Administrative Agent may,
and at the direction of the Requisite Lenders shall (subject to the terms of Section
11): (A) declare the entire unpaid balance of the Obligations under the Loan
Documents, or any part thereof, immediately due and payable; whereupon the same
shall immediately become due and payable without presentment, demand, protest, or
other notice of any kind, all of which are expressly waived by Borrower, and (B)
demand Borrower to provide Cash Collateral in an amount equal to 100% of the LC
Exposure then existing in accordance with Section 2.2(g).




(b) Loan Documents. The Requisite Lenders may direct Administrative Agent
to, and Administrative Agent if so directed shall (subject to the terms of Section 11),
exercise any and all of its rights under any and all of the other Loan Documents, subject
to the Intercreditor Agreement.




(c) Applicable Law. Subject to the terms of the Intercreditor Agreement, the
Requisite Lenders may direct Administrative Agent to, and Administrative Agent if so
directed shall, exercise all other rights and remedies it may have under any Applicable
Law to (i) reduce any claim to judgment; (ii) to the extent permitted by Applicable Law,
exercise (or request each Lender and each of their respective Affiliates to, and each
Lender and each of their respective Affiliates shall be entitled to, exercise) the rights
of offset or banker’s Lien against the interest of Borrower and each Subsidiary Guarantor
in and to every account (general or special, time or demand, provisional or final, in
whatever currency (other than special accounts, trust accounts, or escrow accounts
maintained by Borrower in a fiduciary capacity or as an agent for unrelated third parties
or any Portfolio Company)) and other property of Borrower and each Subsidiary Guarantor
which are in the possession of Administrative Agent or any Lender or any of their
respective Affiliates to the extent of the full amount of the Obligations (to the extent
permitted by Applicable Law, Borrower and each Subsidiary Guarantor being deemed directly
obligated to each Lender in the full amount of the Obligations for such purposes),
irrespective of whether or not Administrative Agent or such Lender shall have made any
demand under this Agreement or any other Loan Documents and although such obligations of
Borrower or any Subsidiary Guarantor may be contingent or unmatured or are owed to a
branch or office of Administrative Agent or such Lender different from the branch or
office holding such deposit or obligated under such indebtedness; and (iii) exercise any
and all other legal or equitable rights afforded by the Loan Documents, the Applicable
Laws of the State of New York, or any other applicable jurisdiction as Administrative
Agent shall deem appropriate, or otherwise, including, but not limited to, the right to
bring suit or other proceedings before any Governmental Authority either for specific
performance of any covenant or condition contained in any of the Loan Documents or in aid
of the exercise of any right granted to Administrative Agent or any Lender in any of the
Loan Documents.



10.3 Allocation of Proceeds. If a Default or Event of Default shall have occurred and
be continuing (and if no order of application is otherwise specified herein or in any other Loan
Document for payments received after a Default or Event of Default), all payments received by
Administrative Agent, LC Issuer, or any Lender under any of the Loan Documents, in respect of the
Obligations (including proceeds from the exercise of any rights), shall be applied by
Administrative Agent in the following order and priority:




(a) to payment of fees, indemnities, expenses and other amounts due to Administrative
Agent in its capacity as such;




(b) to payment of fees, indemnities, expenses and other amounts (other than
principal, interest and LC fees payable pursuant to Section 3.8(f)) due to LC Issuer and
Lenders, ratably among them in proportion to the respective amounts described in this
clause (b) payable to them;




(c) to payment of accrued and unpaid LC fees payable pursuant to Section 3.8(f) and
accrued and unpaid interest on unpaid reimbursement obligations of Borrower in respect of
drawings under any Existing LC, the Loans, and other Obligations, ratably among the
Lenders and the LC Issuer in proportion to the respective amounts described in this clause
(c) payable to them;




(d) to payment of unpaid principal of Loans and unpaid reimbursement obligations with
respect to Existing LCs, ratably among the Lenders and the LC Issuer in proportion to the
respective amounts described in this clause (d) payable to them;




(e) to Administrative Agent (or, if required by the Intercreditor Agreement, the
Collateral Agent), to be held as Cash Collateral, an amount equal to 100% of the aggregate
undrawn amount of Existing LCs;




(f) to payment of unpaid Secured Cash Management Obligations then owing; and




(g) the balance, if any, after all Obligations have been paid in full, to Borrower or
as otherwise required by the Intercreditor Agreement or by law.



Notwithstanding the foregoing, Obligations arising under Cash Management Services Agreements shall
be excluded from the application described above if Administrative Agent has not received written
notice thereof, together with such supporting documentation as Administrative Agent may request,
from the applicable Cash Management Bank.



10.4 Performance by Administrative Agent. If Borrower shall fail to perform any
covenant, duty, or agreement contained in any of the Loan Documents, Administrative Agent may
perform or attempt to perform such covenant, duty, or agreement on behalf of Borrower after the
expiration of any cure or grace periods set forth herein. In such event, Borrower shall, at the
request of Administrative Agent, promptly pay any amount reasonably expended by Administrative
Agent in such performance or attempted performance to Administrative Agent, together with interest
thereon at the applicable Post-Default Rate from the date of such expenditure until paid.
Notwithstanding the foregoing, neither Administrative Agent nor any Lender shall have any liability
or responsibility whatsoever for the performance of any obligation of Borrower under this Agreement
or any other Loan Document.



10.5 Rights Cumulative. The rights, remedies, powers, and privileges of
Administrative Agent and Lenders under this Agreement and each of the other Loan Documents shall be
cumulative and not exclusive of any rights, remedies, powers, or privileges which any of them may
otherwise have under Applicable Law.



10.6 Borrower Waivers. To the extent permitted by Applicable Law, Borrower and each
other Loan Party, hereby waive presentment and demand for payment, protest, notice of intention to
accelerate, notice of acceleration, and notice of protest and nonpayment, and agree that their
respective liability with respect to the Obligations (or any part thereof) shall not be affected by
any renewal or extension in the time of payment of the Obligations (or any part thereof), by any
indulgence, or by any release or change in any security for the payment of the Obligations (or any
part thereof).



10.7 Delegation of Duties and Rights. Lenders and Administrative Agent may perform
any of their duties or exercise any of their rights under the Loan Documents by or through their
respective representatives.



10.8 Not in Control. Nothing in any Loan Document shall, or shall be deemed to (a)
give Administrative Agent or any Lender the right to exercise control over the assets (including
real property), affairs, or management of Borrower or any Subsidiary, (b) preclude or interfere
with compliance by Borrower or any Subsidiary with any Applicable Law, or (c) require any act or
omission by Borrower or any Subsidiary that may be harmful to Persons or property. Any “Material
Adverse Effect” or other materiality qualifier in any representation, warranty, covenant, or other
provision of any Loan Document is included for credit documentation purposes only and shall not,
and shall not be deemed to, mean that Administrative Agent or any Lender acquiesces in any
non-compliance by Borrower or any Subsidiary with any Applicable Law or document, or that
Administrative Agent or any Lender does not expect Borrower or any Subsidiary to promptly,
diligently, and continuously carry out all appropriate removal, remediation, and termination
activities required or appropriate in accordance with all Environmental Laws. Administrative Agent
and Lenders have no fiduciary relationship with or fiduciary duty to Borrower or any Subsidiary
arising out of or in connection with the Loan Documents, and the relationship between
Administrative Agent and Lenders, on the one hand, and Borrower and its Consolidated Subsidiaries,
on the other hand, in connection with the Loan Documents is solely that of debtor and creditor. The
power of Administrative Agent and Lenders under the Loan Documents is limited to the rights
provided in the Loan Documents, which rights exist solely to assure payment and performance of the
Obligations and may be exercised in a manner calculated by Administrative Agent and Lenders in
their respective good faith business judgment.



