Exhibit 10.19
--------------
EXECUTION COPY
--------------
AMENDMENT NO. 3 TO
LOAN FUNDING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 3 TO LOAN FUNDING AND SERVICING AGREEMENT,
dated as of December 14, 1999 (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 that
Amendment No. 1, dated as of June 30, 1999, and that Amendment Xx. 0, xxxxx xx
xx Xxxxxxxxx 00, 0000 (xx 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 "Facility Amount" contained in Section
1.1 of the Agreement is hereby amended and restated to read in its entirety as
follows:
"Facility Amount: At any time, $225,000,000.00; provided,
however, on or after the Termination Date, the Facility Amount
shall be zero."
(b) The second sentence of Section 2.5(a) of the Agreement is
hereby amended and restated in its entirety as follows:
"The Notes shall be dated the Closing Date and shall be in a
maximum principal amount equal to (i) $225,000,000 in the case
of VFCC Note, (ii) $225,000,000 in the case of the Investor
Note, and (iii) $10,000,000 in the case of the FUNB Note;
provided, however, that anything to the contrary
CHAR1\507942_ 1
notwithstanding, the indebtedness of the Borrower evidenced by
the Notes shall not in the aggregate exceed the Facility
Amount."
(c) The Commitment of First Union National Bank as an Investor set
forth on the signature pages of the Agreement is hereby amended and restated to
be "$225,000,000."
(d) The Commitment of First Union National Bank as a Lender set forth
on the signature pages of the Agreement is hereby amended and restated to be
"$10,000,000."
SECTION 2. Increase in Facility Amount and Amount of Notes.
Effective on the date of this Amendment, the Facility Amount shall be increased
to $225,000,000; provided, that First Union shall first have received executed
versions of the Notes referenced in clauses (i), (ii) and (iii) of the
succeeding sentence. In connection with such increase, the Borrower agrees to
execute and deliver to First Union, on behalf of the holders of the Notes, (i)
an amended, restated and substituted VFCC Note in the maximum principal amount
of $225,000,000, (ii) an amended, restated and substituted Investor Note in the
maximum principal amount of $225,000,000, and (iii) an amended, restated and
substituted FUNB Note in the maximum principal amount of $10,000,000
(collectively the "New Notes"). Such New Notes shall replace and supersede any
note or notes previously executed by the Borrower pursuant to the Agreement
(collectively, the "Replaced Notes"). Such New Notes evidence the same
indebtedness, and are secured by the same Collateral as the Replaced Notes.
SECTION 3. 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 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;
2
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(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 5. 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 6. Conditions Precedent. The effectiveness of this
Amendment is subject to the following conditions precedent: (i) execution and
delivery to First Union of the New Notes; (ii) delivery to the Deal Agent and
CIBC of a copy of this Amendment duly executed by each of the parties hereto;
(iii) 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 (iv) such other documents, agreements, certification, or
legal opinions as the Deal Agent, may reasonably require.
SECTION 7. 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.
(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.
3
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(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]
4
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
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.
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
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, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
Confirmation No.: (301 951-6122
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
S-1
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
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
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
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
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
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
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
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
S-5
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
--------------
EXECUTION COPY
--------------
AMENDMENT NO. 2 TO
LOAN FUNDING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN FUNDING AND SERVICING AGREEMENT,
dated as of September 24, 1999 (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 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 (the "Agreement");
WHEREAS, the parties amended the Agreement pursuant to
Amendment No. 1 to Loan Funding and Servicing Agreement, dated as of June 30,
1999 (the Agreement as amended shall be referred to herein as 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 8. Amendments.
(a) The definition of "Commitment Termination Date" in Section
1.1 of the Agreement is hereby amended and restated to read in its entirety as
follows:
"Commitment Termination Date: March 31, 2001 or such
later date to which the Commitment Termination Date may be
extended (if extended) in the sole discretion of VFCC and each
Investor in accordance with the terms of Section 2.2(b);
provided, however in the event that the Borrower fails to
deliver or fails to cause the Servicer to deliver (i) a draft
of its Credit and Collection Policy and revised loan grading
system in a form satisfactory to the Deal Agent (in its sole
discretion) on or before September 30, 1999, or (ii) a final
version of its Credit and Collection Policy and revised loan
grading system in a form satisfactory to the Deal Agent (in
its sole discretion) on or before October 30, 1999, the
Commitment Termination Date shall be March 29, 2000."
