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EXHIBIT 10.6 AND 10.7
[ALLIED CAPITAL LETTERHEAD]
WAIVER AND CONSENT
This Waiver and Consent is made as of the 31st day of December, 1997, by
BUSINESS MORTGAGE INVESTORS, INC. (the "Fund"), a Maryland corporation, ALLIED
CAPITAL ADVISERS, INC. ("Advisers"), a Maryland corporation, and SIGULER GUFF
ADVISERS, LLC ("Siguler Guff"), a Delaware limited liability company.
WHEREAS, pursuant to an Investment Management Agreement dated as of January 4,
1993 (the "Management Agreement"), Advisers, as an original party to the
Management Agreement, and Siguler Guff, as an assignee of Xxxxxxxx Xxxxxxxx
Asset Management pursuant to an Assignment of Management Agreement dated August
8, 1995, provide investment advisory and management services to the Fund; and
WHEREAS, Section 9(a) of the Management Agreement provides, in part, that it
will terminate automatically as to Advisers upon its assignment, as defined in
the Investment Advisers Act of 1940, as amended (the "Act"), by Advisers; and
WHEREAS, Advisers has entered into an agreement and plan of merger with Allied
Capital Corporation, Allied Capital Corporation II, and Allied Capital
Commercial Corporation to merge with and into Allied Capital Lending
Corporation, with Allied Capital Lending Corporation as the surviving entity
(the "Merger"); and
WHEREAS, the Merger may be deemed to cause an assignment, as defined in the
Act, of the Management Agreement by Advisers to Allied Capital Lending
Corporation, as Advisers' successor by operation of law; and
WHEREAS, the undersigned, being all of the parties to the Management Agreement,
wish to waive their rights under Section 9(a) of the Management Agreement to
the extent that such section would cause the Management Agreement to terminate
automatically as to Advisers if the Merger were deemed to cause an assignment
by Advisers thereof;
NOW, THEREFORE, each of the undersigned hereby acknowledges that the Merger may
be deemed to cause an assignment of the Management Agreement by Advisers; and
FURTHER, insofar as the Merger is deemed to cause an assignment of the
Management Agreement, each of the undersigned hereby consents to such
assignment and waives any and all rights such party may have under Section 9(a)
of the Management Agreement relating to such assignment; and
FURTHER, each of the undersigned hereby consents to the continuation of the
Management Agreement following the effective date of the Merger, with Allied
Capital Lending Corporation, as successor to Advisers, as a party thereto.
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IN WITNESS WHEREOF, each of the undersigned has caused this waiver and consent
to be executed by the officer designated below as of the day and year first
above written.
BUSINESS MORTGAGE INVESTORS, INC.
By: /s/ XXXX X. XXXXXXXX
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Name: Xxxx X. Xxxxxxxx
Title: President
ALLIED CAPITAL ADVISERS, INC.
By: /s/ XXXX X. XXXXXXX
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Name: Xxxx X. Xxxxxxx
Title: Managing Director
SIGULER GUFF ADVISERS, LLC
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
