JOINDER SUPPLEMENT
Exhibit 10.10
JOINDER SUPPLEMENT, dated as of the date set forth in Item 1 of Schedule I hereto, among the financial institution identified in Item 2 of Schedule I hereto, ACS Funding Trust I, as the borrower (the “Borrower”), and Wachovia Capital Markets, LLC, as Deal Agent (the “Deal Agent”).
W I T N E S S E T H:
WHEREAS, this Joinder Supplement is being executed and delivered under Section 2.1(e) of the Second Amended and Restated Loan Funding and Servicing Agreement, dated as of August 10, 2004 (as amended, modified, waived, supplemented or restated from time to time, the “Agreement”), by and among the Borrower, American Capital Strategies, Ltd., as the servicer (the “Servicer”), the Conduit Lenders and Institutional Lenders from time to time party thereto, the Lender Agents from time to time party thereto, the Deal Agent, JPMorgan Chase Bank, as the swingline lender, and Xxxxx Fargo Bank, National Association, as the backup servicer and as the collateral custodian (all capitalized terms used but not defined herein have the meaning assigned thereto in the Agreement); and
WHEREAS, the party set forth in Item 2 of Schedule I hereto (the “Proposed Lender”) wishes to become a Lender designated as an Institutional Lender party to the Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
(a) Upon receipt by the Deal Agent of an executed counterpart of this Joinder Supplement, to which is attached a fully completed Schedule I and Schedule II, each of which has been executed by the Proposed Lender, the Borrower, the Lender Agent and the Deal Agent, the Deal Agent will transmit to the Proposed Lender, the Borrower and the Lender Agent, a Joinder Effective Notice, substantially in the form of Schedule III to this Joinder Supplement (a “Joinder Effective Notice”). Such Joinder Effective Notice shall be executed by the Deal Agent and shall set forth, inter alia, the date on which the joinder effected by this Joinder Supplement shall become effective (the “Joinder Effective Date”). From and after the Joinder Effective Date, the Proposed Lender shall be a Lender designated as an Institutional Lender party to the Agreement for all purposes thereof. Pursuant thereto, and concurrently therewith, the Borrower shall execute and deliver to Citigroup Global Markets Realty Corp. a Structured Note in the name of Citigroup Global Markets Realty Corp.
(b) Each of the parties to this Joinder Supplement agrees and acknowledges that at any time and from time to time upon the written request of any other party, it will execute and deliver such further documents and do such further acts and things as such other party may reasonably request in order to effect the purposes of this Joinder Supplement.
(c) By executing and delivering this Joinder Supplement, the Proposed Lender confirms to and agrees with the Deal Agent, the Lender Agents and the other Lenders as follows: (i) none of the Deal Agent, the Lender Agents and the other Lenders makes any representation or
warranty or assumes any responsibility with respect to any statements, warranties or representations made in or in connection with the Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Agreement or any other instrument or document furnished pursuant thereto, or with respect to any Structured Notes issued under the Agreement, or the Collateral (as defined under the Agreement) or the financial condition of the Originator, the Servicer or the Borrower, or the performance or observance by the Originator, the Servicer or the Borrower of any of their respective obligations under the Agreement, any other Transaction Document or any other instrument or document furnished pursuant thereto; (ii) the Proposed Lender confirms that it has received a copy of such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder Supplement; (iii) the Proposed Lender will, independently and without reliance upon the Deal Agent, the Lender Agents or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Agreement; (iv) the Proposed Lender appoints and authorizes the Lender Agent to take such action as agent on its behalf and to exercise such powers under the Agreement as are delegated to the Lender Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with Article XI of the Agreement; (v) the Proposed Lender appoints and authorizes the Deal Agent to take such action as agent on its behalf and to exercise such powers under the Agreement as are delegated to the Deal Agent by the terms thereof, together with such powers as are reasonably incidental thereto, all in accordance with the Agreement; and (vi) the Proposed Lender agrees (for the benefit of the parties hereto and the other Lenders) that it will perform in accordance with their terms all of the obligations which by the terms of the Agreement are required to be performed by it as a Lender designated as an Institutional Lender.
(d) Schedule II hereto sets forth administrative information with respect to the Proposed Lender.
(e) This Joinder Supplement shall be governed by, and construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Joinder Supplement to be executed by their respective duly authorized officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I hereto.
