Exhibit
10.1
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS
AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”) dated as of March
29, 2007, is entered into among GLADSTONE BUSINESS INVESTMENT, LLC, as the
Borrower, DEUTSCHE BANK AG, CAYMAN ISLAND BRANCH, as a Committed Lender (the “Committed
Lender”), DEUTSCHE BANK AG, NEW YORK BRANCH (“Deutsche Bank”) as
Managing Agent (in such capacity, collectively the “Managing Agent”) 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 October 19, 2006 among the Borrower, Gladstone
Management Corporation, as Servicer, the CP Lenders, the Committed Lenders, the
Managing Agents and the Administrative Agent (as amended, modified or
supplemented 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.
SECTION
1. Amendment. Subject to the satisfaction of the conditions
set forth in Section 4 hereof, the parties hereto hereby agree:
(a) to delete clause (a) in the
definition of “Commitment” in Section 1.1 of the Credit Agreement and
substitute the following therefor:
(a)
for Deutsche Bank AG, Cayman Island Branch, the commitment of such Committed
Lender to fund any Advance to the Borrower in an amount not to exceed
$200,000,000, as such amount may be modified in accordance with the terms
hereof; and
(b) to delete the definition of “Facility
Amount” in Section 1.1 of the Credit Agreement and substitute the following
therefor:
“Facility Amount” means, at any time, $200,000,000; provided, however,
that on or after the Termination Date, the Facility Amount shall be equal to
the amount of Advances Outstanding.
(c) to delete the definition of “Required
Equity Investment” in Section 1.1 of the Credit Agreement and substitute
the following therefor:
“Required Equity
Investment” means the minimum amount of equity
investment in the Borrower which shall be
maintained by the
Originator, in the form of Eligible Loans and/or cash having an outstanding
principal balance at all times prior to the Termination Date of an amount equal
to the greater of (i) $75,000,000 or (ii) the sum of the Outstanding Loan
Balances of the five largest Eligible Loans included as part of the Collateral.
SECTION 2. Ramp-up
Period. Notwithstanding the
provisions of Section 1, for all purposes hereunder and under the Credit
Agreement, including for the purpose of calculating the Commitment Fee and the
Program Fee Rate, during the period from the Effective Date to the earlier of
(a) the date that is 90 days after the Effective Date, or (b) a Business Day
chosen by the Borrower upon 3 Business Days written notice to the
Administrative Agent, the amounts set forth in Section 1(a) and (b)
above (i.e. the Commitment and the Facility Amount) shall both be deemed to be
$150,000,000, and thereafter shall be $200,000,000 as stated above.
SECTION 3. Representations
and Warranties. The Borrower hereby
represents and warrants to each of the other parties hereto, that:
(a) this Amendment constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms; and
(b) on the date hereof, before and after giving effect
to this Amendment, other than as amended or waived pursuant to this Amendment,
no Early Termination Event or Unmatured Termination Event has occurred and is
continuing.
SECTION
4. Conditions. This Amendment shall become effective
on the first Business Day (the “Effective Date”) on which the
Administrative Agent or its counsel has received counterpart signature pages of
this Amendment, executed by each of the parties hereto.
SECTION 5. Reference
to and Effect on the Transaction Documents.
(a) Upon the effectiveness of this Amendment, (i) each
reference in the Credit Agreement to “this Credit Agreement”, “this Agreement”,
“hereunder”, “hereof”, “herein” or words of like import shall mean and be a
reference to the Credit Agreement as amended or otherwise modified hereby, and
(ii) each reference to the Credit Agreement in any other Transaction Document
or any other document, instrument or agreement executed and/or delivered in
connection therewith, shall mean and be a reference to the Credit Agreement as
amended or otherwise modified hereby.
(b) Except as specifically amended, terminated or otherwise
modified above, the terms and conditions of the Credit Agreement, of all other
Transaction Documents and any other documents, instruments and agreements
executed and/or delivered in connection therewith, shall remain in full force
and effect and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent, any Managing Agent or any Lender under the Credit
Agreement or any other Transaction
Document or any other
document, instrument or agreement executed in connection therewith, nor
constitute a waiver of any provision contained therein, in each case except as
specifically set forth herein.
SECTION
6. Execution in Counterparts. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same instrument. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be effective as delivery
of a manually executed counterpart of this Amendment.
SECTION
7. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION
8. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
SECTION
9. Fees and Expenses.
(a) The Borrower hereby confirms its
agreement to pay to the Administrative Agent, for the benefit of the Committed
Lender, a “Upfront Fee” in the amount of $300,000, such Upfront Fee to
be due and payable on the date hereof.
In the event the Borrower requests, pursuant to Section 2.1(b) of the
Credit Agreement, to extend the Commitment Termination Date past October 18,
2007, but the Committed Lender declines to grant such extension, the Committed
Lender will return $150,000 of the Upfront Fee to the Borrower on or before
October 18, 2007 (the “Rebate”). However, in the event the Committed Lender
agrees to extend the Commitment Termination Date past October 18, 2007, the
Committed Lender shall be entitled to a renewal fee of $150,000, which renewal
fee is included in the Upfront Fee payable hereunder and the Lender shall have
no further recourse against the Borrower for such fees. For avoidance of doubt, in the event the
Borrower does not request an extension of the Commitment Termination Date past
October 18, 2007, the Borrower shall not be entitled to the Rebate.
(b) The Borrower hereby confirms its
agreement to pay on demand all reasonable costs and expenses of the
Administrative Agent, Managing Agents or Lenders in connection with the
preparation, execution and delivery of this Amendment and any of the other
instruments, documents and agreements to be executed and/or delivered in
connection herewith, including, without limitation, rating agency expenses and
the reasonable fees and out-of-pocket expenses of counsel to the Administrative
Agent, Managing Agents or Lenders with respect thereto.
[Remainder
of Page Deliberately Left Blank]
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 INVESTMENT, LLC
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By:
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Name: George
Stelljes III
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Title:
President
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Signature Page to
Amendment No. 1 to Credit Agreement—Gladstone Business Investment, LLC
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DEUTSCHE BANK AG, CAYMAN
ISLAND BRANCH, as sole Committed
Lender
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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DEUTSCHE BANK AG, NEW YORK
BRANCH, as a Managing Agent and as
Administrative Agent
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Signature Page to
Amendment No. 1 to Credit Agreement—Gladstone Business Investment, LLC