Exhibit 10.4




EXECUTION COPY




 




ACAS BUSINESS LOAN TRUST NOTES




SERIES 2002–2




 




$105,250,000 CLASS A NOTES




 




$52,625,000 CLASS B NOTES




 




PURCHASE AGREEMENT




 




August 5, 2002




 




Wachovia

Securities, Inc.,




as the Initial Purchaser (the “Initial Purchaser”)




One Wachovia

Center




301 South College

Street




Charlotte, North

Carolina  28288




 




Ladies and

Gentlemen:




 




Section 1.              Authorization of Notes.




 




American Capital

Strategies, Ltd. (“American Capital” or the “Company”) and ACAS

Business Loan LLC, 2002–2 (the “Trust Depositor”) have duly authorized

the sale of the ACAS Business Loan Trust Notes, Series 2002–2, consisting of

the Class A Notes (the “Class A Notes”), the Class B Notes (the “Class

B Notes” and together with the Class A Notes, the “Offered Notes”)

and the Class C Note (the “Class C Note” and together with the Offered

Notes, the “Notes”) of ACAS Business Loan Trust 2002–2, a Delaware

business trust (the “Trust”). 

The Trust was formed pursuant to a Trust Agreement, dated as of

August 1, 2002 (the “Trust Agreement”), among the Trust Depositor,

Wachovia Trust Company, National Association, as owner trustee (the “Owner

Trustee”) and the Company, as servicer. 

The Class A Notes will be issued in an aggregate initial principal

amount of $105,250,000, the Class B Notes will be issued in an aggregate

initial principal amount of $52,625,000  and

the Class C Note will be issued in an aggregate initial principal amount of

$52,625,000.  In addition to the Notes,

the Trust is issuing a certificate (the “Certificate”).  The Notes will be secured by the assets of

the Trust.  The Certificate will

represent fractional undivided ownership interests in the Trust.  The Certificate will be issued pursuant to

the Trust Agreement.  The Notes will be

issued pursuant to an Indenture, dated as of August 8, 2002 (the “Indenture”),

between the Trust and Wells Fargo Bank Minnesota, National Association, as

Indenture Trustee (the “Indenture Trustee”).  The primary assets of the Trust will be a pool of commercial

business loans, or interests therein, originated by the Company (collectively,

the “Business Loans”).  The Trust

Depositor will acquire the Business Loans from the Company pursuant to the ACAS

Transfer Agreement, dated




 





























 




as of August 8, 2002 (the “Transfer Agreement”) between the

Company and the Trust Depositor. 

Pursuant to a Transfer and Servicing Agreement, dated as of

August 8, 2002 (the “Transfer and Servicing Agreement”), among the

Trust, the Company, the Trust Depositor and the Indenture Trustee, the Trust

Depositor will sell, transfer and convey to the Trust, without recourse, all of

its right, title and interest in the Business Loans and certain related

assets.  Pursuant to the Indenture, as

security for the indebtedness represented by the Notes, the Trust will pledge

and grant to the Indenture Trustee a security interest in the Business Loans

and its rights under the Transfer Agreement and the Transfer and Servicing

Agreement.  This Agreement, the Trust

Agreement, the Transfer Agreement, the Transfer and Servicing Agreement and the

Indenture are referred to collectively as the “Transaction Documents.”




 




Capitalized terms

used herein but not otherwise defined shall have the meanings set forth in the

Transfer and Servicing Agreement.




 




The Offered Notes

are to be offered and sold by means of a Confidential Private Placement

Memorandum (including any exhibits, amendments or supplements thereto, the “Memorandum”)

prepared by the Company in a transaction exempt from the registration

requirements of Section 5 of the Securities Act of 1933, as amended (the “Securities

Act”), including transactions made pursuant to Rule 144A under the

Securities Act (“Rule 144A”) and in offshore transactions pursuant to

Regulation S under the Securities Act.




 




It is understood

and agreed that nothing in this Agreement shall prevent the Initial Purchaser

from entering into any agency agreements, underwriting agreements or other

similar agreements governing the offer and sale of securities with any issuer

or issuers of securities, and nothing contained herein shall be construed in

any way as precluding or restricting the Initial Purchaser’s right to sell or

offer for sale any securities issued by any person, including securities

similar to, or competing with, the Notes.




 




During the initial

Interest Accrual Period, the Class A Notes shall bear interest at a rate equal

to 2.288750% per annum and the Class B Notes shall bear interest at a rate

equal to 3.388750% per annum.  For each

Interest Accrual Period thereafter, the Class A Notes shall bear interest at a

per annum rate equal to the then applicable LIBOR plus 0.50% per annum, and the

Class B Notes shall bear interest at a per annum rate equal to the then

applicable LIBOR plus 1.60% per annum.




 




The Company hereby

agrees with you, as the Initial Purchaser, as follows:




 




Section 2.              Purchase of Certain Offered Notes.




 




Subject to the

terms and conditions and in reliance upon the representations and warranties

set forth herein, the Trust, agrees to sell all of the Class A Notes and

$25,500,000 of the Class B Notes (collectively, the “Purchased Notes”)

to the Initial Purchaser, and the Initial Purchaser agrees to purchase all of

the Purchased Notes from the Trust, for the purchase price of

$128,750,250.  It is understood and

agreed that the Initial Purchaser is not acquiring, and has no obligation to

acquire, the Class C Note and the Certificate. 

The understanding of the parties with respect to the purchase of the

remaining portion of the Class B Notes is set forth in a separate letter

of even date.




 




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In addition,

whether or not the transaction contemplated hereby shall be consummated, the

Company agrees to pay all other costs and expenses incident to the performance

by the Company of its obligations hereunder and under the documents to be

executed and delivered in connection with the offering, issuance, sale and

delivery of the Offered Notes (the “Documents”), including, without

limitation or duplication, (i) the fees and disbursements of counsel to the

Company; (ii) the fees and expenses of any trustees or custodian due to such

trustees’ or custodian’s initial expenses incurred in connection with the

issuance of the Offered Notes and its counsel; (iii) the fees and expenses of

any bank establishing and maintaining accounts on behalf of the holders of the

Offered  Notes or in connection with the

transaction; (iv) the fees and expenses of the accountants for the

Company, including the fees for the “comfort letters” or “agreed–upon procedures

letters” required by the Initial Purchaser, any rating agency or any purchaser

in connection with the offering, sale, issuance and delivery of the Offered

Notes; (v) all expenses incurred in connection with the preparation and

distribution of one or more preliminary and the final Memorandum and other

disclosure materials prepared and distributed and all expenses incurred in

connection with the preparation and distribution of the Transaction Documents;

(vi) the fees charged by any securities rating agency for rating the Offered

Notes; (vii) the fees for any securities identification service for any CUSIP

or similar identification number required by the purchasers or requested by the

Initial Purchaser; (viii) the fees and disbursements of counsel to the

Initial Purchaser; (ix) all expenses in connection with the qualification of

the Offered Notes for offering and sale under state securities laws, including

the reasonable fees and disbursements of counsel and, if requested by the

Initial Purchaser, the cost of the preparation and reproduction of any “blue

sky” or legal investment memoranda; (x) any federal, state or local taxes,

registration or filing fees (including Uniform Commercial Code financing

statements) or other similar payments to any federal, state or local

governmental authority in connection with the offering, sale, issuance and

delivery of the Offered  Notes; and (xi)

the reasonable fees and expenses of any special counsel or other experts

required to be retained to provide advice, opinions or assistance in connection

with the offering, issuance, sale and delivery of the Offered Notes.




