exv10w40






EXHIBIT 10.40




 

 








Allied Capital Corporation




First Omnibus Waiver and Amendment to the Note Agreements




Dated as of July 25, 2008




Re:




Note Agreement dated as of May 14, 2003

$147,000,000 6.05% Senior Notes, Series B, due May 14, 2010

and

Note Agreement dated as of November 15, 2004

$252,500,000 5.53% Senior Notes, Series A, due November 15, 2009

$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011

and

Note Agreement dated as of October 13, 2005

$261,000,000 6.15% Senior Notes, Series A, due October 13, 2010

$89,000,000 6.34% Senior Notes, Series B, due October 13, 2012

and

Note Agreement dated as of May 1, 2006

$50,000,000 6.75% Senior Notes due May 1, 2013

and

Note Agreement dated as of June 20, 2008

$140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013

$52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015




 

 






 









 












Allied Capital Corporation

1919 Pennsylvania Avenue, N.W.

Washington, DC 20006




First Omnibus Waiver and Amendment to the Note Agreements




Dated as of July 25, 2008




Re: Note Agreement dated as of May 14, 2003

$147,000,000 6.05% Senior Notes, Series B, due May 14, 2010

and

Note Agreement dated as of November 15, 2004

$252,500,000 5.53% Senior Notes, Series A, due November 15, 2009

$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011

and

Note Agreement dated as of October 13, 2005

$261,000,000 6.15% Senior Notes, Series A, due October 13, 2010

$89,000,000 6.34% Senior Notes, Series B, due October 13, 2012

and

Note Agreement dated as of May 1, 2006

$50,000,000 6.75% Senior Notes due May 1, 2013

and

Note Agreement dated as of June 20, 2008

$140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013

$52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015




To each of the Noteholders

named in Schedule A attached hereto which are also

signatories to this First Omnibus Waiver and Amendment

to the Note Agreements (this “First Waiver and Amendment”).




Ladies and Gentlemen:




     Reference is made to (i) the Note Agreement dated as of May 14, 2003 (the “2003 Note
Agreement”) under and pursuant to which the $147,000,000 6.05% Senior Notes, Series B, due May 14,
2010 (the “2003 Notes”) were originally issued and sold, (ii) the Note Agreement dated as of
November 15, 2004 (the “2004 Note Agreement”) under and pursuant to which (a) the $252,500,000
5.53% Senior Notes, Series A, due November 15, 2009 (the “2004 Series A Notes”) and (b) the
$72,500,000 5.99% Senior Notes, Series B, due November 15, 2011 (the “2004 Series B Notes”, and
together with the 2004 Series A Notes, the “2004 Notes”) were originally issued and sold, (iii) the
Note Agreement dated as of October 13, 2005 (the “2005 Note Agreement”) under and pursuant to which
(a) the $261,000,000 6.15% Senior Notes, Series A, due October 13, 2010 (the “2005 Series A Notes”)
and (b) the $89,000,000 6.34% Senior Notes, Series B, due October 13, 2012 (the “2005 Series B
Notes”, and together with the 2005 Series A Notes, the “2005 Notes”) were originally issued and sold, (iv) the Note



 









 








Agreement
dated as of May 1, 2006 (the “2006 Note Agreement”) under and pursuant to which the $50,000,000
6.75% Senior Notes due May 1, 2013 (the “2006 Notes”) were originally issued and sold, and (v) the
Note Agreement dated as of June 20, 2008 (the “2008 Note Agreement”) under and pursuant to which
(a) the $140,500,000 7.82% Senior Notes, Series 2008-A, due June 20, 2013 (the “2008 Series A
Notes”) and (b) the $52,500,000 8.14% Senior Notes, Series 2008-B, due June 20, 2015 (the “2008
Series B Notes”, and together with the 2008 Series A Notes, the “2008 Notes”, and together with the
2003 Notes, the 2004 Notes, the 2005 Notes, and the 2006 Notes, the “Notes”) were originally issued
and sold, each of which are by and among Allied Capital Corporation, a Maryland corporation (the
“Company”), and the institutional investors named therein. The current holders of the Notes are
named in Schedule A hereto and are collectively referred to as the “Noteholders” and individually
as a “Noteholder”. The 2003 Note Agreement, the 2004 Note Agreement, the 2005 Note Agreement, the
2006 Note Agreement and the 2008 Note Agreement are collectively referred to as the “Note
Agreements” and individually as a “Note Agreement”. Terms used but not otherwise defined herein
shall have the meanings set forth in the Note Agreements.



