Exhibit 10.10
TRUST AGREEMENT
dated as of March 26, 1999
AMONG
AMERICAN CAPITAL STRATEGIES, LTD.,
as Grantor and Owner,
XXXXX XXXXXX,
as Beneficiary Trustee
and
XXXXXXX XXXXXXX and XXXXXXX XXXXXXXX,
as Independent Trustees
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
1.01 Capitalized Terms..................................................................................1
ARTICLE II
ORGANIZATION
2.01 Name............................................................................................4
2.02 Initial Trust Property..........................................................................4
2.03 Office..........................................................................................4
2.04 Purposes and Powers; Intent.....................................................................4
2.05 Appointment of the Trustees.....................................................................5
2.06 Declaration of Trust............................................................................5
2.07 Other Expenses, Liabilities of Trust............................................................5
2.08 Situs of Trust..................................................................................5
2.09 Additional Capital Contributions................................................................6
ARTICLE III
TAX TREATMENT AND RETURNS
3.01 Tax Treatment and Returns.......................................................................6
ARTICLE IV
SEPARATE EXISTENCE OF TRUST
4.01 Maintenance of Separate Existence...............................................................6
4.02 Merger and Other Transactions..................................................................10
4.03 Transactions with Affiliates...................................................................10
4.04 Insolvency.....................................................................................10
4.05 Compliance with Corporate Formalities..........................................................11
ARTICLE V
INVESTMENT AND APPLICATION OF TRUST FUNDS
5.01 Investment of Trust Funds......................................................................11
5.02 Application of Funds...........................................................................11
ARTICLE VI
AUTHORITY AND DUTIES OF THE TRUSTEES
6.01 General Authority..............................................................................11
6.02 Specific Authority; Special Authority of Beneficiary Trustee...................................11
6.03 Accounting and Reports to the Grantor, any Owner, the Internal Revenue Service and
Others.........................................................................................12
6.04 Signature of Returns...........................................................................13
6.05 Right to Receive Instructions..................................................................13
6.06 No Duties Except as Specified in this Agreement or in Instructions.............................13
6.07 No Action Except Under Specified Documents or Instructions.....................................13
ARTICLE VII
CONCERNING THE TRUSTEES
7.01 Acceptance of Trusts and Duties................................................................14
7.02 Furnishing of Documents........................................................................14
7.03 Reliance; Advice of Counsel....................................................................15
7.04 Not Acting in Individual Capacity..............................................................15
ARTICLE VIII
COMPENSATION OF TRUSTEES
8.01 Independent Trustees' Fees and Expenses........................................................15
8.02 Beneficiary Trustee's Fees and Expenses........................................................16
ARTICLE IX
INDEMNIFICATION OF TRUSTEES
9.01 Scope of Indemnification.......................................................................16
ARTICLE X
TERMINATION OF TRUST
10.01 Dissolution of Trust...........................................................................16
10.02 No Termination by Grantor or Owner.............................................................16
10.03 Cancellation of Certificate of Trust...........................................................16
ARTICLE XI
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
11.01 Resignation of Trustee; Appointment of Successor...............................................17
ARTICLE XII
MISCELLANEOUS
12.01 Supplements and Amendments.....................................................................18
12.02 No Legal Title to Trust Property in Grantor and Owner..........................................18
12.03 Limitations on Rights of Others................................................................18
12.04 Notices........................................................................................18
12.05 Severability...................................................................................19
12.06 Separate Counterparts..........................................................................19
12.07 Successors and Assigns.........................................................................19
12.08 Headings.......................................................................................19
12.09 Governing Law..................................................................................20
EXHIBIT 1
CERTIFICATE OF TRUST
TRUST AGREEMENT dated as of March 26, 1999 among AMERICAN CAPITAL
STRATEGIES, LTD., as Grantor and Owner (the "Grantor"), XXXXX XXXXXX, as
Beneficiary Trustee (the "Beneficiary Trustee") and XXXXXXX XXXXXXX and XXXXXXX
XXXXXXXX, as Independent Trustees (the "Independent Trustees").
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows.
ARTICLE I
DEFINITIONS
I.01 Capitalized Terms. For all purposes of this Agreement, the
following terms shall have the meanings set forth below:
"Agreement" means this Trust Agreement, as it may be amended from time
to time.
"Affiliate" shall mean, with reference to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person; provided, that, for purposes of this Agreement when used with
respect to the Grantor's or any Owner's direct or indirect subsidiaries, any
limited partners thereof shall also be deemed "Affiliates." For the purposes of
this definition, "control," when used with reference to any specified Person,
shall mean the power to direct the management and policies of such specified
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Affiliated Entity" means the Grantor, any Owner, any of their
respective direct or indirect subsidiaries or any Affiliate of any of the
foregoing other than the Trust.
"Bankruptcy Code" means Title 11 of the United States Code, 11
U.S.C.ss.ss.101, et seq., and any successor statute, as amended from time to
time.
"Beneficiary Trustee" means any Trustee other than the Independent
Trustees.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. C.ss.ss.3801, et seq., and any successor statute, as amended from time
to time.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" has the meaning assigned to that term in the Loan Funding
and Servicing Agreement.
"Eligible Investments" shall mean purchases of Financial Assets and
Related Property.
"Financial Assets" has the meaning ascribed to such term in Section
2.04 of this Agreement.
"Fiscal Year" means the calendar year from each January 1 to the
following December 31.
"GAAP" means generally accepted accounting principles in effect from
time to time.
"Grantor" means American Capital Strategies, LTD.
"Independent Trustee" means a Trustee meeting the qualifications
described in Section 2.05(b) of this Agreement.
"Liability" means any damage, judgment, amount paid in settlement,
fine, penalty, tax, punitive damages, or cost or expense of any nature
(including, without limitation, attorneys' fees and disbursements).
"Loan Funding and Servicing Agreement" means the Loan Funding and
Servicing Agreement, dated as March 31, 1999, among the Trust, as the Borrower,
American Capital Strategies, LTD., as the Servicer, the Investors named therein,
Variable Funding Capital Corporation, as a Lender, First Union Capital Markets
Corp., as the Deal Agent, First Union National Bank, as the Liquidity Agent,
Norwest Bank Minnesota, National Association, as the Backup Servicer and the
Collateral Custodian.
"Notes" has the meaning assigned to that term in the Loan Funding and
Servicing Agreement.
