Allied Capital Corporation First Omnibus Waiver and Amendment to the Note Agreements Dated as of July 25, 2008 Re: Note Agreement dated as of May 14, 2003 $147,000,000 6.05% Senior Notes, Series B, due May 14, 2010 and Note Agreement dated as of...
EXHIBIT 10.40
Allied Capital Corporation
First Omnibus Waiver and Amendment to the Note Agreements
Dated as of July 25, 2008
Re:
Note Agreement dated as of May 14, 2003
$147,000,000 6.05% Senior Notes, Series B, due May 14, 2010
and
Note Agreement dated as of November 15, 2004
$252,500,000 5.53% Senior Notes, Series A, due November 15, 2009
$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011
and
Note Agreement dated as of October 13, 2005
$261,000,000 6.15% Senior Notes, Series A, due October 13, 2010
$89,000,000 6.34% Senior Notes, Series B, due October 13, 2012
and
Note Agreement dated as of May 1, 2006
$50,000,000 6.75% Senior Notes due May 1, 2013
and
Note Agreement dated as of June 20, 2008
$140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013
$52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015
$147,000,000 6.05% Senior Notes, Series B, due May 14, 2010
and
Note Agreement dated as of November 15, 2004
$252,500,000 5.53% Senior Notes, Series A, due November 15, 2009
$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011
and
Note Agreement dated as of October 13, 2005
$261,000,000 6.15% Senior Notes, Series A, due October 13, 2010
$89,000,000 6.34% Senior Notes, Series B, due October 13, 2012
and
Note Agreement dated as of May 1, 2006
$50,000,000 6.75% Senior Notes due May 1, 2013
and
Note Agreement dated as of June 20, 2008
$140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013
$52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015
First Omnibus Waiver and Amendment to the Note Agreements
Dated as of July 25, 2008
Re: Note Agreement dated as of May 14, 2003
$147,000,000 6.05% Senior Notes, Series B, due May 14, 2010
and
Note Agreement dated as of November 15, 2004
$252,500,000 5.53% Senior Notes, Series A, due November 15, 2009
$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011
and
Note Agreement dated as of October 13, 2005
$261,000,000 6.15% Senior Notes, Series A, due October 13, 2010
$89,000,000 6.34% Senior Notes, Series B, due October 13, 2012
and
Note Agreement dated as of May 1, 2006
$50,000,000 6.75% Senior Notes due May 1, 2013
and
Note Agreement dated as of June 20, 2008
$140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013
$52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015
$147,000,000 6.05% Senior Notes, Series B, due May 14, 2010
and
Note Agreement dated as of November 15, 2004
$252,500,000 5.53% Senior Notes, Series A, due November 15, 2009
$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011
and
Note Agreement dated as of October 13, 2005
$261,000,000 6.15% Senior Notes, Series A, due October 13, 2010
$89,000,000 6.34% Senior Notes, Series B, due October 13, 2012
and
Note Agreement dated as of May 1, 2006
$50,000,000 6.75% Senior Notes due May 1, 2013
and
Note Agreement dated as of June 20, 2008
$140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013
$52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015
To each of the Noteholders
named in Schedule A attached hereto which are also
signatories to this First Omnibus Waiver and Amendment
to the Note Agreements (this “First Waiver and Amendment”).
named in Schedule A attached hereto which are also
signatories to this First Omnibus Waiver and Amendment
to the Note Agreements (this “First Waiver and Amendment”).
