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EXHIBIT F.7
LOAN AGREEMENT
between
ALLIED CAPITAL CORPORATION
and
OVERSEAS PRIVATE INVESTMENT CORPORATION
dated as of
April 10, 1995
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS 1
Section 1.01 Definitions 1
Section 1.02 Interpretation 7
ARTICLE II. AMOUNT AND TERMS OF THE LOAN 8
Section 2.01 Amount and Disbursement 8
Section 2.02 Cancellation of the Commitment 8
Section 2.03 Interest 8
Section 2.04 Contingent Fee 9
Section 2.05 Repayment of the Loan 10
Section 2.06 Voluntary Prepayment 10
Section 2.07 Miscellaneous 10
ARTICLE III. REPRESENTATIONS AND WARRANTIES 12
Section 3.01 Existence and Power of the Company 12
Section 3.02 Authority of the Company 12
Section 3.03 Financial Condition 13
Section 3.04 Capitalization of the Company 13
Section 3.05 Subsidiaries and Shareholders 13
Section 3.06 Liens 14
Section 3.07 Taxes and Reports 14
Section 3.08 Defaults 14
Section 3.09 Litigation 14
Section 3.10 Compliance with Law 15
Section 3.11 Disclosure 15
ARTICLE IV. CONDITIONS PRECEDENT TO FIRST DISBURSEMENT 15
Section 4.01 Corporate Authorization 15
Section 4.02 Legal Opinions 16
Section 4.03 Insurance 16
ARTICLE V. CONDITIONS PRECEDENT TO EACH DISBURSEMENT 16
Section 5.01 Representations and Defaults 16
Section 5.02 Change in Circumstances 16
Section 5.03 Certification 17
Section 5.04 Financial Information 17
Section 5.05 Payment of Reimbursement of Expenses 17
Section 5.06 Notes 17
ARTICLE VI. AFFIRMATIVE COVENANTS 17
Section 6.01 Project Implementation 17
Section 6.02 Use of Proceeds 18
Section 6.03 Segregated Account 18
Section 6.04 Working Capital 19
Section 6.05 OPIC Insurance 19
Section 6.06 Company Operations 19
Section 6.07 Maintenance of Rights and Compliance
with Laws 19
Section 6.08 Insurance 20
Section 6.09 Accounting and Financial Management 20
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Section 6.10 Financial Statements and Other
Information 20
Section 6.11 Access to Records; Inspection; Meetings 22
Section 6.12 Notice of Default and Other Matters 22
Section 6.13 Financial Covenants 22
Section 6.14 Environmental Compliance 23
Section 6.15 Co-investment 23
ARTICLE VII. NEGATIVE COVENANTS 23
Section 7.01 Liens 23
Section 7.02 No Alteration of Charter Documents 24
Section 7.03 Dividends and Share Redemptions 24
Section 7.04 Sale of Assets; Mergers 24
Section 7.05 Ordinary Conduct of Business 24
Section 7.06 Worker Rights 25
ARTICLE VIII. DEFAULTS AND REMEDIES 25
Section 8.01 Events of Default 25
Section 8.02 Remedies upon Event of Default 27
Section 8.03 Jurisdiction and Consent to Suit 27
ARTICLE IX. MISCELLANEOUS 28
Section 9.01 Notices 29
Section 9.02 Governing Law 29
Section 9.03 Succession 29
Section 9.04 Survival of Agreements 29
Section 9.05 Integration; Amendments 29
Section 9.06 Severability 29
Section 9.07 No Waiver 29
Section 9.08 Waiver of Jury Trial 30
Section 9.09 Indemnity 30
Section 9.10 Further Assurances 30
Section 9.11 Counterparts 31
SCHEDULES
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3.03 Change in Financial Condition
3.05 Subsidiaries
3.09 Litigation Outstanding
3.11 Disclosure Documents
6.08 Insurance
EXHIBITS
A Form of Disbursement Request
B Form of Promissory Note
C Form of Corporate Authorization Certificate (Section 4.01)
D Form of Disbursement Certificate (Section 5.03)
E Form of Legal Opinion of Counsel to the Company
F OPIC Guidelines for Screening Downstream Investments, including
Exhibit A thereto
G List of countries in which Investments may be made
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LOAN AGREEMENT
AGREEMENT, dated as of April 10, 1995, between ALLIED CAPITAL
CORPORATION, a corporation organized and existing under the laws of the State
of Maryland (the "Company"), and OVERSEAS PRIVATE INVESTMENT CORPORATION, an
agency of the United States of America ("OPIC")
W I T N E S S E T H :
WHEREAS, the Company wishes to establish a fund that will provide
financing for international projects involving qualifying U.S. small businesses
(the "Fund"); and
WHEREAS, to obtain the financing for the Fund, the Company has
requested that OPIC make a loan to the Company in an amount of up to twenty
million United States dollars (US$20,000,000) pursuant to Section 234(c) of the
Foreign Assistance Act of 1961, as amended, which OPIC is willing to do on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
agreements contained herein, it is hereby agreed as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. DEFINITIONS.
Unless otherwise provided, capitalized terms used herein shall have
the definitions specified below:
"Agreement" means this Loan Agreement between the Company and OPIC.
"Authorized Officer" means, with respect to any Person, its President and
any other officer designated in writing by such Person as having been
authorized to execute and deliver this Agreement, the Notes, any
other Financing Document to which it is or will be a party, or any
other notice or instrument contemplated hereunder.
"Business Day" means any day other than a Saturday, Sunday or day on which
commercial banks are authorized by law to close in the City of New
York or Washington, D.C.
"Charter Documents" means the Company's Articles of Incorporation and
By-laws and any other documents establishing the Company and setting
forth the rules pursuant to which it is governed, as amended.
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"Closing Date" means any Business Day on which a Disbursement is made.
"Commitment" means OPIC's obligation to lend an amount not to exceed
$20,000,000 less (i) the portion thereof which pursuant to Section
2.02 has been canceled or has been deemed canceled and (ii) any Loan
amounts repaid or prepaid.
"Commitment Period" means the period commencing on the date hereof and
ending on the earlier of (i) the first date on which the amount of
the Loan equals the Commitment and (ii) the date occurring three (3)
years after the date hereof.
"Company" means Allied Capital Corporation, a corporation organized and
existing under the laws of the State of Maryland.
"Consolidated Shareholders' Equity" as of any date of determination
thereof, shall mean the total shareholders' equity of the Company
and its Consolidated Subsidiaries as the same would appear on a
consolidated balance sheet of the Company and its Consolidated
subsidiaries prepared as of such date in accordance with U.S. GAAP,
including, in any case, preferred stock not by its terms redeemable
by the holder thereof, but excluding preferred stock which by its
terms is redeemable by the holder thereof, and excluding any stock,
common or preferred, not both issued and outstanding.
"Consolidated Subsidiary" shall mean any subsidiary of the Company of
which more than fifty percent (50%) of the stock entitled to vote for
corporate directors is beneficially owned, directly or indirectly, by
the Company.
"Current Assets" means assets treated as current assets under U.S. GAAP.
"Current Liabilities" means all Indebtedness and liabilities due on
demand or to become due within one year and other liabilities
treated as current liabilities under U.S. GAAP.
"Day Count Fraction" means 360-day years consisting of twelve 30-day
months.
"Disbursement" means a disbursement of the Loan.
"Disbursement Request" means a request for a Disbursement, substantially
in the form of Exhibit A.
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"Dollars" or "$" means the lawful currency of the U.S.
"Event of Default" has the meaning set forth in Section 8.01.
"Fund" has the meaning provided in the first recital hereto.
"Financial Statements" means, with respect to any Person, such Person's
quarterly or annual balance sheet and statements of income, retained
earnings, and sources and application of funds for such fiscal
period, together with all notes thereto and with comparable figures
for the corresponding period of its previous fiscal year, each
prepared in Dollars in accordance with U.S. GAAP.
"Financing Documents" means collectively this Agreement, the Notes and any
other instrument pursuant to which, or in reliance on which, a
Disbursement is made.
"Fiscal Year" means, with respect to the Company, the period beginning on
January 1 and ending on December 31 of each year.
"Guidelines" means the OPIC procedures for screening investments for
compliance with OPIC policy criteria, as set forth in "Guidelines
for Screening Downstream Investments," dated December 1993, as set
forth in Exhibit F, as they may be amended by OPIC from time to time.
"Indebtedness" of any Person means, at any date, all or any liabilities,
obligations and reserves, contingent or otherwise, which, in
accordance with U.S. GAAP, would be reflected as a liability on a
balance sheet, including without limitation, (i) any obligation of
such Person for borrowed money or arising out of any credit facility,
(ii) any obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) any obligation of such
Person to pay the deferred purchase price of property or services,
(iv) any obligation of such Person under conditional sales or other
title retention agreements, (v) the net aggregate rentals under any
lease by such Person as lessee that under U.S. GAAP would be
capitalized on the books of the lessee or is the substantial
equivalent of the financing of the property so leased, (vi) any
obligation of such Person to purchase securities or other property
which arises out of or in connection with the sale of the same or
substantially similar securities or property, (vii) any obligation of
such Person secured by any Lien upon property, (viii) any
Indebtedness of others secured by a Lien on any asset of
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such Person, and (ix) any Indebtedness of others guaranteed, directly
or indirectly, by such Person.
"Indemnified Persons" has the meaning set forth in Section 9.09.
"Interest Charges" means, for any period, all interest and all
amortization of debt discount and expense on any particular
Indebtedness for which such calculations are being made.
"Interest Period" means the period from and including the day following
the immediately preceding Payment Date or, if later, the first Closing
Date, to and including the next succeeding Payment Date or, if
earlier, the Loan Maturity Date.
"Interest Rate" has the meaning set forth in Section 2.03.
"Investment Income Available for Interest Charges" means total investment
income before net long term realized capital gain, less all operating
expenses except interest expense, as shown on the most recent
quarterly consolidated statements of operations of the Company (plus
short term capital gains of the Company and its Consolidated
Subsidiaries) and determined in accordance with U.S. GAAP.
"Lien" means any lien, pledge, mortgage, security interest, deed of trust,
charge, assignment, hypothecation, title retention or other
encumbrance on or with respect to, or any preferential arrangement
having the practical effect of constituting a security interest with
respect to the payment of any obligation with, or from the proceeds
of, any asset or revenue of any kind.
"Loan" means, on any date, the aggregate of the outstanding unpaid
principal amounts of the Notes then outstanding.
"Loan Maturity Date" means the date that is ten years from the date of the
first Disbursement.
"Material Adverse Effect" means a material adverse effect on (i) the
Fund, (ii) the business, operations, prospects, financial condition
or property of the Company or its Consolidated Subsidiaries, (iii)
the ability of the Company to perform in a timely manner its
material obligations under any of the Financing Documents, (iv) the
validity or enforceability of any material provision of any
Financing Document, and (v) the rights and remedies of OPIC under
any of the Financing Documents.
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"Net Income" means, with respect to any Person for any fiscal period,
the net income of such Person for such period after Taxes but before
extraordinary items, determined in accordance with U.S. GAAP.
"Note" means any promissory note issued by the Company pursuant to this
Agreement substantially in the form of Exhibit B.
"OPIC" means Overseas Private Investment Corporation, an agency of the
United States of America.
"Payment Date" means each March 15 and September 15 after the date
hereof until the Loan, all interest accrued thereon and all other
amounts due hereunder or under the Note are paid in full, unless
such date is not a Business Day, in which case the Payment Date will
be the next succeeding Business Day.
"Permitted Investments" means (a) securities with maturities of one year
or less from the date of acquisition, issued or fully guaranteed or
insured by the Government of the U.S. or any agency thereof, (b)
certificates of deposit, time deposits, overnight bank deposits and
banker acceptances with maturities of one year or less issued by or
placed with any commercial bank having capital and surplus in excess
of $500,000,000 or having long-term unsecured debt obligations rated
at least "BB+" by Standard & Poor's Corporation or "BAA3" by Xxxxx'x
Investors Service, Inc., and (c) commercial paper of a domestic
issuer rated at least "A-1" by Standard & Poor's Corporation or "P-1"
by Xxxxx'x Investors Service, Inc.