"Owner" means the Grantor and its successors and permitted assigns as a
beneficial owner (within the meaning of the Business Trust Act) of the Trust.
All references in this Agreement to "any Owner" means each of the Grantor's
successors and permitted assigns as a beneficial owner of the Trust, and not the
Grantor itself.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, governmental authority or any other entity of
similar nature.
"Proceeding" means any threatened, pending or completed action, suit,
appeal or other proceeding of any nature, whether civil, criminal,
administrative or investigative, whether formal or informal, and whether brought
by or in the right of the Trust, the Grantor, any Owner or otherwise.
"Related Property" has the meaning ascribed to such term in Section
2.04 of this Agreement.
"Significant Event" means:
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(a) with respect to the Trust, that (i) the Trust shall fail
to, or admit in writing its inability to, pay its debts generally as they become
due, or shall commence a voluntary case or other Proceeding under any applicable
bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other
similar law now or hereafter in effect, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for the Trust or for any substantial
part of its property, or shall make any general assignment for the benefit of
creditors, or shall take any trust action authorizing the taking of any of the
foregoing actions or (ii) a case or other Proceeding shall be commenced without
the application or consent of the Trust, in any court, seeking the liquidation,
reorganization, debt arrangement, dissolution, winding up, or compensation or
readjustment of debts of the Trust, the appointment of a trustee, receiver,
custodian, liquidator, assignee, sequestrator, or the like for the Trust or any
substantial part of its assets, or any similar action with respect to the Trust
under any law (foreign or domestic) relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts and such case
or Proceeding shall continue undismissed or unstayed and in effect for a period
of 90 days or any of the actions sought in such petition or Proceeding,
including the entering of an order for relief in respect of the Trust or the
appointment of any trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for the Trust or any substantial portion of the Trust's
property shall be granted or otherwise occur; or
(b) the Deal Agent shall have given notice to the Trust that a
Termination Date as set forth in the Loan Funding and Servicing Agreement has
occurred.
"Transfer" means the sale, transfer or other assignment of all of the
Grantor's right, title and interest in all or a portion of its beneficial
interest in the Trust.
"Treasury Regulations" means the regulations promulgated under the
Code.
"Trust" means the Delaware statutory business trust created under this
Agreement.
"Trustees" means the trustees of the Trust, which, as provided herein,
shall mean the Beneficiary Trustee and the Independent Trustees not in their
respective individual capacities but solely as trustees under this Agreement,
and any successor trustees hereunder whether designated as an Independent
Trustee or a Beneficiary Trustee.
"Trust Property" means all right, title and interest in and to any
property contributed to the Trust by the Grantor or any Owner or otherwise
acquired by the Trust, including, without limitation, all distributions or
payments thereon or proceeds thereof.
Each of the terms used herein and not otherwise defined herein shall
have the meaning given to such terms in the Loan Funding and Servicing
Agreement, even after the termination of such agreement.
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ARTICLE II
ORGANIZATION
II.01 Name. The Trust created hereby shall be known as "ACS Funding
Trust I," in which name the Trustees shall conduct the business of the Trust,
make and execute contracts, and xxx and be sued.
II.02 Initial Trust Property. The Grantor hereby assigns, transfers,
conveys and sets over to the Trustees the sum of $1.00, which sum shall be
deposited in an account established in the name of the Trust by the Beneficiary
Trustee. The Trustees hereby acknowledge receipt of such amount in trust from
the Grantor, which amount shall constitute the initial Trust Property. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under the Business Trust Act, and that this document constitutes
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust (the "Certificate of Trust")
with the Delaware Secretary of State in accordance with the provisions of the
Business Trust Act in substantially the form attached hereto as Exhibit 1.
II.03 Office. The initial office of the Trust shall be 0000 Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or at such other address as the Trustees may
designate by notice to the Grantor, any Owner and the Lenders, provided that any
other office will comply with the provisions of Section 4.01(c) and (e) hereof
and such notice is given in accordance with Section 5.1(m) of the Loan Funding
and Servicing Agreement.
II.04 Purposes and Powers; Intent. (a) The purpose of the Trust and the
nature of the business to be conducted or promoted by the Trust is to solely
engage in, and the Trust shall have the power and authority to perform, the
following activities:
(i) to acquire, own, hold, sell, service, transfer or pledge, or
otherwise dispose of, interests in and servicing responsibilities with respect
to, notes, accounts, chattel paper, general intangibles, instruments, warrants,
options, equity securities and other financial assets (collectively, the
"Financial Assets"), and any related contracts, collateral or agreements (the
"Related Property");
(ii) to purchase or otherwise acquire obligations issued or
guaranteed by the United States or any agency or instrumentality thereof,
certificates of deposit issued by commercial banks, commercial paper and similar
instruments and obligations;
(iii) to enter into the Transaction Documents to which the Trust
is a party and other agreements and arrangements with persons or entities, or
undertaking such activities, as may be necessary or convenient to acquire, own,
hold, sell, service, transfer or pledge, or otherwise dispose of the Financial
Assets and the Related Property; and
(iv) to engage in any lawful act or activities and to exercise
any powers permitted to trusts organized under the Business Trust Act that are
incidental to and necessary or convenient for the accomplishment of the
foregoing purposes.
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(b) The Trust shall not have the power or authority to (i)
incur any debt other than the Notes and certain costs, expenses and trade
payables incurred in the ordinary course associated therewith as contemplated by
the Transaction Documents, or (ii) engage in any business or activity other than
the business and activities enumerated in this Section 2.04.
II.05 Appointment of the Trustees. (a) Subject to the provisions of
Section 2.05(b), the Trust shall have no fewer than two and no more than three
trustees appointed from time to time by the Grantor or, in the event of a
Transfer, by the Owner. The Grantor or, in the event of a Transfer, the Owner,
may at any time increase the number of Trustees, subject to the provisions of
Sections 2.05(b), 3.01, 4.01 and 4.03. The Grantor has appointed XXXXXXX XXXXXXX
and XXXXXXX XXXXXXXX, as Independent Trustees, and XXXXX XXXXXX, as Beneficiary
Trustee of the Trust, which Trustees shall have all the rights, powers and
duties set forth herein.
