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EXHIBIT 99.2f.6
AMENDMENT AND CONSENT AGREEMENT
THIS AMENDMENT AND CONSENT AGREEMENT (this "AGREEMENT") is entered into
as of December 11, 2000, among ALLIED CAPITAL CORPORATION, a Maryland
corporation ("BORROWER"), the Requisite Lenders under the Credit Agreement
(hereinafter defined), and BANK OF AMERICA, N.A., in its capacity as
Administrative Agent for the Lenders under the Credit Agreement ("ADMINISTRATIVE
AGENT").
Reference is made to the Amended and Restated Credit Agreement dated as
of May 17, 2000 (as amended, modified, supplemented, or restated from time to
time, the "CREDIT AGREEMENT"), among Borrower, Administrative Agent, and certain
Agents and Lenders party thereto.
Unless otherwise defined in this Agreement, capitalized terms used
herein shall have the meaning set forth in the Credit Agreement. Unless
otherwise indicated, all Section references herein are to Sections of the Credit
Agreement and all Paragraph references herein are to Paragraphs in this
Agreement.
R E C I T A L S
A. Borrower proposes to transfer the employees and operations of
Allied Capital Express, a division of Borrower, to SBLC, a Material Subsidiary
of Borrower. In connection with such transfer, Borrower will convert an
approximately $90,000,000 intercompany note from SBLC into a like amount of
senior and subordinated Debt.
B. Borrower proposes to acquire, directly or indirectly, a 94.9%
equity interest in BLC Financial Services, Inc., a Delaware corporation ("BLC").
Such acquisition is referred to herein as the "BLC ACQUISITION."
C. Once the BLC Acquisition has been effected, BLC will change its
name to Business Loan Express, Inc. Borrower proposes to then merge BLC SUB
Corporation, a Delaware corportion and wholly-owned subsidiary of BLC ("BLC
SUB") into SBLC in consideration of the issuance to Borrower of preferred stock
of BLC (the "BLE MERGER"), with SBLC as the surviving corporation. BLC will
receive as merger consideration all of SBLC's outstanding capital stock. Upon
the consummation of such transactions, Borrower will own 100% of the preferred
stock and 94.9% of the common stock of Business Loan Express, Inc.
D. In connection with the consummation of the transactions set
forth in these Recitals (the "SUBJECT TRANSACTIONS"), Borrower is requesting
certain amendments and consents under the Credit Agreement; and Requisite
Lenders are willing to grant such amendments and consents subject to the terms,
conditions, and representations set forth herein:
NOW, THEREFORE, in consideration of these premises and other valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree, as follows:
PARAGRAPH 1. AMENDMENTS
1.1 DEFINITIONS. SECTION 1.1 is hereby amended to add the following
sentence at the end of the definition of "Subsidiary:"
"In addition, notwithstanding anything in the Loan Documents to
the contrary, neither Business Loan Express, Inc. (formerly
known as BLC Financial Services, Inc.) nor any Subsidiary of
AMENDMENT AND CONSENT AGREEMENT
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Business Loan Express, Inc. shall be deemed a "Subsidiary" of
Borrower for any purpose under the Loan Documents."
1.2 REPRESENTATIONS AND WARRANTIES. SECTION 6.1(t) is deleted in its
entirety and the following is substituted therefor:
"(t) RIC Status. Each of Borrower and SBIC qualifies as a
RIC."
1.3 STATUS OF RIC AND BDC. SECTION 7.11 is deleted in its entirety
and the following is substituted therefor:
"7.11 STATUS OF RIC AND BDC. At all times maintain, and cause
SBIC to maintain, its status as a RIC under the Internal Revenue
Code, and as a "business development company" under the
Investment Company Act."
PARAGRAPH 2. CONSENTS. Subject to and upon the conditions of this Agreement, on
the Effective Date (hereinafter defined), Requisite Lenders and Administrative
Agent hereby consent to the BLE Merger notwithstanding any noncompliance with
SECTION 9.5(a).
PARAGRAPH 3. CONDITIONS. Notwithstanding any contrary provision, this Agreement
is not effective until the date upon which (a) the representations and
warranties in this Agreement are true and correct; (b) Administrative Agent
receives counterparts of this Agreement executed by Borrower and Requisite
Lenders; and (c) Administrative Agent receives evidence reasonably satisfactory
to Administrative Agent that the BLE Merger has been consummated. On the
Business Day upon which all of the preceding conditions precedent are satisfied,
this Agreement shall be effective (the "EFFECTIVE DATE").
