Exhibit 10.1
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:
- 1 -
(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