(b) The Trust shall at all times have at least two Independent
Trustees who are not and, for the immediately preceding two year period, was not
(i) a Trustee (other than an Independent Trustee), officer or employee of the
Trust; (ii) a director, officer or employee of the Grantor, or in the event of a
Transfer, any Owner, or any of their Affiliates; (iii) a supplier, independent
contractor or any other person who derives more than 15% of its gross revenues
from its activities with the Trust, the Grantor and/or any Affiliate of the
foregoing; (iv) a holder (directly or indirectly) of more than 5% of any voting
securities of the Grantor, or in the event of a transfer, any Owner, or a holder
of any legal or beneficial interest in the Trust or any Affiliate of the
foregoing; (v) a person controlling any such director, trustee, officer,
employee, supplier, independent contractor, holder or any other person meeting
the criteria set forth in clauses (i), (ii), (iii) or (iv) of this Section
2.05(b) or (vi) a member of the immediate family of any person meeting the
criteria set forth in clauses (i), (ii), (iii), (iv) or (v) of this Section
2.05(b).
II.06 Declaration of Trust. The Trustees hereby declare that they will
hold the Trust Property in trust upon and subject to the conditions set forth
herein for the use and benefit of the Grantor or, in the event of a Transfer,
any Owner, subject to the obligations of the Trustees under the Transaction
Documents.
II.07 Other Expenses, Liabilities of Trust. None of the Grantor, the
Trustees or any Owner shall be liable for any liabilities or obligations of the
Trust, including but not limited to, the indemnification obligations under
Article IX.
II.08 Situs of Trust. The Trust will be located and administered in the
State of Maryland. All bank accounts maintained by the Trustees on behalf of the
Trust shall be located in the State of Maryland except that those accounts
established under the Loan Funding and Servicing Agreement shall be maintained
with the Servicer in accordance with the Loan Funding and Servicing Agreement.
The Trust shall not have any employees in any state other than in the State of
Maryland. Except as set forth in the Transaction Documents, payments will be
received by the Trust only in the State of Maryland and payments will be made by
the Trust only from the State of Maryland.
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II.09 Additional Capital Contributions. The assets of the Trust are
expected to generate a return sufficient to satisfy all obligations of the Trust
under this Agreement and the Transaction Documents and any other Obligations of
the Trust. It is expected that no capital contributions to the Trust will be
necessary after the purchase of the Collateral. No capital contribution by the
Grantor or any Owner, as the case may be, to the Trust will be made for the
purpose of mitigating losses on the Collateral. In the event additional capital
contributions are made, such contribution will be acknowledged by a written
receipt signed by any one of the Trustees. The Trustees acknowledge and agree
that, notwithstanding anything in this Agreement to the contrary, such
additional capital contribution may be managed by an investment manager selected
by the Beneficiary Trustee.
ARTICLE III
TAX TREATMENT AND RETURNS
3.01 Tax Treatment and Returns. The Beneficiary Trustee shall (i) file
such tax returns relating to the Trust in the name of the Trust, and make such
elections, including any election necessary for the Trust to maintain its status
as a separate legal entity, or as may from time to time be required under any
applicable state or federal statute or rule or regulation thereunder, (ii) cause
such tax returns to be signed on behalf of the Trust in the matter required by
law, (iii) collect or cause to be collected any withholding tax required to be
withheld by the Trust with respect to distributions and (iv) cause to be mailed
to each Owner copies of all such reports and tax returns of the Trust.
ARTICLE IV
SEPARATE EXISTENCE OF TRUST
IV.01 Maintenance of Separate Existence. The Trustees shall take all
steps necessary to continue the identity of the Trust as a separate legal entity
and to make it apparent to third Persons that the Trust is an entity with assets
and liabilities distinct from those of the Grantor, any Owner, the Trustees,
Affiliates of the Grantor or any Owner or any other Person, and that, it is not
a division of any of the Affiliated Entities or any other Person. In that
regard, and without limiting the foregoing in any manner, the Trust shall:
(a) be managed by the Trustees who shall make independent
decisions with respect to the daily operations and business affairs of the Trust
and, except as otherwise provided herein, neither the Trustees nor the Trust
shall be controlled in making such decisions by the Grantor, any Owner, any
Affiliated Entity or any other Person;
(b) maintain at least two Independent Trustees and one
Beneficiary Trustee (who may not be the same Person);
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(c) maintain office space separate and clearly delineated from
the office space of any Affiliated Entity, owned by the Trust or evidenced by a
written lease or sublease (even if located in an office owned or leased by, or
shared with, an Affiliated Entity);
(d) maintain the assets of the Trust in such a manner that
they are separately identified and segregated from the assets of any other
Person, and the assets of the Trust shall at all times be held by or on behalf
of the Trust and, if held on behalf of the Trust by another Person, shall at all
times be kept identifiable ( in accordance with customary usages) as assets
owned by the Trust; provided, however, that in no event shall any of the Trust's
assets be held on its behalf by any Affiliated Entity;
(e) maintain a separate telephone number which will be
answered only in its own name, and keep and use separate stationary, checks and
other business forms;
(f) conduct all intercompany transactions with Affiliated
Entities on an arm's-length basis and in accordance with Section 4.03;
(g) not guarantee or become obligated for the debts of any
Affiliated Entity or hold the credit of the Trust out as being available to
satisfy the obligations of any Affiliated Entity or other Person, nor have any
of the Trust's obligations guaranteed by any Affiliated Entity or hold the Trust
out as responsible for the debts of any Affiliated Entity or for the decisions
or actions with respect to the business and affairs of any Affiliated Entity,
nor seek or obtain credit or incur any obligation to any third-party based upon
the creditworthiness or assets of any Affiliated Entity or any other Person
(i.e., other than based on the assets of the Trust) nor allow any Affiliated
Entity to do such things based on the credit of the Trust;
(h) not permit the commingling or pooling of the Trust's funds
or other assets with the funds or other assets of any Affiliated Entity;
(i) maintain separate deposit and other bank accounts and
funds to which no Affiliated Entity has any access, which accounts shall be
maintained in the name and tax identification number of the Trust;
(j) maintain full books of accounts and records (financial or
