**Exhibit10.1**

 

 

$100,000,000

 

CREDIT AGREEMENT

 

Dated as of May19, 2003

 

Among

 

GLADSTONE BUSINESSLOAN, LLC

 

as the Borrower

 

GLADSTONEADVISERS, INC.

 

as the Servicer

 

THE FINANCIALINSTITUTIONS FROM TIME TO TIME PARTY HERETO

 

as CommittedLenders

 

THE COMMERCIALPAPER LENDERS FROM TIME TO TIME PARTY HERETO

 

as CP Lenders

 

THE FINANCIALINSTITUTIONS FROM TIME TO TIME PARTY HERETO

 

as Managing Agents

 

CIBC WORLD MARKETSCORP.

 

as the Structuringand Syndication Agent

 

and

 

CANADIAN IMPERIALBANK OF COMMERCE

 

as theAdministrative Agent

 

 

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**TABLEOF CONTENTS**

 
| ARTICLE I   DEFINITIONS                                  |
|---------------------------------------------------------------|
|                                                          | Section 1.1 | Certain Defined Terms. |
|                                                          | Section 1.2 | Other Terms. |
|                                                          | Section 1.3 | Computation of Time Periods. |
|                                                          | Section 1.4 | Interpretation. |
|                                                          |   |   |
| ARTICLE II   ADVANCES                                    |
|                                                          | Section 2.1 | Advances. |
|                                                          | Section 2.2 | Procedures for Advances. |
|                                                          | Section 2.3 | Optional Changes in Facility Amount;  Prepayments. |
|                                                          | Section 2.4 | Principal Repayments. |
|                                                          | Section 2.5 | The Notes. |
|                                                          | Section 2.6 | Interest Payments. |
|                                                          | Section 2.7 | Fees. |
|                                                          | Section 2.8 | Settlement Procedures. |
|                                                          | Section 2.9 | Collections and Allocations. |
|                                                          | Section 2.10 | Payments, Computations, Etc. |
|                                                          | Section 2.11 | Breakage Costs. |
|                                                          | Section 2.12 | Increased Costs; Capital Adequacy;  Illegality. |
|                                                          | Section 2.13 | Taxes. |
|                                                          |   |   |
| ARTICLE III  CLOSING; CONDITIONS OF CLOSING AND ADVANCES |
|                                                          | Section 3.1 | Conditions to Closing and Initial Advances. |
|                                                          | Section 3.2 | Conditions Precedent to All Advances. |
|                                                          |   |   |
| ARTICLE IV   REPRESENTATIONS AND WARRANTIES              |
|                                                          | Section 4.1 | Representations and Warranties of the  Borrower. |
|                                                          |   |   |
| ARTICLE V   GENERAL COVENANTS OF THE BORROWER            |
|                                                          | Section 5.1 | Covenants of the Borrower. |
|                                                          | Section 5.2 | Hedging Agreement. |
|                                                          |   |   |
| ARTICLE  VI  SECURITY INTEREST                           |
|                                                          | Section 6.1 | Security Interest. |
|                                                          | Section 6.2 | Remedies. |
|                                                          | Section 6.3 | Release of Liens. |
|                                                          | Section 6.4 | Assignment of the Purchase Agreement. |
|                                                          |   |   |
| ARTICLE VII  ADMINISTRATION AND SERVICING OF LOANS       |
|                                                          | Section 7.1 | Appointment of the Servicer. |
|                                                          | Section 7.2 | Duties and Responsibilities of the  Servicer. |
|                                                          | Section 7.3 | Authorization of the Servicer. |
|                                                          | Section 7.4 | Collection of Payments. |

 

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|                                                               | Section 7.5  | Servicer Advances.                                                        |
|--------------------------------------------------------------------|--------------|---------------------------------------------------------------------------|
|                                                               | Section 7.6  | Realization Upon Defaulted Loans or  Charged-Off Loans.                   |
|                                                               | Section 7.7  | Representations and Warranties of the  Servicer.                          |
|                                                               | Section 7.8  | Covenants of the Servicer.                                                |
|                                                               | Section 7.9  | Payment of Certain Expenses by Servicer.                                  |
|                                                               | Section 7.10 | Reports.                                                                  |
|                                                               | Section 7.11 | Annual Statement as to Compliance.                                        |
|                                                               | Section 7.12 | Limitation on Liability of the Servicer  and Others.                      |
|                                                               | Section 7.13 | The Servicer Not to Resign.                                               |
|                                                               | Section 7.14 | Access to Certain Documentation and  Information Regarding the Loans.     |
|                                                               | Section 7.15 | Merger or Consolidation of the Servicer.                                  |
|                                                               | Section 7.16 | Identification of Records.                                                |
|                                                               | Section 7.17 | Servicer Termination Events.                                              |
|                                                               | Section 7.18 | Appointment of Successor Servicer.                                        |
|                                                               | Section 7.19 | Market Servicing Fee.                                                     |
|                                                               |         |                                                                      |
| ARTICLE  VIII  TERMINATION EVENTS                             |
|                                                               | Section 8.1  | Termination Events.                                                       |
|                                                               |         |                                                                      |
| ARTICLE IX  INDEMNIFICATION                                   |
|                                                               | Section 9.1  | Indemnities by the Borrower.                                              |
|                                                               | Section 9.2  | Indemnities by the Servicer.                                              |
|                                                               |         |                                                                      |
| ARTICLE  X  THE ADMINISTRATIVE AGENT AND THE  MANAGING AGENTS |
|                                                               | Section 10.1 | Authorization and Action.                                                 |
|                                                               | Section 10.2 | Delegation of Duties.                                                     |
|                                                               | Section 10.3 | Exculpatory Provisions.                                                   |
|                                                               | Section 10.4 | Reliance.                                                                 |
|                                                               | Section 10.5 | Non-Reliance on Administrative Agent,  Managing Agents and Other Lenders. |
|                                                               | Section 10.6 | Reimbursement and Indemnification.                                        |
|                                                               | Section 10.7 | Administrative Agent and Managing Agents  in their Individual Capacities. |
|                                                               | Section 10.8 | Successor Administrative Agent or Managing  Agent.                        |
|                                                               |         |                                                                      |
| ARTICLE XI  ASSIGNMENTS; PARTICIPATIONS                       |
|                                                               | Section 11.1 | Assignments and Participations.                                           |
|                                                               | Section 11.2 | Additional Lender Groups.                                                 |
|                                                               |         |                                                                      |
| ARTICLE XII  MISCELLANEOUS                                    |
|                                                               | Section 12.1 | Amendments and Waivers.                                                   |
|                                                               | Section 12.2 | Notices, Etc.                                                             |
|                                                               | Section 12.3 | No Waiver, Rights and Remedies.                                           |
|                                                               | Section 12.4 | Binding Effect.                                                           |
|                                                               | Section 12.5 | Term of this Agreement.                                                   |

 

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|   | Section 12.6  | GOVERNING LAW; CONSENT TO JURISDICTION;  WAIVER OF OBJECTION TO VENUE.                     |
|--------|---------------|--------------------------------------------------------------------------------------------|
|   | Section 12.7  | WAIVER OF JURY TRIAL.                                                                      |
|   | Section 12.8  | Costs, Expenses and Taxes.                                                                 |
|   | Section 12.9  | No Proceedings.                                                                            |
|   | Section 12.10 | Recourse Against Certain Parties.                                                          |
|   | Section 12.11 | Protection of Security Interest;  Appointment of Administrative Agent as Attorney-in-Fact. |
|   | Section 12.12 | Confidentiality.                                                                           |
|   | Section 12.13 | Execution in Counterparts; Severability;  Integration.                                     |

 

EXHIBITS

 
| EXHIBIT A   | Form of Borrower Notice                                    |
|-------------|------------------------------------------------------------|
| EXHIBIT B   | Form of Note                                               |
| EXHIBIT C   | Form of Assignment and  Acceptance                         |
| EXHIBIT D   | Form of Joinder  Agreement                                 |
| EXHIBIT E   | Form of Monthly Report                                     |
| EXHIBIT F   | Form of Servicer’s  Certificate                       |
| EXHIBIT G   | [Reserved]                                                 |
| EXHIBIT H   | Form of Primary  Document Trust Receipt                    |
| EXHIBIT I   | Form of Assignment of  Mortgage                            |
| EXHIBIT J-l | Officer’s Certificate  as to Solvency from Originator |
| EXHIBIT J-2 | Officer’s Certificate  as to Solvency from Borrower   |
| EXHIBIT K-1 | Officer’s Closing  Certificate from Originator        |
| EXHIBIT K-2 | Officer’s Closing  Certificate from Borrower          |
| EXHIBIT K-3 | Officer’s Closing  Certificate from Servicer          |
| EXHIBIT L   | Form of Lock-Box  Agreement                                |
| EXHIBIT M   | Credit Report and  Transaction Summary                     |

 

SCHEDULES

 
| SCHEDULE I   | Schedule of Documents                                                                  |
|--------------|----------------------------------------------------------------------------------------|
| SCHEDULE II  | List of Lock-Box Banks,  Lock-Box Accounts, Collection Account and Securities Accounts |
| SCHEDULE III | Loan List                                                                              |
| SCHEDULE IV  | Form of Loans                                                                          |

 

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**THISCREDIT AGREEMENT** is made as of May 19, 2003, among:

 

(1)                                  GLADSTONEBUSINESS LOAN, LLC, a Delaware limited liability company,  as borrower (the “*Borrower*”);

 

(2)                                  GLADSTONEADVISERS, INC., a Virginia corporation, as servicer (the “*Servicer*”);

 

(3)                                  Eachfinancial institution from time to time party hereto as a “Committed Lender”and their respective successors and assigns (collectively, the “*Committed Lenders*”);

 

(4)                                  Eachcommercial paper issuer from time to time party hereto as a “CP Lender” andtheir respective successors and assigns (collectively, the “*CP Lenders*”);

 

(5)                                  Eachfinancial institution from time to time party hereto as a “Managing Agent” andtheir respective successors and assigns (collectively, the “*Managing Agents*”);

 

(6)                                  CIBCWORLD MARKETS CORP. (“*CIBC World Markets*”), as Structuring andSyndication Agent (the “*Structuring andSyndication Agent*”); and

 

(7)                                  CANADIANIMPERIAL BANK OF COMMERCE (“CIBC”), as “Administrative Agent” and itsrespective successors and assigns (the “*AdministrativeAgent*”).

 

IT IS AGREED as follows:

# ** **

# **ARTICLE I**

# ** **

# **DEFINITIONS**

 

## **Section 1.1**                                   CertainDefined Terms.

###  

### (a)                                  Certaincapitalized terms used throughout this Agreement are defined above or in thisSection 1.1.

###  

### (b)                                 Asused in this Agreement and its exhibits, the following terms shall have thefollowing meanings (such meanings to be equally applicable to both the singularand plural forms of the terms defined).

 

Additional Amount:  Defined in Section 2.13.

 

AdjustedEurodollar Rate:  Forany Settlement Period, an interest rate per annum equal to the quotient,expressed as a percentage and rounded upwards (if necessary), to the nearest1/100 of 1%, (i) the numerator of which is equal to the LIBO Rate for suchSettlement Period and (ii) the denominator of which is equal to 100% minusthe Eurodollar Reserve Percentage for such Settlement Period.

 

AdministrativeAgent:  Defined in thepreamble hereto.

 

Advance:  Defined in Section 2.1(a).

 

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AdvancesOutstanding:  On anyday, the aggregate principal amount of Advances outstanding on such day, aftergiving effect to all repayments of Advances and makings of new Advances on suchday.

 

Adverse Claim:  A lien, security interest, pledge, charge,encumbrance or other right or claim of any Person.

 

Affected CommittedLender:  Defined in Section11.1(c).

 

Affected Party:  Defined in Section 2.12(a).

 

Affiliate:  With respect to a Person means any otherPerson controlling, controlled by or under common control with suchPerson.  For purposes of thisdefinition, “control” when used with respect to any specified Person means thepower to direct the management and policies of such Person, directly orindirectly, whether through the ownership of voting securities, by contract orotherwise; and the terms “controlling” or “controlled” have meaningscorrelative to the foregoing.

 

Agent’s Account:  Account number 2000010217564 in the name ofthe Administrative Agent at First Union Bank.

 

AggregateOutstanding Loan Balance: On any day, the sum of the Outstanding Loan Balances of all EligibleLoans included as part of the Collateral on such date.

 

AggregatePurchased Loan Balance: On any day, (a) the sum of the Purchased Loan Balances of all EligibleLoans included as part of the Collateral on such date minus (b) theExcess Concentration Amount as of such date.

 

Agreementor Credit Agreement:  This CreditAgreement, dated as of May 19, 2003, as amended, modified, supplemented orrestated from time to time.

 

Alternative Rate:  An interest rate per annum equal to theAdjusted Eurodollar Rate; provided, however, that the Alternative Rate shall bethe Base Rate if a Eurodollar Disruption Event occurs; and, provided, further,that the Alternative Rate for the first two (2) Business Days following anyAdvance made by a Committed Lender shall be the Base Rate unless such CommittedLender has received at least two (2) Business Days’ prior notice of suchAdvance.

 

AmortizationPeriod:  The periodbeginning on the Termination Date and ending on the Collection Date.

 

Applicable Law:  For any Person, all existing and futureapplicable laws, rules, regulations (including proposed, temporary and finalincome tax regulations), statutes, treaties, codes, ordinances, permits,certificates, orders and licenses of and interpretations by any GovernmentalAuthority (including, without limitation, usury laws, the Federal Truth inLending Act, and Regulation Z, Regulation W and Regulation B of the FederalReserve Board), and applicable judgments, decrees, injunctions, writs, orders,or line action of any court, arbitrator or other administrative, judicial, orquasi-judicial tribunal or agency of competent jurisdiction.

 

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Assignment and Acceptance:  Defined in Section 11.1(b).

 

Assignment ofMortgage:  As to eachLoan secured by an interest in real property, one or more assignments, noticesof transfer or equivalent instruments, each in recordable form and sufficientunder the laws of the relevant jurisdiction to reflect the transfer of therelated mortgage, deed of trust, security deed or similar security instrumentand all other documents related to such Loan and to the Borrower and to grant aperfected lien thereon by the Borrower in favor of the Administrative Agent onbehalf of the Secured Parties, each such Assignment of Mortgage to besubstantially in the form of Exhibit I hereto.

 

Availability:  On any day, the lesser of (i) the amount bywhich the Borrowing Base exceeds the Advances Outstanding on such day and (ii)the amount by which the Facility Amount exceeds the Advances Outstanding onsuch day; provided, however, during the Amortization Period, theAvailability shall be zero.

 

AvailableCollections:  Definedin Section 2.8(a).

 

Backup Servicer:  BNY Asset Solutions, LLC, in its capacity asBackup Servicer under the Backup Servicing Agreement, together with itssuccessors and assigns.

 

Backup ServicerExpenses:  Theout-of-pocket expenses to be paid to the Backup Servicer under the BackupServicing Agreement.

 

Backup ServicerFee:  The fee to bepaid to the Backup Servicer as set forth in the Backup Servicing Agreement.

 

Backup ServicingAgreement:  The BackupServicing Agreement, dated as of the date hereof among the Borrower, the Servicer,the Administrative Agent and the Backup Servicer, as the same may from time totime be amended, supplemented, waived or modified.

 

Bankruptcy Code:  The United States Bankruptcy Reform Act of1978 (11 U.S.C. §§ 101, etseq.), as amended from time to time.

 

Base Rate:  On any date, a fluctuating rate of interestper annum equal to the higher of (a) the Prime Rate or (b) the Federal FundsRate plus 1.0%.

 

Benefit Plan:  Any employee benefit plan as defined inSection 3(3) of ERISA in respect of which the Borrower or any ERISA Affiliateof the Borrower is, or at any time during the immediately preceding six yearswas, an “employer” as defined in Section 3(5) of ERISA.

 

Borrower:  Gladstone Business Loan, LLC, a Delawarelimited liability company, or any permitted successor thereto.

 

Borrowing Base:  On any date of determination, (a) theAggregate Purchased Loan Balance minus (b) the Required EquityContribution.

 

Borrowing BaseTest:  As of any date,a determination that the Borrowing Base shall be equal to or greater than theAdvances Outstanding.

 

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Borrower Notice:  A written notice, in the form of ExhibitA, to be used for each borrowing, repayment of each Advance or terminationor reduction of the Facility Amount or Prepayments of Advances.

 

Breakage Costs:  Defined in Section 2.11.

 

Business Day:  Any day of the year other than a Saturday ora Sunday on which (a) (i) banks are not required or authorized to be closed inNew York, New York, and Virginia or (ii) which is not a day on which the BondMarket Association recommends a closed day for the U.S. Bond Market, and (b) ifthe term “Business Day” is used in connection with the Adjusted EurodollarRate, means the foregoing only if such day is also a day of year on whichdealings in United States dollar deposits are carried on in the Londoninterbank market.

 

Change-in-Control:  With respect to any entity, the date onwhich (i) any Person or “group” acquires any “beneficial ownership” (as suchterms are defined under Rule 13d-3 of, and Regulation 13D under, the SecuritiesExchange Act of 1934, as amended), either directly or indirectly, of membershipinterests or other equity interests or any interest convertible into any suchinterest in such entity having more than fifty percent (50%) of the votingpower for the election of managers of such entity, if any, under ordinarycircumstances, or (ii) (except in connection with any Securitization) an entitysells, transfers, conveys, assigns or otherwise disposes of all orsubstantially all of the assets of such entity.

 

Charged-Off Loan:  Any Loan (i) that is 120 days past due withrespect to any interest or principal payment, (ii) for which an InsolvencyEvent has occurred with respect to the related Obligor or (iii) that is orshould be written off as uncollectible by the Servicer in accordance with theCredit and Collection Policy.

 

Charged-Off Ratio:  With respect to any Settlement Period, thepercentage equivalent of a fraction, calculated as of the Determination Datefor such Settlement Period, (i) the numerator of which is equal to theaggregate Outstanding Loan Balance of all Loans that became Charged-Off Loansduring such Settlement Period and (ii) the denominator of which is equal to thesum of (A) the Aggregate Outstanding Loan Balance as of the first day of suchSettlement Period and (B) the Aggregate Outstanding Loan Balance as of the lastday of such Settlement Period divided by 2.

 

CIBC:  Canadian Imperial Bank of Commerce, in itsindividual capacity, and its successors or assigns.

 

Closing Date:  May 19, 2003.

 

Code:  The Internal Revenue Code of 1986, asamended.

 

Collateral:  All right, title and interest, whether nowowned or hereafter acquired or arising, and wherever located, of the Borrowerin, to and under any and all of the following:

 

(i)                                     theTransferred Loans, and all monies due or to become due in payment of such Loanson and after the related Purchase Date;

 

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(ii)                                  anyRelated Property securing the Transferred Loans including all proceeds from anysale or other disposition of such Related Property;

 

(iii)                               theLoan Documents relating to the Transferred Loans;

 

(iv)                              allSupplemental Interests related to any Transferred Loans;

 

(v)                                 theCollection Account, all funds held in such account, and all certificates andinstruments, if any, from time to time representing or evidencing theCollection Account or such funds;

 

(vi)                              allCollections and all other payments made or to be made in the future withrespect to the Transferred Loans, including such payments under any guaranteeor similar credit enhancement with respect to such Loans;

 

(vii)                           allHedge Collateral;

 

(viii)                        all incomeand Proceeds of the foregoing;

 

CollateralCustodian:  BNYMidwest Trust Company, in its capacity as Collateral Custodian under theCustody Agreement, together with its successors and assigns.

 

CollateralCustodian Expenses: The out-of-pocket expenses to be paid to the Collateral Custodian underthe Custody Agreement.

 

CollateralCustodian Fee:  Thefee to be paid to the Collateral Custodian as set forth in the CustodyAgreement.

 

Collection Account:  Defined in Section 7.4(e).

 

Collection Date:  The date following the Termination Date onwhich all Advances Outstanding have been reduced to zero, the Lenders havereceived all accrued Interest, fees, and all other amounts owing to them underthis Agreement and the Hedging Agreement, the Hedge Counterparties havereceived all amounts due and owing hereunder and under the Hedge Transactions,and each of the Backup Servicer, the Collateral Custodian, the AdministrativeAgent and the Managing Agents have each received all amounts due to them inconnection with the Transaction Documents.

 

Collections:  (a) All cash collections or other cashproceeds of a Transferred Loan received by or on behalf of the Borrower by theServicer or Originator from or on behalf of any Obligor in payment of anyamounts owed in respect of such Transferred Loan, including, withoutlimitation, Interest Collections, Principal Collections, Deemed Collections,Insurance Proceeds, and all Recoveries, (b) all amounts received by the Buyerin connection with the repurchase of an Ineligible Loan pursuant to Section 6.1of the Purchase Agreement, (c) all amounts received by the Administrative Agentin connection with the purchase of a Transferred Loan pursuant to Section7.7, (d) all payments received pursuant to any Hedging Agreement or HedgeTransaction, and (e) interest earnings in the Collection Account.

 

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Commercial PaperNotes:  On any day,any short-term promissory notes issued by any CP Lender with respect tofinancing any Advance hereunder that are allocated, in whole or in part, bysuch CP Lender to fund or maintain the Advances Outstanding.

 

Commitment:  (a) For each Committed Lender, thecommitment of such Committed Lender to fund any Advance to the Borrower in anamount not to exceed the amount set forth opposite such Committed Lender’s nameon the signature pages of this Agreement, as such amount may be modified inaccordance with the terms hereof and (b) with respect to any Person who becomesa Committed Lender pursuant to an Assignment and Acceptance or a JoinderAgreement, the commitment of such Person to fund any Advance to the Borrower inan amount not to exceed the amount set forth in such Assignment and Acceptanceor Joinder Agreement, as such amount may be modified in accordance with theterms hereof.

 

CommitmentTermination Date:  May17, 2004 or such later date to which the Commitment Termination Date may beextended (if extended) in the sole discretion of the Lenders in accordance withthe terms of Section 2.1(b).

 

Committed Lenders:  Defined in the preamble hereto.

 

Concord:  Concord Minutemen Capital Company, LLC, aDelaware limited liability company.

 

ContractualObligation:  Withrespect to any Person, means any provision of any securities issued by suchPerson or any indenture, mortgage, deed of trust, contract, undertaking,agreement, instrument or other document to which such Person is a party or bywhich it or any of its property is bound or is subject.

 

CP Lenders:  Defined in the preamble hereto.

 

CP Rate:  For any Settlement Period for any Advancesmade by a CP Lender, the per annum rate equivalent to the weighted average ofthe per annum rates paid or payable by such CP Lender from time to time asinterest on or otherwise (by means of interest rate hedges or otherwise takinginto consideration any incremental carrying costs associated with short-termpromissory notes issued by such CP Lender maturing on dates other than thosecertain dates on which such CP Lender is to receive funds) in respect of theCommercial Paper Notes issued by such CP Lender during such period, asdetermined by such CP Lender and reported to the Borrower and the Servicer,which rates shall reflect and give effect to (i) the commissions of placementagents and dealers in respect of such promissory notes, to the extent suchcommissions are allocated, in whole or in part, to such promissory notes bysuch CP Lender and (ii) an additional 0.03% for any Advance made during anyPeak CP Funding Period, provided, however, that if any componentof such rate is a discount rate, in calculating the CP Rate, such CP Lendershall for such component use the rate resulting from converting such discountrate to an interest bearing equivalent rate per annum.

 

Credit andCollection Policy: Those credit, collection, customer relation and service policies (i)determined by the Borrower, the Originator and the initial Servicer as of thedate hereof relating to the Transferred Loans and related Loan Documents, as onfile with the Administrative Agent and as the same may be amended or modifiedfrom time to time in

 

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accordance with Sections5.1(r) and 7.8(g); and (ii) with respect to any Successor Servicer,the collection procedures and policies of such person (as approved by theAdministrative Agent) at the time such Person becomes Successor Servicer.

 

Custody Agreement:  The Custodial Agreement, dated as of thedate hereof among the Borrower, the Servicer, the Originator, theAdministrative Agent and the Collateral Custodian, as the same may from time totime be amended, supplemented, waived or modified.

 

Deemed Collections:  On any day, the aggregate of all amountsBorrower shall have been deemed to have received as a Collection of aTransferred Loan.  Borrower shall bedeemed to have received a Collection in an amount equal to the unpaid balance(including any accrued interest thereon) of a Transferred Loan if at any timethe Outstanding Loan Balance of any such Loan is either (i) reduced as a resultof any discount or any adjustment or otherwise by Borrower (other than receiptof cash Collections) or (ii) reduced or canceled as a result of a setoff inrespect of any claim by any Person (whether such claim arises out of the sameor a related transaction or an unrelated transaction).

 

Defaulted Loan:  Any Transferred Loan (i) that is 60 dayspast due with respect to any interest or principal payments or (ii) in respectof which the Servicer or Originator shall have taken any of the followingactions: charging a default rate of interest, restricting Obligor’s right tomake subordinated payments (other than payments in respect of owner’s debts andseller financings), acceleration of the Transferred Loan, foreclosure oncollateral for the Loan, increasing its representation on the Obligor’s Boardof Directors or similar governing body, or increasing the frequency of itsinspection rights to permit inspection on demand.

 

Default Ratio:  With respect to any Settlement Period, thepercentage equivalent of a fraction, calculated as of the Determination Datefor such Settlement Period, (a) the numerator of which is equal to theaggregate Outstanding Loan Balance of all Transferred Loans (excludingCharged-Off Loans) included as part of the Collateral that became DefaultedLoans during such Settlement Period and (b) the denominator of which is equalto (i) the sum of (x) the Aggregate Outstanding Loan Balance as of the firstday of such Settlement Period and (y) the Aggregate Outstanding Loan Balance asof the last day of such Settlement Period divided by (ii) two.

 

Derivatives:  Any exchange-traded or over-the-counter (i)forward, future, option, swap, cap, collar, floor, foreign exchange contract,any combination thereof, whether for physical delivery or cash settlement,relating to any interest rate, interest rate index, currency, currency exchangerate, currency exchange rate index, debt instrument, debt price, debt index,depository instrument, depository price, depository index, equity instrument,equity price, equity index, commodity, commodity price or commodity index, (ii)any similar transaction, contract, instrument, undertaking or security, or(iii) any transaction, contract, instrument, undertaking or security containingany of the foregoing.

 

Determination Date:  The last day of each Settlement Period.

 

Early TerminationEvent:  Defined in Section8.1.

 

Eligible Assignee:  A Person (a) whose short-term rating is atleast A-1 from S&P and P-1 from Moody’s, or whose obligations under thisAgreement are guaranteed by a Person

 

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whose short-term ratingis at least A-1 from S&P and P-1 from Moody’s and (b) who is approved bythe Administrative Agent (such approval not to be unreasonably withheld) and,if such Person will become a Liquidity Bank for a CP Lender, by such CP Lender.

 

Eligible Loan:  On any date of determination, each Loanwhich satisfies each of the following requirements:

 

(i)                                     theLoan is evidenced by a promissory note that has been duly authorized and that,together with the related Loan Documents, is in full force and effect andconstitutes the legal, valid and binding obligation of the Obligor of such Loanto pay the stated amount of the Loan and interest thereon, and the related LoanDocuments are enforceable against such Obligor in accordance with theirrespective terms;

 

(ii)                                  theLoan was originated in accordance with the terms of the Credit and CollectionPolicy and arose in the ordinary course of the Originator’s business from thelending of money to the Obligor thereof;

 

(iii)                               theLoan is not a Defaulted Loan;

 

(iv)                              theObligor of such Loan has executed all appropriate documentation required by theOriginator;

 

(v)                                 theLoan, together with the Loan Documents related thereto, is a “generalintangible”, an “instrument”, an “account”, or “chattel paper” within themeaning of the UCC of all jurisdictions that govern the perfection of thesecurity interest granted therein;

 

(vi)                              allmaterial consents, licenses, approvals or authorizations of, or registrationsor declarations with, any Governmental Authority required to be obtained,effected or given in connection with the making of such Loan have been dulyobtained, effected or given and are in full force and effect;

 

(vii)                           theLoan is denominated and payable only in United States dollars in the UnitedStates;

 

(viii)                        except forPIK Loans, the Loan bears interest, which is due and payable no less frequentlythan quarterly;

 

(ix)                                theLoan, together with the Loan Documents related thereto, does not contravene inany material respect any Applicable Laws (including, without limitation, laws,rules and regulations relating to usury, truth in lending, fair credit billing,fair credit reporting, equal credit opportunity, fair debt collection practicesand privacy) and with respect to which no party to the Loan Documents relatedthereto is in material violation of any such Applicable Laws;

 

(x)                                   theLoan, together with the related Loan Documents, is fully assignable, (and ifsuch Loan is secured by an interest in real property, an Assignment of Mortgageexecuted in blank has been delivered to the Collateral Custodian);

 

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(xi)                                theLoan was documented and closed in accordance with the Credit and CollectionPolicy, including the relevant opinions and assignments, and there is only onecurrent original promissory note;

 

(xii)                             theLoan and all Related Property are free of any Liens except for Permitted Liens;

 

(xiii)                          the Loanhas an original term to maturity of no more than 84 months, and is either fullyamortizing in installments (which installments need not be in identicalamounts) over such term or the principal amount thereof is due in a singleinstallment at the end of such term;

 

(xiv)                         no rightof rescission, set off, counterclaim, defense or other material dispute hasbeen asserted with respect to such Loan;

 

(xv)                            anyRelated Property with respect to such Loan is insured in accordance with theCredit and Collection Policy;

 

(xvi)                         theObligor with respect to such Loan is an Eligible Obligor;

 

(xvii)                      if such Loanis a PIK Loan, such Loan shall pay a minimum of nine percent (9.0%) per annumcurrent interest, on at least a quarterly basis;

 

(xviii)                   the addition ofwhich to the Transferred Loans will not cause (A) the remaining weightedaverage life of the Transferred Loans to exceed 48 months, (B) the weighted averageinterest rate in respect of Transferred Loans which accrue interest at a fixedrate to be less than 8.0%, (C) the weighted average interest rate in respect ofTransferred Loans which accrue interest at a floating rate (x) to be less thanthe sum of the LIBO Rate plus 5.00% or (y) to be less than 8.0% or (D) theweighted average risk rating of the portfolio to be less than 4 (or theequivalent of B-/B3 by S&P and Moody’s respectively), as determined by theServicer’s risk rating model; and

 

(xix)                           the Loanis not a loan or extension of credit made by the Originator or one of itssubsidiaries to an Obligor for the purpose of making any principal, interest orother payment on such Loan necessary in order to keep such Loan from becomingdelinquent.