"Person" means and includes (i) an individual, (ii) a legal entity,
including but not limited to, a partnership, a joint venture, a
corporation, a trust, and an unincorporated organization, and (iii)
a government or any department or agency thereof.
"Portfolio" means the aggregate of investments made in Projects using Loan
proceeds, and amounts received in respect of Projects and Permitted
Investments made with amounts deposited in the Segregated Account.
"Project" means an overseas private sector investment, in a country
listed on Exhibit G or any other country in which OPIC is authorized
to do business, involving Qualifying Small Businesses as equity
participants, suppliers of goods, signatories of technical, marketing
or management agreements, participants in long-term supply or
purchase
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arrangements, or in such other capacity as OPIC shall agree.
"Qualifying Financial Institution" means a bank or trust company (i)
that is organized as a banking association or corporation under the
laws of the U.S. or any state thereof, or of the District of
Columbia, (ii) that is subject to supervision or examination by
federal, state, or District of Columbia banking authorities, (iii)
that has capital and surplus of not less than $250 million, and (iv)
the debt securities of which are rated at least "BAA3" by Xxxxx'x
Investor Service, Inc. or "BB+" by Standard & Poor's Corporation.
"Qualifying Small Business" means a business of which at least 25% of the
equity is beneficially owned by United States Persons and which (a),
in the case of a manufacturing company, has annual sales less than
$174 million or, in the case of a service company, has total
shareholder capital as of its latest annual financial report of less
than $57 million or (b) fits within such other definition of
Qualifying Small Business of which OPIC shall notify the Company in
writing; provided that in no event shall such other definition
specify dollar amounts less than those set forth in this definition.
"Segregated Account" has the meaning set forth in Section 6.03.
"Senior Debt" of the Company shall mean (a) the Loan and interest accrued
and unpaid thereon, (b) Indebtedness pursuant to the Note Agreement,
dated as of April 30, 1992, among the Company, Allied Investment
Corporation, Allied Financial Services Corporation and Massachusetts
Mutual Life Insurance Company, and (c) any other unsecured
Indebtedness which ranks pari passu with the Loan.
"Taxes" means any taxes, levies, imposts, stamps, duties, fees,
assessments, deductions, withholdings and other governmental charges,
and all liabilities with respect thereto.
"Treasury Rate" means, with respect to any Disbursement, the annual rate
of interest determined at the end of the calendar quarter preceding
the calendar quarter in which such Disbursement is made, as notified
to OPIC by the U.S. Department of Treasury as the rate to be paid by
OPIC, at the time of such Disbursement, for borrowings from the U.S.
Department of Treasury having a maturity equivalent to that of such
Disbursement.
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"U.S." means the United States of America.
"U.S. GAAP" means generally accepted accounting principles in the U.S. in
effect from time to time, applied on a consistent basis both as to
classification of items and amounts.
"United States Persons" means (1) U.S. citizens; (2) corporations,
partnerships, or other associations including nonprofit associations,
created under the laws of the United States, any State or territory
thereof, or the District of Columbia and more than fifty percent
(50%) beneficially owned by U.S. citizens; and (3) foreign
corporations, partnerships, or other associations, the total of the
issued and subscribed share capital of which is at least ninety-five
(95%) owned by one or more such U.S. citizens, corporations,
partnerships, or other associations.
SECTION 1.02. INTERPRETATION.
In this Agreement, unless otherwise indicated or otherwise required
by the context:
(a) Reference to and the definition of any document (including this
Agreement) shall be deemed a reference to such document as it may be amended,
supplemented, revised, or modified from time to time;
(b) All references to an "Article", "Section", "Schedule", or
"Exhibit" are to an Article or Section hereof or to a Schedule or an Exhibit
attached hereto and made a part hereof;
(c) The table of contents, article and section headings, and other
captions in this Agreement are for the purpose of reference only and do not
limit or affect its meaning;
(d) Defined terms in the singular shall include the plural and vice
versa, and the masculine, feminine or neuter gender shall include all genders;
(e) Accounting terms used herein but not defined in Section 1.01
shall have the respective meanings given to them under U.S. GAAP; and
(f) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement.
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ARTICLE II.
AMOUNT AND TERMS OF THE LOAN
SECTION 2.01. AMOUNT AND DISBURSEMENT.
(a) Commitment. Subject to the terms and conditions hereof, OPIC
agrees to make, and the Company agrees to accept, a loan for the establishment
and implementation of the Fund in the principal amount of not more than
$20,000,000. Disbursements of the Loan shall only be made from the date hereof
through the end of the Commitment Period.
(b) Disbursement. Subject to the satisfaction of the conditions set
forth in Articles IV and V, the Company may request a Disbursement of the Loan
by delivering a Disbursement Request to OPIC not less than five (5) Business
Days prior to a Closing Date. Each Disbursement shall be evidenced by one or
more (as OPIC may specify) Notes aggregating the principal amount of the
Disbursement and dated the Closing Date. All Notes shall be issued for a term
ending on or before the Loan Maturity Date. The amount of the Loan shall not
exceed the amount of the Commitment, and the Company may not request
Disbursement of any Loan amounts repaid or prepaid.
SECTION 2.02. CANCELLATION OF THE COMMITMENT.
The Company may cancel all or any part of the Commitment at any time.
Any part of the Commitment not disbursed at the end of the Commitment Period
shall be deemed to have been canceled.
SECTION 2.03. INTEREST.
(a) Interest Rate. On each Payment Date the Company shall pay
interest in arrears to the order of OPIC on the daily outstanding
principal balance of each Note at a fixed rate per annum for each Disbursement
equal to the sum of the Treasury Rate for such Disbursement plus fifty basis
points (0.50%) (the "Interest Rate").
(b) Default Interest. If the Company fails to pay in full when due
any amount of principal or interest on any Note or any other amount due
hereunder, the Company shall pay default interest on such unpaid amount on
demand (to the extent permitted by applicable law), from the date of the
payment default until the date on which such defaulted amount is paid in full,
at a rate equal to (i) for any unpaid principal or interest on any Note, the
sum of two percent (2%) per annum plus the Interest Rate specified in such Note
and (ii) for any other unpaid amount, ten percent (10%) per annum or, if less,
the maximum rate permitted by law.
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SECTION 2.04. CONTINGENT FEE.
(a) As additional consideration for the Loan, the Company shall pay
to OPIC, within forty-five (45) days after the Loan Maturity Date or any
earlier date on which the Loan shall be repaid in full (whether upon
acceleration or otherwise), a fee of five percent (5%) of the Excess Return
generated by the Portfolio. Excess Return means the internal rate of return
("IRR") generated by the Portfolio in excess of seven percent (7%). The IRR of
the Portfolio shall be determined on the basis of the quarterly Inflows (as
defined below) to and Outflows (as defined below) from the Company with respect
to the Portfolio.
(i) "Inflows" means the sum of
(A) the aggregate, as of the Loan Maturity Date or any earlier date
of repayment of the Loan in full (whether by acceleration or otherwise) or any
Determination Date (as defined below), of (I) all dividends, interest and fees
paid by or in respect of the Portfolio and Permitted Investments, (II) all
proceeds received upon the sale or other disposition of any stock, warrants,
notes or other securities of, the Portfolio, and (III) to the extent not
included in (I) or (II), the return of capital or loan repayment by the
Projects, and
(B) the aggregate, as of the Loan Maturity Date or any earlier date
of repayment in full of the Loan (whether upon acceleration or otherwise), of
(I) all accrued and unpaid dividends, interest and fees payable by or in
respect of the Portfolio, to the extent not written off in accordance with U.S.
GAAP, (II) all proceeds owing and unpaid in respect of the sale or other
disposition of any stock, warrants, notes or other securities of the Portfolio,
and (III) the net unrealized fair market value of any stock, warrants, notes or
other securities of the Portfolio, as determined by the Company's Board of
Directors. If any dispute arises with respect to the determination of fair
market value pursuant to clause (III), such dispute shall be resolved by an
independent appraiser mutually agreeable to the parties; provided, that if the
parties can not agree on such an appraiser, then the decision regarding an
independent appraiser shall be submitted to arbitration, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. There
shall be one arbitrator, appointed in accordance with such Rules, and the
decisions of such arbitrator and of the independent appraiser selected by such
arbitrator, shall be final, nonappealable, and conclusive upon the parties.
The costs of any arbitration shall be shared equally by the parties.
(ii) "Outflows" means the aggregate amount of all investments in
Projects and all reasonable expenses, fees and costs incurred in connection
with such investments and the operation of the Fund
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through the Loan Maturity Date or any earlier date of repayment in full of the
Loan, or any Determination Date (as defined below) including, without
limitation, the fees of Allied Capital Advisers, Inc. and interest accrued an
the Loan.
(b) The Company shall pay to OPIC an early distribution fee of one
half (1/2) of the contingent fee (as calculated pursuant to subsection (a)
above, but excluding all amounts referred to in subsection (a) (i) (B) above as
of any Determination Date, as defined below), if, on December 31, 2002 and on
the last day of each year thereafter until the Loan Maturity Date, or an any
such date thereafter on which the Loan shall be repaid in full (each such date,
a "Determination Date"), the IRR of the Portfolio (excluding all amounts
referred to in subsection (a) (i) (B) above, calculated as of the relevant
Determination Date) is greater than seventeen percent (17%). Such early
distribution fee shall be payable within ninety (90) days after any
Determination Date. If, however, on any Determination Date occurring after
December 31, 2002 the determination of the IRR of the Portfolio indicates that
OPIC would not be entitled to any previously paid early distribution fee or
portion thereof, then within forty-five (45) days of receipt of the Company's
notice of such determination OPIC shall remit to the Company, by credit against
the Loan balance or other payment, that amount of such prepaid contingent fee
not earned under the foregoing formula.
SECTION 2.05. REPAYMENT OF THE LOAN.
Except as otherwise provided herein, the Company shall repay the Loan
and all interest accrued thereon in full on the Loan Maturity Date.
SECTION 2.06. VOLUNTARY PREPAYMENT.
On any date the Company may, upon ten (10) Business Days' prior
notice to OPIC, prepay any Note in whole or in part, without premium or
penalty.
SECTION 2.07. MISCELLANEOUS.
(a) Payment or Reimbursement of Expenses. The Company shall pay or
reimburse OPIC, upon request, Opec reasonable out-of-pocket costs and expenses
incurred in connection with the negotiation, preparation, execution and
delivery, and implementation of this Agreement, the Notes and the other
Financing Documents, including, without limitation, (i) the reasonable fees and
expenses of outside legal counsel and business consultants (not to exceed
$30,000) and (ii) the reasonable costs of communications, the preparation of
any documents, and the preparation of bound volumes of the Financing Documents
for Opec use. The Company shall also reimburse OPIC upon demand for (iii) all
reasonable costs and
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all reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses and reasonable travel costs) incurred by OPIC (A)
in taking any action required by any applicable law or regulation to preserve
in full force and effect any of its rights hereunder or under any of the
Financing Documents, or (B) in enforcing its rights under any of such
documents, or (C) in connection with the modification, amendment or waiver of
any provision of any such document, and (iv) all reasonable costs and expenses
(including, without limitation, reasonable travel costs) of attendance by an
OPIC representative of any meetings of the Board of Directors of the Company
which are held outside the Washington, D.C. metropolitan area and at which
business relating to the Fund is discussed.
(b) Currency and Place of Payment. All payments required hereunder
shall be made in Dollars in immediately available funds without any offset or
deduction for Taxes or otherwise to OPIC at the following address:
If sent by wire transfer (via a United States domestic bank):
U.S. Treasury Department
ABA No. 0000-0000-0 TREASNYC/CTR/BNF=AC71000001
OBI=OPIC Loan No. 999-95-267-DI
If sent by express mail or courier:
Nations Bank Operations Center
Corporate Bank Operations
3 SSE
0000 Xxxxxxxx Xxxx
Xxxxxxx Xxxx, XX 00000
Attn: OPIC Lockbox 198177
If sent by standard mail:
Overseas Private Investment Corporation
X.X. Xxx 000000
Xxxxxxx, XX 00000
(c) Computation of Interest on Notes and Fees. Except as otherwise
provided herein or in any Note, interest (including without limitation default
interest) shall accrue on a daily basis in each Interest Period and shall be
computed on the basis of the Day Count Fraction for such Interest Period.