Ladies and Gentlemen:
Reference is made to (i) the Note Agreement dated as of May 14, 2003 (the “2003 Note
Agreement”) under and pursuant to which the $147,000,000 6.05% Senior Notes, Series B, due May 14,
2010 (the “2003 Notes”) were originally issued and sold, (ii) the Note Agreement dated as of
November 15, 2004 (the “2004 Note Agreement”) under and pursuant to which (a) the $252,500,000
5.53% Senior Notes, Series A, due November 15, 2009 (the “2004 Series A Notes”) and (b) the
$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011 (the “2004 Series B Notes”, and
together with the 2004 Series A Notes, the “2004 Notes”) were originally issued and sold, (iii) the
Note Agreement dated as of October 13, 2005 (the “2005 Note Agreement”) under and pursuant to which
(a) the $261,000,000 6.15% Senior Notes, Series A, due October 13, 2010 (the “2005 Series A Notes”)
and (b) the $89,000,000 6.34% Senior Notes, Series B, due October 13, 2012 (the “2005 Series B
Notes”, and together with the 2005 Series A Notes, the “2005 Notes”) were originally issued and sold, (iv) the Note
Agreement
dated as of May 1, 2006 (the “2006 Note Agreement”) under and pursuant to which the $50,000,000
6.75% Senior Notes due May 1, 2013 (the “2006 Notes”) were originally issued and sold, and (v) the
Note Agreement dated as of June 20, 2008 (the “2008 Note Agreement”) under and pursuant to which
(a) the $140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013 (the “2008 Series A
Notes”) and (b) the $52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015 (the “2008
Series B Notes”, and together with the 2008 Series A Notes, the “2008 Notes”, and together with the
2003 Notes, the 2004 Notes, the 2005 Notes, and the 2006 Notes, the “Notes”) were originally issued
and sold, each of which are by and among Allied Capital Corporation, a Maryland corporation (the
“Company”), and the institutional investors named therein. The current holders of the Notes are
named in Schedule A hereto and are collectively referred to as the “Noteholders” and individually
as a “Noteholder”. The 2003 Note Agreement, the 2004 Note Agreement, the 2005 Note Agreement, the
2006 Note Agreement and the 2008 Note Agreement are collectively referred to as the “Note
Agreements” and individually as a “Note Agreement”. Terms used but not otherwise defined herein
shall have the meanings set forth in the Note Agreements.
The Company has requested certain waivers and amendments to the Note Agreements and hereby
agrees with you as follows:
Article 1.
Waiver of Defaults.
Section 1.1. Waiver of Defaults. The Company has notified the Noteholders that it has
declared certain dividends on its capital stock payable on dates that are more than the 60 days or
80 days, as the case may be, permitted by Section 5.10 of the Note Agreements. The Noteholders
hereby waive any Event of Default arising under the Note Agreements solely on account of such
declaration and payment (including any Event of Default arising under Section 6.1(d) or (g)) and
the failure to give the notice required by Section 6.2 of the Note Agreements.
Section 1.2. Limited Waivers; Reservation of Rights. The Company acknowledges and agrees that
the waivers granted in this Section 1 are specific in intent and are valid only for the specific
purposes for which they are being given, are waivers of known Events of Default only, shall not in
any way obligate the Noteholders to agree to any additional waivers of the provisions of the Note
Agreements, and shall not in any way be deemed to constitute or operate as a waiver of any
Noteholder’s right under the Note Agreements to exercise remedies resulting from (i) existing
and/or continuing Defaults or Events of Default of which such Noteholder is not actually aware or
(ii) other future Defaults or Events of Default, whether or not of a similar nature and whether or
not known to any Noteholder.
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Article 2.
Amendment of the Note Agreements.
Amendment of Section 5.10 (Restricted Payments). The second to last paragraph of Section 5.10
of each Note Agreement shall be and is hereby amended and restated in its entirety as follows:
The Company will not declare any dividend which constitutes a
Restricted Payment payable more than 80 days after the date of
declaration thereof; provided that dividends payable in the fourth
quarter and any year-end extra dividend which constitute a
Restricted Payment may be payable up to 120 days after the date of
declaration thereof.
Article 3.
Representations and Warranties.
The Company represents and warrants that as of the date hereof and after giving effect hereto:
(a) The execution and delivery of this First Waiver and Amendment by the Company and
compliance by the Company with all of the provisions of the Note Agreements, as amended by this
First Waiver and Amendment—
(i) are within the corporate power and authority 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 articles of
incorporation or bylaws of the Company or any indenture or other agreement or instrument to
which the Company is a party or by which the Company may be bound, or result in the
imposition of any Liens or encumbrances on any property of the Company.
(b) The execution and delivery of this First Waiver and Amendment has been duly authorized by
all necessary corporate action on the part of the Company (no action by the stockholders of the
Company being required by law, by the articles of incorporation or bylaws of the Company or
otherwise, other than those actions which have been obtained or effected); and this First Waiver
and Amendment has been duly executed and delivered by the Company, and each Note Agreement, as
amended by this First Waiver and Amendment, constitutes the legal, valid and binding obligation,
contract and agreement of the Company, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance and similar laws affecting creditors’ rights
generally, and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
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(c) Upon the effectiveness of this First Waiver and Amendment no Default or Event of Default
shall exist or be continuing.
Article 4.
Miscellaneous.