 

Eligible Obligor:On any day, any Obligor that satisfies each of the following requirements:

 

(i)                                     suchObligor’s principal office and any Related Property are located in the UnitedStates or any territory of the United States

 

(ii)                                  noother Loan of such Obligor is a Defaulted Loan;

 

(iii)                               thebusiness being financed by such Obligor has been operating in the same line ofbusiness for at least 36 months from the date of its incorporation orformation;

 

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(iv)                              suchObligor is not the subject of any Insolvency Event;

 

(v)                                 suchObligor is not a Governmental Authority; and

 

(vi)                              suchObligor is in material compliance with all material terms and conditions of itsLoan Documents.

 

ERISA:  The U.S. Employee Retirement Income SecurityAct of 1974, as amended from time to time, and the regulations promulgated andrulings issued thereunder.

 

ERISA Affiliate:  (a) Any corporation that is a member of thesame controlled group of corporations (within the meaning of Section 414(b) ofthe Code) as the Borrower; (b) a trade or business (whether or notincorporated) under common control (within the meaning of Section 414(c) of theCode) with the Borrower or (c) a member of the same affiliated service group(within the meaning of Section 414(m) of the Code) as the Borrower, anycorporation described in clause (a) above or any trade or business described inclause (b) above.

 

EurodollarDisruption Event: With respect to any Advance as to which Interest accrues or is to accrueat a rate based upon the Adjusted Eurodollar Rate, any of the following:  (a) a determination by a Lender that itwould be contrary to law or to the directive of any central bank or othergovernmental authority (whether or not having the force of law) to obtainUnited States dollars in the London interbank market to make, fund or maintainany Advance; (b) the inability of any Lender to obtain timely information forpurposes of determining the Adjusted Eurodollar Rate; (c) a determination by aLender that the rate at which deposits of United States dollars are beingoffered to such Lender in the London interbank market does not accuratelyreflect the cost to such Lender of making, funding or maintaining any Advance;or (d) the inability of a Lender to obtain United States dollars in the Londoninterbank market to make, fund or maintain any Advance.

 

Eurodollar ReservePercentage:  On anyday, the then applicable percentage (expressed as a decimal) prescribed by theFederal Reserve Board (or any successor) for determining reserve requirementsapplicable to “Eurocurrency Liabilities” pursuant to Regulation D or any otherthen applicable regulation of the Federal Reserve Board (or any successor) thatprescribes reserve requirements applicable to “Eurocurrency Liabilities” as presentlydefined in Regulation D.

 

ExcessConcentration Amount: On any date of determination, the sum of, without duplication, (a) theaggregate amount by which the Outstanding Loan Balances of Eligible Loansincluded as part of the Collateral, the Obligors of which are residents of anyone state, exceeds 30% of the Aggregate Outstanding Loan Balance, (b) theaggregate amount by which the Outstanding Loan Balances of Eligible Loansincluded as part of the Collateral, the Obligors of which are in the same Industry,exceeds 25% of the Aggregate Outstanding Loan Balance, (c) the aggregate amountby which the Outstanding Loan Balance of each Eligible Loan included as part ofthe Collateral exceeds the Large Loan Limit applicable to such Eligible Loan,(d) the aggregate amount by which the Outstanding Loan Balances of all EligibleLoans included as part of the Collateral whose interest payments are due andpayable less frequently than monthly exceeds 33 1/3% of the AggregateOutstanding Loan Balance, and (e) the aggregate amount by

 

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which the OutstandingLoan Balances of all Eligible Loans included as part of the Collateral whichare PIK Loans exceeds 25% of the Aggregate Outstanding Loan Balance.

 

Facility Amount:  At any time, $100,000,000; provided, however,that on or after the Termination Date, the Facility Amount shall be equal tothe amount of Advances outstanding.

 

Fair Market Value:  With respect to each Eligible Loan, thelesser of (a) the original principal amount of such Eligible Loan, and (b) ifsuch Eligible Loan has been reduced in value below the original principalamount thereof (other than as a result of the allocation of a portion of theoriginal principal amount to warrants), the value of such Eligible Loan asrequired by, and in accordance with, the 1940 Act, as amended, and any ordersof the SEC issued to the Originator, to be determined by the Board of Directorsof the Originator and reviewed by its auditors.

 

FASB:  Defined in Section 2.12(a).

 

Federal Funds Rate:  For any period, a fluctuating interest rateper annum for each day during such period equal to (a) the weighted average ofthe rates on overnight federal funds transactions with members of the FederalReserve System arranged by federal funds brokers, as published for such day(or, if such day is not a Business Day, for the preceding Business Day) by theFederal Reserve Bank of New York; or (b) if such rate is not so published forany day which is a Business Day, the average of the quotations at approximately10:30 a.m. (New York City time) for such day on such transactions received byCIBC from three federal funds brokers of recognized standing selected by it.

 

Federal ReserveBoard:  The Board ofGovernors of the Federal Reserve System.

 

Fee Letter:  Any letter agreement in respect of feesamong the Borrower, the Originator and the Administrative Agent or any ManagingAgent, as it may be amended or modified and in effect from time to time.

 

Funding Date:  Any day on which an Advance is made inaccordance with and subject to the terms and conditions of this Agreement.

 

Funding Request:  A Borrower Notice requesting an Advance andincluding the items required by Section 2.2.

 

GAAP:  Generally accepted accounting principles asin effect from time to time in the United States.

 

GovernmentalAuthority:  Withrespect to any Person, any nation or government, any state or other politicalsubdivision thereof, any central bank (or similar monetary or regulatoryauthority) thereof, any entity exercising executive, legislative, judicial,regulatory or administrative functions of or pertaining to government and anycourt or arbitrator having jurisdiction over such Person.

 

Group AdvanceLimit:  For eachLender Group, the sum of the Commitments of the Committed Lenders in suchLender Group.

 

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Guarantor Event ofDefault:  Theoccurrence of any “Event of Default” under and as defined in the PerformanceGuaranty.

 

Hedge BreakageCosts:  For any HedgeTransaction, any amount payable by the Borrower for the early termination ofthat Hedge Transaction or any portion thereof.

 

Hedge Collateral:  Defined in Section 5.2(b).

 

Hedge Counterparty:  CIBC or any entity that (a) on the date ofentering into any Hedge Transaction (i) is an interest rate swap dealer that iseither a Lender or an Affiliate of a Lender, or has been approved in writing bythe Administrative Agent (which approval shall not be unreasonably withheld),and (ii) has a short-term unsecured debt rating of not less than A-1 by S&Pand not less than P-1 by Moody’s, and (b) in a Hedging Agreement (i) consentsto the assignment of the Borrower’s rights under the Hedging Agreement to theAdministrative Agent pursuant to Section 5.2(b) and (ii) agrees that inthe event that S&P or Moody’s reduces its short-term unsecured debt ratingbelow A-1 or P-1, respectively, it shall transfer its rights and obligationsunder each Hedging Transaction to another entity that meets the requirements ofclause (a) and (b) hereof or make other arrangements acceptable to theAdministrative Agent and the Rating Agencies.

 

Hedge NotionalAmount:  The aggregatenotional amount in effect on any day under all Hedge Transactions entered intopursuant to Section 5.2 which have not matured, been terminated orcancelled.

 

Hedge Transaction:  Each interest rate cap transaction betweenthe Borrower and a Hedge Counterparty that is entered into pursuant to Section5.2 and is governed by a Hedging Agreement.

 

Hedging Agreement:  Each agreement between the Borrower and aHedge Counterparty that governs one or more Hedge Transactions entered intopursuant to Section 5.2, which agreement shall consist of a “MasterAgreement” in a form published by the International Swaps and Derivatives Association,Inc., together with a “Schedule” thereto substantially in a form as theAdministrative Agent shall approve in writing, and each “Confirmation”thereunder confirming the specific terms of each such Hedge Transaction.

 

Increased Costs:  Any amounts required to be paid by theBorrower to an Affected Party pursuant to Section 2.12.

 

Indebtedness:  With respect to the Borrower or the initialServicer at any date, (a) all indebtedness of such Person for borrowed money orfor the deferred purchase price of property or services (other than currentliabilities incurred in the ordinary course of business and payable inaccordance with customary trade practices) or that is evidenced by a note,bond, debenture or similar instrument, (b) all obligations of such Person undercapital leases, (c) all obligations of such Person in respect of acceptancesissued or created for the account of such Person, (d) all liabilities securedby any Adverse Claims on any property owned by such Person even though suchPerson has not assumed or otherwise become liable for the payment thereof, and(e) all indebtedness, obligations or liabilities of that Person in respect ofDerivatives, and (f) obligations under direct or indirect guaranties in respectof obligations (contingent or otherwise) to purchase

 

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or otherwise acquire, orto otherwise assure a creditor against loss in respect of, clauses (a)through (e) above.

 

IndemnifiedAmounts:  Defined in Section9.1.

 

Indemnified Party:  Defined in Section 9.1.

 

Industry:  The industry of an Obligor as determined byreference to the four digit standard industry classification codes.

 

Ineligible Loan:  Defined in the Purchase Agreement.

 

Insolvency Event:  With respect to a specified Person, (a) thefiling of a decree or order for relief by a court having jurisdiction in thepremises in respect of such Person or any substantial part of its property inan involuntary case under any applicable Insolvency Law now or hereafter ineffect, or appointing a receiver, liquidator, assignee, custodian, trustee,sequestrator or similar official for such Person or for any substantial part ofits property, or ordering the winding-up or liquidation of such Person’saffairs, and such decree or order shall remain unstayed and in effect for aperiod of 60 consecutive days; or (b) the commencement by such Person of avoluntary case under any applicable Insolvency Law now or hereafter in effect,or the consent by such Person to the entry of an order for relief in aninvoluntary case under any such law, or the consent by such Person to theappointment of or taking possession by a receiver, liquidator, assignee,custodian, trustee, sequestrator or similar official for such Person or for anysubstantial part of its property, or the making by such Person of any generalassignment for the benefit of creditors, or the failure by such Persongenerally to pay its debts as such debts become due, or the taking of action bysuch Person in furtherance of any of the foregoing.

 

Insolvency Laws:  The Bankruptcy Code and all other applicableliquidation, conservatorship, bankruptcy, moratorium, rearrangement,receivership, insolvency, reorganization, suspension of payments, or similardebtor relief laws from time to time in effect affecting the rights ofcreditors generally.

 

InsolvencyProceeding:  Any case,action or proceeding before any court or Governmental Authority relating to anInsolvency Event.

 

Insurance Policy:  With respect to any Loan included in theCollateral, an insurance policy covering physical damage to or loss to anyassets or Related Property of the Obligor securing such Loan.

 

Insurance Proceeds:  Any amounts payable or any payments made, tothe Borrower or to the Servicer on its behalf under any Insurance Policy.

 

Interest:  For each Settlement Period and each Advanceoutstanding during such Settlement Period, the product of:

 
|   | IR x P x | AD360 |
|--------|----------|-------|

 

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where

 

IR                                    =                                         theInterest Rate applicable to such Advance;

 

P                                         =                                         theprincipal amount of such Advance on the first day of such Settlement Period, orif such

Advance was firstmade during such Settlement Period, the principal amount of such Advance on theday such Advance is made; and

 

AD                             =                                         theactual number of days in such Settlement Period, or if such Advance was firstmade during

such SettlementPeriod, the actual number of days beginning on the day such Advance was firstmade through the end of such Settlement Period;

 

provided, however, that (i)no provision of this Agreement shall require or permit the collection ofInterest in excess of the maximum permitted by Applicable Law and (ii) Interestshall not be considered paid by any distribution if at any time suchdistribution is rescinded or must otherwise be returned for any reason.

 

InterestCollections:  Any andall amounts received in respect of any interest, fees or other similar chargeson a Transferred Loan from or on behalf of any Obligors that are deposited intothe Collection Account, or received by the Borrower or on behalf of theBorrower by the Servicer or Originator in respect of the Transferred Loans, inthe form of cash, checks, wire transfers, electronic transfers or any otherform of cash payment (net of any payment owed by the Borrower to, and includingany receipts from, any Hedge Counterparties) and, solely for purposes ofcalculating the Portfolio Rate, any and all amounts accrued in respect of anyfees and interest (but only to the extent such fees or interest were notreceived during the applicable Settlement Period) owed by any Obligor inrespect of any Transferred Loan.

 

Interest Rate:  For any Settlement Period:

 

(a)                                  tothe extent the Lender is a CP Lender that is funding the applicable Advance orportion thereof through the issuance of Commercial Paper Notes, a rate equal tothe CP Rate for such Settlement Period on such portion; or

 

(b)                                 tothe extent the relevant Lender is not funding the applicable Advance or portionthereof through the issuance of Commercial Paper Notes, a rate equal to theAlternative Rate on such portion.

 

Investment:  With respect to any Person, any direct orindirect loan, advance or investment by such Person in any other Person,whether by means of share purchase, capital contribution, loan or otherwise,excluding the acquisition of assets pursuant to the Purchase Agreement andexcluding commission, travel and similar advances to officers, employees anddirectors made in the ordinary course of business.

 

Joinder Agreement:  A joinder agreement substantially in the formset forth in Exhibit D hereto pursuant to which a new Lender Groupbecomes party to this Agreement.

 

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Key Man Event:Either of (i) David Gladstone, and (ii) Terry Brubaker shall cease to beemployed by the Originator in the capacity as executive officers thereof.

 

Large Loan Limit:  For the Eligible Loans of the three Obligorswith the largest Outstanding Loan Balances, $15,000,000, and for the EligibleLoans of each other Obligor, $10,000,000.

 

Lender Group:  Any CP Lender, its related Committed Lendersand their related Managing Agent.

 

Lenders:  Collectively, the CP Lenders, the CommittedLenders and any other Person that agrees, pursuant to the pertinent JoinderAgreement or Assignment and Acceptance, as applicable, to fund Advancespursuant to this Agreement.

 

LIBO Rate:  For any Settlement Period and any Advance,an interest rate per annum equal to:

 

(i)                                     theposted rate for 30-day deposits in United States dollars appearing on Teleratepage 3750 as of 11:00 a.m. (London time) on the Business Day that is the secondBusiness Day immediately preceding the applicable Funding Date (with respect tothe initial Settlement Period for such Advance) and as of the second BusinessDay immediately preceding the first day of the applicable Settlement Period(with respect to all subsequent Settlement Periods for such Advance); or

 

(ii)                                  ifno rate appears on Telerate page 3750 at such time and day, then the LIBO Rateshall be determined by CIBC at its principal office in New York, New York asits rate (each such determination, absent manifest error, to be conclusive andbinding on all parties hereto and their assignees) at which 30-day deposits inUnited States dollars are being, have been, or would be offered or quoted byCIBC to major banks in the applicable interbank market for Eurodollar depositsat or about 11:00 a.m. (New York City time) on such day.

 

Lien:  With respect to any Collateral, (a) anymortgage, lien, pledge, charge, security interest or encumbrance of any kind inrespect of such Collateral, or (b) the interest of a vendor or lessor under anyconditional sale agreement, financing loan or other title retention agreementrelating to such Collateral.

 

LiquidationExpenses:  Withrespect to any Defaulted Loan or Charged-Off Loan, the aggregate amount ofout-of-pocket expenses reasonably incurred by the Borrower or on behalf of theBorrower by the Servicer (including amounts paid to any subservicer) inconnection with the repossession, refurbishing and disposition of any relatedassets securing such Loan including the attempted collection of any amountowing pursuant to such Loan.

 

LiquidityAgreement:  Aliquidity agreement entered into by a CP Lender with a group of financialinstitutions in connection with this Agreement.

 

Liquidity Bank:  Each financial institution that is a partyto a Liquidity Agreement.

 

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LiquidityCommitment Fee: Defined in each Fee Letter.

 

Loan:  Any senior or subordinate loan arising fromthe extension of credit to an Obligor by the Originator in the ordinary courseof the Originator’s business.

 

Loan Documents:  With respect to any Loan, the relatedpromissory note and any related loan agreement, security agreement, mortgage,assignment of Loans, all guarantees, and UCC financing statements andcontinuation statements (including amendments or modifications thereof)executed by the Obligor thereof or by another Person on the Obligor’s behalf inrespect of such Loan and related promissory note, including, withoutlimitation, general or limited guaranties and, for each Loan secured by realproperty an Assignment of Mortgage.

 

Loan File:  With respect to any Loan, each of the LoanDocuments related thereto.

 

Loan List:  The Loan List provided by the Borrower tothe Administrative Agent and the Collateral Custodian, as set forth in ScheduleIII hereto (which shall include the specific documents that should beincluded in each Loan File), as the same may be changed from time to time inaccordance with the provisions hereof.

 

Lock-Box:  A post office box to which Collections areremitted for retrieval by a Lock-Box Bank and deposited by such Lock-Box Bankinto a Lock-Box Account.

 

Lock-Box Account:  An account, subject to a Lock-Box Agreement,maintained in the name of the Borrower for the purpose of receiving Collectionsat a Lock-Box Bank.

 

Lock-Box Agreement:  A letter agreement, substantially in theform of Exhibit L, among the Borrower, the Administrative Agent and aLock-Box Bank.

 

Lock-Box Bank:  Any of the banks or other financialinstitutions holding one or more Lock-Box Accounts.

 

Managing Agent:As to any CP Lender, the financial institution identified as such on thesignature pages hereof or in the applicable Assignment and Acceptance orJoinder Agreement.

 

MandatoryPrepayment:  Definedin Section 2.4(a).

 

Market ServicingFee:  Defined in Section7.20.

 

Market ServicingFee Differential:  Onany date of determination, an amount equal to the positive difference betweenthe Market Servicing Fee and Servicing Fee.

 

Material AdverseChange:  With respectto any Person, any material adverse change in the business, condition(financial or otherwise), operations, performance, properties or prospects ofsuch Person.

 

Material AdverseEffect:  With respectto any event or circumstance, means a material adverse effect on (a) thebusiness, condition (financial or otherwise), operations, performance,properties or prospects of the Servicer or the Borrower, (b) the validity,enforceability or

 

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collectibility of thisAgreement or any other Transaction Document or any Liquidity Agreement or thevalidity, enforceability or collectibility of the Loans, (c) the rights andremedies of the Administrative Agent or any Secured Party under this Agreementor any Transaction Document or any Liquidity Agreement or (d) the ability ofthe Borrower or the Servicer to perform its obligations under this Agreement orany other Transaction Document, or (e) the status, existence, perfection,priority, or enforceability of the Administrative Agent’s or Secured Parties’interest in the Collateral.

 

Maximum LawfulRate:  Defined in Section2.6(d).

 

Monthly Report:  Defined in Section 7.11(a).

 

Moody’s:  Moody’s Investors Service, Inc., and anysuccessor thereto.

 

Multiemployer Plan:  A “multiemployer plan” as defined in Section4001(a)(3) of ERISA that is or was at any time during the current year or theimmediately preceding five years contributed to by the Borrower or any ERISAAffiliate on behalf of its employees.

 

1940 Act:  Defined in Section 4.1(x).

 

Notes:  Defined in Section 2.5(a).

 

Obligations:  All loans, advances, debts, liabilities andobligations, for monetary amounts owing by the Borrower to the Lenders, theAdministrative Agent, the Managing Agents or any of their assigns, as the casemay be, whether due or to become due, matured or unmatured, liquidated orunliquidated, contingent or non-contingent, and all covenants and dutiesregarding such amounts, of any kind or nature, present or future, arising underor in respect of any of this Agreement, any other Transaction Document or anyFee Letter delivered in connection with the transactions contemplated by thisAgreement, or any Hedging Agreement, as amended or supplemented from time totime, whether or not evidenced by any separate note, agreement or otherinstrument.  This term includes, withoutlimitation, all principal, interest (including interest that accrues after thecommencement against the Borrower of any action under the Bankruptcy Code),Breakage Costs, Hedge Breakage Costs, fees, including, without limitation, anyand all arrangement fees, loan fees, facility fees, and any and all other fees,expenses, costs or other sums (including attorney costs) chargeable to theBorrower under any of the Transaction Documents or under any Hedging Agreement.

 

Obligor:  With respect to any Loan, the Person orPersons obligated to make payments pursuant to such Loan, including anyguarantor thereof.  For purposes ofcalculating the Excess Concentration Amount, all Loans included in theCollateral or to become part of the Collateral the Obligor of which is anAffiliate of another Obligor shall be aggregated with all Loans of such otherObligor.

 

Officer’sCertificate:  Acertificate signed by any officer of the Borrower or the Servicer, as the casemay be, and delivered to the Administrative Agent.

 

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Opinion of Counsel:  A written opinion of counsel, who may becounsel for the Borrower or the Servicer, as the case may be, and who shall bereasonably acceptable to the Administrative Agent.

 

Originator:  Gladstone Capital Corporation, a Marylandcorporation.

 

Outstanding LoanBalance: With respect to any Loan, the then outstandingprincipal balance thereof.

 

Participant:  Defined in Section 11.1(g).

 

Payment Date:  Thetwelfth (12th) day of each calendar month or, if such day is not a BusinessDay, the next succeeding Business Day; provided that for the purposes ofdistributions required pursuant to Section 2.8(a)(vii) only, “PaymentDate” shall mean any Business Day.

 

Peak CP FundingPeriod:    The 15th day of any calendarmonth, the last 5 Business Days of any calendar month, the last 10 BusinessDays of November and the last 20 Business Days of December.

 

PerformanceGuaranty:  ThePerformance Guaranty dated as of the date hereof, by the Originator in favor ofthe Borrower and the Administrative Agent, as amended, modified, supplementedor restated from time to time.

 

PermittedInvestments:  Any oneor more of the following types of investments:

 

(a)                                  marketableobligations of the United States, the full and timely payment of which arebacked by the full faith and credit of the United States and that have amaturity of not more than 270 days from the date of acquisition;

 

(b)                                 marketableobligations, the full and timely payment of which are directly and fullyguaranteed by the full faith and credit of the United States and that have amaturity of not more than 270 days from the date of acquisition;

 

(c)                                  bankers’acceptances and certificates of deposit and other interest-bearing obligations(in each case having a maturity of not more than 270 days from the date ofacquisition) denominated in dollars and issued by any bank with capital,surplus and undivided profits aggregating at least $100,000,000, the short-termobligations of which are rated A-1 by S&P and P-1 by Moody’s;

 

(d)                                 repurchaseobligations with a term of not more than ten days for underlying securities ofthe types described in clauses (a), (b) and (c) above entered into with anybank of the type described in clause (c) above;

 

(e)                                  commercialpaper rated at least A-1 by S&P and P-1 by Moody’s; and

 

(f)                                    demanddeposits, time deposits or certificates of deposit (having original maturitiesof no more than 365 days) of depository institutions or trust companiesincorporated under the laws of the United States or any state thereof (ordomestic branches of any foreign

 

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bank) and subject tosupervision and examination by federal or state banking or depositoryinstitution authorities; provided, however that at the time suchinvestment, or the commitment to make such investment, is entered into, theshort-term debt rating of such depository institution or trust company shall beat least A-1 by S&P and P-1 by Moody’s.

 

Permitted Liens:  Liens created pursuant to the TransactionDocuments in favor of the Administrative Agent, as agent for the SecuredParties.

 

Person:  An individual, partnership, corporation(including a statutory trust), limited liability company, joint stock company,trust, unincorporated association, sole proprietorship, joint venture,government (or any agency or political subdivision thereof) or other entity.

 

PIK Loan:  A Loan to an Obligor, which provides for aportion of the interest that accrues thereon to be added to the principalamount of such Loan for some period of the time prior to such Loan requiringthe cash payment of interest on a monthly or quarterly basis.

 

Portfolio Rate:  On any day, with respect to any SettlementPeriod, the annualized percentage equivalent of a fraction, the numerator ofwhich is equal to all Interest Collections for such Settlement Period, and thedenominator of which is equal to the Advances Outstanding on the last day ofsuch Settlement Period.

 

Portfolio Yield:  On any day, the excess, if any, of (a) thePortfolio Rate on such day over (b) the Interest Rate plus the Program Fee Rateon such day.

 

Prime Rate:  The rate publicly announced by CIBC fromtime to time on Reuters telerate page 3750 as its prime rate in the UnitedStates, such rate to change as and when such designated rate changes.  The Prime Rate is not intended to be thelowest rate of interest charged by CIBC in connection with extensions of creditto debtors.

 

PrincipalCollections:  Any andall amounts received in respect of any principal due and payable under anyTransferred Loan from or on behalf of Obligors that are deposited into theCollection Account, or received by the Borrower or on behalf of the Borrower bythe Servicer or Originator in respect of the Transferred Loans, in the form ofcash, checks, wire transfers, electronic transfers or any other form of cashpayment.

 

Proceeds:  With respect to any Collateral, whatever isreceivable or received when such Collateral is sold, collected, liquidated,foreclosed, exchanged, or otherwise disposed of, whether such disposition isvoluntary or involuntary, including all rights to payment with respect to anyinsurance relating to such Collateral.

 

Program Fee:  For each Settlement Period and each AdvanceOutstanding during such Settlement Period, the product of:

 

PFR x P x AD/360

 

where

PFR                          =                                         theProgram Fee Rate;

 

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P                                         =                                         theprincipal amount of such Advance on the first day of such Settlement Period, orif such

Advance was firstmade during such Settlement Period, the principal amount of such Advance on theday such Advance is made; and

 

AD                             =                                         theactual days comprising such Settlement Period, or if such Advance was firstmade during such

Settlement Period,the actual number of days beginning on the day such Advance was first madethrough the end of such Settlement Period.

 

Program Fee Rate:  Defined in each Fee Letter.

 

Pro-Rata Share:  With respect to any Committed Lender on anyday, the percentage equivalent of a fraction the numerator of which is suchCommitted Lender’s Commitment and the denominator of which is the Group AdvanceLimit of the related CP Lender’s Lender Group.

 

Purchase Agreement:  The Purchase and Sale Agreement dated as ofthe date hereof, between the Originator and the Borrower, as amended, modified,supplemented or restated from time to time.

 

Purchase Date:  Defined in the Purchase Agreement.

 

Purchased LoanBalance:  As of anydate of determination and any Transferred Loan, the lesser of (i) theOutstanding Loan Balance of such Loan, and (ii) the Fair Market Value of suchLoan.

 

PurchasingCommitted Lender: Defined in Section 11.1(b).

 

QualifiedInstitution:  Definedin Section 7.4(e).

 

Rating Agency:Any rating agency that has been requested to issue a rating with respect to theCommercial Paper Notes issued by a CP Lender.

 

Records:  With respect to any Transferred Loans, alldocuments, books, records and other information (including without limitation,computer programs, tapes, disks, punch cards, data processing software andrelated property and rights) maintained with respect to any item of Collateraland the related Obligors, other than the Loan Documents.

 

Recoveries:  With respect to any Defaulted Loan orCharged-Off Loan, proceeds of the sale of any Related Property, proceeds of anyrelated Insurance Policy, and any other recoveries with respect to such Loanand Related Property, and amounts representing late fees and penalties, net ofLiquidation Expenses and amounts, if any, received that are required to berefunded to the Obligor on such Loan.