     The Company has requested certain waivers and amendments to the Note Agreements and hereby
agrees with you as follows:



Article 1.




Waiver of Defaults.




     Section 1.1. Waiver of Defaults. The Company has notified the Noteholders that it has
declared certain dividends on its capital stock payable on dates that are more than the 60 days or
80 days, as the case may be, permitted by Section 5.10 of the Note Agreements. The Noteholders
hereby waive any Event of Default arising under the Note Agreements solely on account of such
declaration and payment (including any Event of Default arising under Section 6.1(d) or (g)) and
the failure to give the notice required by Section 6.2 of the Note Agreements.



     Section 1.2. Limited Waivers; Reservation of Rights. The Company acknowledges and agrees that
the waivers granted in this Section 1 are specific in intent and are valid only for the specific
purposes for which they are being given, are waivers of known Events of Default only, shall not in
any way obligate the Noteholders to agree to any additional waivers of the provisions of the Note
Agreements, and shall not in any way be deemed to constitute or operate as a waiver of any
Noteholder’s right under the Note Agreements to exercise remedies resulting from (i) existing
and/or continuing Defaults or Events of Default of which such Noteholder is not actually aware or
(ii) other future Defaults or Events of Default, whether or not of a similar nature and whether or
not known to any Noteholder.



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Article 2.




Amendment of the Note Agreements.




     Amendment of Section 5.10 (Restricted Payments). The second to last paragraph of Section 5.10
of each Note Agreement shall be and is hereby amended and restated in its entirety as follows:




The Company will not declare any dividend which constitutes a
Restricted Payment payable more than 80 days after the date of
declaration thereof; provided that dividends payable in the fourth
quarter and any year-end extra dividend which constitute a
Restricted Payment may be payable up to 120 days after the date of
declaration thereof.



 Article 3.




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 Waiver and Amendment by the Company and
compliance by the Company with all of the provisions of the Note Agreements, as amended by this
First Waiver and 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 Waiver and 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 Waiver
and Amendment has been duly executed and delivered by the Company, and each Note Agreement, as
amended by this First Waiver and 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).



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     (c) Upon the effectiveness of this First Waiver and Amendment no Default or Event of Default
shall exist or be continuing.



Article 4.




Miscellaneous.




     Section 4.1. Ratification of the Note Agreements. Except as herein expressly amended, the
Note Agreements are in all respects ratified and confirmed. If and to the extent that any of the
terms or provisions of the Note Agreements are in conflict or inconsistent with any of the terms or
provisions of this First Waiver and Amendment, this First Waiver and Amendment shall govern.



     Section 4.2. References to the Agreement. References in any Note Agreement or in any Note,
certificate, instrument or other document related to or delivered in connection with the
transactions contemplated by any Note Agreement shall be deemed to be references to such Note
Agreement as amended hereby and as further amended from time to time.



     Section 4.3. Successors and Assigns. This First Waiver and 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 4.4. Requisite Approval; Expenses. This First Waiver and 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 each of the 2003
Notes, the 2004 Notes, the 2005 Notes, the 2006 Notes and the 2008 Notes shall have executed this
First Waiver and Amendment; (b) copies of the waiver to the Bank Credit Agreement shall have been
delivered to the Noteholders, and shall be substantively similar to the waiver portion of this
First Waiver and Amendment and in form reasonably satisfactory to the Noteholders; (c) the Company
shall have paid a fee to each Noteholder in an amount equal to 10.0 basis points of the principal
amount of Notes held by such Noteholder; and (d) the Company shall have paid the reasonable fees,
expenses and disbursements of Chapman and Cutler LLP which are reflected in statements of such
counsel rendered on or prior to the date of this First Waiver and Amendment.



