Exhibit 10.1
Execution Version
AMENDMENT NO. 4
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this Amendment) dated as of September 28, 2004, is entered into among GLADSTONE BUSINESS LOAN, LLC, as the Borrower, TAHOE FUNDING CORP., LLC and PUBLIC SQUARE FUNDING LLC, as CP Lenders (collectively, the CP Lenders), DEUTSCHE BANK AG, NEW YORK BRANCH (Deutsche Bank) and KEYBANK, NATIONAL ASSOCIATION (KeyBank), as Committed Lenders (collectively, the Committed Lenders), Deutsche Bank and KeyBank as Managing Agents (in such capacity, collectively the Managing Agents) and Deutsche Bank as Administrative Agent (in such capacity, the Administrative Agent). Capitalized terms used herein without definition shall have the meanings ascribed thereto in the Credit Agreement referred to below.
PRELIMINARY STATEMENTS
A. Reference is made to that certain Credit Agreement dated as of May 19, 2003 among the Borrower, Gladstone Advisers, Inc., as Servicer, the CP Lenders, the Committed Lenders, the Managing Agents and the Administrative Agent (as amended, modified or supplemented from time to time, including, without limitation, by that certain Resignation, Appointment and Consent dated as of even date herewith, and as further amended, restated, supplemented or modified from time to time, the Credit Agreement).
B. The parties hereto have agreed to amend certain provisions of the Credit Agreement upon the terms and conditions set forth herein.
Moodys Industry Classifications: means the classifications as set forth in Exhibit N.
Non-Syndicated Loan: Each Loan which is not a Qualifying Syndicated Loan.
Performance Guarantor: has the meaning set forth in the Performance Guaranty.
Qualifying Syndicated Loan: Any Loan designated by the Borrower as such in the Loan List.
Swap Breakage and Indemnity Amounts: means any early termination payments, taxes, indemnification payments and any other amounts owed to a Hedge Counterparty under a Hedging Agreement that do not constitute monthly payments.
(xiii) the Loan has an original term to maturity of no more than 120 months;
(xx) from and after September 28, 2004, the Loan has not been amended to (A) reduce the amount (other than by reason of the repayment thereof) or extend the time for payment of principal or (B) reduce the rate or extend the time of payment of interest (or any component thereof), in each case without the consent of the Required Committed Lenders; and
(xxi) if such Loan is a Qualifying Syndicated Loan, (a) the Borrower has purchased an interest in such Loan from a financial institution which (A) has a short-term debt rating equal to at least A-1 from S&P and P-1 from Moodys or (B) has been approved in writing by the Required Committed Lenders prior to the related Funding Date and (b) such Loan closed not more than thirty (30) days previously.
Excess Concentration Amount: On any date of determination, the sum of, without duplication, (a) the aggregate amount by which the Outstanding Loan Balances of Eligible Loans included as part of the Collateral, the Obligors of which are residents of any one state, exceeds 40% of the Aggregate Outstanding Loan Balance, (b) the aggregate amount by which the Outstanding Loan Balances of Eligible Loans included as part of the Collateral, the Obligors of which are in the same Industry, exceeds 25% of the Aggregate Outstanding Loan Balance, (c) the aggregate amount by which the Outstanding Loan Balance of each Eligible Loan included as part of the Collateral exceeds the
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Large Loan Limit applicable to such Eligible Loan, (d) the aggregate amount by which the Outstanding Loan Balances of all Eligible Loans included as part of the Collateral whose interest payments are due and payable less frequently than monthly exceeds 33 1/3% of the Aggregate Outstanding Loan Balance, (e) the aggregate amount by which the Outstanding Loan Balances of all Eligible Loans included as part of the Collateral which are PIK Loans exceeds 40% of the Aggregate Outstanding Loan Balance, (f) the aggregate amount by which the Outstanding Loan Balances of all Eligible Loans included as part of the Collateral which are PIK Loans having a PIK accrual component greater than 3.0% exceeds 25% of the Aggregate Outstanding Loan Balance, (g) the aggregate amount by which the Outstanding Loan Balances of all Eligible Loans that have original terms to maturity greater than 84 months exceeds 10% of the Aggregate Outstanding Loan Balance, (h) the aggregate amount by which the Outstanding Loan Balances of Qualifying Syndicated Loans included as part of the Collateral, for which no Subsequent Delivery Trust Receipt (as defined in the Custody Agreement) has been received exceeds $30,000,000 and (i) the aggregate Outstanding Loan Balances of all Loans which (A) do not have a long-term credit rating from either S&P or Moodys and (B) are not priced by Standard & Poors Securities Evaluations, Inc. on a quarterly basis and have not been so priced by Standard & Poors Securities Evaluations, Inc. for a period in excess of (x) with respect to the Loans described in Annex III hereof, 45 days from September 28, 2004 or (y) otherwise, 135 days from the date such Loan becomes a Transferred Loan, provided, however, that the requirements of this clause (i) shall not apply to the Marcal RE Loan.