 

Reference Bank:  Any bank that furnishes information forpurposes of determining the Adjusted Eurodollar Rate.

 

Register:  Defined in Section 11.1(e).

 

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Regulatory Change:  Defined in Section 2.12(a).

 

Related Property:  With respect to a Loan, any property orother assets of the Obligor thereunder pledged as collateral to the Originatorto secure the repayment of such Loan.

 

Reporting Date:  The date that is two (2) Business Days priorto each Payment Date.

 

Repurchase Price:  For any Transferred Loan purchased by theServicer pursuant to Section 7.7, an amount equal to the outstandingprincipal balance of such Loan as of the date of purchase, plus all accrued andunpaid interest on such Loan.

 

Required CommittedLenders:  At aparticular time, Committed Lenders with Commitments in excess of 66 2/3 % ofthe Facility Amount.

 

Required EquityContribution:  Acapital contribution to the Borrower by the Originator, on or before theClosing Date, in the form of Eligible Loans and/or cash having an outstandingprincipal balance on the Closing Date and at all times prior to the TerminationDate of at least $100,000,000.

 

Required NotionalAmount:  $35,000,000.

 

Required Ratings:  With respect to any Committed Lender, theshort term ratings from S&P and Moody’s equal to or greater than theratings required in order to maintain the rating of the commercial paper issuedby the related CP Lender.

 

Required Reports:  Collectively, the Monthly Report, theServicer’s Certificate and the annual and quarterly financial statements of theOriginator required to be delivered to the Borrower, the Managing Agents,Concord, the Administrative Agent and the Backup Servicer pursuant to Section7.11 hereof.

 

ResponsibleOfficer:  As to theBorrower, David Gladstone, Terry Brubaker, George Stelljes, Harry Brill orDonya Kolcio, and as to any other Person, any officer of such Person withdirect responsibility for the administration of this Agreement and also, withrespect to a particular matter, any other officer to whom such matter isreferred because of such officer’s knowledge of and familiarity with theparticular subject.  The Borrower maydesignate other Responsible Officers from time to time by notice to theAdministrative Agent.

 

Revolving Period:  The period commencing on the Closing Dateand ending on the day immediately preceding the Termination Date.

 

RollingThree-Month Charged-Off Ratio:  For any day, beginning after the end of the third SettlementPeriod following the Closing Date, the rolling three period average Charged-OffRatio for the three immediately preceding Settlement Periods.

 

RollingThree-Month Default Ratio: For any day, beginning after the end of the third Settlement Periodfollowing the Closing Date, the rolling three period average Default Ratio forthe three immediately preceding Settlement Periods.

 

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S&P:  Standard & Poor’s Ratings Services, adivision of The McGraw-Hill Companies, Inc. and any successor thereto.

 

Scheduled Payment:  On any Determination Date, with respect toany Loan, each monthly payment (whether principal, interest or principal andinterest) scheduled to be made by the Obligor thereof after such DeterminationDate under the terms of such Loan.

 

Secured Party:  (i) Each Lender, (ii) each Managing Agent,(iii) each Liquidity Bank and (iv) each Hedge Counterparty that is either aLender or an Affiliate of a Lender if that Affiliate executes a counterpart ofthis Agreement agreeing to be bound by the terms of this Agreement applicableto a Secured Party.

 

Securitization:  A disposition of Transferred Loans in one ora series of structured finance securitization transactions.

 

Servicer:  Gladstone Advisers, Inc., a Virginiacorporation, and its permitted successors and assigns.

 

Servicer Advance:  An advance of Scheduled Payments made by theServicer pursuant to Section 7.5.

 

ServicerTermination Event: Defined in Section 7.18.

 

Servicer’sCertificate:  Definedin Section 7.11(b).

 

Servicing Duties:  Those duties of the Servicer which areenumerated in Section 7.2.

 

Servicing Fee:  For each Payment Date, an amount equal tothe sum of the products, for each day during the related Settlement Period, of(i) Aggregate Outstanding Loan Balance as of the preceding Determination Date,(ii) the Servicing Fee Rate, and (iii) a fraction, the numerator of which is 1and the denominator of which is 360.

 

Servicing Fee Rate:  A rate equal to 1.5% per annum.

 

Servicing Records:  All documents, books, records and otherinformation (including, without limitation, computer programs, tapes, disks, dataprocessing software and related property rights) prepared and maintained by theServicer with respect to the Transferred Loans and the related Obligors.

 

Settlement Period:  Each period from and including a PaymentDate to but excluding the following Payment Date, except in the case of thefirst Settlement Period, which shall be the period beginning on the ClosingDate to but excluding July 12, 2003.

 

Solvent:  As to any Person at any time, having a stateof affairs such that all of the following conditions are met:  (a) the fair value of the property owned bysuch Person is greater than the amount of such Person’s liabilities (includingdisputed, contingent and unliquidated liabilities) as such value is establishedand liabilities evaluated for purposes of Section 101(32) of the BankruptcyCode; (b) the present fair salable value of the property owned by such Person

 

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in an orderly liquidationof such Person is not less than the amount that will be required to pay theprobable liability of such Person on its debts as they become absolute andmatured; (c) such Person is able to realize upon its property and pay its debtsand other liabilities (including disputed, contingent and unliquidatedliabilities) as they mature in the normal course of business; (d) such Persondoes not intend to, and does not believe that it will, incur debts orliabilities beyond such Person’s ability to pay as such debts and liabilitiesmature; and (e) such Person is not engaged in business or a transaction, and isnot about to engage in a business or a transaction, for which such Person’sproperty would constitute unreasonably small capital.

 

Successor Servicer:  Defined in Section 7.19(a).

 

SupplementalInterests:  Withrespect to any Transferred Loan, any warrants, equity or other equity interestsor interests convertible into or exchangeable for any such interests receivedby the Originator from the Obligor in connection with such Transferred Loan.

 

Taxes:  Any present or future taxes, levies,imposts, duties, charges, assessments or fees of any nature (includinginterest, penalties, and additions thereto) that are imposed by any GovernmentAuthority.

 

Termination Date:  The earliest to occur of (a) the datedeclared by the Administrative Agent or occurring automatically in respect ofthe occurrence of an Early Termination Event pursuant to Section 8.1,(b) a date selected by the Borrower upon at least 30 days’ prior written noticeto the Administrative Agent, each Managing Agent and Concord, (c) theCommitment Termination Date and (d) the date designated by the AdministrativeAgent following the occurrence of a Key Man Event.

 

Termination Notice:  Defined in Section 7.18.

 

TransactionDocuments:  ThisAgreement, the Purchase Agreement, all Hedging Agreements, the CustodyAgreement, the Backup Servicing Agreement, the Performance Guaranty and anyadditional document, letter, fee letter, certificate, opinion, agreement orwriting the execution of which is necessary or incidental to carrying out theterms of the foregoing documents.

 

Transferred Loans:  Each Loan that is acquired by the Borrowerunder the Purchase Agreement and all Loans received by the Borrower in respectof the Required Equity Contribution. Any Transferred Loan that is (i) repurchased or reacquired by theOriginator pursuant to the terms of Section 6.1 of the Purchase Agreement, (ii)purchased by the Servicer pursuant to the terms of Section 7.7 or (iii)otherwise released from the lien of this Agreement pursuant to Section 6.3shall not be treated as a Transferred Loan for purposes of this Agreement (provided,that the purchase or repurchase of any Defaulted Loan or Charged-Off Loan shallnot alter such Transferred Loan’s status as a Defaulted Loan or Charged-Off Loanfor purposes of calculating ratios for periods occurring prior to the purchaseor repurchase of such Transferred Loan).

 

Transition Costs:  The reasonable costs and expenses incurredby the Backup Servicer in transitioning to Servicer; provided, however,that the Administrative Agent’s consent shall be required if such TransitionCosts exceed $50,000.00 in the aggregate.

 

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UCC:  The Uniform Commercial Code as from time totime in effect in the specified jurisdiction or, if no jurisdiction isspecified, the State of New York.

 

United States:  The United States of America.

 

UnmaturedTermination Event:  Anevent that, with the giving of notice or lapse of time, or both, would becomean Early Termination Event.

 

UnreimbursedServicer Advances:  Atany time, the amount of all previous Servicer Advances (or portions thereof) asto which the Servicer has not been reimbursed as of such time pursuant to Section2.8 and that the Servicer has determined in its sole discretion will not berecoverable from Collections with respect to the related Transferred Loan.

## ** **

## **Section 1.2**                                   Other Terms.

 

All accounting terms not specifically defined hereinshall be construed in accordance with GAAP. All terms used in Article 9 of the UCC in the State of New York, and notspecifically defined herein, are used herein as defined in such Article 9.

## ** **

## **Section 1.3**                                   Computationof Time Periods.

 

Unless otherwise stated in this Agreement, in thecomputation of a period of time from a specified date to a later specifieddate, the word “from” means “from and including” and the words “to” and “until”each mean “to but excluding.”

## ** **

## **Section 1.4**                                   Interpretation.

 

In each Transaction Document, unless a contraryintention appears:

####  

#### (i)                                     thesingular number includes the plural number and vice versa;

####  

#### (ii)                                  referenceto any Person includes such Person’s successors and assigns but, if applicable,only if such successors and assigns are permitted by the Transaction Document;

####  

#### (iii)                               reference to any genderincludes each other gender;

####  

#### (iv)                              referenceto any agreement (including any Transaction Document), document or instrumentmeans such agreement, document or instrument as amended, supplemented ormodified and in effect from time to time in accordance with the terms thereofand, if applicable, the terms of the other Transaction Documents and referenceto any promissory note includes any promissory note that is an extension orrenewal thereof or a substitute or replacement therefor; and

####  

#### (v)                                 referenceto any Applicable Law means such Applicable Law as amended, modified, codified,replaced or reenacted, in whole or in part, and in effect from time to time,including rules and regulations promulgated thereunder and reference to anysection or other provision of any Applicable Law means that provision of suchApplicable Law from time to time

 

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#### in effect and constituting the substantive amendment,modification, codification, replacement or reenactment of such section or otherprovision.

# ** **

# **ARTICLE II**

# ** **

# **ADVANCES**

## **Section 2.1**                                   Advances.

###  

### (a)                                  Onthe terms and conditions hereinafter set forth, the Borrower may, by deliveryof a Funding Request to the Administrative Agent, from time to time on anyBusiness Day during the Revolving Period, at its option, request that theLenders make advances (each, an “Advance”) to it in an amount which, at anytime, shall not exceed the Availability in effect on the related FundingDate.  Such Funding Request shall bedelivered not later than 5:00 p.m. (New York City time) on the date which isfour (4) Business Days prior to the requested Funding Date.  Following receipt by the AdministrativeAgent of a Funding Request, the Administrative Agent shall forward such FundingRequest to each Managing Agent not later than 12:00 p.m. (New York City time)on the date which is three (3) Business Days prior to the requested FundingDate.  Upon receipt of such FundingRequest, each Managing Agent shall request the CP Lender in its Lender Group tomake the Advance, and such CP Lender may from time to time during the RevolvingPeriod, in its sole discretion, agree or decline to make the Advance.  If any CP Lender declines to make all or anypart of a proposed Advance, it shall so notify the Committed Lenders and theapplicable portion of the Advance will be made by the Committed Lenders in suchCP Lender’s Lender Group in accordance with their Pro-Rata Shares.  Notwithstanding anything contained in this Section2.1 or elsewhere in this Agreement to the contrary, no Committed Lendershall be obligated to make any Advance in an amount that would result in theaggregate Advances then funded by such Committed Lender exceeding itsCommitment then in effect (minus the unrecovered principal amount of suchCommitted Lender’s advances made, downgrade draws funded or purchase pricespaid pursuant to any applicable Liquidity Agreement to which it is aparty).  The obligation of eachCommitted Lender to remit its Pro-Rata Share of any such Investment shall beseveral from that of each other Committed Lender, and the failure of anyCommitted Lender to so make such amount available to the Borrower shall notrelieve any other Committed Lender of its obligation hereunder.  Each Advance to be made hereunder shall bemade ratably among the Lender Groups in accordance with their Group AdvanceLimits.

###  

### (b)                                 TheBorrower may, within 60 days, but no later than 45 days, prior to the thencurrent Commitment Termination Date, by written notice to the AdministrativeAgent, make written requests for the Lenders to extend the CommitmentTermination Date for an additional revolving period of 364 days.  The Administrative Agent will give promptnotice to each Managing Agent of its receipt of such request, and each ManagingAgent shall give prompt notice to each of the Lenders in its related LenderGroup of its receipt of such request for extension of the CommitmentTermination Date.  Each Lender shallmake a determination, in its sole discretion and after a full credit review,not less than fifteen (15) days prior to the then applicable CommitmentTermination Date as to whether or not it will agree to extend the CommitmentTermination Date; provided, however, that the failure of anyLender to make a timely response to the Borrower’s request for extension of theCommitment Termination Date

 

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### shall be deemed to constitute a refusal by such Lenderto extend the Commitment Termination Date. In the event that at least one Committed Lender agrees to extend theCommitment Termination Date, the Borrower, the Servicer, the AdministrativeAgent and the extending Committed Lenders and, if such extension is approved bya CP Lender in its sole discretion, such CP Lender shall enter into suchdocuments as such extending Committed Lenders and CP Lenders may deem necessaryor appropriate to reflect such extension, and all reasonable costs and expensesincurred by such CP Lenders, such Committed Lenders and the AdministrativeAgent (including reasonable attorneys’ fees) shall be paid by theBorrower.  In the event that anyCommitted Lender declines the request to extend the Commitment Termination Date(each such Committed Lender being referred to herein as a “Non-RenewingCommitted Lender”), and the Commitment of such Non-Renewing CommittedLender is not assigned to another Person in accordance with the terms of ArticleXI prior to the then current Commitment Termination Date, (i) the FacilityAmount shall be reduced by an amount equal to each such Non-Renewing CommittedLender’s Commitment on the then current Commitment Termination Date, and (ii)the Group Advance Limits of the applicable Lender Groups shall be reduced by anamount equal to the applicable Non-Renewing Committed Lender’s Commitment onthe then current Commitment Termination Date.

## ** **

## **Section 2.2**                                   Proceduresfor Advances.

###  

### (a)                                  Inthe case of the making of any Advance, the repayment of any Advance, or anytermination, increase or reduction of the Facility Amount and prepayments ofAdvances, the Borrower shall give the Administrative Agent a BorrowerNotice.  Each Borrower Notice shallspecify the amount (subject to Section 2.1 hereof) of Advances to beborrowed or repaid and the Funding Date or repayment date (which, in all cases,shall be a Business Day).

###  

### (b)                                 Subjectto the conditions described in Section 2.1, the Borrower may request anAdvance from the Lenders by delivering to the Administrative Agent at certaintimes the information and documents set forth in this Section 2.2.

###  

### (c)                                  Nolater than 10:00 a.m. (New York City time) five (5) Business Days prior to theproposed Funding Date, the Borrower shall notify (i) the Collateral Custodianby delivery to the Collateral Custodian of written notice of such proposedFunding Date, and (ii) the Administrative Agent by delivery to theAdministrative Agent of a credit report and transaction summary for each Loanthat is the subject of the proposed Advance setting forth the creditunderwriting by the Originator of such Loan, including without limitation adescription of the Obligor and the proposed loan transaction in the form of ExhibitM hereto.  By 5:00 p.m. (New YorkCity time) on the next Business Day, the Administrative Agent shall use itsbest efforts to confirm to the Borrower the receipt of such items and whetherit has reviewed such items and found them to be complete and in properform.  If the Administrative Agent makesa determination that the items are incomplete or not in proper form, it willcommunicate such determination to the Borrower.  Failure by the Administrative Agent to respond to the Borrower by5:00 on the day the related Funding Request is delivered by the Borrower shallconstitute an implied determination that the items are incomplete or not inproper form.  The Borrower will takesuch steps requested by the Administrative Agent to correct theproblem(s).  In the event of a delay inthe actual Funding Date due to the need to correct any such problems, theFunding Date shall be no earlier than three (3) Business Days after the day onwhich the Administrative

 

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Agent confirms to the Borrower that the problems have beencorrected.  No more than one FundingDate per calendar week shall be permitted without the consent of theAdministrative Agent and each CP Lender. No Funding Date on which a CP Lender is requested to make an Advanceshall occur during any Peak CP Funding Period without the consent of the CPLender.

###  

### (d)                                 Nolater than 11:00 a.m. (New York City time) three (3) Business Days prior to theproposed Funding Date, the Administrative Agent, each Managing Agent, Concordand the Collateral Custodian, as applicable, shall receive or shall havepreviously received the following:

####  

#### (i)                                     aFunding Request in the form of Exhibit A;

####  

#### (ii)                                  awire disbursement and authorization form shall be delivered to theAdministrative Agent; and

####  

#### (iii)                               a certificationsubstantially in the form of Exhibit H concerning the CollateralCustodian’s receipt of certain documentation relating to the Eligible Loan(s)related to such Advance shall be delivered to the Administrative Agent.

###  

### (e)                                  EachFunding Request shall specify the aggregate amount of the requested Advance,which shall be in an amount equal to at least $3,000,000.  Each Funding Request shall be accompanied by(i) a Borrower Notice, depicting the outstanding amount of Advances under thisAgreement and representing that all conditions precedent for a funding havebeen met, including a representation by the Borrower that the requested Advanceshall not, on the Funding Date thereof, exceed the Availability on such day,(ii) a calculation of the Borrowing Base as of the date the Advance isrequested, (iii) an updated Loan List including each Loan that is subject tothe requested Advance, (iv) the proposed Funding Date, and (v) wire transferinstructions for the Advance.  A FundingRequest shall be irrevocable when delivered.

###  

### (f)                                    Onthe Funding Date following the satisfaction of the applicable conditions setforth in this Section 2.2 and Article III, each CP Lender may, orthe related Committed Lenders, as applicable, shall, make available to theAdministrative Agent at its address listed beneath its signature on itssignature page to this Agreement (or on the signature page to the JoinderAgreement pursuant to which it became a party hereto), for deposit to theaccount of the Borrower or its designee in same day funds, at the accountspecified in the Funding Request, an amount equal to such Lender’s ratableshare of the Advance then being made. Each wire transfer of an Advance to the Borrower shall be initiated bythe applicable Lender no later than 3:00 p.m. (New York city time) on theapplicable Funding Date.

## ** **

## **Section 2.3**                                   OptionalChanges in Facility Amount; Prepayments.

###  

### (a)                                  TheBorrower shall be entitled at its option, at any time prior to the occurrenceof an Early Termination Event, to reduce the Facility Amount in whole or inpart; provided that the Borrower shall give prior written notice of suchreduction to the Administrative Agent, each Managing Agent and Concord asprovided in paragraph (b) of this Section 2.3 and that any partialreduction of the Facility Amount shall be in an amount equal to $3,000,000 withintegral multiples of $500,000 above such amount.  Unless otherwise agreed by the Committed Lenders, the Commitmentof each Committed Lender shall be reduced ratably in proportion to such

 

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### reduction in the Facility Amount.  Any request for a reduction or terminationpursuant to this Section 2.3 shall be irrevocable.

###  

### (b)                                 Fromtime to time during the Revolving Period the Borrower may prepay any portion orall of the Advances Outstanding, other than with respect to MandatoryPrepayments, by delivering to the Administrative Agent, each Managing Agent andConcord a Borrower Notice at least (i) in the case of any partial prepayment(other than a partial prepayment during the month of  December), at least five (5) Business Days prior to the date ofsuch prepayment, (ii) in the case of any partial prepayment during the month ofDecember, at least five (5) Business Days prior to the Payment Date occurringin November, and (iii) in the case of any prepayment in full, at least thirty(30) Business Days prior to the date of such prepayment (or, in each case, suchlater time as the applicable Lender, in its sole discretion, may agree),specifying the date and amount of the prepayment and certifying that, followingsuch prepayment, the Borrower will be in compliance with the terms of thisAgreement; provided, that no such reduction shall be given effect unlessthe Borrower has complied with the terms of any Hedging Agreement requiringthat one or more Hedge Transactions be terminated in whole or in part as theresult of any such prepayment of the Advances Outstanding, and the Borrower haspaid all Hedge Breakage Costs owing to the relevant Hedge Counterparty for anysuch termination.  If any BorrowerNotice relating to any prepayment is given, the amount specified in suchBorrower Notice shall be due and payable on the date specified therein,together with accrued Interest to the payment date on the amount prepaid andany Breakage Costs (including Hedge Breakage Costs) related thereto.  Any partial prepayment by the Borrower ofAdvances hereunder, other than with respect to Mandatory Prepayments, shall bein a minimum amount of $1,000,000 with integral multiples of $100,000  above such amount.  Any amount so prepaid may, subject to the terms and conditionshereof, be reborrowed during the Revolving Period.  A Borrower Notice relating to any such prepayment shall beirrevocable when delivered.

## ** **

## **Section 2.4**                                   PrincipalRepayments.

###  

### (a)                                  TheAdvances Outstanding shall be due and payable in accordance with Section 2.8on the Termination Date.  In addition,Advances Outstanding shall be repaid as and when necessary to cause theBorrowing Base Test to be met, in accordance with Section 2.8 (each suchpayment, a “*MandatoryPrepayment*”), and any amount so repaid may, subject to the terms andconditions hereof, be reborrowed hereunder during the Revolving Period.

###  

### (b)                                 Allrepayments of any Advance or any portion thereof shall be made together withpayment of (i) all Interest accrued and unpaid on the amount repaid to (butexcluding) the date of such repayment, (ii) any and all Breakage Costs, and(iii) all Hedge Breakage Costs and any other amounts payable by the Borrowerunder or with respect to any Hedging Agreement.

## ** **

## **Section 2.5**                                   The Notes.

###  

### (a)                                  TheAdvances made by the Lenders hereunder shall be evidenced by a duly executedpromissory note of the Borrower payable to each Managing Agent, on behalf ofthe applicable Lenders in the related Lender Group, in substantially the formof Exhibit B hereto (collectively, the “Notes”).  The Notes shall be dated the Closing Dateand shall be in a

 

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### maximum principal amount equal to the applicableLender Group’s Group Advance Limit, and shall otherwise be duly completed.

###  

### (b)                                 EachManaging Agent is hereby authorized to enter on a schedule attached to itsNotes the following notations (which may be computer generated) with respect toeach Advance made by each Lender in the applicable Lender Group:  (i) the date and principal amount thereofand (ii) each payment and repayment of principal thereof, and any suchrecordation shall constitute *prima facie*evidence of the accuracy of the information so recorded.  The failure of a Managing Agent to make anysuch notation on the schedule attached to the applicable Note shall not limitor otherwise affect the obligation of the Borrower to repay the Advances inaccordance with their respective terms as set forth herein.

## ** **

## **Section 2.6**                                   InterestPayments.

###  

### (a)                                  Interestshall accrue on each Advance during each Settlement Period at the applicableInterest Rate.  The Borrower shall payInterest on the unpaid principal amount of each Advance for the periodcommencing on and including the Funding Date of such Advance until butexcluding the date that such Advance shall be paid in full.  Interest shall accrue during each SettlementPeriod and be payable on the Advances Outstanding on each Payment Date, unlessearlier paid pursuant to (i) a prepayment in accordance with Section 2.3(b)or (ii) a repayment in accordance with Section 2.4(b).

###  

### (b)                                 EachManaging Agent shall determine (in accordance with information provided by therelevant CP Lender and/or Committed Lenders in the related Lender Group, asapplicable) its estimate of the Interest (including unpaid Interest, if any dueand payable on a prior Payment Date) to be paid to the Lenders in theapplicable Lender Group on each Payment Date for the related Settlement Periodand shall advise the Administrative Agent and the Servicer, on behalf of theBorrower, thereof three (3) Business Days prior to each Payment Date.  In the event that any Managing Agent’s, CPLender’s or Committed Lender’s, as applicable, estimate of the Interest payablefor a related Settlement Period is different from the actual amount of Interestfor such Settlement Period, the Managing Agent shall increase or decrease itsestimate of Interest for the next succeeding Settlement Period by the amount ofsuch difference, plus Interest thereon, if applicable.  Failure to set aside any amount so accruedshall not relieve the Borrower or the Servicer on behalf of the Borrower of itsobligation to remit or cause the Servicer to remit Collections to theAdministrative Agent with respect to such accrued amount as and to the extentprovided in Section 2.8.

###  

### (c)                                  Ifany Managing Agent, on behalf of the applicable Lenders, shall notify theAdministrative Agent that a Eurodollar Disruption Event as described in clause(a) of the definition of “Eurodollar Disruption Event” has occurred, theAdministrative Agent shall in turn so notify the Borrower, whereupon allAdvances in respect of which Interest accrues at the LIBO Rate shallimmediately be converted into Advances in respect of which Interest accrues atthe Base Rate.

###  

### (d)                                 Anythingin this Agreement or the other Transaction Documents to the contrarynotwithstanding, if at any time the rate of interest payable by any Personunder this Agreement and the Transaction Documents exceeds the highest rate ofinterest permissible under Applicable

 

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### Law (the “*MaximumLawful Rate*”), then, so long as the Maximum Lawful Rate would beexceeded, the rate of interest under this Agreement and the TransactionDocuments shall be equal to the Maximum Lawful Rate.  If at any time thereafter the rate of interest payable under thisAgreement and the Transaction Documents is less than the Maximum Lawful Rate,such Person shall continue to pay interest under this Agreement and theTransaction Documents at the Maximum Lawful Rate until such time as the totalinterest received from such Person is equal to the total interest that wouldhave been received had Applicable Law not limited the interest rate payableunder this Agreement and the Transaction Documents.  In no event shall the total interest received by a Lender underthis Agreement and the Transaction Documents exceed the amount that such Lendercould lawfully have received, had the interest due under this Agreement and theTransaction Documents been calculated since the Closing Date at the MaximumLawful Rate.

## ** **

## **Section 2.7**                                   Fees.

###  

### (a)                                  TheBorrower shall pay to the Administrative Agent from the Collection Account oneach Payment Date, monthly in arrears in accordance with Section 2.8,the Program Fee and Liquidity Commitment Fee.

###  

### (b)                                 TheBorrower shall pay to the Servicer from the Collection Account on each PaymentDate, monthly in arrears in accordance with Section 2.8, the ServicingFee.

###  

### (c)                                  TheBackup Servicer shall be entitled to receive from the Collection Account oneach Payment Date, monthly in arrears in accordance with Section 2.8,the Backup Servicing Fee.

###  

### (d)                                 TheCollateral Custodian shall be entitled to receive from the Collection Accounton each Payment Date, monthly in arrears in accordance with Section 2.8,the Collateral Custodian Fee.

###  

### (e)                                  TheBorrower shall pay to the Administrative Agent, on the Closing Date, thestructuring fee agreed to between the Borrower and the Administrative Agent(net of any amounts previously paid) in immediately available funds.

## ** **

## **Section 2.8**                                   SettlementProcedures.

 

On each Payment Date, theServicer on behalf of the Borrower shall pay for receipt by the applicableLender no later than 11:00 a.m. (New York City time) to the following Persons,from (i) the Collection Account, to the extent of available funds, (ii)Servicer Advances, and (iii) amounts received in respect of any Hedge Agreementduring such Settlement Period (the sum of such amounts described in clauses(i), (ii) and (iii) being the “*AvailableCollections*”) the following amounts in the following order ofpriority

#####  

##### (i)                                     FIRST,to each Hedge Counterparty, any amounts owing that Hedge Counterparty under itsrespective Hedging Agreement in respect of any Hedge Transaction(s), for thepayment thereof;

 

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##### (ii)                                  SECOND,to the Servicer, in an amount equal to any Unreimbursed Servicer Advances, forthe payment thereof;

#####  

##### (iii)                               THIRD, to theextent not paid by the Servicer, to the Backup Servicer and any SuccessorServicer, as applicable, in amount equal to any accrued and unpaid BackupServicing Fee and, if any, accrued and unpaid Transition Costs, Backup ServicerExpenses and Market Servicing Fee Differential, each for the payment thereof;

#####  

##### (iv)                              FOURTH,to the extent not paid by the Servicer, to the Collateral Custodian in anamount equal to any accrued and unpaid Collateral Custodian Fee and CollateralCustodian Expenses, if any, for the payment thereof;

#####  

##### (v)                                 FIFTH,to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees tothe end of the preceding Settlement Period, for the payment thereof;

#####  

##### (vi)                              SIXTH,to the Administrative Agent for payment to each Managing Agent, on behalf ofthe related Lenders, in an amount equal to any accrued and unpaid Interest,Program Fee and Liquidity Commitment Fee for such Payment Date;

#####  

##### (vii)                           SEVENTH, to theAdministrative Agent for payment to each Managing Agent, on behalf of therelated Lenders, an amount equal to the excess, if any, of Advances Outstandingover the lesser of (i) the Borrowing Base or (ii) the Facility Amount, togetherwith the amount of Breakage Costs incurred by the applicable Lenders inconnection with any such payment (as such Breakage Costs are notified to theBorrower by the applicable Lender(s));

#####  

##### (viii)                        EIGHTH, following theoccurrence of the Termination Date resulting from an Early Termination Event,to the Administrative Agent for ratable payment to each Managing Agent, onbehalf of the related Lenders, in an amount to reduce Advances Outstanding tozero and to pay any other Obligations in full;

#####  

##### (ix)                                NINTH,to the Administrative Agent for payment to each Managing Agent, on behalf ofthe related Lenders, in the amount of unpaid Breakage Costs (other thanBreakage Costs covered in clause (vii) above) with respect to any prepaymentsmade on such Payment Date, Increased Costs and/or Taxes (if any);

#####  

##### (x)                                   TENTH,to the Administrative Agent, all other amounts then due under this Agreement tothe Administrative Agent, the Lenders, the Affected Parties or IndemnifiedParties, each for the payment thereof; and

#####  

##### (xi)                                ELEVENTH,all remaining amounts to the Borrower.

 

## **Section 2.9**                                   Collectionsand Allocations.

###  

### (a)                                  TheBorrower or the Servicer on behalf of the Borrower shall promptly (but in noevent later than two (2) Business Days after the receipt thereof) identify anyCollections received by it as being on account of Interest Collections orPrincipal Collections and deposit all such Interest Collections or PrincipalCollections received directly by it into the Collection Account.

