exv10w25



 




Exhibit 10.25












U.S. $400,000,000




SALE AND SERVICING AGREEMENT




by and among




CAPITALSOURCE FUNDING III LLC,



as the Seller




CAPITALSOURCE FINANCE LLC,



as the Originator and as the Servicer




VARIABLE FUNDING CAPITAL CORPORATION




and




EACH OTHER COMMERCIAL PAPER CONDUIT

FROM TIME TO TIME PARTY HERETO,



as the Conduit Purchasers




WACHOVIA BANK, NATIONAL ASSOCIATION,



as the Swingline Purchaser




WACHOVIA CAPITAL MARKETS, LLC,



as the Administrative Agent and as the VFCC Agent




and




EACH OTHER PURCHASER AGENT

FROM TIME TO TIME PARTY HERETO,



as the Additional Agents




WELLS FARGO BANK, NATIONAL ASSOCIATION,



as the Backup Servicer and as the Collateral Custodian




Dated as of April 20, 2004
















 









 












TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	ARTICLE I DEFINITION
	 	 	2	 
	Section 1.1 Certain Defined Terms
	 	 	2	 
	Section 1.2 Other Terms
	 	 	51	 
	Section 1.3 Computation of Time Periods
	 	 	51	 
	Section 1.4 Interpretation
	 	 	51	 
	ARTICLE II PURCHASE OF THE VARIABLE FUNDING CERTIFICATES
	 	 	52	 
	Section 2.1 The Variable Funding Certificates
	 	 	52	 
	Section 2.2 Procedures for Swingline Advances by the Swingline Purchaser
	 	 	54	 
	Section 2.3 Procedures for Advances by Conduit Purchasers
	 	 	55	 
	Section 2.4 Reduction of the Facility Amount; Mandatory and Optional Repayments
	 	 	55	 
	Section 2.5 Determination of Interest
	 	 	57	 
	Section 2.6 Percentage Evidenced by each Variable Funding Certificate
	 	 	57	 
	Section 2.7 Reimbursement of Swingline Advances
	 	 	57	 
	Section 2.8 Notations on Variable Funding Certificates
	 	 	58	 
	Section 2.9 Settlement Procedures During the Revolving Period
	 	 	58	 
	Section 2.10 Settlement Procedures During the Amortization Period
	 	 	60	 
	Section 2.11 Collections and Allocations
	 	 	61	 
	Section 2.12 Payments, Computations, Etc
	 	 	62	 
	Section 2.13 Optional Repurchase
	 	 	63	 
	Section 2.14 Fees
	 	 	63	 
	Section 2.15 Increased Costs; Capital Adequacy; Illegality
	 	 	63	 
	Section 2.16 Taxes
	 	 	65	 
	Section 2.17 Assignment of the Sale Agreement
	 	 	66	 
	Section 2.18 Substitution of Assets
	 	 	66	 
	Section 2.19 Optional Sales
	 	 	68	 
	ARTICLE III CONDITIONS TO ADVANCES AND SWINGLINE ADVANCES
	 	 	69	 
	Section 3.1 Conditions to Closing and Initial Advance
	 	 	69	 
	Section 3.2 Conditions Precedent to All Advances and Swingline Advances
	 	 	70	 







i









 





TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page

	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	73	 
	Section 4.1 Representations and Warranties of the Seller
	 	 	73	 
	Section 4.2 Representations and Warranties of the Seller Relating to the Agreement and the Collateral
	 	 	83	 
	Section 4.3 Representations and Warranties of the Servicer
	 	 	84	 
	Section 4.4 Representations and Warranties of the Backup Servicer
	 	 	87	 
	Section 4.5 Representations and Warranties of the Collateral Custodian
	 	 	87	 
	Section 4.6 Breach of Certain Representations and Warranties
	 	 	88	 
	ARTICLE V GENERAL COVENANTS
	 	 	89	 
	Section 5.1 Affirmative Covenants of the Seller
	 	 	89	 
	Section 5.2 Negative Covenants of the Seller
	 	 	92	 
	Section 5.3 Covenants of the Seller Relating to the Hedging of Assets
	 	 	95	 
	Section 5.4 Affirmative Covenants of the Servicer
	 	 	95	 
	Section 5.5 Negative Covenants of the Servicer
	 	 	98	 
	Section 5.6 Affirmative Covenants of the Backup Servicer
	 	 	99	 
	Section 5.7 Negative Covenants of the Backup Servicer
	 	 	100	 
	Section 5.8 Affirmative Covenants of the Collateral Custodian
	 	 	100	 
	Section 5.9 Negative Covenants of the Collateral Custodian
	 	 	100	 
	ARTICLE VI ADMINISTRATION AND SERVICING OF CONTRACTS
	 	 	100	 
	Section 6.1 Designation of the Servicer
	 	 	100	 
	Section 6.2 Duties of the Servicer
	 	 	101	 
	Section 6.3 Authorization of the Servicer
	 	 	103	 
	Section 6.4 Collection of Payments
	 	 	103	 
	Section 6.5 Servicer Advances
	 	 	105	 
	Section 6.6 Realization Upon Charged-Off Assets
	 	 	106	 
	Section 6.7 Maintenance of Insurance Policies
	 	 	106	 
	Section 6.8 Servicing Compensation
	 	 	107	 
	Section 6.9 Payment of Certain Expenses by Servicer
	 	 	107	 
	Section 6.10 Reports
	 	 	107	 
	Section 6.11 Annual Statement as to Compliance
	 	 	108	 







ii









 





TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page

	Section 6.12 Annual Independent Public Accountant’s Servicing Reports
	 	 	108	 
	Section 6.13 Limitation on Liability of the Servicer and Others
	 	 	108	 
	Section 6.14 The Servicer Not to Resign
	 	 	109	 
	Section 6.15 Servicer Defaults
	 	 	109	 
	Section 6.16 Appointment of Successor Servicer
	 	 	111	 
	ARTICLE VII THE BACKUP SERVICER
	 	 	113	 
	Section 7.1 Designation of the Backup Servicer
	 	 	113	 
	Section 7.2 Duties of the Backup Servicer
	 	 	113	 
	Section 7.3 Merger or Consolidation
	 	 	114	 
	Section 7.4 Backup Servicing Compensation
	 	 	115	 
	Section 7.5 Backup Servicer Removal
	 	 	115	 
	Section 7.6 Limitation on Liability
	 	 	115	 
	Section 7.7 The Backup Servicer Not to Resign
	 	 	116	 
	ARTICLE VIII THE COLLATERAL CUSTODIAN
	 	 	116	 
	Section 8.1 Designation of Collateral Custodian
	 	 	116	 
	Section 8.2 Duties of Collateral Custodian
	 	 	116	 
	Section 8.3 Merger or Consolidation
	 	 	118	 
	Section 8.4 Collateral Custodian Compensation
	 	 	118	 
	Section 8.5 Collateral Custodian Removal
	 	 	118	 
	Section 8.6 Limitation on Liability
	 	 	119	 
	Section 8.7 The Collateral Custodian Not to Resign
	 	 	120	 
	Section 8.8 Release of Documents
	 	 	120	 
	Section 8.9 Return of Required Asset Documents
	 	 	121	 
	Section 8.10 Access to Certain Documentation and Information Regarding the Collateral; Audits
	 	 	121	 
	ARTICLE IX SECURITY INTEREST
	 	 	121	 
	Section 9.1 Grant of Security Interest
	 	 	121	 
	Section 9.2 Release of Lien on Collateral
	 	 	122	 
	Section 9.3 Further Assurances
	 	 	123	 
	Section 9.4 Remedies
	 	 	123	 







iii









 





TABLE OF CONTENTS

(continued)



	 	 	 	 	 
	 	 	Page

	Section 9.5 Waiver of Certain Laws
	 	 	123	 
	Section 9.6 Power of Attorney
	 	 	123	 
	ARTICLE X TERMINATION EVENTS
	 	 	124	 
	Section 10.1 Termination Events
	 	 	124	 
	Section 10.2 Remedies
	 	 	126	 
	ARTICLE XII INDEMNIFICATION
	 	 	127	 
	Section 11.1 Indemnities by the Seller
	 	 	127	 
	Section 11.2 Indemnities by the Servicer
	 	 	130	 
	Section 11.3 After-Tax Basis
	 	 	130	 
	ARTICLE XII THE ADMINISTRATIVE AGENT AND PURCHASER AGENTS
	 	 	131	 
	Section 12.1 The Administrative Agent
	 	 	131	 
	Section 12.2 VFCC Agent
	 	 	134	 
	Section 12.3 Additional Agent
	 	 	135	 
	ARTICLE XIII MISCELLANEOUS
	 	 	138	 
	Section 13.1 Amendments and Waivers
	 	 	138	 
	Section 13.2 Notices, Etc
	 	 	138	 
	Section 13.3 Ratable Payments
	 	 	138	 
	Section 13.4 No Waiver; Remedies
	 	 	138	 
	Section 13.5 Binding Effect; Benefit of Agreement
	 	 	139	 
	Section 13.6 Term of this Agreement
	 	 	139	 
	Section 13.7 Governing Law; Consent to Jurisdiction; Waiver of Objection to Venue
	 	 	139	 
	Section 13.8 Waiver of Jury Trial
	 	 	139	 
	Section 13.9 Costs, Expenses and Taxes
	 	 	140	 
	Section 13.10 No Proceedings
	 	 	140	 
	Section 13.11 Recourse Against Certain Parties
	 	 	141	 
	Section 13.12 Protection of Right, Title and Interest in the
Collateral; Further Action Evidencing Advances and Swingline Advances
	 	 	142	 
	Section 13.13 Confidentiality
	 	 	143	 
	Section 13.14 Execution in Counterparts; Severability; Integration
	 	 	145	 
	Section 13.15 Waiver of Setoff
	 	 	145	 







iv









 





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(continued)



	 	 	 	 	 
	 	 	Page

	Section 13.16 Assignments
	 	 	145	 
	Section 13.17 Heading and Exhibits
	 	 	146	 
	Section 13.18 Loans Subject to Retained Interest Provisions
	 	 	146	 
	Section 13.19 Tax Treatment of Advances
	 	 	146	 







	 	 	 
	EXHIBITS
	 	 
	EXHIBIT A-1

	 	Form of Borrowing Notice (Advances and Reduction of Facility Amount)
	EXHIBIT A-1-S

	 	Form of Borrowing Notice (Swingline Funding Request)
	EXHIBIT A-2

	 	Form of Borrowing Notice (Reinvestments of Principal Collections)
	EXHIBIT A-3

	 	Form of Borrowing Base Certificate
	EXHIBIT B-1

	 	Form of Variable Funding Certificate (VFCC)
	EXHIBIT B-2

	 	Form of Variable Funding Certificate (Wachovia Bank, National Association)
	EXHIBIT B-3

	 	Form of Variable Funding Certificate (Additional Purchasers)
	EXHIBIT C

	 	Form of Monthly Report
	EXHIBIT D

	 	Form of Hedging Agreement (including Schedule and Confirmation)
	EXHIBIT E-1

	 	Form of Officer’s Certificate to Solvency (CapitalSource Funding III LLC)
	EXHIBIT E-2

	 	Form of Officer’s Certificate to Solvency (CapitalSource Finance LLC)
	EXHIBIT F-1

	 	Form of Officer’s Closing Certificate (CapitalSource Funding III LLC)
	EXHIBIT F-2

	 	Form of Officer’s Closing Certificate (CapitalSource Finance LLC)
	EXHIBIT G-1

	 	Form of Power of Attorney(CapitalSource Funding III LLC)
	EXHIBIT G-2

	 	Form of Power of Attorney(CapitalSource Finance LLC)
	EXHIBIT H

	 	Form of Release of Required Asset Documents
	EXHIBIT I

	 	Form of Assignment of Mortgage
	EXHIBIT J

	 	Form of Servicer’s Certificate
	EXHIBIT K

	 	Form of Transferee Letter
	EXHIBIT L

	 	Form of Assumption Agreement
	EXHIBIT M

	 	Form of Certificate of Outside Counsel
	

	 	SCHEDULES
	SCHEDULE I

	 	Condition Precedent Documents
	SCHEDULE II

	 	List of Lock-Box Banks and Lock-Box Accounts
	SCHEDULE III

	 	Location of Required Asset Documents and Asset Files
	SCHEDULE IV

	 	Asset List
	SCHEDULE V

	 	Form of Lease
	SCHEDULE VI

	 	[Reserved]
	SCHEDULE VII

	 	Form of Senior B-Note Loan
	SCHEDULE VIII

	 	Form of Stretch Senior Secured Loan
	SCHEDULE IX

	 	SLP Acquisition Agreement







v









 






SALE AND SERVICING AGREEMENT




     THIS SALE AND SERVICING AGREEMENT (such agreement as amended, modified,
waived, supplemented, restated or replaced from time to time, the
“Agreement”) is made as of this April 20, 2004, by and among:



     (1) CAPITALSOURCE FUNDING III LLC, a Delaware limited liability company,
as the seller (together with its successors and assigns in such capacity, the
“Seller”);



     (2) CAPITALSOURCE FINANCE LLC, a Delaware limited liability company
(“CapitalSource Finance”), as the originator (together with its
successors and assigns in such capacity, the “Originator”), and as the
servicer (together with its successors and assigns in such capacity, the
“Servicer”);



     (3) VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation, as a
conduit purchaser (together with its successors and assigns in such capacity,
“VFCC”);



     (4) EACH OTHER COMMERCIAL PAPER CONDUIT FROM TIME TO TIME PARTY HERETO AS
AN ADDITIONAL PURCHASER (together with its successors and assigns in such
capacity, an “Additional Purchaser” and collectively with VFCC, the
“Conduit Purchasers”);



     (5) WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
(together with its successors and assigns, “Wachovia”), as the swingline
purchaser (together with its successors and assigns in such capacity, the
“Swingline Purchaser” and collectively with the Conduit Purchasers, the
“Purchasers”);



     (6) WACHOVIA CAPITAL MARKETS, LLC, a Delaware limited liability company
(together with its successors and assigns, “WCM”), as the agent for VFCC
(together with its successors and assigns in such capacity, the “VFCC
Agent”) and as the agent for the VFCC Agent and the Additional Agents
(together with its successors and assigns in such capacity, the
“Administrative Agent”);



     (7) EACH OTHER PURCHASER AGENT FROM TIME TO TIME PARTY HERETO as an
additional agent (together with its successors and assigns in such capacity, an
“Additional Agent” and collectively, the “Additional Agents”);
and



     (8) WELLS FARGO BANK, NATIONAL ASSOCIATION (“Wells Fargo”), not in
its individual capacity but as the backup servicer (together with its
successors and assigns in such capacity, the “Backup Servicer”), and not
in its individual capacity but as the collateral custodian (together with its
successors and assigns in such capacity, the “Collateral Custodian”).



 









 





RECITALS




     WHEREAS, the Seller has acquired, and may from time to time continue to
acquire, certain Assets from the Originator pursuant to the Sale Agreement;



     WHEREAS, the Seller is prepared to transfer and assign, and grant security
interests in, certain Assets and other proceeds with respect thereto to the
Purchasers from time to time;



     WHEREAS, the Purchasers may, in accordance with the terms of this
Agreement, purchase such Assets



     WHEREAS, it is the intention of the parties hereto that (i) in connection
with each Advance or Swingline Advance hereunder, the Seller hereby transfers
and assigns to the Administrative Agent, on behalf of the Purchasers, and
hereby grants a security interest to the Administrative Agent, for the benefit
of the Secured Parties, in all of the Seller’s right, title and interest in and
to the Assets and proceeds with respect thereto, and (ii) this Agreement shall
constitute a security agreement under Applicable Law, in respect of the
transfer and grant described in the second Recital above, and all other
security interests granted hereunder; and



     WHEREAS, all other conditions precedent to the execution of this Agreement
have been complied with.



     NOW, THEREFORE, based upon the foregoing Recitals, the mutual premises and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:



ARTICLE I




DEFINITION




     Section 1.1 Certain Defined Terms.



     (a) Certain capitalized terms used throughout this Agreement are defined
above or in this Section 1.1. As used in this Agreement and its
schedules, exhibits and other attachments, unless the context requires a
different meaning, the following terms shall have the following meanings:



“1940 Act”: Defined in Section 10.1(i).



“Accrual Period”: (a) with respect to each Advance or Swingline Advance
(or portion thereof) funded at an Interest Rate other than the VFCC CP Rate or
an Additional Purchaser CP Rate, (i) with respect to the first Payment Date,
the period from and including the Closing Date to but excluding such first
Payment Date and (ii) with respect to any subsequent Payment Date, the period
from and including the previous Payment Date to but excluding such subsequent
Payment Date, and (b) with respect to each Advance or Swingline Advance (or
portion thereof) funded at an Interest Rate equal to the VFCC CP Rate or an
Additional Purchaser CP Rate, (i) with respect to the first Payment Date, the
period from and including the Closing Date to and including the


2









 






 last day of the calendar month in which the Closing Date occurs
and (ii) with respect to any subsequent Payment Date, the period ending on the
last day of the calendar month immediately preceding the month in which the
Payment Date occurs and commencing on the first (1st) day of such immediately
preceding calendar month.



“Acquired Loan”: A Loan that is originated by a Person other than the
Originator and acquired by the Originator in a “true sale” transaction pursuant
to an acquisition agreement substantially in the form of the “Acquisition
Agreement” previously delivered by the Originator to the Administrative Agent
in connection with the CapitalSource Funding I Transaction or in such other
form as shall be adopted by the Originator and approved in writing by the
Administrative Agent at least five days prior to such Loan becoming part of the
Collateral hereunder, provided, however, such Loan shall exclude
any Retained Interest.



“Acquisition Agreement”: That certain asset purchase agreement, dated
as of April 8, 2004, by and between the Originator, CSE Finance, Inc., SLP
Capital of Canada Co. and the SLP Financing Originator, a copy of which is
attached hereto as Schedule IX.



“Addition Date”: With respect to any Additional Assets, the date on
which such Additional Assets become part of the Collateral.



“Additional Agent”: Each Person (together with its successors and
assigns) that becomes a party to this Agreement as an Additional Agent, on
behalf of any Additional Purchaser, pursuant to an Additional Purchaser
Agreement.



“Additional Agent Fee Letter”: Each Additional Agent Fee Letter
Agreement that shall be entered into by and among the Seller, the Servicer and
such Additional Agent in connection with the transactions contemplated by this
Agreement, as amended, modified, waived, supplemented, restated or replaced
from time to time.



“Additional Agent’s Account”: A special account, designated by the
Additional Agent in an Additional Purchaser Agreement, in the name of an
Additional Agent maintained with the related Additional Purchaser.



“Additional Assets”: All Assets that become part of the Collateral
after the Closing Date.



“Additional Purchaser”: Each Person (together with its successors and
assigns) that becomes a party to this Agreement as an Additional Purchaser
pursuant to an Additional Purchaser Agreement.



“Additional Purchaser Agreement”: With respect to each Additional
Purchaser, the Transferee Letter or Assumption Agreement relating to such
Additional Purchaser.



“Additional Purchaser Breakage Costs”: Any amount or amounts as shall
compensate an Additional Purchaser for any out of pocket expense incurred by
such Additional Purchaser (as determined by the related Additional Agent on
behalf of such Additional Purchaser, in such Additional Agent’s sole
discretion) as a result of (i) a prepayment by the Seller of Advances
Outstanding or Interest or (ii) any difference between the applicable
Additional Purchaser CP


3









 






Rate and the Adjusted Eurodollar Rate. All Additional Purchaser Breakage Costs
shall be due and payable hereunder upon demand.



