EX-10.1






EXHIBIT 10.1




THIRD AMENDMENT TO CREDIT AGREEMENT




THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the “Amendment”) is entered into as of May 19, 2006,
by and among ALLIED CAPITAL CORPORATION, a corporation organized under the laws of the State of
Maryland (“Borrower”) and BANK OF AMERICA, N.A., as Administrative Agent (in such capacity, the
“Administrative Agent”) for the Lenders under the Credit Agreement (hereinafter defined) and the
Increasing Lenders (hereinafter defined).



R E C I T A L S




A. Borrower, Administrative Agent, and certain other Agents and Lenders are parties to that
certain Credit Agreement dated as of September 30, 2005, as amended by that certain First Amendment
to Credit Agreement dated as of November 4, 2005 and that certain Second Amendment to Credit
Agreement dated as of May 11, 2006 (the “Credit Agreement”). Unless otherwise indicated herein,
all terms used with their initial letter capitalized are used herein with their meaning as defined
in the Credit Agreement; all Section references are to Sections in the Credit Agreement; and all
Paragraph references are to Paragraphs in this Amendment.



B. Pursuant to and in accordance with Section 2.13, Borrower has requested that the aggregate
Commitments under the Credit Agreement be increased up to $922,500,000.



C. Subject to and upon the following terms and conditions, (i) certain of the Lenders party to
the Credit Agreement immediately prior to giving effect to this Amendment (as more particularly
described on Part I of Annex A, the “Increasing Existing Lenders”) have agreed to increase their
respective commitments to the amounts set forth opposite each Increasing Existing Lender’s name on
Annex B and (ii) each financial institution listed on Part II of Annex A (the “New Lenders”) has
agreed to become a Lender under the Credit Agreement with the respective commitments set forth
opposite each such institution’s name on Annex B (collectively, with the increased commitments
described in clause (i) preceding, the “Supplemental Commitments”). The Increasing Existing
Lenders and the New Lenders are collectively referred to herein as the “Increasing Lenders”.



D. Subject to and upon the following terms and conditions, each of the Increasing Lenders has
agreed to its Supplemental Commitment, and Administrative Agent has agreed to the addition of each
of the New Lenders as a Lender.



E. Accordingly, in accordance with the requirements of Sections 2.13 and 12.5 of the Credit
Agreement and subject to and upon the following terms and conditions, Borrower, Administrative
Agent, and the Increasing Lenders are entering into this Amendment (i) to add each of the New
Lenders as a “Lender” with its respective Supplemental Commitment, pursuant to Section 2.13 of the
Credit Agreement and (ii) to amend Schedule 2 to the Credit Agreement to reflect the Supplemental
Commitments of the Increasing Lenders.



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



PARAGRAPH 1 . AMENDMENTS TO CREDIT AGREEMENT.



1.1 Supplemental Commitments and Consent to New Lenders.




(a) Pursuant to Section 2.13, effective on and after the Third Amendment Effective Date
(hereinafter defined), (i) each New Lender agrees to be a Lender having the Commitment set
forth opposite its name on Annex B and (ii) each Increasing Existing Lender agrees to
increase its Commitment to the amount set forth opposite its name on Annex B. Accordingly,
on and after the Third Amendment Effective Date (hereinafter defined), (i) each reference to
“Lender” or “Lenders” in the Credit Agreement and the related Loan Documents shall include
each of the New Lenders; (ii) each reference to Schedule 2 shall be to the Schedule 2 as set
forth on Annex B, as the same may hereafter be amended or modified in accordance with the
Loan Documents; (iii) each Lender’s Commitment Percentage (and to the extent any Letters of
Credit are issued and outstanding on such date, all participations by Lenders in the LC
Subfacility) shall be recalculated to reflect the new proportionate share of the revised
total Commitments as stated on Annex B; and (iv) each New Lender and each Increasing
Existing Lender shall be deemed irrevocably and unconditionally to have purchased, without
recourse or warranty, an undivided interest and participation in each Letter of Credit in an
amount equal to its Commitment Percentage as stated on Annex B.




(b) Borrower shall prepay all Revolving Loans and Swing Line Loans outstanding on the Third
Amendment Effective Date (and pay any additional amounts required to be paid to any Lender
pursuant to Section 4.5, unless waived by such Lender) to the extent necessary to keep the
Revolving Loans ratable with the revised Commitment Percentages arising from the non-ratable
increase in the aggregate Commitments pursuant to this Paragraph 1.1.