 




Section 3.              Delivery.




 




Delivery of the

Purchased Notes shall be made in the form of one or more global certificates

delivered to The Depository Trust Company, except that any Purchased Note to be

sold by the Initial Purchaser to an institutional Accredited Investor that is

not a QIB (as such terms are defined herein) shall be delivered in fully

registered, certificated form in the minimum denominations set forth in the

Memorandum at the offices of Mayer, Brown, Rowe & Maw, Charlotte, North

Carolina at 10:00 a.m. Charlotte, North Carolina time, on August 8, 2002, or

such other place, time or date as may be mutually agreed upon by the Initial

Purchaser and the Company (the “Closing Date”) against payment by the Initial

Purchaser of the purchase price thereof to or upon the order of the Company (on

behalf of the Trust) by wire transfer payable in same–day funds to the account

specified by the Company.  Subject to

the foregoing, the Purchased Notes will be registered in such names and such

denominations as the Initial Purchaser shall specify in writing to the Company

and the Indenture Trustee reasonably prior to the Closing Date.




 




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Section 4.              Representations

and Warranties of the Company.




 




The Company

represents and warrants to the Initial Purchaser, as of the Closing Date, that:




 




(i)            The Memorandum does not and will

not, and any amendments thereof or supplement thereof and any additional

information and documents concerning the Offered Notes delivered by or on

behalf of the Company to prospective purchasers of the Offered Notes

(collectively, such information and documents, the “Additional Offering

Documents”), each as of their respective dates, each as of its issue date

or date on which such statement was made and as of the Closing Date, include an

untrue statement of a material fact or omit to state a material fact necessary

in order to make the statements, in light of the circumstances under which they

were made, not misleading; provided, that, the Company

makes no representation or warranty as to the information contained in or

omitted from the Memorandum, or any amendment or supplement thereto, in

reliance upon and in conformity with information furnished in writing to the

Company by or on behalf of the Initial Purchaser specifically for inclusion

therein.




 




(ii)           The Company is a Delaware

corporation, duly organized and validly existing under the laws of the state of

Delaware, has all power and authority necessary to own or hold its properties

and conduct its business in which it is engaged as described in the Memorandum

and has all licenses necessary to carry on its business as it is now being

conducted and is licensed and qualified in each jurisdiction in which the

conduct of its business (including without limitation the originating and

acquiring of Business Loans and performing its obligations hereunder and under

the Transaction Documents) requires such licensing or qualification.




 




(iii)          This Agreement has been duly

authorized, executed and delivered by the Company, and, assuming due

authorization, execution and delivery thereof by the other parties hereto,

constitutes a valid and legally binding obligation of the Company enforceable

against the Company in accordance with its terms, subject to the effect of

bankruptcy, insolvency, reorganization, moratorium and other similar laws

relating to or affecting creditors’ rights generally or the application of

equitable principles in any proceeding, whether at law or in equity.




 




(iv)          The Transfer Agreement and the

Transfer and Servicing Agreement have been duly authorized, executed and

delivered by the Company and, assuming due authorization, execution and

delivery thereof by the other parties thereto, constitute valid and binding

agreements of the Company, enforceable against the Company in accordance with

their respective terms, subject to the effect of bankruptcy, insolvency,

reorganization, moratorium and other similar laws relating to or affecting

creditors’ rights generally or the application of equitable principles in any

proceeding, whether at law or in equity.




 




(v)           When executed, authenticated and

delivered in accordance with the Indenture and paid for by the purchasers

thereof, the Offered Notes will have been duly




 




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executed,

authenticated, issued and delivered and will be entitled to the benefits of the

Indenture.




 




(vi)          Other than as set forth in or

contemplated by the Memorandum, there are no legal or governmental proceedings

pending to which the Company is a party or of which any property or assets of

the Company are the subject of which, if determined adversely to the Company,

would individually or in the aggregate have a material adverse effect on the

financial position, business or results of operations of the Company and its

subsidiaries taken as a whole or on the performance by the Company of its

obligations hereunder or under the Transaction Documents (a “Material

Adverse Effect”); and, to the best knowledge of the Company, no such

proceedings are threatened or contemplated by governmental authorities or

threatened by others.




 




(vii)         The execution, delivery and performance

of this Agreement and the other Transaction Documents to which it is a party by

the Company and the consummation by the Company of the transactions

contemplated herein and therein and in all documents relating to the Notes will

not result in any material breach or violation of, or constitute a material

default under, any agreement or instrument to which the Company is a party or

to which any of its properties or assets are subject, except for such of the

foregoing as to which relevant waivers or amendments have been obtained and are

in full force and effect, nor will any such action result in a violation of the

Certificate of Incorporation or By–Laws of the Company or any law or any order,

decree, rule or regulation of any court or governmental agency having

jurisdiction over the Company or its properties and no consent, authorization

or order of, or filing or registration with, any court or governmental agency

is required for the issuance and sale of the Notes or the execution, delivery

and performance by the Company of this Agreement or the other Transaction

Documents to which it is a party, except such consents, approvals,

authorizations, registrations or qualifications as have been obtained or as may

be required under state securities or blue sky laws in connection with the sale

and delivery of the Offered Notes in the manner contemplated herein.




 




(viii)        The Trust is not required to register as

an “investment company” under the Investment Company Act of 1940, as amended.




 




(ix)           Assuming the Initial Purchaser’s

representations are true and accurate, it is not necessary in connection with

the offer, sale and delivery of the Offered Notes in the manner contemplated by

this Agreement and the Memorandum to register the Offered Notes under the

Securities Act.




 




(x)            The Offered Notes satisfy the

requirements set forth in Rule 144A(d)(3) under the Securities Act.