10.9 Course of Dealing. The acceptance by Administrative Agent or Lenders at any time
and from time to time of partial payment on the Obligations shall not be deemed to be a waiver of
any Default or Event of Default then existing. No waiver by Administrative Agent, Requisite
Lenders, or Lenders of any Default or Event of Default shall be deemed to be a waiver of any other
then-existing or subsequent Default or Event of Default. No delay or omission by Administrative
Agent, Requisite Lenders, or Lenders in exercising any right under the Loan Documents shall impair
such right or be construed as a waiver thereof or any acquiescence therein, nor shall any single or
partial exercise of any such right preclude other or further exercise thereof, or the exercise of
any other right under the Loan Documents or otherwise.



SECTION 11. AGREEMENT AMONG LENDERS.



11.1 Appointment, and Authority. Each Lender and LC Issuer hereby irrevocably
appoints Bank of America to act on its behalf as Administrative Agent hereunder and under the other
Loan Documents and authorizes Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to Administrative Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. Except as expressly
set forth in Sections 11.6 and 11.10, the provisions of this Section 11.1 are solely for the
benefit of Administrative Agent, Lenders, and LC Issuer, and Borrower shall not have rights as a
third party beneficiary of any of such provision.



11.2 Rights as a Lender. The Person serving as Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender and may exercise
the same as though it were not Administrative Agent and the term “Lender” or “Lenders” shall,
unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as Administrative Agent hereunder in its individual capacity. Such Person and its
Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other
advisory capacity for and generally engage in any kind of business with Borrower or any Subsidiary
or other Affiliate thereof as if such Person were not Administrative Agent hereunder and without
any duty to account therefor to Lenders.



11.3 Exculpatory Provisions. Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, Administrative Agent:




(a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or Event of Default has occurred and is continuing;




(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that Administrative Agent is required to exercise as
directed in writing by the Requisite Lenders (or such other number or percentage of
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose Administrative Agent to liability or
that is contrary to any Loan Document or Applicable Law;




(c) shall not, except as expressly set forth herein and in the other Loan Documents,
have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Borrower or any of its Affiliates that is communicated to or
obtained by the Person serving as Administrative Agent or any of its Affiliates in any
capacity; and




(d) shall not be responsible for or have any duty to ascertain or inquire into the
creation perfection, or priority of any Lien purported to be created by the Collateral
Documents or the value or the sufficiency of any Collateral.



Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Requisite Lenders (or such other number or percentage of Lenders
as shall be necessary, or as Administrative Agent shall believe in good faith shall be necessary,
under the circumstances as provided in Sections 12.5 and 10.2) or (ii) in the absence of its own
gross negligence or willful misconduct. Administrative Agent shall be deemed not to have knowledge
of any Default or Event of Default unless and until notice describing such Default or Event of
Default is given to Administrative Agent by Borrower, a Lender, or LC Issuer.



Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i)
any statement, warranty or representation made in or in connection with this Agreement or any other
Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder
or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement, any other Loan Document or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Section 5 or elsewhere herein,
other than to confirm receipt of items expressly required to be delivered to Administrative Agent.



11.4 Reliance by Administrative Agent. Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. Administrative Agent
may consult with legal counsel (who may be counsel for Borrower), independent accountants, and
other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



11.5 Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through any one
or more sub-agents appointed by Administrative Agent. Administrative Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of this Section 11.5 shall apply to any
such sub-agent and to the Related Parties of Administrative Agent and any such sub-agent, and shall
apply to their respective activities in connection with the arrangement and structuring of the
credit facilities provided for herein as well as activities as Administrative Agent.



11.6 Resignation of Administrative Agent. Administrative Agent may at any time give
notice of its resignation to Lenders, LC Issuer, and Borrower. Upon receipt of any such notice of
resignation, the Requisite Lenders shall have the right, in consultation with Borrower, to appoint
a successor, which shall be a bank with a minimum combined capital and surplus of $500,000,000 with
an office in the United States, or an Affiliate of any such bank with an office in the United
States; provided that, so long as no Default or Event of Default has occurred or is continuing,
such appointment of a successor administrative agent will be subject to approval by Borrower, which
approval shall not be unreasonably withheld, conditioned, or delayed, and any such request for
approval shall be deemed granted on the fifth Business Day after Borrower’s receipt of such request
for approval if Borrower has not responded. If no such successor shall have been so appointed by
the Requisite Lenders and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative Agent, after
consulting with Borrower, may on behalf of Lenders and LC Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if Administrative
Agent shall notify Borrower and Lenders that no qualifying Person has accepted such appointment,
then such resignation shall nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents and (2) all payments, communications and determinations provided to
be made by, to or through Administrative Agent shall instead be made by or to each Lender and LC
Issuer directly, until such time as the Requisite Lenders appoint a successor Administrative Agent
as provided for above in this Section 11.6. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section 11.6). The fees payable by Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between Borrower and such successor.
After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents,
the provisions of this Section 11 and Sections 12.2 and 12.8 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents, and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



11.7 Non-Reliance on Administrative Agent and Other Lenders. Each Lender and LC
Issuer acknowledges that it has, independently and without reliance upon Administrative Agent or
any other Lender or any of their Related Parties and based on such documents and information as it
has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.
Each Lender and LC Issuer also acknowledges that it will, independently and without reliance upon
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any other Loan
Document or any related agreement or any document furnished hereunder or thereunder.



11.8 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Book Manager, Arrangers, Syndication Agent, Documentation Agent, or Managing Agents listed on
the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any
of the other Loan Documents, except in its capacity, as applicable, as Administrative Agent, a
Lender, or LC Issuer hereunder.



11.9 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other similar judicial proceeding relative to Borrower, Administrative Agent
(irrespective of whether the principal of any Loan or LC Exposure shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent
shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise




(a) to file and prove a claim for the whole amount of the principal and interest
owing and unpaid in respect of the Loans, LC Exposures, and all other Obligations that are
owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of Lenders, LC Issuer, and Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements, and advances of Lenders,
LC Issuer, and Administrative Agent, and their respective agents and counsel, and all
other amounts due Lenders, LC Issuer and Administrative Agent under Sections 3.8, 12.2 and
12.8) allowed in such judicial proceeding; and




(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;



and any custodian, receiver, assignee, trustee, liquidator, sequestrator, or other similar official
in any such judicial proceeding is hereby authorized by each Lender and LC Issuer to make such
payments to Administrative Agent and, in the event that Administrative Agent shall consent to the
making of such payments directly to Lenders and LC Issuer, to pay to Administrative Agent any
amount due for the reasonable compensation, expenses, disbursements and advances of Administrative
Agent and its agents and counsel, and any other amounts due Administrative Agent under
Sections 3.8, 12.2 and 12.8.



Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent
to or accept or adopt on behalf of any Lender or LC Issuer any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.



11.10 Collateral and Guaranty Matters. Each of the Lenders (including in its
capacities as a Cash Management Bank) and L/C Issuer irrevocably authorize Administrative Agent, at
its option and in its discretion,




(a) to release and to authorize the Collateral Agent to release any Lien on any
property granted to or held by Administrative Agent or the Collateral Agent under any Loan
Document (i) upon termination or expiration of all Existing LCs and payment in full of all
Obligations (other than (A) contingent indemnification obligations and (B) obligations and
liabilities under Cash Management Services Agreements as to which arrangements
satisfactory to the applicable Cash Management Bank shall have been made), (ii) that is
sold, transferred, or assigned or to be sold, transferred, or assigned as part of or in
connection with any sale, transfer, or assignment permitted hereunder or under any other
Loan Document, (iii) if approved, authorized or ratified in writing in accordance with
Section 12.5, or (iv) if permitted pursuant to the Intercreditor Agreement;




(b) to release or authorize the Collateral Agent to release any Subsidiary Guarantor
(other than any Subsidiary Guarantor that is a Material Subsidiary) from its obligations
under a Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a
Disposition of assets permitted hereunder or if approved, authorized or ratified in
accordance with Section 12.5 and the Intercreditor Agreement; and




(c) to subordinate or to authorize the Collateral Agent to subordinate any Lien on
any property granted to or held by Administrative Agent or the Collateral Agent under any
Loan Document to the holder of any Lien on such property that is permitted pursuant to
Section 9.3(f) or 9.3(g).



Upon request by Administrative Agent at any time, the Requisite Lenders will confirm in writing
Administrative Agent’s authority to release or subordinate, and to authorize the Collateral Agent
to release or subordinate, its interest in particular types or items of property, or to release any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty pursuant to this Section
11.10.



11.11 Cash Management Services Agreements. Except as otherwise expressly set forth
herein or in any Collateral Document, no Cash Management Bank that obtains the benefits of any
Subsidiary Guaranty or any Collateral by virtue of the provisions hereof or of such Subsidiary
Guaranty or any Collateral Document shall have any right to notice of any action or to consent to,
direct, or object to any action hereunder or under any other Loan Document or otherwise in respect
of the Collateral (including the release or impairment of any Collateral or release of any
Subsidiary Guarantor) other than in its capacity as a Lender and, in such case, only to the extent
expressly provided in the Loan Documents. Notwithstanding any other provision of this SECTION 11
to the contrary, Administrative Agent shall not be required to verify the payment of, or that other
satisfactory arrangements have been made with respect to, obligations arising under Cash Management
Services Agreements unless Administrative Agent has received written notice of such obligations,
together with such supporting documentation as Administrative Agent may request, from the
applicable Cash Management Bank. Upon request by Administrative Agent at any time, the Requisite
Lenders will confirm in writing Administrative Agent’s authority to authorize the Collateral Agent
to release or subordinate its interest in particular types or items of property, or to release any
Subsidiary Guarantor from its obligations under the applicable Subsidiary Guaranty pursuant to this
Section 11.11.



	 	 	 	 	 
	SECTION 12.	 	MISCELLANEOUS.
	 	12.1	 	 	Notices.

	 	 	 	 	 








(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by facsimile
transmission). All such written notices shall be mailed, faxed, or delivered to the
applicable address, facsimile number, or (subject to clause (b) below) electronic mail
address, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows (or, as to
each party at such other address as shall be designated by such party in a written notice
to the other parties delivered in compliance with this Section 12.1):




(i) If to Borrower:




Allied Capital Corporation


1919 Pennsylvania Avenue, N.W.


Washington, DC 20006-3434


Attention: Penni F. Roll, Chief Financial Officer


Telephone/Telecopy: (202) 721-6192




With a copy to:




Dickstein Shapiro LLP


1825 Eye Street, N.W.


Washington, DC 20006


Attention: Howard S. Jatlow


Telecopy: (202) 420-2201




with a copy to:



	 	 	 	 	 
	 	 	Allied Capital Corporation

1919 Pennsylvania Avenue, N.W.

Washington, DC 20006-3434

	 	





	 	 	Attention: Alexander D. Fine, Executive Vice President

	 	 	Telephone:

Telecopy:

	 	(202) 721-6166

(202) 721-6101
	(ii)	 	If to Administrative Agent and LC Issuer:

	 	 	Bank of America, N.A.

Agency Management

CA5-701-05-19

1455 Market Street

San Francisco, CA 94103

Attention:

Telecopy:

Telephone:

Email:

	 	









Joan Mok

415-503-5085

415-436-3496

joan.mok@bankofamerica.com







with a copy to:



	 	 	 
	Bank of America, N.A.

	901 Main Street, 66th Floor

	Dallas, Texas 75202

	Attention:

Telecopy:

Telephone:

Email:

	 	Tyler D. Levings

214-290-9499

214-209-0903

tyler.d.levings@bankofamerica.com







with a copy to:



	 	 	 
	Haynes and Boone, LLP

	2323 Victory Avenue

	Suite 700

	 	

	Dallas, TX 75219

	Attention:

Telephone:

Facsimile:

E-mail:

	 	Karen S. Nelson

(214) 651-5648

(214) 200-0673

karen.nelson@haynesboone.com







(iii) If to any other Lender, to the address, telecopier number, electronic
mail address or telephone number specified in its Administrative Questionnaire.




Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by telecopier shall be
deemed to have been given when sent (except that, if not given during normal business hours
for the recipient, shall be deemed to have been given at the opening of business on the next
Business Day for the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as provided in such
subsection (b).




(b) Electronic Communications. Notices and other communications to Lenders
and LC Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures approved by
Administrative Agent, provided that the foregoing shall not apply to notices to any Lender
or LC Issuer pursuant to Section 2 if such Lender or LC Issuer, as applicable, has
notified Administrative Agent that it is incapable of receiving notices under such Article
by electronic communication. Administrative Agent or Borrower may, in its discretion,
agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.



Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an
e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return
e-mail, or other written acknowledgement); provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or communication shall be
deemed to have been sent at the opening of business on the next Business Day for the recipient, and
(ii) notices or communications posted to an Internet or intranet website shall be deemed received
upon the deemed receipt by the intended recipient at its e-mail address as described in the
foregoing clause (i) of notification that such notice or communication is available and identifying
the website address therefor.




(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN
OR OMISSIONS FROM BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS
MADE BY ANY AGENT PARTY IN CONNECTION WITH BORROWER MATERIALS OR THE PLATFORM. In no
event shall Administrative Agent or any of its Related Parties (collectively, the “Agent
Parties”) have any liability to Borrower, any Lender, LC Issuer, or any other Person for
losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or
otherwise) arising out of Borrower’s or Administrative Agent’s transmission of Borrower
Materials through the Internet, except to the extent that such losses, claims, damages,
liabilities or expenses are determined by a court of competent jurisdiction by a final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party have any
liability to Borrower, any Lender, LC Issuer, or any other Person for indirect, special,
incidental, consequential or punitive damages (as opposed to direct or actual damages).




