EXHIBIT 10.3
AMENDMENT NO. 1 TO
PURCHASE AND SALE AGREEMENT
THIS AMENDMENT NO. 1 TO PURCHASE AND SALE AGREEMENT, dated as of
December 20, 2000 (this "AMENDMENT"), is entered into by and among ACS FUNDING
TRUST I ("BUYER"), as Buyer, and AMERICAN CAPITAL STRATEGIES, LTD. ("SELLER"),
as Seller. 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 Purchase and Sale
Agreement, dated as of March 31, 1999 (as amended, 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 1. AMENDMENTS.
(a) SECTION 1.1 of the Agreement is hereby amended by adding the
following new definitions thereto:
LIEN RELEASE DIVIDEND: Defined in SECTION 2.3.
LIEN RELEASE DIVIDEND DATE: The date specified by the Buyer, which date
may be any Business Day, provided notice is given in accordance with
SECTION 2.3(a).
(b) The Agreement is hereby amended by adding the following new SECTION
2.3:
Section 2.3 LIEN RELEASE DIVIDENDS.
(a) Notwithstanding any provision contained in this Agreement to the
contrary, provided there is neither an Unmatured Termination Event, a
Termination Event nor a Servicer Termination Event, on a Lien Release
Dividend Date, the Buyer may dividend to the Seller a portion of the
Loans or portions thereof (the "LIEN RELEASE DIVIDEND"), subject to the
following terms and conditions:
(1) The Buyer shall have given the Seller and the Deal Agent,
as assignee, at least two (2) Business Days' prior written
notice of its intent
to effect an Lien Release Dividend, unless such notice is
waived or reduced by the Seller and the Deal Agent;
(2) Any Lien Release Dividend shall be in connection with a
Permitted Securitization Transaction;
(3) After giving effect to the Lien Release Dividend and the
dividend to the Seller of the Loans or portions thereof on the
Lien Release Dividend Date, (A) the representations and
warranties contained in Sections 4.1 and 4.3 hereof shall
continue to be correct in all material respects, except to the
extent relating to an earlier date and (B) neither an
Unmatured Termination Event, a Termination Event nor a
Servicer Termination Event shall have resulted;
(4) Such Lien Release Dividend must be in compliance with
Applicable Law and may not (A) be made with the intent to
hinder, delay or defraud any creditor of the Buyer or (B)
leave the Buyer, immediately after giving effect to the Lien
Release Dividend, (i) insolvent, (ii) with insufficient funds
to pay its obligations as and when they become due or (iii)
with inadequate capital for its present and anticipated
business and transactions;
(5) On or prior to the Lien Release Dividend Date, the Buyer
shall have (A) delivered to the Seller a list specifying all
Loans or portions thereof to be transferred pursuant to such
Lien Release Dividend and the Seller shall have approved same
in its sole discretion and (B) obtained all authorizations,
consents and approvals required to effectuate the Lien Release
Dividend; and
(6) A portion of a Loan may be transferred pursuant to the
Lien Release Dividend provided that (A) such transfer does not
have an adverse effect on the portion of the Loan remaining as
a part of the Collateral under the Loan Funding Agreement, any
other Collateral under the Loan Funding Agreement, the
Lenders, the Secured Parties or the Deal Agent, (B) the Loan
Documents for such portion of the Loan remaining as a part of
the Collateral have been amended to contain pro rata sharing,
intercreditor and, if applicable, subordination, provisions
substantially the same as those contained in the form of
intercreditor and subordination agreement provided to and
reviewed by the Deal Agent and is attached as EXHIBIT U to the
Loan Funding Agreement, and (C) a new promissory note for the
portion of the Loan remaining as a part of the Collateral
under the Loan Funding Agreement has been executed by the
Obligor, and the original thereof has been endorsed to the
Deal Agent and delivered to the Collateral Custodian.
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(b) In connection with the Lien Release Dividend, there shall be
assigned to the Seller, without recourse, representation or warranty,
all of the right, title and interest of the Buyer in, to and under the
Loans or portions thereof so retransferred (together with, in the case
of the transfer of the Loans but not portions thereof, the related
Collateral) and such Loans or portions thereof so retransferred
(together with, in the case of the transfer of the Loans but not
portions thereof, the related Collateral) shall be released from the
Lien of this Agreement (subject to the requirements of clause (a)(3)
above).
(c) The Seller hereby agrees to pay the reasonable legal fees and
expenses of the Buyer in connection with any Lien Release Dividend
hereunder and under the Loan Funding Agreement (including, but not
limited to, expenses incurred in connection with the release of the
Liens of the Deal Agent, on behalf of the Secured Parties, the Buyer
and any other party having an interest in the Loans in connection with
such Lien Release Dividends).