other) and financial statements separate from those of the Affiliated Entities
or any other Person, and prepare unaudited quarterly and audited annual
financial statements in accordance with GAAP, (including, but not limited to,
all resolutions, records, agreements or instruments underlying or regarding the
transactions contemplated by the Transaction Documents or otherwise);
(k) (X) compensate (either directly or through reimbursement
of the Trust's allocable share of any shared expenses) all employees,
consultants and agents and Affiliated Entities, to the extent applicable, for
services provided to the Trust by such employees, consultants and agents or
Affiliated Entities, in each case, from the Trust's own assets and maintain a
sufficient number of employees in light of its contemplated operations and (Y)
manage its liabilities separately from those of any Affiliated Entity, and the
Trust shall pay its own liabilities, including administrative expenses, from its
own separate assets;
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(l) pay for its own account for accounting and payroll
services, rent, lease and other expenses (or the Trust's allocable share of any
such amounts provided by one or more other Affiliated Entity) and not have such
operating expenses (or the Trust's allocable share thereof) paid by any
Affiliated Entities, provided, that the Grantor shall be permitted to pay the
initial organization expenses of the Trust;
(m) maintain adequate capitalization in light of the Trust's
business and purpose;
(n) conduct all of the Trust's business (whether in writing or
orally) solely in the name of the Trust through its Trustees, employees and
agents and hold the Trust out as an entity separate from any Affiliated Entity
and investments of the Trust shall be made directly by the Trust or by brokers
engaged and paid by the Trust or its agents;
(o) not make or declare any distributions of cash or property
to the Grantor or any Owner except in accordance with appropriate trust
formalities and only consistent with sound business judgment to the extent that
it is permitted pursuant to the Transaction Documents and not violative of any
applicable law and only if no Significant Event or potential Significant Event
then exists or would result therefrom;
(p) otherwise practice and adhere to all trust procedures and
formalities, such as the holding of regularly scheduled meetings of the
Trustees, to the extent required by such formalities and by this Agreement, the
State of Delaware and all other appropriate constituent documents;
(q) not appoint an Affiliated Entity or any employee of an
Affiliated Entity as an agent of the Trust, except as otherwise permitted in the
Transaction Documents (although such Persons can qualify as Beneficiary
Trustees);
(r) not acquire obligations or securities of, or make loans or
advances to or pledge its assets for the benefit of, the Grantor, any Owner or
any Affiliate of such parties;
(s) not permit the Grantor, any Owner or any Affiliated Entity
to guarantee, pay or become liable for the debts of the Trust or permit any such
entity to hold out its creditworthiness as being available to pay the
liabilities and expenses of the Trust;
(t) maintain separate minutes of the actions of the Trustees,
including the transactions contemplated by the Transaction Documents;
(u) cause (i) all written and oral communications, including,
without limitation, letters, invoices, purchase orders, and contracts, of the
Trust to be made solely in the name of the Trust, (ii) the Trust to have its own
tax identification number, stationery, and business forms, separate from those
of any Affiliated Entity, (iii) all Affiliated Entities not to use the
stationery or business forms of the Trust, and for the Trust not to use the
stationery or business forms of any Affiliated Entity, and (iv) all Affiliated
Entities not to conduct business in the name of the Trust, and the Trust not to
conduct business in the name of any Affiliated Entity;
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(v) direct creditors of the Trust to send invoices and other
statements of account of the Trust directly to the Trust and not to any
Affiliated Entity and to cause the Affiliated Entities not to direct their
creditors to send invoices and other statements of accounts to the Trust;
(w) disclose in its financial statements the effects of all
transactions between the Grantor and the Trust in accordance with generally
accepted accounting principles, and in a manner which makes it clear that the
assets of the Trust (including the Collateral) are not assets of any Affiliated
Entity and are not available to pay creditors of any Affiliated Entity;
(x) treat the transfer of Collateral from the Grantor to the
Trust as a sale;
(y) describe itself, and hold itself out to the public
(including any creditors of any Affiliated Entity) as a separate legal entity
and promptly correct any known misunderstandings regarding its identity separate
from any Affiliated Entity or any Person and observe all customary formalities
regarding the legal existence of the Trust, including holding regular meetings
of the Trustees, as required by this Agreement or the Act, and maintaining
minutes of any such meetings;
(aa) treat the Notes as debt obligations of the Trust;
(bb) maintain its valid existence in good standing under the
laws of the State of Delaware and maintain its qualification to do business
under the laws of such other jurisdictions as its operations require; and
(cc) comply with all laws applicable to the transactions
contemplated by this Agreement.
The Grantor or, in the event of a Transfer, any Owner shall:
(a) maintain as official records all resolutions, agreements,
and other instruments underlying or regarding the transactions contemplated by
the Transaction Documents;
(b) disclose in its financial statements the effects of all
transactions between the Grantor and the Trust in accordance with GAAP, and in a
manner which makes it clear that the assets of the Trust (including the
Collateral) are not assets of any Affiliated Entity and are not available to pay
creditors of any Affiliated Entity;
(c) treat the transfer of Collateral from the Grantor to the
Trust as a sale;
(d) if in accordance with GAAP, the assets and liabilities of
the Trust are included in the consolidated financial statements of the Grantor,
including if the Trust is treated
12
as a division of the Grantor, cause the Grantor to prominently and clearly
disclose, whether in a footnote or in the notes to such financial statements,
that (i) the Trust is a separate legal entity, (ii) the assets of the Trust are
not available to pay the debts nor satisfy the liabilities of the Grantor or the
debts and liabilities of any other Affiliated Entity and (iii) neither the
Grantor nor any other Affiliated Entity is liable or responsible for the debts
of the Trust;
(e) with respect to tax reporting and financial reporting,
describe and cause each Affiliated Entity to describe the Trust, and hold the
Trust out as a separate legal entity and not as a division or department of any
Affiliate Entity, and promptly correct any known misunderstandings regarding its
identity separate from any Affiliated Entity or any Person.
