Exhibit k.3
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is dated as of October 28, 2004, by
and between MVC Capital, Inc., a Delaware corporation ("Borrower"), and LASALLE
BANK NATIONAL ASSOCIATION, a national banking association ("Lender").
RECITALS:
WHEREAS, Borrower has requested that Lender make loans to Borrower in the
maximum principal amount of $20,000,000.00; and
WHEREAS, pursuant to Borrower's request, Lender has agreed to make said
loans subject to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the premises, and the mutual covenants
and agreements set forth herein, Borrower agrees to borrow from Lender, and
Lender agrees to lend to Borrower, subject to and upon the following terms and
conditions:
AGREEMENTS:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
1.1. "Account Control Agreement" shall mean the Account Control Agreement
of even date herewith, by and among Borrower, Lender and LaSalle Bank National
Association, as custodian.
1.2. "Applicable Laws" shall mean all laws, statutes, ordinances, rules,
regulations, judgments, decrees or orders of any state, federal or local
government or agency which are applicable to Borrower, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange Act
of 1934, as amended, the Investment Company Act of 1940, as amended, the
Investment Advisers Act of 1940, as amended, and the rules and regulations
promulgated under said Acts, and the rules and regulations of the New York Stock
Exchange.
1.3. "Business Day" shall mean each day excluding Saturdays, Sundays and
any other day on which Lender is closed for business to the public.
1.4. "Default Rate" shall mean the Prime Rate (as defined in the Note)
plus 2% per annum.
1.5. "Event of Default" shall have the meaning ascribed to it in Section 8
of this Agreement.
1.6. "GAAP" shall mean generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the
U.S. accounting profession), which are applicable to the circumstances
as of the date of determination, provided, however, that interim financial
statements or reports shall be deemed in compliance with GAAP despite the
absence of footnotes and fiscal year-end adjustments as required by GAAP.
1.7. "Governmental Body" shall mean any foreign, federal, state, municipal
or other government, or any department, commission, board, bureau, agency,
public authority or instrumentality thereof or any court or arbitrator.
1.8. "Initial Advance" shall mean the first disbursement made from the
proceeds of the Loans.
1.9. "Loans" shall mean the revolving loans to be disbursed pursuant to
this Agreement and which shall otherwise be governed by the provisions hereof,
as more particularly described in Section 2.1.
1.10. "Loan Advance" shall mean a disbursement of all or any portion of
the Loans.
1.11. "Loan Documents" shall mean this Agreement, the Note, the Pledge
Agreement, the Account Control Agreement and every other document now or
hereafter evidencing, securing or otherwise executed in conjunction with any or
all of the foregoing, together with all amendments and modifications thereof.
1.12. "Loan Expenses" shall mean the expenses, charges, costs (including
both hard costs and soft costs) and fees relating to the ongoing administration
and servicing of the Loans, including, without limitation, Lender's reasonable
out-of-pocket attorneys' fees and costs in connection with preparation of the
Loan Documents and any future enforcement or collection of the Loans, and any
other similar or related reasonable out-of-pocket costs, expenses, charges and
fees referred to in or necessitated by the terms of this Agreement or any of the
other Loan Documents.
1.13. "Material Adverse Effect" shall mean (a) a material adverse change
in, or a material adverse effect upon, the assets, business, properties,
prospects, condition (financial or otherwise) or results of operations of
Borrower and its Subsidiaries taken as a whole, (b) a material impairment of the
ability of Borrower and its Subsidiaries to perform any of the material
obligations under any of the Loan Documents, or (c) a material adverse effect on
(i) any substantial portion of the Collateral (as defined in the Pledge
Agreement), (ii) the legality, validity, binding effect or enforceability
against Borrower and its Subsidiaries of any material provisions of the Loan
Documents, or (iii) the material rights or remedies of Lender under any Loan
Document.
1.14. "Maturity Date" shall mean October 31, 2005.