     Section 4.5. Counterparts. This First Waiver and Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original but all together only one
agreement.



     Section 4.6. Governing Law. This First Waiver and 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.



[Signature Pages Follow]




-4-









 








     IN WITNESS WHEREOF, the Company has executed this First Omnibus Waiver and Amendment to the
Note Agreements as of the day and year first above written.



	 	 	 	 	 
	 	Allied Capital Corporation

 	 
	 	By  	/s/ Penni Roll
 	 
	 	 	Name:  	Penni Roll 	 
	 	 	Title:  	Chief Financial Officer 	 



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     In Witness Whereof, the Noteholders under the Note Agreements have executed this
First Omnibus Waiver and Amendment to the Note Agreements as of the day and year first above
written.



	 	 	 	 	 
	 	
American Fidelity Assurance Company (as

Noteholder under the 2005 Note Agreement)

American Republic Insurance Company (as

Noteholder under the 2008 Note Agreement)


Blue Cross and Blue Shield of Florida, Inc.

(as Noteholder under the 2005 Note
Agreement)


The Catholic Aid Association (as
Noteholder
 under the 2008 Note Agreement)


Catholic Knights (as Noteholder under
the 
2008 Note Agreement)


Cincinnati Insurance Company (as

Noteholder under the 2008 Note Agreement)


Colorado Bankers Life Insurance Company

(as Noteholder under the 2005 Note Agreement)


Farm Bureau Life Insurance Company of

Michigan (as Noteholder under the 2005

Note Agreement)


Fidelity Life Association (as Noteholder

under the 2008 Note Agreement)


Fort Dearborn Life Insurance Company

(as Noteholder under the 2004 Note Agreement

and the 2005 Note Agreement)


Great Western Insurance Company (as

Noteholder under the 2008 Note Agreement)


GuideOne Mutual Insurance Company (as

Noteholder under the 2008 Note Agreement)


The Lafayette Life Insurance Company (as

Noteholder under the 2008 Note Agreement)


Minnesota Life Insurance Company (as

Noteholder under the 2005 Note Agreement and

the 2008 Note Agreement)


Security National Life Insurance Company (as

Noteholder under the 2008 Note Agreement)

	 
	 
	 	By:   Advantus Capital Management, Inc.
 	 
	 	 	 
	 	By  	                                                       /s/ Robert W. Thompson
 	 
	 	 	Name:  	Robert W. Thompson 	 
	 	 	Title:  	Vice President 	 



-6-









 







	 	 	 	 	 
	 	AIG Annuity Insurance Company (as

Noteholder under the 2003 Note Agreement)

The Variable Annuity Life Insurance Company

(as Noteholder under the 2003 Note Agreement)

 	 
	 	By:  AIG Global Investment Corp., investment

        adviser

 	 
	 	By  	                                                       /s/ Gerald F. Herman
 	 
	 	 	Name:  	Gerald F. Herman 	 
	 	 	Title:  	Vice President 	 
	 
	 	
Allianz Life Insurance Company of North

America (as Noteholder under the 2005

Note Agreement)



By:   Allianz of America, Inc., as the
authorized 
        signatory, investment manager, of
which, 
        the security should be registered
under the
         Nominee Name (MAC & CO)

 	 
	 	By  	                                                       /s/ Brian F. Landry
 	 
	 	 	Name:  	Brian F. Landry 	 
	 	 	Title:  	Vice President 	 



-7-









 






	 	 	 	 	 
	 	Allstate Life Insurance Company

(as Noteholder under the 2003 Note
Agreement
 and the 2005 Note Agreement)

 	 
	 	By  	/s/ Robert B. Bodett
 	 
	 	 	Name:  	Robert B. Bodett 	 
	 	 	 
	 	By  	                                                  /s/ Allen Dick
 	 
	 	 	Name:  	Allen Dick 	 
	 	 	Authorized Signatories 	 
	 
	 	Allstate Life Insurance Company of

New York (as Noteholder under the

2003 Note Agreement and the 2005 Note

Agreement)

