Contract
EXHIBIT
99.1
EXECUTION
VERSION
AMENDMENT
NO. 3 AND AGREEMENT dated as of October 15, 2007 (this
“Amendment”), to the Senior Secured Revolving Credit Agreement dated as
of December 6, 2006 (as amended by Amendment No. 1 dated as of
February 8, 2007, and Amendment No. 2 (“Amendment No. 2”)
dated as of April 16, 2007, the “Credit Agreement”), among BLACKROCK
XXXXX CAPITAL CORPORATION (the “Borrower”), CITIBANK, N.A., as
Administrative Agent, JPMORGAN CHASE BANK, N.A., as Syndication Agent, WACHOVIA
BANK, NATIONAL ASSOCIATION, as Documentation Agent, and the other Lenders party
thereto.
WHEREAS,
pursuant to the Credit Agreement, the Lenders have agreed to extend credit
to
the Borrower on the terms and subject to the conditions set forth
therein;
WHEREAS,
pursuant to Amendment No. 2, the Temporary Increase Lenders have severally
agreed to increase their respective Commitments on a temporary basis;
and
WHEREAS,
the Borrower has requested that the Temporary Increase Expiry Date be extended
by an additional 180 days.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained and other
good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Capitalized terms used but not
defined herein have the meanings assigned to them in the Credit Agreement (as
amended by this Amendment).
SECTION
2. Amendment to Section 1.01. The definition of
“Amendment Effective Date” in Section 1.01 of the Credit Agreement is hereby
amended by deleting the date “April 16, 2007” and substituting the date
“October 15, 2007”
therefor.
SECTION
3. Agreement of the Lenders. On the Amendment
Effective Date, each Temporary Increase Lender, by its signature below, agrees
to extend its Commitments in respect of the Temporary Increase until the
Temporary Increase Expiry Date (as defined after giving effect to this
Amendment) and each Lender, by its signature below, agrees to the terms of
this
Amendment and the Credit Agreement as amended hereby.
SECTION
4. Representations and Warranties of the
Borrower. The Borrower represents and warrants to the
Administrative Agent and to each of the Lenders that:
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(a)
This Amendment is within the Borrower’s corporate powers and has been duly
authorized by all necessary corporate action and, if required, by all necessary
shareholder action. This Amendment has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower, enforceable in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws of general applicability affecting
the enforcement of creditors’ rights and (ii) the application of general
principles of equity (regardless of whether such enforceability is considered
in
a proceeding in equity or at law);
(b)
the representations and warranties of the Borrower set forth in the Credit
Agreement and in the other Loan Documents are true and correct in all material
respects (except to the extent any such representation or warranty is itself
qualified by materiality or reference to a Material Adverse Effect, in which
case it shall be true and correct in all respects) on and as of the date of
this
Amendment or, as to any such representation or warranty that refers to a
specific date, as of such specific date;
(c)
immediately
before and after giving effect to this Amendment, the aggregate Covered Debt
Amount does not exceed the Borrowing Base reflected on the Borrowing Base
Certificate most recently delivered to the Administrative Agent;
and
(d)
immediately before and after giving effect to this Amendment, no Default has
occurred and is continuing.
SECTION
5. Conditions to Effectiveness. This Amendment
shall become effective on the date on which:
(a)
The Administrative Agent shall have received from each of the Borrower and
the
Required Lenders (as well as from each Temporary Increase Lender) either
(i) a counterpart of this Amendment signed on behalf of such party or
(ii) written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page to this Amendment)
that
such party has signed a counterpart of this Amendment.
(b)
The Administrative Agent shall have received payment of all reasonable fees
and
out-of-pocket expenses, to the extent invoiced, required to be paid or
reimbursed to it, including those referred to in Section 7 below.