“Additional Purchaser CP Rate”: (a) For any Additional Purchaser and
any day during any Accrual Period, the per annum rate equal to the weighted
average of the per annum rates paid or payable by such Additional Purchaser
from time to time as interest on or otherwise (by means of interest rate hedges
or otherwise taking into consideration any incremental carrying costs
associated with short-term promissory notes issued by such Additional Purchaser
maturing on dates other than those certain dates on which such Additional
Purchaser is to receive funds) in respect of the promissory notes issued by
such Additional Purchaser that are allocated, in whole or in part, by the
related Additional Agent (on behalf of such Additional Purchaser) to fund or
maintain the Advances Outstanding funded by such Additional Purchaser during
such period, as determined by the related Additional Agent (on behalf of such
Additional Purchaser) and reported to the Seller and the Servicer, which rates
shall reflect and give effect to (i) the commissions of placement agents and
dealers in respect of such promissory notes, to the extent such commissions are
allocated, in whole or in part, to such promissory notes by the related
Additional Agent (on behalf of such Additional Purchaser) and (ii) other
borrowings by such Additional Purchaser, including, without limitation,
borrowings to fund small or odd dollar amounts that are not easily accommodated
in the commercial paper market; provided, however, that if any
component of such rate is a discount rate, in calculating the Additional
Purchaser CP Rate, the related Additional Agent shall for such component use
the rate resulting from converting such discount rate to an interest bearing
equivalent rate per annum or (b) as otherwise specified by or on behalf of such
Additional Purchaser in the applicable Additional Purchaser Agreement.



“Adjusted Eurodollar Rate”: For any Accrual Period, an interest rate
per annum equal to a fraction, expressed as a percentage and rounded upwards
(if necessary) to the nearest 1/100 of 1%, (i) the numerator of which is equal
to the LIBOR Rate for such Accrual Period and (ii) the denominator of which is
equal to 100% minus the Eurodollar Reserve Percentage for such Accrual
Period.



“Administrative Agent”: WCM, in its capacity as administrative agent
for the Purchaser Agents, together with its successors and assigns, including
any successor appointed pursuant to ARTICLE XII.



“Advance”: Defined in Section 2.1(b).


4









 






“Advance Rate”: With respect to any type of Asset on any date of
determination, the corresponding percentage set forth below:




	 	 	 	 	 
	Type of Asset
	 	Advance Rate

	Senior Secured ABL Loans
	 	 	85.0	%
	Senior Secured Term Loans
	 	 	80.0	%
	Stretch Senior Secured Loans
	 	 	75.0	%
	Senior B-Note Loans
	 	 	70.0	%
	Senior Subordinated Loans
	 	 	65.0	%
	Junior Subordinated Loans
	 	 	50.0	%
	Leases
	 	 	80.0	%
	MPAs
	 	 	80.0	%






provided, however, with respect to any Acquired Loans, Assigned
Loans, Agented Notes, Participation Loans and DIP Loans, the applicable advance
rate will be determined by reference to the type of underlying Loan being
acquired, assigned, agented or participated in, as the case may be.



“Advances Outstanding”: On any day, the aggregate principal amount of
all Advances and Swingline Advances outstanding on such day, after giving
effect to all repayments of Advances and Swingline Advances and the making of
new Advances or Swingline Advances on such day.



“Affected Party”: The Administrative Agent, the Purchaser Agents, the
Purchasers, the Swingline Purchaser, each Liquidity Bank, all assignees and
participants of the Purchasers and each Liquidity Bank, any successor to WCM as
Administrative Agent and any sub-agent of the Administrative Agent and any
successor to a Purchaser Agent.



“Affiliate”: With respect to a Person, means any other Person that,
directly or indirectly, controls, is controlled by or under common control with
such Person, or is a director or officer of such Person. For purposes of this
definition, “control” (including the terms “controlling,” “controlled by” and
“under common control with”) when used with respect to any specified Person
means the possession, direct or indirect, of the power to vote 20% or more of
the voting securities of such Person or to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.



“Agent’s Account”: The VFCC Agent’s Account or any Additional Agent’s
Account, as applicable.



“Agented Notes”: With respect to any Loan, one or more promissory notes
of an Eligible Obligor wherein (a) the note(s) are originated by the Originator
in accordance with the Credit and Collection Policy as a part of a syndicated
loan transaction that has been fully consummated


5









 






between the Originator and the
related Obligor (without regard to any subsequent syndication of such Loan)
prior to such Agented Notes becoming part of the Collateral hereunder, (b) upon
an assignment of the note under the Sale Agreement to the Seller, such original
note will be endorsed to the Administrative Agent and held by the Collateral
Custodian, on behalf of the Secured Parties, (c) the Seller, as assignee of the
note, will have all of the rights but none of the obligations of the Originator
with respect to such note and the Originator’s right, title and interest in and
to the Related Property including the right to receive and collect payments
directly in its own name and to enforce its rights directly against the Obligor
thereof, (d) the note, if secured, is secured by an undivided interest in the
Related Property that also secures and is shared by, on a pro-rata basis, all
other holders of such Obligor’s notes of equal priority and (e) the Originator
(or a wholly owned subsidiary of the Originator) is the collateral agent and
payment agent for all noteholders of such Obligor.



“Aggregate Outstanding Asset Balance”: On any date of determination,
the sum of the Outstanding Asset Balances of all Eligible Assets included as
part of the Collateral on such date, minus the Outstanding Asset
Balances of any Delinquent Assets. Notwithstanding anything to the contrary
contained herein, for purposes of determining the Aggregate Outstanding Asset
Balance, if any portion of an Asset is deemed to be “charged-off” in accordance
with the provisions of the definition of Charged-Off Asset, then the entire
Asset shall be deemed to have a zero Outstanding Asset Balance, except for
purposes of calculating Average Pool Charged-Off Ratio.



“Aggregate Unpaids”: At any time, an amount equal to the sum of all
unpaid Advances Outstanding, Interest, Breakage Costs, Hedge Breakage Costs and
all other amounts owed by the Seller to the Purchasers, the Purchaser Agents,
the Administrative Agent, the Backup Servicer, each Hedge Counterparty and the
Collateral Custodian hereunder (including, without limitation, all Indemnified
Amounts, other amounts payable under Article XI and amounts required
under Section 2.9, Section 2.10, Section 2.14, Section
2.15 and Section 2.16 to the Affected Parties or Indemnified
Parties) or under any Hedging Agreement (including, without limitation,
payments in respect of the termination of any such Hedging Agreement) or by the
Seller or any other Person under any fee letter (including, without limitation,
the VFCC Fee Letter, any Additional Agent Fee Letter, the Backup Servicer Fee
Letter and the Collateral Custodian Fee Letter) delivered in connection with
the transactions contemplated by this Agreement (whether due or accrued).



“Alarm Service Agreement”: An agreement between a Dealer and its
customer pursuant to which the Dealer is obligated to service and monitor the
customer’s alarm system in consideration for monthly payments by the customer.



“Allocation Adjustment Event”: With respect to each Loan included in
the Collateral subject to the Retained Interest provisions of this Agreement,
the occurrence of any one or more of the following under and as defined in any
Permitted Securitization Transaction rated by the Rating Agencies, as
applicable: (i) a “Servicer Default”, (ii) an “Event of Default” or (iii) an
“Accelerated Amortization Event”.


6









 






“Alternative Rate”: An interest rate per annum equal to the Adjusted
Eurodollar Rate; provided, however, that the Alternative Rate
shall be the Base Rate if a Eurodollar Disruption Event occurs.



“Amortization Period”: The period beginning on the Termination Date and
ending on the Collection Date.



“Applicable Law”: For any Person or property of such Person, all
existing and future applicable laws, rules, regulations (including proposed,
temporary and final income tax regulations), statutes, treaties, codes,
ordinances, permits, certificates, orders and licenses of and interpretations
by any Governmental Authority (including, without limitation, usury laws, the
Federal Truth in Lending Act, and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System), and applicable judgments, decrees,
injunctions, writs, awards or orders of any court, arbitrator or other
administrative, judicial, or quasi-judicial tribunal or agency of competent
jurisdiction.



“Asset Checklist”: The list of loan documents attached as Schedule 5 to
the Acquisition Agreement or an electronic list delivered by or on behalf of
the Seller to the Collateral Custodian that identifies each of the items
contained in the related Asset File, as amended from time to time.



“Asset Files”: With respect to any Asset and Related Security, copies
of each of the Required Asset Documents and duly executed originals (to the
extent required by the Credit and Collection Policy) and copies of any other
Records relating to such Asset and Related Security, and, if the Asset was
acquired by the Originator from the SLP Financing Originator, all documents
contained in the actual files delivered to Seller by the SLP Financing
Originator.



“Asset List”: The Asset List provided by the Seller to the
Administrative Agent and the Collateral Custodian, in the form of Schedule
IV hereto, as such list may be amended, supplemented or modified from time
to time in accordance with this Agreement.



“Asset Loss Reserve”: With respect to each Watchlist Asset, an amount
available to cover any losses with respect to such Watchlist Asset equal to the
amounts set forth in the Credit and Collection Policy.



“Assets”: Loans and/or Leases, individually or collectively, as the
context requires.



“Assigned Loan”: A Loan originated by a Person other than the
Originator in which a constant percentage interest has been assigned to the
Originator by such Person in accordance with the Credit and Collection Policy
and (i) such transaction has been fully consummated prior to such Loan becoming
part of the Collateral hereunder, (ii) the Originator is a party to a credit
agreement and/or an assignment agreement and a promissory note with the Obligor
with respect to such Loan, (iii) the agent bank receives payment directly from
the Obligor thereof on behalf of each lender that has been assigned a
percentage interest in such Loan, and (iv) is substantially in the form of an
“Assigned Loan” previously delivered by the Originator to the Administrative
Agent in connection with the CapitalSource Funding I Transaction or such other
form as shall be adopted by the Originator and approved in writing by the
Administrative Agent at least five days


7









 






prior to such Loan becoming part of the Collateral hereunder; provided,
however, any such Loan shall exclude any Retained Interest.



“Assignment of Mortgage”: As to each Loan secured by an interest in
real property, one or more assignments, notices of transfer or equivalent
instruments, each in recordable form and sufficient under the laws of the
relevant jurisdiction to reflect the transfer of the related mortgage, deed of
trust, security deed or similar security instrument and all other documents
related to such Loan and to the Seller and to grant a perfected lien thereon by
the Seller in favor of the Administrative Agent, on behalf of the Secured
Parties, each such Assignment of Mortgage to be substantially in the form of
Exhibit I hereto.



“Assumption Agreement”: Defined in Section 13.16(b).



“Availability”: At any time, an amount equal to the excess, if any, of
(i) the amount by which the lesser of (a) the Facility Amount and (b) the
Maximum Availability exceeds the amount necessary to cure any
Overcollateralization Shortfall and any Required Equity Shortfall minus
(ii) the Advances Outstanding on such day; provided, however,
during the Amortization Period, the Availability shall be zero.



“Available Funds”: With respect to any Payment Date, all amounts
received in the Collection Account (including, without limitation, any
Collections on Assets included in the Collateral and earnings from Permitted
Investments in the Collection Account and the Excess Spread Account) during the
Collection Period that ended on the last day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs.



“Average Pool Charged-Off Ratio”: As of any Determination Date, the
percentage equivalent of a fraction (i) the numerator of which is equal to the
sum of the Outstanding Asset Balance of all Assets that became Charged-Off
Assets (net of Recoveries during such Collection Period) during the Collection
Period related to such Determination Date and each of the 11 preceding
Determination Dates (or such lesser number as shall have elapsed as of such
Determination Date), and (ii) the denominator of which is equal to a fraction
the numerator of which is the sum of the Aggregate Outstanding Asset Balance
as of the first day of the Collection Period related to such Determination Date
and each of the 11 preceding Determination Dates (or such lesser number as
shall have elapsed as of such Determination Date) and the denominator of which
is twelve (or the corresponding lesser number of Determination Dates included
in the calculations described herein).



“Average Portfolio Charged-Off Ratio”: As of any Determination Date,
the percentage equivalent of a fraction (i) the numerator of which is equal to
the sum of the Portfolio Outstanding Asset Balance of all Portfolio Assets
(excluding equity investments) that became Charged-Off Portfolio Assets (net of
Recoveries during such Collection Period) during the Collection Period related
to such Determination Date and each of the 11 preceding Determination Dates (or
such lesser number as shall have elapsed as of such Determination Date), and
(ii) the denominator of which is equal to a fraction the numerator of which is
the sum of the Portfolio Outstanding Asset Balance (excluding equity
investments) as of the first day of the Collection Period related to such
Determination Date and each of the 11 preceding Determination Dates (or such
lesser number as shall have elapsed as of such Determination Date)


8









 






and the denominator of which is twelve (or the corresponding lesser number of
Determination Dates included in the calculations described herein).



“Average Portfolio Delinquency Ratio”: As of any Determination Date,
the percentage equivalent of a fraction the numerator of which is equal to the
sum of the Portfolio Delinquency Ratio on such Determination Date and each of
the two preceding Determination Dates (or such lesser number as shall have
elapsed as of such Determination Date) and the denominator of which is equal to
three (or the corresponding lesser number of Determination Dates included in
the calculations described herein).



“Backup Servicer”: Wells Fargo Bank, National Association, not in its
individual capacity, but solely as Backup Servicer, its successor in interest
pursuant to Section 7.3 or such Person as shall have been appointed as
Backup Servicer pursuant to Section 7.5.



“Backup Servicer Fee Letter”: The Backup Servicer Fee Letter, dated as
of the date hereof, by and among the Servicer, the Administrative Agent, and
the Backup Servicer, as such letter may be amended, modified, supplemented,
restated or replaced from time to time.



“Backup Servicer Fee Rate”: The rate per annum set forth in the Backup
Servicer Fee Letter as the “Backup Servicer Fee Rate.”



“Backup Servicer Termination Notice”: Defined in Section 7.5.



“Backup Servicing Fee”: Defined in the Backup Servicer Fee Letter.



“Banded Floating Rate Loan”: A Loan where the interest rate payable by
the Obligor thereof fluctuates between a minimum interest rate and a maximum
interest rate allowable under its Required Asset Documents.



“Bankruptcy Code”: The United States Bankruptcy Reform Act of 1978 (11
U.S.C. § 101, et seq.), as amended from time to time.



“Base Rate”: On any date, a fluctuating interest rate per annum equal
to the higher of (a) the Prime Rate or (b) the Federal Funds Rate plus
1.5%.



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



“Borrowing Base”: On any date of determination, the sum of (i) the
Aggregate Outstanding Asset Balance and (ii) (a) the Outstanding Asset Balances
of all Additional Assets that are Eligible Assets to be included as part of the
Collateral on such date minus (b) the amount (calculated without
duplication) by which such Eligible Assets exceed any applicable Pool
Concentration Criteria.



“Borrowing Base Certificate”: Each certificate, in the form of
Exhibit A-3, required to be delivered by the Seller along with each
Borrowing Notice.


9









 






“Borrowing Notice”: Each notice, in the form of Exhibit A-1,
A-1-S or A-2 (as applicable), required to be delivered by the
Seller (i) in respect of (a) the Initial Advance, each incremental Advance and
each Swingline Advance (as applicable), (b) any reduction of the Facility
Amount or repayment of Advances Outstanding, or (c) any reinvestment of
Principal Collections under Section 2.9(b); and (ii) on each
Determination Date.



“Breakage Costs”: Collectively, the VFCC Breakage Costs and any
Additional Purchaser Breakage Costs, if any.



“Business Day”: Any day other than a Saturday or a Sunday on which (a)
banks are not required or authorized to be closed in Minneapolis, Minnesota,
New York City, New York, Charlotte, North Carolina, and (b) if the term
“Business Day” is used in connection with the determination of the LIBOR Rate,
dealings in United States dollar deposits are carried on in the London
interbank market.



“CapitalSource Funding I Transaction”: The transactions contemplated by
the Third Amended Loan Certificate and Servicing Agreement, dated as of
February 25, 2003, among CapitalSource Funding LLC, CapitalSource Finance LLC,
Variable Funding Capital Corporation, Eiffel Funding, LLC, Hannover Funding
Company LLC, Wachovia Capital Markets, LLC, Harris Nesbitt Corp., CDC Financial
Products, Inc., Norddeutsche Landesbanke Girozentrale and Wells Fargo Bank,
National Association, and the related “Transaction Documents” (as defined
therein).



“CapitalSource Prime Rate”: The rate designated by CapitalSource
Finance (or the originator of an Assigned Loan) from time to time and/or
pursuant to the related loan documents as its prime rate in the United States,
such rate to change as and when the designated rate changes; provided,
however, the CapitalSource Prime Rate is not intended to be the lowest
rate of interest charged by CapitalSource (or such originator) in connection
with extensions of credit to debtors.



“CapitalSource LIBOR Rate”: The posted rate for thirty (30), sixty (60)
or ninety (90) day, as applicable, deposits in Dollars appearing on Telerate
Page 3750, as and when determined in accordance with the applicable Required
Asset Documents.



“Change-in-Control”: Any of the following:




     (a) The failure of John K. Delaney, Jason M. Fish and Bryan Corsini and
Affiliates thereof to own in the aggregate (directly or indirectly), free and
clear of all liens, at least 7,000,000 million shares of the outstanding shares
of common stock of CapitalSource Inc., as adjusted from time to time to reflect
stock splits or reverse stock splits, respectively;



     (b) The failure of CapitalSource Inc. to own (directly or through wholly
owned subsidiaries), free and clear of all liens, 99.9% of the outstanding
voting membership interests of the Originator;



     (c) the creation or imposition of any Lien on any limited liability
company membership interest in the Seller; or



     (d) the failure by Originator to own all of the limited liability company
membership interests in the Seller.



10









 




“Charged-Off Asset”: An Asset (or portion thereof deemed to be
“charged-off”) as to which any of the following first occurs: (i) the Servicer
has determined or should have reasonably determined in accordance with the
Credit and Collection Policy that such Asset is not collectible, (ii) (a) all
or any portion of one or more principal or interest payments (other than in
respect of default rate interest) remain unpaid for at least ninety (90) days
from the original due date for such payment (without giving effect to any
Servicer Advance thereon), in which case not less than fifty percent (50%) of
the Outstanding Asset Balance shall be deemed to be “charged-off” for purposes
of this Agreement, and (b) all or any portion of one or more principal or
interest payments (other than in respect of default rate interest) remain
unpaid for at least one hundred and eighty (180) days from the original due
date for such payment (without giving effect to any Servicer Advance thereon),
in which case not less than one hundred percent (100%) of the Outstanding Asset
Balance of an Asset shall be deemed to be “charged-off” for purposes of this
Agreement, or (iii) (a) the Obligor thereof or any Person obligated thereon is
subject to an Insolvency Event, in which case not less than fifty percent (50%)
of the Outstanding Asset Balance of an Asset shall be deemed to be
“charged-off” as of the date of the occurrence of such Insolvency Event for
purposes of this Agreement, (b) the Obligor thereof or any Person obligated
thereunder has suffered a material adverse change which materially affects its
viability as a going concern as reasonably determined by the Servicer, or (c)
adequate collateral or other source of payment does not exist to repay the full
amount due to the Seller under the Asset as determined by the Servicer.



“Charged-Off Portfolio Asset”: A Portfolio Asset (or portion thereof
deemed to be “charged-off”) (excluding equity investments) as to which any of
the following first occurs: (i) the Servicer has determined or should have
reasonably determined in accordance with the Credit and Collection Policy (or
such similar policies and procedures utilized by the Servicer in servicing such
Portfolio Asset) that such Portfolio Asset is not collectible, (ii) (a) all or
any portion of one or more principal or interest payments (other than in
respect of default rate interest) remain unpaid for at least ninety (90) days
from the original due date for such payment (without giving effect to any
Servicer Advance thereon), in which case not less than fifty percent (50%) of
the Portfolio Outstanding Asset Balance of such Portfolio Asset shall be deemed
to be “charged-off” for purposes of this Agreement, and (b) all or any portion
of one or more principal or interest payments (other than in respect of default
rate interest) remain unpaid for at least one hundred and eighty (180) days
from the original due date for such payment (without giving effect to any
Servicer Advance thereon), in which case not less than one hundred percent
(100%) of the Portfolio Outstanding Asset Balance of such Portfolio Asset shall
be deemed to be “charged-off” for purposes of this Agreement, or (iii) (a) the
Obligor thereof or any Person obligated thereon is subject to an Insolvency
Event, in which case not less than fifty percent (50%) of the Portfolio
Outstanding Asset Balance of such Portfolio Asset shall be deemed to be
“charged-off” as of the date of the occurrence of such Insolvency Event for
purposes of this Agreement, (b) the Obligor or any Person obligated thereon has
suffered a material adverse change which materially affects its viability as an
ongoing concern as reasonably determined by the Servicer, or (c) adequate
collateral or other source of payment does not exist to repay the principal due
under the Portfolio Asset as determined by the Servicer.