 

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### The Servicer on behalf of the Borrower shall make suchdeposits or payments on the date indicated by wire transfer, in immediatelyavailable funds.

###  

### (b)                                 Untilthe occurrence of an Early Termination Event, to the extent there areuninvested amounts deposited in the Collection Account, all amounts shall beinvested in Permitted Investments selected by the Servicer on behalf of theBorrower that mature no later than the Business Day immediately preceding thenext Payment Date; from and after the occurrence of an Early Termination Event,to the extent there are uninvested amounts deposited in the Collection Account,all amounts may be invested in Permitted Investments selected by theAdministrative Agent that mature no later than the next Business Day.  Any earnings (and losses) thereon shall befor the account of the Servicer on behalf of the Borrower.

## ** **

## **Section 2.10**                            Payments,Computations, Etc.

###  

### (a)                                  Unlessotherwise expressly provided herein, all amounts to be paid or deposited by theBorrower or the Servicer on behalf of the Borrower hereunder shall be paid ordeposited in accordance with the terms hereof no later than 10:00 a.m. (NewYork City time) on the day when due in lawful money of the United States inimmediately available funds to the Agent’s Account.  The Borrower shall, to the extent permitted by law, pay to theSecured Parties interest on all amounts not paid or deposited when duehereunder at 2.0% per annum above the Base Rate, payable on demand; provided,however, that such interest rate shall not at any time exceed theMaximum Lawful Rate.  All computationsof interest and all computations of the Interest Rate and other fees hereundershall be made on the basis of a year of 360 days for the actual number of days(including the first but excluding the last day) elapsed.

###  

### (b)                                 Wheneverany payment hereunder shall be stated to be due on a day other than a BusinessDay, such payment shall be made on the next succeeding Business Day, and suchextension of time shall in such case be included in the computation of paymentof Interest, other interest or any fee payable hereunder, as the case may be.

###  

### (c)                                  Allpayments hereunder shall be made without set-off or counterclaim and in suchamounts as may be necessary in order that all such payments shall not be lessthan the amounts otherwise specified to be paid under this Agreement (afterwithholding for or on account of any Taxes).

## ** **

## **Section 2.11**                            BreakageCosts.

 

The Borrower shall pay to the Administrative Agent forthe account of the applicable Managing Agent, on behalf of the related Lenders,upon the request of any Managing Agent, any Lender or the Administrative Agenton each Payment Date on which a prepayment is made, such amount or amounts asshall, without duplication, compensate the Lenders for any loss, cost or expense(the “*Breakage Costs*”) incurredby the Lenders (as reasonably determined by the applicable Lender) as a resultof any prepayment of an Advance (and interest thereon).  The determination by any Managing Agent, onbehalf of the related Lenders, of the amount of any such loss or expense shallbe set forth in a written notice to the Borrower delivered by the applicableLender prior to the date of such prepayment in the case where notice of suchprepayment is delivered to such Lender in accordance with Section 2.3(b)or within two (2)

 

32

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Business Days following such prepayment in the case where no suchnotice is delivered (in which case, Breakage Costs shall include interestthereon from the date of such prepayment) and shall be conclusive absentmanifest error.  No Breakage Costs shallbe payable to any CP Lender to the extent that (a) notice of such prepaymentshall have been delivered to such CP Lender in accordance with the provisionsof Section 2.3(b) or 7.7(c), (b) such prepayment is made on aPayment Date, and (c) such prepayment does not exceed the lesser of (i) 20% ofthe Advances made by such CP Lender and (ii) $20,000,000.

## ** **

## **Section 2.12**                            IncreasedCosts; Capital Adequacy; Illegality.

###  

### (a)                                  Ifafter the date hereof, any Managing Agent, Lender, Liquidity Bank or anyAffiliate thereof (each of which, an “*AffectedParty*”) shall be charged any fee, expense or increased cost onaccount of the adoption of any applicable law, rule or regulation (includingany applicable law, rule or regulation regarding capital adequacy), anyaccounting principles or any change in any of the foregoing, or any change inthe interpretation or administration thereof by any governmental authority, theFinancial Accounting Standards Board (“*FASB*”), any central bank or any comparableagency charged with the interpretation or administration thereof, or compliancewith any request or directive (whether or not having the force of law) of anysuch authority or agency (a “*Regulatory Change*”):  (i) that subjects any Affected Party to anycharge or withholding on or with respect to any Transaction Document or anAffected Party’s obligations under a Transaction Document, or on or withrespect to the Advances, or changes the basis of taxation of payments to anyAffected Party of any amounts payable under any Transaction Document (exceptfor changes in the rate of tax on the overall net income of an Affected Partyor taxes excluded by Section 2.13) or (ii) that imposes, modifies ordeems applicable any reserve, assessment, insurance charge, special deposit orsimilar requirement against assets of, deposits with or for the account of anAffected Party, or credit extended by an Affected Party pursuant to aTransaction Document or (iii) that imposes any other condition the result ofwhich is to increase the cost to an Affected Party of performing itsobligations under a Transaction Document, or to reduce the rate of return on anAffected Party’s capital as a consequence of its obligations under a TransactionDocument, or to reduce the amount of any sum received or receivable by anAffected Party under a Transaction Document or to require any paymentcalculated by reference to the amount of interests or loans held or interestreceived by it, then, upon demand by the applicable Managing Agent, Borrowershall pay to the Administrative Agent, for payment to the applicable ManagingAgent for the benefit of the relevant Affected Party, such amounts charged tosuch Affected Party or such amounts to otherwise compensate such Affected Partyfor such increased cost or such reduction. For the avoidance of doubt, if the issuance of FASB Interpretation No.46, or any other change in accounting standards or the issuance of any otherpronouncement, release or interpretation, causes or requires the consolidationof all or a portion of the assets and liabilities of Company or Borrower withthe assets and liabilities of any Affected Party, such event shall constitute acircumstance on which such Affected Party may base a claim for reimbursementunder this Section.

###  

### (b)                                 Ifas a result of any event or circumstance similar to those described in clause(a) of this Section 2.12, an Affected Party is required tocompensate a bank or other financial institution providing liquidity support,credit enhancement or other similar support to such Affected Party inconnection with this Agreement or the funding or maintenance of Advances

 

33

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### hereunder, then within ten days after demand by suchAffected Party, the Borrower shall pay to such Affected Party such additionalamount or amounts as may be necessary to reimburse such Affected Party for anysuch amounts paid by it.

###  

### (c)                                  Indetermining any amount provided for in this section, the Affected Party may useany reasonable averaging and attribution methods.  Any Affected Party making a claim under this section shall submitto the Borrower a certificate as to such additional or increased cost orreduction, which certificate shall calculate in reasonable detail any suchcharges and shall be conclusive absent demonstrable error.

## ** **

## **Section 2.13**                            Taxes.

###  

### (a)                                  Allpayments made by the Borrower in respect of any Advance and all payments madeby the Borrower under this Agreement will be made free and clear of and withoutdeduction or withholding for or on account of any Taxes, unless suchwithholding or deduction is required by law. In such event, the Borrower shall pay to the appropriate taxingauthority any such Taxes required to be deducted or withheld and the amountpayable to each Lender or the Administrative Agent (as the case may be) will beincreased (such increase, the “*AdditionalAmount*”) such that every net payment made under this Agreement afterdeduction or withholding for or on account of any Taxes (including, withoutlimitation, any Taxes on such increase) is not less than the amount that wouldhave been paid had no such deduction or withholding been deducted orwithheld.  The foregoing obligation to payAdditional Amounts, however, will not apply with respect to, and the term“Additional Amount” shall be deemed not to include net income or franchisetaxes imposed on a Lender, any Managing Agent or the Administrative Agent,respectively, with respect to payments required to be made by the Borrower orServicer on behalf of the Borrower under this Agreement, by a taxingjurisdiction in which such Lender, such Managing Agent or the AdministrativeAgent is organized, conducts business or is paying taxes as of the Closing Date(as the case may be).  If a Lender, anyManaging Agent or the Administrative Agent pays any Taxes in respect of whichthe Borrower is obligated to pay Additional Amounts under this Section2.13(a), the Borrower shall promptly reimburse such Lender orAdministrative Agent in full.

###  

### (b)                                 TheBorrower will indemnify each Lender, each Managing Agent and the AdministrativeAgent for the full amount of Taxes in respect of which the Borrower is requiredto pay Additional Amounts (including, without limitation, any Taxes imposed byany jurisdiction on such Additional Amounts) paid by such Lender, ManagingAgent or the Administrative Agent (as the case may be) and any liability(including penalties, interest and expenses) arising therefrom or with respectthereto; provided, however, that such Lender, Managing Agent orthe Administrative Agent, as appropriate, making a demand for indemnitypayment, shall provide the Borrower, at its address set forth under its name onthe signature pages hereof, with a certificate from the relevant taxing authorityor from a Responsible Officer of such Lender, Managing Agent or theAdministrative Agent stating or otherwise evidencing that such Lender, ManagingAgent or the Administrative Agent has made payment of such Taxes and willprovide a copy of or extract from documentation, if available, furnished bysuch taxing authority evidencing assertion or payment of such Taxes.  This indemnification shall be made withinten days from the date such Lender, Managing Agent or the Administrative Agent(as the case may be) makes written demand therefor.

 

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### (c)                                  Within30 days after the date of any payment by the Borrower of any Taxes, theBorrower will furnish to the Administrative Agent, the Managing Agent or theLender, as applicable, at its address set forth under its name on the signaturepages hereof, appropriate evidence of payment thereof.

###  

### (d)                                 Ifa Lender is not created or organized under the laws of the United States or apolitical subdivision thereof, such Lender shall, to the extent that it maythen do so under Applicable Laws, deliver to the Borrower with a copy to theAdministrative Agent (i) within 15 days after the date hereof, or, if later,the date on which such Lender becomes a Lender hereof two (or such other numberas may from time to time be prescribed by Applicable Laws) duly completedcopies of IRS Form W-8EC1 or Form W-8BEN for any successor forms or othercertificates or statements that may be required from time to time by therelevant United States taxing authorities or Applicable Laws), as appropriate,to permit the Borrower to make payments hereunder for the account of suchLender, as the case may be, without deduction or withholding of United Statesfederal income or similar Taxes and (ii) upon the obsolescence of or after theoccurrence of any event requiring a change in, any form or certificatepreviously delivered pursuant to this Section 2.13(d), two copies (orsuch other number as may from time to time be prescribed by Applicable Laws) ofsuch additional, amended or successor forms, certificates or statements as maybe required under Applicable Laws to permit the Borrower to make paymentshereunder for the account of such Lender, without deduction or withholding ofUnited States federal income or similar Taxes.

###  

### (e)                                  Forany period with respect to which a Lender has failed to provide the Borrowerwith the appropriate form, certificate or statement described in clause (d)of this section (other than if such failure is due to a change in law occurringafter the date of this Agreement), such Lender, as the case may be, shall notbe entitled to indemnification under clauses (a) or (b) of thissection with respect to any Taxes.

###  

### (f)                                    Within30 days of the written request of the Borrower therefor, the AdministrativeAgent, the Managing Agent or the Lender, as appropriate, shall execute anddeliver to the Borrower such certificates, forms or other documents that can befurnished consistent with the facts and that are reasonably necessary to assistthe Borrower in applying for refunds of Taxes remitted hereunder; provided,however, that the Administrative Agent, the Managing Agent and theLender shall not be required to deliver such certificates forms or otherdocuments if in their respective sole discretion it is determined that thedelivery of such certificate, form or other document would have a materialadverse effect on the Administrative Agent, the Managing Agent or the Lenderand providedfurther, however, that the Borrower shallreimburse the Administrative Agent, the Managing Agent or the Lender for anyreasonable expenses incurred in the delivery of such certificate, form or otherdocument.

###  

### (g)                                 If,in connection with an agreement or other document providing liquidity support,credit enhancement or other similar support to the Lenders in connection withthis Agreement or the funding or maintenance of Advances hereunder, the Lendersare required to compensate a bank or other financial institution in respect ofTaxes under circumstances similar to those described in this section thenwithin ten days after demand by the Lenders, the Borrower shall pay to theLenders such additional amount or amounts as may be necessary to reimburse theLenders for any amounts paid by them.

 

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# **ARTICLE III**

# ** **

# **CLOSING; CONDITIONS OFCLOSING AND ADVANCES**

## ** **

## **Section 3.1**                                   Conditionsto Closing and Initial Advances.

 

No Lender shall be obligated to make any Advancehereunder on the occasion of the initial Advance, nor shall any Lender, theAdministrative Agent or the Managing Agents be obligated to take, fulfill orperform any other action hereunder, until the following conditions have beensatisfied, in the sole discretion of, or waived in writing by, the ManagingAgents:

###  

### (a)                                  ThisAgreement and all other Transaction Documents and each Liquidity Agreement orcounterparts hereof or thereof shall have been duly executed by, and deliveredto, the parties hereto and thereto and the Administrative Agent shall havereceived such other documents, instruments, agreements and legal opinions asany Managing Agent shall reasonably request in connection with the transactionscontemplated by this Agreement, including all those listed in the Schedule ofDocuments, attached hereto as Schedule I, as due on the ClosingDate, each in form and substance satisfactory to the Administrative Agent.

###  

### (b)                                 TheBorrower shall have paid all fees required to be paid by it on the ClosingDate, including all fees required hereunder and under the Fee Letters to be paidas of such date, and shall have reimbursed each Lender and the AdministrativeAgent for all fees, costs and expenses of closing the transactions contemplatedhereunder and under the other Transaction Documents and each LiquidityAgreement, including the legal and other document preparation costs incurred byany Lender and/or the Administrative Agent.

###  

### (c)                                  EachCP Lender whose commercial paper is being rated by one or more Rating Agencyshall have received, to the extent required under the terms of such CP Lender’sprogram documents, the written confirmation of each such Rating Agency that theexecution and delivery of this Agreement will not result in a withdrawal ordowngrading of the then-current rating of such commercial paper by such RatingAgency.

###  

### (d)                                 TheRequired Equity Contribution shall have been made.

 

The Administrative Agent shall promptly notify eachLender of the satisfaction or waiver of the conditions set forth above.

## ** **

## **Section 3.2**                                   ConditionsPrecedent to All Advances.

 

Each Advance (includingthe Initial Advance) shall be subject to the further conditions precedent that:

###  

### (a)                                  Onthe related Funding Date, the Borrower or the Servicer, as the case may be,shall have certified in the related Borrower Notice that:

 

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##### (i)                                     Therepresentations and warranties set forth in Sections 4.1 and 7.7are true and correct on and as of such date, before and after giving effect tosuch borrowing and to the application of the proceeds therefrom, as though madeon and as of such date; and

#####  

##### (ii)                                  Noevent has occurred, or would result from such Advance or from the applicationof the proceeds therefrom, that constitutes an Early Termination Event.

###  

### (b)                                 TheTermination Date shall not have occurred;

###  

### (c)                                  Beforeand after giving effect to such borrowing and to the application of proceedstherefrom the Borrowing Base Test shall be satisfied, as calculated on suchdate;

###  

### (d)                                 Noclaim has been asserted or proceeding commenced challenging enforceability orvalidity of any of the Loan Documents, excluding any instruments, certificatesor other documents relating to Loans that were the subject of prior Advances;

###  

### (e)                                  Thereshall have been no Material Adverse Change with respect to the Borrower or theServicer since the preceding Advance; and

###  

### (f)                                    TheServicer and Borrower shall have taken such other action, including delivery ofapprovals, consents, opinions, documents, and instruments to the ManagingAgents as each may reasonably request.

# ** **

# **ARTICLE IV**

# ** **

# **REPRESENTATIONS AND WARRANTIES**

## ** **

## **Section 4.1**                                   Representationsand Warranties of the Borrower.

 

The Borrower represents and warrants as follows:

###  

### (a)                                  Organizationand Good Standing.  The Borrower isa Delaware limited liability company duly organized, validly existing, and ingood standing under the laws of the jurisdiction of its formation, and has fullpower, authority and legal right to own or lease its properties and conduct itsbusiness as such business is presently conducted.

###  

### (b)                                 DueQualification.  The Borrower isqualified to do business as a limited liability company, is in good standing,and has obtained all licenses and approvals as required under the laws of alljurisdictions in which the ownership or lease of its property and or theconduct of its business (other than the performance of its obligationshereunder) requires such qualification, standing, license or approval, exceptto the extent that the failure to so qualify, maintain such standing or be solicensed or approved would not have an adverse effect on the interests of theLenders.  The Borrower is qualified todo business as a limited liability company, is in good standing, and hasobtained all licenses and approvals as required under the laws of all states inwhich the performance of its obligations pursuant to this Agreement requiressuch qualification, standing, license or approval and where the failure toqualify or obtain such license or approval would have material adverse effecton its ability to perform hereunder.

 

37

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### (c)                                  DueAuthorization.  The execution anddelivery of this Agreement and each Transaction Document to which the Borroweris a party and the consummation of the transactions provided for herein andtherein have been duly authorized by the Borrower by all necessary action onthe part of the Borrower.

###  

### (d)                                 NoConflict.  The execution anddelivery of this Agreement and each Transaction Document to which the Borroweris a party, the performance by the Borrower of the transactions contemplatedhereby and thereby and the fulfillment of the terms hereof and thereof will notconflict with or result in any breach of any of the terms and provisions of,and will not constitute (with or without notice or lapse of time or both) adefault under, the Borrower’s limited liability company agreement or anymaterial Contractual Obligation of the Borrower.

###  

### (e)                                  NoViolation.  The execution anddelivery of this Agreement and each Transaction Document to which the Borroweris a party, the performance of the transactions contemplated hereby and therebyand the fulfillment of the terms hereof and thereof will not conflict with orviolate, in any material respect, any Applicable Law.

###  

### (f)                                    NoProceedings.  There are noproceedings or investigations pending or, to the best knowledge of theBorrower, threatened against the Borrower, before any Governmental Authority(i) asserting the invalidity of this Agreement or any Transaction Document towhich the Borrower is a party, (ii) seeking to prevent the consummation of anyof the transactions contemplated by this Agreement or any Transaction Documentto which the Borrower is a party or (iii) seeking any determination or rulingthat could reasonably be expected to have a Material Adverse Effect.

###  

### (g)                                 AllConsents Required.  All materialapprovals, authorizations, consents, orders or other actions of any Person orof any Governmental Authority (if any) required in connection with the dueexecution, delivery and performance by the Borrower of this Agreement and anyTransaction Document to which the Borrower is a party, have been obtained.

###  

### (h)                                 ReportsAccurate.  All Monthly Reports (ifprepared by the Borrower, or to the extent that information contained thereinis supplied by the Borrower), information, exhibit, financial statement, document,book, record or report furnished or to be furnished by the Borrower to theAdministrative Agent or a Lender in connection with this Agreement are true,complete and accurate in all material respects.

###  

### (i)                                     Solvency.  The transactions contemplated under thisAgreement and each Transaction Document to which the Borrower is a party do notand will not render the Borrower not Solvent.

###  

### (j)                                     SelectionProcedures.  No procedures believedby the Borrower to be materially adverse to the interests of the SecuredParties were utilized by the Borrower in identifying and/or selecting the Loansthat are part of the Collateral.

###  

### (k)                                  Taxes.  The Borrower has filed or caused to be filedall Tax returns required to be filed by it. The Borrower has paid all Taxes and all assessments made against it orany of its property (other than any amount of Tax the validity of which iscurrently being contested in good faith by appropriate proceedings and withrespect to which reserves in accordance with GAAP

 

38

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### have been provided on the books of the Borrower), andno Tax lien has been filed and, to the Borrower’s knowledge, no claim is beingasserted, with respect to any such Tax, fee or other charge.

###  

### (l)                                     AgreementsEnforceable.  This Agreement andeach Transaction Document to which the Borrower is a party constitute thelegal, valid and binding obligation of the Borrower enforceable against theBorrower in accordance with their respective terms, except as suchenforceability may be limited by Insolvency Laws and except as suchenforceability may be limited by general principles of equity (whetherconsidered in a suit at law or in equity).

###  

### (m)                               NoLiens.  The Collateral is owned bythe Borrower free and clear of any Liens except for Permitted Liens as providedherein, and the Administrative Agent, as agent for the Secured Parties, has avalid and perfected first priority security interest in the Collateral thenexisting or thereafter arising, free and clear of any Liens except for PermittedLiens.  No effective financing statementor other instrument similar in effect covering any Collateral is on file in anyrecording office except such as may be filed in favor of the AdministrativeAgent relating to this Agreement or reflecting the transfer of the Collateralfrom the Originator to the Borrower.

###  

### (n)                                 SecurityInterest.  The Borrower has granteda security interest (as defined in the UCC) to the Administrative Agent, asagent for the Secured Parties, in the Collateral, which is enforceable inaccordance with Applicable Law.  Allfilings (including, without limitation, such UCC filings) as are necessary inany jurisdiction to perfect the interest of the Administrative Agent as agentfor the Secured Parties, in the Collateral have been made.

###  

### (o)                                 Locationof Offices.  The Borrower’sjurisdiction of organization, principal place of business and chief executiveoffice and the office where the Borrower keeps all the Records is located atthe address of the Borrower referred to in Section 12.2 hereof (or atsuch other locations as to which the notice and other requirements specified inSection 5.1(m) shall have been satisfied).

###  

### (p)                                 Tradenames.  The Borrower has no trade names, fictitiousnames, assumed names or “doing business as” names or other names under which ithas done or is doing business.

###  

### (q)                                 PurchaseAgreement.  The Purchase Agreementis the only agreement pursuant to which the Borrower acquires Collateral (otherthan the Hedge Collateral).

###  

### (r)                                    ValueGiven.  The Borrower gave reasonablyequivalent value to the Originator in consideration for the transfer to theBorrower of the Transferred Loans under the Purchase Agreement, no suchtransfer was made for or on account of an antecedent debt owed by theOriginator to the Borrower, and no such transfer is voidable or subject toavoidance under any Insolvency Law.

###  

### (s)                                  Accounting.  The Borrower accounts for the transfers toit from the Originator of interests in the Loans under the Purchase Agreementas sales of such Loans in its books, records and financial statements, in eachcase consistent with GAAP.

 

39

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### (t)                                    SeparateEntity.  The Borrower is operated asan entity with assets and liabilities distinct from those of the Originator andany Affiliates thereof (other than the Borrower), and the Borrower herebyacknowledges that the Administrative Agent and the Lenders are entering intothe transactions contemplated by this Agreement in reliance upon the Borrower’sidentity as a separate legal entity from the Originator and from each suchother Affiliate of the Originator.

###  

### (u)                                 Investments.  Except for Supplemental Interests orSupplemental Interests that convert into an equity interest in any Person, theBorrower does not own or hold directly or indirectly, any capital stock orequity security of, or any equity interest in, any Person.

###  

### (v)                                 Business.  Since its formation, the Borrower hasconducted no business other than the purchase and receipt of Loans and RelatedProperty from the Originator under the Purchase Agreement, the borrowing offunds under this Agreement and such other activities as are incidental to theforegoing.

###  

### (w)                               ERISA.  The Borrower is in compliance with ERISA andhas not incurred and does not expect to incur any liabilities (except forpremium payments arising in the ordinary course of business) payable to thePension Benefit Guaranty Corporation under ERISA.

###  

### (x)                                   InvestmentCompany Act.

#####  

##### (i)                                     TheBorrower represents and warrants that the Borrower is exempt and will remainexempt from registration as an “investment company” within the meaning of theInvestment Company Act of 1940, as amended (the “*1940 Act*”).

#####  

##### (ii)                                  Thebusiness and other activities of the Borrower, including but not limited to,the making of the Advances by the Lenders, the application of the proceeds andrepayment thereof by the Borrower and the consummation of the transactionscontemplated by the Transaction Documents to which the Borrower is a party donot now and will not at any time result in any violations, with respect to theBorrower, of the provisions of the 1940 Act or any rules, regulations or ordersissued by the SEC thereunder.

###  

### (y)                                 GovernmentRegulations.  The Borrower is notengaged in the business of extending credit for the purpose of “purchasing” or“carrying” any “margin security,” as such terms are defined in Regulation U ofthe Federal Reserve Board as now and from time to time hereafter in effect(such securities being referred to herein as “*MarginStock*”).  The Borrower ownsno Margin Stock, and no portion of the proceeds of any Advance hereunder willbe used, directly or indirectly, for the purpose of purchasing or carrying anyMargin Stock, for the purpose of reducing or retiring any Indebtedness that wasoriginally incurred to purchase or carry any Margin Stock or for any otherpurpose that might cause any portion of such proceeds to be considered a“purpose credit” within the meaning of Regulation T, U or X of the FederalReserve Board.  The Borrower will nottake or permit to be taken any action that might cause any Related Document toviolate any regulation of the Federal Reserve Board.

###  

### (z)                                   Eligibilityof Loans.  As of the Closing Date,(i) the Loan List and the information contained in the Borrower Noticedelivered pursuant to Sections 2.1 and 2.2 is an accurate andcomplete listing in all material respects of all the Loans that are part of theCollateral as of the

 

40

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### Closing Date, and the information contained thereinwith respect to the identity of such Loans and the amounts owing thereunder istrue and correct in all material respects as of such date and (ii) each suchLoan is an Eligible Loan.  On eachFunding Date, the Borrower shall be deemed to represent and warrant that anyadditional Loan referenced on the related Borrower Notice delivered pursuant toSections 2.1 and 2.2 is an Eligible Loan.

# ** **

# **ARTICLE V**

# ** **

# **GENERAL COVENANTS OF THEBORROWER**

 

## **Section 5.1**                                   Covenants ofthe Borrower.

 

The Borrower hereby covenants that:

 

(a)                                  Compliancewith Laws.  The Borrower will complyin all material respects with all Applicable Laws, including those with respectto the Loans in the Collateral and any Related Property.

 

(b)                                 Preservationof Corporate Existence.  TheBorrower will preserve and maintain its existence, rights, franchises andprivileges in the jurisdiction of its formation, and qualify and remainqualified in good standing in each jurisdiction where the failure to maintainsuch existence, rights, franchises, privileges and qualification has had, orcould reasonably be expected to have, a Material Adverse Effect.

 

(c)                                  SecurityInterests.  Except as contemplatedin this Agreement, the Borrower will not sell, pledge, assign or transfer toany other Person, or grant, create, incur, assume or suffer to exist any Lienon any Loan or Related Property that is part of the Collateral, whether nowexisting or hereafter transferred hereunder, or any interest therein.  The Borrower will promptly notify theAdministrative Agent of the existence of any Lien on any Loan or RelatedProperty that is part of the Collateral and the Borrower shall defend theright, title and interest of the Administrative Agent as agent for the SecuredParties in, to and under any Loan and the Related Property that is part of the Collateral,against all claims of third parties; provided, however, thatnothing in this Section 5.1(c) shall prevent or be deemed to prohibitthe Borrower from suffering to exist Permitted Liens upon any Loan or anyRelated Property that is part of the Collateral.

 

(d)                                 Deliveryof Collections.  The Borrower agreesto cause the delivery to the Servicer promptly (but in no event later than two(2) Business Days after receipt) all Collections (including any DeemedCollections) received by Borrower in respect of the Loans that are part of theCollateral.

 

(e)                                  Activitiesof Borrower.  The Borrower shall notengage in any business or activity of any kind, or enter into any transactionor indenture, mortgage, instrument, agreement, contract, Loan or otherundertaking, which is not incidental to the transactions contemplated andauthorized by this Agreement or the Purchase Agreement.

