Exhibit 10.2 (e)
**FIFTH AMENDMENT AND CONSENT AGREEMENT**
     THIS FIFTH AMENDMENT AND CONSENT AGREEMENT (this “***Amendment***”) is entered into as of April 15,2005 (the “***Amendment Date***”), among **ALLIED CAPITAL CORPORATION,**a corporation organized under thelaws of the State of Maryland (“***Borrower***”), the Requisite Lenders under the Credit Agreement(hereinafter defined), and **BANK OF AMERICA, N.A.**, as Administrative Agent (“***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 thatcertain Third Amended and Restated Credit Agreement dated as of April 18, 2003, as amended by thatcertain First Amendment to Credit Agreement dated as of October 6, 2003, that certain SecondAmendment to Credit Agreement dated as of December 17, 2003, that certain Third Amendment to CreditAgreement dated as of May 28, 2004, and that certain Fourth Amendment to Credit Agreement dated asof March 29, 2005 (the “***Credit Agreement***”). Unless otherwise indicated herein, all terms used withtheir initial letter capitalized are used herein with their meaning as defined in the CreditAgreement; all Section references are to Sections in the Credit Agreement; and all Paragraphreferences are to Paragraphs in this Amendment.
     B. Borrower proposes to reorganize its Small Business Investment Company subsidiary, AlliedInvestment Corporation, currently a Maryland corporation (“***AIC***”), into Allied Investments, L.P., aDelaware limited partnership (“***New L.P.***”). In order to accomplish this proposed reorganization,Borrower will form Allied Investments, LLC, a new Delaware limited liability company, andwholly-owned subsidiary of Borrower (“***New GP***”) to act as the general partner of New L.P. New GPand Borrower will then form New L.P., with New GP holding a 1% general partnership interest andBorrower holding a 99% limited partnership interest in New L.P. AIC will then be merged into NewL.P., and the New L.P. shall be the surviving entity in the merger. New L.P. will then be awholly-owned subsidiary of Borrower, and will continue to be an “eligible portfolio investmentcompany” and, therefore, a qualifying asset, of Borrower for purposes of compliance with the BDCrequirements.
     C. AIC is currently seeking the written consent of the United States Small BusinessAdministration (“***SBA***”) to the proposed reorganization in order to allow for the transfer of AIC’sexisting Small Business Investment Company license to New L.P. by reason of the merger described inRecital B above.
     D. Subject to the receipt of the consent of Administrative Agent, Swing Line Lender, LC Issuerand Requisite Lenders, Borrower proposes that the New L.P. will not elect to be (i) a “businessdevelopment company” under the Investment Company Act of 1940 (“***BDC***”), or (ii) taxed as a“regulated investment company” under Subchapter M of the Internal Revenue Code of 1986 (“***RIC***”).
     E. In connection with the consummation of the transactions set forth in Recitals B, C, and Dabove (the “***Proposed Reorganization***”), Borrower is requesting that Administrative Agent Swing LineLender, LC Issuer and Requisite Lenders consent to the Proposed Reorganization and agree to certainamendments of ***Section 6.******1(t)*** and ***Section 7.11***of the Credit Agreement; and Administrative Agent,Swing Line Lender, LC Issuer and Requisite Lenders are willing to grant such consent and agree tosuch amendments subject to the terms, conditions, and representations set forth herein:
 

 

     NOW, THEREFORE, in consideration of these premises and other valuable consideration, thereceipt and adequacy of which are hereby acknowledged, the parties hereto agree, as follows:
***Paragraph 1.******Consent to Proposed Reorganization******.***On the Effective Date (hereinafterdefined), Requisite Lenders, Swing Line Lender, LC Issuer and Administrative Agent hereby consentto the Proposed Reorganization, notwithstanding any non-compliance with ***Section 6.1(t)***or ***Section7.11***of the existing Credit Agreement, which are being amended herein.
