Reference Is Hereby Made To That Certain Note Agreement - ALLIED CAPITAL CORP - 5-15-2003 by ALD-Agreements

VIEWS: 4 PAGES: 22

									Exhibit 10.34 ALLIED CAPITAL CORPORATION 1919 PENNSYLVANIA AVENUE, N.W. WASHINGTON, D.C. 20006-2415 AMENDMENT Dated as of April 30, 2003 Re: $102,000,000 8.51% Senior Notes, due November 15, 2004 To the holders of the Notes named in Schedule I attached hereto Ladies and Gentlemen: Reference is hereby made to that certain Note Agreement dated as of November 15, 1999 (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 8.51% Senior Notes due November 15, 2004 of the Company in the aggregate principal amount of $102,000,000 (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 5.9 (Limitation on Liens) of the Note Agreement. Section 5.9(i) of the Note Agreement is hereby amended by deleting clause (iii) set forth therein in its entirety and by changing the reference to clause "(iv)" set forth therein to clause "(iii)."

3. 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 & Poor's Rating Services or Fitch Ratings, or a rating of A3 or higher by Moody's 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 such receivable, in which case, the amount of such receivable that shall apply as an offset in the calculation of the total amount of Debt shall be limited to the fair market value of such collateral." (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)." 4. 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. 5. 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. 6. 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. 7. 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. 8. Requisite Approval; Expenses. This Amendment shall not be effective until (a) the Company and the Holders of 66 2/3% 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 Chapman and Cutler which are reflected in statements of such counsel rendered on or prior to the effective 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. 9. Governing Law. This Amendment shall be governed by and construed in accordance with New York law, including all matters of construction, validity and performance. 10. 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/ Kelly A. Anderson ------------------------------------Name: Kelly A. Anderson Title: Executive Vice President & Treasurer

Allied Capital Corporation Amendment to November 1999 Note Agreement ALLSTATE LIFE INSURANCE COMPANY
By /s/ Jerry D. Zinkula ------------------------------------------Name: Jerry D. Zinkula /s/ Patricia W. Wilson ------------------------------------------Name: Patricia W. Wilson Authorized Signatories

By

Allied Capital Corporation

Amendment to November 1999 Note Agreement CONNECTICUT GENERAL INSURANCE CORPORATION By: CIGNA Investments, Inc. By: /s/ Debra J. Height ------------------------------------Name: Debra J. Height Title: Managing Director LIFE INSURANCE COMPANY OF NORTH AMERICA By: CIGNA Investments, Inc. By: /s/ Debra J. Height ------------------------------------Name: Debra J. Height Title: Managing Director

Allied Capital Corporation

Amendment to November 1999 Note Agreement

GEFA SPECIAL PURPOSE SIX, LLC BY: GE ASSET MANAGEMENT, ITS PORTFOLIO ADVISOR

By: /s/ John Endres ------------------------------------Name: John Endres Title: Vice President-Private Placements

Allied Capital Corporation

Amendment to November 1999 Note Agreement

FEDERAL HOME LIFE INSURANCE COMPANY

BY: GE ASSET MANAGEMENT, ITS INVESTMENT ADVISOR By: /s/ John Endres ------------------------------------Name: John Endres Title: Vice President-Private Placements

Allied Capital Corporation

Amendment to November 1999 Note Agreement

FEDERAL HOME LIFE INSURANCE COMPANY BY: GE ASSET MANAGEMENT, ITS INVESTMENT ADVISOR By: /s/ John Endres ------------------------------------Name: John Endres Title: Vice President-Private Placements

Allied Capital Corporation

Amendment to November 1999 Note Agreement GEFA SPECIAL PURPOSE SIX, LLC BY: GE ASSET MANAGEMENT, ITS PORTFOLIO MANAGER By: /s/ John Endres ------------------------------------Name: John Endres Title: Vice President-Private Placements

Allied Capital Corporation

Amendment to November 1999 Note Agreement THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA By: /s/ Thomas M. Donohue ------------------------------------Name: Thomas M. Donohue Title: Managing Director

THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC. By: /s/ Thomas M. Donohue ------------------------------------Name: Thomas M. Donohue Title: Managing Director

Allied Capital Corporation

Amendment to November 1999 Note Agreement

Accepted as of the date first written above: MINNESOTA LIFE INSURANCE COMPANY By: Advantus Capital Management, Inc.
By: /s/ John Leiviska ------------------------------------Name: John Leiviska Title: Vice President

FARM BUREAU LIFE INSURANCE COMPANY OF MICHIGAN By: Advantus Capital Management, Inc.
By: /s/ John Leiviska ------------------------------------Name: John Leiviska Title: Vice President

MTL INSURANCE COMPANY By: Advantus Capital Management, Inc.
By: /s/ John Leiviska