(d) Application of Payments to OPIC. Payments received by OPIC
under this Agreement or with respect to any Note shall be applied to amounts
due under this Agreement and under the Notes in such manner as OPIC in its sole
discretion may determine to be appropriate, notwithstanding any instruction
from the Company.
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(e) Replacement Notes. The Company shall issue at its cost upon
receipt of certification of the loss, theft, destruction or mutilation of any
Note (and of indemnity satisfactory to the Company in the case of lost, stolen
or destroyed Notes), or upon the surrender of other outstanding Note(s), new
Note(s) of like tenor and aggregate principal amount in replacement thereof, in
such denominations as the holder thereof may request and dated (and bearing
interest from) the date to which interest has been paid on the Note(s) so
surrendered or certified as lost, stolen or destroyed.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Company represents, covenants, and warrants to OPIC that:
SECTION 3.01. EXISTENCE AND POWER OF THE COMPANY.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland. The Company is duly
authorized to do business in each jurisdiction in which its business makes such
authorization required (or for which the failure to be so authorized or
qualified would have a Material Adverse Effect), has the requisite power to own
and operate its properties, to carry on its business and to establish and
implement the Fund, to borrow money and create a charge on its properties and
to execute, deliver and perform this Agreement, the Notes and each of the other
Financing Documents to which it is or will be a party.
Section 3.02. Authority of the Company.
The Company's execution, delivery and performance of this Agreement,
the Notes and each of the other Financing Documents to which it is or will be a
party: (i) have been duly authorized by all necessary corporate action; (ii)
will not violate any applicable regulation or ruling of any governmental
authority; (iii) will not breach, or result in the imposition of any Lien upon
any of its assets (except as permitted by Section 7.01) under, any of the
Charter Documents or any agreement or other requirement by which it or any of
its properties may be bound or affected; and (iv) all third party consents
required therefor have been obtained and are in full force and effect. The
execution and delivery by the Company of this Agreement, the Notes and each of
the other Financing Documents to which it is or will be a party will cause each
such respective instrument to constitute a legal, valid and binding obligation
of the Company enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
or general principles of equity (regardless of whether
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such enforcement is considered in a proceeding in equity or at law). The
Company's obligations hereunder rank, and under the Notes will rank, not less
than pari passu with all of the Company's other Indebtedness. For purposes of
this Section 3.02 only, the term Indebtedness means any amount payable pursuant
to any agreement or instrument involving or evidencing money borrowed or
received, the advance of credit, a conditional sale or a transfer with recourse
or with an obligation to repurchase, or pursuant to a lease with substantially
the same economic effect as any such agreement or instrument, to which the
Company is a party as debtor, borrower or guaranty.
SECTION 3.03. FINANCIAL CONDITION.
The Company's Financial Statements dated December 31, 1994, which
have been furnished to OPIC, are complete and correct and fairly present its
financial condition and the results of its operations for the period then
ended. It has no contingent obligation, liability for Taxes, material or
long-term commitment, or outstanding Indebtedness of any kind except as
disclosed in such Financial Statements. Except as set forth in Schedule 3.03,
there has been no change in the Company's financial condition or prospects from
that set forth in such Financial Statements that could have a Material Adverse
Effect, and, other than payment of the extra 1994 dividend paid in 1995 and the
declaration of the first quarter 1995 regular dividend, since the date thereof,
no dividend or other distribution has been declared or paid to its
shareholders.
SECTION 3.04. CAPITALIZATION OF THE COMPANY.
The authorized capital of the Company consists of 10,000,000 shares
of common stock, par value $1.00 per share, of which approximately 6,152,703
shares are issued and outstanding. All such capital stock of the Company has
been duly authorized and validly issued, and is fully paid and nonassessable.
Except as to shares issued and issuable under the Company's Incentive Stock
Option Plan, there are no outstanding subscriptions, options, warrants, calls,
agreements, preemptive rights, acquisition rights, redemption rights or any
other rights or claims of any character that restrict the transfer of, require
the issuance of, or otherwise relate to any class of the capital stock of the
Company.
SECTION 3.05. SUBSIDIARIES AND SHAREHOLDINGS.
The Company does not own or otherwise control any voting stock of, or
have any ownership interest in, any other Person, except as to Allied
Investment Corporation and Allied Capital
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Financial Corporation, both Maryland corporations, and Allied Development
Corporation, a District of Columbia corporation, and as stated in Schedule
3.05.
SECTION 3.06. LIENS.
Neither the Company nor its Consolidated Subsidiaries have
outstanding, nor are any of them contractually bound to create, any Lien on or
with respect to, any of its properties, rights or revenues, except as permitted
in Section 7.01.
SECTION 3.07. TAXES AND REPORTS.
All tax returns and reports of the Company and its Consolidated
Subsidiaries required by law to be filed by any government having jurisdiction
or any subdivision thereof, or that, if not filed, could have a Material
Adverse Effect, have been duly filed for periods ending prior to the date of
this Agreement, and all Taxes due or reasonably anticipated to become due in
respect of the Company and its Consolidated Subsidiaries, or any assets,
income, or franchises of the Company and its Consolidated Subsidiaries, that if
not paid could have a Material Adverse Effect, have been duly paid or have been
adequately provided for on the books of the Company or its Consolidated
Subsidiaries.
SECTION 3.08. DEFAULTS.
No Event of Default, and no event or condition that with the passage
of time or the giving of notice, or both, could constitute an Event of Default,
has occurred and is continuing. Neither the Company nor any other party is in
breach of any provision of any contract to which the Company or any
Consolidated Subsidiary is a party, which breach could have a Material Adverse
Effect.
SECTION 3.09. LITIGATION.
Except as set forth in Schedule 3.09, no action, suit, other legal
proceeding, arbitral proceeding or investigation is pending by or before any
domestic or foreign court or governmental authority or in any arbitral or other
forum or is threatened, against the Company or any of its Consolidated
Subsidiaries or any of their properties or rights that (i) relates to any of
the transactions contemplated by this Agreement or any other Financing
Document, or (ii) has, or if adversely determined could have, a Material
Adverse Effect.
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SECTION 3.10. COMPLIANCE WITH LAW.
Each of the Company and its Consolidated Subsidiaries is conducting
its business in compliance in all material respects with all applicable laws,
regulations and authorizations of all relevant governmental authorities,
non-compliance with which could have a Material Adverse Effect, and in
compliance with the Charter Documents. The Company has duly obtained all
material consents, licenses, approvals and authorizations and has effected all
declarations, filings and registrations necessary for the due execution,
delivery, performance, validity or enforceability of this Agreement and each
other Financing Document to which it is a party.
SECTION 3.11. DISCLOSURE
All documents, reports or other written information pertaining to the
Fund (including without limitation the Financing Documents) that have been
furnished to OPIC, as listed, on Schedule 3.11 hereto, are true and correct and
do not contain any material misstatement of fact or omit to state a material
fact or any fact necessary to make the statements contained herein or therein
not materially misleading. There is no fact known to the Company, that has not
been disclosed to OPIC in writing, the existence of which could have a Material
Adverse Effect.
ARTICLE IV.
CONDITIONS PRECEDENT TO THE FIRST DISBURSEMENT
Unless OPIC otherwise agrees in writing, the obligation of OPIC to
make the first Disbursement of the Loan is subject to the prior fulfillment, to
OPIC's satisfaction in its sole discretion, of the following conditions
precedent and to their continued fulfillment on the date of the first
Disbursement:
SECTION 4.01. CORPORATE AUTHORIZATION.
OPIC shall have received a certificate of an Authorized Officer of
the Company, dated the Closing Date, satisfactory to OPIC in form and
substance, and substantially in the form of Exhibit C:
(a) attaching a copy of each of the Charter Documents, as amended
to date, certifying that the attached copies are true and complete and in full
force and effect as of the Closing Date;
(b) attaching a copy of the resolutions of the Board of Directors
of the Company, and of all documents evidencing any other necessary corporate
action (each such resolution and document satisfactory to OPIC in form and
substance), authorizing it to execute, deliver and perform this Agreement, the
Notes, and
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each of the other Financing Documents to which it is or will be a party and to
engage in the transactions herein contemplated, and certifying that the
attached copies are true and complete and in full force and effect as of the
Closing Date; and
(c) certifying the names, titles and specimen signatures of the
Persons who are authorized to execute and deliver on behalf of the Company this
Agreement, the Notes, each of the other Financing Documents to which it is or
will be a party and all other notices or instruments contemplated hereunder.
SECTION 4.02. LEGAL OPINION.
OPIC shall have received a written opinion, dated the Closing Date,
satisfactory to OPIC in form and substance, and substantially in the form of
Exhibit E, of Xxxxxx X. Xxxxxx, the Company's legal counsel, or in such other
form and of such other counsel as shall be satisfactory to OPIC.
SECTION 4.03. INSURANCE.
OPIC shall have received a certificate from an Authorized Officer of
the Company that the insurance required by Section 6.08 is in full force and
effect without default.
ARTICLE V.
CONDITIONS PRECEDENT TO EACH DISBURSEMENT
Unless OPIC otherwise agrees in writing and save as otherwise
provided herein, OPIC's obligation to make each Disbursement (including the
first Disbursement) is subject to the prior fulfillment to OPIC's satisfaction
in its sole discretion, of the following conditions precedent and to their
continued fulfillment on the date of any such Disbursement:
SECTION 5.01. REPRESENTATIONS AND DEFAULTS.
The representations and warranties set forth in Article III shall be
true and correct in all material respects on the date of such Disbursement as
if made on such date, and on such date no Event of Default, and no event or
condition that with the passage of time or the giving of notice, or both, would
constitute an Event of Default, shall have occurred and be continuing.
SECTION 5.02. CHANGE IN CIRCUMSTANCES.
At the time of each Disbursement, no circumstance shall exist, and no
change of law or regulation of any governmental authority shall have occurred,
that in OPIC's reasonable judgment could have a Material Adverse Effect.
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SECTION 5.03. CERTIFICATION.
The Company shall have furnished OPIC with a certificate of an
Authorized Officer of the Company, dated the date of such Disbursement,
satisfactory to OPIC in form and substance, and substantially in the form of
Exhibit D (i) certifying the satisfaction of the conditions set forth in
Sections 5.01 and 5.02 and (ii) setting forth the purposes to which the present
Disbursement will be applied and certifying that the proceeds of this
Disbursement are presently needed for such purposes.
SECTION 5.04. FINANCIAL INFORMATION.
Not less that five (5) Business Days before the Closing Date for any
disbursement, OPIC shall have received all Financial Statements, reports, and
other information that the Company, pursuant to Section 6.10, would otherwise
be required to furnish to OPIC on or before such Closing Date.
SECTION 5.05. PAYMENT OR REIMBURSEMENT OF EXPENSES.
All fees and other amounts due to OPIC with respect to the making of
the Loan, and all other amounts payable or reimbursable by the Company in
connection with the making of the Loan, shall have been paid, including, but
not limited to, any amounts payable pursuant to Section 2.07(a), including
the fees and expenses of OPIC legal counsel.
SECTION 5.06. NOTES.
For each Closing Date, OPIC shall have received a duly executed Note
dated such Closing Date in the aggregate principal amount of the Loan to be
disbursed on such Closing Date.
ARTICLE VI.
AFFIRMATIVE COVENANTS
Unless OPIC otherwise agrees in writing, so long as the Commitment
shall remain outstanding and until all amounts due and to become due hereunder
and under the Notes shall have been paid in full, the Company covenants and
agrees as follows:
SECTION 6.01. PROJECT IMPLEMENTATION.
(a) The Company shall establish the Fund promptly and as soon as
practicable thereafter (i) identify Projects which the Company believes satisfy
OPIC's statutory and policy criteria for investment and (ii) provide
information regarding the Projects to OPIC for its review. The Company shall
provide to OPIC all
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information relating to each proposed Project as OPIC reasonably may request to
enable it to determine whether its criteria are met.
(b) Within a reasonable period of time after the submission of all
information required by OPIC, OPIC shall notify the Company in writing of its
determination with respect to the eligibility of the proposed Project. Whether
a proposed Project satisfies OPIC's statutory and policy criteria shall be
determined by OPIC in accordance with the Guidelines in its sole discretion.
