Officer
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.
AMERICAN CAPITAL STRATEGIES, LTD., as the Servicer
By:
/s/ Samuel A. Flax
Name:
Samuel A. Flax
Title:
Executive VP & General Counsel
EXHIBIT A
FORM OF TRUST CERTIFICATE
THIS TRUST CERTIFICATE ("TRUST CERTIFICATE") HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES 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
SECURITIES 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 TITLE I OF ERISA, (B) A PLAN DESCRIBED IN AND SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") 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). BY
ACCEPTING AND HOLDING THIS TRUST CERTIFICATE, THE HOLDER HEREOF SHALL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT IS NOT AND FOR THE ENTIRE PERIOD OF
ITS HOLDING WILL NOT BE ANY OF THE FOREGOING ENTITIES AND IS NOT AND FOR THE
ENTIRE PERIOD OF ITS HOLDING WILL NOT BE ACTING FOR THE ACCOUNT OF OR WITH ANY
ASSETS OF ANY OF THE FOREGOING ENTITIES. FURTHER, THIS TRUST CERTIFICATE MAY BE
TRANSFERRED ONLY TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION
7701(a)(30) OF THE CODE.
IF THE TRANSFEREE OF A CLASS E NOTE AND TRUST CERTIFICATE IS A PARTNERSHIP, A
LIMITED LIABILITY COMPANY, A GRANTOR TRUST (WITHIN THE MEANING OF SECTIONS
671-679 OF THE CODE) 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, DIRECTLY OR INDIRECTLY
THROUGH ONE OR MORE FLOW-THROUGH ENTITIES, AN INTEREST IN THE TRANSFEREE SUCH
THAT MORE THAN 65% OF THE VALUE OF THE PERSON'S INTEREST IN THE PURCHASER IS
ATTRIBUTABLE TO THE TRANSFEREE'S INVESTMENT IN THE TRUST.
B-4
THIS TRUST CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NO TRANSFER, SALE, PLEDGE