Large Loan Limit: For the Eligible Loans of the six Obligors with the largest Outstanding Loan Balances, $15,000,000, and for the Eligible Loans of each other Obligor, $10,000,000.
Fair Market Value: With respect to each Eligible Loan, (1) to the extent that such Eligible Loan does not have a long term credit rating from S&P or Moodys, the least of (a) to
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the extent priced by Standard & Poors Securities Evaluations, Inc., the product of (x) the remaining principal amount of the Eligible Loan and (y) the pricing as determined by Standard & Poors Securities Evaluations, Inc. in its most recent quarterly pricing, (b) the remaining principal amount of such Eligible Loan and (c) if such Eligible Loan has been reduced in value below the remaining principal amount thereof (other than as a result of the allocation of a portion of the remaining principal amount to warrants), the value of such Eligible Loan as required by, and in accordance with, the 1940 Act, as amended, and any orders of the SEC issued to the Originator, to be determined by the Board of Directors of the Originator and reviewed by its auditors and (2) otherwise, the least of (a) (x) the remaining principal amount of such Eligible Loan times (y) the price quoted to the Borrower on such Eligible Loan from a financial institution rated at least A-1/P-1 that makes a market in such Eligible Loan or from a pricing service otherwise acceptable to the Managing Agents, (b) the remaining principal amount of such Eligible Loan and (c) if such Eligible Loan has been reduced in value below the remaining principal amount thereof (other than as a result of the allocation of a portion of the remaining principal amount to warrants), the value of such Eligible Loan as required by, and in accordance with, the 1940 Act, as amended, and any orders of the SEC issued to the Originator, to be determined by the Board of Directors of the Originator and reviewed by its auditors.
Industry: The industry of an Obligor as determined by reference to the Moodys Industry Classifications;
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers as of the date first above written.
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GLADSTONE BUSINESS LOAN, LLC |
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By: |
/s/ George Stelljes III |
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Name: George Stelljes III |
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Title: President |
Signature Page to Amendment No. 4
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TAHOE FUNDING CORP., LLC |
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By: |
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/s/ Andrew L. Stidd |
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Name: Andrew L. Stidd |
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Title: President |
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DEUTSCHE BANK AG, NEW
YORK BRANCH, as a |
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By: |
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/s/ Mark OKeefe |
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Name: Mark OKeefe |
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Title: Director |
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By: |
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/s/ Tina Gu |
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Name: Tina Gu |
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Title: Vice President |
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PUBLIC SQUARE FUNDING LLC |
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By: |
/s/ Evelyn Echevarria |
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Name: Evelyn Echevarria |
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Title: Vice President |
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KEYBANK, NATIONAL
ASSOCIATION, as a |
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By: |
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/s/ Paul E. Henson |
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Name: Paul E. Henson |
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Title: Executive Vice President |
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Annex I
Section 2.8 Settlement Procedures.
On each Payment Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) the Collection Account, to the extent of available funds, (ii) Servicer Advances, and (iii) amounts received in respect of any Hedge Agreement during such Settlement Period (the sum of such amounts described in clauses (i), (ii) and (iii) being the Available Collections) the following amounts in the following order of priority
Annex II
Moodys Industry Classifications
Annex III
Loans For Which Pricing is to be Determined Within 45 Days
Obligors |
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Remaining Balance |
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Origination Date |
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(as of most recent Settlement Date) |
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Burts Bees |
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$ |
983,333 |
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11/7/2003 |
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Medassets |
Term Loan A |
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$ |
6,500,000 |
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3/19/2004 |
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Term Loan B |
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$ |
1,878,315 |
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5/14/2004 |
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