(c) The Company may invest in the Projects approved by OPIC. No
replacement of, or additional investments in, Projects may be made without
OPIC's prior written approval.
(d) All funds received by the Company from or in respect of the
Projects during the term of the Loan may, at the discretion of the Company,
be reinvested in other qualified Projects, subject to OPIC's review and
approval pursuant to Section 6.01(a) and (b) above.
(e) The Fund shall invest primarily in the debt, quasi-equity, or
equity securities of private sector Persons.
(f) The amount invested in any single Project shall not exceed
seventy-five percent (75%) of the total capital requirements of such Project;
provided, however, that this limitation will not apply to investments for which
significant risk mitigation measures have been taken or to which OPIC otherwise
has agreed.
(f) The Company shall invest no more than twenty-five percent
(25%) of the Loan proceeds in any single Project, and no more than forty
percent (40%) of the Loan in any single country.
SECTION 6.02. USE OF PROCEEDS.
All Loan proceeds shall be used for investments in Projects approved
by OPIC or to pay the reasonable expenses of the Fund. Such expenses shall
include reasonable investment management fees paid to Allied Capital Advisers,
Inc. for the management of the Fund. OPIC acknowledges that the fees payable
to Allied Capital Advisers, Inc., pursuant to the investment management
agreement between Allied Capital Advisers, Inc. and the Company in effect on
the date hereof, are reasonable.
SECTION 6.03. SEGREGATED ACCOUNT.
(a) Loan-proceeds shall not be commingled with other funds of the
Company. The Company shall establish and maintain a segregated account (the
"Segregated Account") at a Qualifying Financial Institution, into which it
shall deposit all Loan proceeds pending disbursement.
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(b) All interest, dividends, and other payments from Projects,
including the proceeds of any refinancings or sale of the Projects, shall be
deposited in the Segregated Account, pending reinvestment or permitted
distribution.
(c) All amounts in the Segregated Account shall be invested in
Permitted Investments.
SECTION 6.04. WORKING CAPITAL.
In order to minimize the need for small Disbursements, the Company may
deposit Loan proceeds of up to US$2,000,000 in the Segregated Account as
working capital; provided that it shall do so only if it intends to use such
Loan proceeds for investments in Projects or Fund expenditures within a
reasonable time after Disbursement of such Loan proceeds.
SECTION 6.05. OPIC INSURANCE.
The Company shall consider insuring its investments in Projects
against political risk by using OPIC insurance and using other OPIC project
financing services, to the extent that doing so is in the best interests of the
Company and the Projects.
SECTION 6.06. COMPANY OPERATIONS.
The Company shall duly and punctually perform its obligations under
this Agreement, the Notes, and any other Financing Document to which it is a
party. The Company shall conduct its operations on the basis of customary
commercial practice and arm's-length arrangements, with due diligence and
efficiency and under the supervision of Allied Capital Advisers, Inc., a
Maryland corporation.
SECTION 6.07. MAINTENANCE OF RIGHTS AND COMPLIANCE WITH LAWS.
The Company shall: (i) whenever advisable for the Company to do so, in
accordance with customary practice for companies in businesses similar to that
of the Company, acquire, maintain and renew all rights, contracts, powers,
privileges, leases, lands, sanctions and franchises necessary for the conduct
of its business and the performance of its obligations hereunder and under the
other Financing Documents; (ii) conduct its business in compliance in all
material respects with all applicable laws and directives of governmental
authorities having force of law, including applicable environmental standards;
and (iii) duly pay before they become overdue all Taxes, assessments and other
government charges levied or imposed in any jurisdiction upon its property,
earnings or business, that if not paid could have a Material Adverse Effect,
except amounts being contested in good faith by appropriate proceedings
diligently pursued for which adequate reserves shall have been established.
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SECTION 6.08. INSURANCE.
The Company shall maintain or cause to be maintained in effect such
public liability and other insurance on its property and business as is in
accordance with sound commercial practice for the business in which the Company
is engaged and from such insurers as shall be selected by the Company and
approved by OPIC (such approval not to be unreasonably withheld). Such
insurance shall be in such amount as a company similarly situated in respect of
property to the Company would, in the prudent management of its operations,
maintain. The Company also shall carry workmen's compensation insurance,
disability benefits insurance, and such other forms of insurance which the
Company is required by law to provide, covering loss resulting from injury,
sickness, disability or death of the employees of the Company except, subject
to OPIC's approval, to the extent the Company can become a qualified
self-insurer under relevant statutes. Notwithstanding the foregoing, OPIC
acknowledges that, so long as the Company maintains no physical property, has
no employees and has no other attributes which would make the procurement and
maintenance of additional insurance necessary or desirable in the view of
prudent management, the insurance which the Company has in place, as set forth
in Schedule 6.08 hereto, is sufficient.
SECTION 6.09. ACCOUNTING AND FINANCIAL MANAGEMENT.
The Company shall, and shall cause each Consolidated Subsidiary to,
(a) maintain adequate management information and cost control systems, (b)
maintain a system of accounting, (c) prepare its Financial Statements in
accordance with U.S. GAAP, (d) engage Xxxxxxxx, Xxxxxx & Xxxxx, Independent
Certified Public Accountants, or other independent accountants satisfactory to
OPIC, (e) notify OPIC of any change in such accountants and the reason
therefor, and (f) upon OPIC's reasonable request to the Company, shall instruct
such accountants to communicate directly with OPIC regarding the Company's
accounts and operations.
SECTION 6.10. FINANCIAL STATEMENTS AND OTHER INFORMATION.
At its cost the Company shall furnish to OPIC each of the following
documents:
(a) Within 45 days after the end of each fiscal quarter of each
Fiscal Year, (i) the consolidated and consolidating Financial Statements of the
Company and its Consolidated Subsidiaries, certified by the chief financial
officer of the Company as being complete and correct, together with such
officer's certificate that his or her review has not disclosed the existence of
an Event of Default, or an event or condition that with the passage of time or
the giving of notice, or both, could constitute an Event of Default, or, if any
such event or condition then exists, specifying the nature and period of
existence thereof and what
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action the Company has taken or proposes to take with respect thereto and (ii)
a report certified by an Authorized Officer of the Company setting forth in
reasonable detail the status of the investments made with the proceeds of the
Loan;
(b) Within 90 days after the end of each Fiscal Year, the
consolidated and consolidating audited Financial Statements of the Company and
its Consolidated Subsidiaries, together with a certificate by the independent
accountants reporting thereon describing briefly the scope of their examination
(which shall include a review of the relevant terms of this Agreement) and
certifying whether their examination has disclosed the existence of an Event of
Default, or an event or condition that with the passage of time or the giving
of notice, or both, could constitute an Event of Default, and if so, specifying
the nature and period of existence thereof;
(c) Within 90 days after the end of each Fiscal Year, a report of
the Company's Board of Directors setting forth their valuation of the
investments made by the Fund;
(d) Within 45 days after the end of each second and fourth fiscal
quarter, a narrative description of material events affecting the Company
and/or the Fund and their investments during the semi-annual period ending on
the last day of such second and fourth fiscal quarters;
(f) Promptly (i) upon receipt thereof a copy of each other special
or interim audit report submitted to the Company by its independent accountants
and any management letter received from such accountants, (ii) upon their
becoming available, one copy of each financial statement, report, notice or
proxy statement sent by the Company to stockholders generally and of each
regular or periodic report, and any registration statement or prospectus filed
by the Company with any securities exchange or the U.S. Securities and Exchange
Commission or any successor agency, and copies of any orders in any proceedings
to which the Company or any subsidiary is a party, issued by any governmental
agency having jurisdiction over the Company or any of its subsidiaries, and
(iii) if OPIC so requests, after the filing thereof, copies of all reports that
the Company or any of its Consolidated Subsidiaries shall file with the Small
Business Administration ("SBA"), or with any successor agency, and any audit
results or audit reports prepared in connection with any audit of the Company
or any of its Consolidated Subsidiaries by, or at the request of, the SBA or
any successor agency, together with all reports generated by the SBA and
pertaining to the Company or any Consolidated Subsidiary; and
(g) Such other information and data with respect to its operations
(including supporting information as to compliance with this Agreement) as OPIC
may reasonably request from time to time.
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SECTION 6.11. ACCESS TO RECORDS; INSPECTION; MEETINGS.
The Company shall, upon request of OPIC, give, or cause to be given,
to any representatives of OPIC access during normal business hours to, and
permit them to examine, copy and make extracts from, any and all records and
documents in the possession or subject to the control of the Company relating
to its operations and financial affairs, and to inspect any of its facilities
or properties. If OPIC so requests, the Company shall give OPIC not less than
15 days' notice of, and shall permit a representative of OPIC to attend, the
portions of each meeting of its shareholders and of its directors relating to
the Fund. Subject to all applicable law, OPIC shall treat the information
contained in such records and documents and received in such meetings, or
otherwise received from the Company, as confidential information not to be
disclosed to other parties.
SECTION 6.12. NOTICE OF DEFAULT AND OTHER MATTERS.
The Company shall immediately notify OPIC of (i) the occurrence of
each Event of Default and of each event or condition known to any of its
officers who have, or should have, knowledge of the terms of this Agreement,
that with the passage of time or the giving of notice, or both, could
constitute an Event of Default, (ii) any actions, suits, other legal
proceedings or arbitral proceedings against the Company or any Consolidated
Subsidiary that involve claims aggregating more than the equivalent of
$500,000, and (iii) the occurrence of any other condition or event (including
government action) that could have a Material Adverse Effect on the Company's
ability to repay the Loan.
SECTION 6.13. FINANCIAL COVENANTS.
(a) Capital Maintenance. The Company at all times shall maintain
Consolidated Shareholders' Equity of not less than $35,000,000.
(b) Interest Charges Coverage Ratio. The Company shall maintain a
ratio of Investment Income Available for Interest Charges to Interest Charges
of at least 1.1 to 1, as determined on the last day of each month for the
twelve month period immediately preceding such day.
(c) Limitations on Debt. The Company shall have on the last day
of each quarterly fiscal period in each Fiscal Year (i) a ratio of Total
Indebtedness to Consolidated Shareholders' Equity not exceeding 3 to 1 and (ii)
a ratio of Senior Debt to Consolidated Shareholder Equity not exceeding 1.5 to
1.
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SECTION 6.14 ENVIRONMENTAL COMPLIANCE.
The Company shall comply with, and shall conduct its business,
operations, assets, equipment, property, leaseholds, and other facilities in
compliance with, the provisions of all applicable environmental, health and
safety laws, codes and ordinances, and all rules and regulations promulgated
thereunder. The Company shall exercise its reasonable efforts to cause each
Project to comply with guidelines promulgated by the World Bank, or such other
environmental guidelines of which OPIC shall inform the Company in writing, and
to maintain all required permits, licenses, certificates and approvals,
relating to (i) air emissions, (ii) discharges to surface water or ground
water, (iii) noise emissions, (iv) solid or liquid waste disposal, (v) the use,
generation, storage, transportation or disposal of toxic or hazardous
substances or wastes, or (vi) other environmental, health or safety matters.
SECTION 6.15 CO-INVESTMENT.
The Company may (a) invest in Projects using capital from sources
other than the Fund and (b) act as a broker or agent or otherwise to arrange
for investments (including senior debt, subordinated debt, equity or
quasi-equity investments) in Projects by other investors; provided, however,
that any such Company and third party investments shall be made on a basis pari
passu with or subordinated to investments made by the Fund.
ARTICLE VII.
NEGATIVE COVENANTS
Unless OPIC otherwise agrees in writing, so long as the Commitment
shall remain outstanding and until all amounts due and to become due hereunder
and under the Notes shall have been paid in full, the Company covenants and
agrees as follows:
SECTION 7.01. LIENS.
The Company shall not, and shall not permit any Consolidated
Subsidiary to, create, assume or otherwise permit to exist any Lien on any of
its properties or assets, whether now owned or hereafter acquired, or in any
proceeds or income therefrom, except for:
(a) Liens for Taxes or other statutory Liens that are being
contested or litigated in good faith;
(b) any mechanic's, workmen's or other like Liens arising by
mandatory provision of law securing obligations incurred in the ordinary course
of business that are not yet overdue or which are being contested or litigated
in good faith.
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SECTION 7.02 NO ALTERATION OF CHARTER DOCUMENTS.
