Exhibit 10.1


 


Execution


 


 


AMENDMENT NO. 1


 


AMENDMENT NO. 1
dated as of May 17, 2010 between ARES CAPITAL CORPORATION (the “Borrower”),
the “Lenders” party to the Credit Agreement referred to below, the Assuming
Lenders listed on the signature pages hereto (the “Assuming Lenders”)
and JPMORGAN CHASE BANK, N.A., in its capacity as Administrative Agent (the “Administrative
Agent”) under the Credit Agreement referred to below.


 


The Borrower, the “Lenders”
and the Administrative Agent, are parties to a Senior Secured Revolving Credit
Agreement dated as of December 28, 2005 and amended and restated as of January 22,
2010 (as modified and supplemented and in effect from time to time, the “Credit
Agreement”), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by
said lenders to the Borrower in an aggregate principal or face amount not
exceeding $715,000,000.


 


The Borrower and
the Lenders wish now to amend the Credit Agreement in certain respects, and
accordingly, the parties hereto hereby agree as follows:


 


Section 1.  Definitions.  Except as otherwise defined in this Amendment
No. 1, terms defined in the Credit Agreement are used herein as defined
therein.


 


Section 2.  Amendments.  Subject to the satisfaction of the conditions
precedent specified in Section 6 below, but effective as of the date
hereof, the Credit Agreement shall be amended as follows, and aggregate
commitments thereunder increased to $740,000,000:


 


2.01.  References Generally.  References in the Credit Agreement (including
references to the Credit Agreement as amended hereby) to “this Agreement” (and
indirect references such as “hereunder”, “hereby”, “herein” and “hereof”) shall
be deemed to be references to the Credit Agreement as amended hereby.


 


2.02.  Amended Language.  The Credit Agreement is hereby amended to
delete the bold, stricken text (indicated textually in the same manner as the
following example: stricken text)
and to add the bold, double-underlined text (indicated textually in the same
manner as the following example: double-underlined
text) as set forth in the pages of the Credit Agreement
attached as Exhibit A hereto.


 


Section 3.  Commitments


 


3.01.     Commitments.  Subject to satisfaction of the conditions precedent
specified in Section 6 below and effective as of the Amendment No. 1
Effective Date:


 


(a)        each Lender executing a counterpart to
this Amendment No. 1 as a “Multicurrency Lender” hereby agrees that it
shall become a “Multicurrency Lender” under the Credit Agreement and that its
Commitment will be modified to become a Multicurrency Commitment in the amount
set forth opposite its name listed in Schedule I attached hereto;


 


Amendment No. 1


 

















 


(b)        each of the Assuming Lenders listed
under the heading “Assuming Multicurrency Lenders” on the signature pages hereto
hereby agrees that it shall become a “Multicurrency Lender” under the Credit
Agreement and that it makes a Multicurrency Commitment in the amount set forth
opposite its name listed in Schedule I attached hereto; and


 


(c)        each of the Assuming Lenders listed
under the heading “Assuming Dollar Lenders” on the signature pages hereto
hereby agree that each such Assuming Lender shall become a “Dollar Lender”
under the Credit Agreement and that it makes a Dollar Commitment in the amount
set forth opposite its name listed in Schedule I attached hereto.


 


3.02.     Reallocation of Outstanding Loans.   On the Amendment No. 1 Effective Date, (a) the
outstanding Loans of the Lenders shall be deemed to be prepaid in full and (b) the
Borrower shall be deemed to have simultaneously borrowed new Multicurrency
Loans from the Multicurrency Lenders and new Dollar Loans from the Dollar
Lenders, in an aggregate amount equal to such prepayment so that, after giving
effect, thereto, the Multicurrency Loans are held ratably by the Multicurrency
Lenders in accordance with their respective Multicurrency Commitments and the
Dollar Loans are held ratably by the Dollar Lenders in accordance with their
respective Dollar Commitments.  The
Borrower shall pay to the Lenders the amounts, if any, payable under Section 2.14
of the Credit Agreement as a result of any such prepayment. The Required
Lenders hereby waive the applicable notice requirements required under the
Credit Agreement in connection with the prepayments and borrowing under this Section 3.02.


 


For the purpose of
the borrowings to be made on the Amendment No. 1 Effective Date under this
Section 3.02, the Lenders hereby agree that the Borrower may elect
Interest Periods (the “Initial Amendment No. 1 Interest Periods”)
for such borrowings that have a duration equal to the remaining terms of the
existing Interest Periods with respect to the Loans outstanding immediately
prior to the Amendment No. 1 Effective Date (the “Existing Interest
Periods”), such that the Interest Payment Dates for such Initial Amendment No. 1
Interest Periods shall occur on the corresponding dates under the Existing
Interest Periods and that the respective LIBO Rates for such borrowings shall
be the same as the corresponding outstanding LIBO Rates. Notwithstanding the
provisions of the foregoing sentence, the Borrower acknowledges and agrees
that:


 


(i)         the
LIBO Rate for any Initial Amendment No. 1 Interest Period that is less
than one month in duration shall be the then current LIBO Rate for a one month
Interest Period; and


 


(ii)        all
accrued interest on the principal amount of the Loans prepaid under this Section 3.02
shall be paid on the Amendment No. 1 Effective Date.


 


Section 4.  Representations and Warranties.  The Borrower represents and warrants to the
Lenders and the Administrative Agent that (a) the representations and
warranties set forth in Article III of the Credit Agreement, and in each
of the other Loan Documents, are true and correct in all material respects on
the date hereof as if made on and as of the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, such representation or warranty shall be true and correct in all
material respects as of such specific date), and as if each reference in said Article III
to “this Agreement” included reference to this Amendment No. 1 and (b) no
Default or Event of Default has occurred and is continuing.


 


Section 5.  Confirmation of Security Documents.  The Borrower, by its execution 


 


Amendment
No. 1


 

















 


of this Amendment No. 1, for and on behalf of
itself and each Obligor, (a) hereby consents to this Amendment No. 1,
(b) confirms and ratifies that all of its obligations and the security
interests granted by it under each of the Security Documents to which it is a
party shall continue in full force and effect in favor of the Collateral Agent
for the benefit of the Secured Parties (as defined therein) with respect to the
Credit Agreement as amended hereby and (c) confirms that all references in
such Security Documents to the “Credit Agreement” (or words of similar import)
refer to the Credit Agreement as amended hereby without impairing any such
obligations or security interests in any respect.


 


Section 6.  Conditions Precedent.  The amendments to the Credit Agreement set
forth in Section 2 and the adjustments to the Commitments set forth in Section 3
and Schedule I attached hereto shall become effective as of the date hereof
(the “Amendment No. 1 Effective Date”) upon which each of the
following conditions precedent shall be satisfied:


 


(a)        Execution.  The Administrative Agent shall have received
counterparts of this Amendment No. 1 executed by the Borrower, the Issuing
Bank, the Collateral Agent, each of the Lenders party to the Credit Agreement
and each Assuming Lender.


 


(b)        Fees and Expenses.  The Administrative Agent shall have received
evidence of the payment by the Borrower of all fees payable to the Lenders on
the Amendment No. 1 Effective Date that the Borrower has agreed to pay in
connection with this Amendment No. 1. The Borrower shall have paid all
reasonable expenses (including the legal fees of Milbank, Tweed, Hadley &
McCloy LLP) for which invoices have been presented.


 


(c)        Corporate Matters.  The Administrative Agent shall have received
such documents and certificates as the Administrative Agent may reasonably
request relating to the organization, existence and good standing of the
Borrower and the authorization of the transactions contemplated hereunder, all
in form and substance reasonably satisfactory to the Administrative Agent.


 


(d)        Letter of Credit Reimbursement
Obligations.  There shall be no
outstanding reimbursement obligations with respect to LC Disbursements.


 


(e)        Officer’s Certificate.  The Administrative Agent shall have received
a certificate, dated the date hereof and signed by the President, Vice
President or a Financial Officer of the Borrower, confirming compliance with
the conditions set forth in Section 4.02 of the Credit Agreement.


 


Section 7.  Miscellaneous.  Except as herein provided, the Credit
Agreement and the Guarantee and Security Agreement shall remain unchanged and
in full force and effect.  This Amendment
No.1 shall constitute a “Loan Document” for all purposes of the Credit
Agreement and the other Loan Documents. This Amendment No. 1 may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same amendatory instrument and any of the parties hereto
may execute this Amendment No. 1 by signing any such counterpart.  This Amendment No. 1 shall be governed
by, and construed in accordance with, the law of the State of New York.


 


Amendment No. 1


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment No. 1 to the Credit Agreement to
be duly executed and delivered as of the day and year first above written.


 


	
   

  	
  ARES CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Richard S. Davis

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Richard S. Davis

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
					



 


Amendment No. 1


 

















 


	
   

  	
  ADMINISTRATIVE AGENT

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as
  Administrative Agent, Collateral Agent and Issuing Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Sangeeta Mahadevan

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Sangeeta Mahadevan

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


Amendment No. 1


 

















 


	
   

  	
  LENDERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MULTICURRENCY LENDERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as a
  Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sangeeta Mahadevan

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Sangeeta Mahadevan

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert S. Ashcom

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert S. Ashcom

  
	
   

  	
   

  	
  Title: 

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MORGAN STANLEY
  BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ryan Vetsch

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Ryan Vetsch

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG
  NEW YORK BRANCH,

  
	
   

  	
  as a
  Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John McGill

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  John McGill

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Campites

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Michael Campites

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA,
  N.A.,

  
	
   

  	
  as a Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Chris Choi

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Chris Choi

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
					



 


Amendment No. 1


 

















 


	
   

  	
  UBS LOAN FINANCE
  LLC,

  
	
   

  	
  as a Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irja R. Otsa

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Irja R. Otsa

  
	
   

  	
   

  	
  Title:

  	
  Associate Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ April Varner-Nanton

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  April Varner-Nantion

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BANK OF
  MONTREAL,

  
	
   

  	
  as a Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Catherine Grycz

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Catherine Grycz

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BRANCH BANKING
  AND TRUST COMPANY,

  
	
   

  	
  as a Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steve Whitcomb

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Steve Whitcomb

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CITY NATIONAL
  BANK,

  
	
   

  	
  as a Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Aaron Cohen

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Aaron Cohen

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  STATE BANK OF
  INDIA,

  
	
   

  	
  as a Multicurrency Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Prabodh Parikh

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Prabodh Parikh

  
	
   

  	
   

  	
  Title:

  	
  Vice President & Head (Credit)

  
					



 


Amendment
No. 1


 

















 


	
   

  	
  ASSUMING DOLLAR
  LENDERS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CHEVY CHASE BANK,

  
	
   

  	
  a division of Capital One, N.A.,

  
	
   

  	
  as an Assuming
  Lender and a Dollar Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard L. Amador

  	
   

  
	
   

  	
   

  	
  Name: 

  	
  Richard L. Amador

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  
					



 


Amendment No. 1


 
















 


ExecutionExhibit A to Amendment No. 1


 


PPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPP


 


 


SENIOR SECURED
REVOLVING CREDIT AGREEMENT


 


dated as of


 


 


December 28,
2005


 


and amended and restated as of


 


January 22, 2010


 


between


 


ARES CAPITAL CORPORATION


 


The LENDERS Party Hereto


 


and


 


JPMORGAN CHASE BANK, N.A.


as Administrative Agent


 


 


BANK OF AMERICA, N.A.


SUNTRUST BANK,


as Syndication Agents


 


 


$690,000,000


$740,000,000


 






 


 


JPMORGAN SECURITIES INC.


BANC OF AMERICA
SECURITIES LLC


SUNTRUST ROBINSON
HUMPHREY, INC.


as Joint Bookrunners and
Joint Lead Arrangers


 


 


 


PPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPPP


 


(i)


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01. Defined Terms

  	
   

  	
  1

  
	
  SECTION 1.02. Classification
  of Loans and Borrowings

  	
   

  	
  30

  
	
  SECTION 1.03. Terms Generally

  	
   

  	
  30

  
	
  SECTION 1.04. Accounting
  Terms; GAAP

  	
  30

  	
  31

  
	
  SECTION 1.06. Currencies;
  Currency Equivalents

  	
   

  	
  31

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  32

  	
  33

  
	
   

  	
   

  	
   

  
	
  THE CREDITS

  	
  32

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01. The Commitments

  	
  32

  	
  33

  
	
  SECTION 2.02. Loans and
  Borrowings.

  	
   

  	
  33

  
	
  SECTION 2.03. Requests for
  Borrowings.

  	
   

  	
  34

  
	
  SECTION 2.04. Letters of
  Credit.

  	
   

  	
  35

  
	
  SECTION 2.05. Funding of
  Obligations.

  	
   

  	
   

  
	
  SECTION 2.06. Interest
  Elections.

  	
   

  	
  40

  
	
  SECTION 2.07. Termination,
  Reduction or Increase of the Commitments.

  	
   

  	
  42

  
	
  SECTION 2.08. Repayment of
  Loans; Evidence of Debt.

  	
   

  	
  45

  
	
  SECTION 2.09. Prepayment of
  Loans.

  	
   

  	
  46

  
	
  SECTION 2.10. Fees.

  	
   

  	
  48

  
	
  SECTION 2.11. Interest.

  	
   

  	
  49

  
	
  SECTION 2.12. Alternate Rate
  of Interest

  	
   

  	
  50

  
	
  SECTION 2.13. Increased Costs.

  	
   

  	
  51

  
	
  SECTION 2.14. Break Funding
  Payments

  	
   

  	
  52

  
	
  SECTION 2.15. Taxes.

  	
   

  	
  53

  
	
  SECTION 2.16. Payments
  Generally; Pro Rata Treatment; Sharing of Set-offs.

  	
   

  	
  56

  
	
  SECTION 2.17. Defaulting
  Lenders.

  	
   

  	
  58

  
	
  SECTION 2.18. Mitigation
  Obligations; Replacement of Lenders.

  	
   

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  61

  
	
   

  	
   

  	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  61

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01. Organization;
  Powers

  	
   

  	
  61

  
	
  SECTION 3.02. Authorization;
  Enforceability

  	
   

  	
  61

  
	
  SECTION 3.03. Governmental
  Approvals; No Conflicts

  	
  61

  	
  62

  
	
  SECTION 3.04. Financial
  Condition; No Material Adverse Change.

  	
   

  	
  62

  



 


Amendment No. 1


 

















 


	
  SECTION 3.05. Litigation.

  	
   

  	
  63

  
	
  SECTION 3.06. Compliance with
  Laws and Agreements

  	
   

  	
  63

  
	
  SECTION 3.07. Reserved

  	
   

  	
  63

  
	
  SECTION 3.08. Taxes

  	
   

  	
  63

  
	
  SECTION 3.09. ERISA

  	
   

  	
  63

  
	
  SECTION 3.10. Disclosure

  	
  63

  	
  64

  
	
  SECTION 3.11. Investment
  Company Act; Margin Regulations

  	
   

  	
  64

  
	
  SECTION 3.12. Material
  Agreements and Liens.

  	
   

  	
  64

  
	
  SECTION 3.13. Subsidiaries and
  Investments.

  	
   

  	
  65

  
	
  SECTION 3.14. Properties

  	
   

  	
  65

  
	
  SECTION 3.15. Affiliate
  Agreements

  	
   

  	
  66

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  66

  
	
   

  	
   

  	
   

  
	
  CONDITIONS

  	
   

  	
  66

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01. Restatement
  Effective Date

  	
   

  	
  66

  
	
  SECTION 4.02. Each Credit
  Event

  	
   

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  69

  	
  68

  
	
   

  	
   

  	
   

  
	
  AFFIRMATIVE COVENANTS

  	
  69

  	
  68

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01. Financial
  Statements and Other Information

  	
   

  	
  69

  
	
  SECTION 5.02. Notices of
  Material Events

  	
  71

  	
  70

  
	
  SECTION 5.03. Existence;
  Conduct of Business

  	
   

  	
  71

  
	
  SECTION 5.04. Payment of
  Obligations

  	
   

  	
  71

  
	
  SECTION 5.05. Maintenance of
  Properties; Insurance

  	
   

  	
  71

  
	
  SECTION 5.06. Books and
  Records; Inspection and Audit Rights.

  	
  72

  	
  71

  
	
  SECTION 5.07. Compliance with
  Laws

  	
   

  	
  72

  
	
  SECTION 5.08. Certain
  Obligations Respecting Subsidiaries; Further Assurances.

  	
  73

  	
  72

  
	
  SECTION 5.09. Use of Proceeds

  	
  75

  	
  74

  
	
  SECTION 5.10. Status of RIC
  and BDC

  	
   

  	
  75

  
	
  SECTION 5.11. Investment and
  Valuation Policies

  	
   

  	
  75

  
	
  SECTION 5.12. Portfolio
  Valuation and Diversification, Etc

  	
   

  	
  75

  
	
  SECTION 5.13. Calculation of
  Borrowing Base

  	
  78

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  85

  
	
   

  	
   

  	
   

  
	
  NEGATIVE COVENANTS

  	
   

  	
  85

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01. Indebtedness

  	
   

  	
  85

  
	
  SECTION 6.02. Liens

  	
   

  	
  86

  
	
  SECTION 6.03. Fundamental
  Changes

  	
   

  	
  87

  
	
  SECTION 6.04. Investments

  	
   

  	
  88

  
	
  SECTION 6.05. Restricted
  Payments

  	
   

  	
  89

  
	
  SECTION 6.06. Certain
  Restrictions on Subsidiaries

  	
   

  	
  90

  



 


Amendment No. 1


 

















 


	
  SECTION 6.07. Certain
  Financial Covenants.

  	
   

  	
  90

  
	
  SECTION 6.08. Transactions
  with Affiliates

  	
   

  	
  91

  
	
  SECTION 6.09. Lines of
  Business

  	
   

  	
  92

  
	
  SECTION 6.10. No Further
  Negative Pledge

  	
   

  	
  92

  
	
  SECTION 6.11. Modifications of
  Certain Documents

  	
   

  	
  92

  
	
  SECTION 6.12. Permitted
  Indebtedness

  	
   

  	
  92

  
	
  SECTION 6.13. Specified Debt

  	
   

  	
  92

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  	
  93

  
	
   

  	
   

  	
   

  
	
  EVENTS OF DEFAULT

  	
   

  	
  93

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  97

  
	
   

  	
   

  	
   

  
	
  THE ADMINISTRATIVE AGENT

  	
   

  	
  97

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  100

  
	
   

  	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  	
  100

  
	
   

  	
   

  	
   

  
	
  SECTION 9.01. Notices;
  Electronic Communications

  	
   

  	
  100

  
	
  SECTION 9.02. Waivers;
  Amendments.

  	
  101

  	
  102

  
	
  SECTION 9.03. Expenses;
  Indemnity; Damage Waiver.

  	
   

  	
  104

  
	
  SECTION 9.04. Successors and
  Assigns.

  	
  105

  	
  106

  
	
  SECTION 9.05. Survival

  	
   

  	
  109

  
	
  SECTION 9.06. Counterparts;
  Integration; Effectiveness; Electronic Execution.

  	
  109

  	
  110

  
	
  SECTION 9.07. Severability

  	
   

  	
  110

  
	
  SECTION 9.08. Right of Setoff

  	
   

  	
  110

  
	
  SECTION 9.09. Governing Law;
  Jurisdiction; Etc.

  	
  110

  	
  111

  
	
  SECTION 9.10. WAIVER OF JURY
  TRIAL

  	
   

  	
  111

  
	
  SECTION 9.11. Judgment
  Currency

  	
  111

  	
  112

  
	
  SECTION 9.12. Headings

  	
   

  	
  112

  
	
  SECTION 9.13. Treatment of
  Certain Information; Confidentiality.

  	
  112

  	
  113

  
	
  SECTION 9.14. USA PATRIOT Act

  	
  113

  	
  114

  
	
  SECTION 9.15. First Amendment

  	
  113

  	
  114

  
	
  SECTION 9.16. Amendment to
  Security Agreement

  	
  113

  	
  114

  
	
  SECTION 9.17. Amendment to
  Intercreditor Agreement

  	
   

  	
  113

  



 


Amendment No. 1


 

















 


	
  SCHEDULE I

  	
  –

  	
  Commitments

  
	
  SCHEDULE II

  	
  –

  	
  Material Agreements and Liens

  
	
  SCHEDULE III

  	
  –

  	
  Litigation

  
	
  SCHEDULE IV

  	
  –

  	
  Subsidiaries and Investments

  
	
  SCHEDULE V

  	
  –

  	
  Transactions with Affiliates

  
	
  SCHEDULE VI

  	
  –

  	
  Moody’s Industry Classification Group List

  
	
  SCHEDULE VII

  	
  –

  	
  Approved Dealers and Approved Pricing Services

  
	
  SCHEDULE VIII

  	
  –

  	
  Mandatory Cost Schedule

  



 


	
  EXHIBIT A

  	
  -

  	
  Form of Assignment and Assumption

  
	
  EXHIBIT B

  	
  -

  	
  Form of Guarantee and Security Agreement
  Confirmation

  
	
  EXHIBIT C

  	
  -

  	
  Form of Opinion of Maryland Counsel to the
  Borrower

  
	
  EXHIBIT D

  	
  -

  	
  Form of Opinion of Counsel to JPMCB

  
	
  EXHIBIT E

  	
  -

  	
  Form of Borrowing Base Certificate

  
	
  EXHIBIT F

  	
  -

  	
  Form of Borrowing Request

  
	
  EXHIBIT G

  	
  -

  	
  Form of Interest Election Request

  
	
  EXHIBIT H

  	
  -

  	
  Form of First Amendment to Intercreditor
  Agreement

  



 


Amendment No. 1


 
















 


SENIOR SECURED REVOLVING
CREDIT AGREEMENT dated as of December 28, 2005 and amended and restated as
of January 22, 2010 (this “Agreement”), between ARES CAPITAL
CORPORATION, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A. as
Administrative Agent.


 


Ares Capital Corporation,
the “Lenders” party thereto (the “Existing Lenders”), and the
Administrative Agent, are parties to a Senior Secured Revolving Credit
Agreement dated as of December 28, 2005 (as amended through the
Restatement Effective Date, the “Original Agreement”).


 


Each of the Existing
Lenders not a party hereto (each, a “Retiring Lender”) will cease to be
a “Lender” under the Original Agreement as of the Restatement Effective
Date.  Each (a) Existing Lender
party hereto (each, a “Continuing Lender”) and each (b) lender
party hereto (other than Continuing Lenders) (each, a “New Lender”)
shall become or continue as a “Lender” under the Original Agreement as amended
and restated by this Agreement.


 


The Borrower has
requested that the Continuing Lenders and the New Lenders provide the credit
facilities described herein under this Agreement which shall amend and restate
the Original Agreement on the terms specified herein to, inter alia, extend
credit to the Borrower in an initial aggregate principal or face amount not
exceeding $690,000,000740,000,000
at any one time outstanding.  The
Continuing Lenders and the New Lenders are prepared to amend and restate the
Original Agreement upon the terms and conditions hereof, and, accordingly, the
parties hereto agree as follows:


 


 


ARTICLE
I


 


DEFINITIONS


 


SECTION 1.01.  Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”, when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
constituting such Borrowing, are denominated in Dollars and bearing interest at
a rate determined by reference to the Alternate Base Rate.


 


“Acquisition”
means the acquisition by the Borrower of 100% of the outstanding capital stock
of Allied as announced on October 26, 2009.


 


“Additional Debt
Amount” means, as of any date, the greater of (a) $25,000,000 and (b) an
amount equal to 5% of Shareholder’s Equity less the outstanding amount of
Allied 2011/12 Notes as of such date.


 

















 


“Adjusted Borrowing
Base” means: (a) the lesser of 
the (i) Borrowing Base and (ii) Relevant Available Funds minus
(b) the aggregate amount of Cash and Cash Equivalents included in the
Portfolio Investments (provided that cash cover for outstanding Letters of
Credit shall not be treated as a portion of the Portfolio Investments).


 


“Adjusted Covered Debt
Amount” means the Covered Debt Amount minus the aggregate amount of
Cash and Cash Equivalents included in the Portfolio Investments (provided that
cash cover for outstanding Letters of Credit shall not be treated as a portion
of the Portfolio Investments).


 


“Adjusted LIBO Rate”
means, for the Interest Period for any Eurocurrency Borrowing, an interest rate
per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the
LIBO Rate for such Interest Period multiplied by (b) the Statutory
Reserve Rate for such Interest Period.


 


“Administrative Agent”
means JPMCB, in its capacity as administrative agent for the Lenders hereunder.


 


“Administrative Agent’s
Account” means, for each Currency, an account in respect of such Currency
designated by the Administrative Agent in a notice to the Borrower and the
Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


“Advance Rate” has
the meaning assigned to such term in Section 5.13.


 


“Affiliate” means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified. 
Anything herein to the contrary notwithstanding, the term “Affiliate”
shall not include any Person that constitutes an Investment held by any Obligor
in the ordinary course of business.


 


“Affiliate Agreements”
means collectively, (a) the Investment Advisory and Management Agreement
dated as of September 30, 2004 between the Borrower and Ares Capital
Management, (b) the Administration Agreement dated as of September 30,
2004, between the Borrower and Ares Technical Administration LLC, (c) the
Trademark License Agreement dated as of September 30, 2004 between Ares
Capital Corporation and Ares Management LLC and (d) other than for
purposes of Section 6.11, the CP Facility Documents and the Custodian
Agreement.


 


“Agreed Foreign
Currency” means, at any time, any of Canadian Dollars, English Pounds
Sterling, Euros and, with the agreement of each Multicurrency Lender, any other Foreign
Currency, so long as, in respect of any such specified Foreign Currency or
other Foreign Currency, at such time (a) such Foreign Currency is dealt
with in the 


 

















 


London (or, in the case of  English Pounds Sterling, Paris) interbank
deposit market, (b) such Foreign Currency is freely transferable and
convertible into Dollars in the London foreign exchange market and (c) no
central bank or other governmental authorization in the country of issue of
such Foreign Currency (including, in the case of the Euro, any authorization by
the European Central Bank) is required to permit use of such Foreign Currency
by any Multicurrency
Lender for making any Loan hereunder and/or to permit the Borrower to borrow
and repay the principal thereof and to pay the interest thereon, unless such
authorization has been obtained and is in full force and effect.


 


“Allied” means
Allied Capital Corporation, a Maryland corporation.


 


“Allied 2011/12 Notes”
means, collectively (i) Allied’s $400,000,000 6.625% Notes due July 15,
2011 issued pursuant to that Indenture, dated as of June 16, 2006, by and
between Allied and The Bank of New York (the “Indenture”), as amended by
the First Supplemental Indenture, dated as of July 25, 2006 and (ii) Allied’s
$250,000,000 6.00% Notes due April 1, 2012 issued pursuant to the
Indenture as amended by the Second Supplemental Indenture, dated as of December 8,
2008 and, in each case, without giving effect to any modification, amendment,
increase, replacement or refinancing of such Indebtedness after the Acquisition
(other than any supplement entered into to give effect to the assumption of
such Indebtedness by the Borrower or its Subsidiaries).


 


“Allied 2047 Notes”
means Allied’s $200,000,000 6.875% Notes due April 15, 2047 issued
pursuant to the Indenture as amended by the Third Supplemental Indenture, dated
as of March 28, 2007, without giving effect to any modification,
amendment, increase, replacement or refinancing of such Indebtedness after the
Acquisition (other than any supplement entered into to give effect to the
assumption of such Indebtedness by the Borrower or its Subsidiaries), as reported
on the Borrower’s balance sheet.


 


“Allied Excepted
Property” means any property of Allied or any of its subsidiaries at the
time of the Acquisition that secures the Allied Secured Indebtedness; provided
that, concurrently with (or prior to) the Acquisition, such property is
transferred to a Special Acquisition Subsidiary.


 


“Allied Secured
Indebtedness” means up to $250,000,000 of secured Indebtedness of Allied or
any of its subsidiaries and any replacement or refinancing thereof; provided
that, concurrently with (or prior to) the Acquisition, (a) such
Indebtedness is assumed by a Special Acquisition Subsidiary and (b) the
outstanding amount of such Indebtedness is not increased without the consent of
the Required Lenders.


 


“Alternate Base Rate”
means, for any day, a rate per annum equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Federal Funds Effective Rate for
such day plus 1/2 of 1% and (c) the rate per annum equal to 1% plus
the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or
substitute page of 


 

















 


such service, or any successor to or substitute for
such service, providing rate quotations comparable to those currently provided
on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to Dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, on such day (or if such day is not a Business
Day, the immediately preceding Business Day), for Dollar deposits with a term
of one month.  Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds
Effective Rate or the rate appearing on Reuters Screen LIBOR01 Page (or
successor or substitute therefor) as set forth above shall be effective from
and including the effective date of such change in the Prime Rate, the Federal
Funds Effective Rate or such rate appearing on Reuters Screen LIBOR01 Page (or
successor or substitute therefor), respectively.


 


“Applicable Percentage”
means, with respect to any Lender, the percentage of the total Commitments
represented by such Lender’s Commitment; provided that, prior to the Step-Up
Date,Dollar Percentage” means, with
respect to any Dollar Lender’s
Applicable Percentage shall equal,
the percentage of the total InitialDollar Commitments represented by such Dollar Lender’s InitialDollar Commitment.  If the Dollar Commitments have terminated or expired,
the Applicable Dollar Percentages
shall be determined based upon the Dollar
Commitments most recently in effect, giving effect to any
assignments.