 	 
	 	By  	/s/ Robert B. Bodett
 	 
	 	 	Name:  	Robert B. Bodett 	 
	 
	 	By  	                                                  /s/ Allen Dick
 	 
	 	 	Name:  	Allen Dick 	 
	 	 	Authorized Signatories 	 
	 
	 	American Equity Investment Life Insurance

Company (as Noteholder under the 2004

Note Agreement and the 2005 Note Agreement)

 	 
	 	By  	/s/ Rachel Stauffer
 	 
	 	 	Name:  	Rachel Stauffer 	 
	 	 	Title:  	Vice President Investments 	 
	 
	 	American Equity Investment Life Insurance

Company of New York (as Noteholder

under the 2004 Note Agreement)

 	 
	 	By  	                                                  /s/ Rachel Stauffer
 	 
	 	 	Name:  	Rachel Stauffer 	 
	 	 	Title:  	Vice President Investments 	 



-8-









 







	 	 	 	 	 
	 	American Family Life Assurance Company

of Columbus (as Noteholder under the

2005 Note Agreement and the 2006 Note

Agreement)

 	 
	 	By  	/s/ Mary Ellen Keim
 	 
	 	 	Name:  	Mary Ellen Keim 	 
	 	 	Title:  	Vice President Fixed Income 	 
	 
	 	California National Bank (as Noteholder

under the 2005 Note Agreement)

 	 
	 	By  	/s/ Lisa Alexander
 	 
	 	 	Name:  	Lisa Alexander 	 
	 	 	Title:  	Senior Vice President/Treasurer 	 
	 
	 	Connecticut General Life Insurance Company

(as Noteholder under the 2003 Note

Agreement and the 2004 Note Agreement)




By:   Cigna Investments, Inc.
(authorized agent)

 	 
	 	By  	                                                  /s/ Debra J. Height
 	 
	 	 	Name:  	Debra J. Height 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 Life Insurance Company of North America

(as Noteholder under the 2004 Note

Agreement)

 	 
	 	By:   CIGNA Investments, Inc. (authorized agent)

 	 
	 	By  	                                                       /s/ Debra J. Height
 	 
	 	 	Name:  	Debra J. Height 	 
	 	 	Title:  	Managing Director 	 
	 




-9-











 





	 	 	 	 	 
	 	CUNA Mutual Insurance Society (as

Noteholder under the 2008 Note Agreement)

 	 
	 	By:  	MEMBERS Capital Advisors, Inc.,
 acting as Investment Advisor
 	 
	 	 	 
	 	By  	                                                       /s/ Allen R. Cantrell
 	 
	 	 	Name:  	Allen R. Cantrell 	 
	 	 	Title:  	Director, Private Placements 	 
	 
	 	Employees’ Retirement System of Alabama

(as Noteholder under the 2005 Note
Agreement)

 	 
	 	By  	/s/ Julie Barranco
 	 
	 	 	Name:  	Julie Barranco 	 
	 	 	Title:  	Director of Fixed Income 	 
	 
	 	Judicial Retirement Fund (as Noteholder

under the 2005 Note Agreement)

 	 
	 	By  	/s/ Julie Barranco
 	 
	 	 	Name:  	Julie Barranco 	 
	 	 	Title:  	Director of Fixed Income 	 
	 
	 	PEIRAF — Deferred Compensation Plan (as

Noteholder under the 2005 Note Agreement)

 	 
	 	By  	/s/ Julie Barranco
 	 
	 	 	Name:  	Julie Barranco 	 
	 	 	Title:  	Director of Fixed Income 	 
	 
	 	Teachers’ Retirement System of Alabama

(as Noteholder under the 2005 Note
Agreement)

 	 
	 	By  	/s/ Julie Barranco
 	 
	 	 	Name:  	Julie Barranco 	 
	 	 	Title:  	Director of Fixed Income 	 



-10-









 