“Clearing Agency”: An organization registered as a “clearing agency”
pursuant to Section 17A of the Exchange Act.




11









 







“Closing Date”: April 20, 2004.



“Code”: The Internal Revenue Code of 1986, as amended from time to
time.



“Collateral”: All right, title, and interest (whether now owned or
hereafter acquired or arising, and wherever located) of the Seller in all
accounts, cash and currency, chattel paper, tangible chattel paper, electronic
chattel paper, copyrights, copyright licenses, equipment, fixtures, general
intangibles, instruments, commercial tort claims, deposit accounts, inventory,
investment property, letter-of-credit rights, software, supporting obligations,
accessions, and other property consisting of, arising out of, or related to any
of the following (in each case excluding the Retained Interest and the Excluded
Amounts): (i) the Existing Assets and Additional Assets, and all monies due or
to become due in payment under such Existing Assets and Additional Assets on
and after the related Cut-Off Date, including but not limited to all
Collections, but excluding any Excluded Amounts; and (ii) all Related Security
with respect to the Assets referred to in clauses (i) and (ii)
all income and Proceeds of the foregoing.



“Collateral Custodian”: Wells Fargo Bank, National Association, not in
its individual capacity, but solely as Collateral Custodian, its successor in
interest pursuant to Section 8.3 or such Person as shall have been
appointed Collateral Custodian pursuant to Section 8.5.



“Collateral Custodian Fee”: Defined in the Collateral Custodian Fee
Letter.



“Collateral Custodian Fee Letter”: The Collateral Custodian Fee Letter,
dated as of the date hereof, by and among the Originator, the Administrative
Agent and the Collateral Custodian, as such letter may be amended, modified,
supplemented, restated or replaced from time to time.



“Collateral Custodian Termination Notice”: Defined in Section
8.5.



“Collection Account”: Defined in Section 6.4(f).



“Collection Date”: The date following the Termination Date on which the
Aggregate Unpaids have been reduced to zero and indefeasibly paid in full.



“Collection Period”: Each calendar month.



“Collections”: (a) All cash collections and other cash proceeds of any
Asset, including, without limitation, Scheduled Payments, Lease Payments,
Finance Charges, Prepayments, Insurance Proceeds, and all Recoveries or other
amounts received in respect thereof but excluding any Excluded Amounts, (b) any
cash proceeds or other funds received by the Seller or the Servicer with
respect to any Related Security, (c) all payments received pursuant to any
Hedging Agreement or Hedge Transaction and (d) all Deemed Collections.



“Commercial Paper Notes”: On any day, any short-term promissory notes
of any Conduit Purchaser issued by such Conduit Purchaser in the commercial
paper market.



“Commitment”: With respect to each Conduit Purchaser or Swingline
Purchaser, as applicable, the commitment of such Purchaser to make Advances or
Swingline Advances in accordance herewith in an amount not to exceed (i) (a)
prior to the Termination Date, the dollar amount set


12









 






forth opposite such
Purchaser’s signature on the signature pages hereto or the signature pages of
the Additional Purchaser Agreement relating to such Purchaser, as applicable,
under the heading “Commitment” and (b) on or after the Termination Date, such
Conduit Purchaser’s Pro Rata Share of the aggregate Advances Outstanding or
(ii) as to Conduit Purchasers only, with respect to each Advance, the Pro-Rata
Share.



“Commitment Fee”: (a) With respect to VFCC, as defined in the VFCC Fee
Letter and (b) with respect to any Additional Purchaser, as defined in such
Additional Purchaser’s Additional Purchaser Fee Letter.



“Concentrations Effective Date”: The earlier of:




     (i) the date that is three months following the more recent of (a) the
Closing Date and (b) the closing of a Permitted Securitization Transaction
after the Closing Date; or



     (ii) the date on which the Aggregate Outstanding Asset Balance first
equals or exceeds $100,000,000 following the more recent of (a) the Closing
Date and (b) the closing of a Permitted Securitization Transaction after the
Closing Date.


“Conduit Purchasers”: Defined in the Preamble of this Agreement.



“Consolidated Funded Indebtedness”: As of any date of determination,
all outstanding Indebtedness of the Originator and its Subsidiaries determined
on a consolidated basis in accordance with GAAP.



“Consolidated Tangible Net Worth”: As of any date of determination, the
assets less the liabilities of the Originator and its Subsidiaries on a
consolidated basis, less intangible assets (including goodwill), all determined
in accordance with GAAP.



“Contractual Obligation”: With respect to any Person, any provision of
any securities issued by such Person or any indenture, mortgage, deed of trust,
contract, undertaking, agreement, instrument or other document to which such
Person is a party or by which it or any of its property is bound or is subject.



“CP Rate”: The VFCC CP Rate or any Additional Purchaser CP Rate, as
applicable.



“Credit and Collection Policy”: The written credit policies and
procedures manual of the Originator and the Servicer (which policies shall
include without limitation policies on a risk rating system, Asset Loss
Reserve, due diligence format, underwriting parameters and credit approval
procedures) in the form provided to the Administrative Agent prior to the
Closing Date, as it may be as amended or supplemented from time to time in
accordance with Section 5.1(h) and Section 5.4(f).



“Cut-Off Date”: With respect to each Asset and Additional Asset, the
related Funding Date therefor.



“Dealer”: An alarm system dealer that sells Alarm Service Agreements to
the SLP Financing Originator or the Originator pursuant to an MPA.




13









 







“Deemed Collection”: Defined in Section 2.4(c).



“Delinquent Asset”: An Asset (that is not a Charged-Off Asset) as to
which either of the following first occurs: (a) all or any portion of one or
more principal or interest payments (other than in respect of default rate
interest) remain unpaid for at least sixty (60) days from the original due date
for such payment (without giving effect to any Servicer Advance thereon) or (b)
consistent with the Credit and Collection Policy such Asset would be classified
as delinquent by the Servicer.



“Delinquent Portfolio Asset”: A Portfolio Asset (that is not a
Charged-Off Portfolio Asset) (excluding equity investments) as to which either
of the following first occurs: (a) all or any portion of one or more principal
or interest payments (other than in respect of default rate interest) remain
unpaid for at least sixty (60) days from the original due date for such payment
(without giving effect to any Servicer Advance thereon) or (b) consistent with
the Credit and Collection Policy (or such similar policies and procedures
utilized by the Servicer in servicing such Portfolio Asset) such Portfolio
Asset would be classified as delinquent by the Servicer.



“Derivatives”: Any exchange-traded or over-the-counter (i) forward,
future, option, swap, cap, collar, floor or foreign exchange contract or any
combination thereof, whether for physical delivery or cash settlement, relating
to any interest rate, interest rate index, currency, currency exchange rate,
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 containing
any of the foregoing.



“Determination Date”: The last day of each Collection Period.



“DIP Loan”: Any Loan to an Obligor that is a Chapter 11 debtor under
the Bankruptcy Code which is permitted by the Credit and Collection Policy and
also satisfies the following criteria: (a) the Loan is duly authorized by a
final order of the applicable bankruptcy or federal district court under the
provisions of subsection (b), (c) or (d) of 11 U.S.C. §
364, (b) the Obligor’s bankruptcy case is still pending as a case under the
provisions of Chapter 11 of Title 11 of the Bankruptcy Code and has not been
dismissed or converted to a case under the provisions of Chapter 7 of Title 11
of the Bankruptcy Code, (c) the Obligor’s obligations under such Loan have not
been (i) disallowed, in whole or in part, or (ii) subordinated, in whole or in
part, to the claims or interests of any other Person under the provisions of 11
U.S.C. § 510, (d) the Loan is secured and the liens and security interests
granted by the applicable federal bankruptcy or district court in relation to
the Loan have not been subordinated, in whole or in part, to the liens or
interests of any other lender under the provisions of 11 U.S.C. § 364(d) or
otherwise, (e) the Obligor is not in default on its payment obligations
under the Loan, (f) neither the Obligor nor any party in interest has filed a
Chapter 11 plan with the applicable federal bankruptcy or district court that,
upon confirmation, would (i) disallow or subordinate the Loan, in whole or in
part, (ii) subordinate, in whole or in part, any lien or security interest
granted in connection with such Loan, (iii) fail to provide for the repayment,
in full and in cash, of the Loan upon the effective date of such plan or (iv)
otherwise impair, in any manner, the claim evidenced by the Loan and (g) the
Loan is substantially in the form of the “DIP Loan Agreement” previously
delivered by


14









 






 the Originator to the Administrative Agent in connection with the
CapitalSource Funding I Transaction or in such other form as shall be adopted
by the Originator and approved in writing by the Administrative Agent at least
ten days prior to such Loan becoming part of the Collateral hereunder. For the
purposes of this definition, an order is a “final order” if the applicable
period for filing a motion to reconsider or notice of appeal in respect of a
permanent order authorizing the Obligor to obtain credit has lapsed and no such
motion or notice has been filed with the applicable federal bankruptcy or
district court or the clerk thereof.



“Discounted Value”: With respect to any Lease, the present value of all
remaining Lease Payments under the related Lease Contract, with such amount
discounted to present value using the Lease Rate for such Lease and the related
payment schedule.



“Dollars”: Means, and the conventional “$” signifies, the lawful
currency of the United States.



“Eligible Asset”: On any date of determination, each Asset (A) for
which the Administrative Agent, Collateral Custodian and Backup Servicer have
received the following no later than 2:00 p.m. (Charlotte, North Carolina time)
on the day prior to the related Funding Date: (1) a faxed copy of the duly
executed original promissory note, master purchase agreement and purchase
statements, Loan Register or Lease Contract, as applicable, and Asset
Checklist in a form and substance satisfactory to the Administrative Agent and,
with respect to any Loans closed in escrow, a certificate (in the form of
Exhibit M) from the counsel to the Originator or the Obligor of such
Loans certifying the possession of the Required Asset Documents;
provided, that, notwithstanding the foregoing, the Required Asset
Documents (including any UCCs included in the Required Asset Documents) shall
be in the possession of the Collateral Custodian within two Business Days of
any related Funding Date as to any Additional Assets; (2) a Borrowing Notice
delivered by the Seller to the Collateral Custodian and the Administrative
Agent as part of the Borrowing Notice or Monthly Report delivered by the
Servicer, (3) a Borrowing Base Certificate, and (4) a Certificate of Assignment
(Exhibit A to the Sale Agreement, including Schedule I thereto);
provided,further, that, if such Asset is part of a
capital contribution to the Seller the Collateral Custodian shall have received
the Required Asset Documents within three Business Days of receipt of the
Certificate of Assignment and (B) that satisfies each of the following
eligibility requirements, as applicable:




(1) With respect to any Asset:




     (a) the Asset, together with the Related Security, has been originated or
acquired by the Originator, sold to the Seller pursuant to (and in accordance
with) the Sale Agreement and
the Seller has good title, free and clear of all Liens (other than
Permitted Liens), on such Asset and Related Security;



     (b) the Asset, (i) (together with the Collections and Related Security
related thereto) has been the subject of a grant by the Seller in favor of the
Administrative Agent, on behalf of the Secured Parties, of a first priority
perfected security interest, and (ii) with respect to which, at the time of the
sale of such Asset to the Seller, the Originator had a first priority (other
than in the case of Senior Subordinated Loans or Junior Subordinated Loans)
perfected security interest in the Related Property (other than additional or
“boot” collateral) relating to such Loan;



15









 





     (c) at the time such Asset is included in the Collateral, the Asset (i) is
not (and since its origination by the Originator or, in the case of Acquired
Loans, acquisition by the Originator has never been) a Charged-Off Asset
(either in whole or in part), (ii) is not past due (A) in the case of a Loan,
with respect to payments of principal or interest and (B) in the case of a
Lease, with respect to Lease Payments (provided, that, if such
Asset is past due at the time it is included in the Collateral but not more
than ten days past due, the Originator and the Servicer must reasonably believe
that such Asset will promptly and in no event later than the date of the next
Scheduled Payment or Lease Payment, as applicable, due on such Asset, be
brought current with respect to all payments due thereunder), and (iii) except
with respect to the Loan to the Gordon Borrowers, has never been more than
thirty days past due (after giving effect to a five day grace period in
determining the number of days past due), (A) in the case of a Loan, with
respect to payments of principal or interest, or, in the case of Acquired
Loans, to the best of the Originator’s knowledge after due inquiry, has never
been more than thirty days past due in the twelve months prior to acquisition
and (B) in the case of a Lease, with respect to Lease Payments;



     (d) the Asset is an “eligible asset” as defined in Rule 3a-7 under the 40
Act;



     (e) the Asset is a contract the purchase of which with the proceeds of
Commercial Paper Notes would constitute a “current transaction” within the
meaning of Section 3(a)(3) of the Securities Act of 1933, as amended;



     (f) the Asset is (i) in the case of a Loan, an “account”, “chattel paper”,
“instrument” or a “general intangible”, and (ii) in the case of a Lease, an
“account”, “chattel paper” or a “general intangible”, in each case within the
meaning of Article 9 of the UCC of all applicable jurisdictions;



     (g) the Obligor with respect to such Asset is an Eligible Obligor and such
Asset is denominated and payable only in United States dollars in the United
States and does not permit the currency in which or country in which such Asset
is payable to be changed;



     (h) the Asset (i) in the case of a Loan, is evidenced by a promissory
note, master purchase agreement and purchase statements, Loan Register,
security agreement or other instrument and related loan documents and (ii) in
the case of a Lease, is evidenced by a Lease Contract and related security
documents, that have been duly authorized and executed, are in full force and
effect and constitute the legal, valid, binding and absolute and unconditional
payment obligation of the related Obligor, enforceable against such Obligor in
accordance with their terms
(subject to applicable bankruptcy, insolvency, moratorium or other similar
laws affecting the rights of creditors generally and to general principles of
equity, whether considered in a suit at law or in equity), and there are no
conditions precedent to the enforceability or validity of the Asset that have
not been satisfied or validly waived;



     (i) the Asset does not contravene in any material respect any Applicable
Laws (including, without limitation all applicable predatory and abusive
lending laws and all laws, rules and regulations relating to usury, truth in
lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices, licensing and privacy) and with respect to
which no part thereof is in violation of any Applicable Law in any material
respect;



16









 





     (j) neither the assignment of the Asset under the Sale Agreement by the
Originator, the sale of the Asset hereunder or the granting of a security
interest hereunder by the Seller violates, conflicts with or contravenes any
Applicable Laws or any contractual or other restriction, limitation or
encumbrance;



     (k) on or before the applicable Cut-Off Date, the Obligor of such Asset
(other than any MPA) shall have been directed to make all payments to the
Lock-Box or directly to the Lock-Box Account;



     (l) the Asset requires the Obligor thereof to maintain adequate property
damage and loss insurance with respect to the real or personal property
constituting the Related Property (if any) if such Related Property is of a
type customarily so insured;



     (m) the Related Property (if any) (i) has not been foreclosed on or
repossessed from the current Obligor by the Servicer, and (ii) has not suffered
any material loss or damage that has not been repaired or restored;



     (n) the Asset provides by its terms that the Obligor’s payment obligations
are absolute and unconditional without any right of rescission, setoff,
counterclaim or defense for any reason against the Originator and the Asset
contains a clause that has the effect of unconditionally and irrevocably
obligating the Obligor to make periodic payments (including taxes)
notwithstanding any damage to, defects in, or destruction of the Related
Property (if any) or any other event, including obsolescence of any property or
improvements;



     (o) the Asset is not subject to any litigation, dispute, refund, claims of
rescission, setoff, netting, counterclaim or defense whatsoever, including but
not limited to, claims by or against the Obligor thereof or a payor to or
account debtor of such Obligor;



     (p) the Asset requires the Obligor to maintain the Related Property in
good condition and to bear all the costs of operating and maintaining same,
including taxes and insurance relating thereto;



     (q) the Asset shall not have been originated in, nor shall it be subject
to the laws of, any jurisdiction under which the sale, transfer and assignment
of such Asset under the Transaction Documents would be unlawful, void or
voidable;



     (r) the Asset, together with the Required Asset Documents and Asset File
related thereto, is assignable and does not require the consent of or notice to
the Obligor to consummate the transactions contemplated by the Transaction
Documents or contain any other restriction on the transfer or the assignment of
the Asset for the purpose of consummating the transactions contemplated by the
Transaction Documents other than a consent or waiver of such restriction that
has been obtained prior to the date on which the Asset was sold to the Seller;
provided, however, that with respect to Loans which are secured
by an interest in commercial real estate, the Required Asset Documents may
restrict the transfer or the assignment of the related Loan so long as such
Loan is freely assignable or transferable to a Qualified Transferee;



     (s) the Obligor of such Asset is legally responsible for all taxes
relating to the Related Security or other security relating to such Asset, and
all payments in respect of the Asset are



17









 







required to be made free and clear of,
and without deduction or withholding for or on account of, any taxes, unless
such withholding or deduction is required by Applicable Law in which case the
Obligor thereof is required to make “gross-up” payments that cover the full
amount of any such withholding taxes on an after-tax basis;



     (t) the Asset complies with the representations and warranties made by the
Seller and Servicer hereunder and all information provided by the Seller or the
Servicer with respect to the Asset is true and correct in all material
respects;



     (u) the Asset and the Related Security have not been sold, transferred,
assigned or pledged by the Seller to any Person;



     (v) no selection procedure adverse to the interests of the Administrative
Agent, the Purchaser Agents or the Secured Parties was utilized by the Seller
or Originator in the selection of Asset for inclusion in the Collateral;



     (w) the Asset has not been compromised, adjusted, extended, satisfied,
rescinded, set-off or modified by the Seller, the Originator or the Obligor
with respect thereto, and no Asset is subject to compromise, adjustment,
extension, satisfaction, rescission, set-off, counterclaim, defense, abatement,
suspension, deferment, deductible, reduction, termination or modification,
whether arising out of transactions concerning the Asset, or otherwise, by the
Seller, the Originator or the Obligor with respect thereto except for
amendments to such Asset otherwise permitted under Section 7.4(a) of
this Agreement and in accordance with the Credit and Collection Policy;



     (x) the particular Asset is not one as to which the Seller has knowledge
which should lead it to expect such Asset will not be paid in full;



     (y) except with respect to DIP Loans, the Obligor of such Asset is not the
subject of an Insolvency Event or Insolvency Proceedings;



     (z) the Asset is secured by a valid, perfected, first priority (other than
with respect to Senior Subordinated Loans and Junior Subordinated Loans)
security interest in all assets that constitute the collateral for the Asset
(subject to Liens expressly permitted by the underlying loan
documents), and, in the case of a Loan (other than the types listed
above), such collateral shall include but not be limited to the material
intellectual property of the Obligor (if any);



     (aa) all material consents, licenses, approvals or authorizations of, or
registrations or declarations with, any Governmental Authority required to be
obtained, effected or given in connection with the making or performance of the
Asset have been duly obtained, effected or given and are in full force and
effect;



     (bb) no provision of the Asset has been waived, modified, or altered in
any respect, except in accordance with the Credit and Collection Policy and by
instruments duly authorized and executed and contained in the Required Asset
Documents;



     (cc) the Asset satisfies all applicable requirements of and was originated
or acquired, underwritten and closed in accordance with the Credit and
Collection Policy (including without



18









 







limitation the execution by the Obligor of
all documentation required by the Credit and Collection Policy);



     (dd) the Asset was generated in the ordinary course of the Originator’s
business;



     (ee) the Asset arises pursuant to documentation with respect to which the
Originator and the SLP Financing Originator have performed all obligations
required to be performed by it thereunder;



     (ff) the Asset is not Margin Stock;



     (gg) the acquisition of the Asset by the Seller will not cause the Seller
or the pool of Collateral to be required to be registered as an investment
company under the 1940 Act; and



     (hh) the Asset is not subject to a guaranty by the Originator, the SLP
Financing Originator or any Affiliate thereof.



