Exhibit 10.36
EXECUTED COPY
ALLIED CAPITAL CORPORATION
0000 XXXXXXXXXXXX XXXXXX, X.X.
XXXXXXXXXX, X.X. 00000-0000
AMENDMENT
Dated as of April 30, 2003
Re: $150,000,000 7.16% Senior Notes,
Due October 15, 2006
To the holder 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, 2001 (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 7.16%
Senior Notes, due October 15, 2006 of the Company in an aggregrate principal
amount of $150,000,000 (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 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 Fitch
Ratings, 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 any material
amounts owing to the Company or such Consolidated Subsidiary
under such Interest Rate Swap."
(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)."
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. Governing Law. This Amendment shall be governed by and
construed in accordance with New York law, including all matters of
construction, validity and performance.
9. 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
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Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President & Treasurer
Allied Capital Corporation Amendment to 2001 Note Agreement
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: Delaware Investment Advisers, a series of
Delaware Management Business Trust, its
Attorney-In-Fact
By /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY
By: Delaware Investment Advisers, a series of
Delaware Management Business Trust, its
Attorney-In-Fact
By /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
Accepted as of the date first written above:
FEDERATED MUTUAL INSURANCE COMPANY
By /s/ Xxxx X. Xxxx
-----------------------------------------
Name: Xxxx X. Xxxx
Allied Capital Corporation Amendment to 2001 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
Allied Capital Corporation Amendment to 2001 Note Agreement
NATIONAL LIFE AND ANNUITY INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Associate Vice President
Public Bonds
SUN LIFE ASSURANCE COMPANY OF CANADA
By:
--------------------------------
Name:
Title:
Allied Capital Corporation Amendment to 2001 Note Agreement
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
By /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President, U.S. Private
Placements - For President
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, U.S. Public Bonds - For
Secretary
Accepted as of the date first written above:
USG ANNUITY & LIFE COMPANY
EQUITABLE LIFE INSURANCE COMPANY OF
IOWA
GOLDEN AMERICAN LIFE INSURANCE
COMPANY
By: ING Investment Management, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President
Allied Capital Corporation Amendment to 2001 Note Agreement
TRUSTMARK LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: XXXX XXXXXXX
Title: VICE PRESIDENT
MINNESOTA LIFE INSURANCECOMPANY
By: Advantus Capital Management, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: XXXX XXXXXXX
Title: VICE PRESIDENT
Accepted as of the date first written above:
PACIFIC LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Patch
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Name: Xxxxx X. Patch
Title: Assistant Vice President
By /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Assistant Secretary
Allied Capital Corporation Amendment to 2001 Note Agreement
SECURITY FINANCIAL LIFE INSURANCE CO.
By /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
Chief Investment Officer
Allied Capital Corporation Amendment to 2001 Note Agreement
WOODMEN OF THE WORLD LIFE INSURANCE
SOCIETY
By /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Securities Department Manager
