Exhibit 10.4
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT
(this “ Agreement
”) is made and entered into as of the 28th day of August,
2009, by and among ALLIED CAPITAL CORPORATION, a Maryland
corporation (the “ Borrower ”), A.C.
CORPORATION, a Delaware corporation, ALLIED CAPITAL HOLDINGS LLC, a
Delaware limited liability company, ALLIED CAPITAL REIT, INC., a
Maryland corporation, ACGP I, LLC, a Delaware limited liability
company, ACKB LLC, a Delaware limited liability company, ACSM, LLC,
a Delaware limited liability company, AC FINANCE LLC, a Delaware
limited liability company, A.C. MANAGEMENT SERVICES, LLC, a
Delaware limited liability company, ALLIED CAPITAL PROPERTY LLC, a
Delaware limited liability company, AMP ADMIN LLC, a Delaware
limited liability company and ALLIED ASSET HOLDINGS, LLC, a
Delaware limited liability company (collectively, the “
Guarantors ” and together with the Borrower, the
“ Allied Entities ”).
WHEREAS, the Borrower has entered into a certain Amended,
Restated and Consolidated Note Agreement dated as of
August 28, 2009 (as the same may be amended, modified,
supplemented or restated from time to time, the “ Note
Agreement ”), with the noteholders party to such Note
Agreement;
WHEREAS , the Borrower has entered into that certain
Amended and Restated Credit Agreement dated as of August 28,
2009 (as the same may be amended, modified, supplemented or
restated from time to time, the “ Credit Agreement
”), with Bank of America, N.A., as a lender and as
administrative agent, and the other lenders party thereto from time
to time;
WHEREAS , pursuant to the terms of those certain
Continuing Guaranty Agreements, each dated as of
August , 2009 (the “ Guarantees
”), the Guarantors agreed to guarantee the payment and
performance of the Borrower’s obligations under the Note
Agreement and Credit Agreement, which Guarantees are secured by the
assets of each Guarantor (other than Allied Asset Holdings, LLC)
pursuant to that certain Pledge, Assignment and Security Agreement
dated as of August 28, 2009 (as the same may be amended,
modified, supplemented or restated from time to time, the “
Security Agreement ”);
WHEREAS, pursuant to and subject to the terms and
conditions of that certain Intercreditor and Collateral Agency
Agreement dated as of August 28, 2009 (as the same may be
amended, modified, supplemented or restated from time to time, the
“ Intercreditor Agreement ”), U.S. Bank,
National Association (the “ Collateral Agent ”)
was appointed as collateral agent to act as agent for the benefit
of the Secured Parties (as defined in the Intercreditor Agreement);
and
WHEREAS, in connection with the execution and delivery of
the Note Agreement, the Credit Agreement and the Guarantees, the
Borrower and the Guarantors desire to confirm their understanding
regarding each of their contribution rights and obligations in
connection with the satisfaction of obligations under the Credit
Agreement, the Note Agreement, the Guarantees and/or the Security
Agreement.
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions .
All capitalized terms used herein
and not otherwise defined herein shall have the meanings given such
terms in the Intercreditor Agreement.
2. Right of Contribution
. The Borrower and
Guarantors acknowledge and agree that, on and after the date
hereof, each Guarantor shall be entitled to contribution from the
Borrower and/or each other Guarantor to the extent that such
Guarantor repays, or its assets are applied to satisfy, any Senior
Secured Obligations in an amount in excess of the sum of (a)
such Guarantor’s actual borrowings under the Note Agreement
and/or the Credit Agreement, and (b) accrued interest,
attorneys’ fees and charges allocable to such borrowings. Any
Guarantor (herein the “ Demanding Party ”)
electing to seek contribution from all or any of the Borrower
and/or another Guarantor (herein the “
Contributing
