AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN FUNDING AND SERVICING AGREEMENT (VFCC Transaction with ACS Funding Trust I)
Exhibit 10.2
Execution Copy
AMENDMENT NO. 3 TO
AMENDED AND RESTATED LOAN FUNDING AND SERVICING AGREEMENT
(VFCC Transaction with ACS Funding Trust I)
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED LOAN FUNDING AND SERVICING AGREEMENT, dated as of April 22, 2004 (this “Amendment”), is entered into by and among ACS FUNDING TRUST I, as the borrower (in such capacity, the “Borrower”), AMERICAN CAPITAL STRATEGIES, LTD., as the servicer (in such capacity, the “Servicer”), VARIABLE FUNDING CAPITAL CORPORATION, as the conduit lender (in such capacity, the “Conduit Lender”), WACHOVIA CAPITAL MARKETS, LLC (f/k/a Wachovia Securities, Inc.), as the deal agent (in such capacity, the “Deal Agent”), WACHOVIA BANK, NATIONAL ASSOCIATION (“WBNA”), as the swingline lender (in such capacity, the “Swingline Lender”), XXXXX FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to Xxxxx Fargo Bank Minnesota, National Association), as the collateral custodian (in such capacity, the “Collateral Custodian”) and as the backup servicer (in such capacity, the “Backup Servicer”), and is acknowledged and agreed to by WACHOVIA BANK, NATIONAL ASSOCIATION, as the hedge counterparty (in such capacity, the “Hedge Counterparty”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Agreement (as defined below).
R E C I T A L S
WHEREAS, the parties hereto entered into that certain Amended and Restated Loan Funding and Servicing Agreement, dated as of June 13, 2003 (such agreement as amended, modified, supplemented, waived or restated from time to time, the “Agreement”);
WHEREAS, the parties hereto desire to amend the Agreement in certain respects as provided herein;
NOW, THEREFORE, based upon the above Recitals, the mutual premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. Amendments.
(a) The following new definitions are hereby added to Section 1.1 of the Agreement:
“Average Obligor Amount”: As of any date of determination, the Aggregate Outstanding Loan Balance minus all amounts in excess of Concentration Limits (a) through (j) divided by the number of Obligors as of such date.
“Charged-Off Portfolio Loan”: Any Portfolio Loan: (i) that is one hundred eighty (180) days or more past due with respect to any interest or principal payment, (ii) for which an Insolvency Event has occurred with respect to the related Obligor, (iii) for which the related Obligor has suffered any Material Adverse Change, (iv) that is or should be written off as uncollectible by the Servicer in accordance with the Credit and Collection Policy, (v) that has
| Amendment No 3 to Amended and Restated LFSA (VFCC/ACS Funding Trust I) |
been placed on non-accrual status by the Servicer in accordance with the Credit and Collection Policy, (vi) all or any portion of which has been converted into or exchanged for an Equity Security or (vii) has been sold for less than its Portfolio Outstanding Loan Balance upon foreclosure or upon exercise of remedies, provided, that, only the portion of the Portfolio Loan not recouped in such sale shall be deemed to be “charged-off” for purposes of clause (vii).
“Defaulted Portfolio Loan”: Any Portfolio Loan (that is not a Charged-Off Portfolio Loan): (a) that is 60 days or more past due with respect to any interest or principal payments, (b) for which an Insolvency Event has occurred with respect to the related Obligor, (c) for which the related Obligor has suffered any Material Adverse Change, or (d) that is or otherwise should be considered a Defaulted Portfolio Loan by the Servicer in accordance with the Credit and Collection Policy.
“Equity Security”: Any equity security or other obligation or security that does not entitle the holder thereof to receive periodic payments of interest and one or more installments of principal.
“Portfolio Aggregate Outstanding Loan Balance”: With respect to all Portfolio Loans, on any day, the sum of the Portfolio Outstanding Loan Balances of such Portfolio Loans on such date minus the Portfolio Outstanding Loan Balances of any Defaulted Portfolio Loans and Charged-Off Portfolio Loans on such date.
“Portfolio Loan”: Any Loan serviced by the Servicer, but excluding any Loan which the Servicer services for an unaffiliated third party.
“Portfolio Outstanding Loan Balance”: With respect to any Portfolio Loan, as of any date of determination, the total remaining amounts of principal payable by the Obligor thereof exclusive of (a) interest payments and (b) Accreted Interest; it being understood that any principal previously covered by a Servicer Advance (of the type described in Section 7.5) will be excluded from the principal amounts payable for purposes of this definition.
