exv10w2wa



 






Exhibit 10.2(a)



FIRST AMENDMENT TO CREDIT AGREEMENT



     THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the “Amendment”) is entered into as of November 4,
2005, by and among ALLIED CAPITAL CORPORATION, a corporation organized under the laws of the State
of Maryland (“Borrower”), SUNTRUST BANK (“SunTrust”), and BANK OF AMERICA, N.A., as Administrative
Agent (in such capacity, the “Administrative Agent”) for the Lenders under the Credit Agreement
(hereinafter defined).



R E C I T A L S




     A. Borrower, Administrative Agent, and certain other Agents and Lenders are parties to that
certain Credit Agreement dated as of September 30, 2005 (the “Credit Agreement”). Unless otherwise
indicated herein, all terms used with their initial letter capitalized are used herein with their
meaning as defined in the Credit Agreement; all Section references are to Sections in the Credit
Agreement; and all Paragraph references are to Paragraphs in this Amendment.



     B. Pursuant to and in accordance with Section 2.13, Borrower has requested an increase in the
aggregate Commitments under the Credit Agreement by requesting SunTrust to become a Lender with a
Commitment of $50,000,000 (the “Supplemental Commitment”).



     C. Subject to and upon the following terms and conditions, SunTrust has agreed to the
Supplemental Commitment, and Administrative Agent has agreed to the addition of SunTrust as a
Lender.



     D. Accordingly, in accordance with the requirements of Sections 2.13 and 12.5 and subject to
and upon the following terms and conditions, Borrower, Administrative Agent, and SunTrust are
entering into this Amendment (i) to add SunTrust as a “Lender” with a Commitment of $50,000,000,
pursuant to Section 2.13 of the Credit Agreement, and (ii) to amend Schedule 2 to the Credit
Agreement to reflect the Supplemental Commitment.



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Borrower, SunTrust, and Administrative
Agent agree, as follows:


PARAGRAPH 1 . AMENDMENTS TO CREDIT AGREEMENT.



1.1 Supplemental Commitment and Consent to New Lender.




     (a) Pursuant to Section 2.13, effective on and after the Amendment Effective Date (hereinafter
defined), (i) SunTrust agrees to be a Lender having the Commitment set forth opposite its name on
Annex A hereto. Accordingly, each Lender’s Commitment Percentage (and to the extent any Letters of
Credit are issued and outstanding on the Amendment Effective Date, all participations by Lenders in
the LC Subfacility) shall be recalculated to reflect the new proportionate share of the revised
total Commitments as stated on Annex A. As of the Amendment Effective Date, SunTrust shall be
deemed irrevocably and unconditionally to have purchased, without recourse or warranty, an
undivided interest and participation in such Letters of Credit in an amount equal to its Commitment
Percentage as stated on Annex A.



     (b) Borrower shall prepay all Revolving Loans (if any) outstanding on the Amendment Effective
Date (and pay any additional amounts required to be paid to any Lender pursuant to Section 4.5,
unless waived by such Lender) to the extent necessary to keep the Revolving Loans ratable with the



					
	 
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revised Commitment Percentages arising from the non-ratable increase in the aggregate
Commitments pursuant to this Paragraph 1.1. If any Revolving Loans are prepaid on the Amendment
Effective Date as required hereby, then, notwithstanding anything to the contrary set forth in the
definition of “Interest Period,” Eurodollar Loans made during the thirty day period immediately
following the Amendment Effective Date may have durations commencing on the date such Eurodollar
Loan is made and ending on the date 7 or 14 days thereafter.




     (c) On the Amendment Effective Date, SunTrust shall be entitled to the rights and benefits and
subject to the duties of a Lender under the Loan Documents.



     (d) By execution hereof, Administrative Agent and Borrower consent to the addition of SunTrust
as a “Lender” under the Loan Documents.


1.2 Definitions and Terms. On and after the Amendment Effective Date (hereinafter
defined), (i) each reference to “Lender” or “Lenders” in the Credit Agreement and the related Loan
Documents shall include SunTrust, and (ii) each reference to Schedule 2 shall be to the Revised
Schedule 2 as set forth on Annex A, as the same may hereafter be amended or modified in accordance
with the Loan Documents.



1.3 Confirmations and Agreements of SunTrust. SunTrust (a) confirms that it has received a
copy of the Credit Agreement, together with copies of the consolidated balance sheets of Borrower
and its Consolidated Subsidiaries most recently delivered under the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Amendment, including, without limitation, the transaction contemplated in this
Paragraph 1; and (b) agrees that it will, independently and without reliance upon the
Administrative Agent or any Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement. Furthermore, SunTrust (i) appoints and authorizes Administrative Agent
to take such action as “Administrative Agent” on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental thereto; (ii) agrees
that it will perform in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (iii) shall deliver to
Administrative Agent any U.S. Internal Revenue Service or other forms required under Section 4.6 of
the Credit Agreement.



1.5 Noteless Transaction. If requested by SunTrust pursuant to Section 2.11(b), Borrower
shall execute and deliver to SunTrust a Revolving Note reflecting the Commitment of SunTrust, after
giving effect to the Supplemental Commitment contemplated and effected in accordance with Paragraph
1.