The Company shall not terminate, amend or assign any of its obligations under
any of the Charter Documents, other than amendments or waivers either to
correct manifest error or which are of a formal, minor, or technical nature or
which do not change materially its rights or obligations, provided that the
Company promptly gives OPIC notice of each such amendment or waiver.
SECTION 7.03. DIVIDENDS AND SHARE REDEMPTIONS.
The Company shall not declare or pay any dividends on or make any
other distributions in respect of any shares of any class of its capital stock
(other than dividends payable solely in shares of its capital stock), or
purchase, acquire, redeem or retire (directly or indirectly through any
subsidiary of the Company) any of such shares until all amounts due or to
become due hereunder or under the Notes shall have been paid in full, unless no
Event of Default, or event which, with the passage of time or giving of notice
or both, would constitute an Event of Default, exists or would be caused by any
such dividend, other distribution, share purchase or other such share
retirement.
SECTION 7.04. SALE OF ASSETS; MERGERS.
(a) The Company shall not, and shall not permit any Consolidated
Subsidiary to, sell, assign, convey, lease or otherwise dispose of all or a
substantial part of its assets or properties, whether now owned or hereafter
acquired, except for the replacement of a capital asset with an asset of equal
or greater value; provided that the Company and any Consolidated Subsidiary
may sell, transfer or otherwise dispose of all or any part of its investments
in the ordinary course of business.
(b) Notwithstanding the foregoing, the Company shall not transfer
or otherwise dispose of the Fund.
(c) The Company shall not dissolve, liquidate or otherwise cease
to do business, or merge or consolidate with any Person.
SECTION 7.05. ORDINARY CONDUCT OF BUSINESS.
The Company shall not:
(a) nor shall it permit any Consolidated Subsidiary to, engage in
any business other than its present business activities, those related to the
Fund and other activities similar thereto;
(b) materially change the nature or scope of the Fund;
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(c) take any action which, under the Employee Retirement Income
Security Act of 1974, as amended, would cause a Material Adverse Effect; or
(d) fail to maintain its corporate existence and its right to
carry on its operations.
SECTION 7.06. WORKER RIGHTS.
The Company shall not take any action to prevent its employees from
lawfully exercising their right of free association and their right to organize
and bargain collectively. The Company further agrees to observe applicable
laws relating to a minimum age for employment of children, acceptable
conditions of work with respect to minimum wages, hours of work and
occupational health and safety, and not to use forced labor. The Company shall
undertake its reasonable efforts to cause each Project to afford each of the
foregoing protections to such Project's own employees.
ARTICLE VIII.
DEFAULTS AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT.
The occurrence and continuation of any of the following events or
circumstances shall constitute an "Event of Default" hereunder:
(a) The Company fails to pay when due any interest payable
pursuant to any Note or any other amount (other than Loan principal) payable
pursuant to this Agreement, and such failure continues for more than five
Business Days after the date on which such payment was due;
(b) The Company fails to pay when due any principal of the Loan
payable pursuant to any Note on the Loan Maturity Date or on such earlier date
on which such principal shall have become due;
(c) The Company or any Consolidated Subsidiary fails to pay when
due any principal of or interest on any of its Indebtedness other than the
Loan, and such failure continues beyond the grace period, if any, applicable
thereto (unless the amount of such unpaid Indebtedness is de minimis and the
party to whom such Indebtedness is owed has not declared the Company or such
Consolidated Subsidiary to be in default); or a default occurs under any
agreement or instrument evidencing, or under which the Company or any
Consolidated Subsidiary has outstanding at the time, any such Indebtedness and
such default continues beyond the grace period, if any, applicable thereto, if
the effect of such default is to accelerate, or to permit the acceleration of,
the maturity of such Indebtedness;
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(d) Any representation or warranty made by or on behalf of the
Company in this Agreement, or in any notice or other certificate, document,
Financial Statement or other statement delivered pursuant hereto, proves to
have been incorrect in any material respect when made;
(e) The Company fails to comply with any covenant or provision set
forth in Section 6.12 or Article VII;
(f) The Company fails to comply with or perform any agreement or
covenant contained herein other than those referred to in Sections 8.01(a)
through (e) above, and such failure continues for 30 days after the occurrence
thereof;
(g) This Agreement, the Notes, or any other Financing Document at
any time for any reason ceases to be in full force and effect, or is declared
to be void or is repudiated by the Company, or the validity or enforceability
hereof or thereof is at any time contested by the Company;
(h) Allied Capital Advisers, Inc. ceases to manage the Fund;
(i) The Company (i) applies for, or consents to the appointment
of, a receiver, trustee, custodian, intervenor or liquidator of itself or of
all or a substantial part of its assets, (ii) files a voluntary petition in
bankruptcy, admits in writing that it is unable to pay its debts as they become
due or generally fails to pay its debts as they become due, (iii) makes a
general assignment for the benefit of creditors, (iv) files a petition or
answer seeking reorganization or arrangement with creditors or to take
advantage of any bankruptcy or insolvency laws, (v) files an answer admitting
the material allegations of, or consents to, or defaults in answering, a
petition filed against it in any bankruptcy, reorganization or insolvency
proceeding where such action or failure to act will result in a determination
of bankruptcy or insolvency against it;
(j) Without the Company's written application, approval or
consent, a proceeding is instituted in any court of competent jurisdiction or
by or before any government or governmental agency of competent jurisdiction,
seeking in respect of the Company: adjudication in bankruptcy, reorganization,
dissolution, winding up, liquidation, a composition or arrangement with
creditors, a readjustment of Indebtedness, the appointment of a trustee,
receiver, liquidator or the like of it or of all or any substantial part of its
property or assets, or other like relief in respect of it under any bankruptcy,
reorganization or insolvency law; provided, however, that the same shall not
constitute an Event of Default if such proceeding is being contested by the
Company in good faith, unless the same continues undismissed for a period of 60
days;
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(k) Any final judgment or judgments for the payment of money is or
are rendered against the Company or any Consolidated Subsidiary or any of their
properties, and such judgment or judgments is or are not satisfied or
discharged within 30 days of entry; provided, however, that the same shall not
constitute an Event of Default except to the extent that it would have a
Material Adverse Effect on the Company's ability to repay the Loan;
(l) Any environmental claim shall have been asserted against the
Company, and such claim could have a Material Adverse Effect on the Company's
ability to repay the Loan; or
(m) Any event shall have occurred that, in the reasonable judgment
of OPIC, would, or is reasonably likely to, impair the Company's ability to
repay the Loan.
SECTION 8.02. REMEDIES UPON EVENT OF DEFAULT.
(a) Except as otherwise provided in Section 8.02(b), if any Event
of Default has occurred and is continuing, OPIC may at any time in its sole
discretion, (i) suspend or terminate the Commitment, (ii) declare, by written
demand for payment to the Company, any portion or all of the Loan to be due and
payable, whereupon such portion of the Loan, together with interest accrued
thereon and all other amounts due under this Agreement, the Notes, and any
other Financing Document, shall immediately mature and become due and payable,
without any other presentment, demand, diligence, protest, notice of
acceleration, or other notice of any kind, all of which the Company hereby
expressly waives, and/or (iii) without notice of default or demand, proceed to
protect and enforce its rights and remedies by appropriate proceedings, whether
for damages or the specific performance of any provision of this Agreement, any
Note, or any other Financing Document, or in aid of the exercise of any power
granted in this Agreement, any Note, any other Financing Document, or by law,
or may proceed to enforce the payment of any Note.
(b) Upon the occurrence of an Event of Default referred to in
Sections 8.01(i) or (j), (I) the Commitment shall automatically be
terminated, and (II) the Loan, together with interest accrued thereon and all
other amounts due under this Agreement, the Notes, and any other Financing
Document, shall immediately mature and become due and payable, without any
other presentment, demand, diligence, protest, notice of acceleration, or other
notice of any kind, all of which the Company hereby expressly waives.
SECTION 8.03. JURISDICTION AND CONSENT TO SUIT.
Without prejudice to OPIC's right to bring suit in the courts of any
domestic or foreign jurisdiction, any proceeding to enforce
27
31
this Agreement, any Note, or any other Financing Document to which the Company
is a party (unless otherwise specified) may be brought by OPIC in any court of
competent jurisdiction in the District of Columbia of the U.S. or in any other
jurisdiction where the Company or any of its property may be found. The
Company hereby irrevocably waives any present or future objection to such
venue, and irrevocably consents and submits unconditionally to the nonexclusive
jurisdiction for itself and in respect of any of its property of any such
court. The Company further irrevocably waives any claim that any such court is
not a convenient forum for any such proceeding. The Company further agrees
that final judgment against it in any such action or proceeding arising out of
or relating to this Agreement, any Note, or any other Financing Document shall
be conclusive and may be enforced in any other jurisdiction within or outside
the U.S. by suit on the judgment, a certified or exemplified copy of which
shall be conclusive evidence of the fact and of the amount of its indebtedness.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES.
Each notice, demand, report, or other communication relating to this
Agreement shall be in writing, shall be hand-delivered or sent by mail (postage
prepaid), telegram or facsimile transmission (with a copy by mail to follow,
receipt of which copy shall not be required to effect notice), and shall be
deemed duly given when sent to the following addresses, or to such other
address or number as each party shall have last specified by notice to the
other parties:
To the Company:
Allied Capital Corporation
0000 X Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
(Attn: G. Xxxxxx Xxxxxxxx, III, President)
Facsimile: (000) 000-0000
To OPIC:
Overseas Private Investment Corporation
0000 Xxx Xxxx Xxx, X.X.
Xxxxxxxxxx, X.X. 00000
(Attn: Vice President, Finance
with a copy to Treasurer)
Facsimile: (000) 000-0000
Either party may, by written notice to the other, change the address to which
such communications should be sent to it.
28
32
SECTION 9.02. GOVERNING LAW.
THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAWS PROVISIONS.
SECTION 9.03. SUCCESSION.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto, provided that the Company shall
not, without the prior written consent of OPIC, assign or delegate all or any
part of its interest herein or obligations hereunder.
SECTION 9.04. SURVIVAL OF AGREEMENTS.
Each agreement, representation, warranty and covenant contained or
referred to in this Agreement shall survive any investigation at any time made
by OPIC and shall survive the Disbursement of the Loan, except for changes
permitted hereby, and shall terminate only when all amounts due or to become
due under this Agreement and the Notes are paid in full.
SECTION 9.05. INTEGRATION; AMENDMENTS.
This Agreement embodies the entire understanding of the parties
hereto, and supersedes all prior negotiations, understandings and agreements
between them with respect to the subject matter hereof. The provisions of this
Agreement may be waived, supplemented or amended only by an instrument in
writing signed by Authorized Officers of the Company and OPIC.
SECTION 9.06. SEVERABILITY.
If any provision of this Agreement is prohibited or held to be
invalid, illegal or unenforceable in any jurisdiction, the parties hereto agree
to the fullest extent permitted by law that (i) the validity, legality and
enforceability of the other provisions in such jurisdiction shall not be
affected or impaired thereby, and (ii) any such prohibition, invalidity,
illegality or unenforceability shall not render such provision prohibited,
invalid, illegal, or unenforceable in any other jurisdiction.
SECTION 9.07. NO WAIVER.
(a) No failure or delay by OPIC in exercising any right, power or
remedy shall operate as a waiver thereof or otherwise
29
33
impair any of its rights, powers or remedies. No single or partial exercise of
any such right shall preclude any other or further exercise thereof or the
exercise of any other legal right. No waiver of any such right shall be
effective unless given in writing.
(b) The rights or remedies provided for herein are cumulative and
are not exclusive of any other rights, powers or remedies provided by law. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion of any other appropriate right or remedy.
SECTION 9.08. WAIVER OF JURY TRIAL.
The Company and OPIC each hereby irrevocably waives, to the fullest
extent permitted by law, any right to have a jury participate in resolving any
dispute arising out of, in connection with, related to, or incidental to the
relationship between them established by this Agreement, the Notes, any other
Financing Document and any other instrument, document or agreement entered into
in connection with this Agreement or the transactions contemplated hereby.
SECTION 9.09. INDEMNITY.