	 	 	 	 	 
	 	Federated Life Insurance Company (as

Noteholder under the 2003 Note Agreement)

 	 
	 	By  	/s/ Mark A. Hood
 	 
	 	 	Name:  	Mark A. Hood 	 
	 	 	Title:  	Vice President 	 
	 
	 	Genworth Life Insurance Company
(f/k/a General Electric Capital Assurance

Company) (as Noteholder under the 2004 Note

Agreement and the 2005 Note Agreement)

 	 
	 	By  	/s/ John Endres
 	 
	 	 	Name:  	John Endres 	 
	 	 	Title:  	Investment Officer 	 
	 
	 	The Guardian Life Insurance Company of

America (as Noteholder under the 2004

Note Agreement)

 	 
	 	By  	/s/ Ellen I. Whittaker
 	 
	 	 	Name:  	Ellen I. Whittaker 	 
	 	 	Title:  	Senior Director, Private Placements 	 
	 
	 	The Guardian Insurance & Annuity Company,

Inc. (as Noteholder under the 2004 Note
Agreement)

 	 
	 	By  	/s/ Ellen I. Whittaker
 	 
	 	 	Name:  	Ellen I. Whittaker 	 
	 	 	Title:  	Senior Director, Private Placements 	 



-11-









 







	 	 	 	 	 
	 	John Hancock Life Insurance Company (as

Noteholder under the 2003 Note Agreement and

2004 Note Agreement)

 	 
	 	By  	/s/ Anthony J. Della Piana
 	 
	 	 	Name:  	Anthony J. Della Piana 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	John Hancock Variable Life Insurance Company

(as Noteholder under the 2003 Note

Agreement and 2004 Note Agreement)

 	 
	 	By  	/s/ Anthony J. Della Piana
 	 
	 	 	Name:  	Anthony J. Della Piana 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	John Hancock Life & Health Insurance Company

(f/k/a Manulife Insurance Company) (as

Noteholder under the 2003 Note Agreement)

 	 
	 	By  	/s/ Anthony J. Della Piana
 	 
	 	 	Name:  	Anthony J. Della Piana 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	John Hancock Life Insurance Company (U.S.A.)

(f/k/a The Manufacturers Life Insurance

Company (U.S.A.)) (as Noteholder under the

2004 Note Agreement)

 	 
	 	By  	/s/ Anthony J. Della Piana
 	 
	 	 	Name:  	Anthony J. Della Piana 	 
	 	 	Title:  	Authorized Signatory 	 



-12-









 








	 	 	 	 	 
	 	Signature 7 L.P. (as Noteholder under

the 2004 Note Agreement)

 	 
	 	By:  	Hancock Capital Investment Management, LLC,
as Portfolio Advisor
 	 
	 	 	 
	 	By  	                                                       /s/ Anthony J. Della Piana
 	 
	 	 	Name:  	Anthony J. Della Piana 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	Signature 6 Limited (as Noteholder under

the 2004 Note Agreement)

 	 
	 	By:  	Hancock Capital Investment Management, LLC,
as Portfolio Advisor
 	 
	 	 	 
	 	By  	                                                       /s/ Anthony J. Della Piana
 	 
	 	 	Name:  	Anthony J. Della Piana 	 
	 	 	Title:  	Senior Managing Director 	 
	 
	 	JPMorgan Chase Bank, not individually
but
 solely in its capacity as Directed
Trustee of 
the commingled assets of the Long
Term 
Investment Trust (fka AT&T Master
Pension 
Trust) and the SBC Master Pension
Trust (as
 Noteholder under the 2004 Note
Agreement)

 	 
	 	By  	/s/ Amy L. Schneeberger
 	 
	 	 	Name:  	Amy L. Schneeberger 	 
	 	 	Title:  	Vice President 	 



-13-









 






	 	 	 	 	 



	 	 	 	 	 
	 	ING USA Annuity and Life Insurance Company

(as Noteholder under the 2008 Note
Agreement)