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




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



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



1.3 Noteless Transaction. If requested by any Increasing Lender pursuant to
Section 2.11(b) of the Credit Agreement, Borrower shall execute and deliver to such Increasing
Lender a Revolving Note reflecting the Commitment of such Increasing Lender, after giving effect to
the Supplemental Commitments contemplated and effected in accordance with Paragraph 1.1.



PARAGRAPH 2. THIRD AMENDMENT EFFECTIVE DATE. This Amendment shall be binding upon
the Administrative Agent, Borrower, the Increasing Lenders, and each other Lender on the last day
(the “Third Amendment Effective Date”) upon which (a) counterparts of this Amendment shall have
been executed and delivered to Administrative Agent by Borrower, Administrative Agent, and the
Increasing Lenders, or when Administrative Agent shall have received, telecopied, telexed, or other
evidence satisfactory to it that all such parties have executed and are delivering to
Administrative Agent counterparts thereof; (b) the Revolving Notes (if any have been previously
been requested by the Increasing Lenders) are executed by Borrower and delivered in accordance with
Paragraph 1.3 hereof; (c) Borrower shall have paid to Administrative Agent (for distribution to the
Increasing Lenders) the upfront fee payable to each of the Increasing Lenders in the respective
amounts set forth as the “Third Amendment Upfront Fee” on Annex B for each Increasing Lender; (d)
Borrower shall have repaid all outstanding Loans, to the extent any such Loans are outstanding
(without giving effect to any Loans made after the effectiveness of this Amendment); (e) Borrower
shall have delivered to Administrative Agent copies (certified by the Secretary or Assistant
Secretary of Borrower) of all corporate action taken by Borrower to authorize the execution,
delivery, and performance of this Amendment, and any related Debt incurrence; and (f) Borrower
shall have delivered to Administrative Agent an opinion of Sutherland Asbill & Brennan LLP, counsel
to Borrower, addressed to Administrative Agent and Lenders, in form and substance reasonably
acceptable to Administrative Agent.



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



PARAGRAPH 4. MISCELLANEOUS.



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



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



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



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



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



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



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



Remainder of this page intentionally blank.

Signature page to follow.




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Signature Page to that certain Third Amendment to Credit Agreement and Waiver dated as of
the date first stated above, amending that certain Credit Agreement dated as of September 30, 2005,
as amended and modified to date.



	 
	 

	ALLIED CAPITAL CORPORATION,

as Borrower

By: /s/ Kelly A. Anderson

	 

	Kelly A. Anderson, Executive Vice President and Treasurer

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

By: /s/ Alexa B. Bradford

	 

	Alexa B. Bradford, Senior Vice President

	 

	BANK LEUMI USA, as a Lender

By: /s/ John Koenigsberg John Koenigsberg, First Vice President

	 

	By: /s/ Iris Steinhardt

	 

	Iris Steinhardt, Vice President

BRANCH BANKING AND TRUST COMPANY, as a Lender

By: /s/ James E. Davis

	 

	James E. Davis, Senior Vice President

	 

	FORTIS CAPITAL CORP, as a Lender

By: /s/ Douglas Riahi

	 

	Douglas Riahi, Managing Director

By: /s/ Trond Rokholt

	 

	Trond Rokholt, Managing Director

JPMORGAN CHASE BANK, N.A., as a Lender

By: /s/ Richard J. Poworoznek

	 

	Richard J. Poworoznek, Vice President

	 

	MERRILL LYNCH BANK USA, as a Lender

By: /s/ Louis Alder

	 

	Louis Alder, Director

MIZUHO CORPORATE BANK, LTD., as a Lender

By: /s/ Robert Gallagher

	 

	Robert Gallagher, Senior Vice President

	 

	NORTH FORK BANK, as a Lender

By: /s/ Kevin Brown

	 

	Kevin Brown, Senior Vice President

SOVEREIGN BANK, as a Lender

By: /s/ Robert M. Leach

	 

	Robert M. Leach, Senior Vice President

	 

	SUNTRUST BANK, as a Lender

By: /s/ David W. Penter

	 

	David W. Penter, Managing Director

	 








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