(2) With respect to any Loan:




     (a) the Loan provides (i) for periodic payments of interest and/or
principal in cash, which are due and payable on a monthly, quarterly or
semi-annual basis unless otherwise consented to in writing by the
Administrative Agent, and (ii) that the Servicer (or, with respect to Assigned
Loans, that the agent bank or a majority of the related lenders) may accelerate
all payments on the Loan (or, with respect to any MPA, require the Dealer to
repurchase all related Alarm Service Agreements), if the Obligor is in default
under the Loan and any applicable grace period has expired (in the case of any
Senior Subordinated Loan or Junior Subordinated Loan, subject to any applicable
intercreditor or subordination agreement);



     (b) unless such Loan is a Security System Loan, the Loan provides for cash
payments that fully amortize the Outstanding Asset Balance of such Loan on or
by its maturity and does not provide for such Outstanding Asset Balance to be
discounted pursuant to a prepayment in full;



     (c) the Loan does not permit the Obligor to defer all or any portion of
the current cash interest due thereunder;



     (d) the Loan does not permit the payment obligation of the Obligor
thereunder to be converted or exchanged for equity capital of such Obligor;



     (e) other than Participation Loans, Agented Notes and Assigned Loans, with
respect to the Originator’s obligation to fund and the actual funding of the
Loan by the Originator, the Originator has not assigned or granted
participations to, in whole or in part, any Person except for one (1) Loan to
Byrider Finance, Inc. and one (1) Loan to Safe Home;



     (f) with respect to any DIP Loan, the Originator or its assignee has been
granted a first priority lien status in respect of all or certain of the
Obligor’s assets by final order of the applicable federal bankruptcy or
district court;



19









 





     (g) if the Obligor of such Loan is the Obligor of more than one Loan, all
such Loans are cross-collateralized and cross-defaulted;



     (h) the Loan does not represent capitalized interest or payment
obligations relating to “put” rights;



     (i) the Loan is not a Loan or extension of credit by the Originator to the
Obligor for the purpose of making any past due principal, interest or other
payments due on such Loan;



     (j) the Originator (i) has completed to its satisfaction, in accordance
with the Credit and Collection Policy, a due diligence audit and collateral
assessment with respect to such Loan and (ii) has done nothing to impair the
rights of the Administrative Agent, the Purchaser Agents or the Secured Parties
with respect to the Loan, the Related Security, the Scheduled Payments or any
income or Proceeds therefrom;



     (k) the Loan (or the underlying Loan in the case of any Agented Note,
Acquired Loan, Assigned Loan or Participation Loan) is a Senior Secured ABL
Loan, Senior Secured Term Loan, Stretch Senior Secured Loan, Senior B-Note
Loan, Senior Subordinated Loan or Junior Subordinated Loan;



     (l) except with respect to Senior Subordinated Loans, Junior Subordinated
Loans and, to the extent set forth in the definition thereof, Senior B-Note
Loans, the Loan is not subordinated to any other loan or financing to the
related Obligor;



     (m) if the Loan is a Revolver, either it provides by its terms that any
future funding thereunder is in the Originator’s sole and absolute discretion
or it is subject to the Retained Interest provision of this Agreement;



     (n) the Face Amount of the Loan is the dollar amount thereof shown on the
books and records of the Originator and Seller;



     (o) with respect to Senior B-Note Loans, Senior Subordinated Loans or
Junior Subordinated Loans, the Originator has entered into an intercreditor
agreement or subordination
agreement (or such provisions are contained in the principal loan
documents) with, or provisions for the benefit of, the senior lender, which
agreement or provisions are assignable to and have been assigned to the Seller,
and which provide that any standstill of remedies by the Originator or its
assignee is limited (A) such that there shall be no standstill of remedies (x)
until after a payment default with respect to the senior obligation or the
Originator’s or assignee’s receipt from the senior lender or Obligor of a
notice of default by the Obligor under the senior debt and (y) unless a
covenant or payment default is also in effect, and (B) to no longer than one
hundred eighty (180) days in duration in the aggregate in any given year;



     (p) with respect to any Acquired Loan or Assigned Loan, such Loan has been
re-underwritten by the Originator and satisfies all of the Originator’s
underwriting criteria;



     (q) with respect to any Acquired Loan acquired from an Affiliate of the
Originator, the Administrative Agent has received a satisfactory legal opinion
concerning the acquisition of such Loan by the Originator in a true sale
transaction;



20









 





     (r) with respect to any Acquired Loan that was acquired in a pool by the
Originator along with one or more other Acquired Loans, the Administrative
Agent has approved in writing such Loan for inclusion in the Collateral and has
completed its own due diligence with respect to such Loan;



     (s) with respect to Agented Notes, the related underlying loan documents
(a) shall include a note purchase or similar agreement containing provisions
relating to the appointment and duties of a payment agent and a collateral
agent and intercreditor and (if applicable) subordination provisions
substantially similar to the forms previously delivered by the Originator to
the Administrative Agent in connection with the CapitalSource Funding I
Transaction, and (b) are duly authorized, fully and properly executed and are
the valid, binding and unconditional payment obligation of the Obligor thereof;



     (t) with respect to Agented Notes, the Originator (or a wholly owned
subsidiary of the Originator) has been appointed the collateral agent of the
security and the payment agent for all such notes prior to such Agented Note
becoming a part of the Collateral;



     (u) with respect to Agented Notes, if the entity serving as the collateral
agent of the security for all syndicated notes of the Obligor has or will
change from the time of the origination of the notes, all appropriate
assignments of the collateral agent’s rights in and to the collateral on behalf
of the noteholders have been executed and filed or recorded as appropriate
prior to such Agented Note becoming a part of the Collateral;



     (v) with respect to any Agented Note, all required notifications, if any,
have been given to the collateral agent, the payment agent and any other
parties required by the Required Asset Documents of, and all required consents,
if any, have been obtained with respect to, the Originator’s assignment of such
Agented Note and the Originator’s right, title and interest in the Related
Property to the Seller and the Administrative Agent’s security interest therein
on behalf of the secured parties;



     (w) with respect to Agented Notes, the right to control the actions of and
replace the collateral agent and/or the paying agent of the syndicated notes is
to be exercised by at least a majority in interest of all holders of such
Agented Notes;



     (x) with respect to Agented Notes, all syndicated notes of the Obligor of
the same priority are cross-defaulted, the Related Property securing such notes
is held by the collateral agent for the benefit of all holders of the
syndicated notes and all holders of such notes (a) have an undivided interest
in the collateral securing such notes, (b) share in the proceeds of the sale or
other disposition of such collateral on a pro-rata basis and (c) may transfer
or assign their right, title and interest in the Related Property;



     (y) no portion of the proceeds used to make payments of principal or
interest on such Loan have come from a new loan by the Originator;



     (z) does not contain a confidentiality provision that restricts or
purports to restrict the ability of the Administrative Agent or any Secured
Party to exercise their rights under this Agreement, including, without
limitation, their rights to review the Loan, the Required Asset Documents and
Asset File;



21









 





     (aa) has an original term to maturity (A) in the case of Senior Secured
ABL Loans, Senior Secured Term Loans, Stretch Senior Secured Loans and Senior
B-Note Loans of not greater than 84 months, or (B) in the case of Junior
Subordinated Loans and Senior Subordinated Loans of not greater than 120
months;



     (bb) is not a consumer loan;



     (cc) none of the Loans secured by a mortgage are high-cost loans as
defined by applicable predatory- and abusive-lending laws;



     (dd) the proceeds of the Loan will not be used to finance activities of
the type engaged in by businesses classified under NAICS Codes 2361
(Residential Building Construction), 2362 (Nonresidential Building
Construction), 2371 (Utility System Construction), 2372 (Land Subdivision);
provided, that the foregoing shall not be deemed to render
inventory loans to timeshare operators ineligible;



     (ee) with respect to MPAs, the related loan documents require the Dealer
to repurchase all Alarm Service Agreements then subject to such MPA on the
earlier of (i) a date certain or (ii) when so demanded by the Purchaser (as
defined in such MPA) after a Default (as defined in such MPA), as provided in
such MPA, which repurchase is required to be at a repurchase price sufficient
to pay all principal and interest outstanding on such MPA. “Default” under
such MPA requiring the Dealer to repurchase an Alarm Service Agreement
includes, without limitation, a failure by the related customer to make a
monthly payment due under such Alarm Service Agreement for more than sixty (60)
days after due, or such a failure to pay when due shall occur two or more times
in any one hundred eighty (180) day period. “Default” under such MPA requiring
the Dealer to repurchase all Alarm Service Agreements includes, without
limitation, a default by the Dealer in any of its obligations, covenants,
agreements, representation or warranties contained in any Alarm Service
Agreement or in such MPA;



     (ff) with respect to MPAs, if such Loan becomes part of the Collateral
after the SLP Closing Date, such Loan is a Security System Loan;



     (gg) with respect to MPAs, such Loan is not a Loan to any of the following
Dealers: (i) Armstrong Security Alarm Monitoring, Ltd.; (ii) Vytaltek Security
Services, Inc.; or (iii) Provident Alarm Services, Ltd.;



     (hh) with respect to MPAs, if such Loan is a Security System Loan (other
than any Loan purchased from the SLP Originator on the SLP Closing Date), such
Loan has an original term to maturity and full amortization of not more than 84
months; and



     (ii) with respect to MPAs, if such Loan is a Loan purchased from the SLP
Financing Originator, on or before the applicable Cut-Off Date, the Obligor
(other than (i) A-1 Security, Ltd.; (ii) Peak Alarm Company, Inc. of Idaho; and
(iii) Sentry Sales and Leasing Co., Sentry Alarm Midwest, LLC, Sentry Alarms
Southwest, LLC and Automatic Alarms, Inc.) of such Loan shall have been
directed to make all payments to one or more lock-boxes controlled by
Originator, and funds in each such lock-box are removed and deposited on a
daily basis into the US Bank Collection Account, and if such Loan is a Loan
financed under this Agreement after the



22









 







SLP Closing Date, on or before the
applicable Cut-Off Date, the Obligor of such Loan shall have been directed to
make all payments to the Lock-Box or directly to the Lock-Box Account;



(3) With respect to any Lease:




     (a) the related Equipment with respect to such Lease is not and is not to
become a “fixture” (as such term is defined in the applicable UCC) and is not
software;



     (b) the Lease, according to the Lease Contract under which such Lease
arises, is required to be paid in full within 84 months of the date of
origination thereof;



     (c) the Lease arises under a Lease Contract pursuant to which the
Equipment related thereto has been installed and accepted by the related
Obligor and all obligations required to be performed thereunder prior to the
date such Lease becomes included as part of the Collateral have been performed
by the Seller or the Originator and by all parties other than the Obligor,
without dispute, offset, defense or counterclaim, and which Lease is fully
assignable;



     (d) with respect to which Lease the Originator is the owner of, or the
holder of a first priority, perfected security interest in (as properly
evidenced by appropriate UCC financing statements and titles, as applicable)
each item of Equipment subject to such Lease Contract, free and clear of any
Liens (including free and clear of any Liens of any creditors of, or purchasers
from, the related Obligor), and a security interest in all of the Originator’s
right, title and interest in such Equipment has been granted by the Originator
to the Seller under the Sale Agreement, which security interest in favor of the
Seller is free and clear and any Lien other than the claim of the
Administrative Agent therein for the benefit of the Secured Parties granted to
the Administrative Agent by the Seller pursuant to Section 9.1;



     (e) the Lease arises under a Lease Contract, none of the parties to which
have done or failed to do anything which would or might permit any other party
thereto to terminate such
Lease Contract or to suspend or reduce any payments or obligations due or
to become due thereunder;



     (f) the Lease arises under a Lease Contract no portion of which has been,
or is (pursuant to the terms of such Lease Contract) subject to rejection,
early termination, cancellation or non-assumption, prior to the original term
of such Lease Contract;



     (g) the Lease arises under a Lease Contact that requires payments to be
made on a monthly or quarterly or more frequent basis;



     (h) the Obligor of which Lease is in possession of the Equipment subject
to the related Lease Contract and is not subleasing such Equipment to any other
Person;



     (i) no portion of any Lease Payment is payable on account of sales taxes;



     (j) with respect to which Lease (a) the related Lease Contract evidences a
finance lease which represents an installment sale of the related Equipment in
return for a security interest therein (and not a true lease) and (b) the
Seller has, on or prior to the date of the related



23









 







Lease Contract, filed a
financing statement against the related Obligor (which describes the related
Equipment) in all applicable UCC jurisdictions;



     (k) the Lease arises under a Lease Contract which permits the Originator
to require direct payment by the related Obligor to the Originator of amounts
owing on such Lease that have not be received by the Originator or its agents;



     (l) the applicable Lease Rate is a fixed rate;



     (m) no payments by the Obligor under the applicable Lease Contract
constitute or include any maintenance payments;



     (n) the related Lease Contract provides that the Servicer may accelerate
all payments thereunder if the Obligor is in default under the Lease Contract;



     (o) the related Lease Contract prohibits the Obligor from applying a
security deposit to offset a Lease Payment;



     (p) there is only one original physical signature (i.e., not a facsimile
and not an electronic signature) of the Obligor on the related Lease Contract;



     (q) if the Lease is a Third-Party Lease, such Lease has been
re-underwritten by the Originator and satisfies all of the Originator’s
underwriting criteria; and



     (r) the related Lease Contract has not been terminated as a result of any
loss or damage to the related Equipment.


“Eligible Obligor”: On any date of determination, any Obligor that (i)
is a business organization (and not a natural person) duly organized and
validly existing under the laws of its jurisdiction of organization and has a
billing address within the United States, (ii) is a legal
operating entity or holding company (except with respect to a Loan to an SPE
Obligor), (iii) has not entered into the Loan or Lease Contract, as the case
may be, primarily for personal, family or household purposes, (iv) is not a
Governmental Authority, (v) is not an Affiliate (other than with respect to an
SPE Obligor) of any party hereto, (vi) is not in the gaming, nuclear waste or
natural resources industry (other than Obligors in the business of wholesale
purchasing and reselling of natural gas or electricity, the Loans to which have
been appropriately hedged), (vii) is not engaged in the business of conducting
proprietary research on new drug development, (viii) is not the subject of an
Insolvency Proceeding (except with respect to a DIP Loan), (ix) as of the
applicable Cut-Off Date, has an Eligible Risk Rating, and (x) is not an Obligor
of a Charged-Off Asset or Delinquent Asset.



“Eligible Repurchase Obligations”: Repurchase obligations with respect
to any security that is a direct obligation of, or fully guaranteed by, the
United States or any agency or instrumentality thereof the obligations of which
are backed by the full faith and credit of the United States, in either case
entered into with a depository institution or trust company (acting as
principal) described in clauses (c)(ii) and (c)(iv) of the
definition of Permitted Investments.




24









 







“Eligible Risk Rating”: With respect to a designated Obligor, a “Rating
1,” “Rating 2,” or “Rating 3” each as determined in accordance with the Credit
and Collection Policy.



“Environmental Laws”: Any and all foreign, federal, state and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of hazardous materials. Environmental
Laws include, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C. § 331 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the
Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. § 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §
300, et seq.), the Environmental Protection Agency’s regulations
relating to underground storage tanks (40 C.F.R. Parts 280 and 281), and the
Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), and the
rules and regulations thereunder, each as amended or supplemented from time to
time.



“Equipment”: Healthcare related equipment or such other equipment types
as are approved for inclusion in the Collateral by the Administrative Agent (in
its sole discretion).



“Equity Contribution”: On any date of determination, an amount equal to
the excess, if any, of (a) the sum of (i) the Borrowing Base on such date plus
(ii) all Principal Collections on deposit in the Principal Collections Account
and the Excess Spread Account on such date, minus (b) the Advances Outstanding
on such date.



“ERISA”: The United States Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.



“ERISA Affiliate”: (a) Any corporation that is a member of the same
controlled group of corporations (within the meaning of Section 414(b)
of the Code) as the Seller, (b) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c)
of the Code) with the Seller, or (c) a member of the same affiliated service
group (within the meaning of Section 414(m) of the Code) as the Seller,
any corporation described in clause (a) above or any trade or business
described in clause (b) above.



“Eurocurrency Liabilities”: Defined in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect from time to time.



“Eurodollar Disruption Event”: The occurrence of any of the following:
(a) any Liquidity Bank shall have notified the Administrative Agent of a
determination by such Liquidity Bank or any of its assignees or participants
that it would be contrary to law or to the directive of any central bank or
other governmental authority (whether or not having the force of law) to obtain
United States dollars in the London interbank market to fund any Advance, (b)
any Liquidity Bank shall have notified the Administrative Agent of the
inability, for any reason, of such Liquidity Bank or any of its assignees or
participants to determine the Adjusted Eurodollar Rate, (c) any Liquidity


25









 






Bank
shall have notified the Administrative Agent of a determination by such
Liquidity Bank or any of its assignees or participants that the rate at which
deposits of United States dollars are being offered to such Liquidity Bank or
any of its assignees or participants in the London interbank market does not
accurately reflect the cost to such Liquidity Bank, such assignee or such
participant of making, funding or maintaining any Advance or (d) any Liquidity
Bank shall have notified the Administrative Agent of the inability of such
Liquidity Bank or any of its assignees or participants to obtain United States
dollars in the London interbank market to make, fund or maintain any Advance.



“Eurodollar Reserve Percentage”: For any period means the percentage,
if any, applicable during such period (or, if more than one such percentage
shall be so applicable, the daily average of such percentages for those days in
such period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any basic, emergency, supplemental,
marginal or other reserve requirements) with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities having a term of one month.



“Excess Spread Account”: Defined in Section 6.4(g).



“Exchange Act”: The United States Securities Exchange Act of 1934, as
amended.



“Excluded Amounts”: (a) Any amount received in the Lock-Box by, on or
with respect to any Asset included as part of the Collateral, which amount is
attributable to the payment of any tax, fee or other charge imposed by any
Governmental Authority on such Asset, (b) any amount representing a
reimbursement of insurance premiums and (c) any amount with respect to any
Asset retransferred or substituted for upon the occurrence of a Warranty Event
(if the Seller
has decided that such Asset is no longer to be included in the Collateral) or
that is otherwise replaced by a Substitute Asset (if the Seller has decided
that such Asset is no longer to be included in the Collateral), to the extent
such amount is attributable to a time after the effective date of such
replacement.



“Existing Assets”: Each Asset purchased by the Seller under the Sale
Agreement and owned by the Seller on the Closing Date.



“Extension Request Date”: With respect to the Seller’s right to request
an extension of the Facility Termination Date occurring in 2007 pursuant to
Section 2.1(d), shall mean a date within sixty (60) days but not less
than forty-five (45) days prior to the Facility Termination Date occurring in
2007.



“Face Amount”: With respect to any Asset, the Outstanding Asset Balance
thereof shown on the applicable Asset List.



“Facility Amount”: $400,000,000, as such amount may vary from time to
time upon the written agreement of the parties hereto; provided,
that, such amount may not at any time exceed the aggregate Commitments
then in effect; provided, further, that, on or after the
Termination Date, the Facility Amount shall mean the Advances Outstanding.




26









 







“Facility Termination Date”: April 17, 2007, or such later date as the
Administrative Agent and each Purchaser Agent, in its sole discretion, shall
notify the Seller of in writing.



“FDIC”: The Federal Deposit Insurance Corporation, and any successor
thereto.



“Federal Funds Rate”: For any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the
overnight federal funds rates as in Federal Reserve Board Statistical Release
H.15(519) or any successor or substitute publication selected by the
Administrative Agent (or, if such day is not a Business Day, for the next
preceding Business Day), or, if, for any reason, such rate is not available on
any day, the rate determined, in the sole opinion of the Administrative Agent,
to be the rate at which overnight federal funds are being offered in the
national federal funds market at 9:00 a.m. (Charlotte, North Carolina time).



“Finance Charges”: With respect to any Asset, any interest or finance
charges owing by an Obligor pursuant to or with respect to such Asset.



“Financial Sponsor”: Any Person, including any Subsidiary of another
Person, whose principal business activity is acquiring, holding, and selling
investments (including controlling interests) in otherwise unrelated companies
that each are distinct legal entities with separate management, books and
records and bank accounts, whose operations are not integrated one with another
and whose financial condition and creditworthiness are independent of the other
companies so owned by such Person.



“Fitch”: Fitch, Inc. or any successor thereto.



“Fixed Rate Loan”: A Loan that is an Eligible Asset other than a
Floating Rate Loan.



“Fixed Rate Loan Percentage”: As of any date of determination, the
percentage equivalent of a fraction (i) the numerator of which is equal to the
sum of the Outstanding Asset Balances of all Fixed Rate Loans and Banded
Floating Rate Loans that are within 0.50% of the maximum interest rate
allowable under their Required Asset Documents as of such date, and (ii) the
denominator of which is equal to the Aggregate Outstanding Asset Balance as of
such date.



