FIRST AMENDMENT TO AMERICAN CAPITAL, LTD. LOCK UP AGREEMENT
Exhibit 10.60
FIRST AMENDMENT TO AMERICAN CAPITAL, LTD. LOCK UP AGREEMENT
This FIRST AMENDMENT, dated as of January 28, 2010 (this “First Amendment”), amends the Lock Up Agreement, dated as of November 20, 2009 (the “Lock Up”), by and among American Capital, Ltd., a Delaware corporation (the “Company”), and each of the creditors party thereto (the “Consenting Creditors”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Lock Up.
RECITALS
WHEREAS, pursuant to the Lock Up, the Consenting Creditors have agreed to implement a restructuring and reorganization of the Company pursuant to the terms set forth in the Term Sheet and the Private/ Public Terms;
WHEREAS, the Company has requested that the Majority Consenting Creditors enter into this First Amendment on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Amendment to Section 4. Section 4 is hereby amended as follows:
(i) in Section 4(ii), by deleting both occurrences of the date “January 15, 2010” and replacing them with “March 15, 2010” and by deleting the date “January 31, 2010” and replacing it with “Xxxxx 00, 0000”.
(xx) in Section 4(iii)(2), by deleting the date “March 15, 2010” and replacing it with “May 15, 2010” and by deleting the date “March 31, 2010” and replacing it with “May 31, 2010”.
(iii) in Section 4(iii)(3), by deleting the date “March 31, 2010” and replacing it with “May 31, 2010”.
2. Effectiveness. This First Amendment shall not become effective unless and until it has been duly executed and delivered by the Company and the Majority Consenting Creditors.
3. Continuing Effect; No Other Amendments. Except as expressly amended hereby, all of the terms and provisions of the Lock Up are and shall remain in full force and effect. The amendments contained herein shall not constitute an amendment or waiver of any other provision of the Lock Up or for any purpose except as expressly set forth herein.
1
4. Counterparts. This First Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same First Amendment. Delivery of an executed signature page of this First Amendment by facsimile shall be as effective as delivery of a manually executed signature page of this First Amendment.
5. Severability. Any provision of this First Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
6. Headings. The headings of the sections and subsections of this First Amendment are inserted for convenience only and shall not affect the interpretation hereof.
7. No Solicitation. This First Amendment is not and shall not be deemed to be a solicitation of votes for the Plan. In addition, this First Amendment does not constitute an offer to issue or sell securities to any person, or the solicitation of an offer to acquire or buy securities, in any jurisdiction where such offer or solicitation would be unlawful.
8. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
2
IN WITNESS WHEREOF, each of the Parties has caused this First Amendment to be executed and delivered by its duly authorized officer as of the date first above written.
AMERICAN CAPITAL, LTD. | ||||
By: | /s/ Xxxx Xxxxxxxx | |||
Name: | Xxxx Xxxxxxxx | |||
Title: | President, Structured Finance and Chief Financial Officer |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
The Royal Bank of Scotland PLC | ||
By: | RBS Securities Inc., Its Agent | |
By: | /s/ Xxxxxxx X. Rosenerans | |
Name: | Xxxxxxx X. Rosenerans | |
Title: | Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
CREDIT SUISSE AG, Cayman Islands Branch | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Managing Director | |
By: | /s/ Xxxx Xxxxxxx | |
Name: | Xxxx Xxxxxxx | |
Title: | Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
CREDIT SUISSE LOAN FUNDING LLC | ||
By: | /s/ Xxxxxxx XxXxxxx | |