1.15. "Note" shall mean that certain Revolving Note of even date herewith,
made by Borrower in favor of Lender in aggregate principal amount not to exceed
$20,000,000.00.
1.16. "Person" shall mean any individual, firm, corporation, business
enterprise, trust, association, joint venture, partnership, governmental body or
other entity, whether acting in an individual, fiduciary or other capacity.
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1.17. "Pledged Account" shall mean that certain account of Borrower with
LaSalle Bank National Association, as custodian, known as Account No. 600510.1.
1.18. "Pledge Agreement" shall mean the Custody Account Pledge Agreement
of even date herewith encumbering the Pledged Account, made by Borrower in favor
of Lender, to secure the obligations to Lender pursuant to the Loan Documents.
1.19. "Subsidiary" and "Subsidiaries" shall mean, respectively, with
respect to any Person, each and all such corporations, partnerships, limited
partnerships, limited liability companies, limited liability partnerships, joint
ventures or other entities of which or in which such Person owns, directly or
indirectly, such number of outstanding capital securities as have more than
fifty percent (50.00%) of the ordinary voting power for the election of
directors or other managers of such corporation, partnership, limited liability
company or other entity. Unless the context otherwise requires, each reference
to Subsidiaries herein shall be a reference to Subsidiaries of Borrower.
2. COMMITMENT TO LEND; FEES.
2.1. Loan Facility. Subject to the provisions of Section 4 below, Lender
shall make advances to Borrower on a revolving credit basis up to a maximum
aggregate amount outstanding at any time not exceeding Twenty Million and No/100
Dollars ($20,000,000.00) (the "Loans"). The Loans shall be evidenced by the Note
in the form attached hereto as Exhibit A. Lender irrevocably agrees that it
shall make each Loan Advance available in accordance with the terms of this
Agreement and the Note.
2.2. Payment of Principal and Interest. The payment of principal and
interest shall be governed by the terms of the Note. All principal and accrued
and unpaid interest on the Loans shall be due and payable on the Maturity Date,
if not sooner due and payable pursuant to the terms of the Note, this Agreement
or any of the other Loan Documents, as applicable.
2.3. Commitment Fee. Borrower shall pay to Lender a commitment fee (the
"Commitment Fee") in the amount of 0.125% of the average unused amount of the
Loans, payable quarterly in arrears.
2.4. Facility Fee. Borrower shall pay to Lender a facility fee (the
"Facility Fee") in the amount of Twenty-Five Thousand and 00/100 Dollars
($25,000.00), payable on or before the execution of this Agreement by Lender.
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3. LOAN DOCUMENTS. Prior to the Initial Advance, Borrower shall execute and/or
deliver to Lender those of the following documents and other items required to
be executed and/or delivered by Borrower, and shall cause to be executed and/or
delivered to Lender those of the following documents and other items required to
be executed and/or delivered by others, all of which documents and other items
shall contain such provisions as shall be required to conform to this Agreement
and otherwise shall be reasonably satisfactory in form and substance to Lender:
3.1. The Loan Documents.
3.2. UCC financing statements perfecting the security interests created by
the Pledge Agreement.
3.3. Current Uniform Commercial Code, federal and state tax lien and
judgment searches, pending suit and litigation searches and bankruptcy court
filings searches covering Borrower and disclosing no matters objectionable to
Lender.
3.4. Opinion letter from legal counsel for Borrower, opining to the
authority of said parties to execute, deliver and perform their respective
obligations under the Loan Documents, to the validity and binding effect of the
Loan Documents and to such other matters as Lender and its counsel shall
require.
3.5. Such other assignments, certificates, opinions and other documents,
instruments and information affecting or relating to Borrower as Lender may
reasonably require.
4. DISBURSEMENT OF THE LOANS.
4.1. Conditions Precedent. In addition to the other conditions set forth
herein, the obligation of Lender to make the initial and each subsequent
disbursement of the Loans under this Agreement shall be conditioned upon arid
subject to the payment to Lender of all loan fees (to the extent then due and
payable), including, without limitation, the Commitment Fee and Facility Fee,
then owing from Borrower to Lender and to satisfaction of all of the following
conditions:
(a) All representations and warranties contained in this Agreement
and in the other Loan Documents shall be true in all material respects on and as
of the date of such disbursement.