“Rolling Twelve-Month Portfolio Charged-Off Ratio”: As of any date of determination, the percentage equivalent of a fraction (i) the numerator of which is equal to the sum of the Portfolio Outstanding Loan Balance of all Portfolio Loans that became Charged-Off Portfolio Loans during the Collection Period related to such Determination Date and each of 11 preceding Determination Dates (or such lesser number as shall have elapsed as of such Determination Date), and (ii) the denominator of which is equal to a fraction the numerator of which is equal to the sum of the Portfolio Aggregate Outstanding Loan Balance as of the first day of the Collection Period related to such Determination Date and each of the 11 preceding Determination Dates (or such lesser number as shall have elapsed as of such Determination Date) and the denominator of which is equal to 12 (or the corresponding lesser number of Determination Dates included in the calculations described herein).
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(b) The following definitions in Section 1.1 of the Agreement are hereby amended and restated in their entirety:
“2003-1 Class D Securities”: Collectively, (i) the ACAS Business Loan Trust 2003-1, Class D Principal Only Asset Backed Note, dated May 21, 2003, and (ii) the ACAS Business Loan Trust 2003-1, Trust Certificate, dated May 21, 2003.
“Availability”: On any day, the amount by which (a) the lesser of (i) the product of (A) the Borrowing Base and (B) 70% and (ii) the Facility Amount exceeds (b) an amount necessary to cure any Overcollateralization Shortfall and any Required Equity Shortfall; provided, however, that, (x) prior to April 22, 2005, subject to the other terms and conditions contained herein, with respect to Swingline Advances and Advances against the 2000-1 Class C Securities owned by the Borrower, the Availability (subject to Fair Market Value adjustments) shall be an amount up to $28,850,000, with respect to Swingline Advances and Advances against the 2002-1 Class C Securities owned by the Borrower, the Availability shall be an amount up to $36,850,000, and with respect to Swingline Advances and Advances against the 2002-2 Class C Securities owned by the Borrower, the Availability shall be an amount up to $36,840,000 and with respect to Swingline Advances and Advances against the 2003-1 Class D Securities owned by the Borrower, the Availability shall be an amount up to $41,590,000, (y) on and after April 22, 2005, the Availability with respect to Swingline Advances and Advances against the Class C Securities shall be $0 and (z) for all purposes of this Agreement, during the Amortization Period, the Availability shall be $0.”
“Charged-Off Loan”: Any Transferred Loan: (i) that is one hundred eighty (180) days or more past due with respect to any interest or principal payment, (ii) for which an Insolvency Event has occurred with respect to the related Obligor, (iii) for which the related Obligor has suffered any Material Adverse Change, (iv) that is or should be written off as uncollectible by the Servicer in accordance with the Credit and Collection Policy, (v) that has been placed on non-accrual status by the Servicer in accordance with the Credit and Collection Policy, (vi) all or any portion of which has been converted into or exchanged for an Equity Security or (vii) has been sold for less than its Outstanding Loan Balance upon foreclosure or upon exercise of remedies, provided, that, only the portion of the Portfolio Loan not recouped in such sale shall be deemed to be “charged-off” for purposes of clause (vii).
“Defaulted Loan”: Any Transferred Loan (that is not a Charged-Off Loan): (a) that is 60 days or more past due with respect to any interest or principal payments, (b) for which an Insolvency Event has occurred with respect to the related Obligor, (c) for which the related Obligor has suffered any Material Adverse Change, or (d) that is or otherwise should be considered a Defaulted Portfolio Loan by the Servicer in accordance with the Credit and Collection Policy.
“Class C Securities”: Collectively, (i) the 2000-1 Class C Securities, (ii) the 2002-1 Class C Securities, (iii) the 2002-2 Class C Securities, and (iv) the 2003-1 Class D Securities.
“Commitment Termination Date”: April 20, 2007, or such later date as the Deal Agent, in its sole discretion, shall notify the Borrower of in writing.
“Facility Amount”: $350,000,000, as such amount may vary from time to time upon the written agreement of the parties hereto; provided, that, such amount may not at any time exceed
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the aggregate Commitments then in effect; provided, further, that, on or after the Termination Date, the Facility Amount shall be $0.