 




(xi)           At the time of execution and delivery

of the Transfer and Servicing Agreement and after giving effect to any releases

pursuant to the CP Transaction, the Trust Depositor owned the Business Loans

free and clear of all liens, encumbrances, adverse claims or security interests

(“Liens”) except for Permitted Liens, and the Trust Depositor had the

power and authority to transfer the Business Loans to the Trust.




 




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(xii)          Upon the execution and delivery of the

Transaction Documents, payment by the Initial Purchaser and the Trust Depositor

for the Offered Notes and delivery to the Initial Purchaser and the Trust

Depositor of the Offered Notes, the Trust will own the Business Loans and the

Initial Purchaser and the Trust Depositor will acquire title to the Offered

Notes, in each case free of Liens except such Liens as may be created or

granted by the Initial Purchaser and the Trust Depositor and those listed in

the Transaction Documents.




 




(xiii)         No consent, authorization or order of,

or filing or registration with, any court or governmental agency is required

for the issuance and sale of the Offered Notes or the execution, delivery and

performance by the Company of this Agreement or the other Transaction Documents

to which it is a party, except such consents, approvals, authorizations,

registrations or qualifications as have been obtained or as may be required

under state securities or blue sky laws in connection with the sale and

delivery of the Offered Notes in the manner contemplated herein.




 




(xiv)        The Business Loans, individually and in

the aggregate, have the characteristics described in the Memorandum.




 




(xv)         Each of the representations and

warranties of the Company and the Trust Depositor set forth in the Transaction

Documents is true and correct in all material respects.




 




(xvi)        Any taxes, fees and other governmental

charges in connection with the execution, delivery and issuance of this

Agreement and the other Transaction Documents and the Notes have been or will

be paid by the Company prior to the Closing Date.




 




(xvii)       No adverse selection procedures were used

in selecting the Business Loans from among the loans that meet the

representations and warranties of the Company contained in the Transfer Agreement

and that are included in the portfolio of the Company.




 




(xviii)      Neither the Company nor any affiliate

thereof nor anyone acting on their behalf has, directly or indirectly (except

to or through the Initial Purchaser), sold or offered, or attempted to offer or

sell, or solicited any offers to buy, or otherwise approached or negotiated in

respect of, any of the Offered Notes and neither the Company nor any of its

affiliates will do any of the foregoing. 

As used herein, the terms “offer” and “sale” have the meanings specified

in Section 2(3) of the Securities Act.




 




(xix)         Neither the Company nor any affiliate

(as defined in Rule 501(b) of Regulation D under the Securities Act (“Regulation

D”)) of the Company has directly, or through any agent (other than the

Initial Purchaser, as to which the Company makes no representation or

warranty), sold, offered for sale, solicited offers to buy or otherwise

negotiated in respect of, any security (as defined in the Securities Act) which

is or will be integrated with the sale of the Offered Notes in a manner that

would require the registration under the Securities Act of the offerings

contemplated by the Memorandum




 




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or engaged in any

form of general solicitation or general advertising (within the meaning of

Regulation D) in connection with the offerings of the Offered Notes.




 




(xx)          With respect to any Offered Notes

subject to the provisions of Regulation S of the Securities Act, the Company

has not offered or sold such Offered Notes during the Restricted Period to a

person (other than the Initial Purchaser) who is within the United States or

its possessions or to a United States person. 

For this purpose, the terms “Restricted Period”, “United States or its

possessions” and “United States person” are defined as such terms are defined

for purposes of Treas. Reg. § 1.163–5(c)(2)(i)(D).




 




(xxi)         It is not necessary in connection with

the offer, sale and delivery of the Offered Notes in the manner contemplated by

the Agreement and the Memorandum to qualify the Indenture under the Trust

Indenture Act of 1939, as amended.




 




Section 5.              Sale

of Purchased Notes to the Initial Purchaser.




 




The sale of the

Purchased Notes to the Initial Purchaser will be made without registration of

the Purchased Notes under the Securities Act, in reliance upon the exemption

therefrom provided by Section 4(2) of the Securities Act.




 




(a)           The

Company and the Initial Purchaser each agree that the Offered Notes will be

offered and sold only in transactions exempt from registration under the

Securities Act.  The Company and the

Initial Purchaser will each reasonably believe at the time of any sale of the

Offered Notes by the Company through the Initial Purchaser, as initial

purchaser, (i) that either (A) each purchaser of the Offered Notes is an

institutional investor that is (1) a “qualified institutional buyer” within the

meaning of Rule 144A under the Securities Act (each, a “QIB”) in

transactions meeting the requirements of Rule 144A, or (2) an institutional

“accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of

Regulation D (each, an “Institutional Accredited Investor”), who, in the

case of an investor described in this clause (i)(A)(2), purchases for

its own account or for any discretionary account for which it is acquiring the

Offered Notes and provides the Initial Purchaser with a written certification

in substantially the form attached as an exhibit to the Indenture, or (B) each

purchaser is acquiring the Offered Notes in an offshore transaction meeting the

requirements of Regulation S under the Securities Act, and (ii) that the

offering of the Offered Notes will be made in a manner it reasonably believes

will enable the offer and sale of the Offered Notes to be exempt from registration

under state securities or Blue Sky laws; and each such party understands that

no action has been taken to permit a public offering in any jurisdiction where

action would be required for such purpose. 

The Company and the Initial Purchaser each further agree not to (i)

engage in any activity that would constitute a public offering of the Offered

Notes within the meaning of Section 4(2) of the Securities Act or

(ii) offer or sell the Offered Notes by any form of general solicitation

or general advertising (as those terms are used in Regulation D), including the

methods described in Rule 502(c) of Regulation D, in connection with any offer

or sale of the Offered Notes.




 




(b)           The

Initial Purchaser hereby represents and warrants to and agrees with the Company,

that (i) the Initial Purchaser is an institutional “accredited investor” within

the meaning of Rule 501 under the Securities Act, (ii) the Initial Purchaser

will offer the Offered Notes only (A) to persons who the Initial Purchaser

reasonably believes are QIBs in transactions




 




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meeting

the requirements of Rule 144A, (B) to institutional investors who the Initial

Purchaser reasonably believes are Institutional Accredited Investors or (C) in

offshore transactions in reliance on Regulation S under the Securities

Act.  The Initial Purchaser further

agrees that it will (i) deliver to each purchaser of the Offered Notes, at

or prior to the confirmation of sale, a copy of the Memorandum, as then amended

or supplemented, which Memorandum will include a Notice to Investors in the

form attached hereto as Exhibit I, and (ii) prior to any sale of the

Offered Notes to an Institutional Accredited Investor that the Initial

Purchaser does not reasonably believe is a QIB, it will receive from such

Institutional Accredited Investor a written certification in substantially the

form attached as an exhibit to the Indenture.