(b) Borrower shall have performed in all material respects all of
its obligations under all Loan Documents which are required to be performed on
or prior to the date of such disbursement.
(c) There shall have been no Material Adverse Effect on Borrower.
(d) No Event of Default shall have occurred that has not been waived
in writing by Lender.
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4.2. Certifications, Representations and Warranties. Each request for a
Loan Advance by Borrower shall constitute (a) Borrower's certification that the
representations and warranties contained in Section 5 below are true and correct
in all material respects as of the date of such request, and (b) Borrower's
certification that Borrower is in compliance with the conditions contained in
this Section 4.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to execute this
Agreement and to make the Loans, Borrower represents and warrants to Lender as
follows:
5.1. Borrower. Borrower is a corporation duly formed and validly existing
under the laws of the State of Delaware. Borrower is duly qualified in each
jurisdiction in which the failure to so qualify is reasonably likely to have a
Material Adverse Effect on Borrower. Borrower has full power and authority to
execute and deliver the Loan Documents and to perform its obligations hereunder
and thereunder.
5.2. Authority. No consent or approval of, or other action by, any
Governmental Body or any other Person, which has not already been obtained, is
required to be obtained by Borrower to authorize, or is required to be obtained
by Borrower in connection with the execution, delivery and performance of, the
Loan Documents, or is required as a condition to the validity or enforceability
of any of the Loan Documents.
5.3. Necessary Assets. Borrower owns, leases or licenses all of the assets
necessary to operate and maintain the operations of its business.
5.4. Conflicting Agreements. Borrower is not in default under any
agreement to which it is a party or by which Borrower or any of its property is
bound, the effect of which default has resulted in the termination of such
agreement and such termination will have a Material Adverse Effect on Borrower.
Neither the execution, delivery or carrying out of the terms of the Loan
Documents will constitute a default under, or result in the creation or
imposition of, or obligation to create, any lien upon the property of Borrower
pursuant to the terms of any such mortgage, indenture, contract or agreement
that will have a Material Adverse Effect on Borrower.
5.5. Investment Company Act. Borrower is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
5.6. Compliance with Borrowing Requirements. None of the transactions
contemplated by this Agreement or any of the other Loan Documents, including the
use of proceeds of the Loans, will violate or result in a violation of Section 7
of the Securities Exchange Act of 1934, as amended, Section 18 of the Investment
Company Act of 1940, as amended, or any regulations issued pursuant thereto,
including, without limitation, Regulations T, U and X, or any other statute or
regulation which regulates the incurrence of any indebtedness. Borrower does not
own or intend to carry or purchase any "margin security" within the meaning of
such Regulation U.
5.7. Pledged Account. Borrower is the owner of 100% of the right, title
and interest in and to the Pledged Account. No other Person has, or will have,
any ownership interest in the Pledged Account.
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5.8. Validity and Enforceability of Documents. Upon the execution and
delivery of the Loan Documents, the Loan Documents shall be valid and binding
upon the parties that have executed the same in accordance with the respective
provisions thereof, and enforceable in accordance with the respective provisions
thereof, subject only to applicable bankruptcy, reorganization, insolvency,
moratorium and other similar laws affecting the enforcement of creditor's
rights. Execution, delivery and performance of the Loan Documents do not and
will not contravene, conflict with, violate or constitute a default under any
Applicable Law or any agreement, indenture or instrument to which Borrower is a
party or is bound that will have a Material Adverse Effect on Borrower
5.9. Litigation. There is not any condition, event or circumstance
existing, or any litigation, arbitration, governmental or administrative
proceeding, action, examination, claims or demand pending or, to the best of
Borrower's knowledge after due inquiry, threatened affecting Borrower or
involving the validity or enforceability of the Loan Documents or involving any
risk of a judgment or liability which, if satisfied, is reasonably likely to
have a Material Adverse Effect on the financial condition, business or
properties of Borrower, or which would prevent Borrower from complying with or
performing its obligations under this Agreement, the Note, the Pledge Agreement
or any of the other Loan Documents within the time limits set forth therein for
such compliance or performance and no basis for any such matter exists.