***Paragraph 2.******Amendments******.***In connection with the Proposed Reorganization, Borrower hasrequested that, on the Effective Date of the Amendment (as defined herein), Administrative Agent,Swing Line Lender, LC Issuer and Requisite Lenders agree to amend the Credit Agreement to (i)delete the requirement under ***Section 6.1(t)***that AIC qualify as a RIC, and (ii) delete therequirement under ***Section 7.11***that AIC at all times maintain its status as a RIC, and as a BDC.Accordingly, Administrative Agent, Swing Line Lender, LC Issuer and Requisite Lenders agree toamend the Credit Agreement as follows:
**2.1*****Section 6.******1(t)*** shall be amended to delete the requirement that AIC qualify as a RIC, andas amended shall read as follows:
“(t) **RIC Status****.**Borrower qualifies as a RIC.”
***2.2 Section 7.11***shall be amended to delete the requirement that AIC at all timesmaintain itsstatus as a RIC, and as a BDC, and as amended shall read as follows:
“**7.11****Status of RIC and BDC****.**At all times maintain its status as a RICunder the Internal Revenue Code, and as a *“business development company”*under theInvestment Company Act.”
***Paragraph 3.******Conditions Precedent******.***Notwithstanding any contrary provision, this Amendmentshall be effective on the first Business Day upon which all of the following conditions precedenthave been satisfied (the “***Effective Date***”):
(a) Borrower shall have delivered a certificate signed by an authorized officer, in form andsubstance reasonably satisfactory to Administrative Agent, that the representations and warrantiescontained in ***Paragraph 5***below are true and correct;
(b) No Default or Event of Default exists under the Loan Documents both before and after givingeffect to the Proposed Reorganization;
(c) Administrative Agent shall have received counterparts of this Amendment executed by Borrower,Swing Line Lender, LC Issuer and Requisite Lenders, and no Lender has withdrawn its consentthereto;
(d) Borrower shall have delivered to Administrative Agent evidence reasonably satisfactory toAdministrative Agent confirming that (i) Borrower has all right and power, and has taken allnecessary actions required under its organizational documents to form New GP and New L.P. and tobecome the limited partner of New L.P., and (ii) New GP and New L.P. have been duly formed, arevalidly existing and in good standing under the jurisdictions of their formation;
(e) Borrower shall have delivered to Administrative Agent evidence reasonably satisfactory toAdministrative Agent that (i) AIC and New L.P. have the right and power, and (ii) have taken all
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necessary actions required under their respective organizational documents, to authorize theProposed Reorganization, including, but not limited to, the merger of AIC into New L.P.;
(f) Borrower shall have delivered to Administrative Agent (i) a copy of the executed mergeragreement (and any amendments thereto), and (ii) a certified copy the Certificate of Merger asfiled with the Secretary of State of Delaware, evidencing the merger of AIC into New L.P.; and
(g) Borrower shall have delivered to Administrative Agent a copy of the SBA’s consent (the“***Consent***”) to the Proposed Reorganization, and evidence that all conditions set forth in suchConsent, if any, to the transfer of the SBA’s Small Business Investment Company license from AIC toNew L.P. with respect to the Proposed Reorganization have been satisfied.
***Paragraph 4.******Acknowledgment and Ratification*****.**As a material inducement to AdministrativeAgent, Swing Line Lender, LC Issuer and the Requisite Lenders to execute and deliver thisAmendment, Borrower (i) consents to the agreements in this Amendment and (ii) agrees andacknowledges that the execution, delivery, and performance of this Amendment shall in no wayrelease, diminish, impair, reduce, or otherwise affect the obligations of Borrower under the CreditAgreement, or other Loan Documents, as amended hereby.