 


“Applicable
Margin” means, for any day, with respect to any ABR Loan or Eurocurrency
Loan, or with respect to the commitment fees payable under Section 2.10
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption “ABR”, “LIBOR” or “Commitment Fee”, as the case may be, based
upon the Borrower Rating of S&P Fitch, and Moody’s, respectively,
applicable on such date:


 


	
   

  	
   

  	
   

  
	
  Borrower Rating

  S&P/Fitch/Moody’s

   

  	
  Applicable Margin

  	
  Commitment Fee 

  
	
  Category

   

  	
  ABR

  	
  LIBOR

  	
   

  
	
  >
  BBB/BBB/Baa2

   

  	
  1.50%

  	
  2.50%

  	
  0.50%

  
	
  =
  BBB/BBB/Baa2

   

  	
  2.00%

  	
  3.00%

  	
  0.50%

  
	
  =
  BBB-/BBB-/Baa3

   

  	
  2.50%

  	
  3.50%

  	
  0.625%

  
	
  <
  BBB-/BBB-/Baa3

   

  	
  3.00%

  	
  4.00%

  	
  0.75%

  



 


For
purposes of the foregoing, (i) if any of S&P, Fitch or Moody’s shall
not have in effect a Borrower Rating for the Borrower (other than by reason of
the circumstances referred to in the penultimate sentence of this definition)
or if the Borrower shall have voluntarily elected to terminate its arrangement
with any rating agency for the ongoing rating of itself, then such rating
agency shall be deemed to have established the lowest Borrower Rating; (ii) if
the Borrower Ratings established or deemed to have been established by S&P,
Fitch and Moody’s shall fall within different 


 

















 


Categories, the
Applicable Margin shall be based on the lower of the two highest ratings
unless, at such time, only two of the applicable rating agencies shall have in
effect a Borrower Rating for the Borrower ((x) without giving effect to
any deemed rating pursuant to clause (i) and (y) other than by reason
of the circumstances referred to in the penultimate sentence of this
definition) and one of the two ratings is two or more Categories lower than the
other, in which case the Applicable Rate shall be determined by reference to
the Category next above that of the lower of the two Borrower Ratings; (iii) if
the Borrower Ratings established or deemed to have been established by S&P,
Fitch and Moody’s shall be changed (other than as a result of a change in the
rating system of S&P, Fitch or Moody’s), such change shall be effective as
of the date on which it is first announced by the applicable rating agency,
irrespective of when notice of such change shall have been furnished by the
Borrower to the Administrative Agent and the Lenders pursuant to Section 5.01
or otherwise and (iv) during the continuance of any Event of Default, the
rates corresponding to the lowest Borrower Rating shall apply.  Each change in the Applicable Margin shall
apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such
change.  If the rating system of S&P,
Fitch or Moody’s shall change, or if any such rating agency shall cease to be
in the business of rating corporate debt obligations, the Borrower (1) may,
to the extent that only one of the rating agencies rating’s system has changed
or has ceased to be in the business of rating corporate debt obligations, or (2) shall,
to the extent that more than one of the rating agencies rating’s systems has
changed or has ceased to be in the business of rating corporate debt
obligations, negotiate with the Lenders in good faith to amend this definition
to reflect such changed rating system or the unavailability of ratings from
such rating agency and, pending the effectiveness of any such amendment, the
Applicable Margin shall be determined by reference to the rating most recently
in effect prior to such change or cessation; provided that if the Borrower
shall not elect to negotiate with the Lenders to amend this definition pursuant
to clause (1) of the foregoing, the affected rating agency shall be deemed
to have established the lowest Borrower Rating. 
If any Borrower Rating is on-watch, such on-watch status will be
disregarded for purposes of determining the Applicable Margin.


 


“Applicable
Multicurrency Percentage” means, with respect to any Multicurrency Lender, the
percentage of the total Multicurrency Commitments represented by such
Multicurrency Lender’s Multicurrency Commitment.  If the Multicurrency Commitments have
terminated or expired, the Applicable Multicurrency Percentages shall be
determined based upon the Multicurrency Commitments most recently in effect,
giving effect to any assignments.


 


“Applicable
Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment.  If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.


 

















 


“Approved Dealer”
means (a) in the case of any Portfolio Investment that is not a U.S.
Government Security, a bank or a broker-dealer registered under the Securities
Exchange Act of 1934 of nationally recognized standing or an Affiliate thereof,
(b) in the case of a U.S. Government Security, any primary dealer in U.S.
Government Securities, and (c) in the case of any foreign Portfolio
Investment, any foreign broker-dealer of internationally recognized standing or
an Affiliate thereof, in the case of each of clauses (a), (b) and (c) above,
as set forth on Schedule VII or any other bank or broker-dealer acceptable to
the Administrative Agent in its reasonable determination.


 


“Approved Pricing
Service” means a pricing or quotation service as set forth in Schedule VII
or any other pricing or quotation service approved by the Board of Directors of
the Borrower and designated in writing to the Administrative Agent (which
designation shall be accompanied by a copy of a resolution of the Board of
Directors of the Borrower that such pricing or quotation service has been
approved by the Borrower).


 


“Ares Capital CP”
means Ares Capital CP Funding LLC, a wholly owned Subsidiary of the Borrower.


 


“Ares Capital CP II”
means Ares Capital CP Funding II LLC, a wholly owned Subsidiary of the
Borrower.


 


“Ares Capital CP
Holdings” means Ares Capital CP Funding Holdings LLC, a wholly owned
Subsidiary of the Borrower.


 


“Ares Capital CP Holdings
II” means Ares Capital CP Funding Holdings II LLC, a wholly owned
Subsidiary of the Borrower.


 


“Ares Capital
Management” means Ares Capital Management LLC, a Delaware Limited Liability
Company.


 


“Asset Coverage Ratio”
means the ratio, determined on a consolidated basis, without duplication, in
accordance with GAAP, of (a) the Value of total assets of the Borrower and
its Subsidiaries, less all liabilities (other than outstanding Indebtedness,
including outstanding Indebtedness hereunder) of the Borrower and its
Subsidiaries, to (b) the aggregate amount of Indebtedness of the Borrower
and its Subsidiaries.


 


“Assignment and
Assumption” means an Assignment and Assumption entered into by a Lender and
an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any
other form approved by the Administrative Agent.


 


“Assuming Lender”
has the meaning assigned to such term in Section 2.07(e).


 

















 


“Availability Period”
means the period from and including the Restatement Effective Date to but
excluding the earlier of the Commitment Termination Date and the date of
termination of the Commitments.


 


“Board” means the
Board of Governors of the Federal Reserve System of the United States of
America.


 


“Borrower” means
Ares Capital Corporation, a Maryland corporation.


 


“Borrower Rating”
means, with respect to the Borrower, (a) in the case of S&P, the
Borrower’s long-term counterparty rating, (b) in the case of Fitch, the
Borrower’s long-term issuer default rating and (c) in the case of Moody’s,
the Borrower’s issuer rating.


 


“Borrowing” means (a) all
ABR Loans of the same Class made,
converted or continued on the same date or, (b) all Eurocurrency Loans of the same Class denominated
in the same Currency that have the same Interest Period and/or (c) a Pro-Rata Borrowing, as applicable.


 


“Borrowing Base”
has the meaning assigned to such term in Section 5.13.


 


“Borrowing Base
Certificate” means a certificate of a Financial Officer of the Borrower,
substantially in the form of Exhibit E and appropriately completed.


 


“Borrowing Base
Deficiency” means, at any date on which the same is determined, the amount,
if any, that (a) the aggregate Covered Debt Amount as of such date exceeds
(b) the Borrowing Base as of such date.


 


“Borrowing Request”
means a request by the Borrower for a Borrowing in accordance with Section 2.03
substantially in the form of Exhibit F.


 


“Business Day”
means any day (a) that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain
closed, (b) if such day relates to a borrowing of, a payment or prepayment
of principal of or interest on, a continuation or conversion of or into, or the
Interest Period for, a Eurocurrency Borrowing, or to a notice by the Borrower
with respect to any such borrowing, payment, prepayment, continuation,
conversion, or Interest Period, that is also a day on which dealings in
deposits denominated in the Currency of such Borrowing are carried out in the
London interbank market and (c) if such day relates to a borrowing or
continuation of, a payment or prepayment of principal of or interest on, or the
Interest Period for, any Borrowing denominated in any Foreign Currency, or to a
notice by the Borrower with respect to any such borrowing, continuation,
payment, prepayment or Interest Period, that is also a day on which commercial
banks and the London foreign exchange market settle payments in the Principal
Financial Center for such Foreign Currency.


 

















 


“Capital Lease
Obligations” of any Person means the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations shall be
the capitalized amount thereof determined in accordance with GAAP.


 


“Cash” means any
immediately available funds in Dollars or in any currency other than Dollars
which is a freely convertible currency.


 


“Cash Equivalents”
means investments (other than Cash) that are one or more of the following
obligations:


 


(a)        U.S. Government Securities, in each case
maturing within one year from the date of acquisition thereof;


 


(b)        investments in commercial paper maturing
within 270 days from the date of acquisition thereof and having, at such date
of acquisition, a credit rating of at least A-1 from S&P and at least P-1
from Moody’s;


 


(c)        investments in certificates of deposit,
banker’s acceptances and time deposits maturing within 180 days from the date
of acquisition thereof (i) issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof or under the laws of the jurisdiction or any constituent
jurisdiction thereof of any Agreed Foreign Currency, provided that such
certificates of deposit, banker’s acceptances and time deposits are held in a
securities account (as defined in the Uniform Commercial Code) through which
the Collateral Agent can perfect a security interest therein and (ii) having,
at such date of acquisition, a credit rating of at least A-1 from S&P and
at least P-1 from Moody’s; and


 


(d)       fully collateralized repurchase
agreements with a term of not more than 30 days from the date of acquisition
thereof for U.S. Government Securities and entered into with (i) a
financial institution satisfying the criteria described in clause (c) of
this definition or (ii) an Approved Dealer having (or being a member of a
consolidated group having) at such date of acquisition, a credit rating of at
least A-1 from S&P and at least P-1 from Moody’s,


 


provided,
that (i) in no event shall Cash Equivalents include any obligation that
provides for the payment of interest alone (for example, interest-only
securities or “IOs”); (ii) if any of Moody’s or S&P changes its
rating system, then any ratings included in this definition shall be deemed to
be an equivalent rating in a successor rating category of Moody’s or S&P,
as the case may be; (iii) Cash Equivalents (other than U.S. Government
Securities or repurchase agreements) shall not include any such investment of
more than 10% of total assets of the Loan Parties in any single issuer; and (iv) in
no event shall 


 

















 


Cash
Equivalents include any obligation that is not denominated in Dollars or an
Agreed Foreign Currency.


 


“Change in Control”
means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the Restatement Effective Date),
of shares representing more than 35% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Borrower; (b) occupation
of a majority of the seats (other than vacant seats) on the board of directors
of the Borrower by Persons who were neither (i) nominated by the requisite
members of the board of directors of the Borrower nor (ii) appointed by a
majority of the directors so nominated; or (c) the acquisition of direct
or indirect Control of the Borrower by any Person or group other than Ares
Capital Management.  For the avoidance of
doubt, (1) the Acquisition and the issuance of its Equity Interests by the
Borrower in connection therewith shall not constitute a “Change in Control” so
long as after giving effect thereto, none of the events or circumstances
described in the foregoing clauses (a) through (c) shall have
occurred with respect to the Borrower and (2) the shareholders taken as a
whole of Allied shall not constitute a “group” for purposes of clause (a) of
the foregoing so long as they would not otherwise constitute a “group” within
the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the Restatement
Effective Date.


 


“Change in Law”
means (a) the adoption of any law, rule or regulation after the
Restatement Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Restatement Effective Date or (c) compliance by any
Lender or the Issuing Bank (or, for purposes of Section 2.13(b), by any
lending office of such Lender or by such Lender’s or the Issuing Bank’s holding
company, if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or issued after the
Restatement Effective Date.


 


“Class”, when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans constituting such Borrowing, are Dollar Loans or Multicurrency Loans;
when used in reference to any Lender, refers to whether such Lender is a Dollar
Lender or a Multicurrency Lender; and, when used in reference to any
Commitment, refers to whether such Commitment is a Dollar Commitment or
Multicurrency Commitment.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral” has
the meaning assigned to such term in the Guarantee and Security Agreement.


 
















 


“Collateral Agent”
means JPMCB in its capacity as Collateral Agent under the Guarantee and
Security Agreement, and includes any successor Collateral Agent thereunder.


 


“Commitment”
means, with respect to each Lender, the aggregate of its Initial Commitment and
its Step-Up Date Commitment (if any), as such commitments may be (a) reduced
or increased from time to time pursuant to Section 2.07 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.  The
initial aggregate amount of the Lenders’ Commitments as of the Restatement
Effective Date is $690,000,000.  Unless
otherwise expressly stated herein, references herein to “Commitments” shall
include the Step-Up Date Commitments.


 


“Commitment”
means, collectively, the Dollar Commitments and the Multicurrency Commitments.


 


“Commitment Increase”
has the meaning assigned to such term in Section 2.07(e).


 


“Commitment Increase
Date” has the meaning assigned to such term in Section 2.07(e).


 


“Commitment Termination
Date” means January 22, 2013.


 


“Continuing Lenders”
has the meaning set forth in the recitals.


 


“Control” means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Controlled Foreign
Corporation” means any Subsidiary which is (i) a “controlled foreign
corporation” (within the meaning of Section 957 of the Code), (ii) a
subsidiary substantially all the assets of which consist of equity in
Subsidiaries described in clause (i) of this definition, or (iii) an
entity treated as disregarded for U.S. federal income tax purposes that owns
more than 65% of the voting stock of a Subsidiary described in clause (i) or
(ii) of this definition.


 


“Covered Debt Amount”
means, on any date, (a) all of the Revolving Credit Exposures of all
Lenders on such date plus (b) the aggregate amount of outstanding
Permitted Indebtedness on such date plus (c) the aggregate amount
of any Indebtedness incurred pursuant to Section 6.01(g) plus (d) the
aggregate amount of any outstanding Allied 2011/12 Notes minus (e) the
LC Exposures fully cash collateralized on such date pursuant to Section 2.04(k) and
the last paragraph of Section 2.08(a); provided that if the
Acquisition has been consummated, the aggregate amount of the Allied 2047 Notes
will be excluded from the calculation of the Covered Debt Amount 


 

















 


solely for purposes of (i) determining compliance
with the Borrowing Base, including, without limitation, for purposes of
calculating compliance with clause (d) of the definition of “Step-Up Date”
and (ii) to the extent that the Borrowing Base is less than Relevant
Available Funds (after giving effect to the exclusion of the Allied 2047 Notes
from Relevant Available Funds) on any relevant determination date, the
Liquidity Tests set forth in clauses (i) and (ii) of Section 6.07(c).


 


“CP Facility”
means the credit facility established on November 3, 2004 between, among
others, Ares Capital CP and Wachovia Capital Markets, LLC pursuant to the CP
Facility Documents.


 


“CP Facility Documents”
means, collectively, (a) the Purchase and Sale Agreement dated as of November 3,
2004 by and between the Borrower and Ares Capital CP, (b) the Sale and
Servicing Agreement by and among the Borrower, Ares Capital CP, the Conduit
Purchasers and institutional purchasers party thereto, the Purchaser Agents
party thereto, Wachovia Capital Markets, LLC, as Administrative Agent, U.S.
Bank National Association, as Trustee, and Lyon Financial Services, Inc.,
as Backup Servicer, and (c) the Intercreditor and Concentration Account
Administration Agreement dated as of November 3, 2004 by and among U.S.
Bank National Association, as Concentration Account Bank, U.S. Bank National
Association, as Account Custodian, the Borrower, as Originator, Original
Servicer and Concentration Account Servicer, and the Security Interest Grantees
from time to time party thereto.  It is
understood that the term “CP Facility Documents” shall not include the exhibits
and schedules thereto.


 


“Currency” means
Dollars or any Foreign Currency.


 


“Custodian Agreement”
means the Custodian Agreement dated as of a date in October, 2004 by and among
the Borrower and U.S. Bank, National Association.


 


“Default” means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event of
Default.


 


“Defaulting Lender”
means any Lender, as determined by the Administrative Agent, that has (a) failed
to fund any portion of its Loans or participations in Letters of Credit within
three Business Days of the date required to be funded by it hereunder, unless,
in the case of any Loans, such Lender’s failure is based on such Lender’s
reasonable determination that the conditions precedent to funding such Loan
under this Agreement have not been met, such conditions have not otherwise been
waived in accordance with the terms of this Agreement and such Lender has
advised the Administrative Agent in writing (with reasonable detail of those
conditions that have not been satisfied) prior to the time at which such
funding was to have been made, (b) notified the Borrower, the
Administrative Agent, the Issuing Bank or any Lender in writing that it does
not intend to comply with any of its funding obligations under this Agreement
or has made a public statement to the effect that it does not intend to comply
with its funding obligations under this Agreement or generally under other
agreements in 


 

















 


which it commits to extend credit, (c) failed,
within three Business Days after request by the Administrative Agent, to
confirm that it will comply with the terms of this Agreement relating to its
obligations to fund prospective Loans and participations in then outstanding
Letters of Credit, (d) otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within three Business Days of the date when due, unless the subject of a good
faith dispute, or (e) (i) become or is insolvent or has a parent
company that has become or is insolvent or (ii) become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or custodian,
appointed for it, or has taken any action in furtherance of, or indicating its
consent to, approval of or acquiescence in any such proceeding or appointment
or has a parent company that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or custodian appointed for
it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment.


 


“Designated Subsidiary”
means:


 


(a)       a direct or indirect Subsidiary of the
Borrower designated by the Borrower as a “Designated Subsidiary” which meets
the following criteria:


 


(i)         to which any Obligor sells, conveys or
otherwise transfers (whether directly or indirectly) Portfolio Investments,
which engages in no material activities other than in connection with the
purchase or financing of such assets;


 


(ii)         no portion of the Indebtedness or any
other obligations (contingent or otherwise) of such Subsidiary (A) is
Guaranteed by any Obligor (other than Guarantees in respect of Standard
Securitization Undertakings), (B) is recourse to or obligates any Obligor
in any way other than pursuant to Standard Securitization Undertakings or (C) subjects
any property of any Obligor (other than property that has been contributed or
sold, purported to be sold or otherwise transferred to such Subsidiary),
directly or indirectly, contingently or otherwise, to the satisfaction thereof,
other than pursuant to Standard Securitization Undertakings or any Guarantee
thereof,


 


(iii)        with which no Obligor has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to such Obligor than those that might be obtained at the time from
Persons that are not Affiliates of any Obligor, other than fees payable in the
ordinary course of business in connection with servicing receivables or
financial assets, and


 


(iv)       to which no Obligor has any obligation to
maintain or preserve such entity’s financial condition or cause such entity to
achieve certain levels of operating results, other than pursuant to Standard
Securitization Undertakings; or


 

















 


(b)    a direct or indirect Subsidiary of the
Borrower designated by the Borrower as a “Designated Subsidiary” and which
satisfies each of the foregoing criteria set forth in clauses (a)(ii), (iii) and
(iv).


 


Any such designation by the Borrower shall be effected
pursuant to a certificate of a Financial Officer delivered to the Administrative
Agent, which certificate shall include a statement to the effect that, to the
best of such officer’s knowledge, such designation complied with the foregoing
conditions set forth in clauses (a) or (b).  For the avoidance of doubt, in the case of
clause (a), the Borrower shall be in compliance with Section 6.03(d) after
giving effect to any such designation. 
Each Subsidiary of a Designated Subsidiary shall be deemed to be a
Designated Subsidiary and shall comply with the foregoing requirements of this
definition.  The parties hereby agree
that Ares Capital CP, Ares Capital CP Holdings, Ares Capital CP II, Ares
Capital CP Holdings II, ARCC CLO 2006 LLC, ARCC Commercial Loan Trust 2006 and
ARCC JTC, LLC shall each constitute a Designated Subsidiary so long as they
comply with the foregoing requirements of this definition.


 


“Disclosed Matters”
means the actions, suits and proceedings disclosed or referenced in Schedule
III (provided that such matters to the extent relating to Allied and its
subsidiaries or the Acquisition may be updated on or prior to the date of the
Acquisition with the consent of the Required Lenders and each Lender having a
Step-Up Date Commitment)..


 


“Dollar
Commitment” means, with respect to each Dollar Lender, the commitment of such
Dollar Lender to make Loans denominated in Dollars hereunder, expressed as an
amount representing the maximum aggregate amount of such Lender’s Revolving
Dollar Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.  The
initial amount of each Lender’s Dollar Commitment is set forth on Schedule I,
or in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Dollar Commitment, as applicable. 
The initial aggregate amount of the Lenders’ Dollar Commitments is
$25,000,000.


 


“Dollar Equivalent”
means, on any date of determination, with respect to an amount denominated in
any Foreign Currency, the amount of Dollars that would be required to purchase
such amount of such Foreign Currency on the date two Business Days prior to
such date, based upon the spot selling rate at which the Administrative Agent
offers to sell such Foreign Currency for Dollars in the London foreign exchange
market at approximately 11:00 a.m., London time, for delivery two Business
Days later.


 


“Dollar Lender” means the Persons listed on Schedule I as having
Dollar Commitments and any other Person that shall have become a party hereto
pursuant to an Assignment and Assumption that provides for it to assume a
Dollar Commitment or to acquire Revolving Dollar Credit Exposure, other than
any such Person that ceases to be a party hereto pursuant to an Assignment and
Assumption.


 

















 


“Dollar Loan” means a Loan denominated in Dollars.


 


“Dollars” or “$”
refers to lawful money of the United States of America.


 


“Domestic Subsidiary”
means any Subsidiary other than a Controlled Foreign Corporation.


 


“Equity Interests”
means shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person, and any warrants, options or other rights
entitling the holder thereof to purchase or acquire any such equity interest.


 


“ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from time to time.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with
the Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA
or the regulations issued thereunder with respect to a Plan (other than an
event for which the 30-day notice period is waived); (b) any failure by
any Plan to satisfy the minimum funding standard (within the meaning of Section 412
of the Code or Section 302 of ERISA) applicable to such Plan; (c) the
filing pursuant to Section 412(c) of the Code or Section 302(c) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


“Eurocurrency”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans constituting such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Event of Default”
has the meaning assigned to such term in Article VII.


 

















 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the Issuing Bank
or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America, or
by the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is
located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located, (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.18(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law described in clause ( a)
or (b) of the definition of Change in Law) to comply with Section 2.15(e),
except to the extent, other than in a case of failure to comply with Section 2.15(e),
that such Foreign Lender’s (or its assignor, if any) was entitled, at the time
of designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to Section 2.15(a),
(d) in the case of a Foreign Lender, any withholding tax that is imposed
on amounts payable to such Foreign Lender to the extent attributable to such
Foreign Lender’s failure to take any action (including entering into an
agreement with the Internal Revenue Service) or comply with any information
gathering and reporting requirements, in each case, that are required to obtain
the maximum available exemption from United States federal withholding taxes
under Title I of the Foreign Account Tax Compliance Act of 2009 (the “Proposed
Act) or under legislation that is substantially similar to Title I of the
Proposed Act with respect to payments received by or on behalf of such Foreign
Lender and (e) in the case of any Lender or Issuing Bank that is not a
Foreign Lender, any withholding tax that is imposed as a result of such Lender’s
or Issuing Bank’s failure or inability to comply with Section 2.15(f).


 


“Existing Lenders”
has the meaning set forth in the recitals.


 


“Federal Funds
Effective Rate” means, for any day, the weighted average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.


 


“Financial Officer”
means the president, chief financial officer, principal accounting officer,
treasurer, assistant treasurer, controller or assistant controller of the
Borrower.


 

















 


“First Amendment”
means the First Amendment Agreement and Waiver to the Original Agreement dated
as of November 13, 2007.


 


“Fitch” means
Fitch Ratings or any successors thereto.


 


“Foreign Currency”
means at any time any Currency other than Dollars.


 


“Foreign Currency
Equivalent” means, with respect to any amount in Dollars, the amount of any
Foreign Currency that could be purchased with such amount of Dollars using the
reciprocal of the foreign exchange rate(s) specified in the definition of
the term “Dollar Equivalent”, as determined by the Administrative Agent.


 


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


 


“GAAP” means
generally accepted accounting principles in the United States of America.


 


“Governmental
Authority” means the government of the United States of America, or of any
other nation, or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee” of or
by any Person (the “guarantor”) means any obligation, contingent or
otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness
or other obligation or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account
party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.


 


“Guarantee and
Security Agreement” means that certain Guarantee and Security Agreement
dated as of December 28, 2005 between the Borrower, the Administrative
Agent, each holder (or a representative or trustee therefor) from time to time
of any Other Secured Indebtedness, and the Collateral Agent.


 

















 


“Guarantee and
Security Agreement Confirmation” means a Guarantee and Security Agreement
Confirmation between the parties to the Guarantee and Security Agreement
substantially in the form of Exhibit B.


 


“Guarantee Assumption
Agreement” means a Guarantee Assumption Agreement substantially in the form
of Exhibit B to the Guarantee and Security Agreement between the
Administrative Agent and an entity that, pursuant to Section 5.08 is
required to become a “Subsidiary Guarantor” under the Guarantee and Security
Agreement (with such changes as the Administrative Agent shall request,
consistent with the requirements of Section 5.08).


 


“Hedging Agreement”
means any interest rate protection agreement, foreign currency exchange
protection agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement.


 


“Increasing Lender”
has the meaning assigned to such term in Section 2.07(e).


 


“Indebtedness” of
any Person means, without duplication, (a) all obligations of such Person
for borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional sale or
other title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding accounts payable incurred in the ordinary
course of business), (e) all Indebtedness of others secured by any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances.  The Indebtedness of any
Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such
Person is liable therefor as a result of such Person’s ownership interest in or
other relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor.


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


“Independent” when
used with respect to any specified Person means that such Person (a) does
not have any direct financial interest or any material indirect financial
interest in the Borrower or any of its Subsidiaries or Affiliates (including
its investment advisor or any Affiliate thereof) and (b) is not connected
with the Borrower or of its Subsidiaries or Affiliates (including its
investment advisor or any Affiliate thereof) as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.


 

















 


“Industry
Classification Group” means (a) any of the Moody’s classification
groups set forth in Schedule VI hereto, together with any such classification
groups that may be subsequently established by Moody’s and provided by the
Borrower to the Lenders and (b) up to three additional industry group
classifications established by the Borrower pursuant to Section 5.12.  For the avoidance of doubt, CDO Securities
shall be treated as belonging to the “Structured Finance” Industry
Classification Group.


 


“Initial Commitments”
means, with respect to each Lender, the commitment (excluding any Step-Up Date
Commitment) of such Lender to make Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender’s Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced or increased from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Initial
Commitment as of the Restatement Effective Date is set forth on Schedule I, or
in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Initial Commitment, as applicable. 
The initial aggregate amount of the Lenders’ Initial Commitments as of
the Restatement Effective Date is $615,000,000.


 


“Interest Election
Request” means a request by the Borrower to convert or continue a Borrowing
in accordance with Section 2.06 substantially in the form of Exhibit G.


 


“Interest Payment Date”
means (a) with respect to any ABR Loan, each Quarterly Date, and (b) with
respect to any Eurocurrency Loan, the last day of each Interest Period therefor
and, in the case of any Interest Period of more than three months’ duration,
each day prior to the last day of such Interest Period that occurs at
three-month intervals after the first day of such Interest Period.


 


“Interest Period”
means, for any Eurocurrency Loan or Borrowing, the period commencing on the
date of such Loan or Borrowing and ending on the numerically corresponding day
in the calendar month that is one, two, three or six months thereafter or, with
respect to such portion of any Eurocurrency Loan or Borrowing denominated in a
Foreign Currency that is scheduled to be repaid on the Commitment Termination
Date, a period of less than one month’s duration commencing on the date of such
Loan or Borrowing and ending on the Commitment Termination Date, as specified
in the applicable Borrowing Request or Interest Election Request; provided,
that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business
Day, and (ii) any Interest Period (other than an Interest Period
pertaining to a Eurocurrency Borrowing denominated in a Foreign Currency that
ends on the Commitment Termination Date that is permitted to be of less than
one month’s duration as provided in this definition) that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the 


 

















 


last calendar month of such Interest Period.  For purposes hereof, the date of a Loan
initially shall be the date on which such Loan is made and thereafter shall be
the effective date of the most recent conversion or continuation of such Loan,
and the date of a Borrowing comprising Loans that have been converted or
continued shall be the effective date of the most recent conversion or
continuation of such Loans.


 


“Investment”
means, for any Person:  (a) Equity
Interests, bonds, notes, debentures or other securities of any other Person or
any agreement to acquire any Equity Interests, bonds, notes, debentures or
other securities of any other Person (including any “short sale” or any sale of
any securities at a time when such securities are not owned by the Person
entering into such sale); (b) deposits, advances, loans or other
extensions of credit made to any other Person (including purchases of property
from another Person subject to an understanding or agreement, contingent or
otherwise, to resell such property to such Person); or (c) Hedging
Agreements.


 


“Investment Policies”
has the meaning assigned to such term in Section 3.11(c).


 


“Investment
Company Act” means the Investment Company Act of 1940, as amended from time
to time.


 


“Issuing Bank”
means JPMCB, in its capacity as the issuer of Letters of Credit hereunder, and
its successors in such capacity as provided in Section 2.04(j).


 


“JPMCB” means
JPMorgan Chase Bank, N.A.


 


“LC Disbursement”
means a payment made by the Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements in
respect of such Letters of Credit that have not yet been
reimbursed by or on behalf of the Borrower at such time.  The LC Exposure of any Lender at any time
shall be its Applicable Multicurrency Percentage
of the total LC Exposure at such time.


 


“Lenders” means
the Persons listed on Schedule I and any other Person that shall have become a
party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Assumption.


 


“Lenders”
means, collectively, the Dollar Lenders and the Multicurrency Lenders.


 


“Letter of Credit”
means any letter of credit issued pursuant to this Agreement.


 
















 


“Letter of Credit
Collateral Account” has the meaning assigned to such term in Section 2.04(k).


 


“Letter of Credit
Documents” means, with respect to any Letter of Credit, collectively, any
application therefor and any other agreements, instruments, guarantees or other
documents (whether general in application or applicable only to such Letter of
Credit) governing or providing for (a) the rights and obligations of the
parties concerned or at risk with respect to such Letter of Credit or (b) any
collateral security for any of such obligations, each as the same may be
modified and supplemented and in effect from time to time.


 


“LIBO Rate” means,
for the Interest Period for any Eurocurrency Borrowing denominated in any
Currency, the rate appearing on Reuters Screen LIBOR01 Page (or on any
successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to deposits in such currency in the London or other
applicable interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as LIBOR for
deposits denominated in such Currency with a maturity comparable to such
Interest Period.  In the event that such
rate is not available as described above for any reason, then the LIBO Rate for
such Interest Period shall be the rate at which deposits in such Currency in
the amount of $5,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the Administrative Agent in
immediately available funds in the London (or, in the case of English Pounds
Sterling, Paris) interbank market at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period.  Notwithstanding the foregoing, the LIBO Rate
for any Eurocurrency Loan denominated in English Pounds Sterling for any
Interest Period shall be the sum of (i) the rate referred to above plus
(ii) the MCR Cost.


 


“LIBOR” means, for
any Currency, the rate at which deposits denominated in such Currency are
offered to leading banks in the London interbank market (or, in the case of
English Pounds Sterling, in the eurocurrency market).


 


“Lien” means, with
respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities, except in
favor of the issuer thereof.


 


“Liquidity Tests”
means, collectively, the tests set forth in Section 6.07(c).


 

















 


“Loan Documents”
means, collectively, this Agreement, the Letter of Credit Documents and the
Security Documents.


 


“Loans” means the
loans made by the Lenders to the Borrower pursuant to Section 2.01.


 


“Local Time”
means, with respect to any Loan denominated in or any payment to be made in any
Currency, the local time in the Principal Financial Center for the Currency in
which such Loan is denominated or such payment is to be made.


 


“Margin Stock”
means “margin stock” within the meaning of Regulations T, U and X.


 


“Material Adverse
Effect” means a material adverse effect on (a) the business, Portfolio
Investments and other assets, liabilities and financial condition of the
Borrower and its Subsidiaries taken as a whole (excluding in any case a decline
in the net asset value of the Borrower or a change in general market conditions
or values of the Investments of the Borrower and its Subsidiaries), or (b) the
validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders thereunder.