5.10. Solvency. Borrower is solvent and able to pay its debts as such
debts become due. The value of Borrower's property, at a fair valuation, is
greater than the sum of Borrower's debts. Borrower is not bankrupt nor
insolvent, nor has Borrower made an assignment for the benefit of Borrower's
creditors, nor has there been a trustee or receiver appointed for the benefit of
Borrower's creditors, nor has there been any bankruptcy, reorganization or
insolvency proceedings instituted by or against Borrower, nor will Borrower be
rendered insolvent by Borrower's execution, delivery or performance of the Loan
Documents or by the transactions contemplated thereunder.
5.11. Financial Statements. All financial statements and federal and state
tax filings, if any, submitted to Lender relating to Borrower are true, complete
and correct in all material respects, and fairly present the financial condition
of the Person to which they pertain and the other information therein described
and do not contain any untrue statement of a material fact or omit to state a
fact material to the financial statement or tax filing submitted or this
Agreement. No material adverse change has occurred in the financial condition of
Borrower since the dates of each such financial statement or tax filing.
5.12. Compliance with Laws. Borrower is in compliance with all Applicable
Laws in all material respects. Borrower shall use the proceeds of the Loans for
general corporate or business purposes not in contravention of any requirements
of law and not in violation of this Agreement.
5.13. Financing Statements. There are no UCC financing statements in
effect other than those to be filed and/or recorded by Lender which name
Borrower as debtor and pertaining to the Pledged Account.
5.14. Event of Default. No Event of Default has occurred and currently
exists.
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5.15. No Misrepresentation. To Borrower's knowledge, no representation or
warranty contained herein and no certificate, information or report furnished or
to be furnished by Borrower in connection with any of the Loan Documents or any
of the transactions contemplated hereby or thereby contains or will contain a
misstatement of material fact, or omits or will omit to state a material fact
required to be stated in order to make the statements contained herein or
therein not misleading in the light of the circumstances under which such
statements were made. To Borrower's knowledge, there is no fact which has not
expressly been disclosed to Lender in writing, or so far as Borrower reasonably
can foresee, that will have a Material Adverse Effect on Borrower.
All representations and warranties which have been made by Borrower in this
Agreement or the other Loan Documents shall be true in all material respects at
the time of each Loan Advance, and in the event of any material breach,
misrepresentation or omission, Lender shall have the absolute right to terminate
its obligations under this Agreement (without any obligation to refund any loan
or other fees previously paid), and upon demand by Lender, Borrower shall
reimburse Lender for the Loan Expenses, and Lender shall be entitled to recover
from Borrower all reasonable out-of-pocket losses and damages resulting
therefrom.
6. BORROWER'S COVENANTS.
6.1. Legal Existence; Good Standing. Borrower shall maintain its existence
in its jurisdiction of organization and maintain its qualification in any
jurisdiction in which failure to be so qualified is reasonably likely to have a
Material Adverse Effect.
6.2. Compliance with Laws. Borrower shall comply or cause compliance on
its behalf with all Applicable Laws. In addition, Borrower shall (a) ensure, and
cause each Subsidiary to ensure, that no person who owns a controlling interest
in or otherwise controls Borrower or any Subsidiary is or shall be listed on the
Specially Designated Nationals and Blocked Person List or other similar lists
maintained by the Office of Foreign Assets Control ("OFAC"), the Department of
the Treasury or included in any Executive Orders, (b) not use or permit the use
of the proceeds of the Loans to violate any of the foreign asset control
regulations of OFAC or any enabling statute or Executive Order relating thereto,
and (c) comply, and cause each Subsidiary to comply, with all applicable Bank
Secrecy Act laws and regulations, as amended.