 

(f)                                    Indebtedness.  The Borrower shall not create, incur, assumeor suffer to exist any Indebtedness or other liability whatsoever, except (i)obligations incurred under this Agreement,

 

41

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under any Hedging Agreement required by Section 5.2(a), or thePurchase Agreement, or (ii) liabilities incident to the maintenance of itsexistence in good standing.

 

(g)                                 Guarantees.  The Borrower shall not become or remainliable, directly or indirectly, in connection with any Indebtedness or otherliability of any other Person, whether by guarantee, endorsement (other thanendorsements of negotiable instruments for deposit or collection in theordinary course of business), agreement to purchase or repurchase, agreement tosupply or advance funds, or otherwise.

 

(h)                                 Investments.  The Borrower shall not make or suffer toexist any loans or advances to, or extend any credit to, or make anyinvestments (by way of transfer of property, contributions to capital, purchaseof stock or securities or evidences of indebtedness, acquisition of thebusiness or assets, or otherwise) in, any Person except for purchases of Loansand Supplemental Interests pursuant to the Purchase Agreement, or forinvestments in Permitted Investments in accordance with the terms of thisAgreement.

### (i)                                     Merger;Sales.  The Borrower shall not enterinto any transaction of merger or consolidation, or liquidate or dissolveitself (or suffer any liquidation or dissolution), or acquire or be acquired byany Person, or convey, sell, loan or otherwise dispose of all or substantiallyall of its property or business, except as provided for in this Agreement.

###  

### (j)                                     Distributions.  The Borrower may not declare or pay or make,directly or indirectly, any distribution (whether in cash or other property)with respect to any Person’s equity interest in the Borrower (collectively, a “*Distribution*”); provided, however,if no Early Termination Event has occurred or will occur as a result thereof,the Borrower may make Distributions.

###  

### (k)                                  Agreements.  The Borrower shall not amend or modify (i)the provisions of its limited liability company agreement or (ii) the PurchaseAgreement without the consent of the Administrative Agent and prior writtennotice to each Managing Agent and Concord, or issue any power of attorneyexcept to the Administrative Agent or the Servicer.

###  

### (l)                                     SeparateExistence.  The Borrower shall:

#####  

##### (i)                                     Maintainits own deposit account or accounts, separate from those of any Affiliate, withcommercial banking institutions.  Thefunds of the Borrower will not be diverted to any other Person or for otherthan corporate uses of the Borrower.

#####  

##### (ii)                                  Ensurethat, to the extent that it shares the same persons as officers or otheremployees as any of its Affiliates, the salaries of and the expenses related toproviding benefits to such officers or employees shall be fairly allocatedamong such entities, and each such entity shall bear its fair share of thesalary and benefit costs associated with all such common officers andemployees.

#####  

##### (iii)                               Ensure that, to theextent that it jointly contracts with any of its Affiliates to do business withvendors or service providers or to share overhead expenses, the costs incurredin so doing shall be allocated fairly among such entities, and each such entityshall bear its fair share of such costs. To the extent that the Borrower contracts or does

 

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##### business withvendors or service providers when the goods and services provided are partiallyfor the benefit of any other Person, the costs incurred in so doing shall befairly allocated to or among such entities for whose benefit the goods andservices are provided, and each such entity shall bear its fair share of suchcosts.  All material transactionsbetween Borrower and any of its Affiliates shall be only on an arm’s lengthbasis.

#####  

##### (iv)                              Maintaina principal executive and administrative office through which its business isconducted separate from those of its Affiliates.  To the extent that Borrower and any of its Affiliates haveoffices in the same location, there shall be a fair and appropriate allocationof overhead costs among them, and each such entity shall bear its fair share ofsuch expenses.

#####  

##### (v)                                 Conductits affairs strictly in accordance with its limited liability company agreementand observe all necessary, appropriate and customary legal formalities,including, but not limited to, holding all regular and special director’smeetings appropriate to authorize all action, keeping separate and accuraterecords of such meetings, passing all resolutions or consents necessary toauthorize actions taken or to be taken, and maintaining accurate and separatebooks, records and accounts, including, but not limited to, payroll andtransaction accounts.

#####  

##### (vi)                              Takeor refrain from taking, as applicable, each of the activities specified orassumed in the “non-consolidation” opinion of Williams Mullen delivered on theClosing Date, upon which the conclusions expressed therein are based.

#####  

##### (vii)                           Maintain the effectivenessof, and continue to perform under the Purchase Agreement and the PerformanceGuaranty, such that it does not amend, restate, supplement, cancel, terminateor otherwise modify the Purchase Agreement or the Performance Guaranty, or giveany consent, waiver, directive or approval thereunder or waive any default,action, omission or breach under the Purchase Agreement or the PerformanceGuaranty or otherwise grant any indulgence thereunder, without (in each case)the prior written consent of the Administrative Agent and each Managing Agentand notice to Concord.

###  

### (m)                               Changeof Name or Jurisdiction of Borrower; Records.    TheBorrower (x) shall not change its name or jurisdiction of organization, without30 days’ prior written notice to the Administrative Agent and (y) shall notmove, or consent to the Servicer or Collateral Custodian moving, the LoanDocuments without 30 days’ prior written notice to the Administrative Agent and(z) will promptly take all actions required of each relevant jurisdiction inorder to continue the first priority perfected security interest of theAdministrative Agent as agent for the Secured Parties (except for PermittedLiens) in all Collateral, and such other actions as the Administrative Agentmay reasonably request, including but not limited to delivery of an Opinion ofCounsel.

###  

### (n)                                 ERISAMatters.  The Borrower will not (a)engage or permit any ERISA Affiliate to engage in any prohibited transactionfor which an exemption is not available or has not previously been obtainedfrom the United States Department of Labor; (b) permit to exist any accumulatedfunding deficiency, as defined in Section 302(a) of ERISA and Section 412(a) ofthe Code, or funding deficiency with respect to any Benefit Plan other than aMultiemployer

 

43

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### Plan; (c) fail to make any payments to a MultiemployerPlan that the Borrower or any ERISA Affiliate may be required to make under theagreement relating to such Multiemployer Plan or any law pertaining thereto;(d) terminate any Benefit Plan so as to result in any liability; or (e) permitto exist any occurrence of any reportable event described in Title IV of ERISA.

###  

### (o)                                 OriginatorCollateral.  With respect to eachitem of Collateral acquired by the Borrower, the Borrower will (i) acquire suchCollateral pursuant to and in accordance with the terms of the PurchaseAgreement, (ii) take all action necessary to perfect, protect and more fullyevidence the Borrower’s ownership of such Collateral, including, withoutlimitation, (A) filing and maintaining, effective financing statements (FormUCC-1) naming the Originator as seller/debtor and the Borrower aspurchaser/creditor in all necessary or appropriate filing offices, and filingcontinuation statements, amendments or assignments with respect thereto in suchfiling offices and (B) executing or causing to be executed such otherinstruments or notices as may be necessary or appropriate, including, withoutlimitation, Assignments of Mortgage, and (iii) take all additional action thatthe Administrative Agent may reasonably request to perfect, protect and morefully evidence the respective interests of the parties to this Agreement in theCollateral.

###  

### (p)                                 Transactionswith Affiliates.  The Borrower willnot enter into, or be a party to, any transaction with any of its Affiliates,except (i) the transactions permitted or contemplated by this Agreement, thePurchase Agreement and any Hedging Agreements and (ii) other transactions(including, without limitation, transactions related to the use of office spaceor computer equipment or software by the Borrower to or from an Affiliate) (A)in the ordinary course of business, (B) pursuant to the reasonable requirementsof the Borrower’s business, (C) upon fair and reasonable terms that are no lessfavorable to the Borrower than could be obtained in a comparable arm’s-lengthtransaction with a Person not an Affiliate of the Borrower, and (D) notinconsistent with the factual assumptions set forth in the “non-consolidation”legal opinion letter issued by Williams Mullen and delivered to theAdministrative Agent as a condition to the initial Advance, as such assumptionsmay be modified in any subsequent opinion letters delivered to theAdministrative Agent pursuant to Section 3.2 or otherwise.  It is understood that any compensationarrangement for any officer or employee shall be permitted under clause(ii)(A) through (C) above if such arrangement has been expresslyapproved by the managers of the Borrower in accordance with the Borrower’slimited liability company agreement.

###  

### (q)                                 Changein the Transaction Documents.  TheBorrower will not amend, modify, waive or terminate any terms or conditions ofany of the Transaction Documents to which it is a party, without the priorwritten consent of Administrative Agent.

###  

### (r)                                    Creditand Collection Policy.  The Borrowerwill (a) comply in all material respects with the Credit and Collection Policyin regard to each Loan and the Related Property included in the Collateral, and(b) furnish to the Administrative Agent and each Managing Agent, at least 20days prior to its proposed effective date, prompt notice of any materialchanges in the Credit and Collection Policy. The Borrower will not agree or otherwise permit to occur any materialchange in the Credit and Collection Policy, which change would impair thecollectibility of any Loan or otherwise adversely affect the interests orremedies of the Administrative Agent or the Secured Parties under thisAgreement or any other Transaction Document, without the prior written consentof the Administrative Agent (in its sole discretion).

 

44

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### (s)                                  Extensionor Amendment of Loans.   The Borrower will not, except asotherwise permitted in Section 7.4(a) extend, amend or otherwise modify,or permit the Servicer on its behalf to extend, amend or otherwise modify, theterms of any Loan.

###  

### (t)                                    Reporting.     TheBorrower will furnish to the Administrative Agent, each Managing Agent andConcord:

#####  

##### (i)                                     assoon as possible and in any event within two (2) Business Days after theoccurrence of each Early Termination Event and each Unmatured TerminationEvent, a written statement, signed by a Responsible Officer, setting forth thedetails of such event and the action that the Borrower proposes to take withrespect thereto;

#####  

##### (ii)                                  promptlyupon request, such other information, documents, records or reports respectingthe Transferred Loans or the condition or operations, financial or otherwise,of the Borrower or Originator as the Administrative Agent may from time to timereasonably request in order to protect the interests of the AdministrativeAgent or the Secured Parties under or as contemplated by this Agreement; and

#####  

##### (iii)                               promptly, but in noevent later than two (2) Business Days after its receipt thereof, copies of anyand all notices, certificates, documents, or reports delivered to it by theOriginator under the Purchase Agreement.

## ** **

## **Section 5.2**                                   HedgingAgreement.

###  

### (a)                                  TheBorrower shall, on or before the initial Advance hereunder, enter into a HedgeTransaction with a Hedge Counterparty, which shall: (i) be in the form of aninterest rate cap having a notional amount equal to (A) prior to theTermination Date, the Required Notional Amount and (B) thereafter, an amountreflecting amortization at a rate to be agreed upon between the Borrower andthe Administrative Agent and (ii) shall provide for payments to the Borrower tothe extent that the LIBO Rate shall exceed a rate agreed upon between theAdministrative Agent and the Borrower.

###  

### (b)                                 Asadditional security hereunder, the Borrower hereby assigns to theAdministrative Agent, as agent for the Secured Parties, all right, title andinterest of the Borrower in each Hedging Agreement, each Hedge Transaction, andall present and future amounts payable by a Hedge Counterparty to the Borrowerunder or in connection with the respective Hedging Agreement and HedgeTransaction(s) with that Hedge Counterparty (“*HedgeCollateral*”), and grants a security interest to the AdministrativeAgent, as agent for the Secured Parties, in the Hedge Collateral.  The Borrower acknowledges that, as a resultof that assignment, the Borrower may not, without the prior written consent ofthe Administrative Agent, exercise any rights under any Hedging Agreement orHedge Transaction, except for the Borrower’s right under any Hedging Agreementto enter into Hedge Transactions in order to meet the Borrower’s obligationsunder Section 5.2(a) hereof. Nothing herein shall have the effect of releasing the Borrower from anyof its obligations under any Hedging Agreement or any Hedge Transaction, nor beconstrued as requiring the consent of the Administrative Agent or any SecuredParty for the performance by the Borrower of any such obligations.

 

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**ARTICLEVI**

 

**SECURITYINTEREST**

 

## **Section 6.1**                                   SecurityInterest.

###  

As collateral securityfor the prompt, complete and indefeasible payment and performance in full whendue, whether by lapse of time, acceleration or otherwise, of the Obligations,the Borrower hereby assigns, pledges and grants to the Administrative Agent, asagent for the Secured Parties, a lien on and security interest in all of theBorrower’s right, title and interest in, to and under (but none of itsobligations under) the Collateral, whether now existing or owned or hereafterarising or acquired by the Borrower, and wherever located.  The assignment under this Section 6.1does not constitute and is not intended to result in a creation or anassumption by the Administrative Agent, the Managing Agents or any of theSecured Parties of any obligation of the Borrower or any other Person inconnection with any or all of the Collateral or under any agreement orinstrument relating thereto.  Anythingherein to the contrary notwithstanding, (a) the Borrower shall remain liableunder the Transferred Loans to the extent set forth therein to perform all ofits duties and obligations thereunder to the same extent as if this Agreementhad not been executed, (b) the exercise by the Administrative Agent, as agentfor the Secured Parties, of any of its rights in the Collateral shall notrelease the Borrower from any of its duties or obligations under theCollateral, and (c) none of the Administrative Agent, the Managing Agents orany Secured Party shall have any obligations or liability under the Collateralby reason of this Agreement, nor shall the Administrative Agent, the ManagingAgents or any Secured Party be obligated to perform any of the obligations orduties of the Borrower thereunder or to take any action to collect or enforceany claim for payment assigned hereunder.

 

## **Section 6.2**                                   Remedies.

###  

The Administrative Agent(for itself and on behalf of the other Secured Parties) shall have all of therights and remedies of a secured party under the UCC and other ApplicableLaw.  Upon the occurrence and during thecontinuance of an Early Termination Event, the Administrative Agent or itsdesignees may (i) deliver a notice of exclusive control to the CollateralCustodian; (ii) instruct the Collateral Custodian to deliver any or all of theCollateral to the Administrative Agent or its designees and otherwise give allinstructions and entitlement orders to the Collateral Custodian regarding theCollateral; (iii) require that the Borrower or the Collateral Custodianimmediately take action to liquidate the Collateral to pay amounts due andpayable in respect of the Obligations; (iv) sell or otherwise dispose of theCollateral in a commercially reasonable manner, all without judicial process orproceedings; (v) take control of the Proceeds of any such Collateral; (vi)exercise any consensual or voting rights in respect of the Collateral; (vii)release, make extensions, discharges, exchanges or substitutions for, orsurrender all or any part of the Collateral; (viii) enforce the Borrower’srights and remedies under the Custody Agreement with respect to the Collateral;(ix) institute and prosecute legal and equitable proceedings to enforcecollection of, or realize upon, any of the Collateral; (x) remove from theBorrower’s, the Servicer’s, the Collateral Custodian’s and their respectiveagents’ place of business all books, records and documents relating to theCollateral; and/or (xi) endorse the name of the Borrower upon any items ofpayment relating to the Collateral or upon any proof of

 

46

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claim in bankruptcyagainst an account debtor.  For purposesof taking the actions described in subsections (i) through (xi)of this Section 6.2 the Borrower hereby irrevocably appoints theAdministrative Agent as its attorney-in-fact (which appointment being coupledwith an interest is irrevocable while any of the Obligations remain unpaid),with power of substitution, in the name of the Administrative Agent or in thename of the Borrower or otherwise, for the use and benefit of theAdministrative Agent, but at the cost and expense of the Borrower and withoutnotice to the Borrower; provided that the Administrative Agent hereby agrees toexercise such power only so long as an Early Termination Event shall becontinuing.

 

## **Section 6.3**                                   Release ofLiens.

###  

### (a)                                  If(i) the Borrowing Base Test is met, and (ii) no Early Termination Event orUnmatured Termination Event has occurred and is continuing, at the same time asany Loan that is part of the Collateral expires by its terms and all amounts inrespect thereof have been paid by the related Obligor and deposited in theCollection Account, the Administrative Agent as agent for the Secured Partieswill, to the extent requested by the Borrower or the Servicer on behalf of theBorrower, release its interest in such Loan and any Supplemental Interestsrelated thereto.  In connection with anysuch release on or after the occurrence of the above, the Administrative Agent,as agent for the Secured Parties, will execute and deliver to the Borrower orthe Servicer on behalf of the Borrower any termination statements and any otherreleases and instruments as the Borrower or the Servicer on behalf of theBorrower may reasonably request in order to effect the release of such Loan andSupplemental Interest; provided, that, the Administrative Agentas agent for the Secured Parties will make no representation or warranty,express or implied, with respect to any such Loan or Supplemental Interest inconnection with such sale or transfer and assignment.

####  

### (b)                                 Uponreceipt by the Administrative Agent of the proceeds of a repurchase of anIneligible Loan (as such term is defined in the Purchase Agreement) by theOriginator pursuant to the terms of Section 6.1 of the Purchase Agreement, theAdministrative Agent, as agent for the Secured Parties, shall be deemed to haveautomatically released its interest in such Ineligible Loan and anySupplemental Interests related thereto without any further action on itspart.  In connection with any suchrelease on or after the occurrence of such repurchase, the AdministrativeAgent, as agent for the Secured Parties, will execute and deliver to theBorrower or the Servicer on behalf of the Borrower any releases and instrumentsas the Borrower or the Servicer on behalf of the Borrower may reasonably requestin order to effect the release of such Ineligible Loan and SupplementalInterest.

####  

### (c)                                  Uponreceipt by the Administrative Agent of the proceeds of a purchase of aTransferred Loan by the Servicer pursuant to the terms of Section 7.7,the Administrative Agent, as agent for the Secured Parties, shall be deemed tohave automatically released its interest in such Transferred Loan and anySupplemental Interests related thereto without any further action on itspart.  In connection with any suchrelease on or after the occurrence of such purchase, the Administrative Agent,as agent for the Secured Parties, will execute and deliver to the Borrower orthe Servicer on behalf of the Borrower any releases and instruments as theBorrower or the Servicer on behalf of the Borrower may reasonably request inorder to effect the release of such Transferred Loan and Supplemental Interest.

######  

###### 47

###### 

######  

## **Section 6.4**                                   Assignmentof the Purchase Agreement.

###  

The Borrower herebyrepresents, warrants and confirms to the Administrative Agent that the Borrowerhas assigned to the Administrative Agent, for the ratable benefit of theSecured Parties hereunder, all of the Borrower’s right and title to andinterest in the Purchase Agreement.  TheBorrower confirms that following an Early Termination Event the AdministrativeAgent shall have the sole right to enforce the Borrower’s rights and remediesunder the Purchase Agreement for the benefit of the Secured Parties, butwithout any obligation on the part of the Administrative Agent, the SecuredParties or any of their respective Affiliates to perform any of the obligationsof the Borrower under the Purchase Agreement. The Borrower further confirms and agrees that such assignment to theAdministrative Agent shall terminate upon the Collection Date; provided,however, that the rights of the Administrative Agent and the SecuredParties pursuant to such assignment with respect to rights and remedies inconnection with any indemnities and any breach of any representation, warrantyor covenants made by the Originator pursuant to the Purchase Agreement, whichrights and remedies survive the Termination of the Purchase Agreement, shall becontinuing and shall survive any termination of such assignment.

 

# **ARTICLE VII**

# ** **

# **ADMINISTRATION AND SERVICING OF LOANS**

## ** **

## **Section 7.1**                                   Appointmentof the Servicer.

###  

The Borrower herebyappoints the Servicer to service the Transferred Loans and enforce itsrespective rights and interests in and under each Transferred Loan in accordancewith the terms and conditions of this Article VII and to serve in suchcapacity until the termination of its responsibilities pursuant to Section7.18.  The Servicer hereby agrees toperform the duties and obligations with respect thereto set forth herein.  The Servicer and the Borrower herebyacknowledge that the Administrative Agent and the Secured Parties are thirdparty beneficiaries of the obligations undertaken by the Servicer hereunder.

 

## **Section 7.2**                                   Duties andResponsibilities of the Servicer.

###  

### (a)                                  TheServicer shall conduct the servicing, administration and collection of theTransferred Loans and shall take, or cause to be taken, all such actions as maybe necessary or advisable to service, administer and collect Transferred Loansfrom time to time on behalf of the Borrower and as the Borrower’s agent.

####  

### (b)                                 Theduties of the Servicer, as the Borrower’s agent, shall include, withoutlimitation:

####  

##### (i)                                     preparingand submitting of claims to, and post-billing liaison with, Obligors onTransferred Loans;

#####  

##### (ii)                                  maintainingall necessary Servicing Records with respect to the Transferred Loans andproviding such reports to the Borrower, the Managing Agents and theAdministrative Agent in respect of the servicing of the Transferred Loans(including information relating to its performance under this Agreement) as maybe required

######  

###### 48

###### 

######  

##### hereunder or as the Borrower, any Managing Agent orthe Administrative Agent may reasonably request;

#####  

##### (iii)                               maintaining andimplementing administrative and operating procedures (including, withoutlimitation, an ability to recreate Servicing Records evidencing the TransferredLoans in the event of the destruction of the originals thereof) and keeping andmaintaining all documents, books, records and other information reasonablynecessary or advisable for the collection of the Transferred Loans (including,without limitation, records adequate to permit the identification of each newTransferred Loan and all Collections of and adjustments to each existingTransferred Loan); provided, however, that any Successor Servicershall only be required to recreate the Servicing Records of each prior Servicerto the extent such records have been delivered to it in a format reasonablyacceptable to such Successor Servicer;

 

##### (iv)                              promptlydelivering to the Borrower, any Managing Agent or the Administrative Agent,from time to time, such information and Servicing Records (includinginformation relating to its performance under this Agreement) as the Borrower,such Managing Agent or the Administrative Agent from time to time reasonablyrequest;

######  

##### (v)                                 identifyingeach Transferred Loan clearly and unambiguously in its Servicing Records toreflect that such Transferred Loan is owned by the Borrower and pledged to theAdministrative Agent;

######  

##### (vi)                              complyingin all material respects with the Credit and Collection Policy in regard toeach Transferred Loan;

######  

##### (vii)                           complying in all materialrespects with all Applicable Laws with respect to it, its business andproperties and all Transferred Loans and Collections with respect thereto;

######  

##### (viii)                        preserving and maintaining itsexistence, rights, licenses, franchises and privileges as a corporation in thejurisdiction of its organization, and qualifying and remaining qualified ingood standing as a foreign corporation and qualifying to and remainingauthorized and licensed to perform obligations as Servicer (includingenforcement of collection of Transferred Loans on behalf of the Borrower,Lenders, each Hedge Counterparty and the Collateral Custodian) in eachjurisdiction where the failure to preserve and maintain such existence, rights,franchises, privileges and qualification would materially adversely affect (A)the rights or interests of the Borrower, Lenders, each Hedge Counterparty andthe Collateral Custodian in the Transferred Loans, (B) the collectibility ofany Transferred Loan, or (C) the ability of the Servicer to perform itsobligations hereunder; and

######  

##### (ix)                                notifyingthe Borrower, each Managing Agent, Concord and the Administrative Agent of anymaterial action, suit, proceeding, dispute, offset deduction, defense orcounterclaim that is or is threatened to be (1) asserted by an Obligor with 

#####  

###### 49

###### 

######  

##### respect to any Transferred Loan; or (2) reasonablyexpected to have a Material Adverse Effect; and

######  

### (c)                                  TheBorrower and Servicer hereby acknowledge that the Secured Parties, theAdministrative Agent and the Collateral Custodian shall not have any obligationor liability with respect to any Transferred Loans, nor shall any of them beobligated to perform any of the obligations of the Servicer hereunder.

####  

## **Section 7.3**                                   Authorizationof the Servicer.

###  

### (a)                                  Eachof the Borrower, each Managing Agent, on behalf of itself and the relatedLenders, the Administrative Agent and each Hedge Counterparty hereby authorizesthe Servicer (including any successor thereto) to take any and all reasonablesteps in its name and on its behalf necessary or desirable and not inconsistentwith the pledge of the Transferred Loans to the Lender, each HedgeCounterparty, and the Collateral Custodian, in the determination of theServicer, to collect all amounts due under any and all Transferred Loans,including, without limitation, endorsing any of their names on checks and otherinstruments representing Collections, executing and delivering any and allinstruments of satisfaction or cancellation, or of partial or full release ordischarge, and all other comparable instruments, with respect to the TransferredLoans and, after the delinquency of any Transferred Loan and to the extentpermitted under and in compliance with Applicable Law, to commence proceedingswith respect to enforcing payment thereof, to the same extent as the Originatorcould have done if it had continued to own such Loan.  The Borrower shall furnish the Servicer (and any successorsthereto) with any powers of attorney and other documents necessary orappropriate to enable the Servicer to carry out its servicing andadministrative duties hereunder, and shall cooperate with the Servicer to thefullest extent in order to ensure the collectibility of the TransferredLoans.  In no event shall the Servicerbe entitled to make the Borrower, any Lender, any Managing Agent, any HedgeCounterparty, the Collateral Custodian or the Administrative Agent a party toany litigation without such party’s express prior written consent, or to makethe Borrower a party to any litigation (other than any routine foreclosure orsimilar collection procedure) without the Administrative Agent’s consent.

####  

### (b)                                 Afteran Early Termination Event has occurred and is continuing, at theAdministrative Agent’s direction, the Servicer shall take such action as theAdministrative Agent may deem necessary or advisable to enforce collection ofthe Transferred Loans; provided, however, that the AdministrativeAgent may, at any time that an Early Termination Event has occurred and iscontinuing, notify any Obligor with respect to any Transferred Loans of theassignment of such Transferred Loans to the Administrative Agent and directthat payments of all amounts due or to become due to the Borrower thereunder bemade directly to the Administrative Agent or any servicer, collection agent orlock-box or other account designated by the Administrative Agent and, upon suchnotification and at the expense of the Borrower, the Administrative Agent mayenforce collection of any such Transferred Loans and adjust, settle orcompromise the amount or payment thereof. The Administrative Agent shall give written notice to any SuccessorServicer of the Administrative Agent’s actions or directions pursuant to this Section7.3(b), and no Successor Servicer shall take any actions pursuant to this Section7.3(b) that are outside of its Credit and Collection Policy.

######  

###### 50

###### 

######  

## **Section 7.4**                                   Collectionof Payments.

###  

### (a)                                  CollectionEfforts, Modification of Loans.  TheServicer will make reasonable efforts to collect all payments called for underthe terms and provisions of the Transferred Loans as and when the same becomedue, and will follow those collection procedures which it follows with respectto all comparable Loans that it services for itself or others.  The Servicer may not waive, modify orotherwise vary any provision of a Transferred Loan, except as may be inaccordance with the provisions of the Credit and Collection Policy, includingthe waiver of any late payment charge or any other fees that may be collectedin the ordinary course of servicing any Loan included in the Collateral.

####  

### (b)                                 Acceleration.  The Servicer shall accelerate the maturityof all or any Scheduled Payments under any Transferred Loan under which adefault under the terms thereof has occurred and is continuing (after the lapseof any applicable grace period) promptly after such Loan becomes a DefaultedLoan or such earlier or later time as is consistent with the Credit andCollection Policy.

####  

### (c)                                  Taxesand other Amounts.  To the extentprovided for in any Transferred Loan, the Servicer will use its best efforts tocollect all payments with respect to amounts due for taxes, assessments andinsurance premiums relating to such Transferred Loans or the Related Propertyand remit such amounts to the appropriate Governmental Authority or insurer onor prior to the date such payments are due.

####  

### (d)                                 Paymentsto Lock-Box Account: On or before the Closing Date, the Servicer shall haveinstructed all Obligors to make all payments in respect of Loans included inthe Collateral to a Lock-Box or directly to a Lock-Box Account or theCollection Account.

####  

### (e)                                  Establishmentof the Collection Account.  TheBorrower or the Servicer on its behalf shall cause to be established, on orbefore the Closing Date, and maintained in the name of the Borrower and assignedto the Administrative Agent as agent for the Secured Parties, with an office orbranch of a depository institution or trust company organized under the laws ofthe United States or any one of the States thereof or the District of Columbia(or any domestic branch of a foreign bank) a segregated corporate trust account(the “*Collection Account*”) forthe purpose of receiving Collections from the Collateral; provided, however,that at all times such depository institution or trust company shall be adepository institution organized under the laws of the United States or any oneof the States thereof or the District of Columbia (or any domestic branch of aforeign bank), (i) (A) that has either (1) a long-term unsecured debt rating ofA- or better by S&P and A-3 or better by Moody’s or (2) a short-termunsecured debt rating or certificate of deposit rating of A-1 or better byS&P or P-1 or better by Moody’s, (B) the parent corporation of which haseither (1) a long-term unsecured debt rating of A- or better by S&P and A-3or better by Moody’s or (2) a short-term unsecured debt rating or certificateof deposit rating of A-1 or better by S&P and P-1 or better by Moody’s or(C) is otherwise acceptable to the Administrative Agent and (ii) whose depositsare insured by the Federal Deposit Insurance Corporation (any such depositoryinstitution or trust company, a “*QualifiedInstitution*”).