 


“Material Indebtedness”
means (a) Indebtedness (other than the Loans, Letters of Credit and
Hedging Agreements), of any one or more of the Borrower and its Subsidiaries in
an aggregate principal amount exceeding $25,000,000 and (b) obligations in
respect of one or more Hedging Agreements under which the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower and the
Subsidiaries would be required to pay if such Hedging Agreement(s) were
terminated at such time would exceed $25,000,000.


 


“MCR Cost” means,
with respect to any Lender, the cost imputed to such Lender of compliance with
the Mandatory Cost Rate requirements of the Bank of England during the relevant
period, determined in accordance with Schedule VIII.


 


“Moody’s” means
Moody’s Investors Service, Inc. or any successor thereto.


 


“Multicurrency
Commitment” means, with respect to each Multicurrency Lender, the commitment of
such Multicurrency Lender to make Loans, and to acquire participations in Letters
of Credit denominated in Dollars and in Agreed Foreign Currencies hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s
Revolving Multicurrency Credit Exposure hereunder, as such commitment may be (a) reduced
from time to time pursuant to Section 2.07 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.  The
initial amount of each Lender’s Multicurrency Commitment is set forth on
Schedule I, or in the Assignment and Assumption pursuant to which such Lender
shall have assumed its Multicurrency Commitment, as applicable.  


 

















 


The initial aggregate amount of the Lenders’
Multicurrency Commitments is $715,000,000.


 


“Multicurrency Lender” means the Persons listed on Schedule I as
having Multicurrency Commitments and any other Person that shall have become a
party hereto pursuant to an Assignment and Assumption that provides for it to
assume a Multicurrency Commitment or to acquire Revolving Multicurrency Credit
Exposure, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.


 


“Multicurrency Loan” means a Loan denominated in Dollars or in an
Agreed Foreign Currency.


 


“Multiemployer Plan”
means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“National Currency”
means the currency, other than the Euro, of a Participating Member State.


 


“New Lenders” has
the meaning set forth in the recitals.


 


“Obligor” means,
collectively, the Borrower and the Subsidiary Guarantors.


 


“Other Permitted
Indebtedness” means (a) accrued expenses and current trade accounts
payable incurred in the ordinary course of any Obligor’s business which are not
overdue for a period of more than 90 days or which are being contested in good
faith by appropriate proceedings, (b) Indebtedness (other than
Indebtedness for borrowed money) arising in connection with transactions in the
ordinary course of any Obligor’s business in connection with its purchasing of
securities, derivatives transactions, reverse repurchase agreements or dollar
rolls to the extent such transactions are permitted under the Investment
Company Act and the Investment Policies, provided that such Indebtedness
does not arise in connection with the purchase of Portfolio Investments other
than Cash Equivalents and U.S. Government Securities and (c) Indebtedness
in respect of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as such judgments or awards do
not constitute an Event of Default under clause (l) of Article VII.


 


“Other Secured
Indebtedness” means, as at any date, Indebtedness (other than Indebtedness
hereunder) of an Obligor (which may be Guaranteed by one or more other
Obligors) that (a) has no amortization prior to, and a final maturity date
not earlier than, six months after the Commitment Termination Date, (b) has
terms substantially comparable to market terms for substantially similar debt
of other similarly situated borrowers as reasonably determined by at least two
Joint Lead Arrangers (identified on the cover of this Agreement) and (c) is
not secured by any assets of any Obligor other than pursuant to the Security
Documents and the holders of which have agreed, in a 


 

















 


manner satisfactory to the Administrative Agent and
the Collateral Agent, to be bound by the provisions of the Security Documents.


 


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


 


“Participating Member
State” means any member state of the European Community that adopts or has
adopted the Euro as its lawful currency in accordance with the legislation of
the European Union relating to the European Monetary Union.


 


“PBGC” means the
Pension Benefit Guaranty Corporation referred to and defined in ERISA and any
successor entity performing similar functions.


 


“Permitted Allied
Indebtedness” means collectively (a) the Allied 2011/12 Notes and (b) the
Allied 2047 Notes.


 


“Permitted
Indebtedness” means, collectively, Other Secured Indebtedness and Unsecured
Indebtedness.


 


“Permitted Liens”
means (a) Liens imposed by any Governmental Authority for taxes,
assessments or charges not yet due or that are being contested in good faith
and by appropriate proceedings if adequate reserves with respect thereto are
maintained on the books of the Borrower in accordance with GAAP; (b) Liens
of clearing agencies, broker-dealers and similar Liens incurred in the ordinary
course of business, provided that such Liens (i) attach only to the
securities (or proceeds) being purchased or sold and (ii) secure only
obligations incurred in connection with such purchase or sale, and not any
obligation in connection with margin financing; (c) Liens imposed by law,
such as materialmen’s, mechanics’, carriers’, workmens’, storage and repairmen’s
Liens and other similar Liens arising in the ordinary course of business and
securing obligations (other than Indebtedness for borrowed money); (d) Liens
incurred or pledges or deposits made to secure obligations incurred in the
ordinary course of business under workers’ compensation laws, unemployment
insurance or other similar social security legislation (other than in respect
of employee benefit plans subject to ERISA) or to secure public or statutory
obligations; (e) Liens securing the performance of, or payment in respect
of, bids, insurance premiums, deductibles or co-insured amounts, tenders,
government or utility contracts (other than for the repayment of borrowed
money), surety, stay, customs and appeal bonds and other obligations of a
similar nature incurred in the ordinary course of business; (f) Liens
arising out of judgments or awards that have been in force for less than the
applicable period for taking an appeal so long as such judgments or awards do
not constitute an Event of Default under clause (l) of Article VII; (g) customary
rights of setoff and liens upon (i) deposits of cash in favor of banks or
other depository institutions in which such cash is maintained in the ordinary
course of business, (ii) cash and financial assets held in securities
accounts in favor of banks and other financial institutions with which such
accounts are maintained in the ordinary course of business 


 

















 


and (iii) assets held by a custodian in favor of
such custodian in the ordinary course of business securing payment of fees,
indemnities and other similar obligations; (h) Liens arising solely from
precautionary filings of financing statements under the Uniform Commercial Code
of the applicable jurisdictions in respect of operating leases entered into by
the Borrower or any of its Subsidiaries in the ordinary course of business; and
(i) precautionary Liens, and filings of financing statements under the
Uniform Commercial Code, covering assets sold or contributed to any Person not
prohibited hereunder.


 


“Person” means any
natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.


 


“Plan” means any
employee pension benefit plan (other than a Multiemployer Plan) subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302
of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed
to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Portfolio Investment”
means any Investment held by the Obligors in their asset portfolio (and solely
for purposes of determining the Borrowing Base, and of Sections 6.02(d) and
6.04(d) and clause (p) of Article VII, Cash).  Without limiting the generality of the foregoing,
it is understood and agreed that any Portfolio Investments that have been
contributed or sold, purported to be contributed or sold or otherwise
transferred to any Designated Subsidiary, or held by any Controlled Foreign
Corporation that is not a Subsidiary Guarantor, or which secure obligations in
respect of the CP Facility, shall not be treated as Portfolio Investments.  Notwithstanding the foregoing, nothing herein
shall limit the provisions of Section 5.12(b)(i), which provides that, for
purposes of this Agreement, all determinations of whether an investment is to
be included as a Portfolio Investment shall be determined on a settlement-date
basis (meaning that any investment that has been purchased will not be treated
as a Portfolio Investment until such purchase has settled, and any Portfolio
Investment which has been sold will not be excluded as a Portfolio Investment
until such sale has settled), provided that no such investment shall be
included as a Portfolio Investment to the extent it has not been paid for in
full.


 


“Prime Rate” means
the rate of interest per annum publicly announced from time to time by JPMCB as
its prime rate in effect at its principal office in New York City; each change
in the Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.


 


“Principal Financial
Center” means, in the case of any Currency, the principal financial center
where such Currency is cleared and settled, as determined by the Administrative
Agent.


 


“Pro-Rata
Borrowing” has the meaning set forth in Section 2.03(a).


 

















 


“Pro-Rata
Dollar Portion” means, in connection with any Pro-Rata Borrowing, an amount
equal to (i) the aggregate amount of such Pro-Rata Borrowing multiplied by
(ii) the aggregate Dollar Commitments of all Dollar Lenders at such time
divided by (iii) the aggregate Commitments of all Lenders at such time.


 


“Pro-Rata
Multicurrency Portion” means, in connection with any Pro-Rata Borrowing, an
amount equal to (i) the aggregate amount of such Pro-Rata Borrowing
multiplied by (ii) the aggregate Multicurrency Commitments of all
Multicurrency Lenders at such time divided by (iii) the aggregate
Commitments of all Lenders at such time.


 


“Quarterly Dates”
means the last Business Day of March, June, September and December in
each year, commencing on March 31, 2010.


 


“Register” has the
meaning set forth in Section 9.04.


 


“Regulations T, U and
X” means, respectively, Regulations T, U and X of the Board of Governors of
the Federal Reserve System (or any successor), as the same may be modified and
supplemented and in effect from time to time.


 


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


 


“Relevant Available
Funds” means, as of any date of determination, without duplication, the
aggregate amount of (a) Indebtedness of the Obligors that is not required
to be repaid, prepaid or terminated on or prior to the date six months after
such date of determination, (b) Relevant Available Commitments of the
Obligors and (c) Relevant Available Commitments of subsidiaries and
portfolio companies Controlled by the Obligors to the extent available to be
utilized, directly or indirectly, to increase the liquidity available to the
Obligors, as determined in good faith by the Borrower.


 


“Relevant Available
Commitments” means, for any Person, as of any date of determination,
undrawn commitments to extend credit to or for the account of such Person that
have a final termination date not earlier than six months after such date of
determination, the conditions for the availability of which have been satisfied
other than with respect to the delivery of a borrowing request or similar
notice (which such Person is permitted to deliver).


 


“Relevant Investment
Commitments” will mean, for any Person, all commitments of such Person to
acquire, make or enter into, any Investments (other than Investments
constituting Cash Equivalents or, to the extent entered into for risk
reductions in the ordinary course of business, Hedging Agreements), in each
case as determined by reference to the value of such Investments as if the same
were actually consummated.  For purposes
of the foregoing, “commitments” shall only include binding commitments not
subject to unilateral veto or rejection by any Obligor.


 

















 


“Required Lenders”
means, at any time, Lenders having Revolving Credit Exposures and unused
Commitments representing more than 50% of the sum of the total Revolving Credit
Exposures and unused Commitments at
such time.  The Required Lenders of a Class (which
shall include the terms “Required Dollar Lenders” and “Required Multicurrency
Lenders”) means Lenders having Revolving Credit Exposures and unused
Commitments of such Class representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments of such Class at
such time.


 


“Restatement Effective
Date” means the date on which the conditions specified in Section 4.01
are satisfied (or waived in accordance with Section 9.02).


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other
property) with respect to any shares of any class of capital stock of the
Borrower or any of its Subsidiaries, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such shares of capital stock of the Borrower or any
option, warrant or other right to acquire any such shares of capital stock of
the Borrower.


 


“Retiring Lenders”
has the meaning set forth in the recitals.


 


“Revolving Credit
Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Loans and its LCRevolving Dollar Credit Exposure and
Revolving Multicurrency Credit Exposure at such time.


 


“Revolving
Dollar Credit Exposure” means, with respect to any Lender at any time, the sum
of the outstanding principal amount of such Lender’s Loans at such time made or
incurred under the Dollar Commitments.


 


“Revolving
Multicurrency Credit Exposure” means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender’s Loans at such
time, made or incurred under the Multicurrency Commitments, and its LC
Exposure.


 


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


 


“S&P” means
Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc., a New York corporation, or any successor thereto.


 


“Security Documents”
means, collectively, the Guarantee and Security Agreement, all Uniform
Commercial Code financing statements filed with respect to the security
interests in personal property created pursuant to the Guarantee and Security
Agreement and all other assignments, pledge agreements, security agreements, 


 

















 


intercreditor agreements, control agreements and other
instruments executed and delivered at any time by any of the Obligors pursuant
to the Guarantee and Security Agreement or otherwise providing or relating to
any collateral security for any of the Secured Obligations under and as defined
in the Guarantee and Security Agreement.


 


“Shareholders’ Equity”
means, at any date, the amount determined on a consolidated basis, without
duplication, in accordance with GAAP, of shareholders equity for the Borrower
and its Subsidiaries at such date.


 


“Special Acquisition
Subsidiary” means a wholly-owned Subsidiary of the Borrower formed for the
purpose of assuming or incurring the Allied Secured Indebtedness and that will,
following the earlier of the date on which it assumes or incurs such
Indebtedness and the date of the Acquisition, satisfy each of the following
conditions:


 


(i)            such Subsidiary
engages in no material activities other than in connection with the assumption
or incurrence of the Allied Secured Indebtedness (and, in that connection,
shall apply all payments of principal, interest, fees and other amounts
received on its investments to promptly prepay the Allied Secured Indebtedness
or distribute such amounts to the Borrower);


 


(ii)          no
portion of the Allied Secured Indebtedness or any other obligations (contingent
or otherwise) of such Special Acquisition Subsidiary (A) is Guaranteed by
the Borrower or any other Subsidiary, (B) shall be recourse to or obligate
the Borrower or any other Subsidiary in any way (other than pursuant to
customary arms-length servicing obligations (together with any related
performance guarantees)), or (C) subject any property of the Borrower or
any other Subsidiary, directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to customary arms-length servicing
obligations (together with any related performance guarantees),


 


(iii)         neither the Borrower nor any Subsidiary has
any material contract, agreement, arrangement or understanding with such
Special Acquisition Subsidiary other than on terms no less favorable to the
Borrower or such Subsidiary than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower or any Subsidiary, other than
fees payable in the ordinary course of business in connection with servicing
receivables or financial assets,


 


(iv)         neither the Borrower nor
any Subsidiary has any obligation to maintain or preserve such Special
Acquisition Subsidiary’s financial condition or cause such Special Acquisition
Subsidiary to achieve certain levels of operating results, excluding customary
arms-length servicing obligations (together with any related performance
guarantees),


 

















 


(v)          all the assets and
Investments of such Special Acquisition Subsidiary and the aggregate amount of
Investments in and to such Special Acquisition Subsidiary are excluded from the
Borrowing Base until such Allied Secured Indebtedness is paid in full.


 


“Specified Debt”
means any portion of unsecured Indebtedness of the Borrower (other than any
Permitted Allied Indebtedness or any Indebtedness incurred in connection with
the Acquisition) described in clauses (a) or (b) of the definition of
Indebtedness incurred or assumed from and after the Restatement Effective Date
that (i) matures or comes due more than six months after the Commitment
Termination Date, (ii) is not prepayable, redeemable or purchasable by the
Borrower or any of its Subsidiaries at any time on or before the date six
months after the Commitment Termination Date (except for regularly scheduled
payments, prepayments or redemptions of principal and interest in respect
thereof required pursuant to the instruments evidencing such Indebtedness), (iii) cannot
be accelerated in circumstances that would not constitute an Event of Default, (iv) is
accounted for by the Borrower on a fair value basis pursuant to Financial
Accounting Standard No. 159 or by application of Financial Accounting
Standard No. 141(R), and (v) the Borrower elects to treat as
Specified Debt, provided that the Borrower shall not be permitted to revoke or
rescind any such election.


 


“Specified Debt
Payment” means (a) any purchase, redemption, retirement or other
acquisition for value of, (b) any setting apart of any money for a
sinking, defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or (c) any voluntary payment or
prepayment of, in each case, the principal of or interest on, or any other
amount owing in respect of, Specified Debt.


 


“Special Equity
Interest” means any Equity Interest that is subject to a Lien in favor of
creditors of the issuer of such Equity Interest, provided that (a) such
Lien was created to secure Indebtedness owing by such issuer to such creditors,
(b) such Indebtedness was (i) in existence at the time the Obligors
acquired such Equity Interest, (ii) incurred or assumed by such issuer
substantially contemporaneously with such acquisition or (iii) already
subject to a Lien granted to such creditors and (c) unless such Equity
Interest is not intended to be included in the Collateral, the documentation
creating or governing such Lien does not prohibit the inclusion of such Equity
Interest in the Collateral.


 


“Standard
Securitization Undertakings” means, collectively, (a) customary
arms-length servicing obligations (together with any related performance
guarantees), (b) obligations (together with any related performance
guarantees) to refund the purchase price or grant purchase price credits for
dilutive events or misrepresentations (in each case unrelated to the
collectability of the assets sold or the creditworthiness of the associated
account debtors ) and (c) representations, warranties, covenants and
indemnities (together with any related performance guarantees) of a type that
are reasonably customary in accounts receivable securitizations or
securitizations of financial assets.


 

















 


“Statutory Reserve
Rate” means, for the Interest Period for any Eurocurrency Borrowing, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the arithmetic mean,
taken over each day in such Interest Period, of the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently referred to
as “Eurocurrency liabilities” in Regulation D). 
Such reserve percentages shall include those imposed pursuant to
Regulation D.  Eurocurrency Loans shall
be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
comparable regulation.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“Step-Up Date”
means the date on which each of the following conditions are satisfied or
waived by each Lender with a Step-Up Date Commitment (and the Borrower shall
have delivered a certification to such effect to the Administrative Agent):


 


(a)          the Acquisition shall
have been consummated on or before June 30, 2010 (which date may be
extended until September 30, 2010 with the consent of greater than or
equal to 66 2/3 of the Lenders with Step-Up Date Commitments) in accordance
with the acquisition agreement dated October 26, 2009, and no provision
thereof shall have been waived, amended, supplemented or otherwise modified,
except as would not be expected to have a Material Adverse Effect;


 


(b)          the Administrative Agent
shall have received an updated Schedule IV to this Agreement, adjusted to give
effect to the consummation of the Acquisition (and such updated Schedule IV
shall be deemed to replace the prior Schedule IV);


 


(c)          the Lenders shall have
received a satisfactory pro forma consolidated balance sheet of the Borrower,
adjusted to give effect to the consummation of the Acquisition;


 


(d)          after giving effect to
the Acquisition, the ratio of the aggregate amount of Indebtedness of the
Borrower and its Subsidiaries to Shareholder’s Equity of the Borrower (in each
case, calculated in accordance with GAAP) shall not exceed 85%, and the Covered
Debt Amount shall not exceed 90% of the then applicable Borrowing Base;


 


(e)          no Default or Event of
Default shall have occurred and be continuing; and


 
















 


(f)         the representations and warranties
contained in this Agreement shall be true and correct in all material respects
(or, in the case of the representations and warranties in Sections 3.01 (first
sentence with respect to the Obligors), 3.02, 3.04, 3.11 and 3.15 of this
Agreement, and in Sections 2.01, 2.02 and 2.04 through 2.09 of the Guarantee
and Security Agreement, true and correct in all respects) on and as of the
Step-Up Date as if made on and as of such date (or, if any such representation
or warranty is expressly stated to have been made as of a specific date, as of
such specific date).


 


“Step-Up Date
Commitments” means, with respect to each Lender, the amount (if any) by
which such Lender has agreed to increase its Initial Commitment on the Step-Up
Date, as such additional commitments may be (a) reduced or increased from
time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Step-Up
Date Commitment is set forth on Schedule I, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Step-Up Date Commitment,
as applicable.  The initial aggregate
amount of the Lenders’ Step-Up Date Commitments is $75,000,000.


“Step-Up Date” means April 1, 2010.


 


“Subsidiary”
means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is,
as of such date, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.  Anything herein to the contrary
notwithstanding, the term “Subsidiary” shall not include any Person that
constitutes an Investment held by any Obligor in the ordinary course of
business and that is not, under GAAP, consolidated on the financial statements
of the Borrower and its Subsidiaries. 
Unless otherwise specified, “Subsidiary” means a Subsidiary of the
Borrower.


 


“Subsidiary Guarantor”
means any Subsidiary of the Borrower (including, following the Acquisition,
Subsidiaries of Allied) that is a Guarantor under the Guarantee and Security
Agreement.  It is understood and agreed
that (w) Designated Subsidiaries, (x) Excluded Entities, (y) so
long as the terms of the Allied Secured Indebtedness would prohibit it from
becoming a Subsidiary Guarantor hereunder, a Special Acquisition Subsidiary,
and (z) following consummation of the Acquisition, Allied Asset Holdings,
LLC (provided that so long as Allied Asset Holdings, LLC is not a “Subsidiary
Guarantor” or a “Designated Subsidiary”, all the assets and Investments of
Allied Asset Holdings, LLC and the aggregate amount of Investments in and to
Allied Asset Holdings, 


 

















 


LLC shall be excluded from the Borrowing Base), shall
not be required to be Subsidiary Guarantors.


 


“Taxes” means any
and all present or future taxes, levies, imposts, duties, deductions, charges
or withholdings imposed by any Governmental Authority.


 


“Transactions”
means the execution, delivery and performance by the Borrower of this Agreement
and the other Loan Documents, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.


 


“Type”, when used
in reference to any Loan or Borrowing, refers to whether the rate of interest
on such Loan, or on the Loans constituting such Borrowing, is determined by
reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“Uniform Commercial
Code” means the Uniform Commercial Code as in effect from time to time in
the State of New York.


 


“Unsecured
Indebtedness” means any Indebtedness of an Obligor (which may be Guaranteed
by one or more other Obligors) that (a) has no amortization prior to, and
a final maturity date not earlier than, six months after the Commitment
Termination Date, (b) has terms substantially comparable to market terms
for substantially similar debt of other similarly situated borrowers as reasonably
determined by at least two Joint Lead Arrangers and (c) is not secured by
any assets of any Obligor.


 


“U.S. Government
Securities” means securities that are direct obligations of, and
obligations the timely payment of principal and interest on which is fully
guaranteed by, the United States or any agency or instrumentality of the United
States the obligations of which are backed by the full faith and credit of the
United States and in the form of conventional bills, bonds, and notes.


 


“Valuation Policy”
has the meaning assigned to such term in Section 5.12(b)(ii)(B).


 


“Value” has the
meaning assigned to such term in Section 5.13.


 


“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle E of Title IV of ERISA.


 


SECTION 1.02.  Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g.,
a “Dollar Loan” or “Multicurrency Loan”), by Type (e.g., an “ABR Loan”) or by Class and Type (e.g., a “Multicurrency
LIBOR Loan”).  Borrowings
also may be classified and referred to by Class (e.g., a “Dollar Borrowing” or “Multicurrency
Borrowing”), by Type (e.g., an “ABR Borrowing”) or by Class and Type (e.g., a “Multicurrency
LIBOR Borrowing”).  Loans
and Borrowings may also be identified by Currency.


 

















 


SECTION 1.03.  Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”.  The word “will” shall be construed to have
the same meaning and effect as the word “shall”.  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented, renewed or otherwise
modified (subject to any restrictions on such amendments, supplements, renewals
or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the
words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset”
and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.


 


SECTION 1.04.  Accounting Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the Restatement Effective Date in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.  The Borrower covenants and
agrees with the Lenders that whether or not the Borrower may at any time adopt
Financial Accounting Standard No. 159 (or successor standard solely as it
relates to fair valuing liabilities) or accounts for liabilities acquired in an
acquisition on a fair value basis pursuant to Financial Accounting Standard No. 141(R) (or
successor standard solely as it relates to fair valuing liabilities), all
determinations of compliance with the terms and conditions of this Agreement
shall be made on the basis that the Borrower has not adopted Financial
Accounting Standard No. 159 (or such successor standard solely as it relates
to fair valuing liabilities) or, in the case of liabilities acquired in an
acquisition, Financial Accounting Standard No. 141(R) (or such
successor standard solely as it relates to fair valuing liabilities); provided
that, if the Borrower shall at any time adopt Financial Accounting Standard No. 159,
or if Financial Accounting Standard No. 141(R) shall apply with
respect to any acquired assets or liabilities, for purposes of calculating
compliance with Section 6.07(a) and Section 6.07(b) after
such adoption, or for any period ending after such adoption, Specified Debt
shall be valued as it is valued under 


 

















 


Financial Accounting
Standard No. 159 or Financial Accounting Standard No. 141(R), as
applicable.


 


SECTION 1.06.  Currencies; Currency Equivalents.


 


(a)        Currencies Generally.  At any time, any reference in the definition
of the term “Agreed Foreign Currency” or in any other provision of this
Agreement to the Currency of any particular nation means the lawful currency of
such nation at such time whether or not the name of such Currency is the same
as it was on the Restatement Effective Date. 
Except as provided in Section 2.09(b) and the last sentence of
Section 2.16(a), for purposes of determining (i) whether the amount
of any Borrowing or Letter of Credit
under the Multicurrency Commitments, together with all other
Borrowings and Letters of Credit under
the Multicurrency Commitments then outstanding or to be borrowed
at the same time as such Borrowing, would exceed the aggregate amount of the InitialMulticurrency Commitments or
Commitments, as applicable, (ii) the aggregate unutilized amount of
the Multicurrency Commitments,
(iii) the Revolving Multicurrency
Credit Exposure, (iv) the LC Exposure, (v) the Covered Debt Amount
and (vi) the Borrowing Base or the Value or the fair market value of any
Portfolio Investment, the outstanding principal amount of any Borrowing or
Letter of Credit that is denominated in any Foreign Currency or the Value or
the fair market value of any Portfolio Investment that is denominated in any
Foreign Currency shall be deemed to be the Dollar Equivalent of the amount of
the Foreign Currency of such Borrowing, Letter of Credit or Portfolio
Investment, as the case may be, determined as of the date of such Borrowing or
Letter of Credit (determined in accordance with the last sentence of the
definition of the term “Interest Period”) or the date of valuation of such
Portfolio Investment, as the case may be. 
Wherever in this Agreement in connection with a Borrowing or Loan an amount,
such as a required minimum or multiple amount, is expressed in Dollars, but
such Borrowing or Loan is denominated in a Foreign Currency, such amount shall
be the relevant Foreign Currency Equivalent of such Dollar amount (rounded to
the nearest 1,000 units of such Foreign Currency).


 


(b)        Special Provisions Relating to Euro.  Each obligation hereunder of any party hereto
that is denominated in the National Currency of a state that is not a
Participating Member State on the Restatement Effective Date shall, effective
from the date on which such state becomes a Participating Member State, be
redenominated in Euro in accordance with the legislation of the European Union
applicable to the European Monetary Union; provided that, if and to the
extent that any such legislation provides that any such obligation of any such
party payable within such Participating Member State by crediting an account of
the creditor can be paid by the debtor either in Euros or such National
Currency, such party shall be entitled to pay or repay such amount either in
Euros or in such National Currency.  If
the basis of accrual of interest or fees expressed in this Agreement with
respect to an Agreed Foreign Currency of any country that becomes a
Participating Member State after the date on which such currency becomes an
Agreed Foreign Currency shall be inconsistent with any convention or practice
in the interbank market for the basis of accrual of interest or fees in respect
of the Euro, such convention or practice shall replace such expressed basis
effective as of and from the date on which 


 

















 


such state becomes a Participating Member State; provided
that, with respect to any Borrowing denominated in such currency that is
outstanding immediately prior to such date, such replacement shall take effect
at the end of the Interest Period therefor.


 


Without prejudice to the
respective liabilities of the Borrower to the Lenders and the Lenders to the
Borrower under or pursuant to this Agreement, each provision of this Agreement
shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time, in consultation with the Borrower,
reasonably specify to be necessary or appropriate to reflect the introduction
or changeover to the Euro in any country that becomes a Participating Member
State after the Restatement Effective Date; provided that the
Administrative Agent shall provide the Borrower and the Lenders with prior
notice of the proposed change with an explanation of such change in sufficient
time to permit the Borrower and the Lenders an opportunity to respond to such
proposed change.


 


 


ARTICLE
II


 


THE
CREDITS


 


SECTION 2.01.  The Commitments.  Subject to the terms and conditions set forth
herein, each:


 


(a)        each Dollar Lender agrees to make Loans
in Dollars to the Borrower from time to time during the Availability Period in
an aggregate principal amount that will not result in (i) such Lender’s
Revolving Dollar Credit Exposure exceeding such Lender’s Dollar Commitment, (ii) the
aggregate Revolving Dollar Credit Exposure of all of the Lenders exceeding the
Dollar Commitments, or (iii) the total Covered Debt Amount exceeding the
Borrowing Base then in effect; and


 


(b)        each Multicurrency Lender
agrees to make Loans in Dollars or in any Agreed Foreign Currency to the
Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) prior to the Step-Up Date,i) such Lender’s Revolving Multicurrency Credit Exposure
exceeding such Lender’s Initial Commitment and on or after the Step-Up Date,
such Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment, (b) prior
to the Step-Up Date, the aggregate Revolving Credit Exposure of all of the
Lenders exceeding the aggregate Initial Commitments and on or after the Step-Up
Date, the aggregate Revolving Credit Exposure of all of the Lenders exceeding
the Commitments, or (cMulticurrency
Commitment, (ii) the aggregate Revolving Multicurrency Credit Exposure of
all of the Lenders exceeding the Multicurrency Commitments, or (iii) the
total Covered Debt Amount exceeding the Borrowing Base then in effect.


 


Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Loans.


 

















 


SECTION 2.02.  Loans and Borrowings.


 


(a)        Obligations of Lenders.  Each Loan shall be made as part of a
Borrowing consisting of Loans of the same Class, Currency and Type made by the applicable Lenders ratably in
accordance with their respective Initial Commitments in the case of any Loan
or Borrowing made prior to the Step-Up Date and ratably in accordance with
their respective Commitments in the case of any Loan or Borrowing made on or
after the Step-Up DateCommitments
of the same Class.  The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commitments of the Lenders are several and no Lender shall be responsible for
any other Lender’s failure to make Loans as required.


 


(b)        Type of Loans.  Subject to Section 2.12, (i) each Borrowing of a Class shall be
constituted entirely of ABR Loans or of Eurocurrency Loans of such Class denominated in a single
Currency as the Borrower may request in accordance herewith.  Each ABR Loan shall be denominated in Dollars and (ii) each Pro-Rata Borrowing
shall be constituted entirely of ABR Loans or of Eurocurrency Loans
denominated in Dollars.  Each Lender at
its option may make any Eurocurrency Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.


 


(c)        Minimum Amounts.  Each Borrowing (whether Eurocurrency or ABR)
shall be in an aggregate amount of $1,000,000 or a larger multiple of
$1,000,000; provided that (i) an
ABR Borrowing of a Class may
be in an aggregate amount that is equal to the entire unused balance of the
total Commitments of such Class or
that is required to finance the reimbursement of an LC Disbursement of such Class as
contemplated by Section 2.04(f). and (ii) any Pro-Rata Borrowing may be in an aggregate
amount of $1,000,000 or a larger multiple of $1,000,000.  Borrowings of more than one Class, Currency and Type may be outstanding at
the same time.


 


(d)        Limitations on Interest Periods.  Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request (or to elect to
convert to or continue as a Eurocurrency Borrowing) any Borrowing if the
Interest Period requested therefor would end after the Commitment Termination
Date.