IV.02 Merger and Other Transactions. As long as the Notes are
outstanding, the Trust may not consolidate with, merge or convert into another
entity or sell all or substantially all of its assets to another entity and
dissolve, unless: (i) the entity formed by or surviving such consolidation,
merger or conversion or to whom substantially all of such assets are sold is
organized under the laws of the United States, any state thereof or the District
of Columbia, (ii) such entity expressly assumes the Trust's obligation to make
due and punctual payments upon the Notes and the performance or observance of
every agreement and covenant of the Trust under the Loan Funding and Servicing
Agreement, (iii) no Termination Event (as defined in the Loan Funding and
Servicing Agreement) will have occurred and be continuing immediately after such
consolidation, merger, conversion or sale of assets, (iv) the rating of the
Notes assigned by each Rating Agency remains unchanged as evidenced by a written
confirmation from each Rating Agency assigning a rating to the Notes on the
Closing Date, (v) the Trust has received an opinion of counsel to the effect
that such consolidation, merger, conversion or sale of assets would have no
material adverse tax consequence to the Trust or any holders of Notes and such
consolidation, merger, conversion or sale of assets complies with the Loan
Funding and Servicing Agreement and all conditions precedent therein provided
relating to such transaction, (vi) none of the Collateral or the Grantor's, the
Trust's, the Deal Agent's or any Noteholder's rights are substantially impaired
and (vii) any action that is necessary to maintain the lien and security
interest created by the Loan Funding and Servicing Agreement will have been
taken.
IV.03 Transactions with Affiliates. The Trust will not enter into, or be
a party to, any transaction with any of its Affiliates, except (i) the
transactions contemplated by the Transaction Documents and (ii) any other
transactions (including, without limitation, the lease of office space or
computer equipment or software by the Trust from an Affiliate of the Trust and
the sharing of employees and employee resources and benefits) (A) in the
ordinary course of business or as otherwise permitted hereunder, (B) pursuant to
the reasonable requirements and purposes of the Trust's business, (C) upon fair
and reasonable terms (and, to the extent material, pursuant to written
agreements) that are on terms and conditions available at the time to the Trust
for comparable transactions with unaffiliated Persons, (D) approved by the
Beneficiary Trustee and (E) not inconsistent with the terms of Section 4.01. Any
of the Trustees, acting singly or collectively, may take all actions necessary
to effectuate such transactions if such transactions are in the ordinary course
of business. If such transactions are not in the ordinary course of business,
the unanimous approval of the Trustees shall be needed to effectuate such
transactions; provided, however, that the Trust shall not make any loans to or
guarantee or assume any liabilities or obligations of any Affiliated Entity.
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IV.04 Insolvency. Notwithstanding any other provision of this
Agreement, without the affirmative vote of all of the Trustees (which must
include the affirmative votes of all of the Independent Trustees), the Trust
shall not (i) dissolve or liquidate, in whole or in part, or institute
proceedings to be adjudicated bankrupt or insolvent, (ii) consent to the
institution of bankruptcy or insolvency proceedings against it, (iii) file a
petition seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (iv) consent to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Trust or a substantial part of its property, (v) make a general
assignment for the benefit of creditors, (vi) admit in writing its inability to
pay its debts generally as they become due, (vii) take any action in furtherance
of the actions set forth in clauses (i) through (vi) of this paragraph,
provided, however, that no Trustee may be required by any beneficial owner of
the Trust to consent to the institution of bankruptcy or insolvency proceedings
against the Trust so long as it is solvent.
IV.05 Compliance with Corporate Formalities. Grantor hereby agrees to
observe in all material respects all corporate procedures and formalities
required by its constituent documents and the laws of its state of formation and
all other appropriate jurisdictions.
ARTICLE V
INVESTMENT AND APPLICATION OF TRUST FUNDS
V.01 Investment of Trust Funds. The provisions of this Article V apply
only to funds or Trust Property that have been released from the security
interest created by the Loan Funding and Servicing Agreement and are permitted
to be held or applied by the Trust. Unless otherwise directed in writing by the
Beneficiary Trustee, funds or Trust Property released by the Deal Agent to the
Trust or funds in the possession of the Trust shall be invested and reinvested
by the Beneficiary Trustee (or by an independent investment manager appointed in
writing by the Beneficiary Trustee) in Eligible Investments.
V.02 Application of Funds. Subject to the Trust's compliance with
Article IV herein at all times, any funds or Trust Property held by the Trustees
may be transferred as determined by the Beneficiary Trustee from time to time.
ARTICLE VI
AUTHORITY AND DUTIES OF THE TRUSTEES
VI.01 General Authority. The Trustees are authorized to take all
actions required or permitted to be taken by them pursuant to the terms of this
Agreement and the Transaction Documents.
VI.02 Specific Authority; Special Authority of Beneficiary Trustee. (a)
Notwithstanding any other provision in this Agreement to the contrary and
without the need for
14
any additional consent of any Person, the Beneficiary Trustee is hereby
authorized and directed to take the following action on behalf of the Trust: (i)
execute, deliver and perform any agreements related to the issuance of the
Notes, including the Transaction Documents, as necessary, (ii) execute and
deliver all certificates and other documents required by any such agreements,
(iii) issue and deliver the Notes in accordance with the provisions of such
agreements and (iv) to designate, in writing, any Person as an authorized
signatory of the Trust for the sole purpose of executing and delivering any
documents authorized by the Beneficiary Trustee in such writing. The Beneficiary
Trustee is authorized to take all actions necessary or incidental to the
day-to-day operations of the Trust. Subject to Section 6.05, all non-day-to-day
matters shall be determined by a majority of the then current Trustees, provided
that, such majority must include the affirmative vote of all the Independent
Trustees for all actions specified in Sections 4.02, 4.03 and 4.04 and any
matter that would, if approved by the Trustees, cause the Trust to deviate from
the provisions of Sections 2.04(a), 2.04(b), 2.05(b), 4.01 and 6.06 of this
Agreement. For purposes of determining a majority under this Agreement, each
Person that is serving as a Trustee shall be counted as a single Trustee, even
if such Person holds multiple Trustee positions.
(b) The Trust hereby authorizes and directs the Beneficiary
Trustee, (i) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable under the securities or "Blue Sky" laws of such jurisdictions as the
Trust may deem necessary or desirable and (ii) to do or cause to be done all
such other acts or things and to execute and deliver all such instruments and
documents that any such Beneficiary Trustee shall deem necessary or appropriate
to carry out the intent of the foregoing.
(c) The Trust hereby authorizes and directs the Beneficiary
Trustee within 180 days of the Closing Date (i) to complete, execute and file on
behalf of the Trust such application, documents, certifications or registrations
as is required under the Investment Company Act of 1940, as amended, 15 U.S.C.
xx.xx. 80a-1 et seq., to register the Trust as a registered investment company
pursuant thereto and to obtain such exemptions from the provisions thereof as
the Beneficiary Trustee shall deem necessary or appropriate and (ii) to do or
cause to be done all such other acts or things and to execute and deliver all
such instruments and documents that such Beneficiary Trustee shall deem
necessary or appropriate to register the Trust as a registered investment
company.
