Exhibit 2.k.3
AMENDMENT NO. 7 TO
LOAN FUNDING AND SERVICING AGREEMENT
(VFCC TRANSACTION WITH ACS FUNDING TRUST I)
THIS AMENDMENT NO. 7 TO LOAN FUNDING AND SERVICING AGREEMENT, dated
as of April 19, 2001 (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, ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (formerly-known-as
Norwest Bank Minnesota, National Association, as Collateral Custodian and the
Backup Servicer, and as acknowledged and agreed to by FIRST UNION NATIONAL
BANK ("HEDGE COUNTERPARTY"), as Hedge Counterparty. 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, Amendment No. 2, dated as of September 24, 1999,
Amendment No. 3, dated as of December 14, 1999, Amendment No. 4, dated as of
June 16, 2000, Amendment No. 5, dated as of December 20, 2000, and Amendment No.
6, dated as of March 29, 2001 (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, in consideration of the premises and the other mutual
covenants contained herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
(a) SECTION 2.5(a)(iii) of the Agreement is hereby amended by deleting
the figure "$10,000,000" therein and substituting in its place the following:
"$30,000,000".
(b) The Commitment of First Union National Bank as Lender set forth on
the signature pages of the Agreement is hereby amended and restated to be
"$30,000,000."
SECTION 2. INCREASE IN AMOUNT OF FUNB NOTE.
The Borrower hereby agrees to execute and deliver to First Union, on
behalf of the holders of the Notes, an amended, restated and substituted FUNB
Note in the maximum principal
amount of $30,000,000 (the "NEW NOTE"). Such New Note shall replace and
supersede any note or notes previously executed by the Borrower pursuant to the
Agreement (collectively, the "REPLACED NOTES"). Such New Note evidences the same
indebtedness, and is 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;
(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 PRECEDENT.
The effectiveness of this Amendment is subject to the following
conditions precedent: (i) due execution and delivery to the Deal Agent of this
Amendment by each of the parties hereto, (ii) due execution and delivery to
First Union of the New Note, and (iii) such other documents, agreements,
certification, 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.
(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:
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Name:
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Title:
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ACS Funding Trust I
c/o American Capital Strategies, Ltd.
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Attention: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE SERVICER: AMERICAN CAPITAL STRATEGIES, LTD.
By:
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Name:
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Title:
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American Capital Strategies, Ltd.
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Attention: President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
THE INVESTORS: FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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Commitment: $225,000,000.00
First Union National Bank
One First Union Center, Mail Code: NC0610
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Attention: Capital Markets Credit
Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
LENDER: VARIABLE FUNDING CAPITAL
CORPORATION
By First Union Securities, Inc.
(successor-in-interest to First Union
Capital Markets Corp.), as attorney-in-fact
By:
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Name:
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Title:
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Variable Funding Capital Corporation
c/o First Union Securities, Inc.
One First Union Center, Mail Code: NC0610
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Attention: Conduit Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Lord Securities Corp.
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Attention: Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
THE BACKUP SERVICER: ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION (f/k/a
Norwest Bank Minnesota, National Association)
By:
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Name:
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Title:
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▇▇▇▇▇ Fargo Bank Minnesota, National
Association
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Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE COLLATERAL CUSTODIAN: ▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION (f/k/a
Norwest Bank Minnesota, National Association)
By:
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Name:
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Title:
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▇▇▇▇▇ Fargo Bank Minnesota, National
Association
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Attention: Corporate Trust Services
Asset-Backed Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
[SIGNATURES CONTINUED ON THE FOLLOWING PAGE]
THE DEAL AGENT: FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union
Capital Markets Corp.)
By:
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Name:
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Title:
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First Union Securities, Inc.
One First Union Center, Mail Code: NC0610
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Attention: Conduit Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER AND LIQUIDITY AGENT FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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First Union National Bank
One First Union Center, Mail Code: NC0610
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Attention: Capital Markets Credit
Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
Lender Commitment: $30,000,000
Acknowledged and Agreed to this [____] day of April, 2001.
FIRST UNION NATIONAL BANK,
as the Hedge Counterparty
By:
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Name:
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Title:
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First Union National Bank
One First Union Center, Mail Code: ▇▇▇▇▇▇
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Attention: Capital Markets Credit Administration
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