6.3. Inspection. Upon reasonable prior written or oral notice, Borrower
shall permit Lender and/or its agents and designees access to and the right to
inspect, audit and copy all books, records, contracts and other documents and
information relating to the financial condition of Borrower or the Pledged
Account. Lender shall use reasonable efforts to keep confidential all
information and documentation obtained by Lender in connection with such audits
and inspections, except to the extent that Lender determines, in its reasonable
discretion, a need to disclose same; provided, however, under no circumstances
shall Lender have any liability to Borrower in the event of an unintentional
disclosure or disclosure deemed necessary by Lender. Borrower shall promptly
respond to any inquiry from Lender for information with respect to the books and
records, or financial condition of, Borrower or the Pledged Account, which
information may be verified by Lender at Borrower's reasonable expense;
provided, however, that Lender shall at all times be entitled to rely upon any
statements or representations made by Borrower or any agent thereof.
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6.4. Financial Statements. Borrower shall at all times maintain a standard
and modern system of accounting, on the accrual basis of accounting and in all
respects in accordance with GAAP, and shall furnish to Lender or its authorized
representatives such information regarding the business affairs, operations and
financial condition of Borrower reasonably requested by Lender, including:
(a) promptly when available, and in any event, within ninety (90)
days after the close of each of its fiscal years, a copy of the annual audited
financial statements of Borrower included or incorporated in Borrower's annual
report on Form 10-K for such year filed with the Securities and Exchange
Commission;
(b) promptly when available, and in any event, within forty five
(45) days following the end of each fiscal quarter, a copy of the financial
statements of Borrower regarding such fiscal quarter included or incorporated in
Borrower's quarterly report on Form 10-Q for such quarter filed with the
Securities and Exchange Commission; and
(c) prompt notice of filing of all periodic and other reports, proxy
statements, registration statements and other materials with the Securities and
Exchange Commission or any other governmental authority succeeding to any and
all functions of said Commission or with any national securities exchange or
distributed by Borrower to its equity holders generally.
No change with respect to such accounting principles shall be made by
Borrower without giving prior notification to Lender. Borrower represents and
warrants to Lender that the financial statements delivered to Lender at or prior
to the execution and delivery of this Agreement and to be delivered at all times
thereafter accurately reflect and will accurately reflect the financial
condition of Borrower in all material respects. Lender shall have the right at
all times during business hours to inspect the books and records of Borrower and
make extracts therefrom.
6.5. Affirmation of Representations and Warranties. Borrower agrees that
all representations and warranties of Borrower contained in Section 5 hereof
shall remain true in all material respects at all times until the Loans are
repaid in full.
6.6. Performance of Obligations; Notice of Default. Borrower shall
promptly and fully perform and comply in all respects with the obligations,
terms, agreements, provisions and requirements of this Agreement and the other
Loan Documents and all other documents and instruments relating thereto and will
not permit to occur any default or breach hereunder or thereunder. Borrower
shall promptly give to Lender notice of the occurrence of any default or of any
event that could have a material adverse effect on any security for the Loans or
on Borrower's ability to perform its obligations under this Agreement or any of
the other Loan Documents.
7. LOAN EXPENSES. Borrower agrees to pay all of the Loan Expenses. Any Loan
Expenses paid by Lender shall bear interest commencing thirty (30) days after
the date demand for repayment thereof is made by Lender until repaid to Lender
at the Default Rate and shall be paid by Borrower upon demand, or may be paid by
Lender at any time by disbursement of
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proceeds of the Loans. Any Loan Expenses paid by Lender shall be reimbursed to
Lender by Borrower regardless of whether there shall be any disbursements of the
Loans.
8. EVENTS OF DEFAULT. The occurrence of any one or more of the following shall
constitute an "Event of Default":
(a) Failure by Borrower or any other obligor to pay when due any
installment of principal or interest, or any other amount payable pursuant to
the Note, this Agreement or any of the other Loan Documents within five (5) days
after notice that it is overdue.
