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EXHIBIT 10.2.6
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT") is entered
into as of May 7, 1999, by and among ALLIED CAPITAL CORPORATION, a corporation
organized under the laws of the State of Maryland ("BORROWER"), BRANCH BANKING
& TRUST CO. ("BRANCH BANK"), UNITED BANK ("UNITED BANK," and, together with
Branch Bank, the "RELEVANT LENDERS"), and NATIONSBANK, N.A., as Administrative
Agent (in such capacity, the "ADMINISTRATIVE AGENT") for the Lenders under the
Credit Agreement (hereinafter defined).
RECITALS
A. Borrower, Administrative Agent, and certain other Agents and Lenders
are parties to that certain Credit Agreement dated as of March 9, 1999, (with
the Effective Date being March 10, 1999, the "CREDIT AGREEMENT"). Unless
otherwise indicated herein, all terms used with their initial letter
capitalized are used herein with their meaning as defined in the Credit
Agreement; all Section references are to Sections in the Credit Agreement; and
all Paragraph references are to Paragraphs in this Amendment.
B. Pursuant to SECTION 2.12, Borrower has requested an increase in the
aggregate Commitments under the Agreement, by requesting: (i) Branch Banking &
Trust Co. ("BRANCH BANK") to increase its Commitment from $25,000,000 to
$30,000,000 and (ii) United Bank to become a Lender with a Commitment of
$20,000,000 (the increased and new Commitments referred to in ITEMS (i) and
(ii) preceding are herein referred to as the "SUPPLEMENTAL COMMITMENTS").
C. Subject to and upon the following terms and conditions, Branch Bank
and United Bank have agreed to the Supplemental Commitments, and Administrative
Agent has agreed to the addition of United Bank as a new Lender.
D. Accordingly, in accordance with the requirements of SECTIONS 2.12
and 12.5 and subject to and upon the following terms and conditions, Borrower,
Administrative Agent, Branch Bank, and United Bank are entering into this
Amendment (i) to increase the Commitment of Branch Bank to $30,000,000 pursuant
to SECTION 2.12 of the Credit Agreement, (ii) as a result of such increased
Commitment, to designate Branch Bank as an additional Co-Agent, (iii) to add
United Bank as a "Lender" with a Commitment of $20,000,000 as a new Lender,
pursuant to SECTION 2.12 of the Credit Agreement, and (iv) to amend Schedule 2
to the Credit Agreement to reflect the Supplemental Commitments.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, Relevant Lenders, and Administrative Agent agree, as
follows:
PARAGRAPH 1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 SUPPLEMENTAL INCREASES AND CONSENT TO NEW LENDER.
(a) Pursuant to SECTION 2.12, effective on and after the
Amendment Effective Date (hereinafter defined), (i) Branch Bank agrees
that its Commitment shall be increased to the amount set forth opposite
its name on ANNEX A hereto, and (ii) United Bank agrees to be a new
Lender having the Commitment set forth opposite its name on ANNEX A
hereto. Accordingly, each Lender's Commitment Percentage shall be
recalculated to reflect the new proportionate share of the revised
total Commitments as stated on ANNEX A hereto.
FIRST AMENDMENT
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(b) Furthermore, to the extent any Revolving Loans are
outstanding on the Amendment Effective Date (excluding any Loans made
on such date), then on such date, each Relevant Lender shall pay to
Administrative Agent (for ratable distribution to the other Lenders) an
amount equal to its pro rata share of the Revolving Loans then
outstanding, which are deemed assumed and purchased from the other
Lenders. All such payments shall reduce the outstanding principal
balance of the Revolving Notes of each Lender receiving such payments
and shall represent Revolving Loans to Borrower by the appropriate
Relevant Lender. The Relevant Lenders shall be entitled to share
ratably in interest accruing in accordance with the Loan Documents.
(c) To the extent a payment contemplated in PARAGRAPH 1.1(b), if
any, occurs on a date other than the last day of any Interest Period
for any outstanding Eurodollar Loans, Borrower agrees to pay to each
Lender (upon the request of each such Lender) the amounts required by
SECTION 4.5(a) in connection therewith.
(d) On the Amendment Effective Date, United Bank shall be
entitled to the rights and benefits and subject to the duties of a
Lender under the Loan Documents.
(e) By execution hereof, Administrative Agent and Borrower
consent to the addition of United Bank as a "LENDER" under the Loan
Documents.
1.2 DEFINITIONS AND TERMS.
(a) The definition of "CO-AGENTS" in SECTION 1 of the Credit
Agreement is amended in its entirety to read, as follows:
"'CO-AGENTS' means, collectively, Chevy Chase Bank, F.S.B.,
Credit Lyonnais New York Branch, Branch Bank & Trust Co., and
their respective permitted successors and assigns as "Co-Agents"
under this Agreement."