To the extent permitted by law, the Company hereby indemnifies and
holds harmless OPIC and its directors, officers, employees, agents and counsel
(the "Indemnified Persons") from and against any and all losses, liabilities,
obligations, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against any Indemnified Person in any way relating to or arising
out of this Agreement, the Financing Documents or any of them or any of the
transactions contemplated hereby or thereby; provided, however, that the
Company shall not be liable to any Indemnified Person for any losses,
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that resulted from the gross negligence or willful
misconduct of such Indemnified Person.
SECTION 9.10. FURTHER ASSURANCES.
From time to time, the Company shall execute and deliver to OPIC such
additional documents as OPIC may require to carry out the purposes of this
Agreement or the Financing Documents or to preserve and protect OPIC's rights
as contemplated herein or therein.
30
34
SECTION 9.11. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be deemed an original and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered on its behalf by its Authorized Officer
as of the date first above written.
ALLIED CAPITAL CORPORATION
/s/ G. XXXXXX XXXXXXXX, III
-----------------------------
By: G. Xxxxxx Xxxxxxxx, III
Its: President
OVERSEAS PRIVATE INVESTMENT
CORPORATION
/s/ XXXXXXXXXXX XXXX
---------------------------------
By: Xxxxxxxxxxx Xxxx
Its: Executive Vice President
31
35
United States of America )
) ss:
District of Columbia )
I, Xxxxx Xx Xxxxxxxx, a notary public in and of District of Columbia,
DO HEREBY CERTIFY that G. Xxxxxx Xxxxxxxx, III, an Authorized Officer of Allied
Capital Corporation (the "Company"), personally appeared before me in said
District of Columbia, personally known to me and known by me to be the person
who executed on behalf of the Company the Loan Agreement annexed hereto, who
acknowledged the same to be his or her own free act and deed and the free act
and deed of the Company, and that he or had the necessary authority to do so.
Given under my hand and notarial seal this 10th day of April, 1995.
/s/ XXXXX XX XXXXXXXX
--------------------------------------
Xxxxx Xx Xxxxxxxx
Notary Public, District of Columbia
My Commission Expires Jan. 14, 1998
---------------------------------------
32
00
Xxxxxx Xxxxxx xx Xxxxxxx )
) ss:
District of Columbia )
I, Xxxxx Xx Xxxxxxxx, a notary public in and of District of Columbia,
DO HEREBY CERTIFY that Xxxxxxxxxxx Xxxx, an Authorized Officer of Overseas
Private Investment Corporation ("OPIC") personally appeared before me in said
District of Columbia, personally known to me and known by me to be the person
who executed on behalf of OPIC the Loan Agreement annexed hereto, who
acknowledged the same to be his or her own free act and deed and the free act
and deed of OPIC, and that he or she had the necessary authority to do so.
Give n under my hand and notarial seal this 10th day of April, 1995.
/s/ XXXXX XX XXXXXXXX
--------------------------------------
Xxxxx Xx Xxxxxxxx
Notary Public, District of Columbia
My Commission Expires Jan. 14, 1998
---------------------------------------
33
37
SCHEDULE 3.03
CHANGES IN FINANCIAL CONDITION
Since the financial statements set forth in the Company's Annual
Report as of December 31, 1994, there have been no changes in the Company's
financial condition except as have occurred in the ordinary course of the
Company's business since such date.
38
SCHEDULE 3.05
SUBSIDIARIES AND SHAREHOLDINGS
As a regular part of its business, the Company owns interests in
portfolio companies in a wide range of businesses. These ownership interests
are predominantly in the form of common stock or warrants exercisable into
common stock. These shareholdings are set forth in the Company's 1994 Annual
Report.
S-2
39
SCHEDULE 3.09
LITIGATION
None, except as set forth in the Company's Form 10-K as of December
31, 1994 and the Company's 1994 Annual Report.
S-3
40
SCHEDULE 3.11
DISCLOSURE DOCUMENTS
1. 1993 Allied Capital Corporation Annual Report
2. 1994 Allied Capital Corporation Annual Report
3. Allied Capital International "business plan" dated February, 1995,
with appendices
4. Allied Capital Corporation Loan Commitments Outstanding Report, as of
December 31, 1994
5. Allied Capital Corporation consolidated statement of investment
performance statistics for the 34-year period ended December 31, 1993
6. Allied Capital Advisers advisory fee explanation memorandum from Xxxx
Xxxxxxx to Allied Capital Corporation Board of Directors, dated February 6, 1995
7. Sponsor Disclosure Report dated December 7, 1994
8. Conformed copy of Note Agreement with Massachusetts Mutual Life, dated
April 30, 1992, as amended
S-4
41
SCHEDULE 6.08
INSURANCE
None
S-5
42
EXHIBIT A
FORM OF DISBURSEMENT REQUEST
Overseas Private Investment Corporation
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Vice President for Finance, with a copy to the Treasurer
Disbursement Request
Dear Sir or Madam:
Reference is made to the Loan Agreement between Allied Capital Corporation (the
"Company") and Overseas Private Investment Corporation ("OPIC") dated as of
April 10, 1995 (the "Loan Agreement"). Except as otherwise provided,
capitalized terms used herein shall have the meanings set forth in the Loan
Agreement.
Pursuant to Section 2.01(b) of the Loan Agreement, notice is hereby given that
the undersigned requests Disbursement of the Loan as follows:
Amount of Disbursement: $[_____]
Proposed Closing Date: [Not less than 5 Business Days from the date
OPIC receives this Disbursement Request]
As of the Closing Date, each of the conditions set forth in [Articles IV and V]
[Article V] will be satisfied.
Very truly yours,
ALLIED CAPITAL CORPORATION
By:
------------------------
Its:
-----------------------
43
EXHIBIT B
FORM OF PROMISSORY NOTE
ALLIED CAPITAL CORPORATION
PROMISSORY NOTE
No. _____ ________________________ __, 199__
FOR VALUE RECEIVED, ALLIED CAPITAL CORPORATION, a corporation
organized and existing under the laws of the State of Maryland (the "Company"),
hereby unconditionally promises to pay to the order of OVERSEAS PRIVATE
INVESTMENT CORPORATION ("OPIC") the Principal Sum (defined below) in lawful
currency of the United States of America and in immediately available funds,
at the office of OPIC, 0000 Xxx Xxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, at
the times and as provided in the Loan Agreement, dated as of April 10, 1995,
between the Company and OPIC (as it may be amended from time to time, the "Loan
Agreement").
The Company hereby also promises to pay interest on the unpaid
principal amount hereof in like funds at said office from the date hereof until
paid at the rates and at the times provided in the Loan Agreement.
The Company hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this promissory note.
As used herein, the following capitalized terms shall have the
meanings specified:
Principal Sum _______________________ and
00/000 Xxxxxx Xxxxxx Dollars
(U.S. $_________________)
Maturity Date _______________, 2005
Interest Payment Dates semi-annually on the
fifteenth day of March and
September of each year and on
the Maturity Date
Note Rate The rate per annum equal to
the sum of the Treasury Rate
plus fifty basis points
(0.50%)
Treasury Rate ___________________ percent
(___%) per annum
44
Default Spread two percent (2%) per annum
Day Count Fraction 360-day years consisting of
twelve 30-day months
Business Day Any day except a Saturday,
Sunday or other day on which
commercial banks in New York
City or Washington, D.C. are
authorized by law to close
All other capitalized terms used herein and not otherwise defined shall have
their respective meanings set forth in the Loan Agreement.
1. Principal Payment. The Principal Amount hereof shall be due
on the Maturity Date.
2. Interest Payments. The Company shall pay to OPIC interest at
the Note Rate in arrears on each Interest Payment Date, commencing with the
first such date after the date hereof, on the Principal Amount hereof from time
to time outstanding, accruing from and including the date hereof until payment
in full.
3. Computation of Interest. Interest shall accrue and be
computed on the basis of the Day Count Fraction, for each period (an "Interest
Period") from and including the Closing Date or the day following the
immediately preceding Interest Payment Date, as the case may be, to and
including the next succeeding Interest Payment Date or, if earlier, the
Maturity Date.
4. Method and Application of Payment. All payments hereunder
shall be made in immediately available funds to OPIC. Whenever any Payment
Date under this Note shall fall on any day that is not a Business Day, the
payment due on such Payment Date shall be made on the next succeeding Business
Day.
5. Additional Provisions. This Note is issued under and is
subject to the provisions of the Loan Agreement. No reference herein to the
Loan Agreement and no provision of this Note or the Loan Agreement shall alter
or impair the obligation of the Company to pay the principal of, interest on,
and all other amounts due pursuant to this Note as provided herein.
6. Principal Prepayments. The Principal Amount of this Note (a)
may be prepaid at the election of the Company, at any time, in whole or in part
without penalty or premium and (b) shall be prepaid (i) in whole at the
election of OPIC upon the occurrence of an Event of Default under the Loan
Agreement or (ii) in whole or in part upon the occurrence of certain events
requiring mandatory prepayment under the Loan Agreement.
B-2
45
prepayment under the Loan Agreement.
7. Default Rate. Interest shall accrue on the amount of any
principal and interest not paid when due, from the date on which such amount
became due and payable (whether at stated maturity, by acceleration, or
otherwise), at a rate per annum equal to the sum of the Note Rate plus the
Default Spread, and shall be payable on the last day of each month succeeding
such due date and on the date when such defaulted amount is paid in full.
8. Amendments and Modifications. The provisions of this Note may
be modified or amended only by an instrument in writing signed by duly
authorized representatives of the Company and OPIC.
9. Governing Law. This Note shall be construed and enforced in
accordance with the law of the State of New York without regard to its conflict
of laws provisions.
IN WITNESS WHEREOF, the Company acting by its duly authorized
representative has caused this Note to be executed and delivered on the date
first above written.
ALLIED CAPITAL CORPORATION
By:
----------------------------
Its:
---------------------------
B-3
46
EXHIBIT C
FORM OF CORPORATE AUTHORIZATION CERTIFICATE
[COMPANY LETTERHEAD]
----------------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 4.01
----------------------------------
I, ________________, [_______________], corporate Secretary of Allied
Capital Corporation, company organized and existing under the laws of the State
of Maryland (the "Company"), DO HEREBY CERTIFY that:
1. Attached hereto as Exhibit A is a true and complete copy of
the Charter Documents of the Company, as amended to date, which are in full
force and effect as of the date hereof.
2. Attached hereto as Exhibit B are true and complete copies of
resolutions duly adopted by the Board of Directors of the Company [and of all
documents evidencing any other necessary corporate or shareholder action taken
by the Company] to authorize the execution, delivery and performance of the
Loan Agreement between the Company and Overseas Private Investment Corporation
("OPIC"), dated as of April 10, 1995 (the "Loan Agreement") (capitalized terms
used herein and not otherwise defined herein shall have the meanings set forth
in the Loan Agreement) and the Note(s), and such resolutions are in full force
and effect without amendment as of the date hereof.
47
3. The following named individuals whose specimen signatures and
titles are set forth opposite their names are authorized to execute and deliver
on behalf of the Company the Loan Agreement, the Notes, and all other
instruments and notices contemplated in the Loan Agreement:
------------------------------ ----------------------------------- ---------------------------------------
Name Title Specimen Signature
------------------------------ ----------------------------------- ---------------------------------------
Name Title Specimen Signature
------------------------------ ----------------------------------- ---------------------------------------
Name Title Specimen Signature
WITNESS my hand this day of , 1995.
--- ------
--------------------------------------
[Name]
Corporate Secretary
I, [_____________], the [President] [Chairperson and Chief Executive
Officer] of the Company, DO HEREBY CERTIFY that [Name of Corporate Secretary]
is, and at all times since [_______________], 199 [__] has been, duly elected
and qualified as Corporate Secretary of the Company, and that the signature of
such Corporate Secretary set forth above is true and genuine.
WITNESS my hand this [_______] day of _______, 1995.