1
CHAR1\507942_ 1
Amendment No. 3 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(b) Section 6.25(a)(xi) of the Agreement is hereby amended by
deleting the "or" at the end thereof;
(c) Section 6.25(a)(xii) of the Agreement is hereby amended
and restated in its entirety as follows:
"(xii) on or before September 30, 1999, a draft of
its Credit and Collection Policy and revised loan grading
system are not delivered to the Deal Agent by the Borrower and
the Servicer in a form acceptable to the Deal Agent; or"
(d) Section 6.25(a)(xiii) of the Agreement is hereby amended
by adding the following:
"(xiii) on or before October 29, 1999, a final
version of its Credit and Collection Policy and revised loan
grading system are not delivered to the Deal Agent and
Borrower and Servicer in a form acceptable to the Deal Agent."
SECTION 9. 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 10. Representations. The Borrower and Servicer
represent and warrant that, as of the effective date of this Amendment (i) they
are not in default under the Agreement and (ii) there are no Termination Events,
Unmatured Termination Events or Servicer Termination Events under the Agreement.
SECTION 11. 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.
(c) This Amendment may not be amended or otherwise modified
except as provided in the Agreement.
CHAR1\KPK\BANK\485213_ 3
2
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(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.
CHAR1\KPK\BANK\485213_ 3
3
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(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]
CHAR1\KPK\BANK\485213_ 3
4
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
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
---------------------------------
Title:
ACS Funding Trust I
c/o American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE SERVICER: AMERICAN CAPITAL STRATEGIES, LTD.
By
---------------------------------
Title:
American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
Confirmation No.: (301 951-6122
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
CHAR1\KPK\BANK\485213_ 3
S-1
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
THE INVESTORS: FIRST UNION NATIONAL BANK
By
---------------------------------
Title:
Commitment: $125,000,000.00
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 Capital Markets Corp., as
attorney-in-fact
By
---------------------------------
Title:
Variable Funding Capital Corporation
c/o 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
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]
CHAR1\KPK\BANK\485213_ 3
S-2
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
THE BACKUP SERVICER: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
---------------------------------
Title:
Norwest Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, XX 00000
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
---------------------------------
Title:
Norwest Bank Minnesota, National Association
Sixth Street and Marquette Avenue
MAC N9311-161
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
CHAR1\KPK\BANK\485213_ 3
S-3
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
THE DEAL AGENT: FIRST UNION CAPITAL MARKETS CORP.
By
---------------------------------
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
---------------------------------
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: $30,000,000 until the
Swingline Reduction Date, and then $10,000,000
thereafter.
CHAR1\KPK\BANK\485213_ 3
S-4
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
Consented and Agreed to this 24thday of
September, 1999:
CANADIAN IMPERIAL BANK OF COMMERCE
By
---------------------------------
Title:
Canadian Imperial Bank of Commerce
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Securitization Group-Credit
Administration-American Capital
Strategies
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
CHAR1\KPK\BANK\485213_ 3
S-5
Amendment No. 2 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
--------------
EXECUTION COPY
--------------
AMENDMENT NO. 1 TO
LOAN FUNDING AND SERVICING AGREEMENT
THIS AMENDMENT NO. 1 TO LOAN FUNDING AND SERVICING AGREEMENT,
dated as of June 30, 1999 (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 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 (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 12. Amendments.
(a) The definition of "Concentration Limits" contained in
Section 1.1 of the Agreement is hereby amended and restated to read in its
entirety as follows:
"Concentration Limits: On any date of determination,
each of the following (calculated on the basis of Aggregate
Outstanding Loan Balance):
(a) the sum of the Outstanding Loan Balances of
Eligible Loans the Obligors of which are residents of any one
state shall not exceed 35%;
(b) the sum of the Outstanding Loan Balances of
Eligible Loans the Obligors of which are in the same Industry
shall not exceed 10%;
(c) the Outstanding Loan Balance of any Eligible Loan
shall not exceed the Large Loan Limit;
(d) the sum of the Outstanding Loan Balances of
Eligible Loans the Obligors of which are Grade 2 Obligors
shall not exceed 10%;
CHAR1\KPK\BANK\477154_ 10
Amendment No. 1 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(e) the sum of the Outstanding Loan Balances of
Eligible Loans that have interest due and payable monthly
shall not be less than 50%;
(f) the sum of the Outstanding Loan Balances of
Eligible Loans that are secured by a security interest in all
assets of the related Obligor shall not be less than 75%;
(g) the sum of the Outstanding Loan Balance of
Eligible Loans that are PIK Loans shall not exceed 30%; and
(h) with respect to each PIK Loan included as a part
of the Collateral, at least a portion of the monthly or
quarterly interest that is due under the PIK Loan must be
payable by Obligor thereof in cash or such Obligor shall have
another Loan included as part of the Collateral that pays
current monthly or quarterly interest in cash."