(b) On and after the Amendment Effective Date (hereinafter
defined), (i) each reference to "Lender" or "Lenders" in the Credit
Agreement and the related Loan Documents shall include United Bank, and
(ii) each reference to SCHEDULE 2 shall be to SCHEDULE 2 as set forth
on ANNEX A, as the same may hereafter be amended or modified in
accordance with the Loan Documents.
1.3 CONFIRMATIONS AND AGREEMENTS OF UNITED BANK. United Bank
severally (a) confirms that it has received a copy of the Credit Agreement,
together with copies of the consolidated and consolidating balance sheets of
Borrower and its Consolidated Subsidiaries most recently delivered under the
Credit Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Amendment, including, without limitation, the transaction contemplated in this
PARAGRAPH 1; (b) agrees that it will, independently and without reliance upon
the Administrative Agent or any Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; (c)
appoints and authorizes Administrative Agent to take such action as
"Administrative Agent" on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to Administrative Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (d) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender; and (e) shall deliver to
Administrative Agent any U.S. Internal Revenue Service or other forms required
under SECTION 4.6 of the Credit Agreement.
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1.4 NOTES. On the Amendment Effective Date (hereinafter defined),
Borrower shall execute and deliver to each Relevant Lender a Revolving Note
reflecting the respective Commitment of each such Lender, after giving effect
to the Supplemental Commitments contemplated and effected in accordance with
PARAGRAPH 1.
PARAGRAPH 2. AMENDMENT EFFECTIVE DATE. This Amendment shall be binding upon each
Relevant Lender, Administrative Agent, Borrower, and each other Lender on the
last day (the "AMENDMENT EFFECTIVE DATE") upon which (a) counterparts of this
Amendment shall have been executed and delivered to Administrative Agent by
Borrower, Administrative Agent, and each Relevant Lender, or when
Administrative Agent shall have received, telecopied, telexed, or other
evidence satisfactory to it that all such parties have executed and are
delivering to Administrative Agent counterparts thereof; (b) the Notes are
executed by Borrower and delivered in accordance with PARAGRAPH 1.4 hereof; (c)
to the extent required by PARAGRAPH 1.1(b), all assumptions and related
payments have been made by the Relevant Lenders to Administrative Agent; and
(d) Borrower shall have paid to Administrative Agent (for distribution to
Relevant Lenders) the respective upfront fees payable to each Relevant Lender
as indicated on ANNEX A (less, in the case of Branch Bank, the amount of any
upfront fees previously paid to Branch Bank pursuant to SECTION 3.8(b)).
PARAGRAPH 3. REPRESENTATIONS AND WARRANTIES. As a material inducement to each
Relevant Lender and Administrative Agent to execute and deliver this Amendment,
Borrower hereby represents and warrants to each Relevant Lender, the other
Lenders, and Administrative Agent (with the knowledge and intent that such
parties are relying upon the same in entering into this Amendment) the
following: (a) the representations and warranties in the Credit Agreement and
in all other Loan Documents are true and correct on the date hereof in all
material respects, as though made on the date hereof, except to the extent that
such representations and warranties expressly relate solely to an earlier date
(in which case such representations and warranties shall have been true and
accurate as of such earlier date); (b) no Default or Event of Default exists
under the Loan Documents or will exist after giving effect to the transactions
contemplated by this Amendment; and (c) this Amendment has been duly authorized
and approved by all necessary corporate action and requires the consent of no
other Person, and upon execution and delivery, this Amendment shall be binding
and enforceable against Borrower in accordance with its terms.
PARAGRAPH 4. MISCELLANEOUS.
4.1 EFFECT ON LOAN DOCUMENTS. The Credit Agreement and all related Loan
Documents shall remain unchanged and in full force and effect, except as
provided in this Amendment, and are hereby ratified and confirmed. On and after
the Amendment Effective Date, all references to the "Credit Agreement" or the
"Agreement" shall be to the Credit Agreement as herein amended. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any rights of the Lenders under the
Credit Agreement or any Loan Documents, nor constitute a waiver under the
Credit Agreement or any other provision of the Loan Documents.
4.2 REFERENCE TO MISCELLANEOUS PROVISIONS. This Amendment and the other
documents delivered pursuant to this Amendment are part of the Loan Documents
referred to in the Credit Agreement, and the provisions relating to Loan
Documents set forth in SECTION 12 are incorporated herein by reference the same
as if set forth herein verbatim.
4.3 COSTS AND EXPENSES. Borrower agrees to pay promptly the reasonable
fees and expenses of counsel to Administrative Agent for services rendered in
connection with the preparation, negotiation, reproduction, execution, and
delivery of this Amendment.