(d) Change of Address, Etc. Each of Borrower, Administrative Agent, and LC
Issuer may change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications
hereunder by notice to Borrower, Administrative Agent, and LC Issuer. In addition, each
Lender agrees to notify Administrative Agent from time to time to ensure that
Administrative Agent has on record (i) an effective address, contact name, telephone
number, telecopier number, and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender.




(e) Reliance by Administrative Agent, LC Issuer and Lenders. Administrative
Agent, LC Issuer, and Lenders shall be entitled to rely and act upon any notices
(including telephonic Notices of Borrowing) purportedly given by or on behalf of Borrower
even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation thereof.
Borrower shall indemnify Administrative Agent, LC Issuer, each Lender, and the Related
Parties or each of them from all losses, costs, expenses, and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of Borrower.
Notwithstanding the foregoing, nothing contained in this Section 12.1(e) shall exculpate
Administrative Agent, LC Issuer, any Lender, or any Related Party of any of them from its
gross negligence or willful misconduct or require Borrower to indemnify Administrative
Agent, LC Issuer, or any Lender, or any Related Party of any of them to the extent that
the losses, costs, expenses, and liabilities referred to in the preceding sentence are
determined by a court of competent jurisdiction to have resulted from such Person’s own
gross negligence or willful misconduct. All telephonic notices to and other
communications with Administrative Agent may be recorded by Administrative Agent, and each
of the parties hereto hereby consents to such recording.




12.2 Expenses.




(a) Costs and Expenses. Borrower shall pay (i) all reasonable out-of-pocket
expenses actually incurred by Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel and any financial advisor or
consultant for Administrative Agent), in connection with the arrangement and structuring
of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses actually incurred by LC Issuer in connection with the issuance,
amendment, renewal or extension of any Existing LC or any demand for payment thereunder
and (iii) all out-of-pocket expenses actually incurred by Administrative Agent, any
Lender, or LC Issuer (including the fees, charges and disbursements of any counsel for,
and any financial and other consultants and advisors for, Administrative Agent, any
Lender, or LC Issuer), in connection with the enforcement or protection of its rights (A)
in connection with this Agreement and the other Loan Documents, including its rights under
this Section 12.2, or (B) in connection with the Loans or Existing LCs, including all such
out-of-pocket expenses actually incurred during any workout or restructuring or
negotiations in respect of such Loans or Existing LCs. Borrower shall also pay the
reasonable attorneys’ fees and expenses of counsel to Administrative Agent in connection
with the negotiation and review of the Collateral Documents and the Intercreditor
Agreement, including, in each case, any amendments thereto.




(b) Reimbursement by Lenders. To the extent that Borrower for any reason
fails to indefeasibly pay any amount required under subsection (a) of this Section 12.2 or
subsection (a) of Section 12.8 to be paid by it to Administrative Agent (or any sub-agent
thereof), LC Issuer, or any Related Party of any of the foregoing, each Lender severally
agrees to pay to Administrative Agent (or any such sub-agent), LC Issuer, or such Related
Party, as the case may be, such Lender’s Commitment Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability, or related expense, as the case may be, was incurred by or asserted against
Administrative Agent (or any such sub-agent) or LC Issuer in its capacity as such, or
against any Related Party of any of the foregoing acting for Administrative Agent (or any
such sub-agent) or LC Issuer in connection with such capacity. The obligations of Lenders
under this subsection (b) are subject to the provisions of Section 3.6.




(c) Payment of Collateral Agent’s Fees and Expenses. Without limiting the
foregoing, Borrower agrees to pay all reasonable fees of the Collateral Agent in
connection with the preparation, execution, and delivery of the Intercreditor Agreement
and the Collateral Documents and the transactions contemplated thereby, including but not
limited to reasonable attorneys’ fees and to pay to the Collateral Agent from time to time
all reasonable fees, and documented out-of-pocket expenses and other amounts as shall be
required to be paid by Borrower to the Collateral Agent in accordance with the terms of
the Intercreditor Agreement and the Collateral Documents.




(d) Payments. All amounts payable under this Section 12.2 (other than
subsection (c)) shall be due 30 days after demand or invoicing therefor.




(e) Survival. The agreements in this Section 12.2 shall survive the
resignation of Administrative Agent and LC Issuer, the replacement of any Lender, the
termination of the aggregate Commitments, and the repayment, satisfaction or discharge of
all the other Obligations.




12.3 Jurisdiction; Consent to Service of Process; Waiver of Jury Trial.




(a) Borrower hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State court or Federal
court of the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this Agreement
or the other Loan Documents, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York
State court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that any
Agent or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against Borrower or its properties in the courts of
any jurisdiction.




(b) Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or the other Loan Documents in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.




(c) Borrower and each other party hereto consents to service of process
in the manner provided for notices in Section 12.1(a). Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other manner
permitted by law.




(d) Each party hereto hereby irrevocably waives, to the fullest extent
permitted by Applicable Law, any right it may have to a trial by jury in any legal
proceeding directly or indirectly arising out of or relating to this agreement or any
other loan document or the transactions contemplated hereby or thereby (whether based on
contract, tort or any other theory). Each party hereto (a) certifies that no
representative, agent or attorney of any other person has represented, expressly or
otherwise, that such other person would not, in the event of litigation, seek to enforce
the foregoing waiver and (b) acknowledges that it and the other parties hereto have been
induced to enter into this agreement and the other loan documents by, among other things,
the mutual waivers and certifications in this Section 12.3.




12.4 Successors and Assigns.




(a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby, except that Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written consent of
Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of
its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with
the provisions of subsection (b) of this Section 12.4, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section 12.4, or (iii) by way of
pledge or assignment of a security interest subject to the restrictions of subsection (f)
of this Section 12.4 (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section 12.4 and, to the extent expressly contemplated hereby, the
Related Parties of each of Administrative Agent, LC Issuer and Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.




(b) Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans (including for purposes of
this subsection (b), participations in the Existing LCs) at the time owing to it);
provided that




(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment and the Loans at the time owing to it or in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to Administrative Agent or,
if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date,
shall not be less than $5,000,000 unless each of Administrative Agent and, so long
as no Event of Default has occurred and is continuing, Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); provided, however,
that concurrent assignments to members of an Assignee Group and concurrent
assignments from members of an Assignee Group to a single Eligible Assignee (or to
an Eligible Assignee and members of its Assignee Group) will be treated as a single
assignment for purposes of determining whether such minimum amount has been met;




(ii) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement with
respect to the Loans and the Commitment assigned;




(iii) any assignment must be approved by Administrative Agent and LC Issuer
unless the Person that is the proposed assignee is itself a Lender (whether or not
the proposed assignee would otherwise qualify as an Eligible Assignee); provided
that, each such consent shall not be unreasonably withheld or delayed; and




(iv) the parties to each assignment shall execute and deliver to Administrative
Agent an Assignment and Assumption, together with the Assignment Fee, unless such
fee is waived by Administrative Agent in its sole discretion, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to Administrative Agent an
Administrative Questionnaire.