Section 4.1. Ratification of the Note Agreements. Except as herein expressly amended, the
Note Agreements are in all respects ratified and confirmed. If and to the extent that any of the
terms or provisions of the Note Agreements are in conflict or inconsistent with any of the terms or
provisions of this First Waiver and Amendment, this First Waiver and Amendment shall govern.
Section 4.2. References to the Agreement. References in any Note Agreement or in any Note,
certificate, instrument or other document related to or delivered in connection with the
transactions contemplated by any Note Agreement shall be deemed to be references to such Note
Agreement as amended hereby and as further amended from time to time.
Section 4.3. Successors and Assigns. This First Waiver and Amendment shall be binding upon
the Company and its successors and assigns and shall inure to the benefit of each Noteholder and
such Noteholder’s successors and assigns, including each successive holder or holders of any Notes.
Section 4.4. Requisite Approval; Expenses. This First Waiver and Amendment shall be effective
as of the date first written above upon the satisfaction of the following conditions precedent:
(a) the Company and the holders of at least 51% in aggregate principal amount of each of the 2003
Notes, the 2004 Notes, the 2005 Notes, the 2006 Notes and the 2008 Notes shall have executed this
First Waiver and Amendment; (b) copies of the waiver to the Bank Credit Agreement shall have been
delivered to the Noteholders, and shall be substantively similar to the waiver portion of this
First Waiver and Amendment and in form reasonably satisfactory to the Noteholders; (c) the Company
shall have paid a fee to each Noteholder in an amount equal to 10.0 basis points of the principal
amount of Notes held by such Noteholder; and (d) the Company shall have paid the reasonable fees,
expenses and disbursements of Xxxxxxx and Xxxxxx LLP which are reflected in statements of such
counsel rendered on or prior to the date of this First Waiver and Amendment.
Section 4.5. Counterparts. This First Waiver and Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all together only one
agreement.
Section 4.6. Governing Law. This First Waiver and Amendment shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the law of the State of New
York excluding choice-of-law principles of the law of such State that would require the application
of the laws of a jurisdiction other than such State.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Company has executed this First Omnibus Waiver and Amendment to the
Note Agreements as of the day and year first above written.
| Allied Capital Corporation |
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| By | /s/ Xxxxx Roll | |||
| Name: | Xxxxx Roll | |||
| Title: | Chief Financial Officer | |||
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In Witness Whereof, the Noteholders under the Note Agreements have executed this
First Omnibus Waiver and Amendment to the Note Agreements as of the day and year first above
written.
American Fidelity Assurance Company (as Noteholder under the 2005 Note Agreement)
American Republic Insurance Company (as Noteholder under the 2008 Note Agreement)
Blue Cross and Blue Shield of Florida, Inc. (as Noteholder under the 2005 Note Agreement)
The Catholic Aid Association (as
Noteholder under the 2008 Note Agreement)
Catholic Knights (as Noteholder under
the 2008 Note Agreement)
Cincinnati Insurance Company (as Noteholder under the 2008 Note Agreement)
Colorado Bankers Life Insurance Company (as Noteholder under the 2005 Note Agreement)
Farm Bureau Life Insurance Company of Michigan (as Noteholder under the 2005 Note Agreement)
Fidelity Life Association (as Noteholder under the 2008 Note Agreement)
Fort Dearborn Life Insurance Company (as Noteholder under the 2004 Note Agreement and the 2005 Note Agreement)
Great Western Insurance Company (as Noteholder under the 2008 Note Agreement)
GuideOne Mutual Insurance Company (as Noteholder under the 2008 Note Agreement)
The Lafayette Life Insurance Company (as Noteholder under the 2008 Note Agreement)
Minnesota Life Insurance Company (as Noteholder under the 2005 Note Agreement and the 2008 Note Agreement)
Security National Life Insurance Company (as
Noteholder under the 2008 Note Agreement) |
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| By: Advantus Capital Management, Inc. | ||||
| By | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Vice President | |||
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AIG Annuity Insurance Company (as Noteholder under the 2003 Note Agreement)
The Variable Annuity Life Insurance Company
(as Noteholder under the 2003 Note Agreement) |
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| By: AIG Global Investment Corp., investment adviser |
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| By | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Allianz Life Insurance Company of North
America (as Noteholder under the 2005 Note Agreement) By: Allianz of America, Inc., as the authorized signatory, investment manager, of which, the security should be registered under the Nominee Name (MAC & CO) |
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| By | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
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Allstate Life Insurance Company
(as Noteholder under the 2003 Note Agreement and the 2005 Note Agreement) |