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4.4 COUNTERPARTS. This Amendment may be executed in a number of
identical counterparts, each of which shall be deemed an original for all
purposes, and all of which constitute, collectively, one agreement; but, in
making proof of this Amendment, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that all parties
execute the same counterpart so long as identical counterparts are executed by
Borrower, each Relevant Lender, and Administrative Agent.
4.5 ENTIRETY. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
4.6 PARTIES. This Amendment binds and inures to Borrower, Administrative
Agent, Relevant Lenders, the other Lenders, and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in
multiple counterparts as of the respective dates indicated on each signature
page hereof, but effective as of the Amendment Effective Date.
REMAINDER OF THIS PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE TO FOLLOW.
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Signature Page to that certain First Amendment to Credit Agreement dated
as of May 7, 1999, amending that certain Credit Agreement dated as of March 9,
1999 (with the Effective Date being March 10, 1999) among Allied Capital
Corporation, as Borrower, NationsBank, N.A., as Administrative Agent, and
certain other Agents and Lenders named therein.
ALLIED CAPITAL CORPORATION, as Borrower
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Principal and Treasurer
FIRST AMENDMENT
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Signature Page to that certain First Amendment to Credit Agreement
dated as of May 7, 1999, amending that certain Credit Agreement dated as of
March 9, 1999 (with the Effective Date being March 10, 1999) among Allied
Capital Corporation, as Borrower, NationsBank, N.A., as Administrative Agent,
and certain other Agents and Lenders named therein.
NATIONSBANK, N.A.,
as Administrative Agent and a Lender
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST AMENDMENT
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Signature Page to that certain First Amendment to Credit Agreement
dated as of May 7, 1999, amending that certain Credit Agreement dated as of
March 9, 1999 (with the Effective Date being March 10, 1999) among Allied
Capital Corporation, as Borrower, NationsBank, N.A., as Administrative Agent,
and certain other Agents and Lenders named therein.
BRANCH BANKING & TRUST CO., as a Relevant
Lender
By /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
FIRST AMENDMENT
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Signature Page to that certain First Amendment to Credit Agreement
dated as of May 7, 1999, amending that certain Credit Agreement dated as of
March 9, 1999 (with the Effective Date being March 10, 1999) among Allied
Capital Corporation, as Borrower, NationsBank, N.A., as Administrative Agent,
and certain other Agents and Lenders named therein.
UNITED BANK, as a Relevant Lender
By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
FIRST AMENDMENT
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ANNEX A
REVISED SCHEDULE 2
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REVOLVING
FACILITY
COMMITTED COMMITMENT UPFRONT
NAME AND ADDRESS OF LENDERS SUMS PERCENTAGE FEE
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NationsBank, N.A. $ 52,500,000.00 15.441176% $131,250.00
Financial Services
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx.x.xxxxxx@xxxxxxxxxxx.xxx
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BankBoston, N.A. $ 50,000,000.00 14.705882% $125,000.00
000 Xxxxxxx Xxxxxx
Mail Stop 01-10-08
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxxx@xxx.xxx
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First Union National Bank $ 50,000,000.00 14.705882% $125,000.00
One First Xxxxx Xxxxxx, XX0000
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxx.xxxx@xxxxxxx.xxxx.xxx
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Xxxxx Bank N.A. $ 50,000,000.00 14.705882% $125,000.00
000 00xx Xxxxxx XX
00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxx_xxxxx@xxxxxxxxx.xxx
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Chevy Chase Bank, F.S.B. $ 30,000,000.00 8.823529% $60,000.00
0000 Xxxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxx Xxxxx, XX 00000
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ANNEX A
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REVOLVING
FACILITY
COMMITTED COMMITMENT UPFRONT
NAME AND ADDRESS OF LENDERS SUMS PERCENTAGE FEE
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Attn: Xxxxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx@xxxxxxxxxxxxxx.xxx
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Credit Lyonnais New York Branch $ 30,000,000.00 8.823529% $60,000.00
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: W. Xxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxx@xxxxxxxxxx.xxx
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Branch Banking & Trust Co. $ 30,000,000.00 8.823529% $60,000.00
000 X. Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx-Xxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxx@xxxxxx.xxx
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LaSalle National Bank $ 20,000,000.00 5.882353% $30,000.00
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxx.xxxxxx@xxxxxxx.xxx
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United Bank $ 20,000,000.00 5.882353% $30,000.00
0000 Xxxxx Xxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxxxx-xx.xxx
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Firstrust Bank $ 7,500,000.00 2.205882% $ 9,375.00
00 X. Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Tel: 000-000-0000
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ANNEX A
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REVOLVING
FACILITY
COMMITTED COMMITMENT UPFRONT
NAME AND ADDRESS OF LENDERS SUMS PERCENTAGE FEE
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Fax: 000-000-0000
Email: xxxxxxxx@xxxxxxxxx.xxx
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Totals $ 340,000,000.00 100.00% $755,625.00
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ANNEX A