PARAGRAPH 4. ACKNOWLEDGMENT AND RATIFICATION. As a material inducement to
Administrative Agent and the Requisite Lenders to execute and deliver this
Agreement, Borrower (i) consents to the agreements in this Agreement and (ii)
agrees and acknowledges that the execution, delivery, and performance of this
Agreement shall in no way release, diminish, impair, reduce, or otherwise affect
the respective obligations of Borrower under the Loan Documents, as amended
hereby.
PARAGRAPH 5. REPRESENTATIONS. As a material inducement to Administrative Agent
and Requisite Lenders to execute and deliver this Agreement, Borrower represents
and warrants to such parties (with the knowledge and intent that Requisite
Lenders and Administrative Agent are relying upon the same in entering into this
Agreement) that as of the Effective Date of this Agreement and as of the date of
execution of this Agreement: (a) all representations and warranties in the Loan
Documents are true and correct in all material respects as though made on the
date hereof, except to the extent that (i) any of them speak to a different
specific date or (ii) the facts on which any of them were based have been
changed by transactions permitted by the Loan Documents; (b) no Default or Event
of Default exists; (c) this Agreement has been duly authorized and approved by
all necessary organizational action and requires the consent of no other Person,
and upon execution and delivery, this Agreement shall be binding and enforceable
against Borrower in accordance with its terms; and (d) the Subject Transactions
will be in the ordinary course of business of, and pursuant to the reasonable
requirements of, the business of Borrower and any of its Subsidiaries party
thereto and upon fair and reasonable terms which are no less favorable to
Borrower or such Subsidiary that would be obtained in a comparable arm's length
transaction with a Person that is not an Affiliate.
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PARAGRAPH 6. EXPENSES. Borrower shall pay all costs, fees, and expenses paid
or incurred by Administrative Agent incident to this Agreement, including,
without limitation, the reasonable fees and expenses of Administrative Agent's
counsel in connection with the negotiation, preparation, delivery, and
execution of this Agreement and any related documents.
PARAGRAPH 7. MISCELLANEOUS.
7.1 This Agreement is a "Loan Document" referred to in the Credit
Agreement, and the provisions of SECTION 12 of the Credit Agreement are
incorporated herein by reference. Unless stated otherwise (a) the singular
number includes the plural and vice versa and words of any gender include each
other gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Agreement must be construed, and
its performance enforced, under New York law, and (d) this Agreement may be
executed in any number of counterparts with the same effect as if all
signatories had signed the same document, and all of those counterparts must be
construed together to constitute the same document.
7.2 The Loan Documents shall remain unchanged and in full force and
effect, except as provided in this Agreement, and are hereby ratified and
confirmed. The execution, delivery, and effectiveness of this Agreement shall
not, except as expressly provided herein, operate as a waiver of any rights of
Lenders under any Loan Document, nor constitute a waiver under any of the Loan
Documents.
PARAGRAPH 8. ENTIRETIES. THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THIS AGREEMENT AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
PARAGRAPH 9. PARTIES. This Agreement binds and inures to Borrower,
Administrative Agent, Lenders, and their respective successors and assigns.
The parties hereto have executed this Agreement in multiple counterparts
on the date stated on the signature pages hereto, but effective as of Effective
Date.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
ALLIED CAPITAL CORPORATION, as Borrower
By /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Executive Vice President & Treasurer
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
BANK OF AMERICA, N.A., as Administrative Agent and a
Lender
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Principal
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
FLEET NATIONAL BANK., as a Lender
By: /s/ Xxxxxx X.X. Xxxxxx
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Name: Xxxxxx X.X. Xxxxxx
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Title: Managing Director
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
XXXXX BANK N.A., as a Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Group Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/ W. Xxx Xxxxxxx
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Name: W. Xxx Xxxxxxx
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Title: First Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
BRANCH BANKING & TRUST CO., as a Lender
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
LASALLE BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Assistant Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ R. Xxxxxxx Xxxxxx
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Name: R. Xxxxxxx Xxxxxx
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Title: Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
MERCANTILE-SAFE DEPOSIT & TRUST COMPANY, as a Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Senior Vice President
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SIGNATURE PAGE TO AGREEMENT
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Signature Page to that certain Amendment and Consent Agreement dated as of the
date first stated above, among Allied Capital Corporation, as Borrower, Bank of
America, N.A., as Administrative Agent, and Requisite Lenders.
DEUTSCHE BANK AG, NEW YORK BRANCH, as a Lender
By: /s/ Xxxxxxxxx Xxxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxxx
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Title: Managing Director
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By: /s/Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Vice President
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SIGNATURE PAGE TO AGREEMENT