“Floating Rate Loan”: A Loan that is an Eligible Asset where the
interest rate payable by the Obligor thereof is based on the CapitalSource
Prime Rate or CapitalSource LIBOR Rate, plus some specified interest
percentage in addition thereto, and the Loan provides that such interest rate
will reset immediately upon any change in the related CapitalSource Prime Rate
or CapitalSource LIBOR Rate.



“Funding Date”: The third Business Day following the Closing Date, and
(i) as to any incremental Advance, any Business Day that is one Business Day
immediately following, and (ii) as to any Swingline Advance, the Business Day
of, the receipt by the Administrative Agent and each Purchaser Agent of a
Borrowing Notice (along with a Borrowing Base Certificate) in accordance with
Section 2.2 or Section 2.3, as applicable.



“GAAP”: Generally accepted accounting principles as in effect from time
to time in the United States.




27









 







“Gordon Borrowers”: Collectively, Franciscan Manor Associates, LLC,
Turnberry Associates, LLC, Troon Associates, LLC, Prestwicke Associates, LLC,
Royal Aberdeen Associates, LLC and Muirfield Associates, LLC, as Obligors and
Gordon Heath Ventures, LLC, as guarantor under the related Assets.



“Governmental Authority”: With respect to any Person, any nation or
government, any state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any body or entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any court or arbitrator having
jurisdiction over such Person.



“Guarantor”: Defined in the Recitals of this Agreement.



“H.15”: Federal Reserve Statistical Release H.15.



“Hedge Amount”: On any day, amount equal to the product of (a) the
product of (i) the Borrowing Base and (ii) the sum of the Fixed Rate Loan
Percentage and Lease Percentage on such day and (b) one minus the
Overcollateralization Percentage on such day.



“Hedge Collateral”: Defined in Section 5.3(b).



“Hedge Breakage Costs”: For any Hedge Transaction, any amount payable
by the Seller for the early termination of that Hedge Transaction or any
portion thereof.



“Hedge Counterparty”: Means (a) Wachovia Bank, National Association and
its successors and assigns, and (b) any entity that (i) on the date of entering
into a Hedging Agreement (x) is an interest rate swap dealer that has been
approved in writing by the Administrative Agent (which approval shall not be
unreasonably withheld), and (y) has a long-term unsecured debt rating of not
less than “A” by S&P, not less than “A2” by Moody’s and not less than “A” by
Fitch (if such entity is rated by Fitch) (“Long-term Rating Requirement”) and a
short-term unsecured debt rating of not less than “A-1” by S&P, not less than
“P-1” by Moody’s and not less than “F-1” by Fitch (if such entity is rated by
Fitch) (“Short-term Rating Requirement”), and (ii) in a Hedging Agreement (x)
consents to the assignment of the Seller’s rights under each Hedging Agreement
to the Administrative Agent for the benefit of the Secured Parties pursuant to
Section 5.3(b) and (y) agrees that in the event that Moody’s, S&P or Fitch
reduces its long-term unsecured debt rating below the Long-term Rating
Requirement, or reduces its short-term unsecured debt rating below the
Short-term Rating Requirement, it shall transfer its rights and obligations
under each Hedge Transaction to another entity that meets the requirements of
clause (i) and (ii) hereof and has entered into a Hedging Agreement with the
Seller on or prior to the date of such transfer.



“Hedge Guaranty”: The Guaranty, dated as of the date hereof, by and
between CapitalSource Finance in favor of Wachovia, as Hedge Counterparty, as
amended, modified, waived, supplemented, restated or replaced from time to
time.



“Hedge Notional Amount”: For any Advance or Swingline Advance, the
aggregate notional amount in effect on any day under all Hedge Transactions
entered into pursuant to Section 5.3(a) for that Advance or Swingline
Advance.


28









 







“Hedge Percentage”: On any day, that (a) the Aggregate Outstanding
Asset Balance (excluding from such calculation the Outstanding Asset Balance of
any Leases) exceeds $150,000,000, an amount equal to 100% for Fixed Rate Loans
if the sum of the Outstanding Asset Balances of all Fixed Rate Loans exceeds
$50,000,000 or (b) the Aggregate Outstanding Asset Balance (excluding from such
calculation the Outstanding Asset Balance of any Leases) is less than or equal
to $150,000,000, an amount equal to 100% for Fixed Rate Loans if the sum of the
Outstanding Asset Balances of all Fixed Rate Loans exceeds $20,000,000. The
“Hedge Percentage” for Floating Rate Loans is 0%. The “Hedge Percentage” for
Banded Floating Rate Loans, on any day, is an amount equal to 100% if the
interest rate on any such Loan is within 0.50% of the maximum interest rate
allowable under its Required Asset Documents. The “Hedge Percentage” for
Leases is 100%.



“Hedge Transaction”: Each interest rate or index rate swap transaction
between the Seller and a Hedge Counterparty that is entered into pursuant to
Section 5.3(a) and is governed by a Hedging Agreement.



“Hedged Rate”: For any Advance or Swingline Advance, the interest rate
payable to a Hedge Counterparty under the Hedge Transaction related to such
Advance or Swingline Advance computed as of the Cut-Off Date under or with
respect to the Asset to which that Advance or Swingline Advance relates.



“Hedging Agreement”: Each agreement between the Seller and a Hedge
Counterparty that governs one or more Hedge Transactions entered into pursuant
to Section 5.3(a), which agreement shall consist of a “Master Agreement”
in a form published by the International Swaps and Derivatives Association,
Inc., together with a “Schedule” thereto substantially in the form of
Exhibit D hereto or such other form as the Administrative Agent shall
approve in writing, and each “Confirmation” thereunder confirming the specific
terms of each such Hedge Transaction.



“Highest Required Investment Category”: (i) With respect to ratings
assigned by Moody’s, “Aa2” or “P-1” for one month instruments, “Aa2” and “P-1”
for three month instruments, “Aa3” and “P-1” for six month instruments and
“Aa2” and “P-1” for instruments with a term in excess of six months, (ii) with
respect to rating assigned by S&P, “A-1” for short-term instruments and “A” for
long-term instruments, and (iii) with respect to rating assigned by Fitch (if
such investment is rated by Fitch), “F-1+” for short-term instruments and “AAA”
for long-term instruments.



“Increased Costs”: Any amounts required to be paid by the Seller to an
Affected Party pursuant to Section 2.15.



“Indebtedness”: With respect to any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than current liabilities incurred in the
ordinary course of business and payable in accordance with customary trade
practices) or that is evidenced by a note, bond, debenture or similar
instrument or other evidence of indebtedness customary for indebtedness of that
type, (b) all obligations of such Person under leases that shall have been or
should be, in accordance with generally accepted accounting principles,
recorded as capital leases, (c) all obligations of such Person in respect of
acceptances issued or created for the account of such Person, (d) all
liabilities secured by any


29









 






Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof, (e) all indebtedness, obligations or liabilities of that Person in
respect of Derivatives, and (f) obligations under direct or indirect guaranties
in respect of obligations (contingent or otherwise) to purchase or otherwise
acquire, or to otherwise assure a creditor against loss in respect of,
indebtedness or obligations of others of the kind referred to in clauses
(a) through (e) above.



“Indemnified Amounts”: Defined in Section 11.1.



“Indemnified Parties”: Defined in Section 11.1.



“Industry”: The industry of an Obligor as determined by reference to
the two digit standard industry classification or North American Industry
Classification System codes.



“Initial Advance”: The first Advance.



“Insolvency Event”: With respect to a specified Person, (a) the filing
of a decree or order for relief by a court having jurisdiction in the premises
in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Insolvency Law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or
ordering the winding-up or liquidation of such Person’s affairs, and such
decree or order shall remain unstayed and in effect for a period of sixty (60)
consecutive days; or (b) the commencement by such Person of a voluntary 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 an involuntary case under
any such law, or the consent by such Person to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.



“Insolvency Laws”: The Bankruptcy Code and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, or similar
debtor relief laws from time to time in effect affecting the rights of
creditors generally.



“Insolvency Proceeding”: Any case, action or proceeding before any
court or other Governmental Authority relating to any Insolvency Event.



“Instrument”: Any “instrument” (as defined in Article 9 of the UCC),
other than an instrument that constitutes part of chattel paper.



“Insurance Policy”: With respect to any Asset, an insurance policy
covering liability and physical damage to or loss of the Related Property.



“Insurance Proceeds”: Any amounts payable or any payments made on or
with respect to an Asset under any Insurance Policy.




30









 







“Intercreditor Agreement”: The Second Amended and Restated
Intercreditor and Lockbox Administration Agreement, dated as of September 17,
2003, by and among Wells Fargo, as the indenture trustee and as the Citi
indenture trustee (as defined therein), Bank of America, N.A., as the lockbox
bank, WCM, as the conduit administrative agent and as the acquisition
administrative agent, Citigroup Global Capital Markets Realty Corp., as the
Citi conduit purchaser, each of the parties that from time to time executes a
joinder thereto, CapitalSource Finance, as the originator, as the original
servicer and as the lockbox servicer, and CapitalSource Funding LLC, as the
owner of the account and as the owner of the lockbox, as amended, modified,
waived, supplemented, restated or replaced from time to time.



“Interest”: For each Accrual Period and each Advance or Swingline
Advance outstanding, the sum of the products (for each day during such Accrual
Period) of:




	 	 	 
	IR x P x

	 	  1  
	

	 	  D  







where:




	 	 	 	 	 	 	 
	

	 	IR
	 	=
	 	the Interest Rate applicable on such day;
	 
	 	 	 	 	 	 
	

	 	P
	 	=
	 	the principal amount of such Advance or
Swingline Advance on such day; and
	 
	 	 	 	 	 	 
	

	 	D
	 	=
	 	360 or, to the extent the Interest Rate is
based on the Base Rate,
365 or 366 days, as applicable.






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



“Interest Collections”: Any and all amounts received (i) in respect of
any interest, fees or other similar charges (including any Finance Charges) on
or with respect to a Loan and (ii) in respect of fees or other similar charges
(including Finance Charges) and all amounts received and characterized as Lease
Interest on or with respect to a Lease, in each case from or on behalf of any
Obligor that are deposited into the Collection Account, or received by or on
behalf of the Seller by the Servicer or Originator in respect of an Asset, in
the form of cash, checks, wire transfers, electronic transfers or any other
form of cash payment (net of any payment owed by the Seller to, and including
any receipts from, any Hedge Counterparties).



“Interest Rate”: For any Accrual Period and for each Advance or
Swingline Advance outstanding for each day during such Accrual Period:





     (i) to the extent the applicable Conduit Purchaser or Swingline
Purchaser has funded the applicable Advance or Swingline Advance through
the issuance of commercial paper, a rate equal to the applicable CP Rate;
or



31









 






     (ii) to the extent the applicable Conduit Purchaser or Swingline
Purchaser did not fund the applicable Advance or Swingline Advance
through the issuance of commercial paper, a rate equal to the Alternative
Rate;


provided, however, the Interest Rate shall be the Base Rate for
any Accrual Period for any Advance as to which a Conduit Purchaser has funded
the making or maintenance thereof by a sale of an interest therein to any
Liquidity Bank under the applicable Liquidity Agreement on any day other than
the first day of such Accrual Period without giving such Liquidity Bank(s) at
least two Business Days’ prior notice of such assignment.



“ISDA Definitions”: The 2000 ISDA Definitions as published by the
International Swaps and Derivatives Association, Inc.



“Issuer”: VFCC and any other Conduit Purchaser whose principal business
consists of issuing commercial paper or other securities to fund its
acquisition or maintenance of receivables, accounts, instruments, chattel
paper, general intangibles and other similar assets.



“Junior Subordinated Loan”: Any Term Loan that (i) may or may not be
secured by a Lien on the Obligor’s assets constituting Related Property for the
Loan, (ii) has a Loan-to-Value of less than (a) 85% where the Loan is not a
Material Mortgage Loan or the Related Property is not primarily real estate,
and (b) 95% where the Loan is a Material Mortgage Loan or the Related
Property is primarily real estate, (iii) that contains terms which, upon the
occurrence of an event of default under the underlying loan documents or in the
case of any liquidation or foreclosure on the Related Property, provide that
the Seller’s portion of such Loan would be paid only after the other lenders
party to such Loan (including any lender party making any Senior Secured ABL
Loan, Senior Secured Term Loan, Stretch Senior Secured Loan, Senior B-Note Loan
or Senior Subordinated Loan whose right to payment is contractually senior to
the Seller) is paid in full, and (iv) is substantially in the form of the
“Junior Subordinated Loan” previously delivered by the Originator to the
Administrative Agent in connection with the CapitalSource Funding I Transaction
or such other form as shall be adopted by the Originator and approved in
writing by the Administrative Agent at least five days prior to such Loan
becoming part of the Collateral hereunder.



“Lease”: Any lease sold or contributed to the Seller hereunder and
included as part of the Collateral, which includes, without limitation, (i) the
Required Asset Documents and Asset File, (ii) all right, title and interest of
the Originator in and to the lease and any Related Property and (iii) with
respect to any Lease Contract at any time, all Lease Payments then or
thereafter payable by the Obligor under such Lease Contract, whether
constituting an account, chattel paper, payment intangible, instrument or
general intangible (whether or not earned by performance), together with all
supplemental or additional payments required by the terms of such Lease
Contract with respect to insurance, maintenance, ancillary products and
services and any other specific charges, excluding any such payments or charges
which constitute sales taxes or other taxes or the price for a purchase option
and excluding any lease residuals.



“Lease Balance”: As of any date of determination, the aggregate amount
of all Lease Payments remaining under any Lease Contract as set forth on the
related payment schedule.




32









 







“Lease Contract”: A lease agreement between the Originator and an
Obligor substantially in the form of the “Lease Agreement” attached hereto as
Schedule V, or in such other form as shall be adopted by the Originator
and approved in writing by the Administrative Agent at least five days prior to
such Lease Contract becoming part of the Collateral hereunder.



“Lease Interest”: With respect to any Lease Payment for any period under
a Lease Contract, the amount determined by multiplying the Lease Balance at the
beginning of such period by the Lease Rate for such period.



“Lease Payments”: With respect to any Lease Contract, the aggregate
amount of installments payable by the Obligor under such Lease Contract,
excluding, however, all supplemental or additional payments
required by the terms of such Lease Contract with respect to taxes, insurance,
maintenance, ancillary services and other specific charges.



“Lease Percentage”: As of any date of determination, the percentage
equivalent of a fraction (i) the numerator of which is equal to the sum of the
Outstanding Asset Balances of all Leases included as part of the Collateral as
of such date, and (ii) the denominator of which is equal to the Aggregate
Outstanding Asset Balance as of such date.



“Lease Principal”: With respect to any Lease Payment for any period
under a Lease Contract, the amount determined by subtracting from the amount of
such Lease Payment the amount determined to constitute Lease Interest for such
Period.



“Lease Rate”: The rate of interest set forth in the applicable Lease
Contract.



“LIBOR Rate”: For any day during any Accrual Period and any Advance or
Swingline Advance or portion thereof, an interest rate per annum equal to:





     (1) the posted rate for thirty (30) day deposits in United States
Dollars appearing on Telerate page 3750 as of 11:00 a.m. (London time) on
the Business Day which is the second (2nd) Business Day immediately
preceding the applicable Funding Date (with respect to the initial
Accrual Period for such Advance or Swingline Advance) and as of the
second (2nd) Business Day immediately preceding the first (1st) day of
the applicable Accrual Period (with respect to all subsequent Accrual
Periods for such Advance or Swingline Advance); or




     (2) if no such rate appears on Telerate page 3750 at such time and
day, then the LIBOR Rate shall be determined by Wachovia at its principal
office in Charlotte, North Carolina as its rate (each such determination,
absent manifest error, to be conclusive and binding on all parties hereto
and their assignees) at which thirty (30) day deposits in United States
Dollars are being, have been, or would be offered or quoted by Wachovia
to major banks in the applicable interbank market for Eurodollar deposits
at or about 11:00 a.m. (Charlotte, North Carolina time) on such day.


“Lien”: Any mortgage, lien, pledge, charge, right, claim, security
interest or encumbrance of any kind of or on any Person’s assets or properties
in favor of any other Person (including any UCC financing statement or any
similar instrument filed against such Person’s assets or properties).




33









 







“Liquidation Expenses”: With respect to (a) any Asset, the aggregate
amount of all out-of-pocket expenses reasonably incurred by the Servicer
(including amounts paid to any subservicer) and any reasonably allocated costs
of counsel (if any), in each case in accordance with the Servicer’s customary
procedures in connection with the repossession, refurbishing and disposition of
any related assets securing such Asset upon or after the expiration or earlier
termination of such Asset and other out-of-pocket costs related to the
liquidation of any such assets, including the attempted collection of any
amount owing pursuant to such Asset if it is a Charged-Off Asset, and if
requested by the Administrative Agent, the Servicer and Originator must provide
to the Administrative Agent a breakdown of the Liquidation Expenses for any
Asset along with any supporting documentation therefor, and (b) any Portfolio
Asset, the aggregate amount of all out-of-pocket expenses reasonably incurred
by the Servicer (including amounts paid to any subservicer) and any reasonably
allocated costs of counsel (if any), in each case in accordance with the
Servicer’s customary procedures in connection with the repossession,
refurbishing and disposition of any related assets securing such Portfolio
Asset upon or after the expiration or earlier termination of such Portfolio
Asset and other out-of-pocket costs related to the liquidation of any such
assets, including the attempted collection of any amount owing pursuant to such
Portfolio Asset if it is a Charged-Off Portfolio Asset, and if
requested by the Administrative Agent, the Servicer and Originator must provide
to the Administrative Agent a breakdown of the Liquidation Expenses for any
Portfolio Asset along with any supporting documentation therefor.



“Liquidity Agreement”: (a) with respect to VFCC, the Liquidity Purchase
Agreement, dated as of the date hereof, by and among VFCC, as seller, the
Liquidity Banks named therein, WCM, as Deal Agent and documentation agent, and
Wachovia, as liquidity agent and eligible credit enhancer, and (b) with respect
to each Additional Purchaser, the liquidity purchase agreement by and among
such Additional Purchaser, the Liquidity Banks named therein and the related
Additional Agent, as such agreement may be amended, modified, waived,
supplemented, restated or replaced from time to time.



“Liquidity Bank”: The Person or Persons who provide liquidity support
to VFCC or any Additional Purchaser pursuant to a Liquidity Agreement in
connection with the issuance by such Conduit Purchaser of Commercial Paper
Notes.



“Liquidity Factor Reduction Event”: With respect to each Asset included
as part of the Collateral subject to the Retained Interest provisions of this
Agreement, a “Liquidity Factor Reduction Event” under and as defined in any
Permitted Securitization Transaction rated by the Rating Agencies.



“Loan”: Any loan or MPA originated by the Originator or purchased by
the Originator from the SLP Financing Originator pursuant to and in accordance
with an Acquisition Agreement or, in the case of an Assigned Loan or an
Acquired Loan, otherwise acquired by the Originator, that is identified on an
Asset List and sold or contributed to the Seller hereunder and included as part
of the Collateral, which loan includes, without limitation, (i) the Required
Asset Documents and Asset File, and (ii) all right, title and interest of the
Originator in and to the loan and any Related Property.



“Loan Register”: Defined in Section 5.4(n).




34









 







“Loan-to-Liquidation Value or LLV”: With respect to any Loan, as
of the date of origination, the percentage equivalent of a fraction (i) the
numerator of which is equal to the maximum availability (as provided in the
applicable underlying loan documents) of such Loan as of the date of its
origination and (ii) the denominator of which is equal to the liquidation value
of the Related Property securing such Loan that is subject to a first priority
lien in favor of the Originator (as determined by the Servicer in accordance
with the Credit and Collection Policy and in a commercially reasonable manner).



