EXHIBIT 10.1
AMENDMENT NO. 4 TO
LOAN FUNDING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 4 TO LOAN FUNDING AND SERVICING AGREEMENT, dated as
of June 16, 2000 (this "AMENDMENT"), is entered into by and among ACS FUNDING
TRUST I ("BORROWER"), as Borrower, AMERICAN CAPITAL STRATEGIES, LTD.
("SERVICER"), as Servicer, certain INVESTORS, VARIABLE FUNDING CAPITAL
CORPORATION ("VFCC"), as a Lender, FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union Capital Markets Corp.), as Deal Agent,
FIRST UNION NATIONAL BANK ("FIRST UNION"), as a Lender and as Liquidity Agent,
and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Collateral Custodian and
the Backup Servicer. Capitalized terms used and not otherwise defined herein are
used as defined in the Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Loan Funding and
Servicing Agreement, dated as of March 31, 1999, as amended by Amendment No. 1,
dated as of June 30, 1999, Amendment No. 2, dated as of September 24, 1999, and
Amendment No. 3, dated as of December 14, 1999 (as amended, the "AGREEMENT");
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein;
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) The definition of "LARGE LOAN LIMIT" contained in SECTION 1.1 of
the Agreement is hereby amended and restated to read in its entirety as follows:
"LARGE LOAN LIMIT: With respect to each Obligor, the aggregate
Outstanding Loan Balance of all Loans to such Obligor shall
not exceed the Large Loan Limit then in effect as follows: (i)
$10,000,000.00, provided the Aggregate Outstanding Loan
Balance is less than $200,000,000.00; (ii) $13,000,000.00,
provided the Aggregate Outstanding Loan Balance is at least
$200,000,000.00 but less than $300,000,000.00; (iii)
$15,000,000.00, provided the Aggregate Outstanding Loan
Balance is at least $300,000,000.00 but less than
$325,000,000.00; (iv) $17,000,000.00, provided the Aggregate
Outstanding Loan Balance is at least $325,000,000.00 but less
than $350,000,000.00; and (v) $20,000,000.00, provided the
Aggregate Outstanding Loan Balance is equal to or greater than
$350,000,000.00."
(b) The definition of "ELIGIBLE OBLIGOR" contained in SECTION 1.1 of
the Agreement is hereby amended as follows:
(1) the word "and" at the end of SUBSECTION (ix) is deleted;
(2) the period at the end of SUBSECTION (x) is replaced with
"; and"; and
(3) a new SUBSECTION (xi) shall be added as follows:
"(xi) such Obligor is in compliance with the Large
Loan Limit with respect to the aggregate Outstanding
Loan Balance of all Loans to such Obligor."
(c) SECTION 6.10(c) is hereby amended by adding the following sentence
to the end thereof:
"Notwithstanding anything contained in this SECTION 6.10(c) to
the contrary, in no event shall the Collateral Custodian
release any Loan File or part thereof to the Servicer for any
reason without the Deal Agent's prior written consent."
(d) SECTION 7.1(o) is hereby amended by adding the following clause to
the end thereof prior to the semi-colon:
", and such failure continues unremedied for a period of ten
(10) consecutive days".
(e) EXHIBIT L is amended and replaced in its entirety with the new
Exhibit L attached hereto.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED. Except as
specifically amended hereby, the Agreement shall remain in full force and
effect. All references to the Agreement shall be deemed to mean the Agreement as
modified hereby. This Amendment shall not constitute a novation of the
Agreement, but shall constitute an amendment thereof. The parties hereto agree
to be bound by the terms and conditions of the Agreement, as amended by this
Agreement, as though such terms and conditions were set forth herein.
SECTION 3. REPRESENTATIONS. Each of the Borrower and Servicer represent
and warrant as of the date of this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
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(ii) the execution, delivery and performance by it of this
Amendment are within its powers, have been duly authorized, and do not
contravene (A) its charter, by-laws, or other organizational documents,
or (B) any Applicable Law;
(iii) no consent, license, permit, approval or authorization
of, or registration, filing or declaration with any governmental
authority, is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment by or against
it;
(iv) this Amendment has been duly executed and delivered by
it;
(v) this Amendment constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity;
(vi) it is not in default under the Agreement; and
(vii) there is no Termination Event, Unmatured Termination
Event or Servicer Termination Event;
SECTION 4. EXPENSES. In connection with the execution of this
Amendment, the Borrower agrees to pay all reasonable and actual costs and
expenses (including without limitation the reasonable fees and expenses of legal
counsel) of Canadian Imperial Bank of Commerce ("CIBC") and VFCC, respectively,
incurred in connection with the review and negotiation of this Amendment.
SECTION 5. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to the following conditions precedent: (i) delivery to the Deal Agent
and CIBC of a copy of this Amendment duly executed by each of the parties
hereto; (ii) delivery to the Deal Agent and CIBC (in a form acceptable to the
Deal Agent) of a due authorization, execution and enforceability opinion with
respect to this Amendment; and (iii) such other documents, agreements,
certifications, or legal opinions as the Deal Agent may reasonably require.
SECTION 6. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts, and
by the different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original instrument but all of which together
shall constitute one and the same agreement.
(b) The descriptive headings of the various sections of this Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
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(c) This Amendment may not be amended or otherwise modified except as
provided in the Agreement.
(d) First Union certifies by execution hereof that it is an Investor
with Commitments in excess of 66-2/3% of the Facility Amount, and therefore is a
Required Investor pursuant to the Agreement.
(e) The failure or unenforceability of any provision hereof shall not
affect the other provisions of this Amendment.
(f) Whenever the context and construction so require, all words used in
the singular number herein shall be deemed to have been used in the plural, and
vice versa, and the masculine gender shall include the feminine and neuter and
the neuter shall include the masculine and feminine.
(g) This Amendment represents the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements between the parties. There are no unwritten oral agreements
between the parties.
(h) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER: ACS FUNDING TRUST I
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ACS Funding Trust I
c/o American Capital Strategies, Ltd., as Servicer
0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Compliance Officer
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE SERVICER: AMERICAN CAPITAL STRATEGIES, LTD.
By:
--------------------------------------
Name:
------------------------------------
Title:
------------------------------------
American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Compliance Officer
Facsimile No.: (000) 000-0000
Confirmation No.: (301 951-6122
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-1
THE INVESTORS: FIRST UNION NATIONAL BANK
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Commitment: $225,000,000.00
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Credit Administration
Facsimile No.: (000) 000-0000
Confirmation No: (000) 000-0000
LENDER: VARIABLE FUNDING CAPITAL CORPORATION
By First Union Securities, Inc.
(successor-in-interest to First Union
Capital Markets Corp.), as attorney-in-fact
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Variable Funding Capital Corporation
c/o First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
With a copy to:
Lord Securities Corp.
0 Xxxx Xxxxxx, 00xx Xxxxx
Attention: Vice President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-2
THE BACKUP SERVICER: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Norwest Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE COLLATERAL CUSTODIAN: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Norwest Bank Minnesota, National Association
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
S-3
THE DEAL AGENT: FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union
Capital Markets Corp.)