------------------------------------Name: John Leiviska Title: Vice President

Allied Capital Corporation

Amendment to November 1999 Note Agreement

NATIONWIDE LIFE INSURANCE COMPANY By: /s/ Thomas S. Leggett ------------------------------------Name: Thomas S. Leggett Title: Associate Vice President Public Bonds

Allied Capital Corporation

Amendment to November 1999 Note Agreement

KEYPORT LIFE INSURANCE COMPANY By: /s/ John N. Whelihan ------------------------------------Name: John N. Whelihan Title: Vice President

By: /s/ Richard Gordon ------------------------------------Name: Richard Gordon Title: Vice President

Allied Capital Corporation Agreement

Amendment to November 1999 Note

MERRILL LYNCH INTERNATIONAL By: John Hancock Life Insurance Company, as Manager under that certain Bond Purchase and Asset Management Agreement dated as of June 22, 1999

By: /s/ ------------------------------------Name: Title:

JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana ------------------------------------Name: Anthony J. Della Piana Title: Managing Director

MELLON BANK, N.A., solely in its capacity as Trustee for the Bell Atlantic Master Trust (as directed by John Hancock Life Insurance Company), and not in its individual capacity
By: /s/

------------------------------------Name: Title:

JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana ------------------------------------Name: Anthony J. Della Piana Title: Authorized Signatory

INVESTORS PARTNER LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana ------------------------------------Name: Anthony J. Della Piana Title: Authorized Signatory

Exhibit 10.35 ALLIED CAPITAL CORPORATION 1919 PENNSYLVANIA AVENUE, N.W. WASHINGTON, D.C. 20006-2415 AMENDMENT Dated as of April 30, 2003 Re: $115,000,000 8.54% Senior Notes, Series A, due October 15, 2005 and $10,000,000 Floating Rate Senior Notes, Series B, due October 15, 2005 To the holders 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, 2000 (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 8.54% Senior Notes, Series A, due October 15, 2005 of the Company in the aggregate principal amount of $115,000,000 (the "Series A Notes") and Floating Rate Senior Notes, Series B, due October 15, 2005 of the Company in the aggregate principal amount of $10,000,000 (the "Series B Notes" and together with the Series A Notes, 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 5.9 (Limitation on Liens) of the Note Agreement. Section 5.9(i) of the Note Agreement is hereby amended by deleting clause (iii) set forth therein in its entirety and by changing the reference to clause "(iv)" set forth therein to clause "(iii)."

3. 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 FitchRatings, or a rating of A3 or higher by Moody's 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 such receivable, in which case, the amount of such receivable that shall apply as an offset in the calculation of the total amount of Debt shall be limited to the fair market value of such collateral." (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

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)." 4. 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. 5. 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. 6. 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. 7. 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. 8. 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 Chapman and Cutler 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. 9. Governing Law. This Amendment shall be governed by and construed in accordance with New York law, including all matters of construction, validity and performance. 10. 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/ Kelly A. Anderson ------------------------------------------Name: Kelly A. Anderson Title: Executive Vice President & Treasurer

Allied Capital Corporation Amendment to 2000 Note Agreement ALLSTATE LIFE INSURANCE COMPANY
By /s/ Jerry D. Zinkula ------------------------------------------Name: Jerry D. Zinkula /s/ Patricia W. Wilson ------------------------------------------Name: Patricia W. Wilson Authorized Signatories

By

Allied Capital Corporation

Amendment to 2000 Note Agreement

GE EDISON LIFE INSURANCE COMPANY By: GE ASSET MANAGEMENT, ITS INVESTMENT ADVISOR

By: /s/ John Endres ----------------------------------------Name: John Endres Title: Vice President-Private P1acements

Allied Capital Corporation

Amendment to 2000 Note Agreement

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

By: /s/ Thomas M. Donohue ----------------------------------------Name: Thomas M. Donohue Title: Managing Director

Allied Capital Corporation Amendment to 2000 Note Agreement Accepted as of the date first written above JOHN HANCOCK LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana

By: /s/ Anthony J. Della Piana ----------------------------------------Name: Anthony J. Della Piana Its: Managing Director

JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana ----------------------------------------Name: Anthony J. Della Piana Its: Authorized Signatory

INVESTORS PARTNER LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana ----------------------------------------Name: Anthony J. Della Piana Its: Authorized Signatory

MELLON BANK, N.A., solely in its capacity as Trustee for the Long-Term Investment Trust (as directed by John Hancock Life Insurance Company), and not in its individual capacity By: Name: Its:

Allied Capital Corporation

Amendment to 2000 Note Agreement

MINNESOTA LIFE INSURANCE COMPANY By: Advantus Capital Management, Inc.