(b) Failure by Borrower to promptly perform or cause to be performed
any non-monetary obligation or observe any non-monetary condition, covenant,
term, agreement or provision required to be performed or observed by Borrower or
any other obligor under this Agreement, the Note, the Pledge Agreement or any of
the other Loan Documents; provided, however, that if such failure by its nature
can be cured, then so long as the priority, validity and enforceability of the
lien created by the Pledge Agreement or any of the other Loan Documents is not
imminently impaired, threatened or jeopardized, then Borrower shall have a
period (the "Cure Period") of thirty (30) days after Borrower obtains actual
knowledge of such failure or receives written notice of such failure to cure the
same and an Event of Default shall not be deemed to exist during the Cure
Period, provided further that if Borrower commences to cure such failure during
the Cure Period and is diligently and in good faith attempting to effect such
cure, the Cure Period shall be extended for thirty (30) additional days, but in
no event shall the Cure Period be longer than sixty (60) days in the aggregate
or extend beyond the Maturity Date.
(c) The occurrence of any development, condition or event which has
a Material Adverse Effect on Borrower.
(d) The existence of any material inaccuracy or untruth in any
material representation or warranty contained in this Agreement or any of the
other Loan Documents, or of any statement or certification as to facts delivered
to Lender by or on behalf of Borrower or any other applicant for the Loans.
(e) At any time Borrower files a voluntary petition in bankruptcy,
or is adjudicated as bankrupt or insolvent, or institutes (by petition,
application, answer, consent or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, composition, readjustment, dissolution, liquidation
or similar proceedings under any present or future federal, state or other
statute or law, or admits in writing its inability to pay its debts as they
mature, or makes an assignment for the benefit of its creditors, or seeks or
consents to the appointment of any receiver, trustee or similar officer for all
or any substantial part of its property.
(f) The commencement of any involuntary petition in bankruptcy
against Borrower or the institution against Borrower of any reorganization,
arrangement, composition, readjustment, dissolution, liquidation or similar
proceedings under any present or future federal, state or other statute or law,
or the appointment of a receiver, trustee or other officer for all or any
substantial part of the property of Borrower which remains undismissed or
undischarged for a period of thirty (30) days.
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(g) The attachment, seizure, levy upon or taking of possession by
any receiver, custodian or assignee for the benefit of creditors of all or a
material part of the property of Borrower which is not stayed or dismissed
within thirty (30) days after the occurrence thereof.
(h) The assignment or attempted assignment of this Agreement by
Borrower without Lender's prior written consent.
(i) Failure by Borrower to do any act requested by Lender under the
Pledge Agreement necessary to preserve and maintain the value and collectibility
of the Collateral within ten (10) days after notice of such request.
(j) This Agreement, the Account Control Agreement, the Note or the
Pledge Agreement shall cease to be in full force and effect, or any person shall
obtain a judgment of a court of competent jurisdiction adversely affecting the
validity, binding nature or enforceability of this Agreement, the Account
Control Agreement, the Note or the Pledge Agreement.
9. REMEDIES. Upon the occurrence and during the continuance of any Event of
Default, Lender, in addition to availing itself of any remedies conferred upon
it at law or in equity, may pursue any of the remedies set forth in the Note,
the Pledge Agreement or the other Loan Documents, concurrently or successively
with each other and with any other available remedies, it being the intent
hereof that none of such remedies shall be to the exclusion of any others.
10. MISCELLANEOUS.
10.1. Additional Indebtedness. If any advances or payments made by Lender
pursuant to this Agreement or any of the other Loan Document, together with
disbursements of the Loans, shall exceed the aggregate face amount of the Note,
all such advances and payments shall constitute additional indebtedness secured
by the Pledge Agreement and all other security for the Loans, and shall bear
interest at the Default Rate from the date advanced until paid.