####  

### (f)                                    Adjustments.  If (i) the Servicer makes a deposit into theCollection Account in respect of a Collection of a Loan in the Collateral andsuch Collection was received by the 

###  

#### 51

##### 

#####  

### Servicer in the form of a check that is not honoredfor any reason or (ii) the Servicer makes a mistake with respect to the amountof any Collection and deposits an amount that is less than or more than theactual amount of such Collection, the Servicer shall appropriately adjust theamount subsequently deposited into the Collection Account to reflect suchdishonored check or mistake.  AnyScheduled Payment in respect of which a dishonored check is received shall bedeemed not to have been paid.

####  

## **Section 7.5**                                   ServicerAdvances.

###  

For each SettlementPeriod, if the Servicer determines that any Scheduled Payment (or portionthereof) that was due and payable pursuant to a Loan included in the Collateralduring such Settlement Period was not received prior to the end of suchSettlement Period, the Servicer may, but shall not be obligated to, make anadvance in an amount up to the amount of such delinquent Scheduled Payment (orportion thereof) to the extent that the Servicer reasonably expects to bereimbursed for such advance; in addition, if on any day there are notsufficient funds on deposit in the Collection Account to pay accrued Intereston any Advance the Settlement Period of which ends on such day, the Servicermay make an advance in the amount necessary to pay such Interest (in eithercase, any such advance, a “*Servicer Advance*”).  Notwithstanding the preceding sentence, anySuccessor Servicer will not be obligated to make any Servicer Advances.  The Servicer will deposit any ServicerAdvances into the Collection Account on or prior to 11:00 a.m. (New York Citytime) on the related Payment Date, in immediately available funds.

 

## **Section 7.6**                                   RealizationUpon Defaulted Loans or Charged-Off Loans.

###  

The Servicer will usereasonable efforts to repossess or otherwise comparably convert the ownershipof any Related Property with respect to a Defaulted Loan or Charged-Off Loanand will act as sales and processing agent for Related Property that itrepossesses.  The Servicer will followthe practices and procedures set forth in the Credit and Collection Policy inorder to realize upon such Related Property. Without limiting the foregoing, the Servicer may sell any such RelatedProperty with respect any Defaulted Loan or Charged-Off Loan to the Servicer orits Affiliates for a purchase price equal to the then fair market valuethereof; any such sale to be evidenced by a certificate of a ResponsibleOfficer of the Servicer delivered to the Administrative Agent identifying theDefaulted Loan or Charged-Off Loan and the Related Property, setting forth thesale price of the Related Property and certifying that such sale price is thefair market value of such Related Property.  In any case in which any such Related Property has suffereddamage, the Servicer will not expend funds in connection with any repair ortoward the repossession of such Related Property unless it reasonably determinesthat such repair and/or repossession will increase the Recoveries by an amountgreater than the amount of such expenses. The Servicer will remit to the Collection Account the Recoveriesreceived in connection with the sale or disposition of Related Property withrespect to a Defaulted Loan or Charged-Off Loan.

 

## **Section 7.7**                                   OptionalRepurchase of Transferred Loans.

###  

### (a)                                  TheServicer may, at any time, notify the Borrower and the Administrative Agentthat it is requesting to purchase any Transferred Loan with respect to whichthe Borrower or any

###  

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##### 

#####  

### Affiliate of the Borrower has received notice of therelated Obligor’s intention to prepay such Transferred Loan in full within aperiod of not more than 60 days from the date of such notification.

#####  

### (b)                                 TheServicer may, at its sole option, with respect to any Transferred Loan that itdetermines, in the exercise of its reasonable discretion, will likely become aDefaulted Loan or a Charged-Off Loan, or that has become a Defaulted Loan or aCharged-Off Loan, notify the Borrower and the Administrative Agent that it isrequesting to purchase each such Transferred Loan; provided, however, that theServicer shall not purchase more than six Transferred Loans pursuant to this paragraph(b) during the term of this Agreement.

####  

### (c)                                  TheServicer may request purchase of a Transferred Loan pursuant to paragraph(a) or (b) above by providing five Business Days’ prior writtennotice to Borrower and the Administrative Agent.  The Borrower may agree to such purchase with the consent of theAdministrative Agent (which consent shall not be unreasonably withheld).  With respect to any such purchase of aTransferred Loan, the Servicer shall, on the date of purchase, remit to theBorrower in immediately available funds an amount equal to the Repurchase Pricetherefor.  Upon each purchase of aTransferred Loan by the Servicer pursuant to this Section 7.7, theBorrower shall automatically and without further action be deemed to transfer,assign and set-over to the Servicer all the right, title and interest of theBorrower in, to and under such Transferred Loan and all monies due or to becomedue with respect thereto, all proceeds thereof and all rights to security forany such Transferred Loan, and all proceeds and products of the foregoing, freeand clear of any Lien created pursuant to this Agreement, all of the Borrower’sright, title and interest in such Transferred Loan, including any relatedSupplemental Interests.  Each Lendershall receive five Business Days’ notice of any repurchase that results in aprepayment of all or a portion of any Advance.

####  

### (d)                                 TheBorrower shall, at the sole expense of the Servicer, execute such documents andinstruments of transfer as may be prepared by the Servicer and take such otheractions as shall reasonably be requested by the Servicer to effect the transferof a Transferred Loan pursuant to this Section 7.7.

####  

## **Section 7.8**                                   Representationsand Warranties of the Servicer.

###  

The initial Servicer, andany Successor Servicer (mutatis mutandis), hereby represents and warrants asfollows:

 

### (a)                                  Organizationand Good Standing.  The Servicer isa corporation duly organized, validly existing and in good standing under thelaws of the jurisdiction of its incorporation with all requisite corporatepower and authority to own its properties and to conduct its business aspresently conducted and to enter into and perform its obligations pursuant tothis Agreement.

####  

### (b)                                 DueQualification.  The Servicer isqualified to do business as a corporation, is in good standing, and hasobtained all licenses and approvals as required under the laws of alljurisdictions in which the ownership or lease of its property and or theconduct of its business (other than the performance of its obligationshereunder) requires such qualification, standing, license or approval, exceptto the extent that the failure to so qualify, maintain such standing or

###  

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##### 

#####  

### be so licensed or approved would not have an adverseeffect on the interests of the Borrower or of the Lenders.  The Servicer is qualified to do business asa corporation, is in good standing, and has obtained all licenses and approvalsas required under the laws of all states in which the performance of itsobligations pursuant to this Agreement requires such qualification, standing,license or approval and where the failure to qualify or obtain such license orapproval would have material adverse effect on its ability to performhereunder.

####  

### (c)                                  Powerand Authority.  The Servicer has thecorporate power and authority to execute and deliver this Agreement and tocarry out its terms.  The Servicer hasduly authorized the execution, delivery and performance of this Agreement byall requisite corporate action.

####  

### (d)                                 NoViolation.  The consummation of thetransactions contemplated by, and the fulfillment of the terms of, thisAgreement by the Servicer (with or without notice or lapse of time) will not(i) conflict with, result in any breach of any of the terms or provisions of,or constitute a default under, the articles of incorporation or by-laws of theServicer, or any Contractual Obligation to which the Servicer is a party or bywhich it or any of its property is bound, (ii) result in the creation orimposition of any Adverse Claim upon any of its properties pursuant to theterms of any such Contractual Obligation (other than this Agreement), or (iii)violate any Applicable Law.

####  

### (e)                                  NoConsent.  No consent, approval,authorization, order, registration, filing, qualification, license or permit ofor with any Governmental Authority having jurisdiction over the Servicer or anyof its properties is required to be obtained by or with respect to the Servicerin order for the Servicer to enter into this Agreement or perform itsobligations hereunder.

####  

### (f)                                    BindingObligation.  This Agreementconstitutes a legal, valid and binding obligation of the Servicer, enforceableagainst the Servicer in accordance with its terms, except as suchenforceability may be limited by (i) applicable Insolvency Laws and (ii)general principles of equity (whether considered in a suit at law or inequity).

####  

### (g)                                 NoProceeding.  There are noproceedings or investigations pending or threatened against the Servicer,before any Governmental Authority (i) asserting the invalidity of thisAgreement, (ii) seeking to prevent the consummation of any of the transactionscontemplated by this Agreement or (iii) seeking any determination or rulingthat might (in the reasonable judgment of the Servicer) have a Material AdverseEffect.

####  

### (h)                                 ReportsAccurate.  All ServicerCertificates, Monthly Reports, information, exhibits, financial statements,documents, books, Servicer Records or other reports furnished or to befurnished by the Servicer to the Administrative Agent or a Lender in connectionwith this Agreement are and will be accurate, true and correct in all materialrespects.

####  

## **Section 7.9**                                   Covenants ofthe Servicer.

###  

The Servicer herebycovenants that:

 

### (a)                                  Compliancewith Law.  The Servicer will complyin all material respects with all Applicable Laws, including those with respectto the Transferred Loans and Related Property and Loan Documents or any partthereof.

######  

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###### 

######  

### (b)                                 Preservationof Corporate Existence.  TheServicer will preserve and maintain its corporate existence, rights, franchisesand privileges in the jurisdiction of its formation, and qualify and remainqualified in good standing as a foreign corporation in each jurisdiction wherethe failure to maintain such existence, rights, franchises, privileges andqualification has had, or could reasonably be expected to have, a MaterialAdverse Effect.

####  

### (c)                                  Obligationswith Respect to Loans.  The Servicerwill duly fulfill and comply with all material obligations on the part of the Borrowerto be fulfilled or complied with under or in connection with each Loan and willdo nothing to impair the rights of the Borrower or the Administrative Agent asagent for the Secured Parties or of the Secured Parties in, to and under theCollateral.

####  

### (d)                                 Preservationof Security Interest.  The Serviceron behalf of the Borrower will execute and file (or cause the execution andfiling of) such financing and continuation statements and any other documentsthat may be required by any law or regulation of any Governmental Authority topreserve and protect fully the interest of the Administrative Agent as agentfor the Secured Parties in, to and under the Collateral.

####  

### (e)                                  NoBankruptcy Petition.  With respectto any CP Lender, prior to the date that is one year and one day after thepayment in full of all amounts owing in respect of all outstanding commercialpaper issued by such CP Lender and, with respect to the Borrower, prior to thedate that is one year and one day after the Collection Date, the Servicer willnot institute against the Borrower or such CP Lender, or join any other Personin instituting against the Borrower or such CP Lender, any bankruptcy,reorganization, arrangement, insolvency or liquidation proceedings or othersimilar proceedings under the laws of the United States or any state of theUnited States.  This Section 7.9(e)will survive the termination of this Agreement.

####  

### (f)                                    Changeof Name or Jurisdiction; Records. The Servicer (i) shall not change its name or jurisdiction of incorporation,without 30 days’ prior written notice to the Borrower and the AdministrativeAgent, and (ii) shall not move, or consent to the Collateral Custodian moving,the Loan Documents relating to the Transferred Loans without 30 days’ priorwritten notice to the Borrower and the Administrative Agent and, in eithercase, will promptly take all actions required of each relevant jurisdiction inorder to continue the first priority perfected security interest of theAdministrative Agent as agent for the Secured Parties on all collateral, andsuch other actions as the Administrative Agent may reasonably request,including but not limited to delivery of an Opinion of Counsel.

####  

### (g)                                 Creditand Collection Policy.  The Servicerwill (i) comply in all material respects with the Credit and Collection Policyin regard to each Transferred Loan and (ii) furnish to each Managing Agent andthe Administrative Agent, at least 20 days prior to its proposed effectivedate, prompt notice of any material change in the Credit and CollectionPolicy.  The Servicer will not agree orotherwise permit to occur any material change in the Credit and CollectionPolicy, which change would impair the collectibility of any Transferred Loan orotherwise adversely affect the interests or remedies of the AdministrativeAgent or the Secured Parties under this Agreement or any other TransactionDocument, without the prior written consent of the Administrative Agent (in itssole discretion).

######  

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######  

### (h)                                 EarlyTermination Events.  The Servicerwill furnish to each Managing Agent, Concord and the Administrative Agent, assoon as possible and in any event within three (3) Business Days after theoccurrence of each Early Termination Event or Unmatured Termination Event, awritten statement setting forth the details of such event and the action thatthe Servicer proposes to take with respect thereto.

####  

### (i)                                     Extensionor Amendment of Loans.  The Servicerwill not, except as otherwise permitted in Section 7.4(a), extend, amendor otherwise modify the terms of any Transferred Loan.

####  

### (j)                                     Other.  The Servicer will furnish to the Borrower,any Managing Agent and the Administrative Agent such other information,documents records or reports respecting the Transferred Loans or the conditionor operations, financial or otherwise of the Servicer as the Borrower, suchManaging Agent or the Administrative Agent may from time to time reasonablyrequest in order to protect the respective interests of the Borrower, suchManaging Agent, the Administrative Agent or the Secured Parties under or ascontemplated by this Agreement.

####  

## **Section 7.10**                            Payment ofCertain Expenses by Servicer.

###  

The Servicer will berequired to pay all expenses incurred by it in connection with its activitiesunder this Agreement, including fees and disbursements of legal counsel andindependent accountants, Taxes imposed on the Servicer, expenses incurred inconnection with payments and reports pursuant to this Agreement, and all otherfees and expenses not expressly stated under this Agreement for the account ofthe Borrower.  In consideration for thepayment by the Borrower of the Servicing Fee, the Servicer will be required topay all reasonable fees and expenses owing to any bank or trust company inconnection with the maintenance of the Collection Account and the BackupServicer Fee pursuant to the Backup Servicing Agreement and the CollateralCustodian Fee pursuant to the Custody Agreement.  The Servicer shall be required to pay such expenses for its ownaccount and shall not be entitled to any payment therefor other than theServicing Fee.

 

## **Section 7.11**                            Reports.

###  

### (a)                                  MonthlyReport.  With respect to eachDetermination Date and the related Settlement Period, the Servicer will provideto the Borrower, the Backup Servicer, each Managing Agent, Concord and theAdministrative Agent, on the related Reporting Date, a monthly statement (a “*MonthlyReport*”) signed by a Responsible Officer of the Servicer andsubstantially in the form of Exhibit E. Except as otherwise set forth in the Backup Servicing Agreement, theBackup Servicer shall have no obligation to review any information in theMonthly Report.

####  

### (b)                                 ServicerCertificate.  Together with eachMonthly Report, the Servicer shall submit to the Borrower, the Backup Servicer,each Managing Agent, Concord and the Administrative Agent a certificate (a “*Servicer’sCertificate*”), signed by a Responsible Officer of the Servicer andsubstantially in the form of Exhibit F. Except as otherwise set forth in the Backup Servicing Agreement, theBackup Servicer shall have no obligation to review any information in theServicer Certificate.

######  

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######  

### (c)                                  FinancialStatements.  The Borrower willsubmit to the Backup Servicer, each Managing Agent, Concord and theAdministrative Agent, promptly upon receipt thereof, the quarterly and annualfinancial statements received from the Originator pursuant to Section 5.1(a) ofthe Purchase Agreement.  Except as otherwiseset forth in the Backup Servicing Agreement, the Backup Servicer shall have noduty to review any of the financial information set forth in such financialstatements.

####  

## **Section 7.12**                            AnnualStatement as to Compliance.

###  

The Servicer will provideto the Borrower, each Managing Agent, the Administrative Agent, and the BackupServicer, within 90 days following the end of each fiscal year of the Servicer,commencing with the fiscal year ending on September 30, 2003, an annual reportsigned by a Responsible Officer of the Servicer certifying that (a) a review ofthe activities of the Servicer, and the Servicer’s performance pursuant to thisAgreement, for the period ending on the last day of such fiscal year has beenmade under such Person’s supervision and (b) the Servicer has performed or hascaused to be performed in all material respects all of its obligations underthis Agreement throughout such year and no Servicer Termination Event hasoccurred and is continuing (or if a Servicer Termination Event has so occurredand is continuing, specifying each such event, the nature and status thereofand the steps necessary to remedy such event, and, if a Servicer TerminationEvent occurred during such year and no notice thereof has been given to theAdministrative Agent, specifying such Servicer Termination Event and the stepstaken to remedy such event).

 

## **Section 7.13**                            Limitationon Liability of the Servicer and Others.

###  

Except as providedherein, neither the Servicer (including any Successor Servicer) nor any of thedirectors or officers or employees or agents of the Servicer shall be under anyliability to the Borrower, the Administrative Agent, the Lenders or any otherPerson for any action taken or for refraining from the taking of any actionexpressly provided for in this Agreement; provided, however, thatthis provision shall not protect the Servicer or any such Person against anyliability that would otherwise be imposed by reason of its willful misfeasance,bad faith or gross negligence in the performance of duties or by reason of itswillful misconduct hereunder.

 

The Servicer shall not beunder any obligation to appear in, prosecute or defend any legal action that isnot incidental to its duties to service the Transferred Loans in accordancewith this Agreement that in its reasonable opinion may involve it in anyexpense or liability.  The Servicer may,in its sole discretion, undertake any legal action relating to the servicing,collection or administration of Transferred Loans and the Related Property thatit may reasonably deem necessary or appropriate for the benefit of the Borrowerand the Secured Parties with respect to this Agreement and the rights andduties of the parties hereto and the respective interests of the Borrower andthe Secured Parties hereunder.

 

## **Section 7.14**                            The ServicerNot to Resign.

###  

The Servicer shall notresign from the obligations and duties hereby imposed on it except upon itsdetermination that (i) the performance of its duties hereunder is or becomesimpermissible under Applicable Law and (ii) there is no reasonable action thatit could take to

 

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make the performance ofits duties hereunder permissible under Applicable Law.  Any such determination permitting theresignation of the Servicer shall be evidenced as to clause (i) above byan Opinion of Counsel to such effect delivered to the Borrower and theAdministrative Agent.  No suchresignation shall become effective until a successor shall have assumed theresponsibilities and obligations of the Servicer in according with the terms ofthis Agreement.

 

## **Section 7.15**                            Access toCertain Documentation and Information Regarding the Loans.

###  

The Borrower or theServicer, as applicable, shall provide to the Administrative Agent and eachManaging Agent access to the Loan Documents and all other documentationregarding the Loans included as part of the Collateral and the RelatedProperty, such access being afforded without charge but only (i) uponreasonable prior notice, (ii) during normal business hours and (iii) subject tothe Servicer’s normal security and confidentiality procedures.  From and after (x) the Closing Date andperiodically thereafter at the discretion of the Administrative Agent (but inno event limited to fewer than twice per calendar year), the AdministrativeAgent, on behalf of and with the input of each Managing Agent, may review theBorrower’s and the Servicer’s collection and administration of the Loans inorder to assess compliance by the Servicer with the Servicer’s written policiesand procedures, as well as with this Agreement and may conduct an audit of theTransferred Loans, Loan Documents and Records in conjunction with such areview, which audit shall be reasonable in scope and shall be completed in areasonable period of time and (y) the occurrence, and during the continuationof an Early Termination Event, the Administrative Agent and each Managing Agentmay review the Borrower’s and the Servicer’s collection and administration ofthe Transferred Loans in order to assess compliance by the Servicer with theServicer’s written policies and procedures, as well as with this Agreement,which review shall not be limited in scope or frequency, nor restricted inperiod.  The Administrative Agent mayalso conduct an audit (as such term is used in clause (x) of this Section7.15) of the Transferred Loans, Loan Documents and Records in conjunctionwith such a review.  The Borrower shallbear the cost of such reviews and audits.

 

## **Section 7.16**                            Merger orConsolidation of the Servicer.

###  

The Servicer shall notconsolidate with or merge into any other Person or convey or transfer itsproperties and assets substantially as an entirety to any Person and unless:

 

##### (i)                                     thePerson formed by such consolidation or into which the Servicer is merged or thePerson that acquires by conveyance or transfer the properties and assets of theServicer substantially as an entirety shall be, if the Servicer is not thesurviving entity, organized and existing under the laws of the United States orany State or the District of Columbia and shall expressly assume, by anagreement supplemental hereto, executed and delivered to the Borrower and theAdministrative Agent in form satisfactory to the Borrower and theAdministrative Agent, the performance of every covenant and obligation of theServicer hereunder (to the extent that any right, covenant or obligation of theServicer, as applicable hereunder, is inapplicable to the successor entity,such successor entity shall be subject to such covenant or obligation, orbenefit from such right, as would apply, to the extent practicable, to suchsuccessor entity);

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######  

##### (ii)                                  theServicer shall have delivered to the Borrower and the Administrative Agent anOfficer’s Certificate that such consolidation, merger, conveyance or transferand such supplemental agreement comply with this Section 7.16 and thatall conditions precedent herein provided for relating to such transaction havebeen complied with and an Opinion of Counsel that such supplemental agreementis legal, valid and binding with respect to the successor entity and that theentity surviving such consolidation, conveyance or transfer is organized andexisting under the laws of the United States or any State or the District ofColumbia.  The Borrower and theAdministrative Agent shall receive prompt written notice of such merger orconsolidation of the Servicer; and

######  

##### (iii)                               after giving effectthereto, no Early Termination Event, Unmatured Termination Event or ServicerTermination Event shall have occurred.

######  

## **Section 7.17**                            Identificationof Records.

###  

The Servicer shallclearly and unambiguously identify each Loan that is part of the Collateral andthe Related Property in its computer or other records to reflect that theinterest in such Loans and Related Property have been transferred to and areowned by the Borrower and that the Administrative Agent has the interesttherein granted by Borrower pursuant to this Agreement.

 

## **Section 7.18**                            ServicerTermination Events.

###  

### (a)                                  Ifany one of the following events (a “*ServicerTermination Event*”) shall occur and be continuing on any day:

####  

##### (i)                                     anyfailure by the Servicer to make any payment, transfer or deposit as required bythis Agreement;

######  

##### (ii)                                  anyfailure by the Servicer to give instructions or notice to the Borrower, anyManaging Agent, Concord and/or the Administrative Agent as required by thisAgreement or to deliver any Required Reports hereunder on or before the dateoccurring two Business Days after the date such instructions, notice or reportis required to be made or given, as the case may be, under the terms of thisAgreement;

######  

##### (iii)                               any failure on the partof the Servicer duly to observe or perform in any material respect any othercovenants or agreements of the Servicer set forth in this Agreement or anyother Transaction Document to which it is a party as Servicer that continuesunremedied for a period of five (5) days after the first to occur of (i) thedate on which written notice of such failure requiring the same to be remediedshall have been given to the Servicer by the Administrative Agent, any ManagingAgent or the Borrower and (ii) the date on which the Servicer becomes or shouldhave become aware thereof;

######  

##### (iv)                              anyrepresentation, warranty or certification made by the Servicer in thisAgreement or in any certificate delivered pursuant to this Agreement shallprove to have been false or incorrect in any material respect when made;

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###### 

######  

##### (v)                                 theServicer shall fail to service the Transferred Loans in accordance with theCredit and Collection Policy;

######  

##### (vi)                              anInsolvency Event shall occur with respect to the Servicer;

######  

##### (vii)                           the Servicer agrees tomaterially alter the Credit and Collection Policy without the prior writtenconsent of the Administrative Agent;

######  

##### (viii)                        any financial or assetinformation reasonably requested by the Administrative Agent or any ManagingAgent as provided herein is not provided as requested within five (5) BusinessDays (or such longer period as the Administrative Agent or such Managing Agentmay consent to) of the receipt by the Servicer of such request;

######  

##### (ix)                                therendering against the Servicer of a final judgment, decree or order for thepayment of money in excess of U.S. $5,000,000 (individually or in theaggregate) and the continuance of such judgment, decree or order unsatisfiedand in effect for any period of 30 consecutive days without a stay ofexecution;

######  

##### (x)                                   thefailure of the Servicer to make any payment due with respect to aggregaterecourse debt or other obligations with an aggregate principal amount exceedingU.S. $1,000,000 or the occurrence of any event or condition that would permitacceleration of such recourse debt or other obligations if such event orcondition has not been waived;

######  

##### (xi)                                anyGuarantor Event of Default shall occur;

######  

##### (xii)                             any Material AdverseChange occurs in the financial condition of the Servicer or the collectibilityof the Transferred Loans; or

######  

##### (xiii)                          any Change-in-Control of theServicer is made without the prior written consent of the Borrower and theAdministrative Agent;

######  

then, notwithstandinganything herein to the contrary, so long as any such Servicer TerminationEvents shall not have been remedied at the expiration of any applicable cureperiod, the Administrative Agent may, or at the direction of the RequiredLenders shall, by written notice to the Servicer and the Backup Servicer (a “*TerminationNotice*”), subject to the provisions of Section 7.19,terminate all of the rights and obligations of the Servicer as Servicer underthis Agreement.  The Borrower shall payall reasonable set-up and conversion costs associated with the transfer ofservicing rights to the Successor Servicer.

 

## **Section 7.19**                            Appointmentof Successor Servicer.

###  

### (a)                                  Onand after the receipt by the Servicer of a Termination Notice pursuant to Section7.18, the Servicer shall continue to perform all servicing functions underthis Agreement until the date specified in the Termination Notice or otherwisespecified by the Administrative Agent, to the Servicer and the Backup Servicer inwriting.  The Administrative Agent mayat the time described in the immediately preceding sentence in its solediscretion, appoint the Backup

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######  

### Servicer as the Servicer hereunder, and the BackupServicer shall within seven (7) days assume all obligations of the Servicerhereunder, and all authority and power of the Servicer under this Agreementshall pass to and be vested in the Backup Servicer; provided, however,that any Successor Servicer (including, without limitation, the BackupServicer) shall not (i) be responsible or liable for any past actions oromissions of the outgoing Servicer or (ii) be obligated to make ServicerAdvances.  The Administrative Agent mayappoint (i) the Backup Servicer as successor servicer, or (ii) if theAdministrative Agent does not so appoint the Backup Servicer, there is noBackup Servicer or the Backup Servicer is unwilling or unable to assume suchobligations on such date, the Administrative Agent shall as promptly as possibleappoint an alternate successor servicer to act as Servicer (in each such case,the “*SuccessorServicer*”), and such Successor Servicer shall accept its appointmentby a written assumption in a form acceptable to the Administrative Agent.

####  

### (b)                                 Uponits appointment as Successor Servicer, the Backup Servicer (subject to Section7.19(a)) or the alternate successor servicer, as applicable, shall be thesuccessor in all respects to the Servicer with respect to servicing functionsunder this Agreement, shall assume all Servicing Duties hereunder and shall besubject to all the responsibilities, duties and liabilities relating theretoplaced on the Servicer by the terms and provisions hereof, and all referencesin this Agreement to the Servicer shall be deemed to refer to the BackupServicer or the Successor Servicer, as applicable.  Any Successor Servicer shall be entitled, with the prior consentof the Administrative Agent, to appoint agents to provide some or all of itsduties hereunder, provided that no such appointment shall relieve suchSuccessor Servicer of the duties and obligations of the Successor Servicerpursuant to the terms hereof and that any such subcontract may be terminatedupon the occurrence of a Servicer Termination Event.

####  

### (c)                                  Allauthority and power granted to the Servicer under this Agreement shallautomatically cease and terminate upon termination of the Servicer under thisAgreement and shall pass to and be vested in the Successor Servicer, and,without limitation, the Successor Servicer is hereby authorized and empoweredto execute and deliver, on behalf of the Servicer, as attorney-in-fact orotherwise, all documents and other instruments, and to do and accomplish allother acts or things necessary or appropriate to effect the purposes of suchtransfer of servicing rights.  TheServicer agrees to cooperate with the Successor Servicer in effecting thetermination of the responsibilities and rights of the Servicer to conductservicing on the Collateral.

####  

### (d)                                 Uponthe Backup Servicer receiving notice that it is required to serve as theServicer hereunder pursuant to the foregoing provisions of this Section 7.19,the Backup Servicer will promptly begin the transition to its role as Servicer.

####  

### (e)                                  TheBackup Servicer shall be entitled to receive its Transition Costs incurred intransitioning to Servicer.

####  

## **Section 7.20**                            MarketServicing Fee.

###  

Notwithstanding anythingto the contrary herein, in the event that a Successor Servicer is appointedServicer, the Servicing Fee shall equal the market rate for comparableservicing duties 

 

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to be fixed upon the dateof such appointment by such Successor Servicer with the consent of theAdministrative Agent (the “*Market Servicing Fee*”).