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
LENDER AND LIQUIDITY AGENT FIRST UNION NATIONAL BANK
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Credit Administration
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
Lender Commitment: $10,000,000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-4
CONSENTED TO:
CANADIAN IMPERIAL BANK OF COMMERCE
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Canadian Imperial Bank of Commerce
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Securitization Group -
Credit Administration
Reference: American Capital Strategies
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
FIRST UNION NATIONAL BANK,
as Hedge Counterparty
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Credit Administration
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
S-5
EXHIBIT L
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
[DELIVERY DATE]
BY FACSIMILE: (000) 000-0000
------------------------------
FIRST UNION SECURITIES, INC.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Conduit Administration
Re: Loan Funding and Servicing Agreement dated as of March 31, 1999 (as
amended, modified, supplemented or restated from time to time, the
"AGREEMENT"), by and among ACS Funding Trust I, as borrower, American
Capital Strategies, Ltd., as servicer, Variable Funding Capital
Corporation, as a lender, the Investors named therein, Norwest Bank
Minnesota, National Association, as backup servicer and as collateral
custodian, First Union Securities, Inc. (formerly known as First Union
Capital Markets Corp.), as deal agent, and First Union National Bank,
as a lender and as liquidity agent.
Ladies and Gentlemen:
In connection with the administration of the Loans held by you as the Collateral
Custodian on behalf of the Deal Agent under the Agreement, we request the
release, and acknowledge receipt, of the Loan File for the Loan described below,
for the reason indicated.
OBLIGOR'S NAME ADDRESS & ZIP CODE:
---------------------------------
LOAN NUMBER:
-----------
REASON FOR REQUESTING DOCUMENTS (check one)
-------------------------------
____ 1. Loan Paid in Full. (The Servicer hereby certifies that all amounts
received in connection therewith have been credited to the account of the Deal
Agent.)
____ 2. Loan Liquidated By ____________________________ (The Servicer hereby
certifies that all proceeds of foreclosure, insurance, condemnation or other
liquidation have been finally received and credited to the account of the Xxxx
Xxxxx.)
X-0
____ 3. Loan in Foreclosure.
____ 4. Other (explain) ______________________________.
If box 1 or 2 above is checked, and if all or part of the Loan File was
previously released to us, please release to us our previous request and receipt
on file with you, as well as any additional documents in your possession
relating to the specified Loan.
If box 3 or 4 above is checked, upon our return of all of the above documents to
you as the Collateral Custodian, please acknowledge your receipt by signing in
the space indicated below, and returning this form.
AMERICAN CAPITAL STRATEGIES, LTD.,
as Servicer
By:__________________________
Name:
Title:
Date:_______________________
Acknowledgment of Documents returned to the Collateral Custodian:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Collateral Custodian
By:___________________________
Name:
Title:
Deal Agent hereby consents to the Collateral Custodian releasing the Loan File
or a part thereof to the Servicer designated above:
FIRST UNION SECURITIES, INC.
(formerly known as First Union
Capital Markets Corp.),
as Deal Agent
By:___________________________
Name:
Title:
S-7
AMENDMENT NO. 5 TO
LOAN FUNDING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 5 TO LOAN FUNDING AND SERVICING AGREEMENT, dated as
of December 20, 2000 (this "Amendment"), is entered into by and among ACS
FUNDING TRUST I ("Borrower"), as Borrower, AMERICAN CAPITAL STRATEGIES, LTD.
("Servicer"), as Servicer, certain INVESTORS, VARIABLE FUNDING CAPITAL
CORPORATION ("VFCC"), as a Lender, FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union Capital Markets Corp.), as Deal Agent,
FIRST UNION NATIONAL BANK ("First Union"), as a Lender and as Liquidity Agent,
and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (formerly known as Norwest
Bank Minnesota, National Association), as Collateral Custodian and the Backup
Servicer. Capitalized terms used and not otherwise defined herein are used as
defined in the Agreement (as defined below).
WHEREAS, the parties hereto entered into that certain Loan Funding and
Servicing Agreement, dated as of March 31, 1999, as amended by Amendment No. 1,
dated as of June 30, 1999, Amendment No. 2, dated as of September 24, 1999,
Amendment No. 3, dated as of December 14, 1999, and Amendment Xx. 0, xxxxx xx xx
Xxxx 00, 0000 (xx amended, the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as provided herein.
NOW THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) The definition of Assignment of Mortgage in SECTION 1.1 of the
Agreement is hereby amended and restated in its entirety as follows:
"ASSIGNMENT OF MORTGAGE: As to each Loan secured by an
interest in real property, one or more assignments, notices of
transfer or equivalent instruments, each in recordable form
and sufficient under the laws of the relevant jurisdiction to
reflect the transfer of the related mortgage, deed of trust,
security deed or similar security instrument and all other
documents related to such Loan to the Borrower and to grant a
perfected lien thereon by the Borrower in favor of the Deal
Agent on behalf of the Secured Parties, each such Assignment
of Mortgage to be substantially in the form of EXHIBIT M
hereto; PROVIDED, HOWEVER, with respect to Agented Notes,
Assignment of Mortgage shall mean such documents, including
assignments, notices of transfer or equivalent instruments,
each in
recordable form as necessary, as are sufficient under the laws
of the relevant jurisdiction to reflect the transfer to the
Originator (or American Capital Financial Services, Inc., a
wholly owned subsidiary of the Originator), as collateral
agent for all noteholders of the Obligor, of the related
mortgage, deed of trust, security deed or other similar
instrument securing such notes and all other documents
relating to such notes and to grant a perfected lien thereon
by the Obligor in favor of the Originator (or American Capital
Financial Services, Inc., a wholly owned subsidiary of the
Originator), as collateral agent for all such noteholders."
(b) The definition of Eligible Loan in SECTION 1.1 of the Agreement is
hereby amended as follows:
(1) paragraph (xii) is amended and restated in its entirety as
follows:
"(xii) the Loan and all related Collateral and Related
Property are free of any Liens, except for Permitted Liens and
all filings and other actions required to perfect the security
interest of (a) the Deal Agent as agent for the Secured
Parties in the Collateral have been made or taken and (b) in
the case of Agented Notes, the collateral agent, as agent for
all noteholders of the related Obligor, in the Related
Property has been made or taken;";
(2) paragraph (xx) is amended by deleting the word "and" at
the end thereof;
(3) paragraph (xxi) is amended by deleting the period at the
end thereof and substituting in its place the following: ";
and"; and
(4) the following new paragraphs (xxii)-(xxviii) are added to
the end of the definition of Eligible Loan:
"(xxii) if such Loan is originated on or after December 1,
2000, the Obligor of such Loan has waived all rights of
set-off and/or counterclaim against the Originator of the Loan
and all assignees thereof;
(xxiii) with respect to Agented Notes, the related Loan
Documents (a) shall include a note purchase agreement
containing provisions relating to the appointment and duties
of a payment agent and a collateral agent and intercreditor
and (if applicable) subordination provisions substantially
similar to the forms provided to and approved by the Deal
Agent and attached hereto as EXHIBIT T, and (b) are duly
authorized, fully and properly executed and are the valid,
binding and unconditional payment obligation of the Obligor
thereof;
(xxiv) with respect to Agented Notes, the Originator (or
American Capital Financial Services, Inc., a wholly owned
subsidiary of the Originator) has been appointed the
collateral agent of the security and the payment agent for all
such notes prior to such Assigned Note becoming a part of the
Collateral;
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(xxv) with respect to Agented Notes, if the entity serving as
the collateral agent of the security for all syndicated notes
of the Obligor has or will change from the time of the
origination of the notes, all appropriate assignments of the
collateral agent's rights in and to the collateral on behalf
of the noteholders have been executed and filed or recorded as
appropriate prior to such Assigned Note becoming a part of the
Collateral;
(xxvi) with respect to Agented Notes, all required
notifications, if any, have been given to the collateral
agent, the payment agent and any other parties required by the
Loan Documents of, and all required consents, if any, have
been obtained with respect to, the Originator's assignment of
the Agented Notes and the Originator's right, title and
interest in the Related Property to the Borrower and the Deal
Agent's security interest therein on behalf of the Secured
Parties;
(xxvii) with respect to Agented Notes, the right to control
the actions of and to replace the collateral agent and/or the
paying agent of the syndicated notes is by the Note Majority;
and
(xxviii) with respect to Agented Notes, all syndicated notes
of the Obligor of the same priority are cross-defaulted, the
Related Property securing such notes is held by the collateral
agent for the benefit of all holders of the syndicated notes
and all holders of such notes (a) have an undivided interest
in the collateral securing such notes, (b) share in the
proceeds of the sale or other disposition of such collateral
on a pro-rata basis and (c) may transfer or assign their
right, title and interest in the Related Property."