 


(e)        Restatement Effective Date
Adjustments.  On the Restatement
Effective Date the Borrower will borrow from each of the Lenders, and the
Lenders will make Loans to the Borrower (in the case of Eurocurrency Loans,
with Interest Period(s) ending on the date(s) of any then outstanding
Interest Period(s) under the Original Agreement, provided that for any
outstanding Interest Period of less than 1-month, the LIBO Rate will be equal
to 1-month LIBOR), and (notwithstanding the provisions in this Agreement
requiring that borrowings and prepayments be made ratably in accordance with
the principal amounts of the Loans held by the Lenders) the Borrower shall
prepay all of the Loans held by the Retiring Lenders and prepay the Loans held
by the Lenders in such amounts as may be necessary, together with any amounts
payable under Section 


 

















 


2.14, so that after giving effect to such Loans and
prepayments, the Loans (and Interest Period(s) of Eurocurrency Loan(s))
shall be held by the Lenders pro rata in accordance with the respective amounts
of their Initial Commitments. 
Concurrently therewith, the Lenders shall be deemed to have adjusted
their participation interests in any outstanding Letters of Credit so that such
interests are held ratably in accordance with their Initial Commitments as so
modified.


 


SECTION 2.03.  Requests for Borrowings.


 


(a)        Notice by the Borrower.  To request a Borrowing, the Borrower shall
notify the Administrative Agent of such request by telephone (i) in the
case of a Eurocurrency Borrowing denominated in Dollars, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing, (ii) in the case of a Eurocurrency Borrowing denominated in a
Foreign Currency, not later than 11:00 a.m., London time, three Business
Days before the date of the proposed Borrowing or (iii) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the date
of the proposed Borrowing.  Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower.  Notwithstanding the other provisions of this
Agreement, in the case of any Borrowing denominated in Dollars, the Borrower
may request that such Borrowing be split into a Dollar Loan in an aggregate principal
amount equal to the Pro-Rata Dollar Portion and a Multicurrency Loan in an
aggregate amount equal to the Pro-Rata Multicurrency Portion (any such
Borrowing, a “Pro-Rata Borrowing”). 
Except as expressly set forth in this Agreement, a Pro-Rata Borrowing
shall be treated as being comprised of two separate Borrowings, a Dollar
Borrowing under the Dollar Commitments and a Multicurrency Borrowing under the
Multicurrency Commitments.


 


(b)        Content of Borrowing Requests.  Each telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:


 


(i)         whether such Borrowing is to be made under the Dollar Commitments, the
Multicurrency Commitments or a Pro-Rata Borrowing;


 


(ii)        if such Borrowing
is a Pro-Rata Borrowing, the Pro-Rata Dollar Portion and the Pro-Rata
Multicurrency Portion;


 


(iii)       the
aggregate amount and Currency of the requested Borrowing;


 


(iiiv)     the date of such Borrowing, which shall be
a Business Day;


 


(iiiv)     in the case of a Borrowing denominated in
Dollars, whether such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;


 

















 


(ivvi)   in the case of a Eurocurrency Borrowing, the Interest Period
therefor, which shall be a period contemplated by the definition of the term “Interest
Period” and permitted under Section 2.02(d); and


 


(vvii)   the location and number of the Borrower’s account to which funds
are to be disbursed, which shall comply with the requirements of Section 2.05.


 


(c)        Notice by the Administrative Agent to
the Lenders.  Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each
applicable Lender of the details thereof and of the amounts of
such Lender’s Loan to be made as part of the requested Borrowing.


 


(d)        Failure to Elect.  If no
election as to the Class of a Borrowing is specified, then the requested
Borrowing shall be denominated in Dollars and shall be a Pro-Rata
Borrowing.  If no election
as to the Currency of a Borrowing is specified, then the requested Borrowing
shall be denominated in Dollars.  If no
election as to the Type of a Borrowing is specified, then the requested
Borrowing shall be a Eurocurrency Borrowing having an Interest Period of one
month and, if an Agreed Foreign Currency has been specified, the requested
Borrowing shall be a Eurocurrency Borrowing denominated in such Agreed Foreign
Currency and having an Interest Period of one month.  If a Eurocurrency Borrowing is requested but
no Interest Period is specified, (i) if the Currency specified for such
Borrowing is Dollars (or if no Currency has been so specified), the requested
Borrowing shall be a Eurocurrency Borrowing denominated in Dollars having an
Interest Period of one month’s duration, and (ii) if the Currency
specified for such Borrowing is an Agreed Foreign Currency, the Borrower shall
be deemed to have selected an Interest Period of one month’s duration.


 


SECTION 2.04.  Letters of Credit.


 


(a)        General.  Subject to the terms and conditions set forth
herein, in addition to the Loans provided for in Section 2.01, the
Borrower may request the Issuing Bank to issue, at any time and from time to
time during the Availability Period and
under the Multicurrency Commitments, Letters of Credit
denominated in Dollars or in any Agreed Foreign Currency for its own account in
such form as is acceptable to the Issuing Bank in its reasonable determination
and for the benefit of such named beneficiary or beneficiaries as are specified
by the Borrower.  Letters of Credit
issued hereunder shall constitute utilization of the Initial Commitments
prior to the Step-Up Date and, on and after the Step-Up Date, shall constitute
utilization of the Commitments,Multicurrency
Commitments up to the aggregate amount then available to be drawn
thereunder.


 


(b)        Notice of Issuance, Amendment,
Renewal or Extension.  To request the
issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so have been
approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting 


 

















 


the issuance of a Letter of Credit, or identifying the
Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the
date on which such Letter of Credit is to expire (which shall comply with
paragraph (d) of this Section), the amount and Currency of such Letter of
Credit, stating that such Letter of
Credit is to be issued under the Multicurrency Commitments, the
name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit.  If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing Bank’s
standard form in connection with any request for a Letter of Credit.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Bank relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.


 


(c)        Limitations on Amounts.  A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i) the
aggregate LC Exposure of the Issuing Bank (determined for these purposes
without giving effect to the participations therein of the Lenders pursuant to
paragraph (e) of this Section) shall not exceed $50,000,000, (ii) the
total Revolving Multicurrency Credit
Exposures shall not exceed the aggregate Multicurrency Commitments and (iii) the total Covered
Debt Amount shall not exceed the Borrowing Base then in effect.


 


(d)        Expiration Date.  Each Letter of Credit shall expire at or
prior to the close of business on the date twelve months after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, twelve months after the then-current expiration date of such Letter of
Credit, so long as such renewal or extension occurs within three months of such
then-current expiration date); provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods.


 


(e)        Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) by the Issuing
Bank, and without any further action on the part of the Issuing Bank or the
Lenders, the Issuing Bank hereby grants to each Multicurrency Lender, and each Multicurrency Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Multicurrency Percentage
of the aggregate amount available to be drawn under such Letter of Credit.  Each
Multicurrency Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the applicable
Commitments, provided that no Multicurrency
Lender shall be required to purchase a participation in a Letter
of Credit pursuant to this Section 2.04(e) if (x) the conditions
set 


 

















 


forth in Section 4.02 would not be satisfied in
respect of a Borrowing at the time such Letter of Credit was issued and (y) the
Required Multicurrency
Lenders shall have so notified the Issuing Bank in writing and shall not have
subsequently determined that the circumstances giving rise to such conditions not
being satisfied no longer exist.


 


In consideration and in
furtherance of the foregoing, each
Multicurrency Lender hereby absolutely and unconditionally agrees
to pay to the Administrative Agent, for account of the Issuing Bank, such
Lender’s Applicable Multicurrency Percentage
of each LC Disbursement made by the Issuing Bank in respect of Letters of Credit promptly upon
the request of the Issuing Bank at any time from the time of such LC
Disbursement until such LC Disbursement is reimbursed by the Borrower or at any
time after any reimbursement payment is required to be refunded to the Borrower
for any reason.  Such payment shall be
made without any offset, abatement, withholding or reduction whatsoever.  Each such payment shall be made in the same
manner as provided in Section 2.05 with respect to Loans made by such
Lender (and Section 2.05 shall apply, mutatis  mutandis, to
the payment obligations of the Multicurrency
Lenders), and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Multicurrency Lenders.  Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to the next
following paragraph, the Administrative Agent shall distribute such payment to
the Issuing Bank or, to the extent that the Multicurrency Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear.  Any payment made by a Multicurrency Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


 


(f)         Reimbursement.  If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse the
Issuing Bank in respect of such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, New
York City time, on (i) the Business Day that the Borrower receives notice
of such LC Disbursement, if such notice is received prior to 10:00 a.m.,
New York City time, or (ii) the Business Day immediately following the day
that the Borrower receives such notice, if such notice is not received prior to
such time, provided that, if such LC Disbursement is not less than
$1,000,000, the Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment be
financed with an ABR Borrowing of
either Class (or a Pro-Rata Borrowing) in an equivalent
amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Borrowing.


 


If the Borrower fails to
make such payment when due, the Administrative Agent shall notify each applicable Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable
Multicurrency Percentage thereof.


 






 












 


(g)          Obligations Absolute.  The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (f) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit, or any term or provision therein, (ii) any draft
or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply strictly with the terms of such Letter of Credit, and (iv) any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of the Borrower’s obligations hereunder.


 


Neither the
Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit by the Issuing
Bank or any payment or failure to make any payment thereunder (irrespective of
any of the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that the foregoing shall not
be construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank’s
gross negligence or willful misconduct when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree that:


 


(i)            the Issuing Bank may
accept documents that appear on their face to be in substantial compliance with
the terms of a Letter of Credit without responsibility for further
investigation, regardless of any notice or information to the contrary, and may
make payment upon presentation of documents that appear on their face to be in
substantial compliance with the terms of such Letter of Credit;


 


(ii)           the Issuing Bank shall
have the right, in its sole discretion, to decline to accept such documents and
to make such payment if such documents are not in strict compliance with the
terms of such Letter of Credit; and


 


(iii)         this sentence shall establish the standard of
care to be exercised by the Issuing Bank when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof (and the parties hereto hereby waive, to the extent permitted by
applicable law, any standard of care inconsistent with the foregoing).


 

















 


(h)          Disbursement
Procedures.  The Issuing Bank shall,
within a reasonable time following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.  The Issuing Bank shall promptly after such examination
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to
give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the applicable Lenders with respect to any such LC
Disbursement.


 


(i)            Interim Interest.  If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement within two
Business Days following the date when due pursuant to paragraph (f) of
this Section, then the provisions of Section 2.11(c) shall
apply.  Interest accrued pursuant to this
paragraph shall be for account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (f) of
this Section to reimburse the Issuing Bank shall be for account of such
Lender to the extent of such payment.


 


(j)           Replacement of the
Issuing Bank.  The Issuing Bank may
be replaced at any time by written agreement between the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank.  The Administrative Agent shall
notify the Lenders of any such replacement of the Issuing Bank.  At the time any such replacement shall become
effective, the Borrower shall pay all unpaid fees accrued for account of the
replaced Issuing Bank pursuant to Section 2.10(b).  From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the replaced Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to
the term “Issuing Bank” shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require.  After the
replacement of the Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.


 


(k)          Cash
Collateralization.  If the Borrower
shall be required to provide cover for LC Exposure pursuant to Section 2.08(a),
Section 2.09(c) or the last paragraph of Article VII, the
Borrower shall immediately deposit into a segregated collateral account or
accounts (herein, collectively, the “Letter of Credit Collateral Account”)
in the name and under the dominion and control of the Administrative Agent Cash
denominated in the Currency of the Letter of Credit under which such LC
Exposure 


 

















 


arises in an amount equal to the amount required under
Section 2.08(a), Section 2.09(c) or the last paragraph of Article VII,
as applicable.  Such deposit shall be
held by the Administrative Agent as collateral in the first instance for the LC
Exposure under this Agreement and thereafter for the payment of the “Secured
Obligations” under and as defined in the Guarantee and Security Agreement, and
for these purposes the Borrower hereby grants a security interest to the
Administrative Agent for the benefit of the Lenders in the Letter of Credit
Collateral Account and in any financial assets (as defined in the Uniform
Commercial Code) or other property held therein.


 


SECTION 2.05.  Funding of Borrowings.


 


(a)          Funding by Lenders.  Each Lender shall make each Loan to be made
by it hereunder on the proposed date thereof by wire transfer of immediately
available funds by 1:00 p.m., Local Time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders.  The Administrative Agent
will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower designated by
the Borrower in the applicable Borrowing Request; provided that ABR
Borrowings made to finance the reimbursement of an LC Disbursement as provided
in Section 2.04(f) shall be remitted by the Administrative Agent to
the Issuing Bank.


 


(b)          Presumption by the
Administrative Agent.  Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount.  In such event, if a Lender has
not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment
to the Administrative Agent, at (i) in the case of such Lender, the
Federal Funds Effective Rate or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. 
If such Lender pays such amount to the Administrative Agent, then such
amount shall constitute such Lender’s Loan included in such Borrowing.  Nothing in this paragraph shall relieve any
Lender of its obligation to fulfill its commitments hereunder, and shall be
without prejudice to any claim the Borrower may have against a Lender that
shall have failed to make such payment to the Administrative Agent.


 


SECTION 2.06.  Interest Elections.


 


(a)          Elections by the
Borrower for Borrowings.  Subject to Section 2.03(d),
the Loans constituting each Borrowing initially shall be of the Type specified
in the applicable Borrowing Request and, in the case of a Eurocurrency
Borrowing, shall have the Interest Period specified in such Borrowing Request.  Thereafter, the Borrower 


 

















 


may elect to convert such Borrowing to a Borrowing of
a different Type or to continue such Borrowing as a Borrowing of the same Type
and, in the case of a Eurocurrency Borrowing, may elect the Interest Period
therefor, all as provided in this Section; provided, however,
that (i) a Borrowing of a Class may
only be continued or converted into a Borrowing of the same Class, (ii) a
Borrowing denominated in one Currency may not be continued as, or converted to,
a Borrowing in a different Currency, (iiiii) no Eurocurrency Borrowing denominated in a
Foreign Currency may be continued if, after giving effect thereto, the
aggregate Revolving Multicurrency Credit
Exposures would exceed the aggregate Multicurrency
Commitments, and (iiiiv) a Eurocurrency Borrowing denominated in a
Foreign Currency may not be converted to a Borrowing of a different Type.  The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders of the respective Class holding the Loans
constituting such Borrowing, and the Loans constituting each such portion shall
be considered a separate Borrowing.


 


(b)          Notice of Elections.  To make an election pursuant to this Section,
the Borrower shall notify the Administrative Agent of such election by
telephone by the time that a Borrowing Request would be required under Section 2.03
if the Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election.  Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly (but no later than
the close of business on the date of such request) by hand delivery or telecopy
to the Administrative Agent of a written Interest Election Request signed by
the Borrower.


 


(c)          Content of Interest
Election Requests.  Each telephonic
and written Interest Election Request shall specify the following information
in compliance with Section 2.02:


 


(i)           the
Borrowing (including the Class)
to which such Interest Election Request applies and, if different options are
being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to
be specified pursuant to clauses (iii) and (iv) of this paragraph
shall be specified for each resulting Borrowing);


 


(ii)          the
effective date of the election made pursuant to such Interest Election Request,
which shall be a Business Day;


 


(iii)        whether, in the case of a Borrowing denominated
in Dollars, the resulting Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing; and


 


(iv)         if
the resulting Borrowing is a Eurocurrency Borrowing, the Interest Period
therefor after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period” and permitted
under Section 2.02(d).


 

















 


(d)          Notice by the
Administrative Agent to the Lenders. 
Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each
applicable Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.


 


(e)          Failure to Elect;
Events of Default.  If the Borrower
fails to deliver a timely and complete Interest Election Request with respect
to a Eurocurrency Borrowing prior to the end of the Interest Period therefor,
then, unless such Borrowing is repaid as provided herein, (i) if such
Borrowing is denominated in Dollars, at the end of such Interest Period such
Borrowing shall be converted to a Eurocurrency Borrowing of the same Class having an Interest
Period of one month, and (ii) if such Borrowing is denominated in a
Foreign Currency, the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing no outstanding Eurocurrency Borrowing may have an
Interest Period of more than one month’s duration.


 


SECTION 2.07.  Termination, Reduction or Increase of the
Commitments.


 


(a)          Scheduled Termination.  Unless previously terminated, the Commitments
of each Class shall
terminate on the Commitment Termination Date.  Unless previously terminated, the Step-Up Date
Commitments shall terminate on June 30, 2010 if the Step-Up Date has not
occurred prior to such date (or, if such date has been extended to September 30,
2010 in accordance with clause (a) of the definition of Step-Up Date, September 30,
2010 if the Step-Up Date shall not have occurred by such date).


 


(b)          Voluntary Termination
or Reduction.  The Borrower may at
any time terminate, or from time to time reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is
$25,000,000 (or, if less, the entire remaining amount of the Commitments of any Class) or a larger
multiple of $5,000,000 in excess thereof and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent
prepayment of the Loans in accordance with Section 2.09, the total
Revolving Credit Exposures of either Class would
exceed the total Commitments of such
Class.


 


(c)          Notice of Voluntary
Termination or Reduction.  The
Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the
applicable Lenders of the contents thereof.  Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments of a Class delivered by the Borrower may state that
such notice is conditioned upon the effectiveness of other credit facilities,
in which case such 


 

















 


notice may be revoked by the Borrower (by notice to
the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied.


 


(d)          Effect of Termination
or Reduction.  Any termination or
reduction of the Commitments of a Class shall
be permanent.  Each reduction of the
Commitments shall be made ratably among the Lenders in accordance with their
respective Commitments; provided that, prior to the Step-Up Date, any
reduction in Commitments shall be applied first, to reduce the Step-Up Date
Commitments until the Step-Up Date Commitments are reduced to zero and,
thereafter pro rata to the remaining Commitments.


 


(e)          Increase of the
Commitments.


 


(i)           Requests
for Increase by Borrower.  The
Borrower may at any time propose that the Commitments of a Class hereunder be increased (each
such proposed increase being a “Commitment Increase”) by notice to the
Administrative Agent, specifying each existing Lender (each an “Increasing
Lender”) and/or each additional lender (each an “Assuming Lender”)
that shall have agreed to an additional Commitment and the date on which such
increase is to be effective (the “Commitment Increase Date”), which
shall be a Business Day at least three Business Days after delivery of such
notice and 30 days prior to the Commitment Termination Date; provided
that:


 


(A)         each increase shall be in
a minimum amount of at least $25,000,000 or a larger multiple of $5,000,000 in
excess thereof (or such lesser amount as shall be determined in the discretion
of the Administrative Agent);


 


(B)         the aggregate amount of
all Commitment Increases after the
Restatement Effective Date shall not exceed $360,000,000;
provided that, prior to the Step-Up Date, the aggregate amount of any
Commitment Increases shall not exceed $282,500,000.


 


(C)         each Assuming Lender
shall be consented to by the Administrative Agent and the Issuing Bank;


 


(D)         no Default shall have
occurred and be continuing on such Commitment Increase Date or shall result
from the proposed Commitment Increase; and


 


(E)          the representations and
warranties contained in this Agreement shall be true and correct in all
material respects (or, in the case of the representations and warranties in
Sections 3.01 (first sentence with respect to the Obligors), 3.02, 3.04, 3.11
and 3.15 of this Agreement, and in Sections 2.01, 2.02 and 2.04 through 2.09 of
the Guarantee and Security Agreement, true and correct in all respects) on and
as of the Commitment Increase Date as if made on and as of such date (or, if
any such 


 

















 


representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date).


 


(ii)           Effectiveness of
Commitment Increase by Borrower.  The
Assuming Lender, if any, shall become a Lender hereunder as of such Commitment
Increase Date and the Commitment of the
respective Class of any Increasing Lender and such Assuming
Lender shall be increased as of such Commitment Increase Date; provided
that:


 


(x)          the Administrative Agent
shall have received on or prior to 11:00 a.m., New York City time, on such
Commitment Increase Date a certificate of a duly authorized officer of the
Borrower stating that each of the applicable conditions to such Commitment
Increase set forth in the foregoing paragraph (i) has been satisfied; and


 


(y)          each Assuming Lender or
Increasing Lender shall have delivered to the Administrative Agent, on or prior
to 11:00 a.m., New York City time, on such Commitment Increase Date, an
agreement, in form and substance satisfactory to the Borrower and the
Administrative Agent, pursuant to which such Lender shall, effective as of such
Commitment Increase Date, undertake a Commitment or an increase of Commitment in each case of the respective Class,
duly executed by such Assuming Lender or Increasing Lender, as applicable, and
the Borrower and acknowledged by the Administrative Agent.


 


(iii)         Recordation into Register.  Upon its receipt of an agreement referred to
in clause (ii)(y) above executed by an Assuming Lender or an Increasing
Lender, together with the certificate referred to in clause (ii)(x) above,
the Administrative Agent shall, if such agreement has been completed, (x) accept
such agreement, (y) record the information contained therein in the
Register and (z) give prompt notice thereof to the Borrower.


 


(iv)         Adjustments of
Borrowings upon Effectiveness of Increase and Step-Up Date.  In the event that the Administrative Agent
shall have received notice from the Borrower as to any agreement with respect
to a Commitment Increase prior to the relevant Commitment Increase Date and the
actions provided for in clauses (ii)(x) and (ii)(y) above shall have
occurred by 9:00 a.m., New York City time, on such Commitment Increase
Date or shall have received notice at least 4 Business Days prior to the
proposed Step-Up Date provided that the conditions to the Step-Up Date have
been satisfied by 12:00 p.m. New York City time as of the Business Day
immediately preceding such proposed Step-Up Date, the Administrative Agent
shall notify the Lenders (including any Assuming Lenders) of the occurrence of
such Commitment Increase Date or Step-Up Date, as applicable, promptly on such
date by facsimile transmission or electronic messaging system.  If on the Commitment Increase Date or 


 

















 


Step-Up Date, as applicable, any Loans shall be outstanding,
the Borrower will borrow from each of the Increasing Lenders or Lenders with
Step-Up Date Commitments, as applicable, and the Increasing Lenders or Lenders
with Step-Up Date Commitments, as applicable, will make Loans to the Borrower.  On
the Commitment Increase Date, the Borrower shall (A) prepay the
outstanding Loans (if any) of the affected Class in full, (B) simultaneously
borrow new Loans of such Class hereunder in an amount equal to such
prepayment (in the case of Eurocurrency Loans, with LIBO Rates equal to the outstanding LIBO Rate and
with Interest Period(s) ending on the date(s) of any then outstanding
Interest Period(s) provided that for any outstanding Interest Period of
less than 1-month, the LIBO Rate will be equal to 1-month LIBOR), and
(notwithstanding the provisions in this Agreement requiring that borrowings and
prepayments be made ratably in accordance with the principal amounts of the
Loans held by the Lenders) the Borrower shall prepay the Loans held by the
other Lenders (other than the Increasing Lenders or Lenders with Step-Up Date
Commitments) in such amounts as may be necessary, together with any amounts
payable under Section 2.14 as a result of such prepayment, so that after
giving effect to such Loans and prepayments, the Loans (and Interest Period(s) of
Eurocurrency Loan(s)) shall be heldas
applicable (as modified hereby); provided that with respect to subclauses (A) and
(B), (x) the prepayment to, and borrowing from, any existing Lender shall
be effected by book entry to the extent that any portion of the amount prepaid
to such Lender will be subsequently borrowed from such Lender and (y) the
existing Lenders, the Increasing Lenders and the Assuming Lenders shall make
and receive payments among themselves, in a manner acceptable to the
Administrative Agent, so that, after giving effect thereto, the Loans of such Class are
held ratably by the Lenders pro rataof such Class in accordance with the
respective amounts of their Initial Commitments or Commitments, as
applicable (as modified hereby)Commitments
of such Class of such Lenders (after giving effect to such Commitment
Increase) and (C) pay to the Lenders of such Class the amounts, if
any, payable under Section 2.14 as a result of any such prepayment.  Concurrently therewith, the Lenders of such Class shall be
deemed to have adjusted their participation interests in any outstanding
Letters of Credit of such Class so
that such interests are held ratably in accordance with their Initial Commitments
or Commitments, as applicable,of
such Class as so increased.


 


SECTION 2.08.  Repayment of Loans; Evidence of Debt.


 


(a)          Repayment.  The Borrower hereby unconditionally promises
to pay to the Administrative Agent for account of the applicable Lenders the outstanding principal
amount of each Class of
the Loans on the Commitment Termination Date.


 


In addition, on the
Commitment Termination Date, the Borrower shall deposit into the Letter of
Credit Collateral Account Cash in an amount equal to 102% of the undrawn face
amount of all Letters of Credit outstanding on the close of business on the
Commitment Termination Date, such deposit to be held by the Administrative
Agent as collateral security for the LC Exposure under this Agreement in
respect of the undrawn portion of such Letters of Credit.


 

















 


(b)          Manner of Payment.  Prior to any repayment or prepayment of any
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be paid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 11:00 a.m., New York City time,
three Business Days before the scheduled date of such repayment; provided
that, each repayment of
Borrowings within a Class shall
be applied to repay any outstanding ABR Borrowings of such Class before any other Borrowings of such Class.  If the Borrower fails to make a timely
selection of the Borrowing or Borrowings to be repaid or prepaid, such payment
shall be applied, first, to pay any outstanding ABR Borrowings and, second,
to otherpro rata between any
outstanding Dollar ABR Borrowings and outstanding Multicurrency ABR Borrowings,
second, if no Class is specified, to any Pro-Rata Borrowings
in the order of the remaining duration of their respective Interest Periods
(the Pro-Rata Borrowing
with the shortest remaining Interest Period to be repaid first) and, third, within each Class, to any remaining Borrowings
in the order of the remaining duration of their respective Interest Periods
(the Borrowing with the shortest remaining Interest Period to be repaid
first).  Each payment of a Pro-Rata
Borrowing shall be applied ratably between the Dollar Loans and Multicurrency
Loans included in such Pro-Rata Borrowing.  Each payment of a Borrowing shall be
applied ratably to the Loansof a Class shall
be applied ratably to the Loans of such Class included in
such Borrowing.


 


(c)          Maintenance of
Records by Lenders.  Each Lender
shall maintain in accordance with its usual practice records evidencing the
indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender, including the amounts and Currency of principal and interest
payable and paid to such Lender from time to time hereunder.


 


(d)          Maintenance of
Records by the Administrative Agent. 
The Administrative Agent shall maintain records in which it shall record
(i) the amount and Currency of each Loan made hereunder, the Class and Type thereof and
each Interest Period therefor, (ii) the amount and Currency of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender of such Class hereunder
and (iii) the amount and Currency of any sum received by the
Administrative Agent hereunder for account of the Lenders and each Lender’s
share thereof.


 


(e)          Effect of Entries.  The entries made in the records maintained
pursuant to paragraph (c) or (d) of this Section shall be prima
facie evidence, absent obvious error, of the existence and amounts of
the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such records or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.


 


(f)           Promissory Notes.  Any Lender may request that Loans made by it
be evidenced by a promissory note.  In
such event, the Borrower shall prepare, execute and deliver to such Lender a
promissory note payable to such Lender (or, if requested by such Lender, to
such Lender and its registered assigns) and in a form approved by the
Administrative Agent.  Thereafter, the
Loans evidenced by such promissory note and 


 

















 


interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered
assigns).


 


SECTION 2.09.  Prepayment of Loans.


 


(a)          Optional Prepayments.  The Borrower shall have the right at any time
and from time to time to prepay any Borrowing in whole or in part, without
premium or penalty except for payments under Section 2.14, subject to the
requirements of this Section.


 


(b)          Mandatory Prepayments
due to Changes in Exchange Rates.


 


(i)           Determination
of Amount Outstanding.  On each
Quarterly Date and, in addition, promptly upon the receipt by the
Administrative Agent of a Currency Valuation Notice (as defined below), the
Administrative Agent shall determine the aggregate Revolving Multicurrency Credit Exposure.  For the purpose of this determination, the
outstanding principal amount of any Loan that is denominated in any Foreign
Currency shall be deemed to be the Dollar Equivalent of the amount in the
Foreign Currency of such Loan, determined as of such Quarterly Date or, in the
case of a Currency Valuation Notice received by the Administrative Agent prior
to 11:00 a.m., New York City time, on a Business Day, on such Business Day
or, in the case of a Currency Valuation Notice otherwise received, on the first
Business Day after such Currency Valuation Notice is received.  Upon making such determination, the
Administrative Agent shall promptly notify the Multicurrency Lenders and the Borrower
thereof.


 


(ii)          Prepayment.  If, on the date of such determination the
aggregate Revolving Multicurrency Credit
Exposure exceeds 105% of the aggregate amount of the Multicurrency Commitments as then in effect,
the Borrower shall prepay the Multicurrency
Loans (and/or provide cover for Multicurrency LC Exposure as specified in Section 2.04(k))
within 15 Business Days following such date of determination in such amounts as
shall be necessary so that after giving effect thereto the aggregate Revolving Multicurrency Credit Exposure
does not exceed the Multicurrency
Commitments.


 


For purposes hereof, “Currency Valuation Notice”
means a notice given by the Required Multicurrency
Lenders to the Administrative Agent stating that such notice is a
“Currency Valuation Notice” and requesting that the Administrative Agent
determine the aggregate Revolving
Multicurrency Credit Exposure. 
The Administrative Agent shall not be required to make more than one
valuation determination pursuant to Currency Valuation Notices within any
rolling three month period.


 


Any prepayment pursuant
to this paragraph shall be applied, first, to Multicurrency Loans outstanding and second,
as cover for Multicurrency
LC Exposure.


 
















 


(c)          Mandatory Prepayments
due to Borrowing Base Deficiency.  In
the event that at any time any Borrowing Base Deficiency shall exist, the
Borrower shall prepay the Loans (or provide cover for Letters of Credit as
contemplated by Section 2.04(k)), or reduce Permitted Indebtedness or
Indebtedness incurred pursuant to Section 6.01(g), in such amounts as
shall be necessary so that such Borrowing Base Deficiency is immediately cured,
provided that (i) the aggregate amount of such prepayment of Loans
(and cover for Letters of Credit) shall be at least equal to the Revolving
Credit Exposure’s ratable share of the aggregate prepayment and reduction of
Permitted Indebtedness and of Indebtedness incurred pursuant to Section 6.01(g) and
(ii) if, within five Business Days after delivery of a Borrowing Base
Certificate demonstrating such Borrowing Base Deficiency (and/or at such other
times as the Borrower has knowledge of such Borrowing Base Deficiency), the
Borrower shall present the Administrative Agent with a reasonably feasible plan
to enable such Borrowing Base Deficiency to be cured within 30 Business Days
(which 30-Business Day period shall include the five Business Days permitted
for delivery of such plan), then such prepayment or reduction shall not be
required to be effected immediately but may be effected in accordance with such
plan (with such modifications as the Borrower may reasonably determine), so
long as such Borrowing Base Deficiency is cured within such 30-Business Day
period.