(b) The definition of "Facility Amount" contained in Section
1.1 of the Agreement is hereby amended and restated to read in its entirety as
follows:
"Facility Amount: At any time, $125,000,000.00;
provided, however, on or after the Termination Date, the
Facility Amount shall be zero."
(c) Section (ii) of the definition of "Grade 1 Obligor"
contained in Section 1.1 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(ii) an Obligor designated by the Servicer, prior to
delivery of the Credit and Collection Policy, as a `Grade 1
Obligor' with the prior written consent of the Deal Agent."
(d) Section (ii) of the definition of "Grade 2 Obligor"
contained in Section 1.1 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(ii) an Obligor designated by the Servicer, prior to
delivery of the Credit and Collection Policy, as a `Grade 2
Obligor' with the prior written consent of the Deal Agent."
(e) Section (ii) of the definition of "Grade 3 Obligor"
contained in Section 1.1 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(ii) an Obligor designated by the Servicer, prior to
delivery of the Credit and Collection Policy, as a `Grade 3
Obligor' with the prior written consent of the Deal Agent."
CHAR1\KPK\BANK\477154_ 10
2
Amendment No. 1 to
Loan Funding and Servicing Agreement
(American Capital Strategies)
(f) Section (ii) of the definition of "Grade 4 Obligor"
contained in Section 1.1 of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(ii) an Obligor designated by the Servicer, prior to
delivery of the Credit and Collection Policy, as a `Grade 4
Obligor' with the prior written consent of the Deal Agent."
(g) 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: (i) $10,000,000.00, provided the
Aggregate Outstanding Loan Balance is less than
$200,000,000.00, (ii) $13,000,000.00, provided by the
Aggregate Outstanding Loan Balance is at least $200,000,000.00
but less than $300,000,000.00, and (iii) $15,000,000.00,
provided the Aggregate Outstanding Loan Balance is at least
$300,000,000.00.
(h) The first line of Section 2.2(d) of the Agreement is
hereby amended and restated to read in its entirety as follows:
"No later than 12:00 p.m. (New York City time) on the
proposed Funding Date, the".
(i) The second sentence of Section 2.5(a) of the Agreement is
hereby amended and restated in its entirety as follows:
"The Notes shall be dated the Closing Date and shall
be in a maximum principal amount equal to (i) $125,000,000 in
the case of VFCC Note, (ii) $125,000,000 in the case of the
Investor Note, and (iii) (a) $30,000,000 from the date of this
Amendment through and including July 30, 1999 (the "Swingline
Reduction Date") and (b) $10,000,000 after July 30, 1999, in
the case of the FUNB Note; provided, however, that anything to
the contrary notwithstanding, the indebtedness of the Borrower
evidenced by the Notes shall not in the aggregate exceed the
Facility Amount; provided, further, on the Swingline Reduction
Date, the Borrower shall reduce the amount of FUNB Advances
outstanding to an amount not to exceed the maximum principal
amount of the FUNB Note and shall execute and deliver to First
Union a second amended, restated and substituted FUNB Note in
the maximum principal amount of $10,000,000."
(j) Section 3.2 of the Agreement is hereby amended as follows:
(i) Section 3.2(a)(ii) is hereby amended and restated
to read in its entirety as follows:
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"(ii) No event has occurred, or would result from
such Advance or from the application of proceeds therefrom,
that constitutes a Termination Event or an Unmatured
Termination Event;";
(ii) Section 3.2(g) is amended by deleting the word
"and" at the end thereof;
(iii) Section 3.2(h) is amended by deleting the
period at the end thereof and substituting in its place the
following: "; and"; and
(iv) The following new Section 3.2(i) is hereby added
to the end of Section 3.2:
"(i) After giving effect to the Advance or
reinvestment of Available Collections, the weighted
average life of the Aggregate Outstanding Loan
Balance will not exceed eight (8) years."