SCHEDULE I TO
JOINDER SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR JOINDER SUPPLEMENT
| Re: | Second Amended and Restated Loan Funding and Servicing Agreement, dated as of August 10, 2004, among ACS Funding Trust I, as Borrower, the other parties thereto and Wachovia Capital Markets, LLC, as Deal Agent. |
| Item 1: Date of Joinder Supplement: |
August 27, 2004 | |
| Item 2: Proposed Lender: |
Citigroup Global Markets Realty Corp. | |
| Item 3: Type of Lender: |
¨ Conduit Lender x Institutional Lender | |
| Item 4: |
Commitment - $100,000,000 Commitment Termination Date: August 7, 2007 | |
| Item 5: Name of Lender Agent (if a Conduit Lender): N/A |
||
[Remainder of Page Intentionally Left Blank]
| Item 6: | Signatures of Parties to Agreement: |
| CITIGROUP GLOBAL MARKETS REALTY CORP., as Proposed Lender | ||||
| By: |
/s/ Xxxxx Xxxxxxxxx | |||
| Name: |
Xxxxx Xxxxxxxxx | |||
| Title: |
Vice President | |||
Joinder Supplement
| ACS FUNDING TRUST I, as Borrower, | ||||
| By: |
/s/ Xxxxx Xxxxxx | |||
| Name: |
Xxxxx Xxxxxx | |||
| Title: |
Beneficiary Trustee | |||
Joinder Supplement
| WACHOVIA CAPITAL MARKETS, LLC, as Deal Agent | ||||
| By: |
/s/ Xxxx X. Xxxxxxxx | |||
| Name: |
Xxxx X. Xxxxxxxx | |||
| Title: |
Vice President | |||
Joinder Supplement
| CITIGROUP GLOBAL MARKETS REALTY CORP., as an Institutional Lender | ||||
| By: |
/s/ Xxxxx Xxxxxxxxx | |||
| Name: |
Xxxxx Xxxxxxxxx | |||
| Title: |
Vice President | |||
Joinder Supplement
Acknowledged and agreed in accordance with Section 2.1(e) of the Agreement:
| JPMORGAN CHASE BANK | ||||
| By: |
/s/ Xxxxxxxxx Xxxxxxx | |||
| Name: |
Xxxxxxxxx Xxxxxxx | |||
| Title: |
Vice President | |||
Joinder Supplement
SCHEDULE II TO
JOINDER SUPPLEMENT
ADDRESS FOR NOTICES
AND
WIRE INSTRUCTIONS
| Address for Notices: |
Citigroup Global Markets Realty Corp. 000 Xxxxxxxxx Xxxxxx 0xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxxx Xxxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email:xxxxxxxxx.xxxxxxxx@xxxxxxxxx.xxx | |
| Wire Instructions: |
Name of Bank: Chase Manhattan Bank A/C No.:066-612187 ABA No.000000000 Reference:Citigroup Global Markets Realty Corp. | |
SCHEDULE III TO
JOINDER SUPPLEMENT
JOINDER EFFECTIVE NOTICE
To:
| ACS FUNDING TRUST I c/o American Capital Strategies, Ltd. 0 Xxxxxxxx Xxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxx, Xxxxxxxx 00000 Attention: Compliance Officer Facsimile No.: (000) 000-0000 Confirmation No.: (000) 000-0000 |
CITIGROUP GLOBAL MARKETS REALTY CORP. 000 Xxxxxxxxx Xxxxxx 0xx Xxxxx Xxx Xxxx, XX 00000 Attention: Xxxxxxxxx Xxxxxxxx Facsimile No.: (000) 000-0000 Confirmation No.: (000) 000-0000 |
The undersigned, as Deal Agent under the Second Amended and Restated Loan Funding and Servicing Agreement, dated as of August 10, 2004, by and among the Borrower, American Capital Strategies, Ltd., as the servicer, the Conduit Lenders and Institutional Lenders from time to time party thereto, the Lender Agents from time to time party thereto, the Deal Agent, JPMorgan Chase Bank, as the swingline lender, and Xxxxx Fargo Bank, National Association, as the backup servicer and as the collateral custodian, acknowledges receipt of an executed counterpart of a completed Joinder Supplement and consents to the addition of Citigroup Global Markets Realty Corp. as a Lender under the Agreement. Terms defined in such Joinder Supplement are used herein as therein defined.
Pursuant to such Joinder Supplement, you are advised that the Joinder Effective Date for Citigroup Global Markets Realty Corp. will be August 27, 2004 and such Proposed Lender will be a Lender designated as an Institutional Lender with a Commitment of $100,000,000.
| Very truly yours, | ||||
| WACHOVIA CAPITAL MARKETS, LLC, as Deal Agent | ||||
| By: |
/s/ Xxxx X. Xxxxxxxx | |||
| Name: |
Xxxx X. Xxxxxxxx | |||
| Title: |
Vice President | |||