“Large Loan Limit”: (a) $20,000,000, provided the Aggregate Outstanding Loan Balance is less than or equal to $250,000,000 and (b) $25,000,000, provided the Aggregate Outstanding Loan Balance is greater than $250,000,000.
“Minimum Overcollateralization Percentage”: 142.8%.
“Termination Date”: The earliest to occur of (a) the date of the occurrence of a Termination Event pursuant to Section 9.1, (b) the earlier of (i) April 21, 2005 and (ii) the date that the Liquidity Purchase Agreement shall cease to be in full force and effect, and (c) the Commitment Termination Date.
(c) The definition of “Collateral” in Section 1.1 of the Agreement is hereby amended by deleting clause (vi) thereof.
(d) The definition of “Concentration Limits” in Section 1.1 of the Agreement is hereby amended as follows:
(1) the word “and” is deleted from the end of clause (h) and the “.” at the end of clause (i) is hereby replaced with “; and”; and
(2) new clauses (j) and (k) are hereby added thereto as follows:
“(j) the sum of the Outstanding Loan Balances of all Eligible Loans which have been included as part of the Collateral for twelve (12) months or more from the date of any Permitted Securitization Transaction shall not exceed $50,000,000 (provided, that, if a Loan or portion thereof has been transferred, sold, contributed or otherwise conveyed to the Originator or any Affiliate thereof as part of a Permitted Securitization Transaction that is a private placement collateralized loan or collateralized debt obligation transaction, such amounts shall be calculated by treating any Loans to the related Obligor remaining in the Collateral as if such Loans were newly included in the Collateral as of the date of such Permitted Securitization Transaction); and
(k) the Average Obligor Amount shall not exceed the greater of $12,000,000 or 4%.”
(e) Clause (xxi) of the definition of “Eligible Loan” in Section 1.1 of the Agreement is hereby amended and restated as “(xxi) Reserved;”.
(f) The definition of “Euro-Caribe Loan” in Section 1.1 of the Agreement is hereby deleted.
(g) The definition of “Loan” in Section 1.1 of the Agreement is hereby amended by deleting the reference to the “Euro-Caribe Loan”.
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(h) The definition of “Purchased Loan Balance” in Section 1.1 of the Agreement is hereby amended by adding “(without duplication)” after the word “Limits” in clause (b) of the first sentence thereof.
(i) The definition of “Supplemental Interests” in Section 1.1 of the Agreement is hereby deleted.
(j) Clause (i) of Section 2.1(a) of the Agreement is hereby amended and restated in its entirety as follows:
“(i) VFCC Note shall be in the name of ‘Wachovia Capital Markets, LLC, as the Deal Agent’ and shall be in a face amount equal to $350,000,000.”
(k) Section 4.1(w) of the Agreement is hereby amended and restated as follows:
“(w) The Borrower does not own or hold directly or indirectly, any capital stock of equity security of, or equity interest in any Person.”
(l) Section 4.1(dd) of the Agreement is hereby deleted.
(m) Section 5.1(i) of the Agreement is hereby amended by deleting the words “and Supplemental Interests.”
(n) The first sentence in Section 7.13(b)(iii) of the Agreement is hereby amended by deleting the word “and” before clause (J) thereof and adding a new clause (K) thereto as follows: “and (K) the Rolling Twelve-Month Portfolio Charged-Off Ratio.”
(o) Section 8.3 of the Agreement is hereby amended and restated as follows: “Section 8.3 [Reserved].”
(p) Section 9.1 of the Agreement is hereby amended as follows:
(1) the word “or” is added after “;” at the end of clause (x); and
(2) a new clause (y) is hereby added thereto as follows:
“(y) the Rolling Twelve-Month Portfolio Charged-Off Ratio shall exceed 12.0%.”
(q) The Commitment of VFCC as the Conduit Lender set forth on the signature pages of the Agreement is hereby amended and restated to be “$350,000,000; provided, however, that the sum of the Advances outstanding under the VFCC Note and Swingline Advances outstanding under the Swingline Note shall not, in the aggregate, exceed the Facility Amount.”
SECTION 2. Increase in Facility Amount and Amount of VFCC Note.
Upon this Amendment becoming effective, the Facility Amount shall be increased to $350,000,000; provided, that, the Deal Agent shall have first received an executed version of the amended, restated and substituted VFCC Note attached to this Amendment as Annex A (the
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“New Note”). Such New Note shall replace and supersede any VFCC Note previously executed by the Borrower pursuant to the Agreement (the “Replaced Note”). Such New Note evidences the same indebtedness, and is secured by the same Collateral as the Replaced Note. The Deal Agent shall return the Replaced Note to the Borrower.