“Loan-to-Value Ratio or LTV”: With respect to any Loan (other
than an MPA), as of any date of determination, the percentage equivalent of a
fraction (a) the numerator of which is equal to the total commitment amount (as
provided in the applicable loan documents) of such Loan as of the date of its
origination, and (b) the denominator of which is equal to the “capital
structure” of the related Obligor (as defined in, and as determined by the
Servicer in accordance with, the Credit and Collection Policy and in a
commercially reasonable manner). With respect to any Security System Loan, as
of any date of determination, the percentage equivalent of a fraction (a) the
numerator of which is equal to the related Security System Loan
Advance Multiple and (b) the denominator of which is equal to the related
Security System Loan Average Contract Term. With respect to an MPA other than
a Security System Loan, the Loan-to-Value shall be calculated in a manner
determined by the Administrative Agent, in its reasonable discretion



“Lock-Box”: The post office box to which Collections are remitted for
retrieval by a Lock-Box Bank and deposited by such Lock-Box Bank into a
Lock-Box Account, the details of which are contained in Schedule II.



“Lock-Box Account”: The account maintained at the Lock-Box Bank for the
purpose of receiving Collections, the details of which are contained in
Schedule II, as such schedule may be amended from time to time.



“Lock-Box Agreement”: The Third Amended and Restated Three Party
Agreement Relating to Lockbox Services and Control (with Activation Upon
Notice), dated as of September 17, 2003, by and among Wells Fargo, as the
indenture trustee and as the Citi indenture trustee (as defined therein), Bank
of America, N.A., as the lockbox bank, WCM, as the conduit administrative agent
and as the acquisition administrative agent, CapitalSource Finance, as the
originator, as the original servicer and as the lockbox servicer, and
CapitalSource Funding LLC, as the owner of the account and as the owner of the
lockbox, as amended, modified, waived, supplemented, restated or replaced from
time to time.



“Lock-Box Bank”: Bank of America, N.A., or any of the banks or other
financial institutions holding one or more Lock-Box Accounts.



“MPA”: Any master purchase agreement between the SLP Financing
Originator or the Originator and a Dealer, as supplemented and/or modified by
one or more purchase statements, pursuant to which such Dealer has sold Alarm
Service Agreements to the SLP Financing Originator or the Originator. With
respect to any MPA:




     (a) references in this Agreement to “payments” due under a Loan shall mean
all payments owed by the related Dealer under such MPA and (without
duplication), to the extent



35









 







not payable to the Dealer pursuant to such MPA, all
payments owed by a customer under any Alarm Service Agreement sold pursuant to
such MPA;



     (b) references in this Agreement to “principal” due on a Loan or
“principal” of a Loan shall mean the aggregate amount of all purchase prices
paid to the Dealer under such MPA for Alarm Service Agreements as reduced by
any payments previously received by the “Purchaser” under such MPA and
allocable to principal in accordance with such MPA;



     (c) references in this Agreement to “interest” on a Loan shall mean the
portion of payments due under such MPA allocable to interest in accordance with
such MPA;



     (d) references to “loan documents” or “loan documentation” shall include
the related master purchase agreement, initial purchase statements, purchase
statement, security agreement and other documents executed and delivered in
connection with such MPA;



     (e) references in this Agreement to “maturity” or “maturity date” shall
mean the date on which the Dealer is required under the MPA to repurchase all
related Alarm Service Agreements;



     (f) references in this Agreement to “note” or “promissory note” means the
related master purchase agreement and all related purchase statements; and



     (g) references in this Agreement to “Loans” shall include MPAs.


“Margin Stock”: Margin Stock as defined under Regulation U.



“Material Adverse Effect”: With respect to any event or circumstance,
means a material adverse effect on (a) the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Originator,
the Servicer or the Seller, (b) the validity, enforceability or collectibility
of this Agreement or any other Transaction Document or the validity,
enforceability or collectibility of the Assets generally or any material
portion of the Assets, (c) the rights and remedies of the Administrative Agent,
the Purchasers, the Purchaser Agents and the Secured Parties, (d) the ability
of the Seller, the Servicer, the Backup Servicer or the Collateral Custodian to
perform its obligations under this Agreement or any Transaction Document, or
(e) the status, existence, perfection, priority or enforceability of the
Administrative Agent’s, the Purchaser Agents’, or the Secured Parties’ interest
in the Collateral.



“Material Mortgage Loan”: Any Loan for which the underlying Related
Property consisting of real property owned by the Obligor (i) represents 25% or
more (measured by the book value of the three most valuable parcels of real
property as of the date of such Loan) of (a) the original commitment for such
Loan and (b) the fair value of the underlying Obligor and Related Property as a
whole and (ii) is material to the operations of the related business;
provided, however, that a Material Mortgage Loan shall not
include certain parcels of real property which the Obligor is in the process of
disposing.



“Materials of Environmental Concern”: Any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes,


36









 






defined or regulated as
such in or under any Environmental Laws, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.



“Maximum Availability”: (A) At any time after the Closing Date but
prior to the effective date of an assignment by VFCC under to the CapitalSource
Funding I Transaction pursuant to which both the commitment of VFCC thereunder
and the aggregate of all amounts payable thereunder to VFCC and/or Wachovia
shall be reduced by a minimum of $100,000,000, an amount equal to the lesser of
(x) $100,000,000 and (y) the sum of (a) the lesser of (I) the product of the
Borrowing Base and the Weighted Average Advance Rate and (II) the Borrowing
Base minus the Minimum Overcollateralization Amount, plus (b) the
amount on deposit in the Principal Collections Account received in reduction of
the Outstanding Asset Balance of any Asset that is an Eligible Asset; (B) at
any time on or after the effective date of the assignment described in
clause (A) but prior to the effective date of an amendment to the
CapitalSource Funding I Transaction pursuant to which the commitment of VFCC
thereunder shall be reduced to zero and all amounts payable thereunder to VFCC
and/or Wachovia shall
have been paid in full, an amount equal to the lesser of (i) $200,000,000 and
(ii) the sum of (x) the lesser of (a) the product of the Borrowing Base and the
Weighted Average Advance Rate and (b) the Borrowing Base minus the
Minimum Overcollateralization Amount, plus (y) the amount on deposit in
the Principal Collections Account received in reduction of the Outstanding
Asset Balance of any Asset that is an Eligible Asset, and (C) at any time on or
after the effective date of the amendment described in Clause (B), an
amount equal to the sum of (x) the lesser of (a) the product of the Borrowing
Base and the Weighted Average Advance Rate and (b) the Borrowing Base
minus the Minimum Overcollateralization Amount, plus (y) the
amount on deposit in the Principal Collections Account received in reduction of
the Outstanding Asset Balance of any Asset that is an Eligible Asset;
provided, however, that during the Amortization Period and at any
time an Overcollateralization Shortfall exists, the Maximum Availability shall
be equal to the Advances Outstanding.



“Minimum Overcollateralization Amount”: As of any date of
determination, an amount equal to the product of 1.5 and the Outstanding Asset
Balances of all Eligible Assets attributable to the Obligor having the largest
aggregate Outstanding Asset Balance of Eligible Assets included as part of the
Collateral (excluding the amount, calculated without duplication, by which such
Eligible Assets exceed any applicable Pool Concentration Criteria).



“Minimum Pool Yield”: A Pool Yield equal to 4.0%.



“Monthly Report”: Defined in Section 6.10(b).



“Moody’s”: Moody’s Investors Service, Inc., and any successor thereto.



“Multiemployer Plan”: A “multiemployer plan” as defined in Section
4001(a)(3) of ERISA that is or was at any time during the current year or
the immediately preceding five years contributed to by the Seller or any ERISA
Affiliate on behalf of its employees.



“NAICS Code” means the North American Industry Classification System
Codes by at least four digits.




37









 







“Noteless Loan”: A Loan with respect to which the underlying loan
documents do not require the Obligor to execute and deliver a promissory note
to evidence the indebtedness created under such Loan.



“Obligor”: With respect to any Asset, any Person or Persons obligated
to make payments pursuant to or with respect to such Asset, including any
guarantor thereof. For purposes of calculating any of the Pool Concentration
Criteria only, all Assets included as part of the Collateral or to be
transferred to the Collateral the Obligor of which is an Affiliate of another
Obligor (excluding any Financial Sponsor or Obligors that are Affiliates solely
because of common ownership or control by a Financial Sponsor) shall be
aggregated with all Assets of such other Obligor; for example, if
Corporation A is an Affiliate (other than because of a common Financial
Sponsor) of Corporation B, and the sum of the Outstanding Asset Balances of all
of Corporation A’s Loans included as part of the Collateral constitutes 10% of
the Aggregate Outstanding Asset Balance and the sum of the Outstanding Asset
Balances all
of Corporation B’s Loans included as part of the Collateral constitutes 10% of
the Aggregate Outstanding Asset Balance, the combined Obligor concentration for
Corporation A and Corporation B would be 20%.



“Officer’s Certificate”: A certificate signed by a Responsible Officer
of the Seller or the Servicer, as the case may be, and delivered to the
Collateral Custodian.



“Opinion of Counsel”: A written opinion of counsel, which opinion and
counsel are acceptable to the Administrative Agent in its sole discretion.



“Optional Sale”: Defined in Section 2.19(a).



“Optional Sale Date”: Any Business Day, provided forty-five (45) days
written notice is given in accordance with Section 2.19(a).



“Originator”: Defined in the Preamble of this Agreement.



“Outstanding Asset Balance”: (i) With respect to any Loan (other than
an MPA) at any time, the sum of (a) the portion of all future Scheduled
Payments becoming due under or with respect to such Loan plus (b) any
past due Scheduled Payments with respect to such Loan (other than with respect
to those payments to the extent a Servicer Advance is outstanding with respect
thereto), (ii) with respect to any MPA at any time, the sum of (i) the purchase
price for such Loan paid by the Originator to the SLP Financing Originator
under the Acquisition Agreement or, if such MPA was originated by the
Originator, the original principal amount thereof funded by the Originator, and
(iii) with respect to any Lease at any time, the sum of (i) the Discounted
Value of the remaining Lease Payments under the related Lease Contract,
plus (ii) the aggregate Uncollected Billings at such time (other than
with respect to those payments to the extent a Servicer Advance is outstanding
with respect thereto); provided, that, notwithstanding anything
to the contrary contained herein, for purposes of determining the Aggregate
Outstanding Asset Balance, if any portion of an Asset is deemed to be
“charged-off” in accordance with the provisions of the definition of
Charged-Off Asset, then the entire Asset shall be deemed to have an Outstanding
Asset Balance of zero, except for purposes of calculating the Average Pool
Charged-Off Ratio.




38









 







“Overcollateralization Amount”: As of any date of determination, an
amount equal to the product of (i) the Overcollateralization Percentage on such
date and (ii) the Borrowing Base on such date.



“Overcollateralization Percentage”: As of any date of determination,
the percentage equivalent of (a) one minus (b) a fraction (i) the
numerator of which is equal to the Advances Outstanding on such date and (ii)
the denominator of which is equal to the Aggregate Outstanding Asset Balance as
of such date.



“Overcollateralization Shortfall”: As of any date of determination, the
positive difference, if any, of (a) the Minimum Overcollateralization Amount on
such date minus (b) the Overcollateralization Amount on such date.



“Participation Loan”: A Loan to an Obligor, originated by the Originator
and serviced by the Servicer in the ordinary course of its business, in which a
participation interest has been granted to another Person in accordance with
the Credit and Collection Policy and (i) such transaction has been fully
consummated, pursuant to a participation agreement in the form of the
“Participation Loan Agreement” previously delivered by the Originator to the
Administrative Agent in connection with the CapitalSource Funding I Transaction
or in such other form as shall be adopted by the Originator and approved in
writing by the Administrative Agent at least five days prior to such Loan
becoming part of the Collateral hereunder, (ii) such Loan (other than in the
case of a Noteless Loan) is represented by a separate promissory note, and
(iii) the Originator has the right to receive and collect payments directly in
its own name, and to enforce its rights directly against the Obligor thereof
including the right to proceed against collateral; provided,
however, any such Loan shall exclude any Retained Interest.



“Payment Date”: The fifteenth (15th) day of each calendar month or, if
such day is not a Business Day, the next succeeding Business Day.



“Permitted Investments”: With respect to any Payment Date means
negotiable instruments or securities or other investments maturing on or before
such Payment Date (a) which, except in the case of demand or time deposits,
investments in money market funds and Eligible Repurchase Obligations, are
represented by instruments in bearer or registered form or ownership of which
is represented by book entries by a Clearing Agency or by a Federal Reserve
Bank in favor of depository institutions eligible to have an account with such
Federal Reserve Bank who hold such investments on behalf of their customers,
(b) that, as of any date of determination, mature by their terms on or prior to
the Business Day immediately preceding the next Payment Date immediately
following such date of determination, and (c) that evidence:





     (1) direct obligations of, and obligations fully guaranteed as to
full and timely payment by, the United States (or by any agency thereof
to the extent such obligations are backed by the full faith and credit of
the United States);




     (2) demand deposits, time deposits or certificates of deposit of
depository institutions or trust companies incorporated under the laws of
the United States or any state thereof and subject to supervision and
examination by federal or state banking or depository institution
authorities; provided, however, that at the time of the
Seller’s



39









 






investment or contractual commitment to invest therein, the
commercial paper, if any, and short-term unsecured debt obligations
(other than such obligation whose rating is based on the credit of a
Person other than such institution or trust company) of such depository
institution or trust company shall have a credit rating from Fitch and
each Rating Agency in the Highest Required Investment Category granted by
Fitch and such Rating Agency, which in the case of Fitch, shall be
“F-1+”;




     (3) commercial paper, or other short term obligations, having, at
the time of the Seller’s investment or contractual commitment to invest
therein, a rating in the Highest Required Investment Category granted by
each Rating Agency, which in the case of Fitch, shall be “F-1+”;




     (4) demand deposits, time deposits or certificates of deposit that
are fully insured by the FDIC and either have a rating on their
certificates of deposit or short-term deposits from Moody’s and S&P of
“P-1” and “A-1”, respectively, and if rated by Fitch, from Fitch of
“F-1+”;




     (5) notes that are payable on demand or bankers’ acceptances issued
by any depository institution or trust company referred to in clause
(ii) above;




     (6) investments in taxable money market funds or other regulated
investment companies having, at the time of the Seller’s investment or
contractual commitment to invest therein, a rating of the Highest
Required Investment Category from Moody’s, S&P and Fitch (if rated by
Fitch);




     (7) time deposits (having maturities of not more than ninety (90)
days) by an entity the commercial paper of which has, at the time of the
Seller’s investment or contractual commitment to invest therein, a rating
of the Highest Required Investment Category granted by Fitch and each
Rating Agency; or




     (8) Eligible Repurchase Obligations with a rating acceptable to the
Rating Agencies, which in the case of Fitch, shall be “F-1+” and in the
case of S&P shall be “A-1”.


The Collateral Custodian may pursuant to the direction of the Servicer or
Administrative Agent, as applicable, purchase or sell to itself or an
Affiliate, as principal or agent, the Permitted Investments described above.



“Permitted Liens”: Any of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced
(a) Liens for state, municipal or other local taxes if such taxes shall not at
the time be due and payable, (b) Liens imposed by law, such as materialmen’s,
mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens,
arising in the ordinary course of business securing obligations that are not
overdue for a period of more than thirty (30) days, and (c) Liens granted
pursuant to or by the Transaction Documents.



“Permitted Securitization Transaction”: Any financing transaction
undertaken by the Seller or an Affiliate of the Seller that is secured,
directly or indirectly, by the Collateral or any portion


40









 






thereof or any
interest therein, including any sale, lease, whole loan sale, asset
securitization, secured loan or other transfer.



“Person”: An individual, partnership, corporation (including a business
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.



“Pool Charged-Off Ratio”: As of any Determination Date, the product of
(i) twelve (12) and (ii) the percentage equivalent of a fraction, (a) the
numerator of which is equal to the sum of the Outstanding Asset Balances of all
Eligible Assets that became Charged-Off Assets (net of Recoveries during such
Collection Period) during the Collection Period related to such Determination
Date, and (b) the denominator of which is equal to the Aggregate Outstanding
Asset Balance as of the first (1st) day of the Collection Period related to
such Determination Date.



“Pool Concentration Criteria”: With respect to item (11) below, on any
day, with respect to item (18) below, after June 30, 2004, and with respect to
all other items below, on any day on and after the Concentrations Effective
Date, each of the concentration limitations as set forth below, which
concentration limitations (unless otherwise indicated) shall be measured on the
basis of a percentage of the Aggregate Outstanding Asset Balance:





     (1) the sum of the Outstanding Asset Balance of all Eligible Assets
the Obligors of which are resident of the same state shall not exceed
20%, with the exception of the State of Florida, which shall not exceed
30%;




     (2) the sum of the Outstanding Asset Balances of all Eligible Assets
the Obligors of which are in the same Industry shall not exceed 20%, with
the exception of the nursing care facility industry, North American
Industry Classification System code 6231, which shall not exceed 25%;




     (3) the sum of the Outstanding Asset Balances of all Eligible Assets
with a “Risk Rating 5” and a “Risk Rating 6” shall not exceed 10% and 0%,
respectively;




     (4) the sum of the Outstanding Asset Balances of all Eligible Assets
that are DIP Loans shall not exceed 15%;




     (5) the sum of the Outstanding Asset Balances of all Eligible Assets
to a single Obligor shall not exceed $30,000,000;




     (6) the sum of the Outstanding Asset Balances of all Eligible Assets
that are Senior Secured ABL Loans shall not exceed 25%;




     (7) the sum of the Outstanding Asset Balances of all Eligible Assets
that are Senior Subordinated Loans or Junior Subordinated Loans shall not
exceed 20%;




     (8) the sum of the Outstanding Asset Balances of all Eligible Assets
that are Senior B-Note Loans shall not exceed 20%;



41









 






     (9) the sum of the Outstanding Asset Balances of all Eligible Assets
that are Acquired Loans shall not exceed 25%;




     (10) the sum of the Outstanding Asset Balances of all Eligible
Assets which have been included as part of the Collateral for eighteen
(18) months or more shall not exceed 20%;




     (11) the sum of the Outstanding Asset Balances of all Eligible
Assets where all or any portion of the Related Property is located
outside of the United States and its territories and protectorates shall
not exceed 10%;




     (12) the sum of the Outstanding Asset Balances of all Eligible
Assets where all or any portion of the Related Property is located in a
single country outside of the United States and its territories and
protectorates, shall not exceed, in the case of Canada or the United
Kingdom, 10% in the aggregate;




     (13) the sum of the Outstanding Asset Balances of all Eligible
Assets that are Leases shall not exceed the lesser of (a) 15% and (b)
$100,000,000;




     (14) the sum of the Outstanding Asset Balances of all Eligible
Assets that are Leases involving Equipment supplied or purchased from any
single vendor including Affiliates thereof shall not exceed 4%;




     (15) the number of SPE Obligors shall not exceed one;




     (16) the sum of the Outstanding Asset Balances of all Eligible
Assets the Obligors of which is an SPE Obligor shall not exceed
$20,000,000, provided, however that if 10% or more of the
underlying assets of such SPE Obligors have been pledged to or owned by
the SPE Obligor for six months or more, then the sum of the Outstanding
Asset Balances of all Eligible Assets the Obligors of which are SPE
Obligors shall not exceed 0%;




     (17) the sum of the Outstanding Asset Balances of all Loans which
provide for payments of interest on a semi-annual basis shall not exceed
the lesser of (a) 5% and (b) $20,000,000;




     (18) the sum of the Outstanding Asset Balances of all MPAs that are
not Senior Secured MPAs shall not exceed 0%;




     (19) the sum of the Outstanding Asset Balances of all Security
System Loans shall not exceed 10%; and




     (20) the sum of the Outstanding Asset Balances of all Eligible
Assets that are Third Party Leases shall not exceed $10,000,000.


“Pool Rate”: As of any Determination Date, the annualized percentage
equivalent of a fraction, (a) the numerator of which is equal to all Interest
Collections on Assets included in the Aggregate Outstanding Asset Balance as of
the first (1st) day of the Collection Period related to


42









 






such Determination Date
that are deposited into the Collection Account during such Collection Period,
and (b) the denominator of which is equal to the Aggregate Outstanding Asset
Balance as of the first (1st) day of such Collection Period.



“Pool Weighted Average Life”: At any point in time, the number obtained
by (i) for each Asset included in the Borrowing Base as of such point in time,
multiplying each Scheduled Payment or Lease Payment, as applicable, by the
number of months from such point in time until such Scheduled Payment or Lease
Payment is due; (ii) summing all of the products calculated pursuant to
clause (i); (iii) dividing the sum calculated pursuant to clause
(ii) by the sum of all successive Scheduled Payments or Lease Payments, as
applicable, due on all
Assets included in the Borrowing Base as of such point in time; and (iv)
dividing the amount calculated pursuant to clause (iii) by 12.