(c) The definition of Loan in SECTION 1.1 of the Agreement is hereby
amended and restated in its entirety as follows:
"LOAN: Any senior or subordinated loan arising from the
extension of credit to an Obligor by the Originator in the
ordinary course of the Originator's business including,
without limitation, all Add-On Loans, Revolving Loans, PIK
Loans, the Euro-Caribe Loan and Agented Notes, monies due or
owing and all Interest Collections, Principal Collections and
other amounts received from time to time with respect to such
loan receivable and all Proceeds; PROVIDED, HOWEVER, the term
Loan shall not include Retained Interests."
(d) The definition of Loan Documents is hereby amended and restated in
its entirety as follows:
"LOAN DOCUMENTS: With respect to any Loan, the related
promissory note and any related loan agreement, security
agreement, mortgage, assignment of Loans, all guarantees, note
purchase agreement, intercreditor and/or subordination
agreement, and UCC financing statements and continuation
statements (including
3
amendments or modifications thereof) executed by the Obligor
thereof or by another Person on the Obligor's behalf in
respect of such Loan and related promissory note, including,
without limitation, general or limited guaranties and, for
each Loan secured by real property an Assignment of Mortgage,
and for all Loans with a Note, an assignment (which may be by
allonge), in blank, signed by an officer of the Originator."
(e) The definition of Lock-Box Agreement in SECTION 1.1 of the
Agreement is hereby amended and restated in its entirety to read as follows:
"LOCK-BOX AGREEMENT: The Intercreditor and Lockbox
Administration Agreement, dated as of December 20, 2000, among
Xxxxx Fargo Bank Minnesota, National Association, LaSalle
Bank, National Association, First Union Securities, Inc., each
of the parties from time to time that executes a joinder
agreement as securitization agent under the Securitization
Documents and American Capital Strategies, Ltd., as such
agreement is amended, modified or replaced from time to time,
which agreement shall supercede and replace the Lock-Box
Agreement previously entered into in the form of EXHIBIT R,
dated March 31, 1999, between LaSalle National Bank and ACS
Funding Trust I (which is being terminated pursuant to a
Lockbox Termination Agreement, dated as of December 20, 2000,
between LaSalle National Bank, ACS Funding Trust I and
consented to by First Union Securities, Inc., as Deal Agent)."
(f) The definition of Permitted Liens in SECTION 1.1 of the Agreement
is hereby amended and restated in its entirety to read as follows:
"PERMITTED LIENS: With respect to the Loans and the
Collateral, Liens in favor of the Deal Agent, as agent for the
Secured Parties, created pursuant to the Agreement and, in the
case of Related Property, any of the following as to which no
enforcement, collection, execution, levy or foreclosure
proceedings shall have been commenced: (a) materialmen's,
warehousemen's, mechanics' and other liens arising by
operation of law in the ordinary course of business for sums
not due or sums that are being contested in good faith, (b)
Liens for state, municipal and other local taxes if such taxes
are not at the time due and payable or if the Obligor shall
currently be contesting the validity thereof in good faith by
appropriate proceedings, (c) Liens held by senior lenders with
respect to subordinated Loans, (d) Liens created pursuant to
the Agreement in favor of the Deal Agent on behalf of the
Secured Parties and (e) with respect to Agented Notes, Liens
in favor of the collateral agent on behalf of all noteholders
of the related Obligor."
(g) The definition of Related Property in SECTION 1.1 of the Agreement
is hereby amended and restated in its entirety to read as follows:
"RELATED PROPERTY: With respect to any Loan, any property or
other assets of the Obligor thereunder pledged as collateral
to secure the repayment of the Loan."
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(h) SECTION 1.1 of the Agreement is hereby amended by adding the
following new definitions thereto:
"AGENTED NOTES: One or more promissory notes of an Eligible
Obligor wherein (a) the note(s) are originated in accordance
with the Credit and Collection Policy as a part of a
syndicated loan transaction, (b) upon an assignment of the
note to the Borrower under the Purchase Agreement, the
original note will be endorsed to the Deal Agent and held by
the Collateral Custodian, on behalf of the Secured Parties,
(c) the Borrower, as assignee of the note, will have all of
the rights but none of the obligations of the Originator with
respect to such note and the Originator's right, title and
interest in and to the Related Property including the right to
receive and collect payments directly in its own name and to
enforce its rights directly against the Obligor thereof, (d)
the note is secured by an undivided interest in the Related
Property which also secures and is shared by, on a pro-rata
basis, all other holders of such Obligor's notes of equal
priority and (e) the Originator (or American Capital Financial
Services, Inc., a wholly owned subsidiary of the Originator)
is the collateral agent and payment agent for all noteholders
of such Obligor; PROVIDED, HOWEVER, Agented Notes shall not
include (x) portions of Loans remaining as a part of the
Collateral following a Lien Release Dividend, (y) all of the
obligations, if any, of any agents under the Loan Documents
evidencing such Agented Loans, and (z) the interests, rights
and obligations under the Loan Documents evidencing such
Agented Notes that are retained by the Originator or are owned
or owed by other noteholders."
"NOTE MAJORITY: With respect to Agented Notes, the holders of
the notes evidencing not less than a majority of the
outstanding amount of all such notes of the Obligor."
"LIEN RELEASE DIVIDEND: Defined in SECTION 2.17(a)."
"LIEN RELEASE DIVIDEND DATE: The date specified by the
Borrower, which date may be any Business Day, provided written
notice is given in accordance with SECTION 2.17(a)."
"PERMITTED SECURITIZATION TRANSACTION: Any financing
transaction undertaken by the Borrower, the Originator or an
Affiliate of the Borrower or the Originator that is secured,
directly or indirectly, by the Loans or any portion thereof or
any interest therein, including any sale, lease, whole loan
sale, asset securitization, secured loan or other transfer."
"REVOLVING LOANS: Any Loan that is a line of credit or other
similar extension of credit by the Originator where the
Originator's commitment under such Loan is not fully funded
and/or the proceeds of the Loan may be repaid and reborrowed."
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"RETAINED INTERESTS: With respect to a Transferred Loan that
is a Revolving Loan, the Originator shall retain and not
transfer to the Borrower pursuant to the Purchase Agreement or
otherwise any unfunded commitment or obligation to provide
additional funding with respect to such Revolving Loan."