SECTION 3. Agreement in Full Force and Effect as Amended and Waived.
Except as specifically amended and waived hereby, all provisions of the Agreement shall remain in full force and effect. After this Amendment becomes effective, all references to the Agreement, the “Loan Funding and Servicing Agreement,” “hereof,” “herein,” or words of similar effect referring to the Agreement shall be deemed to mean the Agreement as amended hereby. This Amendment shall not constitute a novation of the Agreement, but shall constitute an amendment and waiver thereof. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Agreement other than as expressly set forth herein.
SECTION 4. 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;
(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.
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SECTION 5. Conditions to Effectiveness.
The effectiveness of this Amendment is conditioned upon (i) the payment by the Servicer of the structuring fee due to the Deal Agent in the amount of $2,250,000, (ii) payment of the outstanding fees and disbursements of Mayer, Brown, Xxxx & Maw LLP, as counsel to the Deal Agent, (iii) delivery of executed signature pages by all parties hereto to the Deal Agent and (iv) the receipt by the Deal Agent of an enforceability opinion in a form and substance satisfactory to it.
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) 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 BORROWER: | ACS FUNDING TRUST I | |||||||
| By: | American Capital Strategies, Ltd., as Servicer | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| ACS Funding Trust I c/o American Capital Strategies, Ltd. 0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxxxx 00000 Attention: Compliance Officer Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | ||||||||
| THE SERVICER: | AMERICAN CAPITAL STRATEGIES, LTD. | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| American Capital Strategies, Ltd. 0 Xxxxxxxx Xxxxx Xxxxxx, 00 Xxxxx Xxxxxxxx, Xxxxxxxx 00000 Attention: Compliance Officer Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | ||||||||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| Amendment No 3 to Amended and Restated Loan Funding and Servicing Agreement |
| CONDUIT LENDER: | VARIABLE FUNDING CAPITAL CORPORATION | |||||||
| Commitment: $350,000,000; provided, however, that the sum of the Advances outstanding under the VFCC Note and the Swingline Advances outstanding under the Swingline Note shall not, in the aggregate, exceed the Facility Amount. | By: | Wachovia Capital Markets, LLC (f/k/a Wachovia Securities, Inc.), as attorney-in- fact | ||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Variable Funding Capital Corporation c/o Wachovia Capital Markets, LLC One Wachovia Center, Mail Code: NC0600 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxx Xxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | ||||||||
| with a copy to: | Lord Securities Corp. 0 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Vice President Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | |||||||
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
| Amendment No 3 to Amended and Restated Loan Funding and Servicing Agreement |
| THE DEAL AGENT: | WACHOVIA CAPITAL MARKETS, LLC (f/k/a Wachovia Securities, Inc.) | |||||||
| By: |
| |||||||
| Name: |
| |||||||
| Title: |
| |||||||
| Wachovia Capital Markets, LLC One Wachovia Center, Mail Code: NC0600 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxx Xxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | ||||||||
| SWINGLINE LENDER | WACHOVIA BANK, NATIONAL ASSOCIATION | |||||||
| Commitment: $30,000,000; provided, however, that the sum of the Advances outstanding under the VFCC Note and the Swingline Advances outstanding under the Swingline Note shall not, in the aggregate, exceed the Facility Amount. | ||||||||
| By: |
| |||||||
| Name: |
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| Title: |
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| Wachovia Bank, National Association One Wachovia Center, Mail Code: NC0600 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxx Xxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | ||||||||
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
| Amendment No 3 to Amended and Restated Loan Funding and Servicing Agreement |
| THE BACKUP SERVICER AND THE COLLATERAL CUSTODIAN: | XXXXX FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to Xxxxx Fargo Bank Minnesota, National Association) | |||||||
| By. | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Xxxxx Fargo Bank, National Association Sixth Street and Marquette, MAC: N9311-161 Xxxxxxxxxxx, Xxxxxxxxx 00000 Attention: Corporate Trust Services Asset-Backed Administration Facsimile: (000) 000-0000 Telephone: (000) 000-0000 | ||||||||