Subject to acceptance and recording thereof by Administrative Agent pursuant to
subsection (c) of this Section 12.4, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled
to the benefits of Sections 2.2(h), 4.1, 4.5, 4.6, and 12.8 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon request,
Borrower (at its expense) shall execute and deliver a Promissory Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection (b) shall be treated for purposes of
this Agreement as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section 12.4.




(c) Register. Administrative Agent, acting solely for this purpose as an
agent of Borrower, shall maintain at Administrative Agent’s office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names
and addresses of Lenders, and the Commitments of, and principal amounts of Loans owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The entries
in the Register shall be conclusive as to the identity of Lenders and their respective
Commitments, and Borrower, Administrative Agent and Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by Borrower, any Lender, or LC Issuer at any reasonable
time and from time to time upon reasonable prior notice. In addition, at any time that a
request for a consent for a material or substantive change to the Loan Documents is
pending, any Lender may request and receive from Administrative Agent a copy of the
Register.




(d) Participations. Any Lender may at any time, without the consent of, or
notice to, Borrower or Administrative Agent, sell participations to any Person (other than
a natural person or Borrower or any of Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in the Existing LCs) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and
(iii) Borrower, Administrative Agent, Lenders and LC Issuer shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement.




Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other modification which
decreases the amount of principal of, or the rate at which interest is payable on such
Loans or Promissory Note or extends any scheduled principal payment date or date fixed for
the payment of interest on such Loans or Promissory Note, or extends the Commitment of such
Lender in a manner that affects such Participant. Subject to subsection (e) of this
Section 12.4, Borrower agrees that each Participant shall be entitled to the benefits of
Sections 4.1, 4.5 and 4.6 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section 12.4. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 3.4 as
though it were a Lender, provided such Participant agrees to be subject to Section 3.3 as
though it were a Lender.




(e) Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 4.1, 4.5 or 4.6 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with
Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 4.6 unless Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit
of Borrower, to comply with Section 4.6(e) as though it were a Lender.




(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including under its
Promissory Note, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.




(g) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a manually executed
signature or the use of a paper-based recordkeeping system, as the case may be, to the
extent and as provided for in any Applicable Law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.



12.5 Amendments, Etc. No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent to any departure by Borrower or any Subsidiary Guarantor
therefrom, shall be effective unless in writing signed by the Requisite Lenders and Borrower or the
applicable Subsidiary Guarantor, as the case may be, and acknowledged by Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided however, that no such amendment, waiver or consent shall:




(a) waive any condition set forth in Section 5.1(a) without the written consent of
each Lender;




(b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 10.2) without the written consent of such Lender;




(c) postpone the Maturity Date or any date fixed by this Agreement or any other Loan
Document for any payment (other than prepayments) of principal, interest, reimbursement
obligations with respect to any Existing LC, fees or other amounts due to Lenders (or any
of them) hereunder or under any other Loan Document, without the written consent of each
Lender directly affected thereby;




(d) reduce the principal of, or the rate of interest specified herein on, any Loan or
reimbursement obligations with respect to any Existing LC, or (subject to clause (iii)
below in this Section 12.5) any fees or other amounts payable hereunder or under any other
Loan Document without the written consent of each Lender; provided, however, that only the
consent of the Requisite Lenders shall be necessary to amend the definition of
“Post-Default Rate” or to waive any obligation of Borrower to pay interest or LC Fees at
the Post-Default Rate;




(e) change Section 3.2 or Section 10.3 in a manner that would alter the pro rata
sharing of payments required thereby without the written consent of each Lender;




(f) change any provision of this Section 12.5 or the definition of “Requisite
Lenders” or any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder without the written consent of each Lender,




(g) release any Subsidiary Guarantor from any Subsidiary Guaranty, without the
written consent of each Lender; or




(h) release all or substantially all of the Collateral in any transaction or series
of related transactions, without the written consent of each Lender.




and; provided further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by LC Issuer in addition to the Lenders required above, affect the rights or duties
of LC Issuer under this Agreement or any Loan Document relating to any Existing LC issued by
it; and (ii) no amendment, waiver or consent shall, unless in writing and signed by
Administrative Agent in addition to the Lenders required above, affect the rights or duties
of Administrative Agent under this Agreement or any other Loan Document; and (iii) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary 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.



12.6 Nonliability of Agent and Lenders. The relationship between Borrower and Lenders
and Administrative Agent shall be solely that of borrower and lender. Administrative Agent and
Lenders shall have no fiduciary responsibilities to Borrower; and no provision in this Agreement or
in any of the other Loan Documents, and no course of dealing between or among any of the parties
hereto, shall be deemed to create any fiduciary duty owing by Administrative Agent or any Lender to
any Lender, Borrower, or any Subsidiary. Neither Administrative Agent nor any Lender undertakes
any responsibility to Borrower to review or inform Borrower of any matter in connection with any
phase of Borrower’s business or operations.



12.7 Confidentiality. Each of Administrative Agent, LC Issuer, and Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates’ directors, officers, employees, trustees and agents,
including accountants, legal counsel and other advisors (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by Applicable Laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or
the enforcement of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section 12.7 to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any direct or indirect contractual counterparty or prospective
counterparty (or such contractual counterparty’s or prospective counterparty’s professional
advisor) to any credit derivative transaction relating to obligations of Borrower; (g) with the
consent of Borrower; (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to Administrative Agent, LC
Issuer, or any Lender on a nonconfidential basis from a source other than Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s or its Affiliates’
investment portfolio in connection with ratings issued with respect to such Lender or its
Affiliates.



For the purposes of this Section, “Information” means all information received from Borrower
relating to Borrower or its business, other than any such information that is available to
Administrative Agent, LC Issuer, or any Lender on a nonconfidential basis prior to disclosure by
Borrower; provided that, in the case of information received from Borrower after the date hereof,
such information is clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Each of Administrative Agent, Lenders and LC Issuer acknowledges
that (a) the Information may include material non-public information concerning Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of
material non-public information and (c) it will handle such material non-public information in
accordance with Applicable Law, including federal and state securities laws.




12.8 INDEMNIFICATION.




(a) Whether or not the transactions contemplated hereby are consummated,
Borrower agrees to indemnify and hold harmless, Administrative Agent (and any sub-agent
thereof), Arranger, LC Issuer, each Lender, and the Related Parties of any of the
foregoing persons (each such person being called an “Indemnified Party”) from and
against any and all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses, and disbursements (including Attorney Costs)
that may be incurred by or asserted or awarded against any Indemnified Party, by any third
party in each case arising out of or in connection with or by reason of (including in
connection with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) (a) the execution, delivery, enforcement, performance, or
administration of any Loan Document or any other agreement, letter, or instrument
delivered in connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (b) any Loan or Existing LC or the use or proposed
use of the proceeds therefrom (including any refusal by LC Issuer to honor a demand for
payment under an Existing LC if the documents presented in connection with such demand do
not strictly comply with the terms of such Existing LC), (c) any actual or alleged
presence or release of hazardous materials on or from any property owned or operated by
borrower or any of its subsidiaries or any environmental liability related in any way to
borrower or any of its subsidiaries, or (d) any actual or prospective claim, litigation,
investigation, or proceeding relating to any of the foregoing, whether based on contract,
tort, or any other theory and regardless of whether any Indemnified Party is a party
thereto, IN all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory, or sole negligence of the indemnified party; provided that
such indemnity shall not, as to any Indemnified Party, be available to the extent that
such liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses, or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from such Indemnified
Party’s gross negligence or willful misconduct. All amounts due under this Section 12.8
shall be payable within ten Business Days after demand therefor.