(i) ARTICLE II of the Agreement is hereby amended by adding the
following new SECTION 2.17 to the end thereof:
"Section 2.17 LIEN RELEASE DIVIDEND.
(a) Notwithstanding any provision contained in this Agreement
to the contrary, provided there is neither an Unmatured
Termination Event, a Termination Event nor a Servicer
Termination Event, on a Lien Release Dividend Date, the
Borrower may dividend to the Originator a portion of the Loans
or portions thereof to the Originator (the "Lien Release
Dividend"), subject to the following terms and conditions:
(1) The Borrower and the Originator shall have given
the Deal Agent at least two (2) Business Days' prior
written notice of its intent to effecuate a Lien
Release Dividend, unless such notice is waived or
reduced by the Deal Agent;
(2) Any Lien Release Dividend shall only be in
connection with a Permitted Securitization
Transaction;
(3) After giving effect to the Lien Release Dividend
and the transfer to the Originator of the Loans or
portions thereof on the Lien Release Dividend Date,
(A) the Advances Outstanding do not exceed the
Borrowing Base, (B) the representations and
warranties contained in SECTION 4.1 hereof shall
continue to be correct in all material respects,
except to the extent relating to an earlier date, (C)
the eligibility of any Loan remaining as part of the
Collateral after the Lien Release Dividend will be
redetermined as of the Lien Release Dividend Date,
(D) the Concentration Limits will be redetermined as
of the Lien Release Dividend Date, and (E) neither an
Unmatured Termination Event, a Termination Event nor
a Servicer Termination Event shall have resulted;
(4) Such Lien Release Dividend must be in compliance
with Applicable Law and may not (A) be made with the
intent to hinder, delay or defraud any creditor of
the Borrower or (B) leave the Borrower, immediately
after giving effect to the Lien Release Dividend, (i)
insolvent, (ii) with insufficient funds to pay its
obligations as and when they become due or (iii) with
inadequate capital for its present and anticipated
business and transactions;
6
(5) On or prior to the Lien Release Dividend Date,
the Borrower shall have (A) delivered to the Deal
Agent a list specifying all Loans or portions thereof
to be transferred pursuant to such Lien Release
Dividend and the Deal Agent shall have approved same
in its sole discretion and (B) obtained all
authorizations, consents and approvals required to
effectuate the Lien Release Dividend; and
(6) A portion of a Loan may be transferred pursuant
to a Lien Release Dividend provided that (A) such
transfer does not have an adverse effect on the
portion of the Loan remaining as a part of the
Collateral, any other Collateral, the Lenders, the
Secured Parties or the Deal Agent, (B) the Loan
Documents for such portion of the Loan remaining as a
part of the Collateral have been amended to contain
pro rata sharing, intercreditor and, if applicable,
subordination, provisions substantially the same as
those contained in the form of intercreditor and
subordination agreement provided to and reviewed by
the Deal Agent and is attached as EXHIBIT U to the
Loan Funding Agreement, and (C) a new promissory note
for the portion of the Loan remaining as a part of
the Collateral has been executed by the Obligor, and
the original thereof has been endorsed to the Deal
Agent and delivered to the Collateral Custodian.
(b) In connection with the Lien Release Dividend, there shall
be sold and assigned to the Borrower, without recourse,
representation or warranty, all of the right, title and
interest of the Deal Agent, on behalf of the Secured Parties,
in, to and under the Loans or portions thereof so transferred
(together with, in the case of the transfer of the Loans but
not portions thereof, any related Collateral) and such Loans
or portions thereof so transferred (together with, in the case
of the transfer of the Loans but not portions thereof, any
related Collateral) shall be released from the Lien of this
Agreement (subject to the requirements of clause (a)(3)
above).
(c) The Borrower hereby agrees to pay the reasonable legal
fees and expenses of the Deal Agent and the Secured Parties in
connection with any Lien Release Dividend (including, but not
limited to, expenses incurred in connection with the release
of the Lien of the Deal Agent, on behalf of the Secured
Parties, and any other party having an interest in the Loans
in connection with such Lien Release Dividend).
(d) In connection with any Lien Release Dividend, on the
related Lien Release Dividend Date, the Deal Agent, on behalf
of the Secured Parities, shall, at the expense of the Borrower
(1) execute such instruments of release with respect to the
Loans or portions thereof to be transferred to the Borrower
(together with, in the case of the transfer of the Loans but
not portions thereof, any related Collateral), in recordable
form if necessary, in favor of the Borrower as the Borrower
may reasonably request, (2) deliver any portion of the Loans
or portions
7
thereof to be transferred to the Borrower (together with, in
the case of the transfer of the Loans but not portions
thereof, any related Collateral) in its possession to the
Borrower and (3) otherwise take such actions, and cause or
permit the Collateral Custodian to take such actions, as are
necessary and appropriate to release the Lien of the Deal
Agent on behalf of the Secured Parties on the Loans or
portions thereof to be transferred to the Borrower (together
with, in the case of the transfer of the Loans but not
portions thereof, any related Collateral) and release and
deliver to the Borrower such Loans or portions thereof to be
transferred to the Borrower (together with, in the case of the
transfer of the Loans but not portions thereof, any related
Collateral)."
(j) SECTION 3.2 of the Agreement is hereby amended as follows:
(1) SECTION 3.2 (h) is hereby amended by deleting the word "and" at the
end thereof;
(2) SECTION 3.2 (i) is hereby amended by deleting the period at the end
thereof and substituting in its place the following: "; and"; and
(3) the following new SECTION 3.2(j) is hereby added to the end
thereof:
"(j) the Loan Documents for the Agented Notes contain
provisions relating to agency and sharing of collateral
substantially the same as those contained in EXHIBIT T."
(k) SECTION 6.9 of the Agreement is hereby amended by adding the
following new SECTION 6.9(l) to the end thereof:
"(l) The Servicer and the Originator covenant that they shall
not without the prior written consent of the Deal Agent (i)
make or consent to any amendment or alteration of the terms of
the Assigned Note or related Loan Documents including without
limitation the payments due thereunder, (ii) undertake to
release or authorize or consent to the release of any
collateral or security for the Assigned Notes, (iii)
accelerate or extend the maturity of any Assigned Note or (iv)
waive any claim against the Obligor or any applicable
guarantor thereof, where the effect of any of the foregoing
would have a material adverse effect on the Collateral, the
Lenders, the Secured Parties or the Deal Agent."
(l) SECTION 6.10 is hereby amended by adding the following new SECTION
6.10(g) to the end thereof:
"6.10(g) RELEASE OF LOAN DOCUMENTS FOLLOWING A LIEN RELEASE
DIVIDEND. To the extent that portions of Loans are transferred
pursuant to a Lien Release Dividend under SECTION 2.17 and
such portions of transferred Loans are part of a Permitted
Securitization Transaction, the Collateral Custodian may, BUT
ONLY WITH THE DEAL AGENT'S PRIOR WRITTEN CONSENT, and upon
terms and conditions satisfactory to the
8
Deal Agent, including without limitation the execution by the
servicer of the sold Loans of all such documents as the Deal
Agent may require, release original Loan Documents (excluding
the related original promissory note(s)) to the servicer of
such sold Loans for the purposes of enforcing or servicing
such Loans in connection with a Permitted Securitization
Transaction."
(m) The Agreement is hereby amended by adding new EXHIBITS T and U
thereto, copies of which are attached to this Amendment.