10.2. Additional Acts. Borrower shall, upon request, execute and deliver
such further instruments and documents and do such further acts and things as
may be reasonably required to provide to Lender the evidence of and security for
the Loans contemplated by this Agreement.
10.3. Loan Agreement Governs. In the event of any inconsistency between
any provision of this Agreement and any provision of any other Loan Document,
the provision of this Agreement shall govern; provided, however, that the
provisions of all of the Loan Documents shall be construed as an integrated set
of provisions governing the Loans and, accordingly, shall be interpreted and
construed liberally to give the maximum validity, enforceability and effect to
all of such provisions.
10.4. Additional Advances. If an Event of Default shall occur and be
continuing, Lender may, but shall not be obligated to, take any and all actions
to cure such default, and all amounts reasonably expended in so doing, all Loan
Expenses, all Commitment Fees and all other reasonable out-of-pocket amounts
paid or advanced by Lender pursuant to the Loan Documents, and all other
reasonable out-of-pocket amounts advanced by Lender in connection with
preserving any security for the Loans, shall constitute additional advances of
the Loans, shall be
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secured by the Pledge Agreement and all other security for the Loans, and shall
bear interest at the Default Rate from the date advanced until paid.
10.5. Amendment; Waiver; Approval. This Agreement shall not be amended,
modified or supplemented without the written agreement of Borrower and Lender at
the time of such amendment, modification or supplement. No waiver of any
provision of this Agreement or any of the other Loan Documents shall be
effective unless set forth in writing signed by the party making such waiver,
and any such waiver shall be effective only to the extent therein set forth.
Failure by Lender to insist upon full and prompt performance of any provisions
of this Agreement or any of the other Loan Documents, or to take action in the
event of any breach of any such provision or upon the occurrence and during the
continuance of any Event of Default, shall not constitute a waiver of any rights
of Lender, and Lender may at any time thereafter exercise all available rights
and remedies with respect to such breach or Event of Default. Receipt by Lender
of any instrument or document shall not constitute or be deemed to be an
approval thereof. Any approvals required under any of the other Loan Documents
must be in writing, signed by Lender and directed to Borrower.
10.6. Notice. All notices, communications and waivers under this Agreement
shall be in writing and shall be (i) delivered in person or (ii) mailed, postage
prepaid, either by registered or certified mail, return receipt requested, or
(iii) sent by overnight express carrier, addressed in each case as follows:
To Lender: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
With copy to: Schwartz, Cooper, Xxxxxxxxxxx & Xxxxxx, Chtd.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
To Borrower: MVC Capital, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Spark, CFO
With copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
or to any other address as to either of the parties hereto, as
such party shall designate in a written notice to the other
party hereto. All notices sent pursuant to the terms of this
Section 10.6 shall be deemed received (i) if personally
delivered, then on the date of delivery, (ii) if sent by
overnight, express carrier, then on the next Business Day
immediately following the day sent, or (iii) if sent by
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registered or certified mail, then on the earlier of the third
Business Day following the day sent or when actually received.
10.7. Benefit; Assignment. The rights, powers and remedies of Lender under
this Agreement shall inure to the benefit of Lender and its successors and
assigns. The rights and obligations of Borrower under this Agreement may not be
assigned and any purported assignment by Borrower shall be null and void.
10.8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
10.9. Indemnity. Borrower agrees to indemnify, defend and hold Lender
harmless from and against any and all liabilities, obligations, losses, damages,
claims, reasonable out-of-pocket costs and expenses (including reasonable
out-of-pocket attorneys' fees and court costs) of whatever kind or nature which
may be imposed on, incurred by or asserted against Lender at any time which
relate to or arise from the Loans; provided, however, that the foregoing
indemnity shall not extend to any liabilities, obligations, claims, losses,
costs, damages or expenses resulting from the gross negligence or willful
misconduct of Lender.
10.10. Headings. The titles and headings of the articles, sections and
paragraphs of this Agreement have been inserted as a matter of convenience of
reference only and shall not control or affect the meaning or construction of
any of the terms or provisions of this Agreement.