(b) to the fullest extent permitted by Applicable Law, Borrower shall
not assert, and hereby waives, any claim against any indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this agreement
and any other loan document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any loan or Existing LC or the use of the
proceeds thereof.




(c) Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and Obligations of Borrower contained in this Section 12.8 shall
survive the payment in full of the Loans and all other amounts payable under this
Agreement.



12.9 Severability of Provisions. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the remainder of such provision
or the remaining provisions or affecting the validity or enforceability of such provision in any
other jurisdiction.




12.10 Waiver.




(a) Borrower acknowledges that Events of Default exist under




(i) Section 7.14 of the Existing Credit Agreement due to Borrower’s breach of
the covenant set forth in such Section requiring Borrower to grant a first priority
security interest on substantially all of Borrower’s assets by the Collateral
Effective Date (as defined in the Existing Credit Agreement) and Section
10.1(e)(iii) of the Existing Credit Agreement due to an event of default under
Section 5.9 of each Existing Note Agreement (relating to the failure to deliver
collateral) (the “Collateral Event of Default and Related Cross-Defaults”);




(ii) Section 9.11 of the Existing Credit Agreement due to Borrower’s breach of
the covenant set forth in such Section by repurchasing Outstanding Public Debt (as
defined in the Existing Credit Agreement) in the fiscal quarters ended March 31,
2009 and June 30, 2009, each such repurchase being prior to the stated maturity of
such Outstanding Public Debt and Section 10.1(e)(iii) of the Existing Credit
Agreement due to an event of default under Section 5.12(b) under each Existing Note
Agreement (relating to the Outstanding Public Debt Repurchase) (the “Outstanding
Public Debt Repurchase Events of Default and Related Cross-Defaults”);




(iii) Section 9.11 of the Existing Credit Agreement due to Borrower’s breach of
the covenant set forth in such Section by voluntarily prepaying principal of the
Senior Notes in July, 2009 and in August, 2009 each such repurchase being prior to
the stated maturity of such Senior Notes (the “Senior Note Repurchase Events of
Default and Related Cross-Defaults”);




(iv) Section 9.1(e) of the Existing Credit Agreement due to the Asset Coverage
Ratio being lower than required as of December 31, 2008 and thereafter and Section
10.1(e)(iii) of the Existing Credit Agreement due to an event of default under the
provision of each Existing Note Agreement requiring maintenance of a minimum asset
coverage ratio (the “Asset Coverage Event of Default and Related Cross-Defaults”);




(v) Section 9.1(a) of the Existing Credit Agreement due to the ratio of
Consolidated Debt to Consolidated Shareholders’ Equity exceeding 1.50 to 1.00 as of
March 31, 2009 and thereafter and Section 10.1(e)(iii) of the Existing Credit
Agreement due to an event of default under the provision of each Existing Note
Agreement requiring maintenance of a consolidated debt to consolidated shareholders’
equity ratio (the “Ratio of Consolidated Debt to Consolidated Shareholders’ Equity
Event of Default and Related Cross-Defaults”);




(vi) Section 9.1(b) of the Existing Credit Agreement due to the Consolidated
Shareholders’ Equity being lower than required as of March 31, 2009 and June 30,
2009 and thereafter and Section 10.1(e)(iii) of the Existing Credit Agreement due to
an event of default under the provision of each Existing Note Agreement requiring
maintenance of a minimum consolidated shareholders’ equity (the “Minimum
Consolidated Shareholders’ Equity Event of Default and Related Cross-Defaults”);




(vii) Section 10.1(e)(iii) of the Existing Credit Agreement due to an event of
default under the provision of each Existing Note Agreement requiring Borrower to
cause the Senior Notes to be rated as required thereby (the “Rating Event
Cross-Default”, and together with the Collateral Event of Default and Related
Cross-Defaults, the Outstanding Public Debt Repurchase Events of Default and Related
Cross-Defaults, the Senior Note Repurchase Events of Default, the Asset Coverage
Events of Default and Related Cross-Defaults, the Ratio of Consolidated Debt to
Consolidated Shareholders’ Equity Event of Default and Related Cross-Defaults, the
Minimum Consolidated Shareholders’ Equity Event of Default and Related
Cross-Defaults, and the Rating Event Cross-Default, and all other Defaults or Events
of Default that arise from or relate to the aforementioned Events of Default
(including, without limitation, any non-compliance with notice and/or cross-default
provisions relating thereto), prior to the Closing, collectively, the “Applicable
Events of Default”.




(b) Subject to the other terms and conditions of this Agreement, LC Issuer, the
Lenders, and Administrative Agent (acting at the direction of the Requisite Lenders)
hereby waive the Applicable Events of Default. This waiver is limited solely to the
Applicable Events of Default, and nothing contained in this Agreement shall (i) modify the
Loan Parties’ obligations to comply fully with all duties, terms, conditions, or covenants
contained in this Agreement and the other Loan Documents or (ii) be deemed to constitute a
waiver of any other rights or remedies any Lender, LC Issuer, or Administrative Agent may
have under this Agreement or any other Loan Documents or under Applicable Law with respect
to any matters. This is a one-time waiver, and the Lenders, LC Issuer, and Administrative
Agent shall have no obligation to amend, modify, or waive any provision of the Existing
Credit Agreement (other than as set forth in this Agreement) or any other Loan Document.
The provisions and agreements set forth in this Section 12.10 shall not establish a custom
or course of dealing or conduct between any Lender, LC Issuer, or Administrative Agent and
Borrower.




(c) For the avoidance of doubt, the Applicable Events of Default described in this
Section shall not include any subsequent Default or Event of Default that may arise on or
after the Closing under this Agreement.




12.11 Release.




(a) For and in consideration of the agreements contained in this Agreement, and other
good and valuable consideration, the receipt and sufficiency of all of which are hereby
acknowledged, Borrower, on behalf of each of the Loan Parties and its Consolidated
Subsidiaries, and to the extent that it is lawfully able to do so, on behalf of each of
its and their predecessors, successors, assigns, Subsidiaries, Affiliates, and agents, and
all of their respective past, present, and future officers, directors, trustees,
shareholders, employees, contractors, and attorneys, and the predecessors, heirs,
successors, and assigns of each of them (collectively referred to in this Section as the
“Releasors”) agrees that each of the Releasors does hereby jointly and severally fully
RELEASE, REMISE, ACQUIT, IRREVOCABLY WAIVE, and FOREVER DISCHARGE (collectively,
“Release”) each of Administrative Agent, each Lender, LC Issuer, and each of their
respective Related Parties (collectively, the “Released Parties”), from and with respect
to any and all Claims (as defined below).