(n) The Agreement is hereby amended by deleting therefrom all
references and obligations to and all rights of Canadian Imperial Bank of
Commerce.
(o) For the purposes of the UCC amendments filed in accordance with
this Amendment, all references to Optional Sales shall be deemed to be
references to Lien Release Dividends and all references to sales and assignments
of Loans or portions thereof shall be deemed to be transfers of Loans or
portions thereof pursuant to a dividend under a Lien Release Dividend.
SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, the Agreement shall remain in
full force and effect. All references to the Agreement shall be deemed to mean
the Agreement as modified hereby. This Amendment shall not constitute a novation
of the Agreement, but shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and conditions of the Agreement, as amended by
this Agreement, as though such terms and conditions were set forth herein.
SECTION 3. REPRESENTATIONS.
Each of the Borrower and Servicer represent and warrant as of the date
of this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
(ii) the execution, delivery and performance by it of this
Amendment are within its powers, have been duly authorized, and do not
contravene (A) its charter, by-laws, or other organizational documents,
or (B) any Applicable Law;
(iii) no consent, license, permit, approval or authorization
of, or registration, filing or declaration with any governmental
authority, is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment by or against
it;
(iv) this Amendment has been duly executed and delivered by
it;
9
(v) this Amendment constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity;
(vi) it is not in default under the Agreement; and
(vii) there is no Termination Event, Unmatured Termination
Event or Servicer Termination Event;
SECTION 4. EXPENSES.
In connection with the execution of this Amendment, the Borrower agrees
to pay all reasonable and actual costs and expenses (including without
limitation the reasonable fees and expenses of legal counsel) of and VFCC, the
Collateral Custodian and the Backup Servicer incurred in connection with the
review and negotiation of this Amendment.
SECTION 5. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the following
conditions precedent: (a) delivery to the Deal Agent of a copy of this Amendment
duly executed by each of the parties hereto; (b) delivery to the Deal Agent (in
a form acceptable to the Deal Agent) of (i) a due authorization, execution and
enforceability opinion with respect to this Amendment and (ii) updated true sale
and non-consolidation opinions; and (c) such other documents, agreements,
certifications, or legal opinions as the Deal Agent may reasonably require.
SECTION 6. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement.
(b) The descriptive headings of the various sections of this Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
(c) This Amendment may not be amended or otherwise modified except as
provided in the Agreement.
(d) First Union certifies by execution hereof that it is an Investor
with Commitments in excess of 66-2/3% of the Facility Amount, and therefore is a
Required Investor pursuant to the Agreement.
10
(e) The failure or unenforceability of any provision hereof shall not
affect the other provisions of this Amendment.
(f) Whenever the context and construction so require, all words used in
the singular number herein shall be deemed to have been used in the plural, and
vice versa, and the masculine gender shall include the feminine and neuter and
the neuter shall include the masculine and feminine.
(g) This Amendment represents the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements between the parties. There are no unwritten oral agreements
between the parties.
(h) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWER: ACS FUNDING TRUST I
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
ACS Funding Trust I
c/o American Capital Strategies, Ltd., as Servicer
0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Compliance Officer
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE SERVICER: AMERICAN CAPITAL STRATEGIES, LTD.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Compliance Officer
Facsimile No.: (000) 000-0000
Confirmation No.: (301 951-6122
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-1
THE INVESTORS: FIRST UNION NATIONAL BANK
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Commitment: $225,000,000.00
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Credit Administration
Facsimile No.: (000) 000-0000
Confirmation No: (000) 000-0000
LENDER: VARIABLE FUNDING CAPITAL CORPORATION
By First Union Securities, Inc.
(successor-in-interest to First Union
Capital Markets Corp.), as attorney-in-fact
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Variable Funding Capital Corporation
c/o First Union Securities, Inc.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
With a copy to:
Lord Securities Corp.
0 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Vice President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-2
THE BACKUP SERVICER: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
(FORMERLY KNOWN AS NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION)
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Xxxxx Fargo Bank Minnesota, National Association
MAC X0000-000
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE COLLATERAL CUSTODIAN: XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION (FORMERLY KNOWN
AS NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION)
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Xxxxx Fargo Bank Minnesota, National Association
MAC X0000-000
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
S-3
THE DEAL AGENT: FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union
Capital Markets Corp.)
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
First Union Capital Markets Corp.
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Conduit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
LENDER AND LIQUIDITY AGENT: FIRST UNION NATIONAL BANK
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Credit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
Lender Commitment: $10,000,000
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-4
CONSENTED TO:
FIRST UNION NATIONAL BANK,
as Hedge Counterparty
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Capital Markets Credit Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
S-5
EXHIBIT T
FORM OF AGENT AND INTERCREDITOR PROVISIONS FOR AGENTED NOTES
(See Attached)
1
EXHIBIT U
FORM OF INTERCREDITOR AND SUBORDINATION AGREEMENT
(See Attached)
1
EXHIBIT A
FORM OF TRANSFER AND SERVICING AGREEMENT
A-1
EXHIBIT B
FORM OF CLASS A NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT THIS
SECURITY MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY TO THE
ISSUER OR PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT, IN ACCORDANCE WITH RULE
144A, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A. THIS SECURITY WILL NOT BE
ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE
SATISFACTORY TO THE INDENTURE TRUSTEE THAT THE RESTRICTIONS ON TRANSFER HAVE
BEEN COMPLIED WITH.
Issued under the terms of an Indenture dated December 20, 2000 (the
"Indenture"), among ACAS Business Loan Trust 2000-1 (the "Issuer") and Xxxxx
Fargo Bank Minnesota, National Association (the "Indenture Trustee").
This Security does not represent any interest in or obligation of
American Capital Strategies, Ltd. ("ACAS") or any Affiliate of ACAS, other than
the Issuer. This Security is not a savings account or deposit and it is not
insured by the United States or any agency or fund of the United States.
The Principal of this Note is payable in full on the date set forth
herein. Accordingly, the Outstanding Principal Balance of this Note at any time
may be less than the amount shown on the face hereof.
X-0
XXXX XXXXXXXX XXXX XXXXX 0000-0
XXXXX + 0.45% CLASS A LOAN-BACKED NOTES
REGISTERED $69,200,000
CUSIP Xx. 00000XXX0
Xx. X-0
XXXX Business Loan Trust 2000-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of SIXTY NINE MILLION TWO HUNDRED THOUSAND
DOLLARS ($69,200,000) payable on the earlier of March 20, 2006 (the "Class A
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.01 of
the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum
provided in the Indenture on each Payment Date until the principal of this Note
is paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in Section 3.01 of the Indenture. Interest on this Note will accrue
for each Payment Date from the most recent Payment Date on which interest has
been paid to but excluding such Payment Date or, if no interest has yet been
paid, from the Closing Date. Interest will be computed on the basis of a 360-day
year and actual days elapsed. Such principal of and interest on this Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
B-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by an Authorized Officer, as of the date set forth
below.
Date: December 20, 2000 ACAS BUSINESS LOAN TRUST 2000-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity
but solely on behalf of the Issuer as Owner
Trustee, under the Trust Agreement
By:
--------------------------------------------
Printed Name:
-------------------------------
Title:
--------------------------------------
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Indenture Trustee
By:
--------------------------------------------
Authorized Signatory
B-3
{REVERSE OF CLASS A NOTE}
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class A Loan-Backed Notes (the "Class A Notes"), all issued
under an Indenture, dated as of December 20, 2000 (the "Indenture"), among the
Issuer and Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Class A Notes are subject to all terms of the
Indenture. All terms used in this Note that are defined in the Indenture, as
supplemented or amended, shall have the meanings assigned to them in or pursuant
to the Indenture, as so supplemented or amended.