“Pool Yield”: On any day, the excess, if any, of (a) the Pool Rate on
such day over (b) the sum of (i) the Interest Rate, (ii) the Program Fee
Rate, (iii) the Servicing Fee Rate and (iv) the amount determined by
multiplying the Revolving Servicing Fee Rate by a fraction, the numerator of
which is the Outstanding Asset Balance of all Revolving Loans and the
denominator of which is the Aggregate Outstanding Asset Balance, in each case
as of such day.



“Pooled Debtor”: With respect to any Loan to an SPE Obligor, any Person
or Persons obligated to make payments to such SPE Obligor with respect to the
loans made by and/or owned by such SPE Obligor.



“Portfolio Aggregate Outstanding Asset Balance”: With respect to all
Portfolio Assets, on any day, the sum of the Portfolio Outstanding Asset
Balances of such Portfolio Assets on such date. Notwithstanding anything to
the contrary contained herein, for purposes of determining the Portfolio
Aggregate Outstanding Asset Balance, if any portion of a Portfolio Asset is
deemed to be “charged-off” in accordance with the provisions of the definition
of Charged-Off Portfolio Asset, then the entire Portfolio Asset shall have a
zero (0) Outstanding Asset Balance, except for purposes of calculating the
Average Portfolio Charged-Off Ratio.



“Portfolio Asset”: Any asset owned or serviced by the Originator
(including each Asset). For the avoidance of doubt, the term Portfolio Asset
shall not include any asset owned and/or serviced solely by one or more
Affiliates of the Originator (but not by the Originator); provided,
that (i) such asset shall not have been originated or acquired by the
Originator and (ii) such asset shall not be included in the consolidated
financial statements of the Originator.



“Portfolio Charged-Off Ratio”: As of any Determination Date, the
product of (i) twelve (12) and (ii) the percentage equivalent of a fraction,
(a) the numerator of which is equal to the sum of the Portfolio Outstanding
Asset Balances of all Portfolio Assets (excluding equity and preferred stock
investments) that became Charged-Off Portfolio Asset (net of Recoveries during
such Collection Period) during the Collection Period related to such
Determination Date and (b) the denominator of which is equal to the Portfolio
Aggregate Outstanding Asset Balance (excluding equity and preferred stock
investments) as of the first (1st) day of the Collection Period related to such
Determination Date.




43









 







“Portfolio Delinquency Ratio”: As of any Determination Date, the
percentage equivalent of a fraction, (i) the numerator of which is equal to the
sum of the Portfolio Outstanding Asset Balances of all Delinquent Portfolio
Assets on such date and (ii) the denominator of which is equal to the Portfolio
Aggregate Outstanding Asset Balance on such date.



“Portfolio Outstanding Asset Balance”: With respect to any Portfolio
Asset, the sum of (i) the portion of all future Scheduled Payments or Lease
Payments becoming due under or with
respect to such Portfolio Asset plus (ii) any past due Scheduled
Payments or Lease Payments with respect to such Portfolio Asset.



“Prepaid Asset”: Any Asset (other than a Charged-Off Asset) that was
terminated or has been prepaid in full or in part prior to its scheduled
expiration date.



“Prepayment Amount”: Defined in Section 6.4(b).



“Prepayments”: Any and all (i) partial or full prepayments on or with
respect to an Asset (including, with respect to any Asset and any Collection
Period, any Scheduled Payment, Lease Payment, Finance Charge or portion thereof
that is due in a subsequent Collection Period that the Servicer has received,
and pursuant to the terms of Section 6.4(b) expressly permitted the
related Obligor to make, in advance of its scheduled due date, and that will be
applied to such Scheduled Payment or Lease Payment, as applicable, on such due
date), (ii) Recoveries, and (iii) Insurance Proceeds.



“Prime Rate”: (a) The rate announced by Wachovia from time to time as
its prime rate in the United States, such rate to change as and when such
designated rate changes, or (b) with respect to any Additional Purchaser, as
otherwise specified by or on behalf of such Additional Purchaser in the
applicable Additional Purchaser Agreement. The Prime Rate is not intended to
be the lowest rate of interest charged by Wachovia or any other specified
financial institution in connection with extensions of credit to debtors.



“Principal Collections”: Any and all amounts received in respect of any
principal due and payable under the Loans and any amounts received and
characterized as Lease Principal under the Leases, from or on behalf of
Obligors that are deposited into the Principal Collections Account, or received
by or on behalf of the Seller by the Servicer or Originator in respect of
Assets, in the form of cash, checks, wire transfers, electronic transfers or
any other form of cash payment.



“Principal Collections Account”: Defined in Section 6.4(f).



“PrivateSource”: means PrivateSource Mortgage LLC, a Delaware limited
liability company.



“Proceeds”: With respect to any Collateral, whatever is receivable or
received when such Collateral is sold, liquidated, foreclosed, exchanged, or
otherwise disposed of, whether such disposition is voluntary or involuntary,
and includes all rights to payment with respect to any insurance relating to
such Collateral.




44









 







“Program Fee”: (a) With respect to VFCC, as defined in the VFCC Fee
Letter and (b) with respect to any Additional Purchaser, as specified in the
applicable Additional Purchaser Fee Letter.



“Program Fee Rate”: (a) With respect to VFCC, the rate set forth in the
VFCC Fee Letter and (b) with respect to any Additional Purchaser, the rate set
forth in the applicable Additional Agent Fee Letter as the “Program Fee Rate.”



“Pro-Rata Share”: (i) the percentage obtained by dividing each Conduit
Purchaser’s, as applicable, Commitment (as determined under subsection
(i)(a) of the definition of Commitment) by the aggregate Commitments of all
the Conduit Purchasers (as determined under subsection (i)(a) of the
definition of Commitment).



“Purchaser”: (i) VFCC, (ii) any Additional Purchaser, (iii) the
Swingline Purchaser, as the context requires, and “Purchasers” means
collectively (a) VFCC, (b) the Additional Purchasers and (c) the Swingline
Purchaser.



“Purchaser Agent”: The VFCC Agent or any Additional Agent, as the
context requires, and “Purchaser Agents” means collectively the VFCC
Agent and the Additional Agents.



“Qualified Institution”: Defined in Section 6.4(f).



“Qualified Transferee”:




     (a) The Seller, each Purchaser Agent and any Affiliate thereof, or the
Administrative Agent or any Affiliate of the Administrative Agent; or



     (b) any other Person which:




     (i) has at least $50,000,000 in capital/statutory surplus or
shareholders’ equity (except with respect to a pension advisory firm or
similar fiduciary); and




     (ii) is regularly engaged in the business of making or owning
commercial real estate loans or operating commercial real estate
properties; and




     (iii) is one of the following:




     (A) an insurance company, bank, savings and loan association,
investment bank, trust company, commercial credit corporation,
pension plan, pension fund, pension fund advisory firm, mutual
fund, real estate investment trust, governmental entity or plan, or




     (B) an investment company, money management firm or a
“qualified institutional buyer” within the meaning of Rule 144A
under the Securities Act of 1933, as amended, or an “institutional
accredited investor” within the meaning of Regulation D under the
Securities Act of 1933, as amended; or



45









 






     (C) the trustee, collateral agent or administrative agent in
connection with (x) a securitization of the subject Asset through
the creation of collateralized debt or loan obligations or (y) an
asset-backed commercial paper transaction funded by a commercial
paper conduit whose commercial paper notes are rated at least “A-1”
by S&P or at least “P-1” by Moody’s, or (z) a repurchase
transaction funded by an entity which would otherwise be a
Qualified Transferee so long as the “equity interest” (other than
any nominal or de minimis equity interest) in the special purpose
entity that issues notes or certificates in connection with any
such collateralized debt or loan obligation, asset-backed
commercial paper funded transaction or repurchase transaction is
owned by one or more entities that are Qualified Transferees under
subclauses (A) or (B) above; or




     (D) any entity Controlled (as defined below) by any of the
entities described in subclauses (i), (ii) or (iii) above.


For purposes of this definition only, “Control” means the ownership, directly
or indirectly, in the aggregate of more than fifty percent (50%) of the
beneficial ownership interests of an entity and the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of an entity, whether through the ability to exercise voting power, by
contract or otherwise, and “Controlled” has the meaning correlative thereto.



“Quarterly Determination Date”: March 31, June 30, September 30 and
December 31 of each calendar year.



“RMR”: With respect to any Security System Loan, an amount equal to the
total recurring amount billed to customers each month under the Alarm Service
Agreements securing such Security System Loan.



“Rating Agency”: Each of S&P, Moody’s and any other rating agency that
has been requested to issue a rating with respect to a Permitted Securitization
Transaction.



“Records”: All documents relating to the Assets, including books,
records and other information (including without limitation, computer programs,
tapes, disks, punch cards, data processing software and related property and
rights) executed in connection with the origination or acquisition of the
Collateral or maintained with respect to the Collateral and the related
Obligors that the Seller, the Originator or the Servicer have generated, in
which the Seller, the Originator or the Servicer have acquired an interest
pursuant to the Sale Agreement or in which the Seller, the Originator or the
Servicer have otherwise obtained an interest.



“Recoveries”: As of the time any Related Property or any other related
property is sold, discarded (after a determination by the Servicer that such
Related Property or any other related property has little or no remaining
value) or otherwise determined to be fully liquidated by the Servicer in
accordance with the Credit and Collection Policy (or such similar policies and
procedures utilized by the Servicer in servicing the Portfolio Assets) with
respect to any Charged-Off Asset or Charged-Off Portfolio Asset, the proceeds
from the sale of the Related Property or any other related property, the
proceeds of any related Insurance Policy, any other recoveries with respect to
such Charged-Off Asset or Charged-Off Portfolio Asset, the Related


46









 






Property,
any other related property, and amounts representing late fees and penalties,
net of Liquidation Expenses and amounts, if any, received that are required
under such Asset or Portfolio Asset, as applicable, to be refunded to the
related Obligor.



“Regulation U”: Regulation U of the Board of Governors of the Federal
Reserve System, 12 C.F.R. §221, or any successor regulation.



“Related Property”: With respect to an Asset, any property or other
assets pledged as collateral to the Originator to secure repayment of such
Asset, including all Proceeds from any sale or other disposition of such
property or other assets.



“Related Security”: All of the Seller’s right, title and interest in
and to:




     (a) any Related Property securing an Asset and all Recoveries related
thereto;



     (b) all Required Asset Documents, Asset Files related to any Asset,
Records, and the documents, agreements, and instruments included in the Asset
File or Records, including without limitation, rights of recovery of the Seller
against the Originator;



     (c) all Insurance Policies with respect to any Asset;



     (d) all security interests, liens, guaranties, warranties, letters of
credit, accounts, bank accounts, mortgages or other encumbrances and property
subject thereto from time to time purporting to secure or support payment of
any Asset, together with all UCC financing statements or similar filings signed
by an Obligor relating thereto;



     (e) the Collection Account, the Excess Spread Account, each Lock Box and
all Lock Box Accounts, together with all cash and investments in each of the
foregoing other than amounts earned on investments therein;



     (f) any Hedging Agreement and any payment from time to time due
thereunder;



     (g) the Sale Agreement and the assignment to the Administrative Agent of
all UCC financing statements filed by the Seller against the Originator under
or in connection with the Sale Agreement; and



     (h) the proceeds of each of the foregoing.


“Replaced Asset”: Defined in Section 2.18(a).



“Reporting Date”: The date that is three Business Days prior to each
Payment Date.



“Required Advance Reduction Amount”: On any day, an amount equal to the
positive difference, if any, of (a) Advances Outstanding on such day
minus (b) the Maximum Availability on such day.



“Required Asset Documents”:




47









 








     (a) With respect to (i) any Noteless Loan identified as a Noteless Loan on
the Asset Checklist, a copy of the related Loan Register (together with a
certificate of a Responsible Officer of the Servicer certifying to the accuracy
of such Loan Register as of the date such Loan is included as a part of the
Collateral), (ii) all Loans other than Noteless Loans or Security System Loans,
the duly executed original of the promissory note and an assignment (which may
be by endorsement or allonge) of each such promissory note to the Seller and
then the Administrative Agent, signed by an officer of the Originator and the
Seller, respectively, (iii) any
Loan, any related loan agreement (or, with respect to an MPA, the master
purchase agreement and purchase statements) and the Asset Checklist together
with, to the extent set forth on the Asset Checklist, duly executed (if
applicable) originals or copies of each of any related participation agreement,
acquisition agreement, subordination agreement, intercreditor agreement,
security agreements or similar instruments, UCC financing statements,
guarantee, or Insurance Policy (iv) for each Loan secured by real property, an
Assignment of Mortgage and (v) for any Loan identified as an Assigned Loan on
the Asset Checklist, the duly executed original assignment agreement;
provided, that, with respect to any Assigned Loan or any MPAs,
any of the foregoing documents, other than any related promissory notes in the
case of Assigned Loans only, may be copies.



     (b) With respect to any Lease, the fully executed original counterpart
(for UCC purposes) of the Lease Contract, any applicable guaranty (if set forth
on the Asset Checklist), an appropriate form of acknowledgment evidencing
delivery and acceptance of the Equipment related to such Lease executed by the
Obligor or evidencing verbal confirmation of delivery and acceptance of the
Equipment related to such Lease by the Obligor, and with respect to the related
Equipment, documents relating to any Related Security, UCC financing statements
and continuation statements (including amendments, modifications and
assignments thereof), documents evidencing or related to any Insurance Policy,
as appropriate, copies of any documentation relating to the purchase of the
related Equipment (if set forth on the Asset Checklist) and otherwise such
documents, if any, that the Collateral Custodian holds, evidencing ownership of
such related Equipment (if applicable) and all other documents originally
delivered to the Seller or held by the Collateral Custodian with respect to any
Lease.


“Required Equity Contribution”: On any day after the occurrence of a
Termination Event or the Termination Date and prior to the Collection Date when
Originator shall have received a Required Equity Contribution Notice, an equity
contribution equal to the lesser of (i) the amount specified by the
Administrative Agent in the applicable Required Equity Contribution Notice and
(ii) the excess, if any, of (a) the sum of the Outstanding Asset Balances of
all Eligible Assets attributable to the three Obligors having the largest
aggregate Outstanding Asset Balances of Eligible Assets included as part of the
Collateral on such date over (b) the product of 1.5 and the sum of the
Outstanding Asset Balances of all Eligible Assets attributable to the Obligor
having the largest aggregate Outstanding Asset Balance of Eligible Assets
included as part of the Collateral on such date; provided,
however, in no event shall such amount exceed (x) $11,250,000 at any
time when the Maximum Availability hereunder shall be determined pursuant to
clause (A) of the definition thereof, (y) $22,500,000 at any time on or
after the date on which the Maximum Availability hereunder shall first be
determined pursuant to clause (B) of the definition thereof, and (z)
$45,000,000 at any time on or after the date on which the Maximum Availability
hereunder shall first be determined pursuant to clause (C) of the
definition thereof.




48









 







“Required Equity Contribution Notice”: A written demand by the
Administrative Agent to the Originator specifying an amount equal to any
payment obligation of the Seller then due and owing under this Agreement or any
other Transaction Document, whether arising in respect of the Seller’s
obligation to make payment of Advances Outstanding, Interest, indemnification,
fees, expenses or otherwise.



“Required Equity Shortfall”: On any day, the excess, if any, of the
Required Equity Contribution over the Equity Contribution on such
day.



“Required Reports”: Collectively, the Monthly Report, the Servicer’s
Certificate required pursuant to Section 6.10(c), the financial
statements of the Servicer required pursuant to Section 6.10(d), the
annual statements as to compliance required pursuant to Section 6.11,
and the annual independent public accountant’s report required pursuant to
Section 6.12.



“Responsible Officer”: With respect to any Person, any duly authorized
officer of such Person with direct responsibility for the administration of
this Agreement and also, with respect to a particular matter, any other duly
authorized officer to whom such matter is referred because of such officer’s
knowledge of and familiarity with the particular subject.



“Restricted Junior Payment”: (i) any dividend or other distribution,
direct or indirect, on account of any class of membership interests of the
Seller now or hereafter outstanding, except a dividend payment solely in
interests of that class of membership interests or in any junior class of
membership interests of the Seller; (ii) any redemption, retirement, sinking
fund or similar payment, purchase or other acquisition for value, direct or
indirect, of any class of membership interest of the Seller now or hereafter
outstanding, (iii) any payment made to redeem, purchase, repurchase or retire,
or to obtain the surrender of, any outstanding warrants, options or other
rights to acquire membership interests of Seller now or hereafter outstanding,
and (iv) any payment of management fees by the Seller (except for reasonable
management fees to the Originator or its Affiliates in reimbursement of actual
management services performed).



“Retained Interest”: (A) With respect to any Revolving Loan or any Loan
with an unfunded commitment on the part of the Originator that does not provide
by its terms that funding thereunder is in Originator’s sole and absolute
discretion and that is transferred by the Originator to the Seller and/or by
the Seller to the Purchasers, all of the obligations, if any, to provide
additional funding with respect to such Revolving Loan, and (B) with respect to
any Assigned Loan, any Participation Loan or any Agented Note that is
transferred by the Originator to the Seller and/or by the Seller to the
Purchasers, (i) all of the obligations, if any, of the agent(s) under the
documentation evidencing such Assigned Loan, Participation Loan, or Agented
Note and (ii) the applicable portion of the interests, rights and obligations
under the documentation evidencing such Assigned Loan, Participation Loan, or
Agented Note that relate to such portion(s) of the indebtedness that is owned
by another lender or is being retained by the Originator pursuant to clause
(A) of this definition.



“Revolving Loan”: A Loan that is a line of credit or contains an
unfunded commitment arising from an extension of credit by the Originator to an
Obligor, pursuant to the terms of which amounts borrowed may be repaid and
subsequently reborrowed; provided, however, any such Loan shall
exclude any Retained Interest.




49









 







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



“Revolving Servicing Fee”: Defined in Section 2.14(c).



“Revolving Servicing Fee Rate”: 0.25% per annum.



“S&P”: Standard & Poor’s, a division of The McGraw Hill Companies,
Inc., and any successor thereto.



“Safe Home”: Collectively, the Dealers Safe Home Security, Inc., a
Connecticut corporation, National Protective Services, Inc., a New York
corporation, Security Systems, Inc., a Connecticut corporation, and Safe Home
Monitoring, Inc., a Connecticut corporation.



“Sale Agreement”: The Sale and Contribution Agreement, dated as of the
date hereof, between the Originator and the Seller, as amended, modified,
waived, supplemented, restated or replaced from time to time.



“Scheduled Payments”: With respect to any Loan, each monthly,
quarterly, or annual payment of principal required to be made by the Obligor
thereof under the terms of such Loan; in all cases, excluding any payment in
the nature of, or constituting, interest.



“Secured Party”: (i) each Purchaser, (ii) the Administrative Agent and
each Purchaser Agent, and (iii) each Hedge Counterparty that is either a
Purchaser or an Affiliate of the VFCC Agent if that Affiliate is a Hedge
Counterparty that executes a counterpart of this Agreement agreeing to be bound
by the terms of this Agreement applicable to a Secured Party.



“Security System Loan”: A Loan with respect to which the related
Obligor is in the business classified under 2002 NAICS Code 56162 (Security
Systems Services) and which is secured by Alarm Service Agreements. The
purpose of such a Loan is to provide financing to a Dealer.



“Security System Loan Advance Multiple”: With respect to any Security
System Loan, the amount funded under such Security System Loan divided by the
related RMR.



“Security System Loan Average Contract Term”: With respect to any
Security System Loan, the weighted average of the non-cancellable terms
measured in months of the Alarm Service Agreements securing such Security
System Loan.



“Seller”: Defined in the Preamble of this Agreement.



