EXHIBIT 10.2
AMENDMENT NO. 1 TO
PLEDGE AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO PLEDGE AND SECURITY AGREEMENT, dated as of
December 20, 2000 (this "AMENDMENT"), is entered into by and among ACS FUNDING
TRUST I ("BUYER"), as Buyer, AMERICAN CAPITAL STRATEGIES, LTD. ("SELLER"), as
Seller, and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (formerly known as
Norwest Bank Minnesota, National Association), as Escrow Agent. 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 Pledge and
Security Agreement, dated as of March 31, 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) SECTION 1.1 of the Agreement is hereby amended by adding the
following new definitions thereto:
LIEN RELEASE DIVIDEND: Defined in the Purchase Agreement and
the Loan Funding Agreement, respectively, as the same have
been and are amended, modified, restated, supplemented or
replaced from time to time.
RELEASE: Defined in SECTION 20.
RELATED SUPPLEMENTAL INTERESTS: Defined in SECTION 20.
(b) The Agreement is hereby amended to add the following new SECTION
20:
20. RELEASE OF SECURITY INTEREST IN CONNECTION WITH A LIEN
RELEASE DIVIDEND.
Section 2.17 LIEN RELEASE DIVIDEND.
(a) Notwithstanding any provision contained in this Agreement to
the contrary, in connection with Lien Release Dividends under the
Purchase Agreement and the Loan Funding Agreement, and upon
satisfaction of all
conditions precedent to and the consummation of the Lien
Release Dividends under both Agreements, the Pledged
Supplemental Interests relating to any Loans (but not any
portions of such Loans) transferred in connection with such
Lien Release Dividends (the "RELATED SUPPLEMENTAL INTERESTS")
shall be released from the Lien of this Security Agreement
(the "RELEASE").
(b) The Seller hereby agrees to pay the reasonable legal fees and
expenses of the Buyer, the Escrow Agent, the Deal Agent and the
Secured Parties in connection with such Release.
(c) In connection with the Release, on the related Lien Release
Dividend Dates (or if such dates are different, on the Lien
Release Dividend Date under the Purchase Agreement), the Buyer
shall, at the expense of the Seller (i) execute such instruments
of release with respect to the Related Supplemental Interests to
be transferred to the Seller, in recordable form if necessary, in
favor of the Seller as the Seller may reasonably request, (ii)
deliver or cause the Escrow Agent to deliver any portion of the
Related Supplemental Interests to be transferred to the Seller in
their possession to the Seller and (iii) otherwise take such
actions, and cause or permit the Escrow Agent to take such
actions, as are necessary and appropriate to release the Lien of
the Buyer on the Related Supplemental Interests to be transferred
to the Seller and release and deliver to the Seller the Related
Supplemental Interests to be transferred to the Seller.
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 Buyer and Seller 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;
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(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 VFCC and the
Escrow Agent 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.
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(c) This Amendment may not be amended or otherwise modified except as
provided in the Agreement.
(d) The failure or unenforceability of any provision hereof shall not
affect the other provisions of this Amendment.
(e) 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.
(f) 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.
(g) 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 BUYER: ACS FUNDING TRUST I
By:
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Name:
---------------------------------------------
Title:
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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 SELLER: AMERICAN CAPITAL STRATEGIES, LTD.
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
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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]
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THE ESCROW AGENT: XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
(FORMERLY KNOWN AS NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION)
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
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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
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CONSENTED TO:
FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union
Capital Markets Corp.), as Deal Agent, for
itself and on behalf of the Secured Parties
By:
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Name:
------------------------------------------------
Title:
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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
FIRST UNION NATIONAL BANK,
as Hedge Counterparty
By:
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Name:
------------------------------------------------
Title:
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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
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