As used in this Section the term “Claims” shall mean and include any and all, and all
manner of, action and actions, cause and causes of action, suits, disputes,
controversies, claims, debts, sums of money, offset rights, defenses to payment,
agreements, promises, notes, bonds, bills, covenants, losses, damages, judgments,
executions, and demands of whatever nature, known or unknown, whether in contract, in
tort or otherwise, at law or in equity, for money damages or dues, recovery of property,
or specific performance, or any other redress or recompense which have accrued, may have
been had, or may be now possessed by or on behalf of any one or more of the Releasors
against any one or more of the Released Parties for, upon, by reason of, on account of,
or arising from or out of, or by virtue of, any transaction, event or occurrence, duty or
obligation, indemnification, agreement, promise, warranty, covenant or representation,
breach of fiduciary duty, breach of any duty of fair dealing, breach of confidence,
breach of funding commitment, undue influence, duress, economic coercion, conflict of
interest, negligence, bad faith, malpractice, violations of federal or state securities
laws or the Racketeer Influenced and Corrupt Organizations Act, intentional or negligent
infliction of mental distress, tortious interference with contractual relations, tortious
interference with corporate governance or prospective business advantage, breach of
contract, deceptive trade practices, libel, slander, usury, conspiracy, wrongful
acceleration of any indebtedness, wrongful foreclosure or attempt to foreclose on any
collateral relating to any indebtedness, action or inaction, relationship or activity,
service rendered, matter, cause or thing, whatsoever, express or implied, transpiring,
entered into, created, or existing from the beginning of time to the date of the
execution of this Agreement, and shall include, but not be limited to, any and all Claims
in connection with, as a result of, by reason of, or in any way related to or arising
from, in each case prior to the date of this Agreement, the existence of any
relationships or communications by and between the Releasors and the Released Parties
with respect to the Existing Credit Agreement, this Agreement, and all agreements,
documents and instruments related thereto executed or dated on or as of a date prior to
the Agreement Date. For the avoidance of doubt, notwithstanding anything in this
Section, no Release is made herein (x) of any Claim with respect to any Released Party
other than solely in such Released Party’s capacity as Administrative Agent, LC Issuer,
or a Lender or as a Related Party to such Administrative Agent, LC Issuer, or a Lender or
(y) of any action and actions, cause and causes of action, suits, disputes,
controversies, claims, debts, sums of money, offset rights, defenses to payment,
agreements, promises, notes, bonds, bills, covenants, losses, damages, judgments,
executions, and demands of whatever nature arising on or after the date of this
Agreement.




(b) Borrower, on behalf of itself and each of the other Loan Parties, hereby
represents and warrants to the Released Parties that:




(i) such Loan Party has the full right, power, and authority to execute and
deliver the Release set forth in this Section 12.11 (or, in the case of a Loan Party
other than Borrower, any other Loan Document acknowledging and agreeing to the
release set forth in Section 12.11 of this Agreement) without the necessity of
obtaining the consent of any other party;




(ii) such Loan Party has received independent legal advice from attorneys of
its choice with respect to the advisability of granting the release provided herein,
and with respect to the advisability of executing this Agreement (or, in the case of
a Loan Party other than Borrower, the other Loan Documents to which such Loan Party
is a party) containing (or, in the case of any other Loan Document, acknowledging
and agreeing to) this Section;




(iii) such Loan Party has not relied upon any statements, representations, or
promises of any of the Released Parties in executing this Agreement (or, in the case
of a Loan Party other than Borrower, the other Loan Documents to which such Loan
Party is a party) containing (or, in the case of any other Loan Document,
acknowledging and agreeing to) this Section, or in granting the release provided
herein;




(iv) such Loan Party has not entered into any other agreements or
understandings relating to the Claims;




(e) the terms of this Section are contractual, not a mere recital, and are the result
of negotiation among all the parties; and




(f) this Section has been carefully read by, and the contents hereof are known and
understood by, and it is agreed to freely by, such Loan Party.



Borrower, on behalf of each of the Loan Parties, covenants and agrees that it and no other
Loan Party shall bring any claim, action, suit or proceeding regarding or related in any manner to
the matters released hereby, and Borrower further covenants and agrees that this Section is a bar
to any such claim, action, suit or proceeding.



All prior discussions and negotiations regarding the Claims have been and are merged and
integrated into, and are superseded by, this Section. Borrower, on behalf of each of the Loan
Parties, acknowledges that no representation or warranty of any kind or character has been made to
such Loan Party by any one or more of the Released Parties or any agent, representative or attorney
of the Released Parties to induce the execution of this Agreement containing this Section.
Borrower, on behalf of each Loan Party, understands, agrees and expressly assumes the risk of any
fact not recited, contained or embodied in this Section which may hereafter turn out to be other
than, different from, or contrary to, the facts now known to such Loan Party or believed by such
Loan Party to be true, and further agree that this Section shall not be subject to termination,
modification, or rescission, by reason of any such difference in facts.



12.12 Governing Law. The Loan Documents have been entered into pursuant to Sections
5-1401 and 5-1402 of the New York General Obligations Law, and the laws of the State of New York
and of the United States of America shall govern the rights and duties of the parties to the Loan
Documents and the validity, construction, enforcement, and interpretation of the Loan Documents.



12.13 Counterparts. This Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered by telecopy or other electronic
imaging means shall be deemed an original, but all of which counterparts together shall constitute
but one and the same instrument. A facsimile or electronic transmission of the signature page of
any party on any counterpart shall be effective as the signature page of the party executing such
counterpart and shall be deemed to constitute an original signature of such party to this Agreement
and shall be admissible into evidence for all purposes.



12.14 Entirety. The rights and Obligations of Borrower and its Consolidated
Subsidiaries, Lenders, and Administrative Agent shall be determined solely from written agreements,
documents, and instruments, and any prior oral agreements between such parties are superseded by
and merged into such writings. This Agreement (as amended in writing from time to time in
accordance with the terms hereof) and the other written Loan Documents executed by Borrower or any
of its Consolidated Subsidiaries, any Lender, and/or Administrative Agent, (together with all
commitment letters and fee letters only as they relate to the payment of fees after the Closing
Date) represent the final agreement between Borrower and its Consolidated Subsidiaries, Lenders,
and Administrative Agent, and may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements by such parties. There are no unwritten oral agreements between such
parties.



12.15 Construction. Administrative Agent, Borrower, and each Lender acknowledge that
each of them has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement and the other Loan Documents with its legal counsel and that
this Agreement and the other Loan Documents shall be construed as if jointly drafted by
Administrative Agent, the other Agents, Borrower, and each Lender.



12.16 Discharge Only Upon Payment in Full. The obligations of Borrower and each
Consolidated Subsidiary under the Loan Documents shall remain in full force and effect until
payment in full of the Loans and of all interest, fees, and other amounts of the Obligations then
due and owing (and termination or expiration of all outstanding Existing LCs, if any, unless
Administrative Agent shall otherwise consent with the approval of Requisite Lenders), except that
Sections 2.2(h), SECTION 4, SECTION 11 and SECTION 12, and any other provisions under the Loan
Documents expressly intended to survive by the terms hereof or by the terms of the applicable Loan
Documents, shall survive such termination.



