Certificate, the
Holder thereof shall be deemed to have represented and warranted that it is not,
and is not acting for the account of or with any assets of, a Benefit Plan nor
will it hold such Trust Certificate if the Trust Certificate is subsequently
deemed to be a Benefit Plan asset.
[Remainder of Page Intentionally Left Blank]
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the day
and year first above written.
ACAS BUSINESS LOAN LLC, 2005-1, as the
Trust Depositor
By:
/s/
SAMUEL A. FLAX
Name:
Samuel A. Flax Title:
Vice
President and Secretary
WACHOVIA BANK OF DELAWARE,
NATIONAL ASSOCIATION, as the Owner
Trustee
By:
/s/
STEVEN A. FINKLEA
Name:
Steven A. Finklea Title:
Vice
President
AMERICAN CAPITAL STRATEGIES, LTD.,
as the Servicer
By:
/s/
SAMUEL A. FLAX
Name:
Samuel A. Flax Title:
Executive VP
and General Counsel
ACAS Business Loan Trust 2005-1
Amended and Restated Trust Agreement
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE ("TRUST CERTIFICATE") HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY PURCHASING THIS TRUST CERTIFICATE, AGREES THAT THIS TRUST
CERTIFICATE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE
WITH ANY APPLICABLE STATE SECURITIES LAWS AND TO A PERSON WHO HAS FURNISHED TO
THE OWNER TRUSTEE (A) AN INVESTMENT LETTER TO THE EFFECT THAT SUCH PURCHASER IS
THE TRUST DEPOSITOR OR AN AFFILIATE THEREOF, OR AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(a)(1)-(3) or (7) UNDER THE ACT AND
(B) IF REQUIRED, AN OPINION OF COUNSEL SATISFACTORY TO THE OWNER TRUSTEE.
NEITHER THIS TRUST CERTIFICATE NOR ANY INTEREST HEREIN MAY BE ACQUIRED OR HELD
(IN THE INITIAL ACQUISITION OR THROUGH A TRANSFER) BY, FOR THE ACCOUNT OF OR
WITH ANY ASSETS OF (A) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT
IS SUBJECT TO THE PROVISIONS OF TITLE I OF ERISA, (B) A PLAN DESCRIBED IN AND
SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED OR
(C) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR PLAN BY REASON OF AN EMPLOYEE BENEFIT PLAN'S OR PLAN'S
INVESTMENT IN THE ENTITY (INCLUDING, WITHOUT LIMITATION, INSURANCE COMPANY
GENERAL ACCOUNTS). FURTHER, THIS TRUST CERTIFICATE MAY BE TRANSFERRED ONLY TO A
UNITED STATES PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED.
IF THE TRANSFEREE OF A CLASS E NOTE AND CERTIFICATE IS A PARTNERSHIP, A LIMITED
LIABILITY COMPANY, A GRANTOR TRUST (WITHIN THE MEANING OF SECTIONS 671-679 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED) OR AN S CORPORATION (WITHIN THE
MEANING OF SECTION 1361 OF THE CODE) (EACH A "FLOW-THROUGH ENTITY"), EXCEPT AS
PREVIOUSLY DISCLOSED TO THE TRUST DEPOSITOR IN WRITING, NO PERSON OR ENTITY WILL
OWN,