Exhibit 10.35
ALLIED CAPITAL CORPORATION
0000 XXXXXXXXXXXX XXXXXX, X.X.
XXXXXXXXXX, X.X. 00000-0000
AMENDMENT
Dated as of April 30, 2003
Re: $115,000,000 8.54% Senior Notes, Series A, due October 15, 2005
and
$10,000,000 Floating Rate Senior Notes, Series B, due October 15, 2005
To the holders of the Notes named in
Schedule I attached hereto
Ladies and Gentlemen:
Reference is hereby made to that certain Note Agreement dated as of October
15, 2000 (the "Note Agreement") between Allied Capital Corporation (the
"Company"), and the Purchasers named in Schedule I thereto (the "Purchasers"),
under and pursuant to which the Company issued and sold to the Purchasers 8.54%
Senior Notes, Series A, due October 15, 2005 of the Company in the aggregate
principal amount of $115,000,000 (the "Series A Notes") and Floating Rate Senior
Notes, Series B, due October 15, 2005 of the Company in the aggregate principal
amount of $10,000,000 (the "Series B Notes" and together with the Series A
Notes, the "Notes"). Capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to such terms in the Note Agreement.
The Company hereby agrees with you as follows:
1. Amendment of Section 5.8 (Limitation on Debt; Interest Rate Swaps) of
the Note Agreement.
(a) Section 5.8(e) of the Note Agreement is hereby amended in its
entirety to read as follows:
"(e) The Company will not and will not permit any
Consolidated Subsidiary to enter into any Interest Rate Swap
except in the ordinary course of business pursuant to
transactions that are entered into for bona fide purposes of
managing the Company's interest rate and currency risk and not
for speculation."
2. Amendment of Section 5.9 (Limitation on Liens) of the Note Agreement.
Section 5.9(i) of the Note Agreement is hereby amended by deleting clause (iii)
set forth therein in its entirety and by changing the reference to clause "(iv)"
set forth therein to clause "(iii)."
3. Amendment of Section 8 (Interpretation of Agreement; Definitions) of
the Note Agreement. Section 8 of the Note Agreement is hereby amended as
follows:
(a) The definition of "Adequate Rating" is hereby added to the Note
Agreement as follows:
"`Adequate Rating' means senior unsecured debt rating of A- or
higher by Standard & Poors Rating Services or FitchRatings, or a
rating of A3 or higher by Xxxxx'x Investors Service."
(b) The definition of "Debt" in Section 8.1 of the Note Agreement is
hereby amended by (i) adding a new clause "(e)" to read as hereinafter set
forth, (ii) redesignating existing clause "(e)" as clause "(f)" and
amending it in its entirety to read as hereinafter set forth, and (iii)
amending the last paragraph thereof to read as follows:
"(e) all liabilities under Interest Rate Swaps entered into for
the purpose of hedging currency risk with respect to Debt; and
(f) any Guaranty of such Person with respect to liabilities of a
type described in any of clauses (a) through (e) hereof.
Debt of any Person shall include all obligations of such Person
of the character described in clauses (a) through (f) to the extent
such Person remains legally liable in respect thereof notwithstanding
that any such obligation is deemed to be extinguished under GAAP. Any
amount receivable by the Company or any of its Consolidated
Subsidiaries under an Interest Rate Swap referred to in clause (e)
above, as determined in accordance with the definition of Interest
Rate Swap, shall apply as an offset in the calculation of the total
amount of Debt only if (i) the counterparty in such Interest Rate Swap
has an Adequate Rating or (ii) if such counterparty ceases to maintain
an Adequate Rating, such counterparty has posted collateral for the
benefit of the Company or the relevant Consolidated Subsidiary to
secure such receivable, in which case, the amount of such receivable
that shall apply as an offset in the calculation of the total amount
of Debt shall be limited to the fair market value of such collateral."
(c) The definition of "Interest Rate Swap" in Section 8.1 of the Note
Agreement is hereby amended by deleting the second sentence of the
definition in its entirety and replacing it in its entirety by the
following:
"For the purposes of this Agreement, the amount of the obligation
(whether positive or negative) under any Interest Rate Swap shall be
the amount payable or receivable by the Company or any of its
Consolidated Subsidiaries determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person based on
the assumption that
such Interest Rate Swap had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating
to such Interest Rate Swap provides for the netting of amounts payable
by and to such Person thereunder or if any such agreement provides for
the simultaneous payment of amounts by and to such Person, then in
each such case, the amount of such obligation shall be the net amount
so determined."
(d) The definition of "Priority Debt" in Section 8.1 of the Note
Agreement is hereby amended by deleting the definition in its entirety and
replacing it with the following:
"`Priority Debt' means (without duplication) the sum of (i) all
Debt of the Company and its Consolidated Subsidiaries secured by a
Lien, (ii) all liabilities of the Company and its Consolidated
Subsidiaries under Interest Rate Swaps entered into for the purpose of
hedging interest rate risk with respect to Debt, if and only if such
liabilities are secured by a Lien, (iii) all unsecured Debt of
Consolidated Subsidiaries, and (iv) all unsecured liabilities of
Consolidated Subsidiaries under Interest Rate Swaps entered into for
the purpose of hedging interest rate risk with respect to Debt
(excluding in each case, any Debt or liability owing to the Company or
another Consolidated Subsidiary)."