ING Life Insurance and Annuity Company

(as Noteholder under the 2008 Note
Agreement)

ReliaStar Life Insurance Company (as

Noteholder under the 2008 Note Agreement)

Security Life of Denver Insurance Company

(as Noteholder under the 2008 Note
Agreement)

 	 
	 	By:  	ING Investment Management LLC, as Agent
 	 
	 	 	 
	 	By  	                                                  /s/ Christopher P. Lyons
 	 
	 	 	Name:  	Christopher P. Lyons 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	Metropolitan Life Insurance Company (as

Noteholder under the 2004 Note Agreement)



MetLife Insurance Company of Connecticut,

by Metropolitan Life Insurance Company,

its Investment Manager

 	 
	 	By  	/s/ Judith A. Gulotta
 	 
	 	 	Name:  	Judith A. Gulotta 	 
	 	 	Title:  	Managing Director 	 
	 
	 	(executed by Metropolitan Life Insurance

Company (i) as to itself as a Purchaser and (ii) 

as investment manager to MetLife Insurance 

Company of Connecticut as a Purchaser)

 	 



-14-









 






	 	 	 	 	 



	 	 	 	 	 
	 	Midland National Life Insurance

Company (as Noteholder under the 2005

Note Agreement)

 	 
	 	By:  	Guggenheim Partners Advisory Company
 	 
	 	 	 
	 	By  	                                                  /s/ Kaitlin Trinh
 	 
	 	 	Name:  	Kaitlin Trinh 	 
	 	 	Title:  	Director 	 
	 
	 	North American Company for Life

and Health Insurance (as Noteholder

under the 2005 Note Agreement)

 	 
	 	By:  	Guggenheim Partners Advisory Company
 	 
	 	 	 
	 	By  	                                                  /s/ Kaitlin Trinh
 	 
	 	 	Name:  	Kaitlin Trinh 	 
	 	 	Title:  	Director 	 
	 




-15-











 





	 	 	 	 	 
	 	National Benefit Life Insurance Company

(as Noteholder under the 2004 Note
Agreement)

 	 
	 	By:  	Conning Asset Management Company, as
Investment Manager 	 
	 
	 	By  	/s/ John H. DeMallie
 	 
	 	 	Name:  	John H. DeMallie 	 
	 	 	Title:  	Director 	 
	 
	 	Primerica Life Insurance Company (as

Noteholder under the 2004 Note Agreement)

 	 
	 	By:  	Conning Asset Management Company, as
Investment Manager 	 
	 
	 	By  	                                                  /s/ John H. DeMallie
 	 
	 	 	Name:  	John H. DeMallie 	 
	 	 	Title:  	Director 	 
	 
	 	Reassure America Life Insurance Company

(as Noteholder under the 2003 Note

Agreement)

 	 
	 	By:  	Conning Asset Management Company, as
Investment Manager 	 
	 
	 	By  	                                                  /s/ John H. DeMallie
 	 
	 	 	Name:  	John H. DeMallie 	 
	 	 	Title:  	Director 	 
	 
	 	Swiss Re Life & Health America, Inc. (as

Noteholder under the 2003 Note Agreement and

the 2004 Note Agreement)

 	 
	 	By:  	Conning Asset Management Company, as
Investment Manager 	 
	 
	 	By  	                                                  /s/ John H. DeMallie
 	 
	 	 	Name:  	John H. DeMallie 	 
	 	 	Title:  	Director 	 



-16-









 






	 	 	 	 	 



	 	 	 	 	 
	 	Nationwide Life and Annuity Insurance Company

(as Noteholder under the 2004 Note

Agreement and the 2005 Note Agreement)

Nationwide Life Insurance Company (as

Noteholder under the 2004 Note Agreement and

the 2005 Note Agreement)

Nationwide Life Insurance Company of America

(as Noteholder under the 2004 Note

Agreement)

Nationwide Multiple Maturity Separate Account

(as Noteholder under the 2005 Note
Agreement)

Nationwide Mutual Insurance Company (as

Noteholder under the 2004 Note Agreement)

