Exhibit 10.33
ALLIED CAPITAL CORPORATION
0000 XXXXXXXXXXXX XXXXXX, X.X.
XXXXXXXXXX, X.X. 00000-0000
AMENDMENT
Dated as of April 30, 2003
Re: $112,000,000 7.39% Senior Notes, Series A, due May 1, 2004
and
$25,000,000 7.49% Senior Notes, Series B, due May 1, 2006
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 May
1, 1999 (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 7.39%
Senior Notes, Series A, due May 1, 2004 of the Company in the aggregate
principal amount of $112,000,000 (the "Series A Notes") and 7.49% Senior Notes,
Series B, due May 1, 2006 of the Company in the aggregate principal amount of
$25,000,000 (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 Moody's Investers
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 benefits 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 66 2/3% 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 transactions contemplated by this Agreement.
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 May 1999 Note Agreement
SUNAMERICA LIFE INSURANCE COMPANY
By: AIG GLOBAL INVESTMENT CORP.,
INVESTMENT ADVISER
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Date: April 24, 2003
Allied Capital Corporation Amendment to May 1999 Note Agreement
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY
By: CIGNA Investments, Inc.
By /s/ Xxxxx X. Height
---------------------------------------
Name: XXXXX X. HEIGHT
Title: MANAGING DIRECTOR
LIFE INSURANCE COMPANY OF NORTH AMERICA
By: CIGNA Investments, Inc.
By /s/ Xxxxx X. Height
---------------------------------------
Name: XXXXX X. HEIGHT
Title: MANAGING DIRECTOR
Allied Capital Corporation Amendment to May 1999 Note Agreement
GENERAL ELECTRIC CAPITAL ASSURANCE
COMPANY
By: GE ASSET MANAGEMENT, ITS INVESTMENT
ADVISER
By /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President-Private Placements
Allied Capital Corporation Amendment to May 1999 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 1998 Note Agreement
XXXX XXXXXXX LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Title: Managing Director
XXXX XXXXXXX VARIABLE LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Title: Authorized Signatory
INVESTORS PARTNER LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Title: Authorized Signatory
XXXX XXXXXXX REASSURANCE
COMPANY Ltd.
By: /s/ Xxxxxxx X. Xxxxx Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx Xxxxx
Title: Authorized Signatory
Allied Capital Corporation Amendment to May 1999 Note Agreement
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
NATIONWIDE INDEMNITY COMPANY
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
Allied Capital Corporation Amendment to May 1999 Note Agreement
THE OHIO NATIONAL LIFE INSURANCE
CORPORATION
By /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
Title: Investment Vice President-Private
Placements
Allied Capital Corporation Amendment to May 1999 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
Title: Director
