Exhibit 10.1
CONSENT AND
AMENDMENT NO. 3 TO
SECOND AMENDED AND RESTATED
LOAN FUNDING AND SERVICING AGREEMENT
(ACS Funding Trust I)
THIS CONSENT AND AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED LOAN FUNDING AND
SERVICING AGREEMENT, dated as of January 28, 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 (such
agreement as amended, modified, supplemented, waived or restated from time to
time, the "Agreement");
WHEREAS, the parties hereto desire to (i) consent to the increase of the
Commitment of Citigroup pursuant to and in accordance with Section 2.1(e) of the
Agreement and (ii) amend the Agreement 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. CONSENT.
The parties hereto hereby consent to an increase in the Commitment of Citigroup
and a corresponding increase in the Facility Amount as follows:
Existing Commitment of Citigroup:
$ 100,000,000
Existing Facility Amount:
$ 850,000,000
Increased Commitment of Citigroup:
$ 250,000,000
Increased Facility Amount:
$ 1,000,000,000
SECTION 2. AMENDMENTS.
(a) The Table of Contents is hereby amended by inserting, in appropriate
alphabetical sequence under the heading "ANNEXES," the following:
"Annex B
Commitments".
(b) The definition of "Commitment" in Section 1.1 is hereby amended by
replacing, in clause (a) thereof, the words "on the signature pages of this
Agreement, under the heading "Commitment," or the amount set forth in the
Joinder Supplement with respect to such Lender, as applicable," with the words
"on Annex B hereto".
(c) The definition of "Facility Amount"