 	 
	 	By  	/s/ Thomas A. Gleason
 	 
	 	 	Name:  	Thomas A. Gleason 	 
	 	 	Title:  	Authorized Signatory 	 



-17-









 






	 	 	 	 	 



	 	 	 	 	 
	 	New York Life Insurance Company

(as Noteholder under the 2003 Note Agreement,

the 2004 Note Agreement and the 2005 Note
Agreement)

 	 
	 	By  	/s/ A. Post Howland
 	 
	 	 	Name:  	A. Post Howland 	 
	 	 	Title:  	Corporate Vice President 	 
	 
	 	New York Life Insurance and Annuity

Corporation (as Noteholder under the

2003 Note Agreement, the 2004 Note Agreement

and the 2005 Note Agreement)

 	 
	 	By  	New York Life Investment Management LLC,
its Investment Manager 	 
	 
	 	By  	                                                 /s/ A. Post Howland
 	 
	 	 	Name:  	A. Post Howland 	 
	 	 	Title:  	Director 	 
	 
	 	New York Life Insurance and Annuity

Corporation Institutionally Owned


Life Insurance Separate Account (as

Noteholder under the 2003 Note Agreement and

the 2005 Note Agreement)

 	 
	 	By  	New York Life Investment Management LLC,
its Investment Manager 	 
	 
	 	By  	                                                 /s/ A. Post Howland
 	 
	 	 	Name:  	A. Post Howland 	 
	 	 	Title:  	Director 	 



-18-









 






	 	 	 	 	 



	 	 	 	 	 
	 	The Northwestern Mutual Life Insurance

Company (as Noteholder under the 2004

Note Agreement, the 2005 Note Agreement and

the 2008 Note Agreement)

 	 
	 	By  	/s/ David A. Barras
 	 
	 	 	Name:  	David A. Barras 	 
	 	 	Its Authorized Representative 	 
	 
	 	Ohio National Life Assurance Corporation

(as Noteholder under the 2005 Note Agreement

and the 2008 Note Agreement)

 	 
	 	By  	/s/ Jed R. Martin
 	 
	 	 	Name:  	Jed R. Martin 	 
	 	 	Title:  	Vice President, Private Placements 	 
	 
	 	The Ohio National Life Insurance Company

(as Noteholder under the 2004 Note Agreement

and the 2005 Note Agreement)

 	 
	 	By  	/s/ Jed R. Martin
 	 
	 	 	Name:  	Jed R. Martin 	 
	 	 	Title:  	Vice President, Private Placements 	 



-19-









 






	 	 	 	 	 



	 	 	 	 	 
	 	Park National Bank (as Noteholder under

the 2005 Note Agreement)

 	 
	 	By  	/s/ John Kratkoczki
 	 
	 	 	Name:  	John Kratkoczki 	 
	 	 	Title:  	Vice President / Controller 	 
	 
	 	Phoenix Life Insurance Company (as

Noteholder under the 2005 Note Agreement)

 	 
	 	By  	/s/ Christopher M. Wilkos
 	 
	 	 	Name:  	Christopher M. Wilkos 	 
	 	 	Title:  	Senior Vice President
Corporate Portfolio Management
Phoenix Life Insurance Company 	 
	 
	 	PHL Variable Insurance Company (as

Noteholder under the 2005 Note Agreement)

 	 
	 	By  	/s/ Christopher M. Wilkos, CFA
 	 
	 	 	Name:  	Christopher M. Wilkos 	 
	 	 	Title:  	Senior Vice President
Corporate Portfolio Management
PHL Variable Insurance Company 	 
	 
	 	San Diego National Bank (as Noteholder

under the 2005 Note Agreement)

 	 
	 	By  	/s/ Eric W. Larson
 	 
	 	 	Name:  	Eric W. Larson 	 
	 	 	Title:  	Senior Vice President/Chief
Financial Officer 	 



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	 	Sun Life Assurance Company of Canada (as

Noteholder under the 2004 Note Agreement and

the 2008 Note Agreement)

 	 
	 	By  	/s/ Paul Sinclair
 	 
	 	 	Name:  	Paul Sinclair 	 
	 	 	Title:  	Managing Director
Head of Private Fixed Debt
Private Fixed Income 	 
	 	 	 
	 	By  	                                                  /s/ Kevin Phelan
 	 
	 	 	Name:  	Kevin Phelan 	 
	 	 	Title:  	Managing Director
Private Fixed Income 	 



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	 	Sun Life Assurance Company of Canada (U.S.)