10.11. No Partnership or Joint Venture. Lender, by executing and
performing this Agreement shall not become a partner or joint venturer with
Borrower.
10.12. Time is of the Essence. Time is of the essence of the payment of
all amounts due Lender under the Loan Documents and performance and observance
by Borrower of each covenant, agreement, provision and term of this Agreement
and the other Loan Documents.
10.13. Invalid Provisions. In the event that any provision of this
Agreement is deemed to be invalid by reason of the operation of law, or by
reason of the interpretation placed thereon by any administrative agency or any
court, Borrower and Lender shall negotiate an equitable adjustment in the
provisions of the same in order to effect, to the maximum extent permitted by
law, the purpose of this Agreement and the validity and enforceability of the
remaining provisions, or portions or applications thereof, shall not be affected
thereby and shall remain in full force and effect.
10.14. Offset. Without limitation of any other right or remedy of Lender
hereunder or provided by law, any indebtedness now or hereafter payable to
Borrower by Lender (including, without limitation, any amounts on deposit in any
demand, time, savings, passbook or like account maintained by Borrower with
Lender) may be offset and applied by Lender hereunder, or under the Note or any
of the other Loan Documents.
10.15. Acts by Lender. Notwithstanding anything herein contained to the
contrary, Lender will not be required to make any disbursement or perform any
other act under this Agreement if, as a result thereof, Lender will violate any
law, statute, ordinance, rule, regulation or judicial decision applicable
thereto.
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10.16. Binding Provisions. The covenants, warranties, agreements,
obligations, liabilities and responsibilities of Borrower under this Agreement
shall be binding upon and enforceable against Borrower and its legal
representatives, heirs and designees.
10.17. Counterparts. This Agreement may be executed in counterparts, and
all said counterparts when taken together shall constitute one and the same
Agreement.
10.18. No Third Party Beneficiary. This Agreement is only for the benefit
of the parties hereto and their permitted successors and assigns, or legal
representatives, heirs and designees. No other person or entity shall be
entitled to rely on any matter set forth herein without the prior written
consent of such parties.
10.19. JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ANY ACTIONS OR
PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENT SHALL BE LITIGATED IN THE CIRCUIT
COURT OF XXXX COUNTY, ILLINOIS, OR THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS OR, IF LENDER INITIATES SUCH ACTION, ANY COURT IN
WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. BORROWER
HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED BY LENDER IN ANY OF SUCH COURTS, AND HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS
ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER
PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
BORROWER AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO THIS
AGREEMENT. BORROWER WAIVES ANY CLAIM THAT CHICAGO, ILLINOIS OR THE NORTHERN
DISTRICT OF ILLINOIS IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK
OF VENUE. SHOULD BORROWER, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO
ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS
PRESCRIBED BY LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE DEEMED IN DEFAULT
AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER AS
DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS IN
ACCORDANCE WITH APPLICABLE LAW. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER SET
FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY LENDER
OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY LENDER OF ANY
ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER
HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR
ACTION.
10.20. WAIVER OF RIGHT TO JURY TRIAL. LENDER AND BORROWER ACKNOWLEDGE AND
AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENT OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN AND
THEREIN WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE,
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THE PARTIES AGREE THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY
WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A
JURY.
10.21. Customer Identification -- USA Patriot Act Notice. Lender hereby
notifies Borrower that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56, signed into law October 26, 2001) (the "Act"), and
Lender's policies and practices, Lender is required to obtain, verify and record
certain information and documentation that identifies Borrower, which
information includes the name and address of Borrower and such other information
that will allow Lender to identify Borrower in accordance with the Act.
[Balance of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the parties have executed this Loan Agreement as of
the date first above written.
BORROWER: LENDER:
MVC CAPITAL, INC., a Delaware LASALLE BANK NATIONAL ASSOCIATION, a
corporation national banking association
By:_______________________________ By:_______________________________
Name:_____________________________ Name:_____________________________
Title:____________________________ Title:____________________________