(d) Meetings of the Trustees for the purpose of establishing a
majority under this Article VI or otherwise may be called at any time by any one
Trustee upon two days written or oral notice, stating the time, place and
purpose of the meeting, to all Trustees prior to the time of the meeting. In
addition, any action required or permitted to be taken at a meeting of the
Trustees may be taken without a meeting upon the written consent of the Trustees
who would be necessary to authorize the action at a meeting at which all
Trustees were present and voting or upon the unanimous written consent of the
Trustees. The Beneficiary Trustee shall maintain the minutes of all meetings of
the Trustees. Any meeting may be held by means of conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear one another. Attendance, whether by telephone or in person, at
any meeting of the Trustees shall constitute a waiver of notice of such meeting.
15
VI.03 Accounting and Reports to the Grantor, any Owner, the Internal
Revenue Service and Others. The Beneficiary Trustee shall, on behalf of the
Trust, (i) maintain or cause to be maintained the books of the Trust on a
calendar year basis on the accrual method of accounting, (ii) deliver to the
Grantor and any Owner, within 90 days of the end of each Fiscal Year, or more
often, as may be required by the Code and the regulations thereunder, a copy of
the annual financial statement of the Trust for such Fiscal Year and a statement
in such form and containing such information as is necessary and appropriate to
enable the Grantor and any Owner to prepare its federal and state income tax
returns, (iii) file such tax returns relating to the Trust, cause the Trust to
pay all taxes incurred by it pursuant to Federal, state or local income tax law,
(iv) cause such tax returns to be signed by the Trust in the manner required by
law, and (v) cause to be mailed to the Grantor and any Owner copies of all such
reports and tax returns of the Trust.
VI.04 Signature of Returns. The Trustee designated in Section 6.03
shall sign on behalf of the Trust the tax returns of and all other tax filings
of, or on behalf of, the Trust, unless applicable law requires the Owner to sign
such documents, in which case, so long as the Grantor is the Owner and
applicable law allows the Grantor to sign any such document, the Grantor shall
sign such document. At any time that the Grantor is not the Owner, or is
otherwise not allowed by law to sign any such document, then the party required
by law to sign such document shall sign.
VI.05 Right to Receive Instructions. In the event that any Trustee is
unable to decide between alternative courses of action for whatever reason, or
is unsure as to the application of any provision of this Agreement or any
Transaction Document, or such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision, or in the
event that this Agreement or any Transaction Document permits any determination
by the Trustees or is silent or is incomplete as to the course of action which
the Trustees are required to take with respect to a particular set of facts, any
one or more of the Trustees may give notice of such circumstances (in such form
as shall be appropriate under the circumstances) to the Grantor or, in the event
of a Transfer, to the Owner, and request instructions from independent,
appropriate legal or other counsel to the Trustees in accordance with Section
7.03 of this Agreement and no Trustee shall have liability to any person as a
result of its good faith actions or omissions in accordance therewith.
VI.06 No Duties Except as Specified in this Agreement or in
Instructions. The Trustees shall not have any duty or obligation to manage, make
any payment in respect of, register, record, sell, dispose of or otherwise deal
with the Trust Property, prepare or file any tax, securities law or uniform
commercial code filing or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Trust is a party, except as expressly provided by the terms of this Agreement
or, in the case of the Beneficiary Trustee, the Transaction Documents to which
the Trust is a party and no implied duties or obligations shall be read into
this Agreement or the Transaction Documents to which the Trust is a
16
party against the Trustees. The Trustees nevertheless agree that, in the event
that claims are made against any of the Trustees in their individual capacities
which result in liens against the Trust Property that are not related to the
ownership or the administration of the Trust Property or the transactions
contemplated by the Transaction Documents to which the Trust is a party, the
Trustee against whom such claims were made shall, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any part
of the Trust Property resulting from those claims.
VI.07 No Action Except Under Specified Documents or Instructions. The
Trustees shall not manage, control, use, sell, dispose of or otherwise deal with
any part of the Trust Property except in accordance with the powers granted to
and the authority conferred upon the Trustees pursuant to this Agreement.
ARTICLE VII
CONCERNING THE TRUSTEES
VII.01 Acceptance of Trusts and Duties. The Trustees accept the trusts
hereby created and agree to perform their respective duties hereunder with
respect to the same but only upon the terms of this Agreement. The Trustees
shall not be personally liable under any circumstances except (i) for their own
willful misconduct or gross negligence, (ii) for liabilities arising from the
failure by any of the Trustees to perform obligations expressly undertaken by
them in their individual capacity in the last sentence of Section 6.06, or (iii)
for taxes, fees or other charges on, based on or measured by any fees,
commissions or compensation received by the Trustees in connection with any of
the transactions contemplated by this Agreement or the Transaction Documents.
In particular, but not by way of limitation:
(a) The Trustees shall not be personally liable for any error
of judgment made in good faith by any of the Trustees or a responsible officer
thereof;
(b) The Trustees shall not be personally liable with respect
to any action taken or omitted to be taken by the Trustees in good faith in
accordance with the instructions delivered pursuant to Section 6.05;
(c) No provision of this Agreement shall require the Trustees
to expend or risk their personal funds or otherwise incur any financial
Liability in the performance of any of their rights or powers hereunder, if the
Trustees shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or Liability is not reasonably
assured or provided to them;
(d) Under no circumstance shall the Trustees be personally
liable for any indebtedness of the Trust under any Transaction Document; and
(e) The Trustees shall not be personally responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Grantor, or for the form, character, genuineness,
sufficiency, value or validity of any Collateral, or for or in respect of the
validity or sufficiency of the Transaction Documents.
VII.02 Furnishing of Documents. The Trustees shall furnish to the
Grantor and any Owner, promptly upon receipt thereof, duplicates or copies of
all material reports,
17
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Trustees by any party pursuant to the Transaction
Documents (other than documents originated by or otherwise furnished by the
Grantor or any Owner).
