Allied Capital Corporation First Amendment to Note Agreement Dated as of February 29, 2008 Re: Note Agreement dated as of May 1, 2006 and $50,000,000 6.75% Senior Notes due May 1, 2013
EXHIBIT f.11(a)
Execution Copy
Allied Capital Corporation
First Amendment to Note Agreement
Dated as of February 29, 2008
Re:
Note Agreement dated as of May 1, 2006
and
$50,000,000 6.75% Senior Notes due May 1, 2013
First Amendment to Note Agreement
Dated as of February 29, 2008
To each of the Noteholders named in
Schedule I hereto which are also
signatories to this First Amendment
to Note Agreement (this “First Amendment”).
Schedule I hereto which are also
signatories to this First Amendment
to Note Agreement (this “First Amendment”).
Ladies and Gentlemen:
Reference is made to the Note Agreement dated as of May 1, 2006 (the “Note Agreement”) by and
among Allied Capital Corporation, a Maryland corporation (the “Company”), and each of the
institutional investors named therein, under and pursuant to which the $50,000,000 6.75% Senior
Notes due May 1, 2013 (the “Notes”) were originally issued and sold. The current holders of the
Notes are named in Schedule I hereto and are collectively referred to as the “Noteholders” and
individually as a “Noteholder”. Terms used but not otherwise defined herein shall have the
meanings set forth in the Note Agreement.
The Company has requested certain amendments to the Note Agreement and hereby agrees with you
as follows:
Article 1.
Amendment of the Note Agreement
Amendment of the Note Agreement
Section 1.1. Amendment of Section 8.1 (Defined Terms). The definition of “Adjusted EBIT” set
forth in Section 8.1 of the Note Agreement shall be and is hereby amended and restated in its
entirety to read as follows:
“Adjusted EBIT” means, for any period with respect to the
Company and its Consolidated Subsidiaries on a consolidated basis,
income after deduction of all expenses and other proper charges
other than taxes, Interest Expense and non-cash employee stock
options expense and excluding (i) net realized gains or losses,
(ii) net change in unrealized appreciation or depreciation, and
(iii) the amount of interest paid-in-kind (“PIK”) to the extent
such amount exceeds the sum of (x) PIK interest collected in
cash and (y) realized gains collected in cash (net of realized
losses) provided that the amount determined pursuant to this clause
(y) shall not be less than 0, all as determined in accordance with
GAAP.
Section 1.2. Amendment of Section 5 (Covenants). Section 5 of the Note Agreement shall be and
is hereby amended to add the following as a new Section 5.16 (Additional Financial Covenants):
Section 5.16. Additional Financial Covenants. If the Company
shall at any time enter into one or more agreements (including any
amendment of an existing agreement) pursuant to which Senior Funded
Debt in an aggregate principal amount greater than $30,000,000 shall
be outstanding and such agreement contains one or more financial
covenants which are more restrictive on the Company and its
Subsidiaries than the financial covenants contained in this
Agreement, then such more restrictive financial covenants and any
related definitions (the “Additional Financial Covenants”) shall
automatically be deemed to be incorporated into § 5 of this
Agreement (including § 5.15(f) and (g)) by reference and § 6.1(e)
shall be deemed to be amended to include such Additional Financial
Covenants from the time such other agreement becomes binding upon
the Company until such time as such other Senior Funded Debt is
repaid in full and all commitments related thereto are terminated;
provided, that if at the time of any such repayment or the
termination of any such commitment a Default or Event of Default
shall exist under this Agreement, then such covenants shall continue
in full force and effect so long as such Default or Event of Default
continues to exist. So long as such Additional Financial Covenants
shall be in effect, no modification or waiver of such Additional
Financial Covenants shall be effective unless the Holders of at
least 51% in aggregate principal amount of the Notes shall have
consented thereto pursuant to § 7.1 hereof. Promptly but in no
event more than 10 Business Days following the execution of any
agreement providing for Additional Financial Covenants, the Company
shall furnish each holder of the Notes with a copy of such
agreement. Upon written request of the Holders of at least 51% in
aggregate principal amount of the Notes, the Company will enter into
an amendment to this Agreement pursuant to which this Agreement will
be formally amended to incorporate the Additional Financial
Covenants on the terms set forth herein.
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Article 2.
Representations and Warranties.
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 Amendment by the Company and compliance by the
Company with all of the provisions of the Note Agreement, as amended by this First 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 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 Amendment has been
duly executed and delivered by the Company, and the Note Agreement, as amended by this First
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).
(c) Upon the effectiveness of this First Amendment no Default or Event of Default shall exist
or be continuing.
Article 3.
Miscellaneous.
Miscellaneous.
Section 3.1. Ratification of the Note Agreement. Except as herein expressly amended, the Note
Agreement is in all respects ratified and confirmed. If and to the extent that any of the terms or
provisions of the Note Agreement are in conflict or inconsistent with any of the terms or
provisions of this First Amendment, this First Amendment shall govern.
Section 3.2. References to the Note Agreement. References in the Note Agreement or in any
Note, certificate, instrument or other document related to or delivered in connection with the
transactions contemplated by the Note Agreement shall be deemed to be references to the Note
Agreement as amended hereby and as further amended from time to time.
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Section 3.3. Successors and Assigns. This First 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 3.4. Requisite Approval; Expenses. This First 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 the Notes shall have
executed this First Amendment; (b) the Company shall have paid a fee to each Noteholder in an
amount equal to 5.0 basis points of the principal amount of Notes held by such Noteholder; (c) the
(i) Note Agreement dated as of May 14, 2003, (ii) Note Agreement dated as of November 15, 2004, and
(iii) Note Agreement dated as of October 13, 2005 each of which are by and among the Company, and
the institutional investors named therein shall each have been amended pursuant to amendments which
are substantively similar to this First Amendment, (d) the Bank Credit Agreement shall have been
amended pursuant to an amendment which is substantively similar to this First Amendment, (except
that such amendment to the Bank Credit Agreement need not include an amendment similar to the
addition set forth in Section 1.2 of this First Amendment), and (e) the Company shall have paid the
reasonable fees, expenses and disbursements of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP which are reflected in
statements of such counsel rendered on or prior to the date of this First Amendment.
Section 3.5. Counterparts. This First Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all together only one
agreement.
Section 3.6. Governing Law. This First 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.
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IN WITNESS WHEREOF, the Company has executed this First Amendment to Note Agreement as of the
day and year first above written.
| Allied Capital Corporation | ||||||
| By | ||||||
| Name: | ||||||
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In Witness Whereof, the Noteholders under the Note Agreement, as named on Schedule I,
have executed this First Amendment to Note Agreement as of the day and year first above written.
| [2006 Noteholders] | ||||||
| By | ||||||
| Name: | ||||||
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