 


(d)          Notices, Etc.  The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in
the case of prepayment of a Eurocurrency Borrowing, not later than 11:00 a.m.,
New York City time (or, in the case of a Borrowing denominated in a Foreign
Currency, 11:00 a.m., London time), three Business Days before the date of
prepayment or (ii) in the case of prepayment of an ABR Borrowing, not
later than 11:00 a.m., New York City time, on the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment; provided
that, if a notice of prepayment is given in connection with a conditional
notice of termination of the Commitments of a Class as contemplated by Section 2.07, then
such notice of prepayment may be revoked if such notice of termination is
revoked in accordance with Section 2.07. 
Promptly following receipt of any such notice relating to a Borrowing,
the Administrative Agent shall advise the affected Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of a Borrowing of the
same Type as provided in Section 2.02, except as necessary to apply fully
the required amount of a mandatory prepayment. 
Each prepayment of a Borrowing of
a Class shall be applied ratably to the Loans of such Class included in
the prepaid Borrowing.  Prepayments shall
be accompanied by accrued interest to the extent required by Section 2.11
and shall be made in the manner specified in Section 2.08(b).


 


SECTION 2.10.  Fees.


 


(a)          Commitment Fee.  The Borrower agrees to pay to the
Administrative Agent for account of each Lender a commitment fee, which shall
accrue at the Applicable Margin on the average daily unused amount of the Dollar Commitment and Multicurrency Commitment, as applicable,
of such Lender during the period from 


 

















 


and including the Restatement Effective Date to but
excluding the earlier of the date such Commitment terminates and the Commitment
Termination Date.  Accrued commitment
fees shall be payable within one Business Day after each Quarterly Date and on
the earlier of the date the Commitments
of the respective Class terminate and the Commitment
Termination Date, commencing on the first such date to occur after the
Restatement Effective Date.  All
commitment fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).  For purposes of
computing commitment fees, the Commitment of any Class of a Lender shall be deemed to
be used to the extent of the outstanding Loans and LC Exposure of such Class of such Lender.


 


(b)          Letter of Credit Fees.  The Borrower agrees to pay (i) to the
Administrative Agent for account of each Multicurrency Lender a participation fee with
respect to its participations in Letters of Credit, which shall accrue at a
rate per annum equal to the Applicable Margin applicable to interest on
Eurocurrency Loans on the average daily amount of such Lender’s LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Restatement Effective Date to but
excluding the later of the date on which such Lender’s Multicurrency Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate of 0.25% per annum
on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Restatement Effective Date to but excluding the later of the date
of termination of the Commitments and the date on which there ceases to be any
LC Exposure, as well as the Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder.  Participation
fees and fronting fees accrued through and including each Quarterly Date shall
be payable on the third Business Day following such Quarterly Date, commencing
on the first such date to occur after the Restatement Effective Date; provided
that, all such fees with respect to the
Letters of Credit shall be payable on the date on which the Multicurrency Commitments
terminate (the “termination date”) the Borrower shall pay any such fees
that have accrued and that are unpaid on the termination date and, in the event
any Letters of Credit shall be outstanding that have expiration dates after the
termination date, the Borrower shall prepay on the termination date the full
amount of the participation and fronting fees that will accrue on such Letters
of Credit subsequent to the termination date through but not including the date
such outstanding Letters of Credit are scheduled to expire (and in that
connection, the Multicurrency
Lenders agree not later than the date two Business Days after the date upon
which the last such Letter of Credit shall expire or be terminated to rebate to
the Borrower the excess, if any, of the aggregate participation and fronting
fees that have been prepaid by the Borrower over the amount of such fees that
ultimately accrue through the date of such expiration or termination).  Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand.  All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).


 

















 


(c)          Administrative Agent
Fees.  The Borrower agrees to pay to
the Administrative Agent, for its own account, fees payable in the amounts and
at the times separately agreed upon between the Borrower and the Administrative
Agent.


 


(d)          Payment of Fees.  All fees payable hereunder shall be paid on
the dates due, in Dollars and immediately available funds, to the
Administrative Agent (or to the Issuing Bank, in the case of fees payable to
it) for distribution, in the case of facility fees and participation fees, to
the Lenders entitled thereto.  Fees paid
shall not be refundable under any circumstances absent obvious error.


 


SECTION 2.11.  Interest.


 


(a)          ABR Loans.  The Loans constituting each ABR Borrowing
shall bear interest at a rate per annum equal to the Alternate Base Rate plus
the Applicable Margin.


 


(b)          Eurocurrency Loans.  The Loans constituting each Eurocurrency
Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the related Interest Period for such Borrowing plus the
Applicable Margin.


 


(c)          Default Interest.  Notwithstanding the foregoing clauses (a) and
(b), if any principal of or interest on any Loan or any fee or other amount
payable by the Borrower hereunder is not paid when due, whether at stated
maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per
annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided above or (ii) in
the case of any other amount, 2% plus the rate applicable to ABR Loans
as provided in paragraph (a) of this Section.


 


(d)          Payment of Interest.  Accrued interest on each Loan shall be
payable in arrears on each Interest Payment Date for such Loan in the Currency
in which such Loan is denominated and upon termination of the Commitments
(including on the Commitment Termination Date); provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on
demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Loan prior to the Commitment Termination
Date), accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event
of any conversion of any Eurocurrency Borrowing denominated in Dollars prior to
the end of the Interest Period therefor, accrued interest on such Borrowing
shall be payable on the effective date of such conversion.


 


(e)          Computation.  All interest hereunder shall be computed on
the basis of a year of 360 days, except that interest computed by reference to
the Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in
a leap year), and in each case 


 

















 


shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).  The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.


 


SECTION 2.12.  Alternate Rate of Interest.  If prior to the commencement of the Interest
Period for any Eurocurrency Borrowing
of a Class (the Currency of such Borrowing herein called the
“Affected Currency”):


 


(a)          the Administrative Agent
determines (which determination shall be conclusive absent manifest error) that
adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for the Affected Currency for such Interest Period; or


 


(b)          the Administrative Agent
is advised by the Required Lenders of
such Class or, in the case of a Pro-Rata Borrowing, the Required Lenders, that
the Adjusted LIBO Rate for the Affected Currency for such Interest Period will
not adequately and fairly reflect the cost to such Lenders of making or
maintaining their respective Loans included in such Borrowing for such Interest
Period;


 


then the Administrative Agent shall give notice
thereof to the Borrower and the affected
Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and thesuch Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing of such Class to, or the continuation of
any Borrowing of such Class as,
a Eurocurrency Borrowing denominated in the Affected Currency shall be
ineffective and, if the Affected Currency is Dollars, such Borrowing (unless
prepaid) shall be continued as, or converted to, an ABR Borrowing, (ii) if
the Affected Currency is Dollars and any Borrowing Request requests a
Eurocurrency Borrowing from such Class denominated
in Dollars, such Borrowing shall be made as an ABR Borrowing and (iii) if
the Affected Currency is a Foreign Currency, any Borrowing Request that
requests a Eurocurrency Borrowing from
such Class denominated in the Affected Currency shall be
ineffective.


 


SECTION 2.13.  Increased Costs.


 


(a)          Increased Costs
Generally.  If any Change in Law
shall:


 


(i)           impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate
and, if applicable, the MCR Cost) or the Issuing Bank; or


 


(ii)          impose
on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans made by such Lender or
any Letter of Credit or participation therein;


 

















 


and the result of any of the foregoing shall be to
increase the cost to such Lenders of making or maintaining any Eurocurrency
Loan (or of maintaining its obligation to make any such Loan) or to increase
the cost to such Lender or the Issuing Bank of participating in, issuing or
maintaining any Letter of Credit or to reduce the amount of any sum received or
receivable by such Lender or the Issuing Bank hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, in Dollars, such additional amount or amounts
as will compensate such Lender or the Issuing Bank, as the case may be, for
such additional costs incurred or reduction suffered.


 


(b)          Capital Requirements.  If any Lender or the Issuing Bank determines
that any Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on such Lender’s or the Issuing Bank’s
capital or on the capital of such Lender’s or the Issuing Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender or
the Issuing Bank or such Lender’s or the Issuing Bank’s holding company could
have achieved but for such Change in Law (taking into consideration such Lender’s
or the Issuing Bank’s policies and the policies of such Lender’s or the Issuing
Bank’s holding company with respect to capital adequacy), by an amount deemed
to be material by such Lender or Issuing Bank, then from time to time the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, in
Dollars, such additional amount or amounts as will compensate such Lender or the
Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any
such reduction suffered.


 


(c)          Certificates from Lenders.  A certificate of a Lender or the Issuing Bank
setting forth the amount or amounts, in Dollars, necessary to compensate such
Lender or the Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be
promptly delivered to the Borrower and shall be conclusive absent manifest
error.  The Borrower shall pay such
Lender or the Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.


 


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


 

















 


SECTION 2.14.  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurocurrency Loan other than on the last day of an Interest
Period therefor (including as a result of the occurrence of the Step-Up
Date, any Commitment Increase Date or an Event of Default), (b) the
conversion of any Eurocurrency Loan other than on the last day of an Interest
Period therefor, (c) the failure to borrow, convert, continue or prepay
any Loan on the date specified in any notice delivered pursuant hereto
(including, in connection with the Step-Up Date or any Commitment
Increase Date, and regardless of whether such notice is permitted to be
revocable under Section 2.09(d) and is revoked in accordance
herewith), or (d) the assignment as a result of a request by the Borrower
pursuant to Section 2.18(b) of any Eurocurrency Loan other than on
the last day of an Interest Period therefor, then, in any such event, the
Borrower shall compensate each affected
Lender for the loss, cost and expense attributable to such event.  In the case of a Eurocurrency Loan, the loss
to any Lender attributable to any such event shall be deemed to include an
amount determined by such Lender to be equal to the excess, if any, of


 


(i)            the amount of interest
that such Lender would pay for a deposit equal to the principal amount of such
Loan denominated in the Currency of such Loan for the period from the date of
such payment, conversion, failure or assignment to the last day of the then
current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have
resulted from such borrowing, conversion or continuation) if the interest rate
payable on such deposit were equal to the Adjusted LIBO Rate for such Currency
for such Interest Period, over


 


(ii)           the amount of interest
that such Lender would earn on such principal amount for such period if such
Lender were to invest such principal amount for such period at the interest
rate that would be bid by such Lender (or an affiliate of such Lender) for
deposits denominated in such Currency from other banks in the eurocurrency
market at the commencement of such period.


 


Payment under this Section shall be made upon
request of a Lender delivered not later than five Business Days following the
payment, conversion, or failure to borrow, convert, continue or prepay that
gives rise to a claim under this Section accompanied by a certificate of
such Lender setting forth the amount or amounts that such Lender is entitled to
receive pursuant to this Section, which certificate shall be conclusive absent
manifest error.  The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days
after receipt thereof.


 


SECTION 2.15.  Taxes.


 


(a)          Payments Free of
Taxes.  Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (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) the
Administrative Agent, Lender or Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


(b)          Payment of Other
Taxes by the Borrower.  In addition,
the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.


 


(c)          Indemnification by
the Borrower.  The Borrower shall
indemnify the Administrative Agent, each Lender and the Issuing Bank for, and
within 30 Business Days after written demand therefor, pay the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Administrative Agent, such Lender or the Issuing Bank, as
the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate as
to the amount of such payment or liability delivered to the Borrower by a
Lender or the Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest
error.


 


(d)          Evidence of Payments.  As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the 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 the Administrative Agent.


 


(e)          Foreign Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by the Borrower,
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.


 


In addition, any Foreign
Lender, if requested by the Borrower or the Administrative Agent, shall deliver
such other documentation prescribed by applicable law or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Foreign Lender is subject
to backup withholding or information reporting requirements.


 

















 


Without limiting the
generality of the foregoing, if the Borrower is resident for tax purposes in
the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter upon the
reasonable request of the Borrower or the Administrative Agent, but only if
such Foreign 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 certifying
that the income receivable pursuant to this Agreement is effectively connected
with the conduct of a trade or business in the United States,


 


(iii)          in the case of a Foreign
Lender claiming the benefits of the exemption for portfolio interest under
section 881(c) of the Code, (A) a certificate to the effect that such
Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of
the Code, (2) a “10 percent shareholder” of the Borrower within the
meaning of section 881(c)(3)(B) of the Code, or (3) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and (B) duly
completed copies of Internal Revenue Service Form W-8BEN (or any successor
form) certifying that the Foreign Lender is not a United States Person, or


 


(iv)         any other form including
Internal Revenue Service Form W-8IMY as applicable 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 the Borrower to
determine the withholding or deduction required to be made.


 


In addition, upon
reasonable request of the Borrower or the Administrative Agent, each Foreign
Lender shall deliver such forms promptly upon the expiration or invalidity of
any form previously delivered by such Foreign Lender, provided it is legally
able to do so at the time.  Each Foreign
Lender shall promptly notify the Borrower and the Administrative Agent at any
time the chief tax officer of such Foreign Lender becomes aware that it no
longer satisfies the legal requirements to provide any previously delivered
form or certificate to the Borrower (or any other form of certification adopted
by the U.S. or other taxing authorities for such purpose).


 


(f)           United States Lenders.  Each Lender and Issuing Bank that is not a
Foreign Lender shall deliver to the Borrower (with a copy to the Administrative
Agent), prior to the date on which such Issuing Bank or Lender becomes a party
to this Agreement, upon the expiration or invalidity of any forms previously
delivered and at 


 

















 


times reasonably requested by the Borrower, duly
completed copies of Internal Revenue Service Form W-9 or any successor
form, provided it is legally able to do so at the time.


 


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


 


SECTION 2.16.  Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.


 


(a)          Payments by the
Borrower.  The Borrower shall make
each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or under Section 2.13,
2.14 or 2.15, or otherwise) or under any other Loan Document (except to the
extent otherwise provided therein) prior to 2:00 p.m., Local Time, on the
date when due, in immediately available funds, without set-off or
counterclaim.  Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon.  All
such payments shall be made to the Administrative Agent at the Administrative
Agent’s Account, except as otherwise expressly provided in the relevant Loan
Document and except payments to be made directly to the Issuing Bank as
expressly provided herein and payments pursuant to Sections 2.13, 2.14, 2.15
and 9.03, which shall be made directly to the Persons entitled thereto.  The Administrative Agent shall distribute any
such payments received by it for account of any other Person to the appropriate
recipient promptly following receipt thereof. 
If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day
and, in the case of any payment accruing interest, interest thereon shall be
payable for the period of such extension. 
All amounts owing under this Agreement (including commitment fees,
payments required under Section 2.13, and payments required under Section 2.14
relating to any Loan denominated in Dollars, but not including principal of,
and interest on, any 


 

















 


Loan denominated in any Foreign Currency or payments
relating to any such Loan required under Section 2.14, which are payable
in such Foreign Currency) or under any other Loan Document (except to the
extent otherwise provided therein) are payable in Dollars.  Notwithstanding the foregoing, if the
Borrower shall fail to pay any principal of any Loan when due (whether at
stated maturity, by acceleration, by mandatory prepayment or otherwise), the
unpaid portion of such Loan shall, if such Loan is not denominated in Dollars,
automatically be redenominated in Dollars on the due date thereof (or, if such
due date is a day other than the last day of the Interest Period therefor, on
the last day of such Interest Period) in an amount equal to the Dollar
Equivalent thereof on the date of such redenomination and such principal shall
be payable on demand; and if the Borrower shall fail to pay any interest on any
Loan that is not denominated in Dollars, such interest shall automatically be redenominated
in Dollars on the due date therefor (or, if such due date is a day other than
the last day of the Interest Period therefor, on the last day of such Interest
Period) in an amount equal to the Dollar Equivalent thereof on the date of such
redenomination and such interest shall be payable on demand.


 


(b)          Application of
Insufficient Payments.  If at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements,
interest and fees of a Class then
due hereunder, such funds shall be applied (i) first, to pay interest and
fees of such Class then
due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of interest and fees of
such Class then due to such parties, and (ii) second,
to pay principal and unreimbursed LC Disbursements of such Class then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of principal
and unreimbursed LC Disbursements of
such Class then due to such parties.


 


(c)          Pro Rata Treatment.  Except to the extent otherwise provided
herein: (i) prior to the Step-Up Date, each Borrowing of a Class shall be made
from the Lenders of such Class,
and each termination or reduction of the amount of the Initial Commitments of a Class under Section 2.07
shall be applied to the respective Initial Commitments of the Lenders of such Class, pro rata
according to the amounts of their respective Initial Commitments of such Class; (ii) on
and after the Step-Up Date, each Borrowing shall be made from the Lenders, and
each termination or reduction of the amount of the Commitments under Section 2.07
shall be applied to the respective Commitments of the Lenders, pro rata
according to the amounts of their respective Commitments; (iii) each
Borrowingeach Borrowing of a Class shall
be allocated pro rata among the Lenders of such Class according to the amounts of their
respective Commitments of such Class (in
the case of the making of Loans) or their respective Loans of such Class that are to be included in
such Borrowing (in the case of conversions and continuations of Loans),
provided that prior to the Step-Up Date, each Borrowing shall be allocated pro
rata among the Lenders according to the amounts of their respective Initial
Commitments; (iv; (iii) each
payment of commitment fee under Section 2.10 shall be made for account of
the Lenders pro rata according to the average daily unused amounts of their
respective Commitments; (viv)
each payment or prepayment of principal of Loans of a Class by the Borrower shall be made
for account of the Lenders of such 


 

















 







Class pro rata in
accordance with the respective unpaid principal amounts of the Loans of such Class held by
them; and (viv)
each payment of interest on Loans of a Class by
the Borrower shall be made for account of the Lenders of such Class pro rata in accordance with
the amounts of interest on such Loans then due and payable to the respectivesuch Lenders.


 


(d)          Sharing of Payments
by Lenders.  If any Lender of a Class shall, by
exercising any right of set-off or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or participations
in LC Disbursements of such Class resulting
in such Lender receiving payment of a greater proportion of the aggregate
amount of its Loans and participations in LC Disbursements and accrued interest
thereon of such Class then
due than the proportion received by any other Lender of such Class, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in
the Loans and participations in LC Disbursements of other Lenders of such Class to the
extent necessary so that the benefit of all such payments shall be shared by
the Lenders of such Class ratably
in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and participations in LC Disbursements of such Class; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to the Borrower or any Subsidiary or Affiliate thereof (as to which
the provisions of this paragraph shall apply). 
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.


 


(e)          Presumptions of
Payment.  Unless the Administrative
Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Bank, as the case may be, the amount
due.  In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or the Issuing
Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.


 

















 


(f)           Certain Deductions
by the Administrative Agent.  If any
Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(e),
2.05(b) or 2.16(e), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for account of such Lender to satisfy such
Lender’s obligations under such Sections until all such unsatisfied obligations
are fully paid.


 


SECTION 2.17.  Defaulting Lenders.


 


Notwithstanding any
provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is
a Defaulting Lender:


 


(a)          commitment fees pursuant
to Section 2.10(a) shall cease to accrue on the unfunded portion of
the Commitment of such Defaulting Lender;


 


(b)          the Commitment and
Revolving Credit Exposure of such Defaulting Lender shall not be included in
determining whether all Lenders, all
Lenders of a Class, the Required Lenders or the Required Lenders of a Class have taken or
may take any action hereunder (including any consent to any amendment or waiver
pursuant to Section 9.02), provided that any waiver, amendment or
modification requiring the consent of all Lenders (or all Lenders of a Class) or each affected
Lender which affects such Defaulting Lender differently than other affected
Lenders shall require the consent of such Defaulting Lender;


 


(c)          if any LC Exposure
exists at the time a Multicurrency Lender
becomes a Defaulting Lender then:


 


(i)           all
or any part of such LC Exposure shall be reallocated among the non-Defaulting Multicurrency Lenders in
accordance with their respective Applicable Multicurrency Percentages but only to the
extent (x) the sum of all non-Defaulting Lenders’ Multicurrency Revolving Credit Exposures plus
such Defaulting Lender’s LC Exposure does not exceed the total of all
non-Defaulting Lenders’ Multicurrency Commitments,
(y) no non-Defaulting Lender’s Multicurrency
Revolving Credit Exposure will exceed such Lender’s InitialMulticurrency Commitment or
Commitment, as applicable, and (z) the conditions set forth in Section 4.02
are satisfied at such time;


 


(ii)          if
the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall, without prejudice to any right or remedy
available to it hereunder or under law, within three Business Days following
notice by the Administrative Agent cash collateralize such Defaulting Lender’s
LC Exposure (after giving effect to any partial reallocation pursuant to clause
(i) above) in accordance with the procedures set forth in Section 2.04(k) for
so long as such LC Exposure is outstanding;


 
















 


(iii)       if the Borrower cash collateralizes any
portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above,
the Borrower shall not be required to pay any fees to such Defaulting Lender
pursuant to Section 2.10(b) with respect to such Defaulting Lender’s
LC Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;


 


(iv)       if the LC Exposure of the non-Defaulting Multicurrency Lenders is
reallocated pursuant to clause (i) above, then the fees payable to the
Lenders pursuant to Section 2.10(a) and Section 2.10(b) shall
be adjusted in accordance with such non-Defaulting Multicurrency Lenders’ Applicable Multicurrency Percentages; and


 


(v)        if any Defaulting Lender’s LC Exposure
is neither cash collateralized nor reallocated pursuant to this Section 2.17(c),
then, without prejudice to any rights or remedies of the Issuing Bank or any
Lender hereunder, all facility fees that otherwise would have been payable to
such Defaulting Lender (solely with respect to the portion of such Defaulting
Lender’s Commitment that was utilized by such LC Exposure) and letter of credit
fees payable under Section 2.10(b) with respect to such Defaulting
Lender’s LC Exposure shall be payable to the Issuing Bank until such LC
Exposure is cash collateralized and/or reallocated; and


 


(d)       so long as any Multicurrency Lender is a Defaulting Lender,
the Issuing Bank shall not be required to issue, amend or increase any Letter
of Credit, unless it is satisfied that the related exposure will be 100% covered
by the Multicurrency Commitments
of the non-Defaulting Lenders and/or cash collateral will be provided by the
Borrower in accordance with Section 2.17(c), and participating interests
in any such newly issued or increased Letter of Credit shall be allocated among
non-Defaulting Multicurrency
Lenders in a manner consistent with Section 2.17(c)(i) (and
Defaulting Lenders shall not participate therein).


 


In the event that the
Administrative Agent, the Borrower and the Issuing Bank each agrees that a
Defaulting Lender that is a
Multicurrency Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then the LC Exposure of the Multicurrency Lenders shall be
readjusted to reflect the inclusion of such Lender’s Multicurrency Commitment and on such date such
Lender shall purchase at par such of the Loans of the other Multicurrency Lenders as the Administrative
shall determine may be necessary in order for such Lender to hold such Loans in
accordance with its Applicable Multicurrency
Percentage.


 


SECTION 2.18.  Mitigation Obligations; Replacement of
Lenders.


 


(a)        Designation of a Different Lending
Office.  If any Lender requests
compensation under Section 2.13, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for account of
any Lender pursuant to Section 2.15, then such Lender shall use reasonable
efforts to designate a 


 

















 


different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.13 or 2.15, as the case may be, in the future and (ii) would
not subject such Lender to any cost or expense not required to be reimbursed by
the Borrower and would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)        Replacement of Lenders.  If any Lender requests compensation under Section 2.13,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for account of any Lender pursuant to Section 2.15,
or if any Lender becomes a Defaulting Lender or is a non-consenting Lender (as
provided in Section 9.02(d)), then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of
an amount equal to the outstanding principal of its Loans and participations in
LC Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts), and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.13 or payments required to
be made pursuant to Section 2.15, such assignment will result in a
reduction in such compensation or payments. 
A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.


 


(c)        Defaulting Lender.  If any Lender shall fail to make any payment
required to be made by it pursuant to Section 2.04(e), 2.05 or 9.03(c),
then the Administrative Agent may, in its discretion and notwithstanding any
contrary provision hereof, (i) apply any amounts thereafter received by
the Administrative Agent for the account of such Lender for the benefit of the
Administrative Agent or the Issuing Bank to satisfy such Lender’s obligations
under such Sections until all such unsatisfied obligations are fully paid,
and/or (ii) hold any such amounts in a segregated account as cash
collateral for, and application to, any future funding obligations of such
Lender under such Sections; in the case of each of (i) and (ii) above,
in any order as determined by the Administrative Agent in its discretion.


 

















 


ARTICLE
III


 


REPRESENTATIONS
AND WARRANTIES


 


The Borrower represents
and warrants to the Lenders that:


 


SECTION 3.01.  Organization; Powers.  Each of the Borrower and its Subsidiaries is
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required of the
Borrower or such Subsidiary, as applicable.


 


SECTION 3.02.  Authorization; Enforceability.  The Transactions are within the Borrower’s
corporate powers and have been duly authorized by all necessary corporate and,
if required, by all necessary shareholder action.  This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each of the other Loan Documents
when executed and delivered will constitute, a legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors’ rights and (b) the application of general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).


 


SECTION 3.03.  Governmental Approvals; No Conflicts.  The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by,
any Governmental Authority, except for (i) such as have been or will be
obtained or made and are in full force and effect and (ii) filings and
recordings in respect of the Liens created pursuant to the Security Documents, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a
default in any material respect under any indenture, agreement or other
instrument binding upon the Borrower or any of its Subsidiaries or assets, or
give rise to a right thereunder to require any payment to be made by any such
Person, and (d) except for the Liens created pursuant to the Security
Documents, will not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries.


 


SECTION 3.04.  Financial Condition; No Material Adverse
Change.


 


(a)        Financial Statements.  The Borrower has heretofore delivered to the
Lenders the following financial statements:


 


(i)         the audited consolidated balance sheet
and statements of operations, stockholders’ equity and cash flows of the
Borrower and its 


 

















 


Subsidiaries as of and
for the fiscal year ended December 31, 2008, reported on by KPMG LLP,
independent public accountants; and


 


(ii)        the unaudited interim consolidated
balance sheet and statements of operations, stockholders’ equity and cash flows
of the Borrower and its Subsidiaries as of and for the three, six and
nine-month periods ended, respectively, March 31, 2009, June 30, 2009
and September 30, 2009, in each case certified by a Financial Officer of
the Borrower.


 


Such financial statements present fairly, in all
material respects, the consolidated financial position and results of
operations and cash flows of the Borrower and its Subsidiaries as of such dates
and for such periods in accordance with generally accepted accounting
principles applied on a consistent basis, subject to, in the case of such
interim statements, year-end audit adjustments and the absence of
footnotes.  None of the Borrower or any
of its Subsidiaries has on the Restatement Effective Date any material
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments not reflected in the financial statements referred to above.


 


(b)        No Material Adverse Change.  Since December 31, 2008, there has not
been any event, development or circumstance that has had or could reasonably be
expected to have a material adverse effect on (i) the business, Portfolio
Investments and other assets, liabilities and financial condition of the
Borrower taken as a whole (excluding in any case a decline in the net asset
value of the Borrower or a change in general market conditions or values of the
Borrower’s Portfolio Investments), or (ii) the validity or enforceability
of any of the Loan Documents or the rights or remedies of the Administrative
Agent and the Lenders thereunder.


 


SECTION 3.05.  Litigation.


 


(a)        Actions, Suits and Proceedings.  There are no actions, suits, investigations
or proceedings by or before any arbitrator or Governmental Authority now
pending against or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its Subsidiaries (i) as to which there is
a reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that
involve this Agreement or the Transactions.


 


(b)        Disclosed Matters.  Since the Restatement Effective Date, there
has been no change in the status of the Disclosed Matters (after giving
effect to any update of the Disclosed Matters in accordance with the definition
thereof) that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse Effect.


 


SECTION 3.06.  Compliance with Laws and Agreements.  Each of the Borrower and its Subsidiaries is
in compliance with all laws, regulations and orders of 


 

















 


any Governmental
Authority applicable to it or its property and all indentures, agreements and
other instruments binding upon it or its property, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. 
None of the Obligors is subject to any contract or other arrangement,
the performance of which by them could reasonably be expected to result in a
Material Adverse Effect.


 


SECTION 3.07.  [Reserved].


 


SECTION 3.08.   Taxes.  Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all material Tax returns and reports
required to have been filed and has paid or caused to be paid all material
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Person has
set aside on its books adequate reserves or (b) to the extent that the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 3.09.  ERISA. 
No ERISA Event has occurred or is reasonably expected to occur that,
when taken together with all other such ERISA Events for which liability is
reasonably expected to occur, could reasonably be expected to result in a
Material Adverse Effect.


 


SECTION 3.10.  Disclosure.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.  None of the
reports, financial statements, certificates or other information furnished by
or on behalf of the Borrower to the Lenders in connection with the negotiation
of this Agreement and the other Loan Documents or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect
to projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.


 


SECTION 3.11.  Investment Company Act; Margin Regulations.


 


(a)        Status as Business Development
Company.  The Borrower is an “investment
company” that has elected to be regulated as a “business development company”
within the meaning of the Investment Company Act and qualifies as a RIC.


 


(b)        Compliance with Investment Company
Act.  The business and other
activities of the Borrower and its Subsidiaries, including the making of the
Loans hereunder, the application of the proceeds and repayment thereof by the
Borrower and the consummation of the Transactions contemplated by the Loan
Documents do not result in 


 

















 


a violation or breach in any material respect of the
provisions of the Investment Company Act or any rules, regulations or orders
issued by the Securities and Exchange Commission thereunder, in each case, that
are applicable to the Borrower and its Subsidiaries.


 


(c)        Investment Policies.  The Borrower is in compliance with all
investment objectives, policies, restrictions and limitations for the Borrower
delivered to the Lenders prior to the Restatement Effective Date (the “Investment
Policies”), except to the extent that the failure to so comply could not
reasonably be expected to result in a Material Adverse Effect.


 


(d)       Use of Credit.  Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of
any extension of credit hereunder will be used to buy or carry any Margin
Stock.


 


SECTION 3.12.  Material Agreements and Liens.


 


(a)        Material Agreements.  Part A of Schedule II is a complete and
correct list of each credit agreement, loan agreement, indenture, purchase
agreement, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness or any extension of credit (or
commitment for any extension of credit) to, or guarantee by, the Borrower or
any of its Subsidiaries outstanding on the Restatement Effective Date, and the
aggregate principal or face amount outstanding or that is, or may become,
outstanding under each such arrangement is correctly described in Part A
of Schedule II.


 


(b)        Liens.  Part B of Schedule II is a complete and
correct list of each Lien  securing
Indebtedness of any Person outstanding on the Restatement Effective Date
covering any property of the Borrower or any of its Subsidiaries, and the
aggregate Indebtedness secured (or that may be secured) by each such Lien and
the property covered by each such Lien is correctly described in Part B of
Schedule II.


 


SECTION 3.13.  Subsidiaries and Investments.