 

# **ARTICLE VIII**

## ** **

# **EARLYTERMINATION EVENTS**

## ** **

## **Section 8.1**                                   EarlyTermination Events.

###  

If any of the followingevents (each, an “*Early Termination Event*”) shall occur and be continuing:

 

### (a)                                  theBorrower shall default in the payment of any amount required to be made underthe terms of this Agreement; or

####  

### (b)                                 theBorrowing Base Test shall not be met, and such failure shall continue for morethan two (2) Business Days; or

####  

### (c)                                  (i)the Borrower shall fail to perform or observe in any material respect any othercovenant or other agreement of the Borrower set forth in this Agreement and anyother Transaction Document to which it is a party, or (ii) the Originator shallfail to perform or observe in any material respect any term, covenant oragreement of such Originator set forth in any other Transaction Document towhich it is a party, in each case when such failure continues unremedied formore than five (5) days after the first to occur of (i) the date on whichwritten notice of such failure requiring the same to be remedied shall have beengiven to such Person by the Administrative Agent, any Managing Agent or theCollateral Custodian and (ii) the date on which such Person becomes or shouldhave become aware thereof; or

####  

### (d)                                 anyrepresentation or warranty made or deemed made hereunder shall prove to beincorrect in any material respect as of the time when the same shall have beenmade; or

####  

### (e)                                  anInsolvency Event shall occur with respect to the Borrower or the Originator; or

####  

### (f)                                    aServicer Termination Event occurs; or

####  

### (g)                                 anyChange-in-Control of the Borrower or Originator occurs; or

####  

### (h)                                 theBorrower or the Servicer defaults in making any payment required to be madeunder any material agreement for borrowed money to which either is a party andsuch default is not cured within the relevant cure period; or

####  

### (i)                                     theAdministrative Agent, as agent for the Secured Parties, shall fail for anyreason to have a valid and perfected first priority security interest in any ofthe Collateral; or

####  

### (j)                                     (i)a final judgment for the payment of money in excess of (A) $5,000,000 shallhave been rendered against the Originator or (B) $100,000 against the Borrowerby a court of competent jurisdiction and, if such judgment relates to theOriginator, such judgment, decree or order shall continue unsatisfied and ineffect for any period of 30 consecutive days without a stay

###  

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##### 

#####  

### of execution, or (ii) the Originator or the Borrower,as the case may be, shall have made payments of amounts in excess of $5,000,000or $50,000, respectively, in settlement of any litigation; or

######  

### (k)                                  theBorrower or the Servicer agrees or consents to, or otherwise permits to occur,any amendment, modification, change, supplement or recession of or to theCredit and Collection Policy in whole or in part that could have a materialadverse effect upon the Transferred Loans or interest of any Lender, withoutthe prior written consent of the Administrative Agent; or

####  

### (l)                                     onany day, either (i) the Hedge Notional Amount is less than the Required NotionalAmount, or (ii) any Hedge Transaction fails to meet the requirements set forthin Section 5.2; or

####  

### (m)                               onany Determination Date, the Portfolio Yield does not equal or exceed 5.0% andsuch failure continues for a period of thirty (30) consecutive days; or

####  

### (n)                                 theRolling Three-Month Default Ratio shall exceed 7.5%; or

####  

### (o)                                 theRolling Three-Month Charged-Off Ratio shall exceed 5.0%; or

####  

### (p)                                 theBorrower shall become an “investment company” subject to registration under the1940 Act; or

####  

### (q)                                 thebusiness and other activities of the Borrower or the Originator, including butnot limited to, the acceptance of the Advances by the Borrower made by theLenders, the application and use of the proceeds thereof by the Borrower andthe consummation and conduct of the transactions contemplated by theTransaction Documents to which the Borrower or the Originator is a party resultin a violation by the Originator, the Borrower, or any other person or entityof the 1940 Act or the rules and regulations promulgated thereunder;

####  

then, and in any suchevent, the Administrative Agent shall, at the request, or may with the consent,of the Required Committed Lenders, by notice to the Borrower declare theTermination Date to have occurred, without demand, protest or future notice ofany kind, all of which are hereby expressly waived by the Borrower, and allAdvances Outstanding and all other amounts owing by the Borrower under thisAgreement shall be accelerated and become immediately due and payable, provided,that in the event that the Early Termination Event described in subsection(e) herein has occurred, the Termination Date shall automatically occur,without demand, protest or any notice of any kind, all of which are herebyexpressly waived by the Borrower.  Uponits receipt of written notice thereof, the Administrative Agent shall promptlynotify each Lender of the occurrence of any Early Termination Event.

 

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# **ARTICLE IX**

## ** **

# **INDEMNIFICATION**

## ** **

## **Section 9.1**                                   Indemnitiesby the Borrower.

###  

### (a)                                  Withoutlimiting any other rights that any such Person may have hereunder or underApplicable Law, the Borrower hereby agrees to indemnify the AdministrativeAgent, the Managing Agents, the Backup Servicer, any Successor Servicer, theCollateral Custodian, any Secured Party or its assignee and each of theirrespective Affiliates and officers, directors, employees, members and agentsthereof (collectively, the “*Indemnified Parties*”), forthwith ondemand, from and against any and all damages, losses, claims, liabilities andrelated costs and expenses, including reasonable attorneys’ fees anddisbursements (all of the foregoing being collectively referred to as “*IndemnifiedAmounts*”) awarded against or incurred by, any such Indemnified Partyor other non-monetary damages of any such Indemnified Party any of them arisingout of or as a result of this Agreement, excluding, however, IndemnifiedAmounts to the extent resulting from gross negligence or willful misconduct onthe part of any Indemnified Party. Without limiting the foregoing, the Borrower shall indemnify theIndemnified Parties for Indemnified Amounts relating to or resulting from:

####  

##### (i)                                     anyLoan treated as or represented by the Borrower to be an Eligible Loan that isnot at the applicable time an Eligible Loan;

######  

##### (ii)                                  relianceon any representation or warranty made or deemed made by the Borrower, theServicer (or one of its Affiliates) or any of their respective officers underor in connection with this Agreement, which shall have been false or incorrectin any material respect when made or deemed made or delivered;

######  

##### (iii)                               the failure by theBorrower or the Servicer (or one of its Affiliates) to comply with any term,provision or covenant contained in this Agreement or any agreement executed inconnection with this Agreement, or with any Applicable Law with respect to anyLoan comprising a portion of the Collateral, or the nonconformity of any Loan,the Related Property with any such Applicable Law or any failure by theOriginator, the Borrower or any Affiliate thereof to perform its respectiveduties under the Loans included as a part of the Collateral;

######  

##### (iv)                              thefailure to vest and maintain vested in the Administrative Agent a firstpriority perfected security interest in the Collateral;

######  

##### (v)                                 thefailure to file, or any delay in filing, financing statements or other similarinstruments or documents under the UCC of any applicable jurisdiction or otherApplicable Laws with respect to any Collateral whether at the time of anyAdvance or at any subsequent time and as required by the Transaction Documents;

######  

##### (vi)                              anydispute, claim, offset or defense (other than the discharge in bankruptcy ofthe Obligor) of the Obligor to the payment of any Loan included as part of theCollateral that is, or is purported to be, an Eligible Loan (including, without

#####  

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###### 

######  

##### limitation, a defense based on the Loan not being alegal, valid and binding obligation of such Obligor enforceable against it inaccordance with its terms);

######  

##### (vii)                           any failure of the Borroweror the Servicer (if the Originator or one of its Affiliates) to perform itsduties or obligations in accordance with the provisions of this Agreement orany failure by the Originator, the Borrower or any Affiliate thereof to performits respective duties under the Transferred Loans;

######  

##### (viii)                        any products liability claim orpersonal injury or property damage suit or other similar or related claim oraction of whatever sort arising out of or in connection with merchandise orservices that are the subject of any Loan included as part of the Collateral orthe Related Property included as part of the Collateral;

######  

##### (ix)                                thefailure by Borrower to pay when due any Taxes for which the Borrower is liable,including without limitation, sales, excise or personal property taxes payablein connection with the Collateral;

######  

##### (x)                                   anyrepayment by the Administrative Agent, any Managing Agent or a Secured Party ofany amount previously distributed in reduction of Advances Outstanding orpayment of Interest or any other amount due hereunder or under any HedgingAgreement, in each case which amount the Administrative Agent, such ManagingAgent or a Secured Party believes in good faith is required to be repaid.

######  

##### (xi)                                anyinvestigation, litigation or proceeding related to this Agreement or the use ofproceeds of Advances or in respect of any Loan included as part of theCollateral or the Related Property included as part of the Collateral;

######  

##### (xii)                             any failure by theBorrower to give reasonably equivalent value to the Originator in considerationfor the transfer by the Originator to the Borrower of any Transferred Loan orthe Related Property or any attempt by any Person to void or otherwise avoidany such transfer under any statutory provision or common law or equitableaction, including, without limitation, any provision of the Bankruptcy Code, or

######  

##### (xiii)                          the failure of the Borrower,the Originator or any of their respective agents or representatives to remit tothe Servicer or the Administrative Agent, Collections on the Collateralremitted to the Borrower or any such agent or representative in accordance withthe terms hereof or the commingling by the Borrower or any Affiliate of anycollections.

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### (b)                                 Anyamounts subject to the indemnification provisions of this Section 9.1shall be paid by the Borrower to the applicable Indemnified Party within two(2) Business Days following the Administrative Agent’s demand therefor.

######  

### (c)                                  Iffor any reason the indemnification provided above in this Section 9.1 isunavailable to the Indemnified Party or is insufficient to hold an IndemnifiedParty harmless, then the Borrower, shall contribute to the amount paid orpayable by such Indemnified Party as a result of such loss, claim, damage orliability in such proportion as is appropriate to reflect not only the relativebenefits received by such Indemnified Party on the one hand and the Borrower, 

###  

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##### 

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### on the other hand but also the relative fault of suchIndemnified Party as well as any other relevant equitable considerations.

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### (d)                                 Theobligations of the Borrower under this Section 9.1 shall survive theremoval of the Administrative Agent or any Managing Agent and the terminationof this Agreement.

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### (e)                                  Theparties hereto agree that the provisions of Section 9.1 shall not beinterpreted to provide recourse to the Borrower against loss by reason of thebankruptcy or insolvency (or other credit condition) of, or default by, anObligor on, any Transferred Loan.

####  

## **Section 9.2**                                   Indemnitiesby the Servicer.

###  

### (a)                                  Withoutlimiting any other rights that any such Person may have hereunder or underApplicable Law, the Servicer hereby agrees to indemnify each Indemnified Party,forthwith on demand, from and against any and all Indemnified Amounts(calculated without duplication of Indemnified Amounts paid by the Borrowerpursuant to Section 9.1 above) awarded against or incurred by any suchIndemnified Party by reason of any acts, omissions or alleged acts or omissionsof the Servicer, including, but not limited to (i) any representation orwarranty made by the Servicer under or in connection with any TransactionDocuments to which it is a party, any Monthly Report, Servicer’s Certificate orany other information or report delivered by or on behalf of the Servicerpursuant hereto, which shall have been false, incorrect or misleading in anymaterial respect when made or deemed made, (ii) the failure by the Servicer tocomply with any Applicable Law, (iii) the failure of the Servicer to complywith its duties or obligations in accordance with the Agreement, or (iv) anylitigation, proceedings or investigation against the Servicer, excluding,however, (a) Indemnified Amounts to the extent resulting from gross negligenceor willful misconduct on the part of such Indemnified Party, and (b) under anyFederal, state or local income or franchise taxes or any other Tax imposed onor measured by income (or any interest or penalties with respect thereto orarising from a failure to comply therewith) required to be paid by suchIndemnified Party in connection herewith to any taxing authority.  The provisions of this indemnity shall rundirectly to and be enforceable by an injured party subject to the limitationshereof.  If the Servicer has made anyindemnity payment pursuant to this Section 9.2 and such payment fullyindemnified the recipient thereof and the recipient thereafter collects anypayments from others in respect of such Indemnified Amounts, the recipientshall repay to the Servicer an amount equal to the amount it has collected fromothers in respect of such indemnified amounts.

####  

### (b)                                 Iffor any reason the indemnification provided above in this Section 9.2 isunavailable to the Indemnified Party or is insufficient to hold an IndemnifiedParty harmless, then Servicer shall contribute to the amount paid or payable tosuch Indemnified Party as a result of such loss, claim, damage or liability insuch proportion as is appropriate to reflect not only the relative benefitsreceived by such Indemnified Party on the one hand and Servicer on the otherhand but also the relative fault of such Indemnified Party as well as any otherrelevant equitable considerations.

####  

### (c)                                  Theobligations of the Servicer under this Section 9.2 shall survive theresignation or removal of the Administrative Agent or any Managing Agents andthe termination of this Agreement.

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### (d)                                 Theparties hereto agree that the provisions of this Section 9.2 shall notbe interpreted to provide recourse to the Servicer against loss by reason ofthe bankruptcy or insolvency (or other credit condition) of, or default by,related Obligor on, any Transferred Loan.

####  

### (e)                                  Anyindemnification pursuant to this Section 9.2 shall not be payable fromthe Collateral.

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# **ARTICLE X**

## ** **

# **THE ADMINISTRATIVE AGENT AND THE MANAGING AGENTS**

## ** **

## **Section 10.1**                            Authorizationand Action.

###  

### (a)                                  EachSecured Party hereby designates and appoints CIBC as Administrative Agenthereunder, and authorizes CIBC to take such actions as agent on its behalf andto exercise such powers as are delegated to the Administrative Agent by theterms of this Agreement together with such powers as are reasonably incidentalthereto.  The Administrative Agent shallnot have any duties or responsibilities, except those expressly set forthherein, or any fiduciary relationship with any Secured Party, and no impliedcovenants, functions, responsibilities, duties, obligations or liabilities onthe part of the Administrative Agent shall be read into this Agreement orotherwise exist for the Administrative Agent. In performing its functions and duties hereunder, the AdministrativeAgent shall act solely as agent for the Secured Parties and does not assume norshall be deemed to have assumed any obligation or relationship of trust oragency with or for the Borrower or any of its successors or assigns.  The Administrative Agent shall not berequired to take any action that exposes the Administrative Agent to personalliability or that is contrary to this Agreement or Applicable Law.  The appointment and authority of theAdministrative Agent hereunder shall terminate at the indefeasible payment infull of the Obligations.

####  

### (b)                                 EachLender hereby designates and appoints the Managing Agent for such Lender’sLender Group as its Managing Agent hereunder, and authorizes such ManagingAgent to take such actions as agent on its behalf and to exercise such powersas are delegated to the Managing Agents by the terms of this Agreement togetherwith such powers as are reasonably incidental thereto.  No Managing Agent shall have any duties orresponsibilities, except those expressly set forth herein, or any fiduciaryrelationship with any Lender, and no implied covenants, functions, responsibilities,duties, obligations or liabilities on the part of the applicable Managing Agentshall be read into this Agreement or otherwise exist for the applicableManaging Agent.  In performing itsfunctions and duties hereunder, each Managing Agent shall act solely as agentfor the Lenders in the related Lender Group and does not assume nor shall bedeemed to have assumed any obligation or relationship of trust or agency withor for the Borrower or any of its successors or assigns.  No Managing Agent shall be required to takeany action that exposes it to personal liability or that is contrary to thisAgreement or Applicable Law.  Theappointment and authority of each Managing Agent hereunder shall terminate atthe indefeasible payment in full of the Obligations.

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## **Section 10.2**                            Delegationof Duties.

###  

### (a)                                  TheAdministrative Agent may execute any of its duties under this Agreement by orthrough agents or attorneys-in-fact and shall be entitled to advice of counselconcerning all matters pertaining to such duties.  The Administrative Agent shall not be responsible for thenegligence or misconduct of any agents or attorneys-in-fact selected by it withreasonable care.

####  

### (b)                                 EachManaging Agent may execute any of its duties under this Agreement by or throughagents or attorneys-in-fact and shall be entitled to advice of counselconcerning all matters pertaining to such duties.  No Managing Agent shall be responsible for the negligence ormisconduct of any agents or attorneys-in-fact selected by it with reasonablecare.

####  

## **Section 10.3**                            ExculpatoryProvisions.

###  

### (a)                                  Neitherthe Administrative Agent nor any of its directors, officers, agents oremployees shall be (i) liable for any action lawfully taken or omitted to betaken by it or them under or in connection with this Agreement (except for its,their or such Person’s own gross negligence or willful misconduct or, in thecase of the Administrative Agent, the breach of its obligations expressly setforth in this Agreement), or (ii) responsible in any manner to any of theSecured Parties for any recitals, statements, representations or warrantiesmade by the Borrower contained in this Agreement or in any certificate, report,statement or other document referred to or provided for in, or received underor in connection with, this Agreement for the value, validity, effectiveness,genuineness, enforceability or sufficiency of this Agreement or any otherdocument furnished in connection herewith, or for any failure of the Borrowerto perform its obligations hereunder, or for the satisfaction of any conditionspecified in Article III.  TheAdministrative Agent shall not be under any obligation to any Secured Party toascertain or to inquire as to the observance or performance of any of theagreements or covenants contained in, or conditions of, this Agreement, or toinspect the properties, books or records of the Borrower.  The Administrative Agent shall not be deemedto have knowledge of any Early Termination Event unless the AdministrativeAgent has received notice of such Early Termination Event, in a document orother written communication titled “Notice of Early Termination Event” from theBorrower or a Secured Party.

####  

### (b)                                 Neitherany Managing Agent nor any of its respective directors, officers, agents oremployees shall be (i) liable for any action lawfully taken or omitted to betaken by it or them under or in connection with this Agreement (except for its,their or such Person’s own gross negligence or willful misconduct or, in thecase of a Managing Agent, the breach of its obligations expressly set forth inthis Agreement), or (ii) responsible in any manner to the Administrative Agentor any of the Secured Parties for any recitals, statements, representations orwarranties made by the Borrower contained in this Agreement or in anycertificate, report, statement or other document referred to or provided forin, or received under or in connection with, this Agreement or for the value,validity, effectiveness, genuineness, enforceability or sufficiency of this Agreementor any other document furnished in connection herewith, or for any failure ofthe Borrower to perform its obligations hereunder, or for the satisfaction ofany condition specified in Article III. No Managing Agent shall be under any obligation to the AdministrativeAgent or any Secured Party to ascertain or to inquire as to the observance orperformance of any of the agreements or covenants contained in, or conditionsof, this

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#####  

### Agreement, or to inspect the properties, books orrecords of the Borrower.  No ManagingAgent shall be deemed to have knowledge of any Early Termination Event unlesssuch Managing Agent has received notice of such Early Termination Event, in adocument or other written communication titled “Notice of Early TerminationEvent” from the Borrower, the Administrative Agent or a Secured Party.

####  

## **Section 10.4**                            Reliance.

###  

### (a)                                  TheAdministrative Agent shall in all cases be entitled to rely, and shall be fullyprotected in relying, upon any document or conversation believed by it to begenuine and correct and to have been signed, sent or made by the proper Personor Persons and upon advice and statements of legal counsel (including, withoutlimitation, counsel to the Borrower), independent accountants and other expertsselected by the Administrative Agent. The Administrative Agent shall in all cases be fully justified infailing or refusing to take any action under this Agreement or any other documentfurnished in connection herewith unless it shall first receive such advice orconcurrence of the Required Committed Lenders or all of the Secured Parties, asapplicable, as it deems appropriate or it shall first be indemnified to itssatisfaction by the Lenders, provided, that, unless and until theAdministrative Agent shall have received such advice, the Administrative Agentmay take or refrain from taking any action, as the Administrative Agent shalldeem advisable and in the best interests of the Secured Parties, TheAdministrative Agent shall in all cases be fully protected in acting, or inrefraining from acting, in accordance with a request of the Required CommittedLenders or all of the Secured Parties, as applicable, and such request and anyaction taken or failure to act pursuant thereto shall be binding upon all theSecured Parties.

####  

### (b)                                 EachManaging Agent shall in all cases be entitled to rely, and shall be fullyprotected in relying, upon any document or conversation believed by it to begenuine and correct and to have been signed, sent or made by the proper Personor Persons and upon advice and statements of legal counsel (including, withoutlimitation, counsel to the Borrower), independent accountants and other expertsselected by such Managing Agent.  EachManaging Agent shall in all cases be fully justified in failing or refusing totake any action under this Agreement or any other document furnished inconnection herewith unless it shall first receive such advice or concurrence ofthe Committed Lenders in its related Lender Group as it deems appropriate or itshall first be indemnified to its satisfaction by the Committed Lenders in itsrelated Lender Group, provided that unless and until such Managing Agent shallhave received such advice, the Managing Agent may take or refrain from takingany action, as the Managing Agent shall deem advisable and in the bestinterests of the Lenders in its Lender Group. Each Managing Agent shall in all cases be fully protected in acting, orin refraining from acting, in accordance with a request of the CommittedLenders in such Managing Agent’s Lender Group and such request and any actiontaken or failure to act pursuant thereto shall be binding upon all the Lendersin such Managing Agent’s Lender Group.

####  

## **Section 10.5**                            Non-Relianceon Administrative Agent, Managing Agents and Other Lenders.

###  

Each Secured Partyexpressly acknowledges that neither the Administrative Agent, any other SecuredParty nor any of their respective officers, directors, employees, agents,attorneys-

 

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in-fact or affiliates hasmade any representations or warranties to it and that no act by theAdministrative Agent or any other Secured Party hereafter taken, including,without limitation, any review of the affairs of the Borrower, shall be deemedto constitute any representation or warranty by the Administrative Agent or anyother Secured Party.  Each Secured Partyrepresents and warrants to the Administrative Agent and to each other SecuredParty that it has and will, independently and without reliance upon theAdministrative Agent or any other Secured Party and based on such documents andinformation as it has deemed appropriate, made its own appraisal of andinvestigation into the business, operations, property, prospects, financial andother conditions and creditworthiness of the Borrower and made its own decisionto enter into this Agreement

 

## **Section 10.6**                            Reimbursementand Indemnification.

###  

The Committed Lendersagree to reimburse and indemnify the Administrative Agent, and the CommittedLenders in each Lender Group agree to reimburse the Managing Agent for suchLender Group, and their respective officers, directors, employees,representatives and agents ratably according to their Commitments, asapplicable, to the extent not paid or reimbursed by the Borrower (i) for anyamounts for which the Administrative Agent, acting in its capacity asAdministrative Agent, or any Managing Agent, acting in its capacity as aManaging Agent, is entitled to reimbursement by the Borrower hereunder and (ii)for any other expenses incurred by the Administrative Agent, in its capacity asAdministrative Agent, or any Managing Agent, acting in its capacity as aManaging Agent, and acting on behalf of the related Lenders, in connection withthe administration and enforcement of this Agreement and the other TransactionDocuments.

 

## **Section 10.7**                            AdministrativeAgent and Managing Agents in their Individual Capacities.

###  

The Administrative Agent,each Managing Agent and each of their respective Affiliates may make loans to,accept deposits from and generally engage in any kind of business with theBorrower or any Affiliate of the Borrower as though the Administrative Agent orsuch Managing Agent, as the case may be, were not the Administrative Agent or aManaging Agent, as the case may be, hereunder. With respect to the acquisition of Advances pursuant to this Agreement,the Administrative Agent, each Managing Agent and each of their respectiveAffiliates shall have the same rights and powers under this Agreement as anyLender and may exercise the same as though it were not the Administrative Agentor a Managing Agent, as the case may be, and the terms “Committed Lender”“Lender” “Committed Lenders” and “Lenders” shall include the AdministrativeAgent or a Managing Agent, as the case may be, in its individual capacity.

 

## **Section 10.8**                            SuccessorAdministrative Agent or Managing Agent.

###  

### (a)                                  TheAdministrative Agent may, upon 5 days’ notice to the Borrower and the SecuredParties, and the Administrative Agent will, upon the direction of all of theLenders resign as Administrative Agent. If the Administrative Agent shall resign, then the Required CommittedLenders during such 5-day period shall appoint from among the Secured Parties asuccessor agent.  If for any reason nosuccessor Administrative Agent is appointed by the Required Committed Lendersduring such 5-day period, then effective upon the expiration of

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### such 5-day period, the Secured Parties shall performall of the duties of the Administrative Agent hereunder and the Borrower shallmake all payments in respect of the Obligations or under any Fee Letterdelivered by the Borrower to the Administrative Agent and the Secured Partiesdirectly to the applicable Managing Agents, on behalf of the Lenders in theapplicable Lender Group and for all purposes shall deal directly with theSecured Parties.  After any retiringAdministrative Agent’s resignation hereunder as Administrative Agent, theprovisions of Article IX and Article X shall inure to its benefitas to any actions taken or omitted to be taken by it while it wasAdministrative Agent under this Agreement.

####  

### (b)                                 AnyManaging Agent may, upon 5 days’ notice to the Borrower, the AdministrativeAgent and the related Lenders, and any Managing Agent will, upon the directionof all of the related Committed Lenders resign as a Managing Agent.  If a Managing 1Agent shall resign, then therelated Committed Lenders during such 5-day period shall appoint from among therelated Committed Lenders a successor Managing Agent.  If for any reason no successor Managing Agent is appointed bysuch Committed Lenders during such 5-day period, then effective upon theexpiration of such 5-day period, such Committed Lenders shall perform all ofthe duties of the related Managing Agent hereunder.  After any retiring Managing Agent’s resignation hereunder as aManaging Agent, the provisions of Article IX and Article X shallinure to its benefit as to any actions taken or omitted to be taken by it whileit was a Managing Agent under this Agreement.

####  

# **ARTICLE XI**

# **ASSIGNMENTS;PARTICIPATIONS**

## **Section 11.1**                            Assignmentsand Participations.

###  

### (a)                                  Borrowerand each Committed Lender hereby agree and consent to the complete or partialassignment by each CP Lender of all or any portion of its rights under,interest in, title to and obligations under this Agreement (i) to its LiquidityBanks pursuant to a Liquidity Agreement, (ii) (A) with respect to Concord, toany Person which issues commercial paper for which Liberty Hampshire Company,LLC provides services, (B) to any other issuer of commercial paper notessponsored or administered by the Managing Agent of such CP Lender’s LenderGroup or (C) to any Lender or any Affiliate of a Lender hereunder, or (iii) toany other Person; provided that, prior to the occurrence of an EarlyTermination Event, such CP Lender may not make any such assignment pursuant tothis clause (iii), except in the event that the circumstances described in Section11.1(c) occur, without the consent of the Borrower (which consent shall notbe unreasonably withheld or delayed). Upon such assignment, such CP Lender shall be released from itsobligations so assigned.  Further,Borrower and each Committed Lender hereby agree that any assignee of any CPLender of this Agreement or all or any of the outstanding Advances of such CPLender shall have all of the rights and benefits under this Agreement as if theterm “CP Lender” explicitly referred to such party, and no such assignmentshall in any way impair the rights and benefits of such CP Lenderhereunder.  Neither Borrower nor theServicer shall have the right to assign its rights or obligations under thisAgreement.

####  

### (b)                                 AnyCommitted Lender may at any time and from time to time assign to one or morePersons (“*PurchasingCommitted Lenders*”) all or any part of its rights and obligations

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#####  

### under this Agreement pursuant to an assignmentagreement, substantially in the form set forth in Exhibit C hereto (the“*Assignmentand Acceptance*”) executed by such Purchasing Committed Lender andsuch selling Committed Lender.  Theconsent of the CP Lender or CP Lenders in such Committed Lender’s Lender Groupshall be required prior to the effectiveness of any such assignment.  In addition, so long as no Early TerminationEvent or Unmatured Termination Event has occurred and is continuing at suchtime, the consent of the Borrower (such consent not to be unreasonably withheldor delayed) shall be required prior to the effectiveness of any suchassignment.  Each assignee of aCommitted Lender must be an Eligible Assignee and must agree to deliver to theAdministrative Agent, promptly following any request therefor by the ManagingAgent for its Lender Group or the affected CP Lender or CP Lenders, anenforceability opinion in form and substance satisfactory to such ManagingAgent and such CP Lender or CP Lenders. Upon delivery of the executed Assignment and Acceptance to theAdministrative Agent, such selling Committed Lender shall be released from itsobligations hereunder to the extent of such assignment.  Thereafter the Purchasing Committed Lendershall for all purposes be a Committed Lender party to this Agreement and shallhave all the rights and obligations of a Committed Lender under this Agreementto the same extent as if it were an original party hereto and no furtherconsent or action by Borrower, the Lenders or the Administrative Agent shall berequired.

####  

### (c)                                  Eachof the Committed Lenders agrees that in the event that it shall cease to havethe Required Ratings (an “*Affected Committed Lender*”), such AffectedCommitted Lender shall be obliged, at the request of the CP Lenders in suchCommitted Lender’s Lender Group or the applicable Managing Agent, to assign allof its rights and obligations hereunder to (x) another Committed Lender or (y)another funding entity nominated by such Managing Agent and acceptable to suchaffected CP Lenders, and willing to participate in this Agreement through theTermination Date in the place of such Affected Committed Lender; providedthat the Affected Committed Lender receives payment in full, pursuant to anAssignment Agreement, of an amount equal to such Committed Lender’s Pro RataShare of the outstanding Advances and Interest owing to the Committed Lendersand all accrued but unpaid fees and other costs and expenses payable in respectof its Pro Rata Share of the outstanding Advances of the Committed Lenders.