The Class A Notes and the other Notes described in the Indenture
(collectively, the "Notes") are and will be equally and ratably secured by the
collateral pledged as security therefor as provided in the Indenture subject to
the priorities of allocations as to interest and principal payments as described
therein and in the Transfer and Servicing Agreement.
Principal of the Class A Notes will be payable on the earlier of the
Class A-1 Maturity Date and the Redemption Date, if any, selected pursuant to
the Indenture. Notwithstanding the foregoing, the entire unpaid principal amount
of the Class A Notes shall be due and payable on the date on which an Event of
Default shall have occurred and be continuing unless the Required Holders have
waived such Event of Default; provided, however, that the Required Holders may
not waive an Event of Default relating to the occurrence of an Insolvency Event
relating to the Trust Depositor or the Originator.
Payments of interest on this Note due and payable on each Payment Date
shall be made by wire transfer to the account of the Person whose name appears
as the Registered Holder of this Note (or one or more Predecessor Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Notes registered on the Record Date in the name of nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee; provided that, if Definitive Notes are issued pursuant to
Section 2.11 of the Indenture, payments may be made by check. Such checks shall
be mailed to the Person entitled thereto at the address of such Person as it
appears on the Note Register as of the applicable Record Date without requiring
that this Note be submitted for notation of payment. Any reduction in the
principal amount of this Note (or any one or more Predecessor Notes) affected by
any payments made on any Payment Date shall be binding upon all future Holders
of this Note and of any Note issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are
expected to be available, as provided in the Indenture, for payment in full of
the then remaining unpaid principal amount of this Note on a Payment Date, then
the Indenture Trustee, in the name of and on behalf of the Issuer, will notify
the Person who was the Registered Holder hereof as of the Record Date preceding
such Payment Date by notice mailed within five days of such Payment Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Corporate Trust Office of the Indenture Trustee or
at the office of the Indenture Trustee's agent appointed for such purposes
located in the City of New York, New York.
B-4
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new Notes of
authorized denominations and in the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in its individual capacity, any holder of a beneficial interest in the
Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign
of the Indenture Trustee or the Owner Trustee in its individual capacity, except
as any such Person may have expressly agreed and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note, covenants and agrees that by accepting the benefits of the Indenture and
such Note that such Noteholder will not at any time institute against the Trust
Depositor or the Issuer, or join in any institution against the Trust Depositor
or the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness that is solely
secured by the Indenture Collateral and that the Issuer will be disregarded as a
separate entity for federal income tax purposes pursuant to Treasury Regulations
Section 301.7701-3(b)(1)(ii). Each Noteholder, by acceptance of a Note (and each
Noteholder by acceptance of a beneficial interest in a Note), agrees to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness.
Prior to the due presentment for registration of transfer of this Note,
the Issuer and the Indenture Trustee and any agent of the Issuer and the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this
B-5
Note be overdue, and neither the Issuer, the Indenture Trustee nor any such
agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer and the Required Holders. The Indenture also contains provisions
permitting the Noteholders representing specified percentages of the Outstanding
Amount of the Notes, on behalf of the Noteholders, to waive compliance by the
Issuer with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
Noteholder (or any one of more Predecessor Notes) shall be conclusive and
binding upon all Holders and upon all future Noteholders and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Noteholders issued
thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
B-6
EXHIBIT C
FORM OF CLASS B NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUE IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUIRED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT THIS
SECURITY MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY TO THE
ISSUER OR PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT, IN ACCORDANCE WITH RULE
144A, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A. THIS SECURITY WILL NOT BE
ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE
SATISFACTORY TO THE INDENTURE TRUSTEE THAT THE RESTRICTIONS ON TRANSFER HAVE
BEEN COMPLIED WITH.
Issued under the terms of an Indenture dated December 20, 2000 (the
"Indenture"), among ACAS Business Loan Trust 2000-1 (the "Issuer") and Xxxxx
Fargo Bank Minnesota, National Association (the "Indenture Trustee").
This Security does not represent any interest in or obligation of
American Capital Strategies, Ltd. ("ACAS") or any Affiliate of ACAS, other than
the Issuer. This Security is not a savings account or deposit and it is not
insured by the United States or any agency or fund of the United States.
The Principal of this Note is payable in full on the date set forth
herein. Accordingly, the Outstanding Principal Balance of this Note at any time
may be less than the amount shown on the face hereof.
X-0
XXXX XXXXXXXX XXXX XXXXX 0000-0
XXXXX + 1.50% CLASS B LOAN-BACKED NOTES
REGISTERED $46,200,000
CUSIP No. 00000XXX0
No. R-1
ACAS Business Loan Trust 2000-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to Cede & Co., or its
registered assigns, the principal sum of FORTY SIX MILLION TWO HUNDRED THOUSAND
DOLLARS ($46,200,000) payable on the earlier of August 20, 2007 (the "Class B
Maturity Date") and the Redemption Date, if any, pursuant to Section 10.01 of
the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum
provided in the Indenture on each Payment Date until the principal of this Note
is paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the Indenture. Interest on this Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to but
excluding such Payment Date or, if no interest has yet been paid, from the
Closing Date. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
C-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by an Authorized Officer, as of the date set forth
below.
Date: December 20, 2000 ACAS BUSINESS LOAN TRUST 2000-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity
but solely on behalf of the Issuer as Owner
Trustee, under the Trust Agreement
By:
---------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Indenture Trustee
By:
---------------------------------------------
Authorized Signatory
C-3
[REVERSE OF CLASS B NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class B Loan-Backed Notes (the "Class B Notes"), all issued
under an Indenture, dated as of December 20, 2000 (the "Indenture"), among the
Issuer and Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
The Class B Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Indenture Collateral pledged as security therefor as provided in
the Indenture subject to the priorities of allocations as to interest and
principal payments as described therein and in the Transfer and Servicing
Agreement.
Principal of the Class B Notes will be payable on the earlier of the
Class B Maturity Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Class B Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing unless the Required
Holders waive such Event of Default; provided, however, that the Required
Holders may not waive an Event of Default relating to the occurrence of an
Insolvency Event relating to the Trust Depositor or the Originator.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payments will be made by wire
transfer in immediately available funds to the account designated by such
nominee; provided that, if Definitive Notes are issued pursuant to Section 2.11
of the Indenture, payments may be made by check. Such checks shall be mailed to
the Person entitled thereto at the address of such Person as it appears on the
Note Register as of the applicable Record Date without requiring that this Note
be submitted for notation of payment. Any reduction in the principal amount of
this Note (or any one or more Predecessor Notes) affected by any payments made
on any Payment Date shall be binding upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not noted hereon. If funds are expected to be
available, as provided in the Indenture, for payment in full of the then
remaining unpaid principal amount of this Note on a Payment Date, then the
Indenture Trustee, in the name of and on behalf of the Issuer, will notify the
Person who was the Registered Holder hereof as of the Record Date preceding such
Payment Date by notice mailed within five days of such Payment Date and the
amount then due and payable shall be payable only upon presentation and
surrender of this Note at the Indenture Trustee's principal Corporate
C-4
Trust Office or at the office of the Indenture Trustee's agent appointed for
such purposes located in the City of New York, New York.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new Class B
Notes of authorized denomination and in the same aggregate principal amount will
be issued to the designated transferee or transferees. No service charge will be
charged for any registration of transfer or exchange of this Note, but the
transferor may be required to pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any such registration
of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note, covenants and agrees that by accepting the benefits of the Indenture and
such Note that such Noteholder will not at any time institute against the Trust
Depositor or the Issuer, or join in any institution against the Trust Depositor
or the Issuer, of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness that is solely
secured by the Indenture Collateral and that the Issuer will be disregarded as a
separate entity for federal income tax purposes pursuant to Treasury Regulations
Section 301.7701-3(b)(1)(ii). Each Noteholder, by acceptance of a Note or of a
beneficial interest in a Note, agrees to treat the Notes for federal, state and
local income, single business and franchise tax purposes as indebtedness.