4. Representations and Warranties. The Company represents and warrants
that as of the date hereof and after giving effect hereto:
(a) No Default or Event of Default exists under the Note Agreement;
(b) The Company has not paid any fees or remuneration to (i) any
Holder of Notes in connection with the solicitation of this Amendment or
(ii) any other Holder of Indebtedness of the Company in connection with any
amendment which relates solely to the subject matter of this Amendment
pursuant to any agreement under which Indebtedness of the Company is
outstanding;
(c) The execution and delivery of this Amendment by the Company and
compliance by the Company with all of the provisions of the Note Agreement,
as amended hereby:
(i) is within the corporate powers of the Company; and
(ii) will not violate any provisions of any law or any order of
any court or governmental authority or agency and will not conflict
with or result in any breach of any of the terms, conditions or
provisions of, or constitute a default under the Charter or By-laws of
the Company or any indenture or other agreement or instrument to which
the Company is a party or by which it may be bound or
result in the imposition of any liens or encumbrances on any property
of the Company;
(d) The execution and delivery of this Amendment has been duly
authorized by proper corporate action on the part of the Company (no action
by the stockholders of the Company being required by law, by the Charter or
By-laws of the Company or otherwise); this Amendment has been duly executed
and delivered by the Company; and this Amendment and the Note Agreement, as
amended by this Amendment, constitute the legal, valid and binding
obligations, contracts and agreements of the Company enforceable in
accordance with their terms.
5. No Legend Required. References in the Note Agreement or in any Note
shall be deemed to be references to the Note Agreement as amended hereby and as
further amended from time to time.
6. Effect of Amendment. Except as expressly amended hereby, the Company
agrees that the Note Agreement, the Notes and all other documents and agreements
executed by the Company in connection with the Note Agreement in favor of the
Holders of Notes are ratified and confirmed and shall remain in full force and
effect.
7. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of (i) the Company and its successors and assigns and (ii) the
Holders of Notes and their respective successors and assigns, including each
successive Holder or Holders of any Notes.
8. Requisite Approval; Expenses. This Amendment shall not be effective
until (a) the Company and the Holders of 51% in aggregate principal amount of
the Notes have executed and delivered this Amendment, and (b) the Company shall
have paid all reasonable fees, expenses and disbursements of Xxxxxxx and Xxxxxx
which are reflected in statements of such counsel rendered on or prior to the
date of this Amendment. The Company shall also pay any other reasonable
out-of-pocket expenses incurred by the Holders of Notes in connection with the
consummation of the transaction contemplated by this Amendment.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with New York law, including all matters of construction, validity
and performance.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date first above written.
ALLIED CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President & Treasurer
Allied Capital Corporation Amendment to 2000 Note Agreement
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
By /s/ Xxxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Authorized Signatories
Allied Capital Corporation Amendment to 2000 Note Agreement
XX XXXXXX LIFE INSURANCE COMPANY
By: GE ASSET MANAGEMENT, ITS INVESTMENT
ADVISOR
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President-Private P1acements
Allied Capital Corporation Amendment to 2000 Note Agreement
THE GUARDIAN LIFE INSURANCE COMPANY OF
AMERICA
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Allied Capital Corporation Amendment to 2000 Note Agreement
Accepted as of the date first written above
XXXX XXXXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Its: Managing Director
XXXX XXXXXXX VARIABLE LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Its: Authorized Signatory
INVESTORS PARTNER LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Its: Authorized Signatory
MELLON BANK, N.A., solely in its capacity as
Trustee for the Long-Term Investment Trust
(as directed by Xxxx Xxxxxxx Life Insurance
Company), and not in its individual capacity
By:
Name:
Its:
Allied Capital Corporation Amendment to 2000 Note Agreement
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Its: Vice President
AMERICAN FIDELITY ASSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Its: Vice President
GREAT WESTERN INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Its: Vice President
NATIONAL TRAVELERS LIFE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Its: Vice President
AMERICAN REPUBLIC INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Its: Vice President
Allied Capital Corporation Amendment to 2000 Note Agreement
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Its: Associate Vice President
Public Bonds
Allied Capital Corporation Amendment to 2000 Note Agreement
THE OHIO NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
Its: Investment Vice President,
Private Placements
Allied Capital Corporation Amendment to 2000 Note Agreement
PACIFIC LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Patch
-----------------------------------------
Name: Xxxxx X. Patch
Its: Assistant Vice President
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Its: Assistant Secretary
Allied Capital Corporation Amendment to 2000 Note Agreement
Accepted as of the date first written above
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Its: Director
TIAA-CREF LIFE INSURANCE COMPANY
By: Teacher Insurance and Annuity Association
of America, as Asset Manager
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Its: Director
Allied Capital Corporation Amendment to 2000 Note Agreement
SUN LIFE ASSURANCE COMPANY OF CANADA
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Its: Vice President, U.S. Private
Placements - For President
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Vice President, U.S. Public Bonds -
For Secretary
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Its: Vice President, U.S. Private
Placements - For President
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Vice President, U.S. Public Bonds -
For Secretary
SUN LIFE INSURANCE AND ANNUITY COMPANY OF
NEW YORK
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Its: Vice President, U.S. Private
Placements - For President
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Its: Vice President, U.S. Public Bonds -
For Secretary