SECTION
6. Credit Agreement. Except as expressly set
forth herein, this Amendment (a) shall not by implication or otherwise
limit, impair, constitute a waiver of or otherwise affect the rights and
remedies of the Lenders, the Administrative Agent or the Borrower under the
Credit Agreement or any other Loan Document and (b) shall not alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or any other Loan
Document, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. Nothing herein shall be deemed to
entitle the Borrower to a consent to, or a waiver, amendment, modification
or
other change of, any of the terms, conditions, obligations, covenants or
3
agreements
contained in the Credit Agreement or any other Loan Document in similar or
different circumstances. This Amendment shall constitute a Loan
Document. From and after the Amendment Effective Date, any reference
to the Credit Agreement contained in any Loan Document shall mean the Credit
Agreement as modified hereby.
SECTION
7. Expenses. The Borrower agrees to reimburse any Lender and
the Administrative Agent for its out-of-pocket expenses in connection with
this
Amendment, including the reasonable fees and expenses of Cravath,
Swaine & Xxxxx LLP, counsel to Citibank, in connection with the
negotiation, preparation, execution and delivery of this Amendment (to the
extent that statements for such fees and expenses have been delivered to the
Borrower).
SECTION
8. Applicable Law; Amendment of Jury
Trial. (A) THIS AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
(B)
EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE CREDIT
AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL
HEREIN.
SECTION
9. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one agreement. Delivery of an
executed signature page to this Amendment by facsimile transmission shall be
effective as delivery of a manually signed counterpart of this
Amendment.
SECTION
10. Headings. The Section headings used herein are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
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BLACKROCK
XXXXX CAPITAL CORPORATION,
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx X. Xxxxx | |||
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Title:
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Chief Operating Officer |
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Temporary
Increase Lenders:
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CITIBANK,
N.A., individually and as Administrative Agent,
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By:
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/s/
Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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Authorized
Signatory
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JPMORGAN
CHASE BANK, N.A., individually and as Syndication Agent,
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By:
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/s/
Xxxxxxx X. Xxxxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxxxx
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Title:
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Executive
Director
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WACHOVIA
BANK, NATIONAL ASSOCIATION, individually and as Documentation
Agent,
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By:
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/s/
Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx
X. Xxxxx
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Title:
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Director
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XXXXXXX
XXXXX CAPITAL CORPORATION,
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By:
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/s/
Xxxx X. Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Vice
President
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SIGNATURE
PAGE TO AMENDMENT NO. 3 DATED AS OF OCTOBER 15, 2007, TO THE SENIOR
SECURED REVOLVING CREDIT AGREEMENT DATED AS OF DECEMBER 6, 2006 (AS AMENDED
BY AMENDMENT NO. 1 DATED AS OF FEBRUARY 8, 2007, AND AMENDMENT
NO. 2 DATED AS OF APRIL 16, 2007) AMONG BLACKROCK XXXXX CAPITAL CORPORATION
AS BORROWER, CITIBANK, N.A., AS ADMINISTRATIVE AGENT, JPMORGAN CHASE BANK,
N.A.,
AS SYNDICATION AGENT, WACHOVIA BANK, NATIONAL ASSOCIATION, AS DOCUMENTATION
AGENT AND THE OTHER LENDERS PARTY THERETO.
To
Approve Amendment No. 3:
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BEAR
XXXXXXX CORPORATE LENDING INC.,
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Authorized
Signatory
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SCHEDULE
I
SIGNATURE
PAGE TO AMENDMENT NO. 3 DATED AS OF OCTOBER 15, 2007, TO THE SENIOR
SECURED REVOLVING CREDIT AGREEMENT DATED AS OF DECEMBER 6, 2006 (AS AMENDED
BY AMENDMENT NO. 1 DATED AS OF FEBRUARY 8, 2007, AND AMENDMENT
NO. 2 DATED AS OF APRIL 16, 2007) AMONG BLACKROCK XXXXX CAPITAL CORPORATION
AS BORROWER, CITIBANK, N.A., AS ADMINISTRATIVE AGENT, JPMORGAN CHASE BANK,
N.A.,
AS SYNDICATION AGENT, WACHOVIA BANK, NATIONAL ASSOCIATION, AS DOCUMENTATION
AGENT AND THE OTHER LENDERS PARTY THERETO.
To
Approve Amendment No. 3:
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UBS
LOAN FINANCE LLC,
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Director
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By:
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/s/
Xxxx X. Xxxx
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Name:
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Xxxx
X. Xxxx
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Title:
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Associate
Director
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