--------------------------------------
[Name]
[President] [Chairperson and
Chief Executive Officer]
C-2
48
EXHIBIT D
FORM OF CLOSING CERTIFICATE
[COMPANY LETTERHEAD]
-----------------------------------
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 5.03
-----------------------------------
I, [______________], the [President] [Chairperson and Chief Executive
Officer] of Allied Capital Corporation (the "Company"), a company organized and
existing under the laws of the State of Maryland, DO HEREBY CERTIFY that:
A. I am familiar with the terms of the Loan Agreement between the
Company and overseas Private Investment Corporation ("OPIC"), dated
as of April 10, 1995 (the "Loan Agreement") (capitalized terms used
herein and not otherwise defined herein shall have the meanings set
forth in the Loan Agreement);
B. I have read the covenants, representations, warranties and
agreements of the Company contained in the Loan Agreement and have
been represented by counsel in connection with the preparation,
execution and delivery of the Loan Agreement;
C. I have made or caused to be made such examination or
investigation as is necessary to enable me to express an informed
opinion as to the matters set forth below;
and pursuant to Section 5.03 of the Loan Agreement DO HEREBY CERTIFY that,
except as set forth on the Exceptions Schedule attached hereto:
1. The representations and warranties set forth in Article III of
the Loan Agreement are true and correct in all material respects on
the date hereof as if made on the date hereof, and no Event of
Default, and no event or condition which with lapse of time or the
giving of notice, or both, would constitute an Event of Default,
exists on the date hereof;
2. As of the date hereof, no circumstance exists, or change of
law or regulation of any governmental authority has
49
occurred, that would have a Material Adverse Effect.
3. Attached hereto as Exhibit A is a schedule setting forth the
purposes to which the present Disbursement will be applied, for which
the proceeds of this Disbursement are presently needed.
WITNESS my hand this [_________] day of [______________], 199[__].
----------------------------------------
[Name]
Chairperson and Chief
Executive Xxxxxxx
X-0
00
Xxxxxx Xxxxxx xx Xxxxxxx )
) ss:
District of Columbia )
I, ____________________________________, a notary public in and for the
District of Columbia, DO HEREBY CERTIFY that [Name], [Title] of Allied Capital
Corporation (the "Company"), personally appeared before me in said District,
personally known to me and known by me to be the person who executed on behalf
of the Company the Closing Certificate annexed hereto, who acknowledged the
same to be [his/her] own free act and deed and the free act and deed of the
Company, and that (he/she] had the necessary authority to do so.
Given under my hand and [notarial] seal this [_________] day of
[________________], 199[__].
---------------------------------------------------
---------------------------------------------------
D-3
51
EXHIBIT E
FORM OF LEGAL OPINION
[On Letterhead]
____________ __, 1995
Overseas Private Investment Corporation
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Ladies and Gentlemen:
I have acted as counsel to Allied Capital Corporation, a corporation
organized and existing under the laws of the State of Maryland (the "Company")
and in connection with the negotiation, execution and delivery by the Company
of the Loan Agreement dated as of April 10, 1995 (the "Loan Agreement") between
the Company and Overseas Private Investment Corporation ("OPIC") and the
execution and delivery by the Company of certain other instruments related
thereto. This opinion is submitted to OPIC pursuant to Section 4.02 of the
Loan Agreement. All capitalized terms used herein and not otherwise defined
shall have their respective meanings set forth in the Loan Agreement.
In connection herewith, I have examined originals or copies certified
or otherwise identified to my satisfaction of (i) the Loan Agreement, dated as
of April 10, 1995 and (ii) the form of Note.
I have also examined originals, or copies certified or otherwise
identified to my satisfaction, of the Articles of Incorporation and By-laws of
the Company, board resolutions, other corporate and official records,
agreements, certificates, approvals and such other documents relating to the
Company as I have deemed necessary or appropriate. I have also made such other
investigations, and have reviewed such matters of law, as I have considered
relevant to the opinions expressed herein.
The opinions hereinafter expressed are subject to the following
qualifications, whether or not such opinions refer to such qualifications:
(a) the enforceability of the Loan Agreement and each of the
related documents specified therein may be limited by the effect of applicable
federal or state bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws, statutes or rules of general application relating
to, or affecting, the enforcement of creditor's rights;
52
(b) the enforceability of the Loan Agreement and each of the
related documents specified therein is subject to such principles of equity as
a court having jurisdiction may impose by the exercise of judicial discretion,
including without limitation, the effect of rules of law governing judicial
discretion, including without limitation, the effect of rules of law governing
specific performance, injunctive relief and other equity remedies (regardless
of whether such enforceability is considered in a proceeding in equity or at
law);
(c) I have assumed the legal capacity, power and due authorization
of any party or parties (other than the Company) executing and delivering any
document referred to herein; and
(d) I have assumed and relied upon the truth and completeness, as
to matters of fact, of the certificates of government officials and of the
certificates, representations, warranties, covenants and agreements of the
Company given pursuant to or in connection with the Loan Agreement and the
documents specified therein.
I have not consulted with legal counsel in any other jurisdiction, and
I do not, except as expressly set forth herein, opine as to any matter relative
to any jurisdiction other than the District of Columbia, applicable Federal
laws and the corporations law of the State of Maryland. I am not aware of any
material differences between the applicable laws of the District of Columbia
and the State of New York, and, in giving the opinions set forth herein, I
have, with your permission, assumed that there are no material differences
between the applicable laws of the District of Columbia and the State of New
York.
Subject to the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Maryland.
2. The Company's authorized capitalization consists of 10,000,000
shares of common stock, of which approximately 6,152,703 shares are issued and
outstanding as of March 30, 1995. All outstanding shares of common stock of
the Company have been duly authorized and validly issued and are fully paid and
Nonassessable.
3. The Company is duly authorized to do business and is in good
standing in each jurisdiction in which its business makes such authorization
required (or for which the failure to be so authorized or qualified would have
a Material Adverse Effect), has the corporate power and authority to own and
operate its properties, to carry on its business and to establish and
E-2
53
implement the Fund and to execute, deliver and perform its obligations under
the Loan Agreement and the Notes.
4. The Company's execution, delivery and performance of the Loan
Agreement, the Notes and each of the other Financing Documents to which it is
or will be a party (i) have been duly authorized by all necessary corporate
action; (ii) will not violate any applicable regulation or ruling of any
competent governmental authority; and (iii) will not breach, or result in the
imposition of any encumbrance upon any of its assets (except as permitted by
Section 7.01 of the Loan Agreement) under any agreement or other requirement to
which it or any of its properties may be bound or affected or any applicable
provision of its Articles of Incorporation or By-laws; and all third party
consents required therefor have been obtained and are in full force and effect.
5. The Loan Agreement has been duly executed and delivered by the
Company, and constitutes, and each Note when executed and delivered in
accordance with the Loan Agreement will constitute, the legal, valid and
binding obligation of the Company, enforceable in accordance with its
respective terms except as its enforceability may be limited by bankruptcy,
insolvency, reorganization, similar laws affecting the enforcement of
creditors' rights generally or general principles of equity.
6. Except for Liens permitted by Section 7.01 of the Loan
agreement, each of the Company and its Consolidated Subsidiaries has good title
to its property free and clear off all Liens, and the Company's obligations
under the Loan Agreement rank, and its obligations under the Notes will rank,
at least pari passu with all its other Indebtedness. For purposes of this
paragraph, the term "Indebtedness" means any amount payable pursuant to any
agreement or instrument involving or evidencing money borrowed or received, the
advance of credit, a conditional sale or a transfer with recourse or with an
obligation to repurchase, or pursuant to a lease with substantially the same
economic effect as any such agreement or instrument, to which the Company is a
party as debtor, borrower or guaranty.
7. No registration, authorization, exemption, consent, approval
or order of or with any governmental authority or any governmental subdivision
thereof is required:
(a) to enable the execution, delivery and performance by the
Company of the Loan Agreement or the Notes; or
(b) to permit OPIC to exercise any right, privilege or remedy
afforded under (i) the Loan Agreement or the Notes or (ii) any applicable law
(including acceleration of the maturity of the Loan), and to enforce each of
its rights, privileges and remedies
E-3
54
in any court or other tribunal of competent jurisdiction in the District of
Columbia.
8. All tax returns and reports of the Company and its
Consolidated Subsidiaries required by law to be filed in the United States of
America and each governmental subdivision thereof have been duly filed, and all
taxes, assessments, fees and other governmental charges due in respect of the
Company and its Consolidated Subsidiaries or any assets, income or franchise of
the Company and its Consolidated Subsidiaries have been duly paid, except for
amounts contested in good faith by appropriate proceedings diligently pursued
and for which adequate reserves have been established.
9. Neither the Company nor, to my best knowledge after due
inquiry, any other party, is in breach of any contractual provision that would
have a material adverse effect upon the Company's ability to perform its
obligations under the Loan Agreement or the Notes or to carry on its business
and to establish and implement the Fund.
10. No actions, suits, proceedings or investigations are pending
or are threatened by or before any domestic or foreign court or governmental
authority against the Company or any of its properties or rights that, if
adversely determined, would be likely to result in any material liability or to
have a material adverse effect the ability of the Company to perform its
obligations under any of the Financing Documents, except as to matters
previously disclosed in writing to OPIC.
11. The Company has the power to submit, and pursuant to the Loan
Agreement has legally, validly, effectively and irrevocably submitted, to the
jurisdiction of the courts of the United States of America in the District of
Columbia in respect of any proceeding to enforce the Loan Agreement or any
Note.
The opinions expressed herein are given, and relate to acts and
circumstances existing, as of the date hereof. I assume no obligation to
update or supplement these opinions to reflect any facts or circumstances which
may hereafter come to my attention or any changes in laws which hereafter
occur. The opinions expressed herein are not intended to be relied upon by any
individual or entity other than OPIC.
Very truly yours,
Xxxxxx X. Xxxxxx
E-4
55
EXHIBIT F
GUIDELINES FOR SCREENING DOWNSTREAM INVESTMENTS
(DECEMBER 1993)
Presented below are guidelines that provide a mechanism for the application to
downstream investments of OPIC's U.S. and environmental effects standards as
well as the worker rights and insurance of exports undertakings required by the
Jobs Through Exports Act of 1992.
THE GUIDELINES ARE DIVIDED INTO TWO PARTS-- THOSE APPLICABLE TO "ONE-TIME
INVESTMENT PROJECTS",(3) AND THOSE APPLICABLE TO "REVOLVING LOAN PROJECTS."
(4)
I. Guidelines for One-time Investment Projects. In general, OPIC
SCREENING OF DOWNSTREAM INVESTMENTS (AS DEFINED BELOW) WILL BE BASED
ON REVIEW OF THE OPIC EXPEDITED SCREENING QUESTIONNAIRE, A COPY OF
WHICH IS ATTACHED AS EXHIBIT A HERETO (THE."QUESTIONNAIRE"). The
Questionnaire is to be completed by the appropriate investment,
project manager well in advance of the proposed investment date. OPIC
may amend the Questionnaire from time to time as circumstances
warrant.
A. Small-Scale Downstream Investment FOR SMALL-SCALE DOWNSTREAM
INVESTMENTS (AS DEFINED BELOW), OPIC WILL MAKE EVERY EFFORT TO
TRANSMIT ITS SCREENING DECISION WITHIN 10 WORKING DAYS OF
RECEIPT OF A COMPLETED QUESTIONNAIRE, PROVIDED THAT THE
INVESTMENTS ARE NOT IN ANY OF THE SECTORS LISTED IN APPENDIX
I, II OR III. Since investments in sectors outside those
listed in Appendix I, II or III are unlikely to have material
adverse impacts, investment project managers can expect an
expeditious positive response from OPIC for most such
investments. (Investment project managers should be aware that
even downstream investments falling within the sectors listed
in Appendix I, II or III may well be permitted by OPIC, but
only after a full review of the proposed investment in
accordance with OPIC's existing procedures for all
OPIC-supported projects.)
For purposes of these guidelines, A "SMALL-SCALE DOWNSTREAM
INVESTMENT" IS ONE THAT, WHEN COMBINED WITH ALL OTHER
OUTSTANDING INVESTMENTS MADE BY THE
--------------------
(3) "One-time investment projects" are investment projects the capital of
which generally may be deployed only once.
(4) "Revolving loan projects" are investment projects, such as trade capital
funds, the capital of which may be redeployed continually as downstream
investments are liquidated and (that generally make investments only in the
form of short term loans.
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SAME INVESTMENT PROJECT IN THE SAME DOWNSTREAM PROJECT
COMPANY, DOES NOT EXCEED THE LESSER OF: (i) $2.5 MILLION, OR
(ii) 10 PERCENT OF THE INVESTMENT PROJECT'S TOTAL CAPITAL.(5)
The dollar amount calculated in accordance with the preceding
sentence is referred to as the "Small-Scale Threshold."