 


(a)        Subsidiaries.  Set forth in Part A of Schedule IV is a
complete and correct list of all of the Subsidiaries of the Borrower on the
Restatement Effective Date together with, for each such Subsidiary, (i) the
jurisdiction of organization of such Subsidiary, (ii) each Person holding
ownership interests in such Subsidiary, (iii) the nature of the ownership
interests held by each such Person and the percentage of ownership of such
Subsidiary represented by such ownership interests and (iv) whether such
Subsidiary is a Designated Subsidiary. 
Except as disclosed in Part A of Schedule IV, (x) the Borrower
owns, free and clear of Liens, and has (and will have) the unencumbered right
to vote, all outstanding ownership interests in each Person shown to be held by
it in Part A of Schedule IV, (y) all of the issued and outstanding
capital stock 


 

















 


of each such Person organized as a corporation is
validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Interests with respect to such Person.  Each Subsidiary identified on said Part A
of Schedule IV as a “Designated Subsidiary” qualifies as such under the
definition of “Designated Subsidiary” set forth in Section 1.01.


 


(b)        Investments.  Set forth in Part B of Schedule IV is a
complete and correct list of all Investments (other than Investments of the
types referred to in clauses (b), (c) and (d) of Section 6.04)
held by any of the Obligors in any Person on the Restatement Effective Date
and, for each such Investment, (x) the identity of the Person or Persons
holding such Investment and (y) the nature of such Investment.  Except as disclosed in Part B of
Schedule IV, each of the Borrower and its Subsidiaries owns, free and clear of
all Liens (other than Liens created pursuant to the Security Documents), all
such Investments.


 


SECTION 3.14.  Properties.


 


(a)        Title Generally.  Each of the Borrower and its Subsidiaries has
good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do
not interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes.


 


(b)        Intellectual Property.  Each of the Borrower and its Subsidiaries
owns, or is licensed to use, all trademarks, tradenames, copyrights, patents
and other intellectual property material to its business, and the use thereof
by the Borrower and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


SECTION 3.15.  Affiliate Agreements.  As of the Restatement Effective Date, the
Borrower has heretofore delivered to each of the Lenders true and complete
copies of each of the Affiliate Agreements (including any amendments,
supplements or waivers executed and delivered thereunder and, except in the
case of the CP Facility Documents, any schedules and exhibits thereto).  As of the date of hereof, each of the
Affiliate Agreements is in full force and effect.


 


ARTICLE
IV


 


CONDITIONS


 


SECTION 4.01.  Restatement Effective Date.  This Agreement (and the amendment and
restatement of the Original Agreement to be effected hereby) shall become
effective on the date on which the Administrative Agent shall have received
each of the following documents, each of which shall be satisfactory to the
Administrative 


 

















 


Agent (and to the extent
specified below, to each Lender) in form and substance (or such condition shall
have been waived in accordance with Section 9.02):


 


(a)        Executed Counterparts.  From each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page to this Agreement) that such party
has signed a counterpart of this Agreement.


 


(b)        Fees and Expenses.  The Administrative Agent shall have received
evidence of the payment by the Borrower of all fees payable to the Lenders on
the Restatement Effective Date that the Borrower has agreed to pay in
connection with this Agreement.  The
Borrower shall have paid all reasonable expenses (including the legal fees of
Milbank, Tweed, Hadley & McCloy LLP) for which invoices have been
presented that the Borrower has agreed to pay in connection with this
Agreement.


 


(c)        Opinion of Counsel to the Borrower.  A favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Restatement Effective Date)
of Latham & Watkins LLP, New York counsel for the Borrower, in form
and substance reasonably satisfactory to the Administrative Agent and of
Venable LLP, Maryland counsel for the Borrower, in substantially the form of Exhibit C,
and in each case covering such other matters relating to the Borrower, this
Agreement or the Transactions as the Required Lenders shall reasonably request
(and the Borrower hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).


 


(d)       Opinion of Special New York Counsel to
JPMCB.  An opinion, dated the
Restatement Effective Date, of Milbank, Tweed, Hadley & McCloy, LLP,
special New York counsel to JPMCB in substantially the form of Exhibit D
(and JPMCB hereby instructs such counsel to deliver such opinion to the
Lenders).


 


(e)        Corporate Documents.  Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower, the authorization of
the Transactions and any other legal matters relating to the Borrower, this
Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.


 


(f)        Officer’s Certificate.  A certificate, dated the Restatement
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
the lettered clauses of the first sentence of Section 4.02.


 
















 


(g)        Liens.  Results of a recent lien search in each
relevant jurisdiction with respect to the Borrower and such search shall reveal
no liens on any of the assets of the Obligors except for liens permitted under Section 6.02.


 


(h)        Guarantee and Security Agreement
Confirmation.  The Guarantee and
Security Agreement Confirmation, duly executed and delivered by each of the
parties to the Guarantee and Security Agreement.


 


(i)         Borrowing Base Certificate.  A Borrowing Base Certificate as of a date not
more than five days prior to the Restatement Effective Date.


 


(j)         Retiring Lenders.  Evidence that each Retiring Lender shall
have, as of the Restatement Effective Date, received repayment in full of its
outstanding Loans and all accrued and unpaid interest, facility fees, LC
participation fees, and any other amounts owing to such Retiring Lender under
the Original Agreement.


 


(k)        Restatement Effective Date
Adjustments.  Evidence that each
Continuing Lender shall have, as of the Restatement Effective Date, received payment
in full of all accrued and unpaid interest, facility fees and LC participation
fees owing to such Lender under the Original Agreement and the Borrowings and
other adjustments to the Loans described in Section 2.02(e) shall
have occurred.


 


(l)         Other Documents.  Such other documents as the Administrative
Agent or any Lender or special New York counsel to JPMCB may reasonably
request.


 


SECTION 4.02.  Each Credit Event.  The obligation of each Lender to make any
Loan, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is additionally subject to the satisfaction of the following
conditions:


 


(a)        the representations and warranties of
the Borrower set forth in this Agreement and in the other Loan Documents shall
be true and correct in all material respects (or, in the case of the
representations and warranties in Sections 3.01 (first sentence with respect to
the Obligors), 3.02, 3.04, 3.11 and 3.15 of this Agreement, and in Sections
2.01, 2.02 and 2.04 through 2.09 of the Guarantee and Security Agreement, true
and correct in all respects) on and as of the date of such Loan or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, or, as to any such representation or warranty that refers to a specific
date, as of such specific date;


 


(b)        at the time of and immediately after
giving effect to such Loan or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred and be
continuing; and


 

















 


(c)        either (i) the aggregate Covered
Debt Amount (after giving effect to such extension of credit) shall not exceed
the Borrowing Base reflected on the Borrowing Base Certificate most recently
delivered to the Administrative Agent or (ii) the Borrower shall have
delivered an updated Borrowing Base Certificate demonstrating that the Covered
Debt Amount (after giving effect to such extension of credit) shall not exceed
the Borrowing Base after giving effect to such extension of credit as well as
any concurrent acquisitions of Portfolio Investments or payment of outstanding
Loans or Permitted Indebtedness or Indebtedness incurred pursuant to Section 6.01(g).


 


Each Borrowing and each issuance, amendment, renewal
or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Borrower on the date thereof as to the
matters specified in the preceding sentence.


 


ARTICLE
V


 


AFFIRMATIVE
COVENANTS


 


Until the Commitments
have expired or been terminated and the principal of and interest on each Loan
and all fees payable hereunder shall have been paid in full and all Letters of
Credit shall have expired or been terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Lenders that:


 


SECTION 5.01.  Financial Statements and Other Information.  The Borrower will furnish to the
Administrative Agent and each Lender:


 


(a)        within 90 days after the end of each
fiscal year of the Borrower, the audited consolidated balance sheet and related
statements of operations, stockholders’ equity and cash flows of the Borrower
and its Subsidiaries as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all reported
on by KPMG LLP or other independent public accountants of recognized national
standing to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of
operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied; provided that the
requirements set forth in this clause (a) may be fulfilled by providing to
the Administrative Agent and the Lenders the report of the Borrower to the SEC
on Form 10-K for the applicable fiscal year;


 


(b)        within 45 days after the end of each of
the first three fiscal quarters of each fiscal year of the Borrower, the
consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows of the Borrower and its Subsidiaries as of the end of and
for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for (or, in the case
of the balance sheet, as of the end of) the corresponding period or periods of
the previous fiscal year, all certified by a Financial Officer of 


 

















 


the Borrower as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes; provided that the requirements
set forth in this clause (b) may be fulfilled by providing to the Lenders
the report of the Borrower to the SEC on Form 10-Q for the applicable
quarterly period;


 


(c)        concurrently with any delivery of
financial statements under clause (a) or (b) of this Section, a
certificate of a Financial Officer of the Borrower (i) certifying as to
whether the Borrower has knowledge that a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or
proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.01, 6.02, 6.04,
6.05 and 6.07 and (iii) stating whether any change in GAAP as applied by
(or in the application of GAAP by) the Borrower has occurred since the date of
the audited financial statements referred to in Section 3.04 and, if any
such change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;


 


(d)        as soon as available and in any event
not later than the last Business Day of the calendar month following each
monthly accounting period (ending on the last day of each calendar month) of
the Borrower, a Borrowing Base Certificate as at the last day of such
accounting period;


 


(e)        promptly but no later than five Business
Days after the Borrower shall at any time have knowledge that there is a
Borrowing Base Deficiency, a Borrowing Base Certificate as at the date the
Borrower has knowledge of such Borrowing Base Deficiency indicating the amount
of the Borrowing Base Deficiency as at the date the Borrower obtained knowledge
of such deficiency and the amount of the Borrowing Base Deficiency as of the
date not earlier than one Business Day prior to the date the Borrowing Base
Certificate is delivered pursuant to this paragraph;


 


(f)         promptly upon receipt thereof, copies
of all significant reports submitted by the Borrower’s independent public
accountants in connection with each annual, interim or special audit or review
of any type of the financial statements or related internal control systems of
the Borrower or any of its Subsidiaries delivered by such accountants to the
management or board of directors of the Borrower;


 


(g)        promptly after the same become publicly
available, copies of all periodic and other reports, proxy statements and other
materials filed by any of the Obligors with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, as the
case may be;


 

















 


(h)        promptly following any request therefor,
such other information regarding the operations, business affairs and financial
condition of the Borrower or any of its Subsidiaries, or compliance with the
terms of this Agreement and the other Loan Documents, as the Administrative
Agent or any Lender may reasonably request; and


 


(i)         promptly after Moody’s or S&P or
Fitch shall have announced a change in the Borrower Rating, written notice of
such rating change.


 


SECTION 5.02.  Notices of Material Events.  The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:


 


(a)        the occurrence of any Default;


 


(b)        the filing or commencement of any
action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting the Borrower or any of its Affiliates that, if
adversely determined, could reasonably be expected to result in a Material
Adverse Effect;


 


(c)        the occurrence of any ERISA Event that,
alone or together with any other ERISA Events that have occurred, could
reasonably be expected to result in liability of the Borrower and its
Subsidiaries in an aggregate amount exceeding $10,000,000; and


 


(d)        any other development that results in,
or could reasonably be expected to result in, a Material Adverse Effect.


 


Each notice delivered under this Section shall be
accompanied by a statement of a Financial Officer or other executive officer of
the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.


 


SECTION 5.03.  Existence; Conduct of Business.  The Borrower will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its business; provided
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.


 


SECTION 5.04.  Payment of Obligations.  The Borrower will, and will cause each of its
Subsidiaries to, pay its obligations, including tax liabilities and material
contractual obligations, that, if not paid, could reasonably be expected to
result in a Material Adverse Effect before the same shall become delinquent or
in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make 


 

















 


payment pending such
contest could not reasonably be expected to result in a Material Adverse
Effect.


 


SECTION 5.05.  Maintenance of Properties; Insurance.  The Borrower will, and will cause each of its
Subsidiaries to, (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.


 


SECTION 5.06.  Books and Records; Inspection and Audit
Rights.


 


(a)        Books and Records; Inspection Rights.  The Borrower will, and will cause each of its
Subsidiaries to, keep books of record and account in accordance with GAAP.  The Borrower will, and will cause each other
Obligor to, permit any representatives designated by the Administrative Agent
or any Lender, upon reasonable prior notice, to visit and inspect its
properties during business hours, to examine and make extracts from its books
and records (including books and records maintained by it in its capacity as a “servicer”
in respect of Ares Capital CP, or in a similar capacity with respect to any
other Designated Subsidiary, and any books, records and documents held by the
Custodian), and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested, provided that the Borrower shall be entitled to
have its representatives and advisors present during any inspection of its
books and records.


 


(b)        Audit Rights.  The Borrower will, and will cause each other
Obligor to, permit any representatives designated by Administrative Agent
(including any consultants, accountants, lawyers and appraisers retained by the
Administrative Agent) to conduct evaluations and appraisals of the Borrower’s
computation of the Borrowing Base and the assets included in the Borrowing
Base, all at such reasonable times and as often as reasonably requested.  The Borrower shall pay the reasonable fees
and expenses of any representatives retained by the Administrative Agent to
conduct any such evaluation or appraisal; provided that the Borrower
shall not be required to pay such fees and expenses for more than one such
evaluation or appraisal during any calendar year unless an Event of Default has
occurred and is continuing at the time of any subsequent evaluation or
appraisal during such calendar year.  The
Borrower also agrees to modify or adjust the computation of the Borrowing Base
to the extent required by the Administrative Agent or the Required Lenders as a
result of any such evaluation or appraisal, provided that if the
Borrower demonstrates that such evaluation or appraisal is incorrect, the
Borrower shall be permitted to re-adjust its computation of the Borrowing Base.


 


SECTION 5.07.  Compliance with Laws.  The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations, including the
Investment Company Act, any applicable rules, regulations or orders issued by
the Securities and Exchange Commission thereunder and orders of any other
Governmental 


 

















 


Authority applicable to
it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


SECTION 5.08.  Certain Obligations Respecting
Subsidiaries; Further Assurances.


 


(a)        Subsidiary Guarantors.  In the event that any Obligor shall form or
acquire any new Domestic Subsidiary (other than a Designated Subsidiary or, so
long as it is prevented from becoming an Obligor by the terms of the Allied
Secured Indebtedness, a Special Acquisition Subsidiary), the Borrower will
cause such new Subsidiary to become a “Subsidiary Guarantor” (and, thereby, an “Obligor”)
under the Guarantee Assumption Agreement and to deliver such proof of corporate
or other action, incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by the Borrower pursuant to Section 4.01
upon the Restatement Effective Date or as the Administrative Agent shall have
requested.


 


(b)        Ownership of Subsidiaries.  The Borrower will, and will cause each of its
Subsidiaries to, take such action from time to time as shall be necessary to
ensure that each of its Subsidiaries is a wholly owned Subsidiary (other than
any Subsidiary that is a “Designated Subsidiary”).


 


(c)        Further Assurances.  The Borrower will, and will cause each of the
Subsidiary Guarantors to, take such action from time to time as shall
reasonably be requested by the Administrative Agent to effectuate the purposes
and objectives of this Agreement. 
Without limiting the generality of the foregoing, the Borrower will, and
will cause each of the Subsidiary Guarantors to, take such action from time to
time (including filing appropriate Uniform Commercial Code financing statements
and executing and delivering such assignments, security agreements and other
instruments) as shall be reasonably requested by the Administrative Agent


 


(i)         to create, in favor of the Collateral
Agent for the benefit of the Lenders (and any affiliate thereof that is a party
to any Hedging Agreement entered into with the Borrower) and the holders of any
Other Secured Indebtedness, perfected security interests and Liens in the
Collateral; provided that any such security interest or Lien shall be
subject to the relevant requirements of the Security Documents; provided
further, that in the case of any Collateral consisting of voting stock of any
Controlled Foreign Corporation, such security interest shall be limited to 65%
of the issued and outstanding voting stock of such Controlled Foreign
Corporation,


 


(ii)        to cause any bank or securities
intermediary (within the meaning of the Uniform Commercial Code) to enter into
such arrangements with the Collateral Agent as shall be appropriate in order
that the Collateral Agent has “control” over each bank account or securities
account of the Obligors (other than any thereof that are maintained by the
Obligors in their capacity as “servicer” for Ares Capital CP or any other
Designated Subsidiary, or which hold solely money 


 

















 


or financial assets of
Ares Capital CP or any other Designated Subsidiary), and in that connection,
the Borrower agrees to cause all cash and other proceeds of Portfolio
Investments received by any Obligor to be promptly deposited into such an
account (or otherwise delivered to, or registered in the name of, the
Collateral Agent) and, until such deposit, delivery or registration such cash
and other proceeds shall be held in trust by the Borrower for and as the
property of the Collateral Agent and shall not be commingled with any other
funds or property of such Obligor or of any Designated Subsidiary or other
Person (including with any money or financial assets of any Obligor in its
capacity as “servicer” for Ares Capital CP or any other Designated Subsidiary,
or any money or financial assets of any Designated Subsidiary).


 


(iii)       to cause its Designated Subsidiaries, and
any custodians or account banks and securities intermediaries acting on their
behalf, or trustee or representative acting for any Person extending credit to
any Designated Subsidiary, to execute and deliver such intercreditor and other
agreements, in form and substance reasonably satisfactory to the Administrative
Agent, as it shall determine are necessary to confirm that none of such
Designated Subsidiaries or custodians claims any interest or Lien upon any
property of any Obligor and that any custodian that holds documentation on
behalf of both the Obligors and any Designated Subsidiary will provide access
to such documentation consistent with the provisions of Section 5.06,


 


(iv)       in the case of any Portfolio Investment
consisting of a Bank Loan that does not constitute all of the credit extended
to the underlying borrower under the relevant underlying loan documents and a
Designated Subsidiary holds any interest in the loans or other extensions of
credit under such loan documents, (x) cause such Designated Subsidiary to
be party to such underlying loan documents as a “lender” having a direct
interest (or a participation not acquired from an Obligor) in such underlying
loan documents and the extensions of credit thereunder and (y) ensure that
all amounts owing to such Obligor or Designated Subsidiary by the underlying
borrower or other obligated party are remitted by such borrower or obligated
party directly to separate accounts of such Obligor and such Designated
Subsidiary,


 


(v)        in the event that any Obligor is acting
as an agent or administrative agent under any loan documents with respect to
any Bank Loan that does not constitute all of the credit extended to the
underlying borrower under the relevant underlying loan documents, ensure that
all funds held by such Obligor in such capacity as agent or administrative
agent is segregated from all other funds of such Obligor and clearly identified
as being held in an agency capacity and


 


(vi)       cause all loan and other documents
relating to any Portfolio Investment to be held by (x) the Collateral
Agent or (y) the Custodian pursuant to the terms of the Custodian
Agreement (or another custodian reasonably satisfactory to the Administrative Agent),
or pursuant to an appropriate 


 

















 


intercreditor agreement,
so long as the Custodian (or custodian) has agreed to grant access to such loan
and other documents to the Administrative Agent and the Lenders pursuant to an
access or similar agreement between the Borrower and such Custodian (or
custodian) in form and substance reasonably satisfactory to the Administrative
Agent.


 


SECTION 5.09.  Use of Proceeds.  The Borrower will use the proceeds of the
Loans only for general corporate purposes of the Borrower in the ordinary
course of business, including in connection with the Acquisition and the
acquisition and funding (either directly or through one or more wholly-owned
Subsidiaries) of Portfolio Investments; provided that neither the
Administrative Agent nor any Lender shall have any responsibility as to the use
of any of such proceeds.  No part of the
proceeds of any Loan will be used in violation of applicable law or, directly
or indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying any Margin Stock. 
Margin Stock shall be purchased by the Obligors only with the proceeds
of Indebtedness not directly or indirectly secured by Margin Stock (within the
meaning of Regulation U), or with the proceeds of equity capital of the
Borrower.


 


SECTION 5.10.  Status of RIC and BDC.  The Borrower shall at all times maintain its
status as a RIC under the Code, and as a “business development company” under
the Investment Company Act.


 


SECTION 5.11.  Investment and Valuation Policies.  The Borrower shall promptly advise the
Lenders and the Administrative Agent of any material change in either its
Investment Policies or Valuation Policy.


 


SECTION 5.12.  Portfolio Valuation and Diversification,
Etc.


 


(a)        Industry Classification Groups.  For purposes of this Agreement, the Borrower
shall assign each Portfolio Investment to an Industry Classification
Group.  To the extent that any Portfolio
Investment is not correlated with the risks of other Portfolio Investments in
an Industry Classification Group established by Moody’s, such Portfolio
Investment may be assigned by the Borrower to an Industry Classification Group
that is more closely correlated to such Portfolio Investment.  In the absence of any correlation, the
Borrower shall be permitted, upon notice to the Administrative Agent and each
Lender to create up to three additional industry classification groups for
purposes of this Agreement.


 


(b)        Portfolio Valuation Etc.


 


(i)         Settlement Date Basis.  For purposes of this Agreement, all determinations
of whether an investment is to be included as a Portfolio Investment shall be
determined on a settlement-date basis (meaning that any investment that has
been purchased will not be treated as a Portfolio Investment until such
purchase has settled, and any Portfolio Investment which has been sold will not
be excluded as a Portfolio Investment until such sale has settled), 


 

















 


provided
that no such investment shall be included as a Portfolio Investment to the
extent it has not been paid for in full.


 


(ii)        Determination of Values.  The Borrower will conduct reviews of the
value to be assigned to each of its Portfolio Investments as follows:


 


(A)       Quoted Investments—External Review.  With respect to Portfolio Investments
(including Cash Equivalents) for which market quotations are readily available,
the Borrower shall, not less frequently than once each calendar week, determine
the market value of such Portfolio Investments which shall, in each case, be
determined in accordance with one of the following methodologies (as selected
by the Borrower):


 


(w)       in the case of public and 144A
securities, the average of the mean prices as determined by two Approved
Dealers selected by the Borrower,


 


(x)        in the case of bank loans, the mean
price as determined by one Approved Dealer or Approved Pricing Service selected
by the Borrower,


 


(y)        in the case of any Portfolio Investment
traded on an exchange, the closing price for such Portfolio Investment most
recently posted on such exchange, and


 


(z)        in the case of any other Portfolio
Investment, the fair market value thereof as determined by an Approved Pricing
Service; and


 


(B)       Unquoted Investments- External Review.  With respect to Portfolio Investments for
which market quotations are not readily available (other than SSLF), the
Borrower shall value such Portfolio Investments quarterly in a manner
consistent with its “Net Asset Valuation Policy” delivered to the Lenders prior
to the Restatement Effective Date (the “Valuation Policy”).


 


(C)       Investments in Designated Subsidiaries.  In addition to the valuation obtained in
accordance with sub-clause (B) above, with respect to any Portfolio
Investment consisting of Equity Interests in a Designated Subsidiary, the
Borrower shall determine a value for such Portfolio Investment, which at any
time shall equal the value of the underlying financial assets held by such
Designated Subsidiary as most recently determined by the Borrower in accordance
with its Valuation Policy less the aggregate face amount of all liabilities of
such Designated Subsidiary (provided such value shall be proportionately
adjusted to reflect any investment in any Designated Subsidiary that is less
than wholly-owned or 


 

















 


in which the Collateral
Agent’s security interest therein is limited to 65% of the voting stock thereof
because such Designated Subsidiary is a Controlled Foreign Corporation).


 


(D)       Investment in SSLF.  With respect to Borrower’s investment in the
SSLF, the Borrower shall value such Portfolio Investment quarterly with the
assistance of a third-party service provider consistent with the Valuation
Policy.


 


(E)       Internal Review.  The Borrower shall conduct an internal review
of the aggregate value of the Portfolio Investments, and of the Borrowing Base,
at least once each calendar week which shall take into account any events of
which the Borrower has knowledge that materially affects the aggregate value of
the Portfolio Investments or the Borrowing Base, including, as applicable, in
the case of any Portfolio Investment consisting of Equity Interests in a
Designated Subsidiary or non-consolidated subsidiary, any modifications to any
relevant debt agreements, the occurrence of any “default” or similar event
thereunder or any other adverse actions taken by any creditor of such
Designated Subsidiary or non-consolidated subsidiary.  If, based upon such weekly internal review,
the Borrower determines that a Borrowing Base Deficiency exists, then the
Borrower shall, within five Business Days as provided in Section 5.01(c),
deliver a Borrowing Base Certificate reflecting the new amount of the Borrowing
Base and shall take the actions, and make the payments and prepayments (and
provide cover for Letters of Credit), all as more specifically set forth in Section 2.09(c).


 


(F)       Quarterly Valuations.  Without limiting the requirements of
sub-clauses (A) through (E) above, the Borrower shall value at least
60% in aggregate value of its Non-Core Investments that are included in the 25%
of the Borrowing Base referenced in Section 5.13(e) below no less
frequently than quarterly in the manner set forth in sub-clause (A) or
(B), as applicable.


 


(G)       Failure to Determine Values.  If the Borrower shall fail to determine the
value of any Portfolio Investment as at any date pursuant to the requirements
of the foregoing sub-clauses (A) through (F),  the “Value” of such Portfolio Investment as
at such date shall be deemed to be zero;


 


provided that, in no
event shall any Portfolio Investment be valued pursuant to the foregoing
requirements less frequently than annually.


 


(c)        Investment Company Diversification
Requirements.  The Borrower will, and
will cause its Subsidiaries (other than Designated Subsidiaries that are exempt
from the Investment Company Act) at all times to (i) comply in all
material 


 

















 


respects with the portfolio diversification and
similar requirements set forth in the Investment Company Act applicable to
business development companies and (ii) subject to applicable grace
periods set forth in the Code, comply with the portfolio diversification and
similar requirements set forth in the Code applicable to RIC’s.


 


SECTION 5.13.  Calculation of Borrowing Base.  For purposes of this Agreement, the “Borrowing
Base” shall be determined, as at any date of determination, as the sum of
the Advance Rates of the Value of each Portfolio Investment, provided
that:


 


(a)        the Advance Rate applicable to that
portion of the aggregate Value of the Portfolio Investments of all issuers in a
consolidated group of corporations or other entities in accordance with GAAP
(other than SSLF) exceeding 10% of Shareholders’ Equity of the Borrower (which,
for purposes of the calculation of Shareholder’s Equity of the Borrower, shall
exclude the aggregate amount of investments in, and advances to, Designated
Subsidiaries and Excluded Entities) as of the end of the most recent quarter,
shall be 50% of the otherwise applicable Advance Rate.


 


(b)        the Advance Rate applicable to that
portion of the aggregate Value of the Portfolio Investments of all issuers in a
consolidated group of corporations or other entities in accordance with GAAP
(other than SSLF) exceeding 20% of Shareholders’ Equity of the Borrower (which,
for purposes of the calculation of Shareholder’s Equity of the Borrower, shall
exclude the aggregate amount of investments in, and advances to, Designated
Subsidiaries and Excluded Entities) shall be 0%.


 


(c)        the Advance Rate applicable to that
portion of the aggregate Value of the Portfolio Investments (other than SSLF)
in any single Industry Classification Group (which, for purposes of this calculation,
shall exclude the aggregate amount of investments in, and advances to,
Designated Subsidiaries and Excluded Entities) that exceeds 20% of Shareholders’
Equity shall be 0%, provided that, with respect to the Portfolio
Investments (other than CDO Securities) in a single Industry Classification
Group from time to time designated by the Borrower to the Administrative Agent,
such 20% figure shall be increased to 30% and, accordingly, only to the extent
that the Value for such single Industry Classification Group exceeds 30% of the
Shareholders’ Equity shall the Advance Rate applicable to such excess Value be
0%.


 


(d)        the Advance Rate applicable to that
portion of the aggregate Value of the Borrower’s investment in SSLF shall be
zero to the extent necessary so that no more than 15% of the Borrowing Base is
attributable to such investment.


 


(e)        the Advance Rate applicable to that
portion of the aggregate Value of the Borrower’s investments in Non-Core
Investments shall be zero to the extent necessary so that no more than 25% of
the Borrowing Base is attributable to such investments.


 

















 


(f)         the Advance Rate applicable to that
portion of the aggregate Value of the Borrower’s investments in Non-Core
Investments and SSLF shall be zero to the extent necessary so that no more than
35% of the Borrowing Base is attributable to such investments.


 


For the purposes of the
issuer concentration limits in clauses (a) and (b) above, (i) all
Designated Subsidiaries and non-consolidated subsidiaries (excluding Ares Capital
CP, Ares Capital CP II, Ares Capital CP Holdings, Ares Capital CP Holdings II,
SSLF, ARCC Commercial Loan Trust 2006 LLC and ARCC CLO 2006 LLC, in each case,
so long as such entities maintain capital structures substantially the same as
their existing capital structures on the Restatement Effective Date, and any
other Subsidiaries with the consent of the Required Lenders) will be treated as
a single issuer and (ii) Ares Capital CP, Ares Capital CP II, Ares Capital
CP Holdings and Ares Capital CP Holdings II (and any successor entity replacing
Ares Capital CP, Ares Capital CP II, Ares Capital CP Holdings and Ares Capital
CP Holdings II), so long as their combined capital structure is substantially
as described to the Administrative Agent prior to the Restatement Effective
Date, will be treated as a combined single issuer.


 


No Portfolio Investment
(including, for the avoidance of doubt, any Restricted Acquisition Asset) may
be included in the Borrowing Base until such time as such Portfolio Investment
has been Delivered (as defined in the Guarantee and Security Agreement) to the
Collateral Agent, and then only for so long as such Portfolio Investment
continues to be Delivered as contemplated therein; provided that in the case of
any Portfolio Investment in which the Collateral Agent has a first-priority
perfected security interest pursuant to a valid UCC filing (and for which no
other method of perfection with a higher priority is possible), such Portfolio
Investment may be included in the Borrowing Base so long as all remaining
actions to complete “Delivery” are satisfied within 7 days of such
inclusion.  Voting stock of any
Controlled Foreign Corporation in excess of 65% of the issued and outstanding
voting stock of such Controlled Foreign Corporation shall not be included as a
Portfolio Investment for purposes of calculating the Borrowing Base.


 


The Borrower shall from
time to time deliver a Borrowing Base Certificate to the Administrative Agent
and each Lender as provided in Sections 4.01(h), 5.01(d), 5.01(e) and
6.05(d).


 
















 


As used herein,
the following terms have the following meanings:


 


“Advance Rate”
means, as to any Portfolio Investment and subject to adjustment as provided in Section 5.13(a) through
(f), the following percentages with respect to such Portfolio Investment:


 


	
  Portfolio Investment

  	
   

  	
  Quoted

  	
   

  	
  Unquoted

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Cash, Cash
  Equivalents and

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Short-Term U.S.
  Government Securities

  	
   

  	
  100

  	
  %

  	
   

  	
  n.a.

  	
   

  
	
  Long-Term U.S.
  Government Securities

  	
   

  	
  95

  	
  %

  	
   

  	
  n.a.