VII.03 Reliance; Advice of Counsel. (a) The Trustees shall incur no
Liability to anyone in acting upon any signature, instrument, notice,
resolution, request, consent, order, certificate, report, opinion, bond or other
document or paper believed by them to be genuine and believed by them to be
signed by the proper party or parties. The Trustees may accept a certified copy
of a resolution of the board of directors or other governing body of any
corporate party as conclusive evidence that such resolution has been duly
adopted by such body and that the same is in full force and effect. As to any
fact or matter the manner of ascertainment of which is not specifically
prescribed herein, the Trustees may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or any assistant treasurer or the secretary or any assistant secretary of the
relevant party, as to such fact or matter, and such certificate shall constitute
full protection to the Trustees for any action taken or omitted to be taken by
them in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of their respective duties and obligations under any of
the Transaction Documents, the Trustees (i) may act directly or, at the expense
of the Trust in the case of the Independent Trustees, through agents or
attorneys pursuant to agreements entered into with any of them, and the Trustees
shall not be liable for the default or misconduct of such agents or attorneys if
such agents or attorneys shall have been selected by the Trustees with
reasonable care and (ii) may, at the expense of the Trust in the case of the
Independent Trustees, consult with counsel, accountants and other skilled
persons to be selected with reasonable care and employed by them, and the
Trustees shall not be liable for anything done, suffered or omitted in good
faith by them in accordance with the advice or opinion of any such counsel,
accountants or other skilled persons.
VII.04 Not Acting in Individual Capacity. Except as expressly provided
in this Article VII, in accepting the trusts hereby created the Trustees each
act solely as trustees hereunder and not in their respective individual
capacities, and all Persons having any claim against the Trustees by reason of
the transactions contemplated by this Agreement or the Transaction Documents
shall look only to the Trust Property for payment or satisfaction thereof.
ARTICLE VIII
COMPENSATION OF TRUSTEES
VIII.01 Independent Trustees' Fees and Expenses. The Independent
Trustees shall receive compensation for their services hereunder from the Trust
as are fair, reasonable and customary for the performance of such services and
from time to time hereafter as agreed to by the Beneficiary Trustee, acting
singly or collectively, on behalf of the Trust. The Trust shall reimburse the
Independent Trustees for their reasonable expenses hereunder, including, without
limitation, the reasonable compensation, expenses and disbursements of such
agents,
18
representatives, experts and counsel as the Independent Trustees may employ in
connection with the exercise and performance of their rights and duties under
this Agreement and the Transaction Documents.
VIII.02 Beneficiary Trustee's Fees and Expenses. The Beneficiary
Trustee shall not be compensated by the Trust for services performed for or on
behalf of the Trust.
ARTICLE IX
INDEMNIFICATION OF TRUSTEES
IX.01 Scope of Indemnification. To the fullest extent permitted by law,
the Trust shall indemnify the Trustees against any Liability incurred in
connection with any Proceeding in which the Trustees may be involved as a party
or otherwise by reason of the fact that such Trustee is or was serving in its
capacity as a Trustee, unless such Liability is based on or arises in connection
with the Trustee's own wilful misconduct or gross negligence, the failure to
perform the obligations set forth in the last sentence of Section 6.06, or
taxes, fees or other charges on, based on or measured by any fees, commissions
or compensation received by the Trustees in connection with any of the
transactions contemplated by this Agreement or the Transaction Documents;
provided, however, that any and all obligations of the Trust to indemnify the
Trustees shall be fully subordinated to the Notes and, so long as the Notes are
outstanding, shall not constitute a claim against the Trust.
ARTICLE X
TERMINATION OF TRUST
X.01 Dissolution of Trust. (a) The Trust shall dissolve and, after
satisfaction of the obligations of the Trust to any creditors of the Trust as
required by applicable law, property held by the Trust will be distributed to
the Grantor or, in the event of a Transfer, to any Owner, at the expense of the
Trust, and upon written instruction and direction of the Beneficiary Trustee,
but in no event before payment in full of all the obligations and all fees and
expenses under, and in accordance with, the Transaction Documents. The
Beneficiary Trustee shall be the liquidator of the Trust and shall be
responsible, subject to Section 4.04, for the liquidation of the Trust in
accordance with the Business Trust Act.
(b) The bankruptcy of either the Grantor or any Owner or both
shall not operate to terminate this Agreement, to dissolve, terminate or annul
the Trust, to entitle the Grantor's or any Owner's legal representatives to
claim an accounting or to take any action or Proceeding in any court for a
partition or winding up of the Trust Property, nor otherwise affect the rights,
obligations and liabilities of the parties hereto.
19
X.02 No Termination by Grantor or Owner. Except as provided in Section
10.01, neither the Grantor nor any Owner shall be entitled to dissolve or
terminate or revoke the Trust established hereunder.
X.03 Cancellation of Certificate of Trust. Upon completion of the
winding up of the affairs of the Trust, after dissolution of the Trust in
accordance with Section 10.01 or otherwise, the Certificate of Trust shall be
canceled by the Beneficiary Trustee's executing and filing a certificate of
cancellation with the Secretary of State of Delaware.
ARTICLE XI
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
XI.01 Resignation of Trustee; Appointment of Successor. (a) A Trustee
may resign at any time without cause by giving at least 90 days' prior written
notice to the Grantor and any Owner, such resignation to be effective upon the
acceptance of appointment by a successor Trustee under Section 11.01(b). In
addition, the Grantor or, in the event of a Transfer, any Owner may at any time
remove any of the Trustees with or without cause by an instrument in writing
delivered to the Trustee, such removal to be effective upon the acceptance of
appointment by a successor Trustee under Section 11.01(b); except that, neither
the Grantor nor any Owner may remove an Independent Trustee (i) after a
Termination Event under the Loan Funding and Servicing Agreement or (ii) if the
removal of one or more Trustees would cause the breach of Section 2.05(b). In
case of the resignation or removal of a Trustee, the Grantor or, in the event of
a Transfer, any Owner, may appoint a successor Trustee by an instrument signed
by the Grantor or any Owner, as applicable, subject to Section 2.05(b). If the
last remaining Trustee of the Trust resigns or is removed or an Independent
Trustee resigns or is removed and a successor Trustee shall not have been
appointed within 30 days after the giving of written notice of such resignation
or the delivery of the written instrument with respect to such removal, such
Trustee, the Grantor or any Owner may apply to any court of competent
jurisdiction to appoint a successor Trustee in compliance with Section 2.05(b)
to act until such time, if any, as a successor Trustee shall have been appointed
as provided above. Any successor Trustee so appointed by such court shall
immediately and without further act be superseded by any successor Trustee
appointed as above provided.