C-5
Prior to the due presentment for registration of transfer of this Note,
the Issuer and the Indenture Trustee and any agent of the Issuer and the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Required Holders. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes, on behalf of the Holders of
all of the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note (or any one
of more Predecessor Notes) shall be conclusive and binding upon all Holders and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
C-6
EXHIBIT D
FORM OF CLASS C NOTE
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT THIS
SECURITY MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY TO THE
ISSUER OR PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A (A "QIB") PURCHASING FOR ITS OWN ACCOUNT, IN ACCORDANCE WITH RULE
144A, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A. THIS SECURITY WILL NOT BE
ACCEPTED FOR REGISTRATION OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE
SATISFACTORY TO THE INDENTURE TRUSTEE THAT THE RESTRICTIONS ON TRANSFER HAVE
BEEN COMPLIED WITH.
Issued under the terms of an Indenture dated December 20, 2000 (the
"Indenture"), among ACAS Business Loan Trust 2000-1 (the "Issuer") and Xxxxx
Fargo Bank Minnesota, National Association (the "Indenture Trustee").
This Security does not represent any interest in or obligation of
American Capital Strategies, Ltd. ("ACAS") or any Affiliate of ACAS, other than
the Issuer. This Security is not a savings account or deposit and it is not
insured by the United States or any agency or fund of the United States.
The Principal of this Note is payable in full on the date set forth
herein. Accordingly, the Outstanding Principal Balance of this Note at any time
may be less than the amount shown on the face hereof.
D-1
ACAS BUSINESS LOAN TRUST 2000-1
CLASS C LOAN-BACKED NOTES
REGISTERED $38,500,000
No. R-1
ACAS Business Loan Trust 2000-1, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ACAS Business Loan LLC,
2000-1 or its registered assigns, the principal sum of THIRTY EIGHT MILLION FIVE
HUNDRED THOUSAND DOLLARS ($38,500,000) payable on the earlier of July 20, 2011
(the "Class C Maturity Date") and the Redemption Date, if any, pursuant to
Section 10.01 of the Indenture referred to on the reverse hereof.
The Issuer will pay interest on this Note at the rate per annum
provided in the Indenture on each Payment Date until the principal of this Note
is paid or made available for payment, on the principal amount of this Note
outstanding on the preceding Payment Date (after giving effect to all payments
of principal made on the preceding Payment Date), subject to certain limitations
contained in the Indenture. Interest on this Note will accrue for each Payment
Date from the most recent Payment Date on which interest has been paid to but
excluding such Payment Date or, if no interest has yet been paid, from the
Closing Date. Interest will be computed on the basis of a 360-day year of twelve
30-day months. Such principal of and interest on this Note shall be paid in the
manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
D-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by an Authorized Officer, as of the date set forth
below.
Date: December 20, 2000 ACAS BUSINESS LOAN TRUST 2000-1
By: FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity
but solely on behalf of the Issuer as Owner
Trustee, under the Trust Agreement
By:
---------------------------------------------
Printed Name:
--------------------------------
Title:
---------------------------------------
INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Indenture Trustee
By:
---------------------------------------------
Authorized Signatory
D-3
[REVERSE OF CLASS C NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Class C Loan-Backed Notes (the "Class C Notes"), all issued
under an Indenture, dated as of December 20, 2000 (the "Indenture"), among the
Issuer and Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee (the "Indenture Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights and obligations thereunder of the Issuer, the Indenture Trustee and the
Holders of the Notes. The Notes are subject to all terms of the Indenture. All
terms used in this Note that are defined in the Indenture, as supplemented or
amended, shall have the meanings assigned to them in or pursuant to the
Indenture, as so supplemented or amended.
The Class C Notes and the other Classes of Notes described in the
Indenture (collectively, the "Notes") are and will be equally and ratably
secured by the Indenture Collateral pledged as security therefor as provided in
the Indenture subject to the priorities of allocations as to interest and
principal payments as described therein and in the Transfer and Servicing
Agreement.
Principal of the Class C Notes will be payable on the earlier of the
Class C Maturity Date and the Redemption Date, if any, pursuant to Section 10.01
of the Indenture. Notwithstanding the foregoing, the entire unpaid principal
amount of the Class C Notes shall be due and payable on the date on which an
Event of Default shall have occurred and be continuing unless the Required
Holders waive such Event of Default; provided, however, that the Required
Holders may not waive an Event of Default relating to the occurrence of an
Insolvency Event relating to the Trust Depositor or the Originator.
Payments of interest on this Note due and payable on each Payment Date
shall be made by check mailed to the Person whose name appears as the Registered
Holder of this Note (or one or more Predecessor Notes) on the Note Register as
of the close of business on each Record Date, except that with respect to Notes
registered on the Record Date in the name of nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.) or with respect to any Holder who has
provided written instructions to the Indenture Trustee at least ten (10) days
prior to the Payment Date, payments will be made by wire transfer in immediately
available funds to the account designated by such nominee; provided that, if
Definition Notes are issued pursuant to Section 2.11 of the Indenture, payments
may be made by check. Such checks shall be mailed to the Person entitled thereto
at the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) affected by any payments made on any Payment Date
shall be binding upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Payment Date, then the Indenture Trustee, in
the name of and on behalf of the Issuer, will notify the Person who was the
Registered Holder hereof as of the Record Date preceding such Payment Date by
notice mailed within five days of such Payment Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note
D-4
at the Indenture Trustee's principal Corporate Trust Office or at the office of
the Indenture Trustee's agent appointed for such purposes located in the City of
New York, New York.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Holder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an eligible guarantor
institution which is a participant in the Securities Transfer Agent's Medallion
Program (STAMP) or similar signature guarantee program, and such other documents
as the Indenture Trustee may require, and thereupon one or more new program, and
such other documents as the Indenture Trustee may require, and thereupon one or
more new Class C Notes of authorized denomination and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note, covenants and agrees that no recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or under the Indenture or any certificate or
other writing delivered in connection therewith, against (i) the Indenture
Trustee or the Owner Trustee in their individual capacities, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Owner
Trustee in their individual capacities, any holder of a beneficial interest in
the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or
assign of the Indenture Trustee or the Owner Trustee in their individual
capacities, except as any such Person may have expressly agreed and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
Each Noteholder, by acceptance of a Note or a beneficial interest in a
Note, covenants and agrees that by accepting the benefits of the Indenture and
such Note that such Noteholder will not at any time institute against the Trust
Depositor or the Issuer, or join in any institution against the Trust Depositor
or the Issuer of any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the Transaction Documents.