(k) The second sentence of Section 4.1(v) of the Agreement is
hereby amended and restated to read in its entirety as follows:
"The Deal Agent, as agent for the Secured Parties,
has a first priority perfected security interest in the
Collateral."
(l) The first sentence of Section 6.9(g) is hereby amended and
restated to read in its entirety as follows:
"The Servicer will (a) comply in all material
respects with the Credit and Collection Policy in regard to
each Loan and (b) furnish to the Deal Agent and any Lender,
prior to its effective date, prompt notice of any change in
the Credit and Collection Policy."
(m) Section 7.1(n) of the Agreement is hereby amended and
restated to read in its entirety as follows:
"(n) the Borrower or the Servicer agrees or consents
to, or otherwise permits to occur, any amendment,
modification, change, supplement or recession of or to the
Credit and Collection Policy in whole or in part that could
have a material adverse effect upon the Loans or interest of
any Lender, without the prior written consent of the Deal
Agent and the other Lenders; or".
(n) Section 9.6 of the Agreement is hereby amended by deleting
therefrom all references to "VFCC."
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(o) The following new Section 9.9 is added to the end of
Section 9:
"The Deal Agent shall provide to Canadian Imperial
Bank of Commerce a copy of the Monthly Report and the credit
report and transaction summary referenced to in Section 2.2(c)
within two (2) Business Days following the Deal Agent's
receipt of same."
(p) The Commitment of First Union National Bank as an Investor
set forth on the signature pages of the Agreement is hereby amended and restated
to be "$125,000,000."
(q) The Commitment of First Union National Bank as a Lender
set forth on the signature pages of the Agreement is hereby amended and restated
to be "$30,000,000 until the Swingline Reduction Date, and $10,000,000
thereafter."
SECTION 13. Increase in Facility Amount and Amount of Notes.
Effective on the date of this Amendment, the Facility Amount shall be increased
to $125,000,000; provided, that First Union shall first have received executed
versions of the Notes referenced in clauses (i), (ii) and (iii)(a) of the
succeeding sentence. In connection with such increase, the Borrower agrees to
execute and deliver to First Union, on behalf of the holders of the Notes, (i)
an amended, restated and substituted VFCC Note in the maximum principal amount
of $125,000,000, (ii) an amended, restated and substituted FUNB Note in the
maximum principal amount of $125,000,000, and (iii) (a) an amended, restated and
substituted FUNB Note in the maximum principal amount of $30,000,000, and (b) on
the Swingline Reduction Date, a second amended and restated FUNB Note in the
maximum principal amount of $10,000,000 (collectively the "New Notes"). Such New
Notes shall replace and supersede any note or notes previously executed by the
Borrower pursuant to the Agreement (collectively, the "Replaced Notes"). Such
New Notes evidence the same indebtedness, and are secured by the same Collateral
as the Replaced Notes.
SECTION 14. 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 15. Representations. The Borrower and Servicer
represent and warrant that, as of the effective date of this Amendment (i) they
are not in default under the Agreement and (ii) there are no Termination Events,
Unmatured Termination Events or Servicer Termination Events under the Agreement.
SECTION 16. Expenses. In connection with the execution of this
Amendment, the Borrower agrees to pay all reasonable and actual costs and
expenses (including without
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limitation the reasonable fees and expenses of legal counsel) of CIBC and First
Union, respectively, incurred in connection with the negotiation and preparation
of the Participation Agreement, dated as of even date with this Amendment,
between CIBC and First Union.
SECTION 17. 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.
(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.
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(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
---------------------------------
Title:
ACS Funding Trust I
c/o American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
Confirmation No.: (000) 000-0000
THE SERVICER: AMERICAN CAPITAL STRATEGIES, LTD.
By
---------------------------------
Title:
American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
Confirmation No.: (301 951-6122
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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THE INVESTORS: FIRST UNION NATIONAL BANK
By
---------------------------------
Title:
Commitment: $125,000,000.00
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 Capital Markets Corp., as
attorney-in-fact
By
---------------------------------
Title:
Variable Funding Capital Corporation
c/o 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
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]
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THE BACKUP SERVICER: NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
---------------------------------
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
---------------------------------
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]
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THE DEAL AGENT: FIRST UNION CAPITAL MARKETS CORP.
By
---------------------------------
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
---------------------------------
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: $30,000,000 until the
Swingline Reduction Date, and then $10,000,000
thereafter.
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