(b) Any successor Trustee, however appointed, shall execute
and deliver to the predecessor Trustee and the Trust an instrument accepting
such appointment, and thereupon such successor Trustee, without further acts,
shall become vested with all the estates, properties, rights, powers, duties and
trusts of the predecessor Trustee in the trusts hereunder with like effect as if
originally named as a Trustee herein; but nevertheless, upon the written request
of such successor Trustee and payment of the predecessor Trustee's fees and
expenses, such predecessor Trustee shall execute and deliver an instrument
transferring to such successor Trustee, upon the trusts herein expressed, all
the estates, properties, rights, powers, duties and trusts of such predecessor
Trustee, and such predecessor Trustee shall duly assign, transfer, deliver and
pay over to such successor Trustee all moneys or other property then held or
subsequently received by such predecessor Trustee upon the trusts herein
expressed.
20
(c) Any Person into which any Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Person to which substantially all the corporate trust business of the
Trustee may be transferred, shall, subject to the terms of this Agreement, be
the Trustee of the Trust under this Agreement without further act or consent of
any Person.
ARTICLE XII
MISCELLANEOUS
XII.01 Supplements and Amendments. This Agreement may be amended only
by a written instrument signed by the Grantor, any Owner and a majority of the
Trustees (which majority shall include all the Independent Trustees) at the time
of such amendment. No such amendment may be made unless the rating of the Notes
assigned by each Rating Agency remains unchanged as evidenced by a written
confirmation from each Rating Agency assigning a rating to the Notes on the
Closing Date. No amendment shall affect the rights, liabilities or protections
of any Trustee without the written consent of such Trustee. The Trustees shall
be entitled to an opinion of counsel stating that an amendment is authorized or
permitted hereunder and under the Transaction Documents.
XII.02 No Legal Title to Trust Property in Grantor and Owner. Neither
the Grantor nor any Owner shall have legal title to or ownership of any part of
the Trust Property. No transfer, by operation of law or otherwise, of any right,
title and interest of the Grantor or any Owner in and to their undivided
beneficial interest in the Trust Property hereunder shall operate to terminate
this Agreement or the trusts hereunder, to dissolve, terminate or annul the
Trust or to entitle any successor transferee to an accounting or to the transfer
to it of legal title to any part of the Trust Property.
XII.03 Limitations on Rights of Others. Nothing in this Agreement,
whether express or implied, shall be construed to give to any Person other than
the Trust, the Trustees, the Grantor and any Owner any legal or equitable right,
remedy or claim in the Trust Property or except for the Grantor and any Owner,
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
XII.04 Notices. Unless otherwise expressly specified or permitted by
the terms hereof, all notices shall be in writing and delivered by hand or
mailed by certified mail, postage prepaid, if to the Trustees, addressed to:
Xxxxx Xxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
21
Xxxxxxx Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Xxxxxxx Xxxxxxxx
0000 XX Xxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxx 00000
Telephone: (000) 000-0000
or to such other addresses as the Trustees may have set forth in a written
notice to the Grantor and any Owner; and if to the Grantor, addressed to:
American Capital Strategies, Ltd.
0 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
or to such other address as the Grantor may have set forth in a written notice
to the Trustees and the Deal Agent. All notices to any Owner shall be sent care
of the Grantor to the Grantor's address set forth above or to such other address
as such Owner may have set forth in a written notice to the Grantor, the
Trustees and the Deal Agent. Whenever any notice in writing is required to be
given by the Trustees hereunder, such notice shall be deemed given and such
requirement satisfied 72 hours after such notice is mailed by certified mail,
postage prepaid, addressed as provided above; any notice given by the Grantor or
any Owner to the Trustees shall be effective upon receipt.
XII.05 Severability. Any provision of this Agreement which is
prohibited 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
XII.06 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
XII.07 Successors and Assigns. All covenants and agreements contained
herein shall be binding upon, and inure to the benefit of, the Trustees and
their respective successors and assigns and the Grantor, any Owner and their
respective successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by the
Grantor and any Owner shall bind its successors and permitted assigns.
XII.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof. Any reference to any Article or Section
contained in this Agreement shall refer to such Article or
22
Section as set forth in this Agreement, notwithstanding failure to use the term
"hereof," "hereto" or "herein" in connection with such reference.
XII.09 Governing Law. This Agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Delaware (without
regard to conflict of laws principles), including all matters of construction,
validity and performance.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have duly executed or 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 Grantor and Owner
By:
------------------------------------
Name:
Title:
XXXXX XXXXXX,
as Beneficiary Trustee
---------------------------------------
Name: Xxxxx Xxxxxx
XXXXXXX XXXXXXX,
as Independent Trustee
--------------------------------------
Name: Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXXX,
as Independent Trustee
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
EXHIBIT 1
CERTIFICATE OF TRUST
OF
ACS FUNDING TRUST I
[see attached]
CERTIFICATE OF TRUST
OF
ACS FUNDING TRUST I
THIS Certificate of Trust of ACS Funding Trust I (the
"Trust"), dated March 26, 1999, is being duly executed and filed by the
undersigned trustees to form a business trust under the Delaware Business Trust
Act (12 Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust formed hereby is ACS
Funding Trust I.
2. Registered Agent. The business address of the registered
office of the Trust in the State of Delaware is One Xxxxxx Square, 10th Floor,
Tenth and King Streets in the City of Xxxxxxxxxx, Xxxxxx xx Xxx Xxxxxx, 00000.
The name of the Trust's registered agent at such address is RL&F Service Corp.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
4. Investment Company. Notice is hereby given that pursuant to
Section 3807(b) of the Delaware Business Trust Act, the Trust will become prior
to or within 180 days following the first issuance of beneficial interests, a
registered investment company under the Investment Company Act of 1940, as
amended (15 U.S.C. xx.xx. 80a-1 et seq.).
IN WITNESS WHEREOF, the undersigned, being all of the Trustees of the
Trust, have executed this Certificate of Trust as of the day and year first
above written.
XXXXX XXXXXX,
as Beneficiary Trustee
---------------------------------
Name: Xxxxx Xxxxxx
XXXXXXX XXXXXXX,
as Independent Trustee
---------------------------------
Name: Xxxxxxx Xxxxxxx
XXXXXXX XXXXXXXX,
as Independent Trustee
----------------------------------
Name: Xxxxxxx Xxxxxxxx