(d) In connection with any Lien Release Dividend, on the related Lien
Release Dividend Date, the Buyer shall, at the expense of the Seller
(1) execute such instruments of release with respect to the Loans or
portions thereof to be transferred to the Seller (together with, in the
case of the transfer of the Loans but not portions thereof, the related
Collateral), in recordable form if necessary, in favor of the Seller as
the Seller may reasonably request, (2) deliver any portion of the Loans
or portions thereof to be transferred to the Seller (together with, in
the case of the transfer of the Loans but not portions thereof, the
related Collateral) in its possession to the Seller and (3) otherwise
take such actions as are necessary and appropriate to release the Lien
of the Buyer on the Loans or portions thereof to be transferred to the
Seller (together with, in the case of the transfer of the Loans but not
portions thereof, the related Collateral) and release and deliver to
the Seller such Loans or portions thereof to be transferred to the
Seller (together with, in the case of the transfer of the Loans but not
portions thereof, the related Collateral).
(c) The first sentence of SECTION 5.1(b) of the Agreement is hereby
amended and restated in its entirety to read as follows:
"(b) Except for the transfers hereunder, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Loan transferred
hereunder or, except for Permitted Liens, on any Related Property or
other Purchased Assets, whether now existing or hereafter transferred
hereunder, or any interest therein, and Seller will not sell, pledge,
assign or suffer to exist any lien on any Purchased Asset."
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SECTION 2. AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.
Except as specifically amended hereby, the Agreement shall remain in
full force and effect. All references to the Agreement shall be deemed to mean
the Agreement as modified hereby. This Amendment shall not constitute a novation
of the Agreement, but shall constitute an amendment thereof. The parties hereto
agree to be bound by the terms and conditions of the Agreement, as amended by
this Agreement, as though such terms and conditions were set forth herein.
SECTION 3. REPRESENTATIONS.
Each of the Buyer and Seller represent and warrant as of the date of
this Amendment as follows:
(i) it is duly incorporated or organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or
organization;
(ii) the execution, delivery and performance by it of this
Amendment are within its powers, have been duly authorized, and do not
contravene (A) its charter, by-laws, or other organizational documents,
or (B) any Applicable Law;
(iii) no consent, license, permit, approval or authorization
of, or registration, filing or declaration with any governmental
authority, is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment by or against
it;
(iv) this Amendment has been duly executed and delivered by
it;
(v) this Amendment constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by general principles of equity;
(vi) it is not in default under the Agreement; and
(vii) there is no Termination Event, Unmatured Termination
Event or Servicer Termination Event;
SECTION 4. EXPENSES.
In connection with the execution of this Amendment, the Seller agrees
to pay all reasonable and actual costs and expenses (including without
limitation the reasonable fees and expenses of legal counsel) of VFCC, the
Collateral Custodian and the Backup Servicer incurred in connection with the
review and negotiation of this Amendment.
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SECTION 5. CONDITIONS PRECEDENT.
The effectiveness of this Amendment is subject to the following
conditions precedent: (a) delivery to the Deal Agent of a copy of this Amendment
duly executed by each of the parties hereto; (b) delivery to the Deal Agent (in
a form acceptable to the Deal Agent) of (i) a due authorization, execution and
enforceability opinion with respect to this Amendment and (ii) updated true sale
and non-consolidation opinions; and (c) such other documents, agreements,
certifications, or legal opinions as the Deal Agent may reasonably require.
SECTION 6. MISCELLANEOUS.
(a) This Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement.
(b) The descriptive headings of the various sections of this Amendment
are inserted for convenience of reference only and shall not be deemed to affect
the meaning or construction of any of the provisions hereof.
(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.
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SECTION 7. DEAL AGENT'S CONSENT AND WAIVER.
By its execution hereof, the Deal Agent, for itself and on behalf of
the Secured Parties, consents to this Amendment and waives any requirements for
notice with respect thereto.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BUYER: ACS FUNDING TRUST I
By:
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Name:
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Title:
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ACS Funding Trust I
c/o American Capital Strategies, Ltd., as Servicer
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Attention: Compliance Officer
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE SELLER: 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: Compliance Officer
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Confirmation No.: (301 951-6122
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CONSENTED TO:
FIRST UNION SECURITIES, INC.
(successor-in-interest to First Union
Capital Markets Corp.), as Deal Agent, for
itself and on behalf of the Secured Parties
By:
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Name:
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Title:
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First Union Capital Markets Corp.
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Attention: Conduit Administration
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FIRST UNION NATIONAL BANK,
as Hedge Counterparty
By:
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Name:
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Title:
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First Union National Bank
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Attention: Capital Markets Credit Administration
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Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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