Name: | Xxxxxxx XxXxxxx | |
Title: | Vice President | |
By: | /s/ Xxxxxxx Xxxxxxx | |
Name: | Xxxxxxx Xxxxxxx | |
Title: | Managing Director |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Xxxxxx Xxxxxxx Bank, NA | ||
By: | /s/ Xxxx Xxxxxxxx | |
Name: | Xxxx Xxxxxxxx | |
Title: | Authorized Signatory |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
The Bank of East Asia, Limited, New York Branch | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: | Xxxxxxx X. Xxxxxx | |
Title: | Senior Vice President | |
By: | /s/ Kitty Sin | |
Name: | Kitty Sin | |
Title: | Senior Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Societe Generale | ||
By: | /s/ Xxxxxxx Xx | |
Name: | Xxxxxxx Xx | |
Title: | Director |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
UBS AG, Stamford Branch | ||
By: | /s/ Xxxx X. Xxxx | |
Name: | Xxxx X. Xxxx | |
Title: | Associate Director, Banking Products Services, US | |
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | Associate Director, Banking Products Services, US |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
ROYAL BANK OF CANADA | ||
By: | /s/ Xxxxxxx Xxxxxxxx | |
Name: | Xxxxxxx Xxxxxxxx | |
Title: | Director |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Macquarie Bank Limited | ||
By: | /s/ Xxxx Xxxxxxxx | |
Name: | Xxxx Xxxxxxxx | |
Title: | Division Director | |
By: | /s/ Sewmay Xxx | |
Name: | Sewmay Xxx | |
Title: | Senior Lawyer |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
HSBC BANK USA, NATIONAL ASSOCIATION | ||
By: | /s/ Xxxxxxx X. Xxxxxx | |
Name: | Xxxxxxx X. Xxxxxx | |
Title: | Senior Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
West LB AG, New York Branch | ||
By: | /s/ Xxxxxx Xxxxxxx | |
Name: | Xxxxxx Xxxxxxx | |
Title: | Executive Director | |
By: | /s/ Xxxxxx Xxxx | |
Name: | Xxxxxx Xxxx | |
Title: | Associate Director |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
JPMorgan Chase Bank, N.A. | ||
By: | /s/ Xxxxxxx Xxxxx | |
Name: | Xxxxxxx Xxxxx | |
Title: | Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Bank of America, N.A. | ||
By: | /s/ Xxxx X. Xxxxxx | |
Name: | Xxxx X. Xxxxxx | |
Title: | Senior Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Mega International Commercial Bank, Silicon Valley Branch | ||
By: | /s/ Xxxxx Xxx Wei | |
Name: | Xxxxx Xxx Wei | |
Title: | Senior Vice President & General Manager |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Mega International Commercial Bank Co., Ltd., New York Branch | ||
By: | /s/ Xxxxxxxxx X. X. Xxxxx | |
Name: | Xxxxxxxxx X. X. Xxxxx | |
Title: | VP & DGM |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Mega International Commercial Bank Co., Ltd., Chicago Branch | ||
By: | /s/ Liu, Xxxx Xxxx | |
Name: | Liu, Xxxx Xxxx | |
Title: | SVP & General Manager |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Bank of Montreal Capital Markets Financing, Inc. | ||
By: | /s/ Xxxx X. Xxxxxx | |
Name: | Xxxx X. Xxxxxx | |
Title: | Director |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
CATHAY UNITED BANK | ||
By: | /s/ Xxxxx Xxxx | |
Name: | Xxxxx Xxxx | |
Title: | SVP & General Manager |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
BANK LEUMI USA | ||
By: | /s/ Xxxxx Xxx Hong | |
Name: | Xxxxx Xxx Hong | |
Title: | First Vice President |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
TAIWAN BUSINESS BANK | ||
By: | /s/ Xxxx Xxxx | |
Name: | Xxxx Xxxx | |
Title: | S.V.P. & General Manager |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Wachovia Bank, N.A. | ||
By: | /s/ Xxxx Xxxxxxx | |
Name: | Xxxx Xxxxxxx | |
Title: | Director |
CONSENTING CREDITORS: | ||
NAME OF INSTITUTION: | ||
Xxxxxxx Sachs Lending Partners LLC | ||
By: | /s/ Xxxxxx Xxxxxx | |
Name: | Xxxxxx Xxxxxx | |
Title: | Authorized Signatory |