By: /s/ John Leiviska ----------------------------------------Name: John Leiviska Its: Vice President

AMERICAN FIDELITY ASSURANCE COMPANY By: Advantus Capital Management, Inc.
By: /s/ John Leiviska ----------------------------------------Name: John Leiviska Its: Vice President

GREAT WESTERN INSURANCE COMPANY By: Advantus Capital Management, Inc.
By: /s/ John Leiviska ----------------------------------------Name: John Leiviska Its: Vice President

NATIONAL TRAVELERS LIFE COMPANY By: Advantus Capital Management, Inc.
By: /s/ John Leiviska ----------------------------------------Name: John Leiviska Its: Vice President

AMERICAN REPUBLIC INSURANCE COMPANY By: Advantus Capital Management, Inc.
By: /s/ John Leiviska ----------------------------------------Name: John Leiviska Its: Vice President

Allied Capital Corporation

Amendment to 2000 Note Agreement

NATIONWIDE LIFE INSURANCE COMPANY

By: /s/ Thomas S. Leggett ----------------------------------------Name: Thomas S. Leggett Its: Associate Vice President Public Bonds

Allied Capital Corporation

Amendment to 2000 Note Agreement

THE OHIO NATIONAL LIFE INSURANCE COMPANY

By: /s/ Jed R. Martin ----------------------------------------Name: Jed R. Martin Its: Investment Vice President, Private Placements

Allied Capital Corporation

Amendment to 2000 Note Agreement

PACIFIC LIFE INSURANCE COMPANY
By: /s/ David C. Patch ----------------------------------------Name: David C. Patch Its: Assistant Vice President

By: /s/ Cathy Schwartz ----------------------------------------Name: Cathy Schwartz Its: Assistant Secretary

Allied Capital Corporation Amendment to 2000 Note Agreement Accepted as of the date first written above TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ John S. Goodreds ----------------------------------------Name: John S. Goodreds Its: Director

TIAA-CREF LIFE INSURANCE COMPANY By: Teacher Insurance and Annuity Association of America, as Asset Manager
By: /s/ John S. Goodreds ----------------------------------------Name: John S. Goodreds Its: Director

Allied Capital Corporation

Amendment to 2000 Note Agreement

SUN LIFE ASSURANCE COMPANY OF CANADA

By: /s/ John N. Whelihan ----------------------------------------Name: John N. Whelihan Its: Vice President, U.S. Private Placements - For President

By: /s/ Richard Gordon ----------------------------------------Name: Richard Gordon Its: Vice President, U.S. Public Bonds For Secretary

SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)

By: /s/ John N. Whelihan ----------------------------------------Name: John N. Whelihan Its: Vice President, U.S. Private Placements - For President

By: /s/ Richard Gordon ----------------------------------------Name: Richard Gordon Its: Vice President, U.S. Public Bonds For Secretary

SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK

By: /s/ John N. Whelihan ----------------------------------------Name: John N. Whelihan Its: Vice President, U.S. Private Placements - For President

By: /s/ Richard Gordon ----------------------------------------Name: Richard Gordon Its: Vice President, U.S. Public Bonds For Secretary

Exhibit 10.36 EXECUTED COPY ALLIED CAPITAL CORPORATION 1919 PENNSYLVANIA AVENUE, N.W. WASHINGTON, D.C. 20006-2415 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 Moody's 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 Chapman and Cutler 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/ Kelly A. Anderson ------------------------------------------Name: Kelly A. Anderson 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/ Carl E. Mabry ---------------------------------------Name: Carl E. Mabry 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/ Carl E. Mabry ---------------------------------------Name: Carl E. Mabry Title: Vice President

Accepted as of the date first written above: FEDERATED MUTUAL INSURANCE COMPANY
By /s/ Mark A. Hood ----------------------------------------Name: Mark A. Hood

Allied Capital Corporation

Amendment to 2001 Note Agreement

JOHN HANCOCK LIFE INSURANCE COMPANY

By: /s/ Anthony J. Della Piana -------------------------------Name: Anthony J. Della Piana Title: Managing Director

JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana -------------------------------Name: Anthony J. Della Piana Title: Authorized Signatory

INVESTORS PARTNER LIFE INSURANCE COMPANY
By: /s/ Anthony J. Della Piana -------------------------------Name: Anthony J. Della Piana Title: Authorized Signatory

Allied Capital Corporation

Amendment to 2001 Note Agreement

NATIONAL LIFE AND ANNUITY INSURANCE COMPANY

By: /s/ Thomas S. Leggett -------------------------------Name: Thomas S. Leggett Title: Associate Vice President Public Bonds

NATIONWIDE LIFE INSURANCE COMPANY

By: /s/ Thomas S. Leggett -------------------------------Name: Thomas S. Leggett 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/ John N. Whelihan ----------------------------------------------Name: John N. Whelihan Title: Vice President, U.S. Private Placements - For President By /s/ Richard Gordon ----------------------------------------------Name: Richard Gordon 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/ Christopher P. Lyons ---------------------------------------Name: Christopher P. Lyons Title: Vice President

Allied Capital Corporation

Amendment to 2001 Note Agreement TRUSTMARK LIFE INSURANCE COMPANY By: Advantus Capital Management, Inc.

