This Servicing Agreement involves
Title: LOAN FUNDING AND SERVICING AGREEMENT
Governing Law: New York Date: 9/20/2005
Industry: Misc. Financial Services
AMENDMENT NO. 6 TO
SECOND AMENDED AND RESTATED
LOAN FUNDING AND SERVICING AGREEMENT
(ACS Funding Trust I)
THIS AMENDMENT NO. 6 TO SECOND AMENDED AND RESTATED LOAN FUNDING AND SERVICING AGREEMENT , dated as of September 15, 2005 (this “ Amendment ”), is entered into by and among ACS FUNDING TRUST I, as the borrower (in such capacity, the “ Borrower ”), AMERICAN CAPITAL STRATEGIES, LTD., as the servicer (in such capacity, the “ Servicer ”), VARIABLE FUNDING CAPITAL CORPORATION, as a conduit lender (in such capacity, a “ Conduit Lender ”), WACHOVIA CAPITAL MARKETS, LLC, as the deal agent (in such capacity, the “ Deal Agent ”), JPMORGAN CHASE BANK, N.A. (“ JPMorgan Chase Bank ”), as an institutional lender (in such capacity, an “ Institutional Lender ”) and as the swingline lender (in such capacity, the “ Swingline Lender ”), CITIGROUP GLOBAL MARKETS REALTY CORP., as an institutional lender (in such capacity, an “ Institutional Lender ”), YC SUSI TRUST, as a conduit lender (in such capacity, a “ Conduit Lender ”), BANK OF AMERICA, NATIONAL ASSOCIATION, as an institutional lender (in such capacity, an “ Institutional Lender ”) and as the lender agent for YC SUSI TRUST (in such capacity, a “ Lender Agent ”) and is acknowledged and agreed to by WACHOVIA BANK, NATIONAL ASSOCIATION, as a hedge counterparty (in such capacity, the “ Hedge Counterparty ”). Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Agreement (as defined below).
R E C I T A L S
WHEREAS , the parties hereto are parties to that certain Second Amended and Restated Loan Funding and Servicing Agreement, dated as of August 10, 2004 (as amended by Amendment No. 1, dated as of August 27, 2004, Amendment No. 2, dated as of November 15, 2004, Amendment No. 3, dated as of January 28, 2005, Amendment No. 4, dated as of April 21, 2005 and Amendment No. 5, dated as of August 3, 2005, the “ Agreement ”);
WHEREAS , the parties hereto desire to amend the Agreement in certain respects as provided herein, pursuant to and in accordance with Section 12.1(a) of the Agreement;
NOW, THEREFORE , based upon the above Recitals, the mutual premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. AMENDMENTS .
(a) Section 2.12 of the Agreement is hereby amended to read in its entirety as follows:
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(a) Notwithstanding anything to the contrary contained herein (including, without limitation the provisions of Section 2.4(a) ), the Commitment of JPMorgan Chase Bank shall be temporarily increased from $250,000,000 to $350,000,000 for the period from and including the date hereof to but not including the date (herein the “ Commitment Reduction Date ”) that is the earlier of (a) October 17, 2005 and (b) the first date after the date hereof on which the Originator closes a transaction of the type set forth in clause (a) of the definition of Permitted Securitization Transaction. On the Commitment Reduction Date, the Commitment of JPMorgan Chase Bank shall automatically reduce to $250,000,000 (or, in the event the Borrower shall have previously reduced the Facility Amount pursuant to Section 2.4(a) , to such lesser amount to which such Commitment of JPMorgan Chase Bank would have been reduced had the temporary increase contemplated above not occurred).
(b) On the Commitment Reduction Date, the Borrower shall borrow from the Lenders ratably in accordance with their Commitments (as in effect after giving effect to the reduction of the Commitment of JPMorgan Chase Bank on such date) and, from the proceeds of such borrowing and other funds available to it, the Borrower shall repay to JPMorgan Chase Bank the Advances in such amounts as shall be necessary so that all Advances are held by the Lenders ratably in accordance with their Pro Rata Shares after giving effect to such reduction (it being understood that such prepayment of Advances shall be made solely to JPMorgan Chase Bank, and each Lender hereby so consents, notwithstanding the provisions of Section 2.4(b) that would otherwise require that such prepayment be applied ratably to the Advances of all Lenders).
(c) JPMorgan Chase Bank waives any requirement that it receive a new Structured Note to reflect the temporary increase in its Commitment provided for in this Section 2.12 . Each Lender Agent waives the requirement of Section 2.1(e) that Annex B hereto be amended to reflect the temporary increase in the Commitment of JPMorgan Chase Bank set forth in this Section 2.12 .
(b) Section 12.1(a) of the Agreement is hereby amended to add the following proviso to the end of such Section:
“ provided , further , that , after the Commitment Reduction Date (as defined in Section 2.12 ) and for so long as the aggregate amount of Advances made by JPMorgan Chase Bank pursuant to Section 2.12 exceeds JPMorgan Chase Bank’s Pro Rata Share of all Advances Outstanding, no Termination Event arising from the failure of the Borrower to fulfill its obligations under Section 2.12 may be waived without the prior written consent of JPMorgan Chase Bank.”
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