PARAGRAPH 2. AMENDMENT EFFECTIVE DATE. This Amendment shall be binding upon the
Administrative Agent, Borrower, SunTrust, and each other Lender on the last day (the “Amendment
Effective Date”) upon which (a) counterparts of this Amendment shall have been executed and
delivered to Administrative Agent by Borrower, Administrative Agent, and SunTrust, or when
Administrative Agent shall have received, telecopied, telexed, or other evidence satisfactory to it
that all such parties have executed and are delivering to Administrative Agent counterparts
thereof; (b) the Revolving Note (if previously requested by SunTrust) is executed by Borrower and
delivered in accordance with Paragraph 1.5 hereof; (c) Borrower shall have paid to Administrative
Agent (for distribution to SunTrust) the upfront fee payable to SunTrust in the amount of
$150,000.00; (d) Borrower shall have repaid all outstanding Revolving Loans, to the extent any such
Revolving Loans are outstanding (without giving effect to any Revolving Loans made after the
effectiveness of this Amendment); (e) Borrower shall have delivered to Administrative Agent copies
(certified by the Secretary or Assistant Secretary of Borrower) of all corporate action taken by
Borrower to authorize the execution, delivery, and




					
	 
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performance of this Amendment, and any related Debt incurrence; and (f) Borrower shall have
delivered to Administrative Agent an opinion of Sutherland Asbill & Brennan LLP, counsel to
Borrower, addressed to Administrative Agent and Lenders, in form and substance reasonably
acceptable to Administrative Agent.



PARAGRAPH 3. REPRESENTATIONS AND WARRANTIES. As a material inducement to SunTrust
and Administrative Agent to execute and deliver this Amendment, Borrower hereby represents and
warrants to SunTrust and Administrative Agent (with the knowledge and intent that such parties are
relying upon the same in entering into this Amendment) the following: (a) the representations and
warranties in the Credit Agreement and in all other Loan Documents are true and correct on the date
hereof in all material respects, as though made on the date hereof, except to the extent that such
representations and warranties expressly relate solely to an earlier date (in which case such
representations and warranties shall have been true and accurate as of such earlier date); (b) no
Default or Event of Default exists under the Loan Documents or will exist after giving effect to
the transactions contemplated by this Amendment; (c) Borrower has the right and power, and has
taken all necessary action to authorize it to borrow under the Credit Agreement, as further amended
by this Amendment (the “Amended Facility”); (d) Borrower has the right and power, and has taken all
necessary action to authorize it to execute, deliver, and perform this Amendment in accordance with
its terms and to consummate the transaction contemplated hereby; (e) this Amendment has been duly
executed and delivered by the duly authorized officers of Borrower, and is a legal, valid, and
binding obligation of Borrower, enforceable against it in accordance with its terms; and (f) the
execution, delivery and performance of this Amendment in accordance with its terms, and the
borrowings under the Amended Facility do not and will not, by the passage of time, the giving of
notice, or otherwise: (i) require any Governmental Approval, other than such as have been obtained
and are in full force and effect, or violate any Applicable Law (including all Environmental Laws)
relating to Borrower or any Subsidiary; (ii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation or the bylaws of Borrower or the organizational
documents of any Subsidiary, or any indenture, agreement, or other instrument to which Borrower or
any Subsidiary is a party or by which it or any of its respective properties may be bound; or (iii)
result in or require the creation or imposition of any Lien upon or with respect to any property
now owned or hereafter acquired by Borrower or any Subsidiary.



PARAGRAPH 4. MISCELLANEOUS.



4.1 Effect on Loan Documents. The Credit Agreement and all related Loan Documents shall
remain unchanged and in full force and effect, except as provided in this Amendment, and are hereby
ratified and confirmed. On and after the Amendment Effective Date, all references to the “Credit
Agreement” or the “Agreement” shall be to the Credit Agreement as herein amended. The execution,
delivery, and effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any rights of the Lenders under the Credit Agreement or any Loan Documents,
nor constitute a waiver under the Credit Agreement or any other provision of the Loan Documents.



4.2 Reference to Miscellaneous Provisions. This Amendment and the other documents
delivered pursuant to this Amendment are part of the Loan Documents referred to in the Credit
Agreement, and the provisions relating to Loan Documents set forth in Section 12 are incorporated
herein by reference the same as if set forth herein verbatim.



4.3 Costs and Expenses. Borrower agrees to pay promptly the reasonable fees and expenses
of counsel to Administrative Agent for services rendered in connection with the preparation,
negotiation, reproduction, execution, and delivery of this Amendment.




					
	 
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4.4 Counterparts. This Amendment may be executed in a number of identical counterparts,
each of which shall be deemed an original for all purposes, and all of which constitute,
collectively, one agreement; but, in making proof of this Amendment, it shall not be necessary to
produce or account for more than one such counterpart. It is not necessary that all parties
execute the same counterpart so long as identical counterparts are executed by Borrower,
Administrative Agent, and SunTrust.



4.5 Entirety. this written agreement represents the final agreement among the parties
and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreement of
the parties. There are no unwritten oral agreements among the parties.



4.6 Parties. This Amendment binds and inures to Borrower, Administrative Agent, SunTrust,
the other Lenders, and their respective successors and assigns.




     IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple counterparts
as of the respective dates indicated on each signature page hereof, but effective as of the
Amendment Effective Date.



Remainder of this page intentionally blank.

Signature page to follow.




					
	 
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ALLIED CAPITAL CORPORATION, as Borrower




By /s/ Penni F. Roll

      Name: Penni F. Roll

      Title: Chief Financial Officer




					
	 
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	 	Annex A First Amendment to Credit Agreement






 









 






BANK OF AMERICA, N.A., as Administrative Agent

and a Lender




By /s/ Shelly K. Harper

      Name: Shelly K. Harper

      Title: Senior Vice President




					
	 
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	 	Annex A First Amendment to Credit Agreement






 









 






SUNTRUST BANK, as a Lender




By: /s/ Robert S. Ashcom

      Name: Robert S. Ashcom

      Title: Director




					
	 
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	 	Annex A First Amendment to Credit Agreement