B. Intermediate-Scale Downstream Investments. OPIC SCREENING OF
DOWNSTREAM INVESTMENTS IN EXCESS OF THE SMALL-SCALE THRESHOLD,
BUT NOT MORE THAN $5 MILLION (OR 10 PERCENT OF TOTAL PROJECT
CAPITAL, WHICHEVER IS LESS), ALSO NORMALLY WILL BE COMPLETED
WITHIN 10 WORKING DAYS OF RECEIPT OF A COMPLETED
QUESTIONNAIRE, PROVIDED IN ADDITION THAT:
1. THE DOWNSTREAM INVESTMENT IS NOT IN A SECTOR LISTED
IN APPENDIX I, II OR III HERETO; AND
2. NOT MORE THAN ONE (1) PERCENT OF THE DOWNSTREAM
PROJECT COMPANY'S TOTAL PRODUCTION, REPRESENTING
INCIDENTAL SALES, IS TO BE EXPORTED TO THE UNITED
STATES; AND
3. THE DOWNSTREAM INVESTMENT PROJECT IS NOT IN THE
AGRICULTURE, MANUFACTURING OR TOURISM SECTOR. For
projects in these sectors, a favorable environmental
assessment prepared by a qualified party approved by
OPIC must be submitted before OPIC review can be
completed. The investment project manager must also
receive appropriate assurances that remedial measures
recommended in the assessment, if any, will be taken.
(Information regarding the preparation of
environmental assessments may be obtained from
OPIC.); and
4. THE DOWNSTREAM INVESTMENT REPRESENTS LESS THAN 25
PERCENT OF THE TOTAL EQUITY CAPITAL OF THE DOWNSTREAM
PROJECT COMPANY. For investments that represent more
than 25 percent of such capital, worker rights
undertakings, to be prepared in consultation with
OPIC, must be obtained from each
--------------------
(5) For one-time investment projects. such as the Finance Department's
investment funds, total capital would be based on the project's total
committed capital. For revolving loan projects, such as trade capital
funds, total capital would he that outstanding (i.e., the outstanding sum of
moneys invested in the investment project) from time to time during the life of
the project, with appropriate relaxation of this standard during the
start-up and wind-down phase of such investment projects.
F-2
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downstream project company before OPIC review can be
completed.
II. Guidelines for Revolving Loan Projects. Except for projects in the
sectors listed in Appendix I, II or III, no OPIC screening will be
required where the amount invested, when combined with the outstanding
balance(s) of all other investments by an investment project in the
same downstream project company, does not exceed the Small-Scale
Threshold.
III. OPIC Screening. DOWNSTREAM INVESTMENTS THAT DO NOT FALL WITHIN THE
FOREGOING CATEGORIES MUST BE SCREENED BY OPIC IN ACCORDANCE WITH ITS
CUSTOMARY SCREENING CRITERIA APPLICABLE TO OPIC-SUPPORTED INVESTMENTS.
EVERY EFFORT WILL BE MADE TO SCREEN SUCH INVESTMENTS IN A TIMELY
MANNER. INVESTMENT PROJECT MANAGERS SHOULD BE AWARE THAT PROPOSED
DOWNSTREAM INVESTMENTS IN SECTORS LISTED IN APPENDIX I, II OR III MAY
BE APPROVED BY OPIC, BUT ONLY AFTER PRIOR SCREENING.
In addition to the expedited screening procedure applicable to
Small-Scale and Intermediate-Scale Downstream Investments, as
described above, other projects in certain sectors that are unlikely
to cause adverse effects are likely to be reviewed more quickly than
those in other sectors. Attached hereto as Appendix IV is a list of
sectors for which OPIC considers the possibility of adverse effects on
the U.S. economy to be remote; Appendix V hereto lists sectors in
which downstream investments are unlikely to cause environmental harm.
For downstream investments in environmental sectors that normally will
be screened by OPIC for environmental effects, investment projects are
encouraged, as is the case under current OPIC practice, to submit
environmental assessments prepared by responsible parties in order to
expedite to the maximum degree possible OPIC's final decision
regarding the potential environmental hazards of a downstream
investment and the remedial measures required.
F-3
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EXHIBIT A: OPIC Expedited Screening Questionnaire-Downstream Investments
(OPIC Form 168) is included here by reference.
APPENDIX I
DOWNSTREAM INVESTMENTS PROHIBITED ON U.S. EFFECTS GROUNDS
ABSENT OPIC PRIOR APPROVAL
- Copper and copper products
- Motor vehicles, parts and supplies
- Iron, steel and products thereof
- Leather
- Footwear
- Textiles, apparel and apparel accessories
- Electronics
- Agricultural products
F-4
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Directive 00-00
XXXXXXXX XX
XXXXXXXXXX XXXXXXXXXXX XXXXXXXXXX XX ENVIRONMENTAL GROUNDS ABSENT
OPIC PRIOR APPROVAL
- Logging
- Mining
- Chemical production
- Pulp and paper production
- Manufacture, disposal, import or export of products classified
as toxic or hazardous by the U.S. Environmental Protection
Agency*
- Manufacture of ozone depleting chemicals*
- Harvesting of rare, endangered or threatened species of plants
or animals*
-------------
* Downstream investments in these sectors are highly unlikely to be approved by
OPIC.
F-5
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APPENDIX III
DOWNSTREAM INVESTMENTS PROHIBITED BY OPIC ON POLICY GROUNDS ABSENT
OPIC PRIOR APPROVAL
- Export processing zones or investments located therein
- Projects established as a result or in contemplation of
reducing or terminating U.S. operations
- military production or sales
- Pharmaceuticals and medical equipment
- Tobacco
- Alcoholic beverages
- Gambling
- Real estate development, including housing
- Communications (publishing and mass media)
- Companies in which host governments have majority ownership or
effective management control
- Companies in which the investment project has majority
ownership or effective management control
- Companies engaged in monopolistic practices
- Projects located in or adjacent to national parks or similar
protected areas
F-6
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APPENDIX IV
DOWNSTREAM INVESTMENT SECTORS UNLIKELY TO CAUSE HARM TO THE U.S.
ECONOMY
- Financial services
- Power production or transmission for host country or regional
markets
- Telecommunications services to serve predominantly host
country or regional markets
- Tourism services (e.g., hotels, restaurants, resorts)
- Other services provided in host country or regional markets
that cannot be supplied from the United States
- Mining of minerals or ores not mined in the United States
- Oil and gas exploration
- Host country sales, service, distribution or transportation --
no production involved
- Agricultural products not grown or raised in the United States
F-7
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APPENDIX V
DOWNSTREAM INVESTMENT SECTORS UNLIKELY TO CAUSE
ENVIRONMENTAL HARM
- Financial services
- Hotel modernization (without significant physical expansion)
- Restaurants
- Retail establishments
- Office buildings
- Warehouses
- Cellular telephone networks
- Publishing
- Garment assembly
- Transportation services
- Food packaging
F-8
63
EXHIBIT A
Fund:_______________ Company:_______________ Country:_______________
OPIC-168--December 8, 1993
OPIC Expedited Screening Questionnaire - Downstream Investments - D R A F T
A. INVESTMENT SIZE
1. What is the Fund's total capital(1)? ________
2. Please indicate the size of the downstream investment(2): _______
3. What percentage of the downstream company's equity will the
investment(2) represent? __________
B. U.S., ENVIRONMENTAL, AND POLICY CONSIDERATIONS
1. Please give a brief description of the downstream investment. The
description should clearly explain the sector involved in the
investment:
2. Does the company involved in the downstream investment export more
than one percent of its production to the U.S.? / / No / / Yes
3. Does the downstream investment fall into any of the following sectors
or categories? (Please answer for each group.)
Group A
/ / Agricultural Products / / Leather
/ / Copper and copper products / / Motor vehicles, parts, supplies
/ / Electronics / / Textiles, apparel, and apparel accessories
/ / Footwear / / None of the above
/ / Iron, steel, and products thereof
Group B
/ / Agricultural products not grown or / / Power production and transmission
raised in the U.S. (host country/regional markets)
/ / Financial Services / / Telecommunications services (host
/ / Host country sales, service, country/regional markets)
distribution, transportation (no / / Tourism services (e.g., hotels,
production involved) restaurants, resorts)
/ / Mining of minerals or ores not / / Other local services that cannot
mined in the U.S. be supplied from the U.S.:_______
/ / Oil and gas exploration (no _________________________________
production involved) / / None of the above
------------
(1) Based on the Fund's total committed capital.
(2) Including all other investments made by the Fund in the same downstream
company.
F-9
64
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Group C
/ / Chemical Production / / Manufacture, disposal, import, or export
/ / Harvesting of rare, endangered or of products classified as toxic or
threatened species of plants or animals hazardous by the U.S. Environmental
/ / Logging Protection Agency
/ / Manufacture of ozone depleting chemicals / / Mining
/ / Pulp and paper production
/ / None of the above
Group D
/ / Cellular telephone networks / / Publishing
/ / Financial Services / / Restaurants
/ / Food packaging / / Retail establishments
/ / Garment assembly / / Transportation Services
/ / Hotel modernization (without significant / / Warehouses
physical expansion) / / None of the above
/ / Office buildings
Group E
/ / Alcoholic Beverages / / Tobacco
/ / Media Communications / / Companies engaged in monopolistic practices
/ / Export processing zone or investment / / Companies in which the host government has
therein majority ownership or effective management
/ / Gambling control
/ / Military production or sales / / Companies in which the Fund has or
/ / Pharmaceuticals or medical equipment will acquire majority ownership or
/ / Projects located in or adjacent to effective management control
national parks or similar protected areas / / Established as a result or in contemplation
/ / Real estate development, including housing of reducing or terminating U.S. operations
/ / None of the above
I hereby affirm that the information provided herein is accurate and complete.
Signature: Date:
---------------------------------- ------------------------
F-10
65
EXHIBIT G
LIST OF COUNTRIES IN WHICH OPIC-RELATED INVESTMENTS MAY BE MADE
Algeria
Angola
Anguilla
Antigua & Barbuda
Argentina
Armenia
Aruba
Azerbaijan
Bahamas
Bahrain
Bangladesh
Barbados
Belarus
Belize
Xxxxx
Xxxxxxx
Xxxxxx & Xxxxxxxxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxxx
Buridna Faso
Burundi
Cameroon
Cape Verde
Central African Republic
Chad
Chile
Colombia
Congo
Xxxx Islands
Costa Rica
Cote d'lvoire
Croatia
Cyprus
Czech Republic
Djibouti
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Equatorial Guinea
Eritrea
Estonia
Ethiopia
Fiji
French Guiana
Gabon
Georgia
Germany (eastern)
Ghana
Greece
Grenada
Guatemala
Guinea
Guinea-Bissau
Guyana
Haiti
Honduras
Hungary
India
Indonesia
Ireland
Israel
Jamaica
Jordan
Xxxxxxxxxx
Xxxxx
Xxxxxxxx
Xxxxxx
Xxxxxxxxxx
Xxxx
Xxxxxx
Lebanon
Lesotino
Lithuania
Madagascar
Malawi
Malaysia
Mali
Malta
Xxxxxxxx Islands
Mauritius
Micronesia,
Federated States of
Moldova
Mongolia
Morocco
Mozambique
Namibia
Nepal
Netherlands Antilles
Nicaragua
Niger
Northern Ireland
Oman
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Qatar
Romania
Russia
Rwanda
Saint Kitts & Nevis
Saint Lucia
Saint Xxxxxxx &
the Grenadines
Sao Tome & Principe
Saudi Arabia
Senegal
Sierra Leone
Singapore
Slovakia
Slovenia
Somalia
South Africa
Sri Lanka
Swaziland
Taiwan
Tajikistan
Xxxxxxxx
Xxxxxxxx
Xxxx
Xxxxx
Xxxxxxx & Xxxxxx
Xxxxxxx
Xxxxxx
Turkmenistan
Uganda
Ukraine
United Arab Emirates
Uruguay
Uzbekistan
Venezuela
Western Samoa
West Bank & Gaza
Yemen
Zaire
Zambia
Zimbabwe