  	
   

  
	
  Performing First
  Lien Bank Loans

  	
   

  	
  85

  	
  %

  	
   

  	
  75

  	
  %

  	
   

  
	
  Performing Second
  Lien Bank Loans

  	
   

  	
  75

  	
  %

  	
   

  	
  65

  	
  %

  	
   

  
	
  Performing Cash
  Pay High Yield Securities

  	
   

  	
  70

  	
  %

  	
   

  	
  60

  	
  %

  	
   

  
	
  Investment Grade
  CDO Securities

  	
   

  	
  65

  	
  %

  	
   

  	
  55

  	
  %

  	
   

  
	
  Performing Cash
  Pay Mezzanine Investments

  	
   

  	
  65

  	
  %

  	
   

  	
  55

  	
  %

  	
   

  
	
  Performing
  Non-Cash Pay High Yield Securities

  	
   

  	
  60

  	
  %

  	
   

  	
  50

  	
  %

  	
   

  
	
  Non-Investment
  Grade CDO Securities

  	
   

  	
  55

  	
  %

  	
   

  	
  45

  	
  %

  	
   

  
	
  Performing
  Non-Cash Pay Mezzanine Investments

  	
   

  	
  55

  	
  %

  	
   

  	
  45

  	
  %

  	
   

  
	
  Non-Performing
  First Lien Bank Loans

  	
   

  	
  50

  	
  %

  	
   

  	
  50

  	
  %

  	
   

  
	
  Non-Performing
  Second Lien Bank Loans

  	
   

  	
  40

  	
  %

  	
   

  	
  40

  	
  %

  	
   

  
	
  Non-Performing
  High Yield Securities

  	
   

  	
  35

  	
  %

  	
   

  	
  35

  	
  %

  	
   

  
	
  Non-Performing
  Mezzanine Investments

  	
   

  	
  35

  	
  %

  	
   

  	
  35

  	
  %

  	
   

  
	
  Performing
  Common Equity

  	
   

  	
  40

  	
  %

  	
   

  	
  40

  	
  %

  	
   

  
	
  Other Category
  CDO Securities*

  	
   

  	
  25

  	
  %

  	
   

  	
  25

  	
  %

  	
   

  
	
  Non-Performing
  Common Equity

  	
   

  	
  0

  	
  %

  	
   

  	
  0

  	
  %

  	
   

  



 


* For purposes of
determining the Advance Rate, “Other Category CDO Securities” shall include any
Obligor’s investment in (i) SSLF, (ii) any subsidiary that is not
consolidated with the Borrower in its consolidated financial statements and (iii) any
Designated Subsidiary.


 


“Bank Loans” means
debt obligations (including, without limitation, term loans, revolving loans,
debtor-in-possession financings, the funded and unfunded portion of revolving
credit lines and letter of credit facilities and other similar loans and
investments including interim loans and senior subordinated loans) which are
generally under a syndicated loan or credit facility.


 


“Capital Stock” of
any Person means any and all shares of corporate stock (however designated) of,
and any and all other equity interests and participations representing
ownership interests (including membership interests and limited liability
company interests) in, such Person.


 


“Cash” has the
meaning assigned to such term in Section 1.01 of the Credit Agreement.


 

















 


“Cash Equivalents”
has the meaning assigned to such term in Section 1.01 of the Credit
Agreement.


 


“Cash Pay Bank Loans”
means First Lien Bank Loans and Second Lien Bank Loans as to which, at the time
of determination, all of the interest on which is payable not less frequently
than quarterly and for which not less than 2/3rds of the interest (including
accretions and “pay-in-kind” interest) for the current monthly or quarterly
period (as applicable) is payable in cash.


 


“CDO Securities”
means debt securities, equity securities or composite or combination securities
(i.e. securities consisting of a combination of debt and equity securities that
are issued in effect as a unit), including synthetic securities that provide
synthetic credit exposure to debt securities, equity securities or composite or
combination securities, that entitle the holders thereof to receive payments
that (i) depend on the cash flow from a portfolio consisting primarily of
ownership interests in debt securities, corporate loans or asset-backed
securities or (ii) are subject to losses owing to credit events (howsoever
defined) under credit derivative transactions with respect to debt securities,
corporate loans or asset-backed securities.


 


“Excluded Entities”
means ARCC LVCG Holdings LLC, ARCC CLPB Corp., ARCC IGS Corp., ARCC PAH Corp.,
ARCC TTL Corp., ARCC VTH Corp., ARCC WMA Corp, ARCC Odyssey Corp. and, after
the Step-Up Date, to the extent such entity is a Subsidiary, Allied Capital
REIT, Inc., and, in each case, their respective subsidiaries (provided
that in the case of ARCC Odyssey Corp., it shall have no material assets or
liabilities and its sole purpose shall be to consummate the Acquisition,
provided further, in no event shall Allied be deemed an “Excluded Entity”).


 


“First Lien
Bank Loan” means a Bank Loan that is entitled to the benefit of a first lien
and first priority perfected security interest on a substantial portion of the
assets of the respective borrower and guarantors obligated in respect thereof.


 


“High Yield Securities”
means debt Securities and Preferred Stock, in each case (a) issued by public
or private issuers, (b) issued pursuant to an effective registration
statement or pursuant to Rule 144A under the Securities Act (or any
successor provision thereunder) and (c) that are not Cash Equivalents,
Mezzanine Investments or Bank Loans.


 


“Investment Grade CDO
Securities” means Rated CDO Securities that are direct or synthetic debt
securities (and not composite or combination securities) and are (a) Performing
and (b) rated as follows by two of the following three rating agencies: “BBB-”
or higher by S&P, “BBB-” or higher by Fitch and “Baa3” or higher by Moody’s.


 


“Long-Term U.S.
Government Securities” means U.S. Government Securities maturing more than
one month from the applicable date of determination.


 

















 


“Mezzanine Investments”
means debt Securities (including convertible debt Securities (other than the “in-the-money”
equity component thereof)) and Preferred Stock in each case (a) issued by
public or private issuers, (b) issued without registration under the
Securities Act, (c) not issued pursuant to Rule 144A under the
Securities Act (or any successor provision thereunder), (d) that are not
Cash Equivalents and (e) contractually subordinated in right of payment to
other debt of the same issuer.


 


“Non-Core Investments”
means, collectively, Portfolio Investments in common equity, warrants,
Non-Performing Bank Loans, Non-Performing High Yield Securities, Non-Performing
Mezzanine Investments, Other Category CDO Securities and any Obligor’s
investment in any subsidiary that is not consolidated with the Borrower in its
consolidated financial statements and any Obligor’s investment in a Designated
Subsidiary (but not, in any event, including the Borrower’s investment in
SSLF).


 


“Non-Investment Grade
CDO Securities” means Rated CDO Securities that are direct or synthetic
debt securities (and not composite or combination securities) and that are (a) Performing
and (b) neither Investment Grade CDO Securities nor Other Category CDO
Securities.


 


“Non-Performing Common
Equity” means Capital Stock (other than Preferred Stock) and warrants of an
issuer having any debt outstanding that is non-Performing.


 


“Non-Performing First
Lien Bank Loans” means First Lien Bank Loans other than Performing First
Lien Bank Loans.


 


“Non-Performing High
Yield Securities” means High Yield Securities other than Performing High
Yield Securities.


 


“Non-Performing Bank
Loans” means, collectively, Non-Performing First Lien Bank Loans and
Non-Performing Second Lien Bank Loans.


 


“Non-Performing
Mezzanine Investments” means Mezzanine Investments other than Performing
Mezzanine Investments.


 


“Non-Performing Second
Lien Bank Loans” means Second Lien Bank Loans other than Performing Second
Lien Bank Loans.


 


“Other Category CDO
Securities” means (a) CDO Securities that are direct or synthetic debt
securities (and not composite or combination securities) and that are (i) Performing
and (ii) either (x) not-secured or (y) not Rated CDO Securities
and (b) CDO Securities that are direct or synthetic equity securities or
direct or synthetic composite or combination securities and that are
Performing.


 


“Performing” means
(a) with respect to any Portfolio Investment that is debt, the issuer of
such Portfolio Investment is not in default of any payment obligations 


 

















 


in respect thereof, after the expiration of any
applicable grace period and (b) with respect to any Portfolio Investment
that is Preferred Stock or Other Category CDO Securities, the issuer of such
Portfolio Investment has not failed to meet any scheduled redemption
obligations or to pay its latest declared cash dividend, after the expiration
of any applicable grace period.


 


“Performing Cash Pay
High Yield Securities” means High Yield Securities (a) as to which, at
the time of determination, not less than 2/3rds of the interest (including accretions
and “pay-in-kind” interest) for the current monthly, quarterly, semi-annual or
annual period (as applicable) is payable in cash and (b) which are
Performing.


 


“Performing Cash Pay
Mezzanine Investments” means Mezzanine Investments (a) as to which, at
the time of determination, not less than 2/3rds of the interest (including
accretions and “pay-in-kind” interest) for the current monthly, quarterly,
semi-annual or annual period (as applicable) is payable in cash and (b) which
are Performing.


 


“Performing Common
Equity” means Capital Stock (other than Preferred Stock) and warrants of an
issuer all of whose outstanding debt is Performing.


 


“Performing First Lien
Bank Loans” means First Lien Bank Loans which are Cash Pay Bank Loans and
are Performing.


 


“Performing Non-Cash
Pay High Yield Securities” means Performing High Yield Securities other
than Performing Cash Pay High Yield Securities.


 


“Performing Non-Cash
Pay Mezzanine Investments” means Performing Mezzanine Investments other
than Performing Cash Pay Mezzanine Investments.


 


“Performing Second
Lien Bank Loans” means Second Lien Bank Loans which are Cash Pay Bank Loans
and are Performing.


 


“Preferred Stock,”
as applied to the Capital Stock of any Person, means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to any
shares (or other interests) of other Capital Stock of such Person, and shall
include, without limitation, cumulative preferred, non-cumulative preferred,
participating preferred and convertible preferred Capital Stock.


 


“Rated CDO Securities”
means CDO Securities that are rated by at least two of S&P, Fitch and Moody’s.


 


“Restricted
Acquisition Asset” means, any Portfolio Investment (a) that was owned
by Allied or any of its subsidiaries and acquired by an Obligor and (b) the
underlying governing agreements for which (i) prohibit the grant of a Lien
thereon or (ii) 


 

















 


require the satisfaction
of certain conditions for the grant of a Lien thereon.  Any such Portfolio Investment shall no longer
constitute a “Restricted Acquisition Asset” to the extent that a waiver of, or
consent under, any restriction on a pledge to the Collateral Agent contained in
the underlying governing agreements for such Restricted Acquisition Asset has
been obtained or the applicable conditions required thereunder for a pledge
have been satisfied, in each case, to permit the grant of a Lien on such
Restricted Acquisition Asset in favor of the Collateral Agent pursuant to the
Security Documents.


 


“Second Lien
Bank Loan” means a Bank Loan that is entitled to the benefit of a second
lien and second priority perfected security interest on a substantial portion
of the assets of the respective borrower and guarantors obligated in respect
thereof.


 


“Securities” means
common and preferred stock, units and participations, member interests in
limited liability companies, partnership interests in partnerships, notes,
bonds, debentures, trust receipts and other obligations, instruments or
evidences of indebtedness, including debt instruments of public and private
issuers and tax-exempt securities (including warrants, rights, put and call options
and other options relating thereto, representing rights, or any combination
thereof) and other property or interests commonly regarded as securities or any
form of interest or participation therein, but not including Bank Loans.


 


“Securities Act” means
the United States Securities Act of 1933, as amended.


 


“Short-Term U.S.
Government Securities” means U.S. Government Securities maturing within one
month of the applicable date of determination.


 


“SSLF” means the
Senior Secured Loan Fund LLC (fka Unitranche Fund LLC).


 


“U.S. Government
Securities” has the meaning assigned to such term in Section 1.01 of
the Credit Agreement.


 


“Value” means:


 


(i)         with respect to any Portfolio
Investment (other than a Portfolio Investment consisting of Equity Interests in
a Designated Subsidiary), the lower of:


 


(1)        the most recent internal fair market
value as determined pursuant to Section 5.12(b)(ii)(E); and


 


(2)        the most recent external fair market
value as determined pursuant to Section 5.12(b)(ii)(A), (B) or (D);
and


 


(ii)        with respect to any Portfolio Investment
consisting of Equity Interests in a Designated Subsidiary, the lowest of:


 

















 


(1)        the most recent internal fair market
value as determined pursuant to Section 5.12(b)(ii)(E);


 


(2)        the most recent external fair market
value as determined pursuant to Section 5.12(b)(ii)(B); and


 


(3)        the most recent value as determined
pursuant to Section 5.12(b)(ii)(C).


 


ARTICLE
VI


 


NEGATIVE
COVENANTS


 


Until the Commitments
have expired or terminated and the principal of and interest on each Loan and
all fees payable hereunder have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements shall have been reimbursed,
the Borrower covenants and agrees with the Lenders that:


 


SECTION 6.01.  Indebtedness.  Subject to the last sentence of this Section 6.01,
the Borrower will not, nor will it permit any other Obligor to, create, incur,
assume or permit to exist any Indebtedness, except:


 


(a)        Indebtedness created hereunder or under
any other Loan Document;


 


(b)        Permitted Indebtedness in an aggregate
amount that, taken together with Indebtedness permitted under clauses (a) and
(g) of this Section 6.01 plus the outstanding Allied 2011/12 Notes,
does not exceed the lesser of (i) the Borrowing Base and (ii) the
amount required to comply with the provisions of Section 6.07(b);


 


(c)        Other Permitted Indebtedness;


 


(d)        Indebtedness of the Borrower to or from
any other Obligor or Indebtedness of an Obligor to or from another Obligor;


 


(e)        repurchase obligations arising in the
ordinary course of business with respect to U.S. Government Securities;


 


(f)         obligations payable to clearing
agencies, brokers or dealers in connection with the purchase or sale of
securities in the ordinary course of business;


 


(g)        other Indebtedness in an aggregate
amount not exceeding the Additional Debt Amount at any one time outstanding and
that, taken together with Indebtedness permitted under clauses (a) and (b) of
this Section 6.01 plus the 


 

















 


outstanding Allied
2011/12 Notes, does not exceed the lesser of (i) the Borrowing Base and (ii) the
amount required to comply with the provisions of Section 6.07(b);


 


(h)        obligations (including Guarantees) in
respect of Standard Securitization Undertakings; and


 


(i)         Permitted Allied Indebtedness.


 


In addition, the Borrower will not, and will not
permit any other Subsidiary to, create, incur, assume or permit to exist any
secured Indebtedness of Allied or Allied’s subsidiaries, except for Allied
Secured Indebtedness that is assumed or incurred on or prior to the date of the
Acquisition by a Special Acquisition Subsidiary or that would be permitted
under this Section 6.01(g) above. 
For the avoidance of doubt, the foregoing sentence does not require the
Borrower or any Subsidiary to control any actions or inactions of Allied or any
of Allied’s subsidiaries prior to the Acquisition.


 


SECTION 6.02.  Liens. 
Subject to the last sentence of this Section 6.02, the Borrower
will not, nor will it permit any other Obligor to, create, incur, assume or
permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except:


 


(a)        any Lien on any property or asset of the
Borrower existing on the Restatement Effective Date and set forth in Part B
of Schedule II, provided that (i) no such Lien shall extend to any
other property or asset of the Borrower or any of its Subsidiaries and (ii) any
such Lien shall secure only those obligations which it secures on the
Restatement Effective Date and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;


 


(b)        Liens created pursuant to the Security
Documents;


 


(c)        Liens on Special Equity Interests
included in the Portfolio Investments but only to the extent securing
obligations in the manner provided in the definition of “Special Equity
Interests” in Section 1.01;


 


(d)        Liens securing Indebtedness or other
obligations in an aggregate principal amount not exceeding $25,000,000 at any
one time outstanding (which may cover Portfolio Investments, but only to the
extent released from the Lien in favor of the Collateral Agent in accordance
with the requirements of Section 10.03 of the Guarantee and Security
Agreement), so long as at the time thereof the aggregate amount of Indebtedness
permitted under clauses (a), (b) and (g) of Section 6.01 plus
the outstanding Allied 2011/12 Notes, does not exceed the lesser of (i) the
Borrowing Base and (ii) the amount required to comply with the provisions
of Section 6.07(b); and


 

















 


(e)        Permitted Liens.


 


In addition, the Borrower will not, and will not
permit any other Subsidiary to, create, incur, assume or permit to exist any
Lien on its property or assets securing any Indebtedness of Allied or Allied’s
subsidiaries, except for Liens on Allied Excepted Property or Liens in respect
of other secured Indebtedness of Allied and its subsidiaries that would be
permitted under this Section 6.02(d) above, provided that,
notwithstanding the other provisions of this Section 6.02, in no event
shall any Lien securing the Allied Secured Indebtedness extend to any other
property of the Borrower or any Subsidiary. For the avoidance of doubt, the
foregoing sentence does not require the Borrower or any Subsidiary to control
any actions or inactions of Allied or any of Allied’s subsidiaries prior to the
Acquisition.


 


SECTION 6.03.  Fundamental Changes.  The Borrower will not, nor will it permit any
other Obligor to, enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution).  The
Borrower will not, nor will it permit any other Obligor to, acquire any
business or property from, or capital stock of, or be a party to any
acquisition of, any Person, except for purchases or acquisitions of Portfolio
Investments and other assets in the normal course of the day-to-day business
activities of the Borrower and its Subsidiaries and not in violation of the
terms and conditions of this Agreement or any other Loan Document.  The Borrower will not, nor will it permit any
other Obligor to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its assets, whether now
owned or hereafter acquired, but excluding (x) assets sold or disposed of
in the ordinary course of business (including to make expenditures of cash in
the normal course of the day-to-day business activities of the Borrower and its
Subsidiaries) and (y) subject to the provisions of clause (d) below,
Portfolio Investments (to the extent not otherwise included in clause (x) of
this Section).


 


Notwithstanding the
foregoing provisions of this Section:


 


(a)        any Subsidiary Guarantor of the Borrower
may be merged or consolidated with or into the Borrower or any other Subsidiary
Guarantor; provided that if any such transaction shall be between a
Subsidiary Guarantor and a wholly owned Subsidiary Guarantor, the wholly owned
Subsidiary Guarantor shall be the continuing or surviving corporation;


 


(b)        any Subsidiary Guarantor may sell,
lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any wholly owned
Subsidiary Guarantor of the Borrower;


 


(c)        the capital stock of any Subsidiary of
the Borrower may be sold, transferred or otherwise disposed of to the Borrower
or any wholly owned Subsidiary Guarantor of the Borrower;


 
















 


(d)                              the
Obligors may sell, transfer or otherwise dispose of Portfolio Investments to a
Designated Subsidiary under clause (a) of the definition thereof so long
as (i) after giving effect to such sale, transfer or disposition (and any
concurrent acquisitions of Portfolio Investments or payment of outstanding
Loans) the Covered Debt Amount does not exceed the Borrowing Base and delivers
a certificate of a Financial Officer to such effect to the Administrative Agent
and (ii) either (x) the amount of any excess availability under the
Borrowing Base immediately prior to such sale, transfer or disposition is not
diminished as a result of such release or (y) the Borrowing Base
immediately after giving effect to such sale, transfer or disposition is at
least 110% of the Covered Debt Amount;


 


(e)                               the
Borrower may merge or consolidate with any other Person so long as (i) the
Borrower is the continuing or surviving entity in such transaction and (ii) at
the time thereof and after giving effect thereto, no Default shall have
occurred or be continuing;


 


(f)                                  the
Borrower and the other Obligors may sell, lease, transfer or otherwise dispose
of equipment or other property or assets that do not consist of Portfolio
Investments so long as the aggregate amount of all such sales, leases, transfer
and dispositions does not exceed $10,000,000 in any fiscal year; and


 


(g)                               the
Obligors may transfer Restricted Acquisition Assets to a Special Acquisition
Subsidiary to the extent required by the terms of the Allied Secured
Indebtedness.


 


SECTION 6.04.  Investments.  The Borrower will not, nor will it permit any
other Obligor to, acquire, make or enter into, or hold, any Investments except:


 


(a)                               operating
deposit accounts with banks;


 


(b)                              Investments
by the Borrower and the Subsidiary Guarantors in the Borrower and the
Subsidiary Guarantors;


 


(c)                               Hedging
Agreements entered into in the ordinary course of any Obligor’s financial
planning and not for speculative purposes;


 


(d)                              Portfolio
Investments by the Borrower and its Subsidiaries to the extent such Portfolio
Investments are permitted under the Investment Company Act and the Borrower’s
Investment Policies;


 


(e)                               Investments
in Designated Subsidiaries; and


 


(f)                                  additional
Investments up to but not exceeding $50,000,000 in the aggregate.


 

















 


For purposes of clause (f) of this Section, the
aggregate amount of an Investment at any time shall be deemed to be equal to (A) the
aggregate amount of cash, together with the aggregate fair market value of
property, loaned, advanced, contributed, transferred or otherwise invested that
gives rise to such Investment minus (B) the aggregate amount of
dividends, distributions or other payments received in cash in respect of such
Investment, provided that in no event shall the aggregate amount of such
Investment be deemed to be less than zero; the amount of an Investment shall
not in any event be reduced by reason of any write-off of such Investment nor
increased by any increase in the amount of earnings retained in the Person in
which such Investment is made that have not been dividended, distributed or
otherwise paid out.


 


SECTION 6.05.  Restricted Payments.  The Borrower will not, nor will it permit any
other Obligor to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except that the Borrower may declare and
pay:


 


(a)                               dividends
with respect to the capital stock of the Borrower to the extent payable in
additional shares of the Borrower’s common stock;


 


(b)                              dividends
and distributions in either case in cash or other property (excluding for this
purpose the Borrower’s common stock) in any taxable year of the Borrower in
amounts not to exceed the amount that is estimated in good faith by the
Borrower to be required to (i) reduce to zero for such taxable year or for
the previous taxable year, its investment company taxable income (within the
meaning of section 852(b)(2) of the Code, and reduce to zero the tax
imposed by section 852(b)(3) of the Code, and (ii) avoid federal  excise taxes for such taxable year  imposed by section 4982 of the Code;


 


(c)                               dividends
and distributions  in each  case in cash or other property (excluding for
this purpose the Borrower’s common stock) in addition to the dividends and
distributions permitted under the foregoing clauses (a) and (b), so long
as on the date of such Restricted Payment and after giving effect thereto:


 


(i)                                   no
Default shall have occurred and be continuing; and


 


(ii)                                the
aggregate amount of Restricted Payments made during any taxable year of the
Borrower after the Restatement Effective Date under this clause (c) shall
not exceed the sum of (x) an amount equal to 10% of the taxable income of
the Borrower for such taxable year determined under section 852(b)(2) of
the Code, but without regard to subparagraphs (A), (B) or (D) thereof,
minus (y) the amount, if any, by which dividends and distributions
made during such taxable year pursuant to the foregoing clause (b) (whether
in respect of such taxable year or the previous taxable year) based upon the
Borrower’s estimate of taxable income exceeded the actual amounts specified in
subclauses (i) and (ii) of such foregoing clause (b) for such
taxable year; and


 

















 


(d)                              other
Restricted Payments so long as (i) on the date of such other Restricted
Payment and after giving effect thereto (x) the Covered Debt Amount does
not exceed 90% of the Borrowing Base and (y) no Default shall have
occurred and be continuing and (ii) on the date of such other Restricted
Payment the Borrower delivers to the Administrative Agent and each Lender a
Borrowing Base Certificate as at such date demonstrating compliance with
subclause (x) after giving effect to such Restricted Payment.  For purposes of preparing such Borrowing Base
Certificate, (A) the fair market value of Portfolio Investments for which
market quotations are readily available shall be the most recent quotation
available for such Portfolio Investment and (B) the fair market value of
Portfolio Investments for which market quotations are not readily available
shall be the Value set forth in the Borrowing Base Certificate most recently
delivered by the Borrower to the Administrative Agent and the Lenders pursuant
to Section 5.01(d), provided that the Borrower shall reduce the
Value of any Portfolio Investment referred to in this sub-clause (B) to
the extent necessary to take into account any events of which the Borrower has
knowledge that adversely affect the value of such Portfolio Investment.


 


In calculating the amount
of Restricted Payments made by the Borrower during any period referred to in
paragraphs (b) or (c) above, any Restricted Payments made by
Designated Subsidiaries during such period (other than any such Restricted
Payments that are made to Obligors) shall be treated as Restricted Payments
made by the Borrower during such period.


 


Nothing herein shall be
deemed to prohibit the payment of Restricted Payments by any Subsidiary
Guarantor of the Borrower to the Borrower or to any other Subsidiary Guarantor.


 


For the avoidance of
doubt, the Borrower shall not declare any dividend to the extent such
declaration violates the provisions of the Investment Company Act applicable to
it.


 


SECTION 6.06.  Certain Restrictions on Subsidiaries.  The Borrower will not permit any of its
Subsidiaries (other than Designated Subsidiaries and, following consummation of
the Acquisition, for so long as the Allied Secured Indebtedness is outstanding,
any Special Acquisition Subsidiary) to enter into or suffer to exist any
indenture, agreement, instrument or other arrangement (other than the Loan
Documents) that prohibits or restrains, in each case in any material respect,
or imposes materially adverse conditions upon, the incurrence or payment of
Indebtedness, the granting of Liens, the declaration or payment of dividends,
the making of loans, advances, guarantees or Investments or the sale,
assignment, transfer or other disposition of property (except for restrictions
imposed by the underlying governing agreements of any Restricted Acquisition
Asset and applicable only to such Restricted Acquisition Asset).


 

















 


SECTION 6.07.  Certain Financial Covenants.


 


(a)                               Minimum
Shareholders’ Equity.  The Borrower
will not permit Shareholders’ Equity at the last day of any fiscal quarter of
the Borrower to be less than the greater of (i) 40% of the total assets of
the Borrower and its Subsidiaries as at the last day of such fiscal quarter
(determined on a consolidated basis, without duplication, in accordance with
GAAP) and (ii) $750,000,000 plus 25% of the net proceeds of the
sale of Equity Interests by the Borrower and its Subsidiaries after the
Restatement Effective Date plus, at any time after the consummation of
the Acquisition, 50% of the value of Equity Interests in the Borrower issued in
connection therewith.


 


(b)                              Asset
Coverage Ratio.  The Borrower will
not permit the Asset Coverage Ratio to be less than 2.00 to 1 at any time.


 


(c)                               Liquidity
Tests.


 


(i)                                   The
Borrower will not permit the aggregate Value of the Portfolio Investments that
are Cash (excluding cash cover for outstanding Letters of Credit)  or that can be converted to Cash in fewer
than 10 Business Days without more than a 5% change in price to be less than
7.5% of the Covered Debt Amount for more than 30 consecutive Business Days
during any period when the Adjusted Covered Debt Amount is greater than 85% of
the Adjusted Borrowing Base as determined in good faith by the Borrower.


 


(ii)                                The
Borrower will not permit the aggregate Value of the Portfolio Investments that
are Cash (excluding cash cover for outstanding Letters of Credit)  or that can be converted to Cash in fewer
than 30 Business Days without more than a 10% change in price to be less than
15% of the Covered Debt Amount for more than 30 consecutive Business Days
during any period when the Adjusted Covered Debt Amount is greater than 85% of
the Adjusted Borrowing Base, as determined in good faith by the Borrower.


 


(iii)                             The
Borrower will not create, incur or assume any Indebtedness under Section 6.01(a),
(b) or (g) unless after giving effect thereto the sum of Shareholder’s
Equity and Relevant Available Funds shall be greater than:


 


(A)  the sum
of (1) the aggregate Value of Portfolio Investments plus (2) the
aggregate amount of Relevant Investment Commitments of the Obligors; minus


 


(B)  the sum
of (1) aggregate Value of Portfolio Investments that can be converted to
Cash in fewer than 10 Business Days without more than a 5% change in price plus
(2) the aggregate amount of Relevant Investment Commitments of the
Obligors that can be converted into Cash in fewer than 10 Business Days without
more than a 5% change in price plus (3) without duplication, the aggregate
Value of Portfolio Investments


 

















 


maturing on a date not
later than six months after the relevant date of determination.


 


SECTION 6.08.  Transactions with Affiliates.  The Borrower will not, and will not permit
any other Obligors to enter into any transactions with any of its Affiliates,
even if otherwise permitted under this Agreement, except (a) transactions
in the ordinary course of business at prices and on terms and conditions not
less favorable to the Borrower or such other Obligor than could be obtained on
an arm’s-length basis from unrelated third parties, (b) transactions
between or among the Borrower and any other Obligors not involving any other
Affiliate, (c) Restricted Payments permitted by Section 6.05, (d) the
transactions provided in the Affiliate Agreements, (e) transactions
described or referenced on Schedule V or (f) any Investment that results
in the creation of an Affiliate.


 


SECTION 6.09.  Lines of Business.  The Borrower will not, nor will it permit any
of its Subsidiaries to, engage to any material extent in any business other
than in accordance with its Investment Policies.


 


SECTION 6.10.  No Further Negative Pledge.  The Borrower will not, and will not permit
any other Obligors to, enter into any agreement, instrument, deed or lease
which prohibits or limits the ability of any Obligor to create, incur, assume
or suffer to exist any Lien upon any of its properties, assets or revenues,
whether now owned or hereafter acquired, or which requires the grant of any
security for an obligation if security is granted for another obligation,
except the following: (a) this Agreement and the other Loan Documents; (b) covenants
in documents creating Liens permitted by Section 6.02 prohibiting further
Liens on the assets encumbered thereby; (c) customary restrictions
contained in leases not subject to a waiver; (d) any agreement that
imposes such restrictions only on Equity Interests in Designated Subsidiaries; (e) the
underlying governing agreements of any Restricted Acquisition Asset that impose
such restrictions only on such Restricted Acquisition Asset and (f) any
other agreement that does not restrict in any manner (directly or indirectly)
Liens created pursuant to the Loan Documents on any Collateral securing the “Secured
Obligations” under and as defined in the Guarantee and Security Agreement and
does not require the direct or indirect granting of any Lien securing any
Indebtedness or other obligation by virtue of the granting of Liens on or pledge
of property of any Obligor secure the Loans or any Hedging Agreement.


 


SECTION 6.11.  Modifications of Certain Documents.  The Borrower will not consent to any
modification, supplement or waiver of (a) any of the provisions of any
agreement, instrument or other document evidencing or relating to any Permitted
Indebtedness that would result in such Permitted Indebtedness not meeting the
requirements of the definition of “Permitted Indebtedness” set forth in Section 1.01
of this Agreement or (b) any of the Affiliate Agreements, unless such
modification, supplement or waiver is not less favorable to the Borrower than
could be obtained on an arm’s-length basis from unrelated third parties, in
each case, without the prior consent of the Administrative Agent (with the
approval of the Required Lenders).