***Paragraph 5.******Representations and Warranties*****.**As a material inducement for AdministrativeAgent, Swing Line Lender, LC Issuer and Requisite Lenders to consent to the Proposed Reorganizationand enter into this Amendment, Borrower hereby represents and warrants to such parties (with theknowledge and intent that Swing Line Lender, LC Issuer, Requisite Lenders and Administrative Agentare relying upon the same in consenting to the Proposed Reorganization and consenting to thisAmendment) that as of the Effective Date, and after giving effect to the transactions contemplatedby this Amendment: (a) all representations and warranties in the Credit Agreement and in all otherLoan Documents are true and correct in all material respects, as though made on the date hereof,*except*to the extent that (i) any of them speak to a different specific date or (ii) the facts onwhich any of them were based have been changed by transactions permitted by the Loan Documents; (b)no Default or Event of Default exists under the Loan Documents; (c) this Amendment has been dulyauthorized and approved by all necessary organizational action and requires the consent of no otherPerson, and is binding and enforceable against Borrower in accordance with its terms; (d) theexecution, delivery and performance of this Amendment in accordance with its terms, does not andwill not, by the passage of time, the giving of notice, or otherwise: (i) require any GovernmentalApproval, *other than*such as have been obtained and are in full force and effect, or violate anyApplicable Law 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 theorganizational documents of any Subsidiary, or any indenture, agreement, or other instrument towhich Borrower or any Subsidiary is a party or by which it or any of its respective properties maybe bound; or (iii) result in or require the creation or imposition of any Lien upon or with respectto any property now owned or hereafter acquired by Borrower or any Subsidiary; (e) the descriptionof the Proposed Reorganization in Recital B accurately reflects the reorganization as effectedconcurrently with the Effective Date, (f) New L.P. is a wholly-owned subsidiary of Borrower, andwill continue to be an “eligible portfolio investment company” and therefore, a qualifying asset,of Borrower for purposes of compliance with the BDC requirements; (g) the Proposed Reorganizationhas been conducted in the ordinary course of business of, and pursuant to the reasonablerequirements of, the business of Borrower and its Subsidiaries party thereto and upon fair andreasonable terms which are no less favorable to Borrower or any such Subsidiary that would beobtained in a comparable arm’s length transaction with a Person that is not an Affiliate; and (h)the Borrower is in pro forma compliance with ***Sections 9.1(a)***and ***(d)***of the Credit Agreement.
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***Paragraph 6.******Costs and Expenses*****.**Borrower agrees to pay promptly the reasonable fees andexpenses of counsel to Administrative Agent for services rendered in connection with thepreparation, negotiation, reproduction, execution, and delivery of this Amendment.
***Paragraph 7.******Miscellaneous*****.**
     **7.1**This Amendment is a *“Loan Document”*referred to in the Credit Agreement, and theprovisions of ***Section 12***of the Credit Agreement are incorporated herein by reference. Unlessstated otherwise (a) the singular number includes the plural and *vice versa*and words of any genderinclude each other gender, in each case, as appropriate, (b) headings and captions may not beconstrued in interpreting provisions, (c) this Amendment must be construed, and its performanceenforced, under New York law, and (d) this Amendment may be executed in any number of counterpartswith the same effect as if all signatories had signed the same document, and all of thosecounterparts must be construed together to constitute the same document.
     **7.2**The Loan Documents shall remain unchanged and in full force and effect, except as providedin this Amendment, and are hereby ratified and confirmed. The execution, delivery, andeffectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiverof any rights of Lenders under any Loan Document, nor constitute a waiver under any of the LoanDocuments.
***Paragraph 8.******Entirety*****.****this written Amendment represents the final agreement among theparties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oralagreement of the parties. There are no unwritten oral agreements among the parties.**
***Paragraph 9.******Parties*****.**This Amendment binds and inures to Borrower, Administrative Agent,Swing Line Lender, LC Issuer, Lenders, and their respective successors and assigns.
     IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple counterpartson the date stated on the signature pages hereto, but effective as of Effective Date.
***Remainder of Page Intentionally Blank.***