The Issuer has entered into the Indenture, and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness that is solely
secured by the Indenture Collateral and that the Issuer will be disregarded as a
separate entity for federal income tax purposes pursuant to Treasury Regulations
Section 301.7701-3(b)(1)(ii). Each Noteholder, by acceptance of a Note or of a
beneficial interest in a Note, agrees to treat the Notes for federal, state and
local income, single business and franchise tax purposes as indebtedness.
D-5
Prior to the due presentment for registration of transfer of this Note,
the Issuer and the Indenture Trustee and any agent of the Issuer and the
Indenture Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer with the consent of the Required Holders. The Indenture also
contains provisions permitting the Holders of Notes representing specified
percentages of the Outstanding Amount of the Notes, on behalf of the Holders of
all of the Notes, to waive compliance by the Issuer with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note (or any one
of more Predecessor Notes) shall be conclusive and binding upon such Holders and
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Notes issued thereunder.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the
laws of the State of New York, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency herein prescribed.
D-6
EXHIBIT E
FORM OF NOTE ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
--------------------------------------------------------------------------------
to transfer said Note on the books for registration thereof, with full power of
substitution in the premises.
Dated:_____________
Signature Guaranteed:
Signature must be guaranteed by an eligible guarantor
institution which is a participant in the Securities
Transfer Agent's Medallion Program (STAMP) or similar
signature guarantee program.
----------------------------------------
(Authorized Officer)
----------------------------------------
Notice: The signature(s) on this assignment
must correspond with the name(s) as it appears on the
face of the within Note in every particular, without
alteration or enlargement or any change whatsoever.
E-1
EXHIBIT F
FORM OF NOTE DEPOSITORY AGREEMENT
[STANDARD DTC AGREEMENT]
F-1
EXHIBIT G
FORM OF INVESTOR LETTER
ACAS Business Loan Trust 2000-1
c/o First Union Trust Company, National Association
One Xxxxxx Xxxxxx, 0xx Xxxxx Association
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxx Fargo Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, Xxxxxxxxx 00000
[date]
Re: ACAS Business Loan Trust 2000-1
Loan-Backed Notes, Series 2000-1
[Class A / Class B / Class C]
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the undersigned
(the "Purchaser") pursuant to the Indenture dated as of December 20, 2000 (the
"Indenture"), among ACAS Business Loan Trust 2000-1 (the "Issuer") and Xxxxx
Fargo Bank Minnesota, National Association, as Indenture Trustee (the "Indenture
Trustee"). The Purchaser is delivering this letter in connection with the
transfer to it of a Loan-Backed Note, Series 2000-1 [Class A Note / Class B Note
/ Class C Note]. Capitalized terms used herein without definition shall have the
meanings provided in the Indenture.
The Purchaser hereby represents, warrants and covenants with the Issuer
and the Indenture Trustee as follows:
(i) It understands that the [Class A Note / Class B Note / Class
C] Notes may be resold only to QIBs pursuant to Rule 144A and
that [Class A Note / Class B Note / Class C] Notes will be
available only as beneficial interests in the Rule 144A Global
Note.
(ii) It understands that the [Class A Note / Class B Note / Class
C] Notes have not been and will not be registered under the
Securities Act or any state or other applicable securities law
and that the [Class A Note / Class B Note / Class C] Notes, or
any interest or participation therein, may not be offered,
sold, pledged or otherwise transferred unless registered
pursuant to, or exempt from registration under, the Securities
Act and any other applicable securities law.
G-1
(iii) It acknowledges that none of the Initial Investors has made
any representation to it with respect to the offering or sale
of any [Class A Note / Class B Note / Class C] Notes, other
than the information contained in the Private Placement
Memorandum and the Exhibit thereto which has been delivered to
it and upon which it is relying in making its investment
decision with respect to the [Class A Note / Class B Note /
Class C] Notes. It has had access to such financial and other
information concerning the [Class A Note / Class B Note /
Class C] Notes as it has deemed necessary in connection with
its decision to purchase the [Class A Note / Class B Note /
Class C] Notes.
(iv) It acknowledges that the [Class A Note / Class B Note / Class
C] Notes bear the following legend:
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES THAT THIS SECURITY MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE
WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY
TO THE ISSUER OR PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT TO A PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
(A "QIB") PURCHASING FOR ITS OWN ACCOUNT, IN ACCORDANCE WITH
RULE 144A, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER,
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A. THIS SECURITY WILL NOT BE ACCEPTED FOR REGISTRATION
OF TRANSFER EXCEPT UPON PRESENTATION OF EVIDENCE SATISFACTORY
TO THE INDENTURE TRUSTEE THAT THE RESTRICTIONS ON TRANSFER
HAVE BEEN COMPLIED WITH.
(v) If it is acquiring any [Class A Note / Class B Note / Class C]
Note, or any interest or participation therein, as a fiduciary
or agent for one or more investor accounts, it represents that
it has sole investment discretion with respect to such account
and that it has full power to make the acknowledgments,
representations and agreements contained herein on behalf of
each such account.
(vi) It (1) is a QIB, (2) is aware that the sale to it is being
made in reliance on Rule 144A and if it is acquiring such
[Class A Note / Class B Note / Class C] Notes or any interest
or participation therein for the account of another QIB, such
other QIB is aware that the sale is being made in reliance on
Rule 144A and (3) is
G-2
acquiring such [Class A Note / Class B Note / Class C] Notes
or any interest or participation therein for its own account
or for the account of a QIB.
(vii) It is purchasing the [Class A Note / Class B Note / Class C]
Notes for its own account, or for one or more investor
accounts for which it is acting as fiduciary or agent, in each
case for investment, and not with a view to, or for offer or
sale in connection with, any distribution thereof in violation
of the Securities Act, subject to any requirements of law that
the disposition of its property or the property of such
investor account or accounts be at all times within its or
their control and subject to its or their ability to resell
such [Class A Note / Class B Note / Class C] Notes, or any
interest or participation therein, as described herein and as
provided in the Indenture.
(viii) It agrees that if in the future it should offer, sell or
otherwise transfer such [Class A Note / Class B Note / Class
C] Note or any interest or participation therein, it will do
so only (A) to the Issuer, or (B) pursuant to Rule 144A to a
person whom it reasonably believes is a QIB in a transaction
meeting the requirements of Rule 144A, purchasing for its own
account or for the account of a QIB, whom it has informed that
such offer, sale or other transfer is being made in reliance
on Rule 144A.
(ix) It acknowledges that the [Class A Note / Class B Note / Class
C] Notes will be represented by a Rule 144A Global Note and
that transfers thereof or any interest or participation
therein are restricted.
(x) It acknowledges that the Issuer, the Originator, the Trust
Depositor, the Initial Investors and others will rely on the
truth and accuracy of the foregoing acknowledgments,
representations and agreements, and agrees that if any of the
foregoing acknowledgments, representations and agreements
deemed to have been made by it are no longer accurate, it
shall promptly notify the Issuer, the Originator, the Trust
Depositor and the Initial Investors.
The Purchaser further represents, warrants and covenants that
the [Class A Note / Class B Note / Class C] Notes or any
interest therein may be transferred to any Person unless such
Person has executed and delivered the Investor Letter to the
Indenture Trustee.
Very truly yours,
(type name of Purchaser above)
By:
-------------------------------
Name:
Title:
G-3