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| By | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| By | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Authorized Signatories | ||||
Allstate Life Insurance Company of
New York (as Noteholder under the 2003 Note Agreement and the 2005 Note Agreement) |
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| By | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| By | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Authorized Signatories | ||||
American Equity Investment Life Insurance
Company (as Noteholder under the 2004 Note Agreement and the 2005 Note Agreement) |
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| By | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President Investments | |||
American Equity Investment Life Insurance
Company of New York (as Noteholder under the 2004 Note Agreement) |
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| By | /s/ Xxxxxx Xxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxx | |||
| Title: | Vice President Investments | |||
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American Family Life Assurance Company
of Columbus (as Noteholder under the 2005 Note Agreement and the 2006 Note Agreement) |
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| By | /s/ Xxxx Xxxxx Xxxx | |||
| Name: | Xxxx Xxxxx Xxxx | |||
| Title: | Vice President Fixed Income | |||
California National Bank (as Noteholder
under the 2005 Note Agreement) |
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| By | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Senior Vice President/Treasurer | |||
Connecticut General Life Insurance Company
(as Noteholder under the 2003 Note Agreement and the 2004 Note Agreement) By: Cigna Investments, Inc. (authorized agent) |
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| By | /s/ Xxxxx X. Height | |||
| Name: | Xxxxx X. Height | |||
| Title: | Managing Director | |||
Life Insurance Company of North America
(as Noteholder under the 2004 Note Agreement) |
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| By: CIGNA Investments, Inc. (authorized agent) |
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| By | /s/ Xxxxx X. Height | |||
| Name: | Xxxxx X. Height | |||
| Title: | Managing Director | |||
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CUNA Mutual Insurance Society (as
Noteholder under the 2008 Note Agreement) |
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| By: | MEMBERS Capital Advisors, Inc., acting as Investment Advisor |
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| By | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Director, Private Placements | |||
Employees’ Retirement System of Alabama
(as Noteholder under the 2005 Note Agreement) |
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| By | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director of Fixed Income | |||
Judicial Retirement Fund (as Noteholder
under the 2005 Note Agreement) |
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| By | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director of Fixed Income | |||
PEIRAF — Deferred Compensation Plan (as
Noteholder under the 2005 Note Agreement) |
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| By | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director of Fixed Income | |||
Teachers’ Retirement System of Alabama
(as Noteholder under the 2005 Note Agreement) |
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| By | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Director of Fixed Income | |||
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Federated Life Insurance Company (as
Noteholder under the 2003 Note Agreement) |
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| By | /s/ Xxxx X. Xxxx | |||
| Name: | Xxxx X. Xxxx | |||
| Title: | Vice President | |||
| Genworth Life Insurance Company
(f/k/a General Electric Capital Assurance
Company) (as Noteholder under the 2004 Note Agreement and the 2005 Note Agreement) |
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| By | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Investment Officer | |||
The Guardian Life Insurance Company of
America (as Noteholder under the 2004 Note Agreement) |
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| By | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Senior Director, Private Placements | |||
The Guardian Insurance & Annuity Company,
Inc. (as Noteholder under the 2004 Note Agreement) |
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| By | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Senior Director, Private Placements | |||
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Xxxx Xxxxxxx Life Insurance Company (as
Noteholder under the 2003 Note Agreement and 2004 Note Agreement) |
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| By | /s/ Xxxxxxx X. Xxxxx Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx Xxxxx | |||
| Title: | Senior Managing Director | |||
Xxxx Xxxxxxx Variable Life Insurance Company
(as Noteholder under the 2003 Note Agreement and 2004 Note Agreement) |
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| By | /s/ Xxxxxxx X. Xxxxx Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
Xxxx Xxxxxxx Life & Health Insurance Company
(f/k/a Manulife Insurance Company) (as Noteholder under the 2003 Note Agreement) |
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| By | /s/ Xxxxxxx X. Xxxxx Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
Xxxx Xxxxxxx Life Insurance Company (U.S.A.)
