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:
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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