####  

### (d)                                 Byexecuting and delivering an Assignment and Acceptance, the Purchasing CommittedLender thereunder and the selling Committed Lender thereunder confirm to andagree with each other and the other parties hereto as follows: (i) other thanas provided in such Assignment and Acceptance, such selling Committed Lendermakes no representation or warranty and assumes no responsibility with respectto any statements, warranties or representations made in or in connection withthis Agreement or the execution, legality, validity, enforceability,genuineness, sufficiency or value of this Agreement or any other instrument ordocument furnished pursuant hereto; (ii) such selling Committed Lender makes norepresentation or warranty and assumes no responsibility with respect to thefinancial condition of the related CP Lender or the performance or observanceby such CP Lender of any of its obligations under this Agreement or any otherinstrument or document furnished pursuant hereto; (iii) such PurchasingCommitted Lender confirms that it has received a copy of this Agreement, togetherwith copies of such financial statements and other documents and information asit has deemed appropriate to make its own credit analysis and decision to enterinto such Assignment and Acceptance; (iv) such Purchasing Committed Lenderwill, independently and without reliance upon the Administrative Agent or anyManaging Agent, the selling Committed Lender or any

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### other Committed Lender and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit decisions in taking or not taking action under this Agreement; (v) suchPurchasing Committed Lender and such selling Committed Lender confirm that suchPurchasing Committed Lender is an Eligible Assignee; (vi) such PurchasingCommitted Lender appoints and authorizes each of the Administrative Agent andthe applicable Managing Agent to take such action as agent on its behalf and toexercise such powers under this Agreement as are delegated to such agent by theterms hereof, together with such powers as are reasonably incidental thereto;and (vii) such Purchasing Committed Lender agrees that it will perform inaccordance with their terms all of the obligations which by the terms of thisAgreement are required to be performed by it as a Committed Lender.

#####  

### (e)                                  TheAdministrative Agent shall maintain at its address referred to herein a copy ofeach Assignment and Acceptance delivered to and accepted by it and a registerfor the recordation of the names and addresses of the Committed Lenders and theCommitment of, and principal amount of, each Advance owned by each CommittedLender from time to time (the “*Register*”).  The entries in the Register shall be conclusive and binding forall purposes, absent manifest error, and the Lenders, the Borrower and theManaging Agents may treat each Person whose name is recorded in the Register asa Committed Lender hereunder for all purposes of this Agreement.  The Register shall be available forinspection by the Lenders, any Managing Agent or the Borrower at any reasonabletime and from time to time upon reasonable prior notice.

####  

### (f)                                    Subjectto the provisions of this Section 11.1, upon their receipt of anAssignment and Acceptance executed by an selling Committed Lender and anPurchasing Committed Lender, the Administrative Agent shall, if such Assignmentand Acceptance has been completed and is in substantially the form of ExhibitC hereto, accept such Assignment and Acceptance, and the AdministrativeAgent shall then (i) record the information contained therein in the Registerand (ii) give prompt notice thereof to each Managing Agent.

####  

### (g)                                 AnyCommitted Lender may, in the ordinary course of its business at any time sellto one or more Persons (each a “*Participant*”) participating interests inits Pro-Rata Share of the Advances of the Committed Lenders or any otherinterest of such Committed Lender hereunder. Notwithstanding any such sale by a Committed Lender of a participatinginterest to a Participant, such Committed Lender’s rights and obligations underthis Agreement shall remain unchanged, such Committed Lender shall remainsolely responsible for the performance of its obligations hereunder, and theBorrower, the CP Lenders, the Managing Agents and the Administrative Agentshall continue to deal solely and directly with such Committed Lender inconnection with such Committed Lender’s rights and obligations under thisAgreement.  Each Committed Lender agreesthat any agreement between such Committed Lender and any such Participant inrespect of such participating interest shall not restrict such CommittedLender’s right to agree to any amendment, supplement, waiver or modification tothis Agreement, except for any amendment, supplement, waiver or modificationset forth in Section 12.1 of this Agreement.

####  

### (h)                                 EachCommitted Lender may, in connection with any assignment or participation orproposed assignment or participation pursuant to this Section 11.1,disclose to the assignee or participant or proposed assignee or participant anyinformation relating to the Borrower or Servicer furnished to such CommittedLender by or on behalf of the Borrower or the Servicer.

######  

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######  

### (i)                                     Nothingherein shall prohibit any Committed Lender from pledging or assigning ascollateral any of its rights under this Agreement to any Federal Reserve Bankin accordance with Applicable Law and any such pledge or collateral assignmentmay be made without compliance with Section 11.1(a) or Section11.1(b).

####  

### (j)                                     Inthe event any Committed Lender causes increased costs, expenses or taxes to beincurred by the Administrative Agent, Managing Agents or the related CP Lenderin connection with the assignment or participation of such Committed Lender’srights and obligations under this Agreement to an Eligible Assignee then suchCommitted Lender agrees that it will make reasonable efforts to assign suchincreased costs, expenses or taxes to such Eligible Assignee in accordance withthe provisions of this Agreement.

####  

## **Section 11.2**                            AdditionalLender Groups.

###  

Upon the Borrower’srequest, with the consent of the Administrative Agent, an additional LenderGroup may be added to this Agreement at any time by the execution and deliveryof a Joinder Agreement by the members of such proposed additional Lender Group,the Borrower, the Servicer and the Administrative Agent, which execution anddelivery shall not be unreasonably refused by such parties.  Upon the effective date of such JoinderAgreement, (i) each Person specified therein as a “CP Lender” shall become aparty hereto as a CP Lender, entitled to the rights and subject to theobligations of a CP Lender hereunder, (ii) each Person specified therein as a“Committed Lender” shall become a party hereto as a Committed Lender, entitledto the rights and subject to the obligations of a Committed Lender hereunder,(iii) each Person specified therein as a “Managing Agent” shall become a partyhereto as a Managing Agent, entitled to the rights and subject to theobligations of a Managing Agent hereunder and (iv) the Facility Amount shall beincreased by an amount equal to the aggregate Commitments of the CommittedLenders party to such Joinder Agreement. On or prior to the effective date of such Joinder Agreement, theBorrower, the Servicer and the new Managing Agent shall enter into a fee letterfor purposes of setting forth the fees payable to the members of such LenderGroup in connection with this Agreement, which fee letter shall be considered a“Fee Letter” for all purposes of this Agreement.  The Administrative Agent shall give each Lender prompt notice ofthe addition of any Lender Group.

 

# **ARTICLE XII**

## ** **

# **MISCELLANEOUS**

## ** **

## **Section 12.1**                            Amendmentsand Waivers.

###  

Except as provided inthis Section 12.1, no amendment, waiver or other modification of anyprovision of this Agreement shall be effective without (x) written notice toConcord delivered two (2) Business Days prior to effectiveness, which noticerequirement may be waived in Concord’s sole discretion and (y) the writtenagreement of the Borrower, the Administrative Agent, the Managing Agents andthe Required Committed Lenders; provided, however, that (i)without the consent of the Committed Lenders in any Lender Group (other thanthe Lender Group to which such Committed Lenders are being added), theAdministrative Agent and the applicable Managing Agent may, with the consent ofBorrower, amend this Agreement solely to

 

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add additional Persons asCommitted Lenders hereunder, (ii) any amendment of this Agreement that issolely for the purpose of increasing the Commitment of a specific CommittedLender may be effected with the written consent of the Borrower, theAdministrative Agent and the affected Committed Lender, (iii) any amendmentwaiver or other modification, the effect of which is to create a commitment byany CP Lender to fund Advances hereunder, shall not be effective without theconsent of such CP Lender, and (iv) the consent of each affected Lender shallbe required to: (A) extend the Commitment Termination Date or the date of anypayment or deposit of Collections by the Borrower or the Servicer, (B) reducethe amount (other than by reason of the repayment thereof) or extend the timeof payment of Advances Outstanding or reduce the rate or extend the time ofpayment of Interest (or any component thereof) or increase the Group AdvanceLimit of the related Lender Group, (C) reduce any fee payable to theAdministrative Agent or any Managing Agent for the benefit of the Lenders, (D)amend, modify or waive any provision of the definition of Required CommittedLenders or Sections 2.11, 11.1(a), 12.1, 12.9, or 12.10,(E) consent to or permit the assignment or transfer by the Borrower of any ofits rights and obligations under this Agreement, (F) amend or waive anyServicer Termination Event or Early Termination Event, (G) change thedefinition of “Borrowing Base,” “Charged-Off Ratio,” “Default Ratio,” “EligibleLoan,” “Peak CP Funding Period,” or “Settlement Date,” or (H) amend or modifyany defined term (or any defined term used directly or indirectly in suchdefined term) used in clauses (A) through (G) above in a manner that wouldcircumvent the intention of the restrictions set forth in such clauses.  Any waiver or consent shall be effectiveonly in the specific instance and for the specific purpose for which given.

 

No amendment, waiver orother modification (i) affecting the rights or obligations of any HedgeCounterparty or (ii) having a material affect on the rights or obligations ofthe Collateral Custodian or the Backup Servicer (including any duties of theServicer that the Backup Servicer would have to assume as Successor Servicer)shall be effective against such Person without the written agreement of suchPerson.  The Borrower or the Servicer onits behalf will deliver a copy of all waivers and amendments to the CollateralCustodian and the Backup Servicer.

 

## **Section 12.2**                            Notices, Etc.

###  

All notices and othercommunications provided for hereunder shall, unless otherwise stated herein, bein writing (including telex communication and communication by facsimile copy)and mailed, telexed, transmitted or hand delivered, as to each party hereto, atits address set forth under its name on the signature pages hereof or specifiedin such party’s Assignment and Acceptance or Joinder Agreement or at such otheraddress as shall be designated by such party in a written notice to the otherparties hereto.  All such notices andcommunications shall be effective, upon receipt, or in the case of (a) noticeby mail, five days after being deposited in the United States mail, first classpostage prepaid, (b) notice by telex, when telexed against receipt of answerback, or (c) notice by facsimile copy, when verbal communication of receipt isobtained, except that notices and communications pursuant to this ArticleXII shall not be effective until received with respect to any notice sentby mail or telex.

 

## **Section 12.3**                            No Waiver,Rights and Remedies.

###  

No failure on the part ofthe Administrative Agent or any Secured Party or any assignee of any SecuredParty to exercise, and no delay in exercising, any right or remedy hereundershall

 

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operate as a waiverthereof; nor shall any single or partial exercise of any right or remedyhereunder preclude any other or further exercise thereof or the exercise of anyother right.  The rights and remediesherein provided are cumulative and not exclusive of any rights and remediesprovided by law.

 

## **Section 12.4**                            BindingEffect.

###  

This Agreement shall bebinding upon and inure to the benefit of the Borrower, the AdministrativeAgent, the Secured Parties and their respective successors and permittedassigns and, in addition, the provisions of Section 2.8 shall inure tothe benefit of each Hedge Counterparty, whether or not that Hedge Counterpartyis a Secured Party, and the provisions relating to the Backup Servicer,including Sections 2.8, 7.18, 9.1 and 9.2 shallinure to the benefit of the Backup Servicer.

 

## **Section 12.5**                            Term of thisAgreement.

###  

This Agreement, including, without limitation, theBorrower’s obligation to observe its covenants set forth in Article V,and the Servicer’s obligation to observe its covenants set forth in ArticleVII, shall remain in full force and effect until the Collection Date; provided,however, that the rights and remedies with respect to any breach of anyrepresentation and warranty made or deemed made by the Borrower pursuant to ArticlesIII and IV and the indemnification and payment provisions of ArticleIX and Article X and the provisions of Section 12.9 and Section12.10 shall be continuing and shall survive any termination of thisAgreement.

 

## **Section 12.6**                            GOVERNINGLAW; CONSENT TO JURISDICTION; WAIVER OF OBJECTION TO VENUE.

###  

THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED INACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  EACH OF THE SECURED PARTIES, THE BORROWER AND THE ADMINISTRATIVEAGENT HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURTLOCATED WITHIN THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AND EACH SECURED PARTY HEREBY WAIVES ANYOBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANYACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TOTHE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCHCOURT.

 

## **Section 12.7**                            WAIVER OFJURY TRIAL.

###  

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THESECURED PARTIES, THE BORROWER AND THE ADMINISTRATIVE AGENT WAIVES ANY RIGHT TOHAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH,RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTIONWITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  INSTEAD, ANY

 

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SUCH DISPUTE RESOLVED INCOURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.

 

## **Section 12.8**                            Costs,Expenses and Taxes.

 

### (a)                                  Inaddition to the rights of indemnification granted to the Administrative Agent,the Managing Agents, the other Secured Parties and its or their Affiliates andofficers, directors, employees and agents thereof under Article IXhereof, the Borrower agrees to pay on demand all reasonable costs and expensesof the Administrative Agent, the Managing Agents, Concord and the other SecuredParties incurred in connection with the preparation, execution, delivery,administration (including periodic auditing), amendment or modification of, orany waiver or consent issued in connection with, this Agreement and the otherdocuments to be delivered hereunder or in connection herewith, including,without limitation, the reasonable fees and out-of-pocket expenses of counselfor the Administrative Agent, the Managing Agents, Concord and the otherSecured Parties with respect thereto and with respect to advising theAdministrative Agent, the Managing Agents, Concord and the other SecuredParties as to their respective rights and remedies under this Agreement and theother documents to be delivered hereunder or in connection herewith, and allcosts and expenses, if any (including reasonable counsel fees and expenses),incurred by the Administrative Agent, the Managing Agents, Concord or the otherSecured Parties in connection with the enforcement of this Agreement and theother documents to be delivered hereunder or in connection herewith (includingany Hedge Agreement).

 

### (b)                                 TheBorrower shall pay on demand any and all stamp, sales, excise and other taxesand fees payable or determined to be payable in connection with the execution,delivery, filing and recording of this Agreement, the other documents to bedelivered hereunder or any agreement or other document providing liquiditysupport, credit enhancement or other similar Support to the Lender inconnection with this Agreement or the funding or maintenance of Advanceshereunder.

 

### (c)                                  TheBorrower shall pay on demand all other costs, expenses and taxes (excludingincome taxes) (“*Other Costs*”),including, without limitation, all reasonable costs and expenses incurred bythe Administrative Agent or any Managing Agent in connection with periodicaudits of the Borrower’s or the Servicer’s books and records, which areincurred as a result of the execution of this Agreement.

 

## **Section 12.9**                            NoProceedings.

 

Each party hereto (otherthan the applicable CP Lender) hereby covenants and agrees that on behalf ofitself and each of its affiliates, that prior to the date which is one year andone day after the payment in full of all indebtedness for borrowed money of aCP Lender, such party will not institute against, or join any other Person ininstituting against, such CP Lender any bankruptcy, reorganization,arrangement, insolvency or liquidation proceedings or other similar proceedingunder the laws of the United States or any state of the United States.  The provisions of this Section 12.9shall survive the termination of this Agreement.

 

Each of the partieshereto (other than the Administrative Agent and the Secured Parties) herebyagrees that it will not institute against, or join any other Person ininstituting against the

 

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Borrower any InsolvencyProceeding so long as there shall not have elapsed one year and one day sincethe Collection Date.

 

## **Section 12.10**                     RecourseAgainst Certain Parties.

 

### (a)                                  Norecourse under or with respect to any obligation, covenant or agreement(including, without limitation, the payment of any fees or any otherobligations) of the Administrative Agent, any Secured Party as contained inthis Agreement or any other agreement, instrument or document entered into byit pursuant hereto or in connection herewith shall be had against any Person orany manager or administrator of such Person or any incorporator, affiliate,stockholder, officer, employee or director of such Person or of the Borrower orof any such manager or administrator, as such, by the enforcement of anyassessment or by any legal or equitable proceeding, by virtue of any statute orotherwise.

####  

### (b)                                 Eachof parties hereto hereby acknowledges and agrees that any other transactionswith a CP Lender hereunder shall be without recourse of any kind to such CPLender.  A CP Lender shall have noobligation to pay any amounts owing hereunder in excess of any amount availableto such CP Lender after paying or making provision for the payment of anycommercial paper notes of such CP Lender. In addition, each party hereto agrees that a CP Lender shall have noobligation to pay any other party, any amounts constituting fees, areimbursement for expenses or indemnities (collectively, “Expense Claims”), andsuch Expense Claims shall not constitute a claim against such CP Lender (asdefined in Section 101 of Title 11 of the United States Bankruptcy Code),unless or until such CP Lender has received amounts sufficient to pay suchExpense Claims and such amounts are not required to pay the commercial paper ofsuch CP Lender.

####  

### (c)                                  Theprovisions of this Section 12.10 shall survive the termination of thisAgreement.

####  

## **Section 12.11**                     Protectionof Security Interest; Appointment of Administrative Agent as Attorney-in-Fact.

 

### (a)                                  TheBorrower shall, or shall cause the Servicer to, cause this Agreement, allamendments hereto and/or all financing statements and continuation statementsand any other necessary documents covering the right, title and interest of theAdministrative Agent as agent for the Secured Parties and of the SecuredParties to the Collateral to be promptly recorded, registered and filed, and atall time to be kept recorded, registered and filed, all in such manner and insuch places as may be required by law fully to preserve and protect the right,title and interest of the Administrative Agent as agent for the Secured Partieshereunder to all property comprising the Collateral.  The Borrower shall deliver or, shall cause the Servicer todeliver, to the Administrative Agent file-stamped copies of, or filing receiptsfor, any document recorded, registered or filed as provided above, as soon as availablefollowing such recording, registration or filing.  The Borrower and the Servicer shall cooperate fully in connectionwith the obligations set forth above and will execute any and all documentsreasonably required to fulfill the intent of this Section 12.11.

######  

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######  

### (b)                                 TheBorrower agrees that from time to time, at its expense, it will promptlyexecute and deliver all instruments and documents, and take all actions, thatmay reasonably be necessary or desirable, or that the Administrative Agent mayreasonably request, to perfect, protect or more fully evidence the securityinterest granted to the Administrative Agent, as agent for the Secured Parties,in the Collateral, or to enable the Administrative Agent or the Secured Partiesto exercise and enforce their rights and remedies hereunder.

 

### (c)                                  Ifthe Borrower or the Servicer fails to perform any of its obligations hereunderafter five Business Days’ notice from the Administrative Agent, theAdministrative Agent or any Lender may (but shall not be required to) perform,or cause performance of, such obligation; and the Administrative Agent’s orsuch Lender’s reasonable costs and expenses incurred in connection therewithshall be payable by the Borrower (if the Servicer that fails to so perform isthe Borrower or an Affiliate thereof) as provided in Article IX, asapplicable.  The Borrower irrevocablyauthorizes the Administrative Agent and appoints the Administrative Agent asits attorney-in-fact to act on behalf of the Borrower, (i) to execute on behalfof the Borrower as debtor and to file financing statements necessary ordesirable in the Administrative Agent’s sole discretion to perfect and tomaintain the perfection and priority of the interest of the Secured Parties inthe Collateral and (ii) to file a carbon, photographic or other reproduction ofthis Agreement or any financing statement with respect to the Collateral as afinancing statement in such offices as the Administrative Agent in its sole discretiondeems necessary or desirable to perfect and to maintain the perfection andpriority of the interests of the Lenders in the Collateral.  This appointment is coupled with an interestand is irrevocable.

 

### (d)                                 Withoutlimiting the generality of the foregoing, Borrower will, not earlier than six(6) months and not later than three (3) months prior to the fifth anniversaryof the date of filing of the financing statement referred to in Section 3.1or any other financing statement filed pursuant to this Agreement or inconnection with any Advance hereunder, unless the Collection Date shall haveoccurred:

 

##### (i)                                     executeand deliver and file or cause to be filed an appropriate continuation statementwith respect to such financing statement; and

 

##### (ii)                                  deliveror cause to be delivered to the Administrative Agent an opinion of the counselfor Borrower, in form and substance reasonably satisfactory to theAdministrative Agent, confirming and updating the opinion delivered pursuant toSection 3.1 with respect to perfection and otherwise to the effect thatthe Collateral hereunder continues to be subject to a perfected securityinterest in favor of the Administrative Agent, as agent for the SecuredParties, subject to no other Liens of record except as provided herein orotherwise permitted hereunder, which opinion may contain usual and customaryassumptions, limitations and exceptions.

 

## **Section 12.12**                     Confidentiality.

 

### (a)                                  Eachof the Administrative Agent, the Managing Agents, the other Secured Parties andthe Borrower shall maintain and shall cause each of its employees and officersto maintain the confidentiality of the Agreement and the other confidentialproprietary information with respect to the other parties hereto and theirrespective businesses obtained by it or them in

###  

#### 79

##### 

#####  

### connection with the structuring, negotiating andexecution of the transactions contemplated herein, except that each such partyand its officers and employees may (i) disclose such information to itsexternal accountants and attorneys and as required by an Applicable Law, asrequired to be publicly filed with SEC, or as required by an order of anyjudicial or administrative proceeding, (ii) disclose the existence of thisAgreement, but not the financial terms thereof and (iii) disclose the Agreementand such information in any suit, action, proceeding or investigation (whetherin law or in equity or pursuant to arbitration) involving and of the LoanDocuments or any Hedging Agreement for the purpose of defending itself,reducing itself, reducing its liability, or protecting or exercising any of itsclaims, rights, remedies, or interests under or in connection with any of theLoan Documents or any Hedging Agreement.

 

### (b)                                 Anythingherein to the contrary notwithstanding, the Borrower hereby consents to thedisclosure of any nonpublic information with respect to it for use inconnection with the transactions contemplated herein and in the TransactionDocuments (i) to the Administrative Agent or the Secured Parties by each other,(ii) by the Administrative Agent or the Secured Parties to any prospective oractual Eligible Assignee or participant of any of them or (iii) by theAdministrative Agent or the Secured Parties to any Rating Agency, commercial paperdealer or provider of a surety, guaranty or credit or liquidity enhancement toa Secured Party and to any officers, directors, members, employees, outsideaccountants and attorneys of any of the foregoing, provided each such Person isinformed of the confidential nature of such information and agree to be boundhereby.  In addition, the SecuredParties and the Administrative Agent may disclose any such nonpublicinformation pursuant to any law, rule, regulation, direction, request or orderof any judicial, administrative or regulatory authority or proceedings.

 

### (c)                                  TheBorrower and the Servicer each agrees that it shall not (and shall not permitany of its Affiliates to) issue any news release or make any publicannouncement pertaining to the transactions contemplated by this Agreement andthe Transaction Documents without the prior written consent of theAdministrative Agent (which consent shall not be unreasonably withheld) and, ifsuch news release or public announcement shall directly or indirectly referenceConcord, Concord (which consent shall not be unreasonably withheld) unless suchnews release or public announcement is required by law, in which case theBorrower or the Servicer shall consult with the Administrative Agent, Concordand each Managing Agent prior to the issuance of such news release or publicannouncement.  The Borrower and theServicer each may, however, disclose the general terms of the transactionscontemplated by this Agreement and the Transaction Documents to tradecreditors, suppliers and other similarly-situated Persons so long as suchdisclosure is not in the form of a news release or public announcement.

 

## **Section 12.13**                     Execution inCounterparts; Severability; Integration.

 

This Agreement may beexecuted in any number of counterparts and by different parties hereto inseparate counterparts, each of which when so executed shall be deemed to be anoriginal and all of which when taken together shall constitute one and the sameagreement.  In case any provision in orobligation under this Agreement shall be invalid, illegal or unenforceable inany jurisdiction, the validity, legality and enforceability of the remainingprovisions or obligations, or of such provision or obligation in any otherjurisdiction, shall not in any way be affected or impaired thereby.  This Agreement contains the final andcomplete integration of all prior expressions by the parties hereto withrespect to the subject matter hereof

 

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and shall constitute theentire agreement among the parties hereto with respect to the subject matterhereof, superseding all prior oral or written understandings other than any FeeLetter.

 

[REMAINDER OF PAGEINTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, theparties have caused this Agreement to be executed by their respective officersthereunto duly authorized, as of the date first above written.

 

 
| BORROWER: | GLADSTONE BUSINESS  LOAN, LLC                                                                                                                                                   |
|-----------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|      |                                                                                                                                                                            |
|      | By                                                                                                                                                                              | /s/ Terry Brubaker |
|      |                                                                                                                                                                            | Title:  President |
|      |                                                                                                                                                                            |   |
|      | Gladstone Business  Loan, LLC 1750 Tysons Blvd.,  4th Floor McLean, Virginia   22102 Attention:  President Facsimile No.: (703) 286-0795  Confirmation No.: (703) 744-1165 |
|      |                                                                                                                                                                            |
| SERVICER: | GLADSTONE ADVISERS,  INC.                                                                                                                                                       |
|      |                                                                                                                                                                            |
|      | By                                                                                                                                                                              | /s/ David Gladstone |
|      |                                                                                                                                                                            | Title:  Chairman |
|      |                                                                                                                                                                            |   |
|      | Gladstone Advisers,  Inc.  1616 Anderson Road  McLean, Virginia  22102  Attention: Chairman  Facsimile No.: (703) 286-0795  Confirmation No.: (703) 286-0776               |
|           |                                                                                                                                                                                 |  |  |

 

[SIGNATURESCONTINUED ON FOLLOWING PAGE]

 

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| COMMITTED LENDER: | CANADIAN IMPERIAL BANK  OF  COMMERCE                                                                                                                                                                                                                         |
|-------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|              |                                                                                                                                                                                                                                                         |
|              |                                                                                                                                                                                                                                                         |
|              | By                                                                                                                                                                                                                                                           | /s/ Mark O’Keefe |
|              |                                                                                                                                                                                                                                                         | Title: Authorized  Signatory |
|              |                                                                                                                                                                                                                                                         |   |
|              | Commitment:  $100,000,000                                                                                                                                                                                                                               |
|              |                                                                                                                                                                                                                                                         |
|              | Canadian Imperial Bank  Of Commerce  425 Lexington Avenue  New York, New York  10017  Attention:  Asset Securitization Group  – Gladstone  Business Loan Officer  Facsimile No.:  (212) 856-3643

Confirmation No.:  (212) 856-4000 |
|              |                                                                                                                                                                                                                                                         |
| CP LENDER:        | CONCORD MINUTEMEN  CAPITAL COMPANY, LLC                                                                                                                                                                                                                      |
|              |                                                                                                                                                                                                                                                         |
|              |                                                                                                                                                                                                                                                         |
|              | By                                                                                                                                                                                                                                                           | /s/ Thomas J. Irvin |
|              |                                                                                                                                                                                                                                                         | Title: Manager |
|              |                                                                                                                                                                                                                                                         |   |
|              | Concord Minutemen Capital  Company, LLC  227 West Monroe  Suite 4000  Chicago, Illinois  60606  Attention:  Operations Department  Facsimile No.:  (312) 977-1967/1699  Confirmation No.:  (312) 977-4560                                |
|                   |                                                                                                                                                                                                                                                              |  |  |

 

[SIGNATURESCONTINUED ON FOLLOWING PAGE]

 

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| MANAGING AGENT for the  Concord  Lender Group: | CANADIAN IMPERIAL BANK  OF  COMMERCE                                                                                                                                                                                                                         |
|------------------------------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                           |                                                                                                                                                                                                                                                         |
|                                           | By                                                                                                                                                                                                                                                           | /s/ Mark O’Keefe |
|                                           |                                                                                                                                                                                                                                                         | Title: Authorized  Signatory |
|                                           |                                                                                                                                                                                                                                                         |   |
|                                           | Canadian Imperial Bank  Of Commerce  425 Lexington Avenue  New York, New York  10017  Attention:  Asset Securitization Group  – Gladstone  Business Loan Officer  Facsimile No.:  (212) 856-3643  Confirmation No.:  (212) 856-4000 |
|                                           |                                                                                                                                                                                                                                                         |
| ADMINISTRATIVE AGENT                           | CANADIAN IMPERIAL BANK  OF  COMMERCE                                                                                                                                                                                                                         |
|                                           |                                                                                                                                                                                                                                                         |
|                                           | By                                                                                                                                                                                                                                                           | /s/ Mark O’Keefe |
|                                           |                                                                                                                                                                                                                                                         | Title: Authorized  Signatory |
|                                           |                                                                                                                                                                                                                                                         |   |
|                                           | Canadian Imperial Bank  Of Commerce  425 Lexington Avenue  New York, New York  10017  Attention:  Asset Securitization Group  – Gladstone Business Loan Officer  Facsimile No.:  (212) 856-3643  Confirmation No.:  (212) 856-4000  |
|                                                |                                                                                                                                                                                                                                                              |  |  |

 

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