(as Noteholder under the 2008 Note

Agreement)

 	 
	 	By  	/s/ Deborah J. Foss
 	 
	 	 	Name:  	Deborah J. Foss 	 
	 	 	Title:  	Managing Director, Head of Private
Debt Private Fixed Income 	 
	 
	 	By  	                                                  /s/ Ann C. King
 	 
	 	 	Name:  	Ann C. King 	 
	 	 	Title:  	Assistant Vice President and Senior
Counsel 	 
	 
	 	Sun Life Insurance and Annuity Company of New

York (as Noteholder under the 2008 Note

Agreement)

 	 
	 	By  	/s/ Deborah J. Foss
 	 
	 	 	Name:  	Deborah J. Foss 	 
	 	 	Title:  	Authorized Signer 	 
	 
	 	By  	                                                  /s/ Ann C. King
 	 
	 	 	Name:  	Ann C. King 	 
	 	 	Title:  	Senior Counsel 	 
	 
	 	Sun Life Assurance Company of Canada (as

Noteholder under the 2003 Note Agreement and

the 2008 Note Agreement) acting

through its U.S. branch

 	 
	 	By  	/s/ Deborah J. Foss
 	 
	 	 	Name:  	Deborah J. Foss 	 
	 	 	Title:  	Managing Director, Head of Private
Debt
Private Fixed Income 	 
	 
	 	By  	                                                  /s/ Ann C. King
 	 
	 	 	Name:  	Ann C. King 	 
	 	 	Title:  	Senior Counsel 	 



-22-









 






	 	 	 	 	 



	 	 	 	 	 
	 	Sun Life Hong Kong Limited

 	 
	 	By:  	Sun Capital Advisers LLC, its Investment
Advisor (as Noteholder under the 2003 Note Agreement) 	 
	 
	 	By  	                                                  /s/ Deborah J. Foss
 	 
	 	 	Name:  	Deborah J. Foss 	 
	 	 	Title:  	Authorized Signer 	 
	 
	 	By  	                                                  /s/ Ann C. King
 	 
	 	 	Name:  	Ann C. King 	 
	 	 	Title:  	Authorized Signer 	 
	 
	 	Teachers Insurance and Annuity Association of

America (as Noteholder under the 2003

Note Agreement, the 2004 Note Agreement, the

2005 Note Agreement and the 2008 Note

Agreement)

 	 
	 	By  	/s/ Brian K. Roelke
 	 
	 	 	Name:  	Brian K. Roelke 	 
	 	 	Title:  	Director 	 
	 
	 	TIAA-CREF Life Insurance Company (as

Noteholder under the 2004 Note Agreement)

 	 
	 	By:  	Teachers Insurance and Annuity Association
of America, as Investment Manager 	 
	 
	 	By  	                                                       /s/ Brian K. Roelke
 	 
	 	 	Name:  	Brian K. Roelke 	 
	 	 	Title:  	Director 	 



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	 	The Travelers Indemnity Company (as

Noteholder under the 2005 Note Agreement)

 	 
	 	By  	/s/ Annette M. Masterson
 	 
	 	 	Name:  	Annette M. Masterson 	 
	 	 	Title:  	Vice President 	 
	 
	 	Woodmen of the World Life Insurance Society

(as Noteholder under the 2005 Note
Agreement)

 	 
	 	By  	/s/ James J. Stolze
 	 
	 	 	Name:  	James J. Stolze 	 
	 	 	Title:  	Assistant Vice President 	 
	 




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