| Amendment No 3 to Amended and Restated Loan Funding and Servicing Agreement |
| Acknowledged and Agreed as of the date above first written. | ||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as the Hedge Counterparty | ||
| By: | ||
| Name: | ||
| Title: | ||
Wachovia Bank, National Association
Xxx Xxxxxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
| Amendment No 3 to Amended and Restated Loan Funding and Servicing Agreement |
ANNEX A
EXHIBIT B-1
FORM OF AMENDED, RESTATED
AND SUBSTITUTED VFCC NOTE
| $350,000,000, provided, however, that the sum of Advances |
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| Outstanding under this Note and the Swingline |
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| Advances outstanding under the Swingline |
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| Note shall not, in the aggregate, exceed the Facility Amount |
June 13, 2003 |
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW OF ANY STATE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”) 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 OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN CERTIFICATED FORM TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (WITHIN THE MEANING OF RULE 501 (a)(1)–(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING FOR INVESTMENT AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH CASE, SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE SERVICER AND THE DEAL AGENT OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE SERVICER AND THE DEAL AGENT THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (5) PURSUANT TO A VALID REGISTRATION STATEMENT. THE PURCHASE OF THIS NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER: (I) IT IS NOT, AND IS NOT PURCHASING THIS NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF ERISA AND/OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL PLAN (AS DEFINED
IN SECTION 3(32) OF ERISA) OR A CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA FOR WHICH NO ELECTION HAS BEEN MADE UNDER SECTION 410(d) OF THE CODE) THAT IS SUBJECT TO ANY FEDERAL, STATE, OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR (II) PTCE 95–60, PTCE 96–23, PTCE 91–38, PTCE 90–1, PTCE 84–14 OR SOME OTHER PROHIBITED TRANSACTION EXEMPTION IS APPLICABLE TO THE PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE BY THE ACQUIRER.
THIS NOTE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE AMENDED AND RESTATED LOAN FUNDING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IN NO EVENT SHALL THE BORROWER (DEFINED BELOW) BE ENTITLED TO HAVE ADVANCES MADE TO IT UNDER THIS NOTE, AND THE SWINGLINE NOTE IN AN AGGREGATE AMOUNT IN EXCESS OF THREE HUNDRED FIFTY MILLION DOLLARS ($350,000,000).
THE PRINCIPAL AMOUNT OF THIS NOTE WILL VARY AS ADVANCES ARE MADE AND PAID DOWN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE MAXIMUM AMOUNT SHOWN ON THE FACE THEREOF.
FOR VALUE RECEIVED, ACS FUNDING TRUST I, a Delaware statutory trust (the “Borrower”), promises to pay to WACHOVIA CAPITAL MARKETS, LLC (“WCM”), as the agent for Variable Funding Capital Corporation (the “Deal Agent”) or its or Variable Funding Capital Corporation’s (“VFCC”) successors or assigns, the principal sum of THREE HUNDRED FIFTY MILLION DOLLARS ($350,000,000) or, if less, the unpaid principal amount of the aggregate loans (“Advances”) made by VFCC to the Borrower pursuant to the Amended and Restated Loan Funding and Servicing Agreement (as defined below), as set forth on the attached Schedule, on the dates specified in the Amended and Restated Loan Funding and Servicing Agreement, and to pay interest on the unpaid principal amount of each Advance on each day that such unpaid principal amount is outstanding at the applicable Interest Rate related to such Advance as provided in the Amended and Restated Loan Funding and Servicing Agreement on each Payment Date and each other dates specified in the Amended and Restated Loan Funding and Servicing Agreement.
This Note is issued pursuant to the Amended and Restated Loan Funding and Servicing Agreement, dated as of June 13, 2003 as amended by Amendment No. 1, dated as of October 7, 2003, Amendment No. 2, dated as of January 2, 2004, and Amendment Xx. 0, xxxxx xx xx Xxxxx 00, 0000 (xx amended, modified, waived, supplemented or restated from time to time, the “Amended and Restated Loan Funding and Servicing Agreement”), by and among the Borrower, American Capital Strategies, Ltd., as the servicer (the “Servicer”), Variable Funding Capital Corporation, as the conduit lender, WCM, as the deal agent, Wachovia Bank, National Association, as the swingline lender, and Xxxxx Fargo Bank, National Association, as the backup servicer and as the collateral custodian. Capitalized terms used but not defined in this Note are
used with the meanings ascribed to them in the Amended and Restated Loan Funding and Servicing Agreement.
