Exhibit 10.3
$100,000,000 March 31, 1999
FOR VALUE RECEIVED, ACS FUNDING TRUST I, a Delaware business trust (the
"Borrower"), promises to pay to FIRST UNION NATIONAL BANK the principal sum of
ONE HUNDRED MILLION DOLLARS ($100,000,000) or, if less, the unpaid principal
amount of the aggregate loans ("Advances") made by the Lenders (as defined
below) to the Borrower pursuant to the Loan Funding and Servicing Agreement (as
defined below), as set forth on the attached Schedule, on the dates specified in
Section 2.6 of the 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 Interest Rate related to such Advance as
provided in the Loan Funding and Servicing Agreement on each Payment Date and
each other dates specified in the Loan Funding and Servicing Agreement.
This Note is issued pursuant to the Loan Funding and Servicing
Agreement, dated as of March 31, 1999 (the "Loan Funding and Servicing
Agreement"), by and among the Borrower, American Capital Strategies, Ltd., as
servicer, Variable Funding Capital Corporation, as a lender, the Investors named
therein, Norwest Bank Minnesota, National Association, as backup servicer and as
collateral custodian, First Union Capital Markets Corp., as deal agent, and
First Union National Bank, as liquidity agent. Capitalized terms used but not
defined in this Note are used with the meanings ascribed to them in the 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 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 the Lenders under this Note exceed the amount which the Lenders
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 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 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 Loan Funding
and Servicing Agreement, certain costs and expenses of the Lenders) at the time
and in the manner set forth in, but subject to the provisions of, the Loan
Funding and Servicing Agreement.
Except as provided in the 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, the Lender or Lenders making such
Advance and all payments and prepayments of the principal hereof and the
respective dates and maturity dates thereof shall be endorsed by First Union
National Bank 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 such First Union National Bank in its internal records;
provided, however, that the failure of First Union National Bank 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 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 such Lender and represented by this Note and the indebtedness evidenced
by this Note.
This Note is secured by the security interests granted pursuant to
Section 2.9 of the Loan Funding and Servicing Agreement. The holder of this
Note, as agent for the Lenders, is entitled to the benefits of the Loan Funding
and Servicing Agreement and may enforce the agreements of the Borrower contained
in the Loan Funding and Servicing Agreement and exercise the remedies provided
for by, or otherwise available in respect of, the Loan Funding and Servicing
Agreement, all in accordance with, and subject to the restrictions contained in,
the terms of the Loan Funding and Servicing Agreement. If a Termination Event
shall occur and be continuing,
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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 Loan Funding and Servicing Agreement.
This Note is the Note referred to in the 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:
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Schedule to Note
----------------
Name Date of Principal Principal Outstanding
of Advance or Amount of Amount of Principal
Lender Repayment Advance Repayment Amount
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