(f/k/a The Manufacturers Life Insurance Company (U.S.A.)) (as Noteholder under the 2004 Note Agreement) |
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| By | /s/ Xxxxxxx X. Xxxxx Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx Xxxxx | |||
| Title: | Authorized Signatory | |||
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Signature 7 L.P. (as Noteholder under
the 2004 Note Agreement) |
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| By: | Xxxxxxx Capital Investment Management, LLC, as Portfolio Advisor |
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| By | /s/ Xxxxxxx X. Xxxxx Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx Xxxxx | |||
| Title: | Senior Managing Director | |||
Signature 6 Limited (as Noteholder under
the 2004 Note Agreement) |
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| By: | Xxxxxxx Capital Investment Management, LLC, as Portfolio Advisor |
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| By | /s/ Xxxxxxx X. Xxxxx Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx Xxxxx | |||
| Title: | Senior Managing Director | |||
JPMorgan Chase Bank, not individually
but
solely in its capacity as Directed Trustee of the commingled assets of the Long Term Investment Trust (fka AT&T Master Pension Trust) and the SBC Master Pension Trust (as Noteholder under the 2004 Note Agreement) |
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| By | /s/ Xxx X. Xxxxxxxxxxxx | |||
| Name: | Xxx X. Xxxxxxxxxxxx | |||
| Title: | Vice President | |||
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ING USA Annuity and Life Insurance Company (as Noteholder under the 2008 Note Agreement)
ING Life Insurance and Annuity Company (as Noteholder under the 2008 Note Agreement)
ReliaStar Life Insurance Company (as Noteholder under the 2008 Note Agreement)
Security Life of Denver Insurance Company
(as Noteholder under the 2008 Note Agreement) |
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| By: | ING Investment Management LLC, as Agent | |||
| By | /s/ Xxxxxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
Metropolitan Life Insurance Company (as
Noteholder under the 2004 Note Agreement) MetLife Insurance Company of Connecticut, by Metropolitan Life Insurance Company, its Investment Manager |
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| By | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Managing Director | |||
| (executed by Metropolitan Life Insurance Company (i) as to itself as a Purchaser and (ii) as investment manager to MetLife Insurance Company of Connecticut as a Purchaser) |
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Midland National Life Insurance
Company (as Noteholder under the 2005 Note Agreement) |
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| By: | Guggenheim Partners Advisory Company | |||
| By | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Director | |||
North American Company for Life
and Health Insurance (as Noteholder under the 2005 Note Agreement) |
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| By: | Guggenheim Partners Advisory Company | |||
| By | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Director | |||
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National Benefit Life Insurance Company
(as Noteholder under the 2004 Note Agreement) |
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| By: | Conning Asset Management Company, as Investment Manager | |||
| By | /s/ Xxxx X. XxXxxxxx | |||
| Name: | Xxxx X. XxXxxxxx | |||
| Title: | Director | |||
Primerica Life Insurance Company (as
Noteholder under the 2004 Note Agreement) |
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| By: | Conning Asset Management Company, as Investment Manager | |||
| By | /s/ Xxxx X. XxXxxxxx | |||
| Name: | Xxxx X. XxXxxxxx | |||
| Title: | Director | |||
Reassure America Life Insurance Company
(as Noteholder under the 2003 Note Agreement) |
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| By: | Conning Asset Management Company, as Investment Manager | |||
| By | /s/ Xxxx X. XxXxxxxx | |||
| Name: | Xxxx X. XxXxxxxx | |||
| Title: | Director | |||
Swiss Re Life & Health America, Inc. (as
Noteholder under the 2003 Note Agreement and the 2004 Note Agreement) |
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| By: | Conning Asset Management Company, as Investment Manager | |||
| By | /s/ Xxxx X. XxXxxxxx | |||
| Name: | Xxxx X. XxXxxxxx | |||
| Title: | Director | |||
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Nationwide Life and Annuity Insurance Company
(as Noteholder under the 2004 Note Agreement and the 2005 Note Agreement) Nationwide Life Insurance Company (as
Noteholder under the 2004 Note Agreement and the 2005 Note Agreement) Nationwide Life Insurance Company of America
(as Noteholder under the 2004 Note Agreement) Nationwide Multiple Maturity Separate Account
(as Noteholder under the 2005 Note Agreement) Nationwide Mutual Insurance Company (as
Noteholder under the 2004 Note Agreement) |
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| By | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Authorized Signatory | |||
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New York Life Insurance Company
(as Noteholder under the 2003 Note Agreement, the 2004 Note Agreement and the 2005 Note Agreement) |
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| By | /s/ A. Post Xxxxxxx | |||
| Name: | A. Post Xxxxxxx | |||