By: /s/ John Leiviska ----------------------------------------Name: JOHN LEVISKA Title: VICE PRESIDENT MINNESOTA LIFE INSURANCECOMPANY By: Advantus Capital Management, Inc. By: /s/ John Leiviska ----------------------------------------Name: JOHN LEVISKA Title: VICE PRESIDENT

Accepted as of the date first written above: PACIFIC LIFE INSURANCE COMPANY
By /s/ David C. Patch --------------------------------------------Name: David C. Patch Title: Assistant Vice President By /s/ Cathy Schwartz --------------------------------------------Name: Cathy Schwartz Title: Assistant Secretary

Allied Capital Corporation

Amendment to 2001 Note Agreement

SECURITY FINANCIAL LIFE INSURANCE CO. By /s/ Kevin W. Hammond ------------------------------------------Name: Kevin W. Hammond Title: Vice President Chief Investment Officer

Allied Capital Corporation

Amendment to 2001 Note Agreement

WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY By /s/ Michael J. Shay ------------------------------------------Name: Michael J. Shay

Name: Michael J. Shay Title: Securities Department Manager

   Exhibit 15  The Board of Directors and Shareholders Allied Capital Corporation and Subsidiaries: Re: Registration Statement Nos. 333-45525, 333-13584, and 333-101849 Ladies and Gentlemen: With respect to the subject registration statements, we acknowledge our awareness of the use therein of our report dated April 21, 2003 (except as to Note 4 which is as of May 14, 2003) related to our review of interim financial information.  Pursuant to Rule 436 under the Securities Act of 1933 (the Act), such report is not considered part of a registration statement  prepared or certified by an accountant, or a report prepared or certified by an accountant within the meaning of Sections 7 and  11 of the Act. /s/ KPMG LLP Washington, D.C. May 15, 2003 

Exhibit 99.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report on Form 10-Q for the quarter ended March 31, 2003 (the "Report") of Allied Capital Corporation (the "Registrant"), as filed with the Securities and Exchange Commission on the date hereof, I, William L. Walton, the Chief Executive Officer of the Registrant, certify, to the best of my knowledge, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
/s/ William L. Walton --------------------------Name: William L. Walton Date: May 15, 2003

This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Registrant for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. A signed original of this written statement required by Section 906 has been provided to the Registrant and will be retained by the Registrant and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 99.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. 1350,

   Exhibit 15  The Board of Directors and Shareholders Allied Capital Corporation and Subsidiaries: Re: Registration Statement Nos. 333-45525, 333-13584, and 333-101849 Ladies and Gentlemen: With respect to the subject registration statements, we acknowledge our awareness of the use therein of our report dated April 21, 2003 (except as to Note 4 which is as of May 14, 2003) related to our review of interim financial information.  Pursuant to Rule 436 under the Securities Act of 1933 (the Act), such report is not considered part of a registration statement  prepared or certified by an accountant, or a report prepared or certified by an accountant within the meaning of Sections 7 and  11 of the Act. /s/ KPMG LLP Washington, D.C. May 15, 2003 

Exhibit 99.1 CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report on Form 10-Q for the quarter ended March 31, 2003 (the "Report") of Allied Capital Corporation (the "Registrant"), as filed with the Securities and Exchange Commission on the date hereof, I, William L. Walton, the Chief Executive Officer of the Registrant, certify, to the best of my knowledge, that: (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
/s/ William L. Walton --------------------------Name: William L. Walton Date: May 15, 2003

This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Registrant for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. A signed original of this written statement required by Section 906 has been provided to the Registrant and will be retained by the Registrant and furnished to the Securities and Exchange Commission or its staff upon request.

Exhibit 99.2 CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Quarterly Report on Form 10-Q for the quarter ended March 31, 2003 (the "Report") of Allied Capital Corporation (the "Registrant"), as filed with the Securities and Exchange Commission on the date hereof, I, Penni F. Roll, the Chief Financial Officer of the Registrant, certify, to the best of my knowledge, that:

(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.
/s/ Penni F. Roll --------------------------Name: Penni F. Roll Date: May 15, 2003

This certification accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not, except to the extent required by the Sarbanes-Oxley Act of 2002, be deemed filed by the Registrant for purposes of Section 18 of the Securities Exchange Act of 1934, as amended. A signed original of this written statement required by Section 906 has been provided to the Registrant and will be retained by the Registrant and furnished to the Securities and Exchange Commission or its staff upon request.


								
To top