12.17 Payments Set Aside. To the extent that any payment by or on behalf of Borrower
is made to Administrative Agent or any Lender, or Administrative Agent or any Lender exercises its
right of set-off, and such payment or the proceeds of such set-off or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any receivership, liquidation, or bankruptcy proceeding or otherwise, then (a) to
the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to Administrative Agent
upon demand its applicable share of any amount so recovered from or repaid by Administrative Agent,
plus interest thereon from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in effect.



12.18 USA Patriot Act. Each Lender that is subject to the Act (as hereinafter
defined) and Administrative Agent (for itself and not on behalf of any Lender) hereby notifies
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record
information that identifies Borrower, which information includes the name and address of Borrower
and other information that will allow such Lender or Administrative Agent, as applicable, to
identify Borrower in accordance with the Act. Borrower shall, promptly following a request for
information by Administrative Agent or any Lender, provide all documentation and other information
that Administrative Agent or such Lender reasonably requests in order to comply with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the Act.




12.19 INTERCREDITOR AGREEMENT.




(A) EACH LENDER (I) CONSENTS TO THE TERMS OF THE INTERCREDITOR AGREEMENT AND AGREES
TO BE BOUND THEREBY, AND (II) AUTHORIZES AND INSTRUCTS ADMINISTRATIVE AGENT TO (A) ENTER
INTO THE INTERCREDITOR AGREEMENT ON BEHALF OF THE LENDERS, AND (B) TAKE ALL ACTIONS AND
EXECUTE ALL DOCUMENTS REQUIRED OR DEEMED ADVISABLE BY ADMINISTRATIVE AGENT IN CONNECTION
THEREWITH. THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL BE BINDING ON ALL LENDERS, AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.




(B) SUBJECT TO SECTION 12.5, THE LENDERS AUTHORIZE ADMINISTRATIVE AGENT TO DIRECT THE
COLLATERAL AGENT TO TAKE ACTION (OR REFRAIN FROM TAKING ACTION) UNDER THE COLLATERAL
DOCUMENTS AND TO INSTRUCT THE COLLATERAL AGENT TO TAKE (OR REFRAIN FROM TAKING) ANY AND
ALL ACTIONS THAT ADMINISTRATIVE AGENT IS AUTHORIZED TO TAKE PURSUANT TO THE CREDIT
AGREEMENT WITH RESPECT TO COLLATERAL AND MATTERS INCIDENTAL THERETO.




(C) NOTWITHSTANDING ANYTHING HEREIN OR IN ANY LOAN DOCUMENT TO THE CONTRARY, THE
LIENS AND SECURITY INTERESTS SECURING THE OBLIGATIONS AND THE EXERCISE OF ANY RIGHT OR
REMEDY BY ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT PURSUANT TO THE LOAN DOCUMENTS WILL
BE SUBJECT TO THE PROVISIONS OF THE INTERCREDITOR AGREEMENT. PURSUANT TO THE TERMS OF THE
INTERCREDITOR AGREEMENT, IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THE
INTERCREDITOR AGREEMENT AND ANY OF THE OTHER LOAN DOCUMENTS, THE PROVISIONS OF THE
INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.



REMAINDER OF PAGE INTENTIONALLY BLANK.




SIGNATURE PAGES FOLLOWSignature Page to that certain Amended and Restated Credit Agreement
dated as of the date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and certain other Agents and Lenders named therein.



	 
	ALLIED CAPITAL CORPORATION,

as Borrower

By: /s/Penni F. Roll

	 

	Penni F. Roll, Chief Financial Officer







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Signature Page to that certain Amended and Restated Credit Agreement dated as of the date first
stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




BANK OF AMERICA, N.A., as Administrative
Agent, LC Issuer, and a Lender



	 	 	 
	By:
	 	/s/ Tyler D. Levings

	 	 	 

	 	 	Name: Tyler D. Levings








	 	 	Title: Senior Vice President





Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




BANK OF AMERICA, N.A., as successor by merger to
Merrill Lynch Bank USA, as a Lender




By: /s/ Tyler D. Levings

Name: Tyler D. Levings

Title: Senior Vice President




Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as



Administrative Agent, and certain other Agents and Lenders named therein.




	 	 	 	BANK
LEUMI USA, as a Lender





	 	 	 
	By:

	 	/s/ John Koenigsberg
	
 
	 	 
	Name:

Title:

	 	John Koenigsberg

Senior Vice President
	By:

	 	/s/ Iris Steinhardt
	
 
	 	 
	Name:

Title:

	 	Iris Steinhardt

Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




BRANCH BANKING AND TRUST COMPANY, as a Lender



	 	 	 
	By:

	 	/s/ Richard L. Keever, Jr.
	
 
	 	 
	Name:

Title:

	 	Richard L. Keever, Jr.

Senior Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




CHEVY CHASE BANK, a division of Capital One, N.A., as
a Lender



	 	 	 
	By:

	 	/s/ Richard L. Amador
	
 
	 	 
	Name:

Title:

	 	Richard L. Amador

Senior Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	CITIBANK N.A., as a Lender

	By:

	 	/s/ Anthony V. Pantina
	
 
	 	 
	Name:

Title:

	 	Anthony V. Pantina

Director






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




DEUTSCHE BANK AG NEW YORK BRANCH,


as a Lender



	 	 	 
	By:

	 	/s/ Mark B. Cohen
	
 
	 	 
	Name:

Title:

	 	Mark B. Cohen

Managing Director
	By:

	 	/s/ Keith C. Braun
	
 
	 	 
	Name:

Title:

	 	Keith C. Braun

Managing Director






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	FIRSTRUST BANK, as a Lender

	By:

	 	/s/ John Hollingsworth
	
 
	 	 
	Name:

Title:

	 	John Hollingsworth

Senior Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	ING CAPITAL LLC, as a Lender

	By:

	 	/s/ Patrick Frisch, CFA
	
 
	 	 
	Name:

Title:

	 	Patrick Frisch, CFA

Director






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




MANUFACTURERS AND TRADERS TRUST COMPANY, as a Lender



	 	 	 
	By:

	 	/s/ Alan J. Kopolow
	
 
	 	 
	Name:

Title:

	 	Alan J. Kopolow

Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.




	 	 	 	MORGAN STANLEY BANK, as a Lender





	 	 	 
	By:

	 	/s/ Todd Vannucci
	
 
	 	 
	Name:

Title:

	 	Todd Vannucci

Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	PNC BANK, NATIONAL ASSOCIATION, as a Lender

	By:

	 	/s/ Joanne Hampson
	
 
	 	 
	Name:

Title:

	 	Joanne Hampson

Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	SUNTRUST BANK, as a Lender

	By:

	 	/s/ Janet R. Naifeh
	
 
	 	 
	Name:

Title:

	 	Janet R. Naifeh

Senior Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	TD BANK, N.A., as a Lender

	By:

	 	/s/ Robyn Zeller
	
 
	 	 
	Name:

Title:

	 	Robyn Zeller

Senior Vice President






Signature Page to that certain Amended and Restated Credit Agreement dated as of the date
first stated above, among Allied Capital Corporation, as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.



	 	 	 
	UNION BANK, N.A., as a Lender

	By:

	 	/s/ T. Kevin Powells
	
 
	 	 
	Name:

Title:

	 	T. Kevin Powells

Vice President







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