| Title: | Corporate Vice President | |||
New York Life Insurance and Annuity
Corporation (as Noteholder under the 2003 Note Agreement, the 2004 Note Agreement and the 2005 Note Agreement) |
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| By | New York Life Investment Management LLC, its Investment Manager | |||
| By | /s/ A. Post Xxxxxxx | |||
| Name: | A. Post Xxxxxxx | |||
| Title: | Director | |||
New York Life Insurance and Annuity
Corporation Institutionally Owned Life Insurance Separate Account (as Noteholder under the 2003 Note Agreement and the 2005 Note Agreement) |
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| By | New York Life Investment Management LLC, its Investment Manager | |||
| By | /s/ A. Post Xxxxxxx | |||
| Name: | A. Post Xxxxxxx | |||
| Title: | Director | |||
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The Northwestern Mutual Life Insurance
Company (as Noteholder under the 2004 Note Agreement, the 2005 Note Agreement and the 2008 Note Agreement) |
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| By | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Its Authorized Representative | ||||
Ohio National Life Assurance Corporation
(as Noteholder under the 2005 Note Agreement and the 2008 Note Agreement) |
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| By | /s/ Xxx X. Xxxxxx | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | Vice President, Private Placements | |||
The Ohio National Life Insurance Company
(as Noteholder under the 2004 Note Agreement and the 2005 Note Agreement) |
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| By | /s/ Xxx X. Xxxxxx | |||
| Name: | Xxx X. Xxxxxx | |||
| Title: | Vice President, Private Placements | |||
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Park National Bank (as Noteholder under
the 2005 Note Agreement) |
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| By | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Vice President / Controller | |||
Phoenix Life Insurance Company (as
Noteholder under the 2005 Note Agreement) |
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| By | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President Corporate Portfolio Management Phoenix Life Insurance Company | |||
PHL Variable Insurance Company (as
Noteholder under the 2005 Note Agreement) |
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| By | /s/ Xxxxxxxxxxx X. Xxxxxx, CFA | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President Corporate Portfolio Management PHL Variable Insurance Company | |||
San Diego National Bank (as Noteholder
under the 2005 Note Agreement) |
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| By | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Senior Vice President/Chief Financial Officer | |||
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Sun Life Assurance Company of Canada (as
Noteholder under the 2004 Note Agreement and the 2008 Note Agreement) |
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| By | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Managing Director Head of Private Fixed Debt Private Fixed Income | |||
| By | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Managing Director Private Fixed Income | |||
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Sun Life Assurance Company of Canada (U.S.)
(as Noteholder under the 2008 Note Agreement) |
||||
| By | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Managing Director, Head of Private Debt Private Fixed Income | |||
| By | /s/ Xxx X. Xxxx | |||
| Name: | Xxx X. Xxxx | |||
| Title: | Assistant Vice President and Senior Counsel | |||
Sun Life Insurance and Annuity Company of New
York (as Noteholder under the 2008 Note Agreement) |
||||
| By | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Authorized Signer | |||
| By | /s/ Xxx X. Xxxx | |||
| Name: | Xxx X. Xxxx | |||
| Title: | Senior Counsel | |||
Sun Life Assurance Company of Canada (as
Noteholder under the 2003 Note Agreement and the 2008 Note Agreement) acting through its U.S. branch |
||||
| By | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Managing Director, Head of Private Debt Private Fixed Income | |||
| By | /s/ Xxx X. Xxxx | |||
| Name: | Xxx X. Xxxx | |||
| Title: | Senior Counsel | |||
-22-
| Sun Life Hong Kong Limited |
||||
| By: | Sun Capital Advisers LLC, its Investment Advisor (as Noteholder under the 2003 Note Agreement) | |||
| By | /s/ Xxxxxxx X. Xxxx | |||
| Name: | Xxxxxxx X. Xxxx | |||
| Title: | Authorized Signer | |||
| By | /s/ Xxx X. Xxxx | |||
| Name: | Xxx X. Xxxx | |||
| Title: | Authorized Signer | |||
Teachers Insurance and Annuity Association of
America (as Noteholder under the 2003 Note Agreement, the 2004 Note Agreement, the 2005 Note Agreement and the 2008 Note Agreement) |
||||
| By | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Director | |||
TIAA-CREF Life Insurance Company (as
Noteholder under the 2004 Note Agreement) |
||||
| By: | Teachers Insurance and Annuity Association of America, as Investment Manager | |||
| By | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Director | |||
-23-
The Travelers Indemnity Company (as
Noteholder under the 2005 Note Agreement) |
||||
| By | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
Woodmen of the World Life Insurance Society
(as Noteholder under the 2005 Note Agreement) |
||||
| By | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
-24-