 




(c)           The

Initial Purchaser hereby represents to the Company that it is a QIB.




 




(d)           The

Initial Purchaser is duly authorized and possesses the requisite corporate

power to enter into this Agreement.




 




(e)           There

is no action, suit or proceeding pending against or, to the knowledge of the

Initial Purchaser, threatened against or affecting, the Initial Purchaser before

any court or arbitrator or any government body, agency, or official which could

materially adversely affect the ability of the Initial Purchaser to perform its

obligations under this Agreement.




 




(f)            The

Initial Purchaser represents and agrees that all offers and sales of the

Offered Notes to non–United States persons, prior to the expiration of the

Restricted Period, will be offered and sold only in accordance with the

provisions of Rule 903 of Regulation S (except to the extent of any beneficial

owners thereof who acquired an interest therein pursuant to another exemption

from registration under the Securities Act and who will take delivery of a

beneficial ownership interest in a Global Note, as contemplated in the

Indenture) and only upon the receipt of the certification of beneficial

ownership of the securities by a non–United States person in the form provided

in the Indenture.  For this purpose, the

terms “Restricted Period” and “United States person” are defined as such terms

are defined for purposes of Treas. Reg. § 1.163–5(c)(2)(i)(D).




 




(g)           The

Initial Purchaser (i) has not offered or sold and, until six (6) months after

the Closing Date, will not offer or sell any Offered Notes to persons in the

United Kingdom except to persons whose ordinary activities involve them in

acquiring, holding, managing or disposing of investments (as principal or

agent) for the purposes of their businesses or otherwise in circumstances which

have not resulted and will not result in an offer to the public in the United Kingdom

within the meaning of the Public Offers of Securities Regulations 1995, as

amended; (ii) has complied, and will comply, with all applicable

provisions of the Financial Services and Markets Act 2000 and the Public Offers

of Securities Regulations 1995, as amended, with respect to anything done by

the Initial Purchaser in relation to the Offered Notes in, from or otherwise

involving the United Kingdom; (iii) only issued or passed on, and will only

issue or pass on, in the United Kingdom any document received by the Initial

Purchaser in connection with the proposed issue of the Offered Notes to a

person who is of a kind described in Article 11(3) of the Financial and Market

Services Act 2000 (Investment Advertisements) (Exemptions), as amended, or a person

to whom the document may otherwise lawfully be issued or passed on.




 




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(h)           The

Initial Purchaser represents and agrees that no offer has or will be made to

the public in the Cayman Islands to subscribe for the Offered Notes, whether

directly or indirectly.




 




Section 6.              Certain

Agreements of the Company.




 




The Company

covenants and agrees with the Initial Purchaser as follows:




 




(a)           If,

at any time prior to the earlier of (i) completion of the sale of the Offered

Notes by the Initial Purchaser, or (ii) the 90th day following the Closing

Date, any event involving the Company shall occur as a result of which the

Memorandum (as then amended or supplemented) would include an untrue statement

of a material fact or omit to state any material fact necessary to make the

statements therein, in light of the circumstances under which they were made,

not misleading, the Company promptly will notify the Initial Purchaser and

prepare and furnish to the Initial Purchaser an amendment or supplement to the

Memorandum that will correct such statement or omission.  The Company will not at any time amend or

supplement the Memorandum (i) prior to having furnished the Initial Purchaser

with a copy of the proposed form of the amendment or supplement and giving the

Initial Purchaser a reasonable opportunity to review the same or (ii) in a

manner to which the Initial Purchaser or its counsel shall reasonably object.




 




(b)           During

the period referred to in subsection 6(a), the Company will furnish to

the Initial Purchaser, without charge, copies of the Memorandum (including all

exhibits and documents incorporated by reference therein), the Transaction

Documents, and all amendments or supplements to such documents, in each case as

soon as reasonably available and in such quantities as the Initial Purchaser

may reasonably request.




 




(c)           At

all times during the course of the private placement contemplated hereby and

prior to the Closing Date, (i) the Company will make available to each offeree

the Additional Offering Documents and information concerning any other relevant

matters, as they or any of their affiliates possess or can acquire without

unreasonable effort or expense, as determined in good faith by them, (ii) the

Company will provide each offeree the opportunity to ask questions of, and

receive answers from, it concerning the terms and conditions of the offering

and to obtain any additional information, to the extent they or any of their

affiliates possess such information or can acquire it without unreasonable

effort or expense (as determined in good faith by them), necessary to verify

the accuracy of the information furnished to the offeree, (iii) the

Company will furnish the Initial Purchaser with copies of the Memorandum in

such quantities as the Initial Purchaser may from time to time reasonably

request, (iv) the Company will not publish or disseminate any material in

connection with the offering of the Offered Notes except as contemplated herein

or as consented to by the Initial Purchaser, (v) the Company will advise the

Initial Purchaser promptly of the receipt by the Company of any communication

from the SEC or any state securities authority concerning the offering or sale

of the Offered Notes, (vi) the Company will advise the Initial Purchaser

promptly upon its receipt of notice of the commencement of any lawsuit or

proceeding to which the Company is a party relating to the offering or sale of

the Offered Notes, and (vii) the Company will advise the Initial Purchaser

upon its receipt of notice of the suspension of the qualification of the

Offered Notes for offering or sale in any jurisdiction, or the initiation or

threat of any procedure for any such purpose.




 




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(d)           The

Company will furnish, upon the written request of any Noteholder or of any

owner of a beneficial interest therein, such information as is specified in

paragraph (d)(4) of Rule 144A under the Securities Act (i) to such Noteholder

or beneficial owner, (ii) to a prospective purchaser of such Note or interest

therein who is a Qualified Institutional Buyer designated by such Noteholder or

beneficial owner, or (iii) to the Indenture Trustee for deliver to such

Noteholder, beneficial owner or prospective purchaser, in order to permit

compliance by such Noteholder or beneficial owner with Rule 144A in connection

with the resale of such Note or beneficial interest therein by such holder or

beneficial owner in reliance on Rule 144A unless, at the time of such request,

the Issuer is subject to the reporting requirements of Section 13 or 15(d) of

the Securities Exchange Act of 1934 or is exempt from such reporting

requirements pursuant to and in compliance with Rule 12g3-2(b).




 




(e)           Prior

to the date of distribution of the Memorandum, the Company will provide the

Initial Purchaser with a “comfort” or “agreed upon procedures” letter from

Ernst & Young verifying the accuracy of such financial and statistical data

contained in the Memorandum as the Initial Purchaser shall deem advisable.




 




(f)            Except

as otherwise provided in the Indenture, each Offered Note will contain a legend

to the effect set forth in the form of Notice to Investors attached as Exhibit

I hereto.




 




Section 7.              Conditions

of the Initial Purchaser’s Obligations.




 




The obligations of

the Initial Purchaser to purchase the Purchased Notes on the Closing Date will

be subject to the accuracy of the representations and warranties of the Company

herein, to the performance by the Company of its obligations hereunder and to

the following additional conditions precedent:




 




(a)           The

Offered Notes shall have been duly authorized, executed, authenticated,

delivered and issued, the Transaction Documents shall have been duly

authorized, executed and delivered by the respective parties thereto and shall

be in full force and effect, and the Business Loans and related Loan Files

shall have been delivered to the Indenture Trustee pursuant to the Transfer and

Servicing Agreement.




 




(b)           The

Initial Purchaser shall receive a certificate, dated the Closing Date, of the

President, Chief Executive Officer, Chief Financial Officer or any Executive

or  Senior Vice President of the Company

to the effect that such officer has carefully examined this Agreement, the

Memorandum and the Transaction Documents and that, to the best of such

officer’s knowledge (i) since the date information is given in the

Memorandum, there has not been any material adverse change in the condition,

financial or otherwise, or in the earnings, results of operations, business

affairs or business prospects of the Company, whether or not arising in the

ordinary course of business, or the ability of the Company to perform its

obligations hereunder or under the Transaction Documents or in the

characteristics of the Business Loans except as contemplated by the Memorandum

or as described in such certificates, (ii) the representations and warranties

of the Company set forth herein are true and correct as of the Closing Date,

(iii) the Company has complied with all agreements and satisfied all

conditions on its part to be performed or satisfied hereunder and under the

Transaction Documents, at or prior to the Closing Date, (iv) the

representations and warranties of the Company and the Trust Depositor in the




 




10





























 




Transaction

Documents are true and correct, as of the Closing Date, as though such

representations and warranties had been made on and as of such date, and (v)

nothing has come to the attention of such officer that would lead such officer

to believe that the Memorandum, and any amendment thereof or supplement

thereto, as of its date and as of the Closing Date, or any Additional Offering

Document contains an untrue statement of a material fact or omits to state any

material fact necessary in order to make the statements therein, in light of

the circumstances under which they were made, not misleading.




 




(c)           The

Class A Notes shall have been rated no less than “Aaa” by Moody’s Investors

Services, Inc. (“Moody’s”), “AAA” by Standard & Poor’s Ratings Services,

a division of The McGraw–Hill Companies, Inc. (“S&P”), and “AAA” by

Fitch, Inc. (“Fitch”) and the Class B Notes shall have been rated no

less than “A2” by Moody’s, “A” by S&P, and “A+” by Fitch, such ratings

shall not have been rescinded, and no public announcement shall have been made

by the respective rating agencies that the rating of the Offered Notes have

been placed under review.




 




(d)           On

the date of the Memorandum, Ernst & Young shall have furnished to the

Initial Purchaser an “agreed upon procedures” letter, dated the date of

delivery thereof, in form and substance satisfactory to the Initial Purchaser,

with respect to certain financial and statistical information contained in the

Memorandum.




 




(e)           Initial

Purchaser shall have received an opinion, dated the Closing Date, of Victoria

E. Gregory, in—house counsel to the Indenture Trustee, substantially in the

form attached hereto as Exhibit A.




 




(f)            Initial

Purchaser shall have received an opinion of Arnold & Porter, counsel to the

Company, (i) with respect to certain corporate matters substantially in the

form attached hereto as Exhibit B and (ii) with respect to there being

no consents required to transfer the business Loans substantially in the form

attached hereto as Exhibit C.




 




(g)           The

Initial Purchaser shall have received opinions of Winston & Strawn, counsel

to the Company, the Trust Depositor and the Trust, (i) with respect to certain

corporate, federal tax, securities law and investment company matters,

substantially in the forms attached hereto as Exhibit D and (ii) with

respect to certain “true sale,” “non–consolidation” issues and “perfection

issues” substantially in the forms attached hereto as Exhibit E.




 




(h)           The

Initial Purchaser shall have received opinions of Richards, Layton & Finger,

counsel to the Owner Trustee and the Trust, (i) substantially in the forms

attached hereto as Exhibit F, (ii) with respect to certain “trust

issues” substantially in the form attached hereto as Exhibit G and (iii)

with respect to certain “perfection issues” substantially in the forms attached

hereto as Exhibit H.




 




(i)            The

Initial Purchaser shall have received from the Indenture Trustee a certificate

signed by one or more duly authorized officers of the Indenture Trustee, dated

the Closing Date, in customary form.




 




(j)            The

Initial Purchaser shall have received from the Owner Trustee, a certificate

signed by one or more duly authorized officers of the Owner Trustee, dated the

Closing Date, in customary form.




 




11





























 




(k)           The

Company shall have furnished to the Initial Purchaser and its counsel such

further information, certificates and documents as the Initial Purchaser and

its counsel may reasonably have requested, and all proceedings in connection

with the transactions contemplated by this Agreement and all documents incident

hereto shall be in all material respects reasonably satisfactory in form and

substance to the Initial Purchaser and its counsel.




 




(l)            All

documents incident hereto and to the Transaction Documents shall be reasonably

satisfactory in form and substance to the Initial Purchaser and its counsel,

and the Initial Purchaser and its counsel shall have received such information,

certificates and documents as they may reasonably request.




 




If any of the

conditions specified in this Section 7 shall not have been fulfilled in

all material respects when and as provided in this Agreement, or if any of the

opinions and certificates mentioned above shall not be in all material respects

reasonably satisfactory in form and substance to the Initial Purchaser, this

Agreement and all of the Initial Purchaser’s obligations hereunder may be

canceled by the Initial Purchaser at or prior to delivery of and payment for

the Purchased Notes.  Notice of such

cancellation shall be given to the Company in writing, or by telephone or

telecopy confirmed in writing.




 




Section 8.              Indemnification

and Contribution.




 




(a)           The

Company shall indemnify and hold harmless the Initial Purchaser and each

person, if any, who controls the Initial Purchaser within the meaning of either

the Securities Act or the Exchange Act from and against any loss, claim, damage

or liability, joint or several, and any action in respect thereof, to which the

Initial Purchaser or such controlling person may become subject, under the

Securities Act or Exchange Act or otherwise, insofar as such loss, claim,

damage, liability or action arises out of, or is based upon, any untrue

statement or alleged untrue statement of a material fact contained in the

Memorandum, any Additional Offering Document or arises out of, or is based

upon, the omission or alleged omission to state therein a material fact

required to be stated therein or necessary to make the statements therein, in

light of the circumstances under which they were made, not misleading, and

shall reimburse the Initial Purchaser and such controlling person for any legal

and other expenses reasonably incurred by the Initial Purchaser or such

controlling person in investigating or defending or preparing to defend against

any such loss, claim, damage, liability or action; provided, however,

that the Company shall not be liable in any such case to the extent that any

such loss, claim, damage, liability or action arises out of, or is based upon,

any untrue statement or alleged untrue statement or omission or alleged

omission made in the Memorandum or any Additional Offering Document in reliance

upon and in conformity with written information furnished to the Company by the

Initial Purchaser or on behalf of the Initial Purchaser specifically for

inclusion therein, provided, further, that,

the foregoing indemnity shall not inure to the benefit of the Initial Purchaser

(or any person that controls the Initial Purchaser) from whom the person

asserting any such loss, claim, damage or liability purchased the Offered Notes

which are the subject thereof if such person did not receive a copy of the

Memorandum and any Additional Offering Document (including any amendments or

supplements) at or prior to the confirmation of the sale of the Offered Notes

and the untrue statement or omission of a material fact was corrected by any

amendments or supplements thereto.  The

foregoing indemnity is in addition to any liability that the Company may otherwise

have to the Initial Purchaser or any person or




 




12





























 




entity

controlling the Initial Purchaser.  The

Company acknowledges that the statements set forth in the Memorandum under the

caption “Plan of Distribution” constitute the only written information

furnished to the Company by the Initial Purchaser or on behalf of the Initial

Purchaser specifically for inclusion in the Memorandum or any Additional

Offering Document.




 




(b)           The

Initial Purchaser shall indemnify and hold harmless the Company, any person who

controls the Company within the meaning of either the Securities Act or the

Exchange Act and their respective officers, directors, employees and agent from

and against any loss, claim, damage or liability, joint or several, and any

action in respect thereof, to which the Company or any such controlling person

may become subject, under the Act or otherwise, insofar as such loss, claim,

damage, liability or action arises out of, or is based upon, any untrue

statement or alleged untrue statement of a material fact contained in the

Memorandum or any Additional Offering Document or arises out of, or is based

upon, the omission or alleged omission to state therein a material fact

required to be stated therein or necessary to make the statements therein not

misleading, but in each case only to the extent that the untrue statement or

alleged untrue statement or omission or alleged omission was made in reliance

upon and in conformity with written information furnished to the Company by the

Initial Purchaser or on behalf of the Initial Purchaser specifically for

inclusion therein, and shall reimburse the Company for any legal and other

expenses reasonably incurred by the Company, any such controlling person

investigating or defending or preparing to defend against any such loss, claim,

damage, liability or action.  The

Company acknowledges that the statements set forth under the caption “Plan of

Distribution” in the Memorandum constitute the only written information furnished

to the Company by the Initial Purchaser or on behalf of the Initial Purchaser

specifically for inclusion in the Memorandum. 

The foregoing indemnity agreement is in addition to any liability that

the Initial Purchaser may otherwise have to the Company or any of its

controlling persons.




 




(c)           Promptly

after receipt by an indemnified party under this Section 8 of notice of

any claim or the commencement of any action, the indemnified party shall, if a

claim in respect thereof is to be made against the indemnifying party under

this Section 8, notify the indemnifying party in writing of the claim or

commencement of that action; provided, that, the failure to

notify the indemnifying party shall not relieve it from any liability that it

may have to an indemnified party otherwise than under this Section 8,

except to the extent that the indemnifying party has been materially prejudiced

thereby.  If any such claim or action

shall be brought against an indemnified party, and it shall notify the

indemnifying party thereof, the indemnifying party shall be entitled to

participate therein and, to the extent that it wishes, jointly with any other

similarly notified indemnifying party, to assume the defense thereof with

counsel reasonably satisfactory to the indemnified party.  After notice from the indemnifying party to

the indemnified party of its election to assume the defense of such claim or

action, the indemnifying party shall not be liable to the indemnified party

under this Section 8 for any legal or other expenses subsequently

incurred by the indemnified party in connection with the defense thereof; provided,

that,

the Initial Purchaser shall have the right to employ counsel to represent the

Initial Purchaser and the controlling persons who may be subject to liability

arising out of any claim or action in respect of which indemnity may be sought

by the Initial Purchaser against the Company under this Section 8, if

(i) in the reasonable judgment of the Initial Purchaser, there may be legal

defenses available to the Initial Purchaser, and those controlling persons,

different from or in addition to those available to the Company, or there is a

conflict of interest between the Initial Purchaser and the controlling persons,

on one hand, and the Company, on the other, or (ii) the




 




13





























 




Company

shall fail to select counsel reasonably satisfactory to the indemnified party

or parties, and in such event the fees and expenses of such separate counsel

shall be paid by the Company.  In no

event shall the Company be liable for the fees and expenses of more than one

separate firm of attorneys for the Initial Purchaser and the controlling

persons in connection with any other action or separate but similar or related

actions in the same jurisdiction arising out of the same general allegations or

circumstances.




 




(d)           If

the indemnification provided for in Section 8 shall for any reason be

unavailable to an indemnified party under subsection 8(a) or 8(b)

hereof in respect of any loss, claim, damage or liability, or any action in

respect thereof, referred to therein, then each indemnifying party shall, in

lieu of indemnifying such indemnified party, contribute to the amount paid or

payable by such indemnified party as a result of such loss, claim, damage or

liability, or action in respect thereof, (i) in such proportion as shall be

appropriate to reflect the relative benefits received by the Company on the one

hand and the Initial Purchaser on the other from the offering of the Offered

Notes or (ii) if the allocation provided by clause (i) above is not

permitted by applicable law, in such proportion as is appropriate to reflect

not only the relative benefits referred to in clause (i) above but also

the relative fault of the Company on the one hand and the Initial Purchaser on

the other with respect to the statements or omissions that resulted in such

loss, claim, damage or liability, or action in respect thereof, as well as any

other relevant equitable considerations. 

The relative benefits received by the Company on the one hand and the Initial

Purchaser on the other with respect to such offering shall be deemed to be in

the same proportion as the total net proceeds from the offering of the Offered

Notes (before deducting expenses) received by the Company bear to the total

fees and/or discounts actually received by the Initial Purchaser with respect

to such offering pursuant to Section 2 of this Agreement.  The relative fault shall be determined by

reference to whether the untrue or alleged untrue statement of a material fact

or omission or alleged omission to state a material fact relates to information

supplied by the Company or the Initial Purchaser, the intent of the parties and

their relative knowledge, access to information and opportunity to correct or

prevent such statement or omission.  The

Company and the Initial Purchaser agree that it would not be just and equitable

if contributions pursuant to this subsection 8(d) were to be determined

by pro rata allocation or by any other method of allocation that does not take

into account the equitable considerations referred to herein.  The amount paid or payable by an indemnified

party as a result of the loss, claim, damage or liability, or action in respect

thereof, referred to above in this subsection 8(d) shall be deemed to

include, for purposes of this subsection 8(d), any legal or other

expenses reasonably incurred by such indemnified party in connection with

investigating or defending any such action or claim.  Notwithstanding the provisions of this subsection 8(d),

the Initial Purchaser shall not be required to contribute any amount in excess

of the aggregate fee and/or discount actually paid to the Initial Purchaser

pursuant to Section 2 of this Agreement.  No person guilty of fraudulent misrepresentation (within the

meaning of Section 11(f) of the Securities Act) shall be entitled to

contribution from any person who was not guilty of such fraudulent

misrepresentation.




 




(e)           The

indemnity agreements contained in this Section 8 shall survive the

delivery of the Purchased Notes, and the provisions of this Section 8

shall remain in full force and effect, regardless of any termination or

cancellation of this Agreement or any investigation made by or on behalf of any

indemnified party.




 




14





























 




Section 9.              Termination.




 




This Agreement

shall be subject to termination in the absolute discretion of the Initial

Purchaser, by notice given to the Company prior to delivery of and payment for

the Purchased Notes, if prior to such time (i) trading in securities generally

in the New York Stock Exchange shall have been suspended or materially limited

or any setting of minimum prices for trading on such exchange has occurred,

(ii) there has been, since the respective dates as of which information is

given in the Memorandum, any material adverse change in the condition,

financial or otherwise, or in the properties (including, without limitation,

the Business Loans) or the earnings, business affairs or business prospects of

the Company considered as one enterprise, whether or not arising in the

ordinary course of business; (iii) a general moratorium on commercial banking

activities in New York shall have been declared by either federal or New York

State authorities, or (iv) there shall have occurred any material outbreak or

escalation of hostilities or other calamity or crises the effect of which on

the financial markets of the United States is such as to make it, in the

reasonable judgment of the Initial Purchaser, impracticable or inadvisable to

market the Purchased Notes on the terms and in the manner contemplated by the

Memorandum as amended or supplemented.




 




Section 10.            Severability

Clause.




 




Any part,

provision, representation, or warranty of this Agreement which is prohibited or

is held to be void or unenforceable in any jurisdiction shall, as to such

jurisdiction, be ineffective to the extent of such prohibition or

unenforceability without invalidating the remaining provisions hereof.




 




Section 11.            Notices.




 




All demands,

notices and communications hereunder shall be in writing and shall be deemed to

have been duly given if personally delivered at or mailed by overnight mail,

certified mail or registered mail, postage prepaid and effective only upon

receipt and if sent to the Initial Purchaser, will be delivered to Wachovia

Securities, Inc., One Wachovia Center, 301 South College Street, Charlotte,

North Carolina 28288, Attention: General Counsel (with a copy to the Asset

Finance Group); or if sent to the Company, the Trust Depositor or the Trust

will be delivered to American Capital Strategies, Ltd., 2 Bethesda Metro

Center, 14th Floor, Bethesda, Maryland 20814, Attention:  John Erickson.




 




Section 12.            Representations

and Indemnities to Survive.




 




The respective

agreements, representations, warranties, indemnities and other statements of

the Company and its officers, and of the Initial Purchaser set forth in or made

pursuant to this Agreement will remain in full force and effect, regardless of

any investigation made by or on behalf of the Initial Purchaser, the Company or

any of the controlling persons referred to in Section 8 of this

Agreement, and will survive delivery of and payment for the Purchased Notes.




 




Section 13.            Successors.




 




This Agreement

will inure to the benefit of and be binding upon the parties hereto and their

respective successors and the officers, directors and controlling persons

referred to in




 




15





























 




Section 8 of this Agreement and their respective

successors and assigns, and, except as specifically set forth herein, no other

person will have any right or obligation hereunder.




 




Section 14.            Applicable

Law.




 




THIS AGREEMENT

WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF

NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.




 




Section 15.            Counterparts,

Etc.




 




This Agreement

supersedes all prior or contemporaneous agreements and understandings relating

to the subject matter hereof.  Neither

this Agreement nor any term hereof may be changed, waived, discharged or

terminated except by a writing signed by the party against whom enforcement of

such change, waiver, discharge or termination is sought.  This Agreement may be signed in any number

of counterparts each of which shall be deemed an original, which taken together

shall constitute one and the same instrument.




 




Section 16.            Limitation

of Liability.




 




Notwithstanding

any other provision herein or elsewhere, this Agreement has been executed and

delivered on behalf of the Trust by Wachovia Trust Company, National

Association, not in its individual capacity, but solely in its capacity as

Owner Trustee of the Trust, in no event shall Wachovia Trust Company, National

Association, or the Owner Trustee have any liability in respect of the

representations, warranties, or obligations of the Trust hereunder or under any

other document, as to all of which recourse shall be had solely to the assets

of the Trust, and for all purposes of this Agreement and each other document,

the Owner Trustee and Wachovia Trust Company, National Association, shall be

entitled to the benefits of the Trust Agreement.




 




Section

17.            No Petition.




 




The Initial

Purchaser covenants and agrees that, prior to the date that is one (1) year and

one (1) day after the payment in full of each Class of Notes rated by any

Rating Agency, it will not institute against the Issuer or join any other

Person in instituting against the Issuer any bankruptcy, reorganization,

arrangement, insolvency or liquidation proceedings or other similar proceedings

under the laws of the United States or any state of the United States.  This Section 17 will survive the

termination of this Agreement.




 




[REST

OF PAGE INTENTIONALLY LEFT BLANK]




 




16





























 




If the foregoing

is in accordance with your understanding of our agreement, please sign and

return to the undersigned a counterpart hereof, whereupon this letter and your

acceptance shall represent a binding agreement among the Company, the Trust

Depositor, the Trust and the Initial Purchaser.




 




	

   


  	

  Very truly

  yours,


  
	

   


  	

   


  
	

   


  	

  AMERICAN CAPITAL STRATEGIES, LTD.


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

  Name:


  	

   


  
	

   


  	

  Title:


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  ACAS BUSINESS LOAN LLC, 2002–2


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

  Name:


  	

   


  
	

   


  	

  Title:


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

  ACAS BUSINESS LOAN TRUST 2002–2


  
	

   


  	

   


  
	

   


  	

  By:


  	

  WACHOVIA

  TRUST COMPANY,


  NATIONAL ASSOCIATION, not in its


  individual capacity but solely as Owner


  Trustee on behalf of the Trust


  
	

   


  	

   


  
	

   


  	

  By:


  	

   


  
	

   


  	

  Name:


  	

   


  
	

   


  	

  Title:


  	

   


  
							





 




S-1





























 




	

  The

  foregoing Agreement is hereby confirmed


  and accepted as of the date first above written.