Notwithstanding any other provisions contained in this Note, if at any time the rate of interest payable by the Borrower under this Note, when combined with any and all other charges provided for in this Note, in the Amended and Restated Loan Funding and Servicing Agreement or in any other document (to the extent such other charges would constitute interest for the purpose of any applicable law limiting interest that may be charged on this Note), exceeds the highest rate of interest permissible under applicable law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be exceeded the rate of interest under this Note shall be equal to the Maximum Lawful Rate. If at any time thereafter the rate of interest payable under this Note is less than the Maximum Lawful Rate, the Borrower shall continue to pay interest under this Note at the Maximum Lawful Rate until such time as the total interest paid by the Borrower is equal to the total interest that would have been paid had applicable law not limited the interest rate payable under this Note. In no event shall the total interest received by VFCC under this Note exceed the amount which VFCC could lawfully have received had the interest due under this Note been calculated since the date of this Note at the Maximum Lawful Rate.
Payments of the principal of, and interest on, Advances represented by this Note shall be made by the Borrower to the holder hereof by wire transfer of immediately available funds in the manner and at the address specified for such purpose as provided in Article 2 of the Amended and Restated Loan Funding and Servicing Agreement, or in such manner or at such other address as the holder of this Note shall have specified in writing to the Borrower for such purpose, without the presentation or surrender of this Note or the making of any notation on this Note.
If any payment under this Note falls due on a day that is not a Business Day, then such due date shall be extended to the next succeeding Business Day and interest shall be payable on any principal so extended at the applicable Interest Rate.
If all or a portion of (i) the principal amount hereof or (ii) any interest payable thereon or (iii) any other amounts payable hereunder shall not be paid when due (whether at maturity, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum that is equal to the Base Rate plus 1.0%, in each case from the date of such non-payment to (but excluding) the date such amount is paid in full.
Portions or all of the principal amount of the Note shall become due and payable at the time or times set forth in the Amended and Restated Loan Funding and Servicing Agreement. Any portion or all of the principal amount of this Note may be prepaid, together with interest thereon (and as set forth in the Amended and Restated Loan Funding and Servicing Agreement, certain costs and expenses of VFCC) at the time and in the manner set forth in, but subject to the provisions of, the Amended and Restated Loan Funding and Servicing Agreement.
Except as provided in the Amended and Restated Loan Funding and Servicing Agreement, the Borrower expressly waives presentment, demand, diligence, protest and all notices of any kind whatsoever with respect to this Note.
All amounts evidenced by this Note, VFCC’s making such Advance and all payments and prepayments of the principal hereof and the respective dates and maturity dates thereof shall be endorsed by the Deal Agent on the schedule attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by the Deal Agent in its internal records; provided, however, that the failure of the Deal Agent to make such a notation shall not in any way limit or otherwise affect the obligations of the Borrower under this Note as provided in the Amended and Restated Loan Funding and Servicing Agreement.
The holder hereof may sell, assign, transfer, negotiate, grant participations in or otherwise dispose of all or any portion of any Advances made by VFCC and represented by this Note and the indebtedness evidenced by this Note.
This Note is secured by the security interests granted pursuant to Section 8.1 of the Amended and Restated Loan Funding and Servicing Agreement. The holder of this Note, as agent for VFCC, is entitled to the benefits of the Amended and Restated Loan Funding and Servicing Agreement and may enforce the agreements of the Borrower contained in the Amended and Restated Loan Funding and Servicing Agreement and exercise the remedies provided for by, or otherwise available in respect of, the Amended and Restated Loan Funding and Servicing Agreement, all in accordance with, and subject to the restrictions contained in, the terms of the Amended and Restated Loan Funding and Servicing Agreement. If a Termination Event shall occur and be continuing, the unpaid balance of the principal of all Advances, together with accrued interest thereon, shall be declared, and become due and payable in the manner and with the effect provided in the Amended and Restated Loan Funding and Servicing Agreement.
This Note is the “VFCC Note” referred to in the Amended and Restated Loan Funding and Servicing Agreement. This Note shall be construed in accordance with and governed by the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned has executed this Note as on the date first written above.
| ACS FUNDING TRUST I | ||
| By: | ||
| Name: | ||
| Title: | ||
SCHEDULE TO NOTE
| Date of Advance or Repayment |
Principal Amount of Advance |
Principal Amount of Repayment |
Outstanding Principal Amount |