 

















 


SECTION 6.12.  Permitted Indebtedness.  The Borrower will not, nor will it permit any
other Obligor to, purchase, redeem, retire or otherwise acquire for value, or
set apart any money for a sinking, defeasance or other analogous fund for the
purchase, redemption, retirement or other acquisition of, or make any voluntary
payment or prepayment of the principal of or interest on, or any other amount
owing in respect of, any Permitted Indebtedness (other than the refinancing of
such Indebtedness with Indebtedness permitted under Section 6.01), except
for (a) regularly scheduled payments, prepayments or redemptions of
principal and interest in respect thereof required pursuant to the instruments
evidencing such Permitted Indebtedness, (b) payments and prepayments
thereof required to comply with requirements of Section 2.09(c), and (c) Specified
Debt Payments permitted to be made under Section 6.13.


 


SECTION 6.13.  Specified Debt.  The Borrower will not, nor will it permit any
of its Subsidiaries to:


 


(a)                               make
any Specified Debt Payment at any time, provided that the Borrower may
make a Specified Debt Payment described in clause (a) of the definition of
Specified Debt Payment if (i) such Specified Debt Payment does not exceed
the then fair value (which fair value shall include reasonable fees and
premiums payable in connection therewith) as reasonably determined by the
Borrower of the Specified Debt purchased, redeemed, retired or otherwise
acquired thereby, (ii) at the time of and immediately after giving effect
to such Specified Debt Payment, no Default shall have occurred and be
continuing and (iii) if such Specified Debt Payment were treated as a “Restricted
Payment” for the purposes of determining compliance with Section 6.05,
such Specified Debt Payment would be permitted to be made under Section 6.05;
and


 


(b)                              notwithstanding
anything to the contrary in Section 6.02, create, incur, assume or permit
to exist any Lien securing any Specified Debt at any time.


 


 


ARTICLE
VII


 


EVENTS
OF DEFAULT


 


If any of the following
events (“Events of Default”) shall occur and be continuing:


 


(a)                               the
Borrower shall (i) fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date
fixed for prepayment thereof or otherwise or (ii) fail to deposit any
amount into the Letter of Credit Collateral Account as required by Section 2.08(a) on
the Commitment Termination Date;


 


(b)                              the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) 


 

















 


payable under this
Agreement or under any other Loan Document, when and as the same shall become
due and payable, and such failure shall continue unremedied for a period of
five or more Business Days;


 


(c)                               any
representation or warranty made (or deemed made pursuant to Section 4.02)
by or on behalf of the Borrower or any of its Subsidiaries in or in connection
with this Agreement or any other Loan Document or any amendment or modification
hereof or thereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement or any
other Loan Document or any amendment or modification hereof or thereof, shall
prove to have been incorrect when made or deemed made in any material respect;


 


(d)                              the
Borrower shall fail to observe or perform any covenant, condition or agreement
contained in (i) Section 5.03 (with respect to the Borrower’s
existence) or Sections 5.08(a) and (b) or in Article VI or any
Obligor shall default in the performance of any of its obligations contained in
Section 7 of the Guarantee and Security Agreement or (ii) Sections
5.01(e) and (f) or 5.02 and such failure shall continue unremedied
for a period of five or more days after notice thereof by the Administrative
Agent (given at the request of any Lender) to the Borrower;


 


(e)                               a
Borrowing Base Deficiency shall occur and continue unremedied for a period of
five or more Business Days after delivery of a Borrowing Base Certificate
demonstrating such Borrowing Base Deficiency pursuant to Section 5.01(e), provided
that it shall not be an Event of Default hereunder if the Borrower shall
present the Administrative Agent with a reasonably feasible plan to enable such
Borrowing Base Deficiency to be cured within 30 Business Days (which
30-Business Day period shall include the five Business Days permitted for
delivery of such plan), so long as such Borrowing Base Deficiency is cured
within such 30-Business Day period;


 


(f)                                  the
Borrower or any Obligor, as applicable, shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other than those
specified in clause (a), (b), (d) or (e) of this Article) or any
other Loan Document and such failure shall continue unremedied for a period of
30 or more days after notice thereof from the Administrative Agent (given at
the request of any Lender) to the Borrower;


 


(g)                               the
Borrower or any of its Subsidiaries shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable, taking into account
(other than with respect to payments of principal) any applicable grace period;


 

















 


(h)                               any
event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that shall continue unremedied for any
applicable period of time sufficient to enable or permit the holder or holders
of any Material Indebtedness or any trustee or agent on its or their behalf to
cause any Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (h) shall not apply to secured Indebtedness that becomes
due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;


 


(i)                                   an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect
of the Borrower or any of its Subsidiaries or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any of its Subsidiaries or for a
substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed and unstayed for a period of 60 or more
days or an order or decree approving or ordering any of the foregoing shall be
entered;


 


(j)                                  the
Borrower or any of its Subsidiaries shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution
of, or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (i) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its Subsidiaries or
for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(k)                              the
Borrower or any of its Subsidiaries shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;


 


(l)                                   one
or more judgments for the payment of money in an aggregate amount in excess of
$25,000,000 shall be rendered against the Borrower or any of its Subsidiaries
or any combination thereof and (i) the same shall remain undischarged for
a period of 30 consecutive days following the entry of such judgment during
which 30 day period such judgment shall not have been vacated, stayed,
discharged or bonded pending appeal, or (ii) any action shall be legally
taken by a judgment creditor to attach or levy upon any assets of the Borrower
or any of its Subsidiaries to enforce any such judgment;


 






 












 


(m)                           an
ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect;


 


(n)                               a
Change in Control shall occur;


 


(o)                              Ares
Capital Management shall cease to be the investment advisor for the Borrower;


 


(p)                              the
Liens created by the Security Documents shall, at any time with respect to
Portfolio Investments having an aggregate Value in excess of 5% of the aggregate
Value of all Portfolio Investments, not be valid and perfected (to the extent
perfection by filing, registration, recordation, possession or control is
required herein or therein) in favor of the Administrative Agent, free and
clear of all other Liens (other than Liens permitted under Section 6.02 or
under the respective Security Documents);


 


(q)                              except
for expiration in accordance with its terms, any of the Security Documents
shall for whatever reason be terminated or cease to be in full force and effect
in any material respect, or the enforceability thereof shall be contested by
the Borrower;


 


(r)                                 the
Obligors shall at any time, without the consent of the Required Lenders, (i) modify,
supplement or waive in any material respect the Investment Policies (other than
any modification, supplement or waiver required by any applicable law, rule or
regulation), provided that it shall not be deemed a modification in any
material respect of the Investment Policies if the permitted investment size of
the Portfolio Investments proportionately increases as the size of the Borrower’s
capital base changes; (ii) modify, supplement or waive in any material
respect the Valuation Policy (other than any modification, supplement or waiver
required under GAAP or required by any applicable law, rule or
regulation), (iii) fail to comply with the Valuation Policy in any
material respect, or (iv) fail to comply with the Investment Policies if
the same could reasonably be expected to result in a Material Adverse Effect,
and in the case of sub-clauses (iii) and (iv) of this clause (r),
such failure shall continue unremedied for a period of 30 or more days after
the earlier of notice thereof by the Administrative Agent (given at the request
of any Lender) to the Borrower or knowledge thereof by a Financial Officer.


 


(s)                                any
Designated Subsidiary shall either (i) make any dividend or other
distribution (whether in cash, securities or other property) with respect to
any shares of any class of capital stock of the Borrower, or any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the



 

















 


Borrower that, if such
actions were undertaken by the Obligors, would not be permitted under Section 6.05
or (ii) purchase, redeem, retire or otherwise acquire for value, or set apart
any money for a sinking, defeasance or other analogous fund for the purchase,
redemption, retirement or other acquisition of, or make any voluntary payment
or prepayment of the principal of or interest on, or any other amount owing in
respect of, any Permitted Indebtedness that, if such actions were undertaken by
the Obligors, would not be permitted under Section 6.12;


 


then, and in every such event (other than an event
with respect to the Borrower described in clause (i) or (j) of this
Article), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to
be due and payable), and thereupon the principal of the Loans so declared to be
due and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to the Borrower described in clause (i) or (j) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.


 


In the event that the
Loans shall be declared, or shall become, due and payable pursuant to the
immediately preceding paragraph then, upon notice from the Administrative Agent
or Lenders with LC Exposure representing more than 50% of the total LC Exposure
demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall immediately deposit into the Letter of Credit Collateral Account
cash in an amount equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to
deposit such cash shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (i) or (j) of this Article.


 


 


ARTICLE
VIII


 


THE
ADMINISTRATIVE AGENT


 


Each of the Lenders and
the Issuing Bank hereby irrevocably appoints the Administrative Agent as its
agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise 


 

















 


such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.


 


The Person serving as the
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 the Administrative Agent, and such Person and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any Subsidiary or other Affiliate thereof as if
it were not the Administrative Agent hereunder.


 


The 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, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the
Administrative Agent 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 the
Administrative Agent is required to exercise in writing by the Required
Lenders, and (c) except as expressly set forth herein and in the other
Loan Documents, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating
to the Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as Administrative Agent or any of its Affiliates in any
capacity.  The Administrative Agent shall
not be liable for any action taken or not taken by it with the consent or at
the request of the Required Lenders or in the absence of its own gross negligence
or willful misconduct.  The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or
a Lender, and the 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, (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 Article IV or elsewhere herein or therein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.


 


The 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 or sent by the proper Person.  The Administrative Agent also may rely upon
any statement made to it orally or by telephone and believed by it to be made
by the proper Person, and shall not incur any liability for relying
thereon.  The Administrative Agent may
consult with legal counsel (who may be counsel for the 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.


 


The Administrative Agent
may perform any and all its duties and exercise its rights and powers by or
through any one or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. 
The exculpatory provisions of the preceding paragraphs shall apply to any
such sub-agent and to the Related Parties of the Administrative Agent and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.


 


The Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower.  Upon any such resignation, the
Required Lenders shall have the right, with the consent of the Borrower not to
be unreasonably withheld (or, if an Event of Default has occurred and is
continuing in consultation with the Borrower), to appoint a successor.  If no successor shall have been so appointed
by the Required 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’s resignation shall nonetheless become
effective and (1) the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and (2) the Required Lenders
shall perform the duties of the Administrative Agent (and all payments and
communications provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender directly) until such time as the
Required Lenders appoint a successor agent as provided for above in this
paragraph.  Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this
paragraph).  The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor.  After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.


 


Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent
or any other Lender 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 also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any other Lender 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.


 

















 


Except as otherwise
provided in Section 9.02(b) with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Required Lenders (but
not otherwise), consent to any modification, supplement or waiver under any of
the Loan Documents, provided that, without the prior consent of each
Lender, the Administrative Agent shall not (except as provided herein or in the
Security Documents) release all or substantially all of the Collateral or
otherwise terminate all or substantially all of the Liens under any Security
Document providing for collateral security, agree to additional obligations
being secured by all or substantially all of such collateral security, alter
the relative priorities of the obligations entitled to the benefits of the
Liens created under the Security Documents with respect to all or substantially
all of the Collateral, except that no such consent shall be required, and the
Administrative Agent is hereby authorized, to release any Lien covering
property that is the subject of either a disposition of property permitted
hereunder or a disposition to which the Required Lenders have consented.


 


 


ARTICLE
IX


 


MISCELLANEOUS


 


SECTION 9.01.  Notices; Electronic Communications


 


(a)                               Notices
Generally.  Except in the case of
notices and other communications expressly permitted to be given by telephone,
all notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:


 


(i)                                   if
to the Borrower, to it at 280 Park Avenue, 22nd Floor East, New York, NY 10017, Attention of
Michael J. Arougheti, President (Telecopy No. (212) 750-1777; Telephone No. (212)
750-7300); with a copy to Ares Management LLC, at 2000 Avenue of the Stars, 12th Floor, Los Angeles, CA, 90067 Attention of
Rick Davis (Telephone No. (310) 201-4111);


 


(ii)                                if
to the Administrative Agent, to JPMorgan Chase Bank, N.A., 1111 Fannin Street,
10th Floor, Houston, Texas 77002-8069, Attention of Missy Barbosa (Telecopy No. (713)
750-2223; Telephone No. (713) 750-3570);


 


(iii)                             if to
the Issuing Bank, to JPMorgan Chase Bank, N.A., Attention of Letter of Credit
Department, 10420 Highland Manor Drive, Floor 4, Tampa, FL 33610-9128,
(Telecopy No. (813) 432-5162; Telephone No. (866) 632-5101); and


 


(iv)                            if to
any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


 

















 


Any party hereto may change its address or telecopy
number for notices and other communications hereunder by notice to the other
parties hereto.  All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the date of receipt.  Notices delivered through electronic
communications to the extent provided in paragraph (b) below, shall be
effective as provided in said paragraph (b).


 


(b)                              Electronic
Communications.  Notices and other
communications to the Lenders and the Issuing Bank hereunder may be delivered
or furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or
the Issuing Bank pursuant to Section 2.05 if such Lender or the Issuing
Bank, as applicable, has notified the Administrative Agent that it is incapable
of receiving notices under such Article by electronic communication.  The Administrative Agent or the 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 the 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)                               Documents
to be Delivered under Sections 5.01 and 5.12(a).  For so long as an IntralinksTM or equivalent
website is available to each of the Lenders hereunder, the Borrower may satisfy
its obligation to deliver documents to the Administrative Agent or the Lenders
under Sections 5.01 and 5.12(a) by delivering one hard copy thereof to the
Administrative Agent and either an electronic copy or a notice identifying the
website where such information is located for posting by the Administrative
Agent on IntralinksTM or such equivalent website, provided that the
Administrative Agent shall have no responsibility to maintain access to
intralinks or an equivalent website.


 


SECTION 9.02.  Waivers; Amendments.


 


(a)                               No
Deemed Waivers; Remedies Cumulative. 
No failure or delay by the Administrative Agent, the Issuing Bank or any
Lender in exercising any right or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise 


 

















 


of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative
Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of this Agreement
or consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.  Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.


 


(b)                              Amendments
to this Agreement.  Neither this
Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower
and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement
shall


 


(i)                                   increase
the Commitment of any Lender without the written consent of such Lender,


 


(ii)                                reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby,


 


(iii)                             postpone
the scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby,


 


(iv)                            change
Section 2.16(b), (c) or (d) in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each
Lender affected thereby, or


 


(v)                               change
any of the provisions of this Section or the percentage in the definition
of the term “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender;


 


provided  further that (x) no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Issuing Bank hereunder without the prior written
consent of the Administrative Agent, the Issuing Bank, as the case may be and (y) the
consent of Lenders holding not less than two-thirds of the Revolving Credit
Exposure 


 

















 


and unused Commitments will be required (A) for
any adverse change affecting the provisions of this Agreement relating to the
calculation of the Borrowing Base (including the definitions set forth in Section 5.13)
or the provisions of Section 5.12(c)(ii) unless otherwise expressly
provided herein and (B) for any release of Collateral other than for fair
value or as otherwise permitted hereunder or under the other Loan Documents.


 


For purposes of this
Section, the “scheduled date of payment” of any amount shall refer to the date
of payment of such amount specified in this Agreement, and shall not refer to a
date or other event specified for the mandatory or optional prepayment of such
amount.  In addition, whenever a waiver,
amendment or modification requires the consent of a Lender “affected” thereby,
such waiver, amendment or modification shall, upon consent of such Lender,
become effective as to such Lender whether or not it becomes effective as to
any other Lender, so long as the Required Lenders consent to such waiver,
amendment or modification as provided above.


 


Anything in
this Agreement to the contrary notwithstanding, no waiver or modification of
any provision of this Agreement or any other Loan Document that could
reasonably be expected to adversely affect the Lenders of any Class in a
manner that does not affect all Classes equally shall be effective against the
Lenders of such Class unless the Required Lenders of such Class shall
have concurred with such waiver, amendment or modification as provided above;
provided, however, for the avoidance of doubt, in no other circumstances shall
the concurrence of the Required Lenders of a particular Class be required
for any waiver, amendment or modification of any provision of this Agreement or
any other Loan Document.


 


(c)                               Amendments
to Security Documents.  No Security
Document nor any provision thereof may be waived, amended or modified, nor may
the Liens thereof be spread to secure any additional obligations (excluding any
increase in the Loans and Letters of Credit hereunder pursuant to a Commitment
Increase under Section 2.07(e)) except pursuant to an agreement or
agreements in writing entered into by the Borrower, and by the Administrative
Agent with the consent of the Required Lenders; provided that, (i) without
the written consent of each Lender, no such agreement shall release all or
substantially all of the Obligors from their respective obligations under the
Security Documents and (ii) without the written consent of each Lender, no
such agreement shall release all or substantially all of the collateral
security or otherwise terminate all or substantially all of the Liens under the
Security Documents, alter the relative priorities of the obligations entitled
to the Liens created under the Security Documents (except in connection with
securing additional obligations equally and ratably with the Loans and other
obligations hereunder) with respect to all or substantially all of the
collateral security provided thereby, or release all or substantially all of the
guarantors under the Guarantee and Security Agreement from their guarantee
obligations thereunder, except that no such consent shall be required, and the
Administrative Agent is hereby authorized (and so agrees with the Borrower) to
direct the Collateral Agent under the Guarantee and Security Agreement to, and
in addition to the rights of such parties under the Guarantee and Security
Agreement, the Administrative Agent and the Collateral Agent under the
Guarantee and Security Agreement may, (1) release any Lien covering
property (and to 


 

















 


release any such guarantor) that is the subject of
either a disposition of property permitted hereunder or a disposition to which
the Required Lenders have consented and (2) release from the Guarantee and
Security Agreement any “Subsidiary Guarantor” (and any property of such
Subsidiary Guarantor) that is designated as a “Designated Subsidiary” in
accordance with this Agreement or which ceases to be consolidated on the
Borrower’s financial statements and is no longer required to be a “Subsidiary
Guarantor”, so long as (A) after giving effect to any such release under
this clause (2) (and any concurrent acquisitions of Portfolio Investments
or payment of outstanding Loans) the Covered Debt Amount does not exceed the
Borrowing Base and the Borrower delivers a certificate of a Financial Officer
to such effect to the Administrative Agent and (B) either (I) the
amount of any excess availability under the Borrowing Base immediately prior to
such release is not diminished as a result of such release or (II) the
Borrowing Base immediately after giving effect to such release is at least 110%
of the Covered Debt Amount.


 


(d)                              Replacement
of Non-Consenting Lender.  If, in
connection with any proposed change, waiver, discharge or termination to any of
the provisions of this Agreement as contemplated by this Section 9.02, the
consent of one or more Lenders whose consent is required for such proposed
change, waiver, discharge or termination is not obtained, then (so long as no
Event of Default has occurred and is continuing) the Borrower shall have the
right, at its sole cost and expense, to replace each such non-consenting Lender
or Lenders with one or more replacement Lenders pursuant to Section 2.18(b) so
long as at the time of such replacement, each such replacement Lender consents
to the proposed change, waiver, discharge or termination.


 


SECTION 9.03.  Expenses; Indemnity; Damage Waiver.


 


(a)                               Costs
and Expenses.  The Borrower shall pay
(i) all reasonable and documented out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent, in connection with
the syndication of the credit facilities provided for herein (as amended and
restated hereby), the preparation 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), subject to any limitation previously
agreed in writing, (ii) all reasonable and documented out-of-pocket
expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for
payment thereunder, (iii) all documented out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the
fees, charges and disbursements of any counsel for the Administrative Agent,
the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect thereof and (iv) and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection 


 

















 


of any security interest contemplated by any Security
Document or any other document referred to therein.


 


(b)                              Indemnification
by the Borrower.  The Borrower shall
indemnify the Administrative Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (other than Taxes
or Other Taxes which shall only be indemnified by the Borrower to the extent
provided in Section 2.15), including the fees, charges and disbursements
of any counsel for any Indemnitee, incurred by or asserted against any
Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such
Letter of Credit) or (iii) 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 Indemnitee is
a party thereto; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from (i) the
fraud, willful misconduct or gross negligence of such Indemnitee or (ii) a
claim brought against such Indemnitee for breach in bad faith of such
Indemnitee’s obligations under this Agreement or the other Loan Documents, if
there has been a final and nonappealable judgment against such Indemnitee on
such claim as determined by a court of competent jurisdiction.


 


The Borrower shall not be
liable to any Indemnitee for any special, indirect, consequential or punitive damages
arising out of, in connection with, or as a result of the Transactions asserted
by an Indemnitee against the Borrower or any other Obligor, provided that the
foregoing limitation shall not be deemed to impair or affect the Obligations of
the Borrower under the preceding provisions of this subsection.


 


(c)                               Reimbursement
by Lenders.  To the extent that the
Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to the Administrative Agent,
the Issuing Bank, as the case may be, such Lender’s Applicable 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 the
Administrative Agent, the Issuing Bank in its capacity as such.


 






 












 


(d)                               Waiver
of Consequential Damages, Etc.  To
the extent permitted by applicable law, the 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 or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.


 


(e)                               Payments.  All amounts due under this Section shall
be payable promptly after written demand therefor.


 


SECTION 9.04.  Successors and Assigns.


 


(a)                               Assignments
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 (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section.  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 (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)                              Assignments
by Lenders.


 


(i)                                   Assignments
Generally.  Subject to the conditions
set forth in clause (ii) below, any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans and LC Exposure at
the time owing to it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:


 


(A)                           the
Borrower, provided that no consent of the Borrower shall be required for an
assignment to a Lender, an Affiliate of a Lender, or, if an Event of Default
has occurred and is continuing, any other assignee; and


 


(B)                            the
Administrative Agent and the Issuing Bank.


 


(ii)                                Certain
Conditions to Assignments. 
Assignments shall be subject to the following additional conditions:


 


(A)                           except
in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s


 

















 


Commitment or Loans and
LC Exposure of a Class,
the amount of the Commitment or Loans and LC Exposure of such Class 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 the Administrative
Agent) shall not be less than U.S. $5,000,000 unless each of the Borrower and
the Administrative Agent otherwise consent, provided that no such consent of
the Borrower shall be required if an Event of Default has occurred and is
continuing;


 


(B)                            each
partial assignment of any Class of
Commitments or Loans and LC Exposure shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement in respect of such Class of Commitments, Loans and LC
Exposure;


 


(C)                           the
parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption in substantially the form of Exhibit A
hereto, together with a processing and recordation fee of U.S. $3,500 (which
fee shall not be payable in connection with an assignment to a Lender or to an
Affiliate of a Lender) (for which the Borrower and the Guarantors shall not be
obligated); and


 


(D)                           the
assignee, if it shall not already be a Lender of the applicable Class, shall deliver to the
Administrative Agent an Administrative Questionnaire.


 


(iii)                             Effectiveness
of Assignments.  Subject to
acceptance and recording thereof pursuant to paragraph (c) of this
Section, from and after the effective date specified in each Assignment and
Assumption the assignee thereunder shall be a party hereto 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
2.13, 2.14, 2.15 and 9.03 with respect to facts and circumstances occurring
prior to the effective date of such assignment).  Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this Section 9.04
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 paragraph (e) of
this Section.


 


(c)                               Maintenance
of Registers by Administrative Agent. 
The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York City a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the “Registers” and each individually, a
“Register”).  The entries in the
Registers shall be 


 

















 


conclusive, and the Borrower, the Administrative
Agent, the Issuing Bank and the Lenders may treat each Person whose name is
recorded in the Registers pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Registers shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.


 


(d)                              Acceptance
of Assignments by Administrative Agent. 
Upon its receipt of a duly completed Assignment and Assumption executed
by an assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register.  No assignment shall be effective for purposes
of this Agreement unless it has been recorded in the Register as provided in
this paragraph.


 


(e)                               Participations.  Any Lender may, with the consent of the
Borrower (such consent not to be unreasonably withheld or delayed), sell
participations to one or more banks or other entities (a “Participant”)
in all or a portion of such Lender’s rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitments and the Loans and LC Disbursements owing to it); provided
that (i) such Lender’s obligations under this Agreement and the other Loan
Documents shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Issuing Bank and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement and
the other Loan Documents.  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 the other Loan Documents and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Loan Document; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects
such Participant.  Subject to paragraph (f) of
this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be
subject to Section 2.16(d) as though it were a Lender hereunder.


 


(f)                                  Limitations
on Rights of Participants.  A
Participant shall not be entitled to receive any greater payment under Section 2.13,
2.14 or 2.15 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 the 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 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.15 as though it were a
Lender and in the case of a Participant claiming exemption for portfolio
interest under Section 871(h) or 881(c) of the Code, the
applicable Lender shall provide the Borrower with satisfactory evidence that
the participation is in registered form and shall permit the Borrower to review
such register as reasonably needed for the Borrower to comply with its
obligations under applicable laws and regulations.


 


(g)                               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 to secure obligations of such Lender, including any such pledge
or assignment to a Federal Reserve Bank, and this Section shall not apply
to any such pledge or assignment of a security interest; provided that
no such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such assignee for such
Lender as a party hereto.


 


(h)                               No
Assignments to the Borrower or Affiliates. 
Anything in this Section to the contrary notwithstanding, no Lender
may assign or participate any interest in any Loan or LC Exposure held by it
hereunder to the Borrower or any of its Affiliates or Subsidiaries without the
prior consent of each Lender.


 


SECTION 9.05.  Survival.  All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of
Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.


 


SECTION 9.06.  Counterparts; Integration; Effectiveness;
Electronic Execution.


 


(a)                               Counterparts;
Integration; Effectiveness.  This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Agreement and any separate letter
agreements with respect to fees 


 

















 


payable to the Administrative Agent constitute the
entire contract between and among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a
signature page to this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


(b)                              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.


 


SECTION 9.07.  Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


SECTION 9.08.  Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured.  The
rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff) which such Lender may have.


 

















 


SECTION 9.09.  Governing Law; Jurisdiction; Etc.


 


(a)                               Governing
Law.  This Agreement shall be
construed in accordance with and governed by the law of the State of New York.


 


(b)                              Submission
to Jurisdiction.  The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Agreement, 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 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 the Administrative Agent, the Issuing
Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against the Borrower or its properties in the courts
of any jurisdiction.


 


(c)                               Waiver
of Venue.  The 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 in any court referred to in paragraph (b) of this
Section.  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.


 


(d)                              Service
of Process.  Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.01.  Nothing in
this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.


 


SECTION 9.10.  WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY 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 THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). 
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.


 


SECTION 9.11.  Judgment Currency.  This is an international loan transaction in
which the specification of Dollars or any Foreign Currency, as the case may be
(the “Specified Currency”), and payment in New York City or the country
of the Specified Currency, as the case may be (the “Specified Place”),
is of the essence, and the Specified Currency shall be the currency of account
in all events relating to Loans denominated in the Specified Currency.  The payment obligations of the Borrower under
this Agreement shall not be discharged or satisfied by an amount paid in
another currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the Specified
Currency and transfer to the Specified Place under normal banking procedures
does not yield the amount of the Specified Currency at the Specified Place due
hereunder.  If for the purpose of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in the Specified Currency into another currency (the “Second Currency”),
the rate of exchange that shall be applied shall be the rate at which in
accordance with normal banking procedures the Administrative Agent could
purchase the Specified Currency with the Second Currency on the Business Day
next preceding the day on which such judgment is rendered.  The obligation of the Borrower in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder or
under any other Loan Document (in this Section called an “Entitled
Person”) shall, notwithstanding the rate of exchange actually applied in
rendering such judgment, be discharged only to the extent that on the Business
Day following receipt by such Entitled Person of any sum adjudged to be due
hereunder in the Second Currency such Entitled Person may in accordance with
normal banking procedures purchase and transfer to the Specified Place the
Specified Currency with the amount of the Second Currency so adjudged to be
due; and the Borrower hereby, as a separate obligation and notwithstanding any
such judgment, agrees to indemnify such Entitled Person against, and to pay
such Entitled Person on demand, in the Specified Currency, the amount (if any)
by which the sum originally due to such Entitled Person in the Specified
Currency hereunder exceeds the amount of the Specified Currency so purchased
and transferred.


 


SECTION 9.12.  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.


 


SECTION 9.13.  Treatment of Certain Information;
Confidentiality.


 


(a)                               Treatment
of Certain Information.  The Borrower
acknowledges that from time to time financial advisory, investment banking and
other services may be offered or provided to the Borrower or one or more of its
Subsidiaries (in connection with this Agreement or otherwise) by any Lender or
by one or more subsidiaries or affiliates of such Lender and the Borrower
hereby authorizes each Lender to share any information delivered to such Lender
by the Borrower and its Subsidiaries pursuant to this Agreement, or in
connection with the decision of such Lender to enter into this 


 

















 


Agreement, to any such subsidiary or affiliate, it
being understood that any such subsidiary or affiliate receiving such
information shall be bound by the provisions of paragraph (b) of this Section as
if it were a Lender hereunder.  Such
authorization shall survive the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.


 


(b)                              Confidentiality.  Each of the Administrative Agent, the Lenders
and the Issuing Bank agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (i) to its
Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and other representatives (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), (ii) to the extent requested by any regulatory
authority purporting to have jurisdiction over it or its Affiliates (including
any self-regulatory authority), (iii) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (iv) to
any other party hereto, (v) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this Section, to (x) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or (y) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (vii) with the
consent of the Borrower or (viii) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the Issuing Bank or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.


 


For purposes of this
Section, “Information” means all information received from the Borrower
or any of its Subsidiaries relating to the Borrower or any of its Subsidiaries
or any of their respective businesses or any Portfolio Investment, other than
any such information that is available to the Administrative Agent, any Lender
or the Issuing Bank on a nonconfidential basis prior to disclosure by the
Borrower or any of its Subsidiaries, provided that, in the case of
information received from the Borrower or any of its Subsidiaries after the
Restatement Effective Date, such information is clearly identified 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.


 


SECTION 9.14.  USA PATRIOT Act.  Each Lender hereby notifies the Borrower that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), it is required to obtain,
verify and record information that identifies the Borrower, which information includes
the name and 


 

















 


address of the Borrower
and other information that will allow such Lender to identify the Borrower in
accordance with said Act.


 


SECTION 9.15.  First Amendment.  The waiver set forth in Section 3 of the
First Amendment shall apply, mutatis
mutandis, to the Excluded Entities and this Agreement as if more
fully set forth herein.


 


SECTION 9.16.  Amendment to Security Agreement.  The definition of “Secured Party” as set
forth in Section 1.02 of the Guarantee and Security Agreement is hereby
amended in its entirety as follows:


 


“Secured Party”
means, collectively, the Lenders, the Administrative Agent, each Designated
Indebtedness Holder, each Financing Agent, each holder of any Hedging Agreement
Obligations and the Collateral Agent.


 


SECTION 9.17.  Amendment to Intercreditor Agreement.  By its signature below, each Lender
authorizes and instructs the Collateral Agent to enter into the First Amendment
to Intercreditor Agreement in substantially the form attached hereto as Exhibit H.


 






 












 


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


 


 


	
   

  	
  ARES CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  LENDERS

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  individually, as Issuing Bank and as

  
	
   

  	
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
       SUNTRUST BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  



 

















 


	
   

  	
       [Name of Lender]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Title: