EXHIBIT I
Form of Certificate of Borrower's Counsel
EXHIBIT J
Form of Trust Receipt and Initial Certification
EXHIBIT K
Form of Trust Receipt and Final Certification
EXHIBIT L
Form of Request for Release of Loan Documents and Receipt
EXHIBIT M-1
Form of Assignment of Mortgage
EXHIBIT M-2
Assignment of Second Mortgage and Security Agreement
EXHIBIT N
Form of Reinvestment Certification
EXHIBIT O-1
Officer's Certificate as to Solvency from Originator
EXHIBIT O-2
Officer's Certificate as to Solvency from Borrower
EXHIBIT P-1
Officer's Closing Certificate from Originator
EXHIBIT P-2
Officer's Closing Certificate from Borrower
EXHIBIT Q-1
Power of Attorney from Servicer
EXHIBIT Q-2
Power of Attorney from Borrower
EXHIBIT R
[Reserved]
EXHIBIT S
[Reserved]
EXHIBIT T
Form of Agent and Intercreditor Provisions for Agented Notes
EXHIBIT U
Form of Intercreditor and Subordination Agreement
EXHIBIT V
Form of Transferee Letter
EXHIBIT W
Form of Joinder Supplement SCHEDULES
SCHEDULE I
Schedule of Documents
SCHEDULE II
[Reserved]
SCHEDULE III
[Reserved]
SCHEDULE IV
Loan List
SCHEDULE V
Location of Loan Files
- vi -
[EXECUTION COPY]
P R E A M B L E
THIS SECOND AMENDED AND RESTATED LOAN FUNDING AND SERVICING AGREEMENT (such
agreement as amended, modified, waived, supplemented or restated from time to
time, the "Agreement") is made as of this 10th day of August, 2004, by and
among:
(1) ACS FUNDING TRUST I, a Delaware statutory trust, as the borrower (together
with its successors and assigns in such capacity, the "Borrower");
(2) AMERICAN CAPITAL STRATEGIES, LTD., a Delaware corporation ("American
Capital"), as the servicer (together with its successors and assigns in such
capacity, the "Servicer");
(3) EACH OF THE CONDUIT LENDERS FROM TIME TO TIME PARTY HERETO, as a Conduit
Lender;
(4) EACH OF THE INSTITUTIONAL LENDERS FROM TIME TO TIME PARTY HERETO, as an
Institutional Lender;
(5) EACH OF THE LENDER AGENTS FROM TIME TO TIME PARTY HERETO, as a Lender Agent;
(6) WACHOVIA CAPITAL MARKETS, LLC, a Delaware limited liability company ("WCM"),
as the deal agent (together with its successors and assigns in such capacity,
the "Deal Agent");
(7) JPMORGAN CHASE BANK, a New York banking corporation (together with its
successors and assigns, "JPMorgan Chase Bank"), as the swingline lender
(together with its successors and assigns in such capacity, the "Swingline
Lender", and together with the Conduit Lenders and the Institutional Lenders,
the "Lenders"); and
(8) WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association
("Wells Fargo"), not in its individual capacity, but solely as the backup
servicer (together with its successors and assigns in such capacity, the "Backup
Servicer") and as the collateral custodian (together with its successors and
assigns in such capacity, the "Collateral Custodian").
R E C I T A L S
WHEREAS, the Borrower, the Servicer, Variable Funding Capital Corporation
("VFCC"), as the original conduit lender (in such capacity, the "Original
Conduit Lender"), and Wachovia Bank, National Association, (together with its
successors and assigns, "Wachovia"), as the original swingline lender (the
"Original Swingline Lender") and together with the Original Conduit Lender, the
"Original Lenders"), WCM