  
	

   


  
	

  WACHOVIA SECURITIES, INC.


  
	

   


  
	

  By:


  	

   


  	

   


  
	

  Name:


  	

   


  	

   


  
	

  Title:


  	

   


  	

   


  
					





 




S-1





























 




EXHIBIT A




 




FORM

OF OPINION OF VICTORIA E. GREGORY




COUNSEL

TO THE INDENTURE TRUSTEE




 





























 




EXHIBIT B & C




 




FORM

OF OPINIONS OF ARNOLD & PORTER




COUNSEL

TO THE COMPANY




 





























 




EXHIBIT D & E




 




FORM

OF OPINIONS OF WINSTON & STRAWN




COUNSEL

TO THE COMPANY




 





























 




EXHIBITS F, G & H




 




FORM

OF OPINIONS OF RICHARDS, LAYTON & FINGER




COUNSEL

TO THE OWNER TRUSTEE AND THE TRUST




 





























 




EXHIBIT I




 




FORM

OF NOTICE TO INVESTORS




 




Because of the following

restrictions, investors are advised to consult legal counsel prior to making

any offer, resale, pledge or other transfer of the Offered Notes.




 




Each purchaser of

the Offered Notes offered hereby will be deemed to have represented and/or

agreed as follows (terms used in this “Notice to Investors” section that are

defined in Rule 144A under the Securities Act (“Rule 144A”) or

in Regulation D under the Securities Act (“Regulation D”) are used

herein as defined therein):




 




(1)           The

purchaser (A) is a “qualified institutional buyer” within the meaning of Rule

144A or an institutional “Accredited Investor” (within the meaning of Rule

501(a)(1)–(3) or (7) under the Securities Act), (B) is acquiring the Offered

Notes for its own account or for the account of such a qualified institutional

buyer or an institutional Accredited Investor purchasing for investment and not

for distribution in violation of the Securities Act, (C) if such person is such

a qualified institutional buyer, is aware that the sale of the Offered Notes to

it is being made in reliance on Rule 144A, (D) if such person is an

institutional Accredited Investor, will deliver a certificate in the form

attached to the Indenture prior to receipt of Offered Notes or (E) is acquiring

the Offered Notes in an offshore transaction in accordance with Rule 903 or

Rule 904 of Regulation S.




 




(2)           The

Offered Notes have not been and will not be registered under the Securities

Act, any state securities or “Blue Sky” law, and may not be reoffered, resold,

pledged or otherwise transferred except (A)(i) to a person whom the seller

reasonably believes is a “qualified institutional buyer” as defined in Rule

144A of the Securities Act that purchases for its own account or the account of

another qualified institutional buyer to whom notice is given that the resale,

pledge or transfer is being made in reliance on Rule 144A, (ii) in certificated

form to an institutional Accredited Investor pursuant to any other exemption

from the registration requirements of the Securities Act, subject to (a) the

receipt by the Indenture Trustee of a letter in the form attached to the

Indenture and (b) the receipt by the Indenture Trustee of such other evidence

acceptable to the Indenture Trustee that such reoffer, resale, pledge or

transfer is in compliance with the Securities Act and other applicable laws,

(iii) in an offshore transaction in accordance with Rule 903 or Rule 904 of

Regulation S, (iv) pursuant to another exemption available under the Securities

Act or (v) pursuant to a valid registration statement and (B) in

accordance with all applicable securities and “Blue Sky” laws of any States of

the United States or any other applicable jurisdictions.




 





























 




(3)           The

Offered Notes will bear a legend to the following effect, unless the Originator

and the Indenture Trustee determine otherwise in accordance with applicable

law:




 




“THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES

ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE

SECURITIES OR BLUE SKY LAW OF ANY STATE. 

THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS NOTE MAY BE

REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE

SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY (1) PURSUANT TO RULE 144A

UNDER THE SECURITIES ACT (“RULE 144A”) TO A PERSON THAT THE HOLDER

REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF

RULE 144A (A “QIB”), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING

FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED THAT THE REOFFER,

RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (2) IN

CERTIFICATED FORM TO AN INSTITUTIONAL “ACCREDITED INVESTOR” (WITHIN THE MEANING

OF RULE 501(a)(1)–(3) OR (7) UNDER THE SECURITIES ACT) PURCHASING FOR INVESTMENT

AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, IN EACH CASE,

SUBJECT TO (A) THE RECEIPT BY THE INDENTURE TRUSTEE OF A LETTER SUBSTANTIALLY

IN THE FORM PROVIDED IN THE INDENTURE AND (B) THE RECEIPT BY THE INDENTURE

TRUSTEE OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE INDENTURE TRUSTEE THAT SUCH

REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT

AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE

SECURITIES LAWS OF THE UNITED STATES AND SECURITIES AND BLUE SKY LAWS OF ANY

STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION, (3) IN AN

OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S,

(4) PURSUANT TO ANOTHER EXEMPTION AVAILABLE UNDER THE SECURITIES ACT AND IN ACCORDANCE

WITH ANY APPLICABLE STATE SECURITIES LAWS, OR (5) PURSUANT TO A VALID

REGISTRATION STATEMENT.  THE PURCHASE OF

AN OFFERED NOTE WILL BE DEEMED A REPRESENTATION BY THE ACQUIRER THAT EITHER:  (I) IT IS NOT, AND IS NOT PURCHASING SUCH

OFFERED NOTE FOR, ON BEHALF OF OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN

OR OTHER RETIREMENT ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF ERISA AND/OR

SECTION 4975 OF THE CODE, OR (II) PTCE 95–60, PTCE 96–23, PTCE 91–38, PTCE

90–1, PTCE 84–14 OR SOME OTHER PROHIBITED TRANSACTION EXEMPTION IS APPLICABLE

TO THE PURCHASE AND HOLDING OF SUCH OFFERED NOTE BY THE ACQUIRER.”




 





























 




(4)           The

Offered Notes will initially be represented by beneficial interests in a single

Global Note or certificated Individual Notes as the case may be.  Before any interest in a Global Note may be

offered, sold, pledged or otherwise transferred to a person who takes delivery

other than through a beneficial interest in that Global Note, the transferor

will be required to provide the Indenture Trustee with a written certification,

in the form provided in the Indenture, as to compliance with the applicable

transfer restrictions.




 




(5)           If

it is acquiring any Offered Notes as a fiduciary or agent for one or more

investor accounts, it has sole investment discretion with respect to each such

account and that it has full power to make the acknowledgments, representations

and agreements contained herein on behalf of such account.