“Senior B-Note Loan”: Any Term Loan that (i) is secured by a first
priority Lien on all of the Obligor’s assets constituting Related Property for
the Loan, (ii)(a) has a “first dollar” at risk not to exceed 60% of the
Loan-to-Value and a “last dollar” at risk not to exceed 70% of the
Loan-to-Value where the Loan is not a Material Mortgage Loan or the Related
Property is not primarily real estate, and (b) has a “last dollar” at risk not
to exceed 85% of the Loan-to-Value where the Loan is a Material Mortgage Loan
or the Related Property is primarily real estate, (iii) contains terms which,
upon the occurrence of an event of default under the Loan Documents or in the
case of any liquidation or foreclosure on the Related Property, provide that
the principal of the


50









 






Seller’s portion of such Loan would be paid only after the
other lenders party to such Loan (including any lender party making any Senior
Secured Term Loan or Stretch Senior Secured Loan whose right to payment is
contractually senior to the Seller) is paid in full, and (iv) is substantially
in the form of the “Senior B-Note Loan” attached hereto as Schedule VII or such
other form as shall be adopted by the Originator and approved in writing by the
Administrative Agent at least five days prior to such Loan becoming part of the
Collateral hereunder.



“Senior Secured ABL Loan”: Any Revolving Loan that (i) is secured by a
first priority Lien on all of the Obligor’s assets constituting Related
Property for the Loan, (ii) provides the related Obligor with the option to
receive additional borrowings thereunder based on the value of its eligible
accounts receivable, inventory or equipment, (iii) has a Loan-to-Liquidation
Value of less than or equal to (a) 85% with respect to the Related Property
which constitutes accounts receivable, (b) 50% with respect to the Related
Property which constitutes inventory, and (c) 80% with respect to the Related
Property which constitutes Equipment, (iii) provides that the payment
obligation of the Obligor on such Loan is either senior to, or pari passu with,
all other loans or financings to such Obligor, and (iv) is substantially in the
form of the “Senior Secured ABL Loan” previously delivered by the Originator to
the Administrative Agent in connection with the CapitalSource Funding I
Transaction or such other form as shall be adopted by the Originator and
approved in writing by the Administrative Agent at least five days prior to
such Loan becoming part of the Collateral hereunder; provided,
however, any such Loan shall exclude any Retained Interest.



“Senior Secured MPA”: An MPA secured by a first priority Lien on the
Obligor’s related property securing such MPA and which MPA (other than any MPA
purchased from the SLP Originator on the SLP Closing Date) has a Loan-to-Value
Ratio of less than 72.5%.



“Senior Secured Term Loan”: Any Term Loan that (i) is secured by a
first priority Lien on all of the Obligor’s assets constituting Related
Property for the Loan, (ii) has a Loan-to-Value of less than (a) 60% where the
Loan is not a Material Mortgage Loan or the Related Property is not primarily
real estate, and (b) 75% where the Loan is a Material Mortgage Loan or the
Related Property is primarily real estate, (iii) provides that the payment
obligation of the Obligor on such Loan is either senior to, or pari passu with,
all other loans or financings to such Obligor, and (iv) is substantially in the
form of the “Senior Secured Term Loan” previously delivered by the Originator
to the Administrative Agent in connection with the CapitalSource Funding I
Transaction or such other form as shall be adopted by the Originator and
approved in writing by the Administrative Agent at least five days prior to
such Loan becoming part of the Collateral hereunder.



“Senior Subordinated Loan”: Any Term Loan that (i) may be secured by a
combination of senior and/or junior Liens on substantially all of the Obligor’s
assets constituting Related Property for the Loan, (ii) has a Loan-to-Value of
less than (a) 75% where the Loan is not a Material Mortgage Loan or the Related
Property is not primarily real estate, and (b) 90% where the Loan is a Material
Mortgage Loan or the Related Property is primarily real estate, (iii) contains
terms which, upon the occurrence of certain events of default under the senior
loan documents between another lender and the Obligor or in the case of any
liquidation or foreclosure on any Related Property, provide that the Seller’s
portion of such Loan would be paid only after the other lender party to such
related senior loan documents (including any lender party making any Senior


51









 






Secured ABL Loan, Senior Secured Term Loan, Stretch Senior Secured Loan or
Senior B-Note Loan whose right to payment is contractually senior to the
Seller) is paid in full, and (iv) is substantially in the form of the “Senior
Subordinated Loan” previously delivered by the Originator to the Administrative
Agent in connection with the CapitalSource
Funding I Transaction or such other form as shall be adopted by the Originator
and approved in writing by the Administrative Agent at least five days prior to
such Loan becoming part of the Collateral hereunder.



“Servicer”: CapitalSource Finance, and each successor (in the same
capacity) appointed as Successor Servicer pursuant to Section 6.16(a).



“Servicer Advance”: An advance of Scheduled Payments or Lease Payments,
as applicable, made by the Servicer pursuant to Section 6.5.



“Servicer Default”: Defined in Section 6.15.



“Servicer Termination Notice”: Defined in Section 6.15.



“Servicer’s Certificate”: Defined in Section 6.10(c).



“Servicing Fee”: Defined in Section 2.14(b).



“Servicing Fee Rate”: 1.0% per annum.



“SLP Acquisition Agreement”: That certain asset purchase agreement,
dated as of April 8, 2004, by and between the Originator, CSE Finance, Inc.,
SLP Capital of Canada Co. and the SLP Financing Originator, a copy of which is
attached hereto as Schedule IX.



“SLP Closing Date”: April 8, 2004.



“SLP Financing Originator”: Security Leasing Partners, LP, a Delaware
limited partnership.



“Solvent”: As to any Person at any time, having a state of affairs such
that all of the following conditions are met: (a) the fair value of the
property of such Person is greater than the amount of such Person’s liabilities
(including disputed, contingent and unliquidated liabilities) as such value is
established and liabilities evaluated for purposes of Section 101(32) of
the Bankruptcy Code; (b) the present fair salable value of the property of such
Person in an orderly liquidation of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts
as they become absolute and matured; (c) such Person is able to realize upon
its property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal course of
business; (d) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person’s ability to pay as such
debts and liabilities mature; and (e) such Person is not engaged in a business
or a transaction, and is not about to engage in a business or a transaction,
for which such Person’s property would constitute unreasonably small capital.




52









 







“SPE Obligor”: With respect to any Loan acquired from PrivateSource, an
Obligor that (a) is organized as a special purpose entity and is not an
operating entity and (b) has as its primary assets loans to, and a security
interest in the assets of, Pooled Debtors.



“Stretch Senior Secured Loan”: Any Term Loan other than a Senior
Secured Term Loan that (i) is secured by a first priority Lien on all of the
Obligor’s assets constituting Related Property for the Loan, (ii) has a
Loan-to-Value of less than (a) 70% where the Loan is not a Material Mortgage
Loan or the Related Property is not primarily real estate, and (b) 80% where
the Loan is a Material Mortgage Loan or the Related Property is primarily real
estate, (iii) provides that the payment obligation of the Obligor on such Loan
is either senior to, or pari passu with, all other loans or financings to such
Obligor, and (iv) is substantially in the form of the “Stretch Senior Secured
Loan” attached hereto as Schedule VIII or such other form as shall be adopted
by the Originator and approved in writing by the Administrative Agent at least
five days prior to such Loan becoming part of the Collateral hereunder.



“Subsidiary”: As to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly, through one or more
intermediaries, or both, by such Person.



“Substitute Asset”: On any day, an Eligible Asset that meets each of
the conditions for substitution set forth in Section 2.18.



“Successor Servicer”: Defined in Section 6.16(a).



“Swingline Advance”: Defined in Section 2.1(c).



“Swingline Funding Request”: A Borrowing Notice requesting a Swingline
Advance and including the items required by Section 2.2.



“Swingline Purchaser”: Wachovia, in its capacity as Swingline Purchaser
hereunder.



“Tape”: Defined in Section 7.2(b)(ii).



“Taxes”: Any present or future taxes, levies, imposts, duties, charges,
assessments or fees of any nature (including interest, penalties, and additions
thereto) that are imposed by any Governmental Authority.



“Termination Date”: The earliest of (a) the date of the termination of
the Facility Amount pursuant to Section 2.4, (b) the Business Day
designated by the Seller to the Administrative Agent and each Purchaser Agent
as the Termination Date at any time following two Business Days’ prior written
notice thereof to the Administrative Agent and each Purchaser Agent, (c) April
17, 2007, (d) the date any Liquidity Agreement shall cease to be in full force
and effect, (d) the date of the declaration of the Termination Date pursuant to
Section 10.2(a) or the date of the automatic occurrence of the
Termination Date pursuant to Section 10.2(b), and (e) the second
Business Day prior to the Facility Termination Date.




53









 







“Termination Event”: Defined in Section 10.1.



“Term Loan”: A Loan that is a term loan that has been fully funded and
does not contain any unfunded commitment on the part of the Originator arising
from an extension of credit by the Originator to an Obligor.



“Third Party Lease”: A Lease acquired by the Seller from the Originator
under the Sale Agreement that (i) was not underwritten and originated by the
Originator but instead was purchased by the Originator from a third party in an
arm’s length and true sale transaction not involving credit recourse or a
guaranty against the third party with respect to such contract, (ii) was
re-underwritten by the Originator prior to its inclusion in the Collateral, and
(iii) satisfies all of the applicable requirements set forth in the Credit and
Collection Policy.



“Transaction”: Defined in Section 3.2.



“Transaction Documents”: The Agreement, the Sale Agreement, each
Hedging Agreement, the Hedge Guaranty, the Lock-Box Agreement, the
Intercreditor Agreement, each Variable Funding Certificate, the VFCC Fee
Letter, any Additional Agent Fee Letters, any Additional Purchaser Agreements,
the Backup Servicer Fee Letter, the Collateral Custodian Fee Letter, any UCC
financing statements filed pursuant to the terms of this Agreement, and any
additional document the execution of which is necessary or incidental to
carrying out the terms of the foregoing documents.



“Transferee Letter”: Defined in Section 13.16(a).



“Transition Expenses”: The reasonable costs (including reasonable
attorneys’ fees) of the Backup Servicer incurred in connection with the
transferring the servicing obligations under this Agreement and amending this
Agreement to reflect such transfer in an amount not to exceed $100,000.



“UCC”: The Uniform Commercial Code as from time to time in effect in
the applicable jurisdiction or jurisdictions.



“Uncollected Billings”: means, at any time with respect to any Lease,
any billed Lease Payments under the related Lease Contract which remain unpaid
and outstanding at such time.



“United States”: The United States of America.



“Unmatured Termination Event”: Any event that, with the giving of
notice or the lapse of time, or both, would become a Termination Event.



“US Bank Collection Account”: Account number 4346848296 maintained by
the Originator at US Bank National Association.



“Variable Funding Certificate”: Defined in Section 2.1.



“VFCC”: Defined in the Preamble of this Agreement.




54









 







“VFCC Agent”: WCM or any other entity that has been appointed as the
administrator for VFCC.



“VFCC Agent’s Account”: A special account (account number
2000002391825) in the name of the VFCC Agent maintained at Wachovia.



“VFCC Breakage Costs”: Any amount or amounts as shall compensate VFCC
for any loss, cost or expense incurred by VFCC (as determined by the VFCC Agent
on behalf of VFCC, in the VFCC Agent’s sole discretion) as a result of (i) a
prepayment by the Seller of Advances Outstanding or Interest or (ii) any
difference between the VFCC CP Rate and the Adjusted Eurodollar Rate. All VFCC
Breakage Costs shall be due and payable hereunder upon demand.



“VFCC CP Rate”: For any day during any Accrual Period, the per annum
rate equivalent to the weighted average of the per annum rates paid or payable
by VFCC from time to time as interest on or otherwise (by means of interest
rate hedges or otherwise taking into consideration any incremental carrying
costs associated with short-term promissory notes issued by VFCC maturing on
dates other than those certain dates on which VFCC is to receive funds) in
respect of the promissory notes issued by VFCC that are allocated, in whole or
in part, by the VFCC Agent (on behalf of VFCC) to fund or maintain the Advances
Outstanding funded by VFCC during such period, as determined by the VFCC Agent
(on behalf of VFCC) and reported to the Seller and the Servicer, which rates
shall reflect and give effect to (i) the commissions of placement agents and
dealers in respect of such promissory notes, to the extent such commissions are
allocated, in whole or in part, to such promissory notes by the VFCC Agent (on
behalf of VFCC) and (ii) other borrowings by VFCC, including, without
limitation, borrowings to fund small or odd dollar amounts that are not easily
accommodated in the commercial paper market; provided, however,
that if any component of such rate is a discount rate, in calculating the VFCC
CP Rate, the VFCC Agent shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum.



“VFCC Fee Letter”: The VFCC Fee Letter Agreement, dated as of the date
hereof, by and among the Seller, the Servicer, the Administrative Agent, and
the VFCC Agent, as amended, modified, waived, supplemented, restated or
replaced from time to time.



“Wachovia”: Wachovia Bank, National Association, a national banking
association in its individual capacity, and its successors and assigns.



“Warranty Asset”: Any Asset that fails to satisfy any criteria of the
definition of Eligible Asset; provided, however, that
notwithstanding the foregoing, for purposes of determining what is a Warranty
Asset, the criteria set forth in clauses (1)(c), (1)(d),
1(m)(i), 1(t) (but solely to the extent the criteria in such
clause 1(t) relates to any express representation and warranty that an
Asset is an Eligible Asset), 1(w), 1(x), (1)(y) and
clauses (2)(c) and 2(d) (but solely to the extent that the
criteria in such clauses 2(c) and 2(d) would not be satisfied as
a result of the operation of law or an effective court order in connection with
an Insolvency Event) of the definition of Eligible Asset and clauses
(vi), (viii) and (ix) in the definition of Eligible Obligor
shall apply only as of the applicable Cut-Off Date of such Asset.




55









 







“Warranty Event”: As to any Asset, the discovery that as of the related
Cut-Off Date or Funding Date there had existed a breach of any representation
or warranty relating to such Asset
and the continuance of such breach through any applicable determination date or
beyond any applicable cure period.



“Watchlist Asset”: Any Asset (that is not a Charged-Off Asset or
Delinquent Asset) as to which the Servicer has discovered circumstances which
lead the Servicer to reasonably expect loss or non-payment by the Obligor
thereof.



“Weighted Average Advance Rate”: For any Advances Outstanding on any
day, the weighted average of the Advance Rates applicable to the Eligible
Assets backing such Advances or Swingline Advance on such day, weighted
according to the proportion of the Aggregate Outstanding Asset Balance each
type of Asset represents.




     Section 1.2 Other Terms.



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



     Section 1.3 Computation of Time Periods.



     Unless otherwise stated in this Agreement, in the computation of a period
of time from a specified date to a later specified date, 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 contrary intention appears:




     (i) the singular number includes the plural number and vice versa;




     (ii) reference to any Person includes such Person’s successors and
assigns but, if applicable, only if such successors and assigns are
permitted by the Transaction Documents;




     (iii) reference to any gender includes each other gender;




     (iv) reference to day or days without further qualification means
calendar days;




     (v) reference to any time means Charlotte, North Carolina time;




     (vi) reference to any agreement (including any Transaction
Document), document or instrument means such agreement, document or
instrument as amended, modified, waived, supplemented, restated or
replaced and in effect from time to time in accordance with the terms
thereof and, if applicable, the terms of the other Transaction



56









 






Documents,
and reference to any promissory note includes any promissory note that is
an extension or renewal thereof or a substitute or replacement therefor;
and




     (vii) reference to 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 any Section or other provision of
any Applicable Law means that provision of such Applicable Law from time
to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such Section or
other provision.



ARTICLE II




PURCHASE OF THE VARIABLE FUNDING CERTIFICATES




     Section 2.1 The Variable Funding Certificates.



     (a) On the terms and conditions hereinafter set forth, Seller shall
deliver a duly executed variable funding certificate (each such certificate, a
“Variable Funding Certificate” or “VFC”), in substantially the
form of Exhibit B-1,  B-2 or B-3, as applicable, (i) on
the Closing Date, to the VFCC Agent and the Swingline Purchaser at their
respective addresses set forth on the signature pages of this Agreement, and
(ii) on each date on which an Additional Purchaser purchases a Variable Funding
Certificate, to the related Additional Agent at the address designated by such
Additional Agent. Each Variable Funding Certificate shall evidence an
undivided ownership interest (and the Seller does hereby sell, transfer, assign
and convey such undivided ownership interest to the Purchasers) in the
Collateral purchased by a Purchaser in an amount equal, at any time, to the
percentage equivalent of a fraction (i) the numerator of which is the Advances
outstanding under the applicable VFC on such day, and (ii) the denominator of
which is the total aggregate Advances Outstanding on such day. Interest shall
accrue, and each VFC shall be payable, as described herein. The VFC purchased
by (1) VFCC shall be in the name of “Wachovia Capital Markets, LLC, as the VFCC
Agent” and shall be in the face amount equal to $400,000,000 and otherwise duly
completed, (2) the Swingline Purchaser shall be in the name of Wachovia Bank,
National Association, as the Swingline Purchaser and be in a face amount equal
to $50,000,000, and (3) an Additional Purchaser shall be in the name of such
Additional Purchaser and shall be in a face amount to be determined;
provided, that, the aggregate amount outstanding under all VFCs
at any one time shall not exceed the Facility Amount.



     (b) On the terms and conditions hereinafter set forth, from the Closing
Date to, but excluding the Termination Date, the Seller may, at its option,
request the Conduit Purchasers to make advances of funds under the VFCs (each,
an “Advance”) and the Conduit Purchasers shall make such Advance in an
amount equal to their Pro-Rata Share of such requested Advance;
provided, that, in no event shall the Conduit Purchasers make any
Advance if, after giving effect to such Advance the aggregate Advances
Outstanding hereunder would exceed the lesser of (i) the Facility Amount or
(ii) the Maximum Availability. Notwithstanding anything contained in this
Section 2.1 or elsewhere in this Agreement to the contrary, no Conduit
Purchaser shall be obligated to provide its Purchaser Agent or the Seller with
aggregate funds in connection with an



57









 







Advance that would exceed such Conduit
Purchaser’s unused Commitment then in effect. Each Advance made by the Conduit
Purchasers
hereunder is subject to the interests of the Hedge Counterparties under
Section 2.9(a)(i) and Section 2.10(a)(i) of this Agreement.



     (c) On the terms and conditions hereinafter set forth, from the Closing
Date to, but excluding the Termination Date, the Seller may, at its option,
request the Swingline Purchaser to advance funds to the Seller on an expedited
basis, each such Swingline Funding Request to be on the terms and conditions
set forth herein and substantially in the form of Exhibit A-1-S hereto,
and the Swingline Purchaser shall advance to the Seller the amount requested
under a Swingline Funding Request (each, a “Swingline Advance”).
Notwithstanding anything to the contrary contained herein, the Swingline
Purchaser shall not be obligated to provide the Seller with aggregate funds in
connection with a Swingline Advance that would exceed the aggregate unused
Commitment then in effect. Each Swingline Advance made by the Swingline
Purchaser hereunder is subordinated to the interests of the Hedge
Counterparties under Section 2.9(a)(i) and Section 2.10(a)(i) of
this Agreement.



     (d) The Seller may, within sixty (60) days but not less than forty-five
(45) days prior to the expiration of any Liquidity Agreement in the case of an
extension of any Liquidity Agreement or the applicable Extension Request Date
in the case of an extension of the Facility Termination Date, by written notice
to each Purchaser Agent, make a request (i) for each applicable Liquidity Bank
to extend the term of such Liquidity Agreement for an additional period of 364
days and (ii) for each Purchaser Agent to extend the Facility Termination Date
for an additional period of 364 days. Each Purchaser Agent will give prompt
notice to the applicable Purchaser and each applicable Liquidity Bank of its
receipt of such request, and each Purchaser and each Liquidity Bank shall make
a determination, in their sole discretion, not less than fifteen (15) days
prior to the Facility Termination Date or the expiration of any Liquidity
Agreement (as applicable) as to whether or not it will agree to the extension
requested. The failure of a Purchaser Agent or a Liquidity Bank to provide
timely notice of its decision to the Seller shall be deemed to constitute a
refusal by such Purchaser or such Liquidity Bank (as applicable) to extend the
Facility Termination Date or the term of the Liquidity Agreement, respectively;
provided, further, that, in no event shall the Facility
Termination Date be extended beyond April 17, 2007 under the foregoing clause
(ii) of this Section 2.1(d). In the event that the term of any
Liquidity Agreement or any related participation is not extended for a period
of up to 364 days, the Termination Date shall be extended for a period of 90
days and notice of such termination shall be provided by each Purchaser Agent
to the Backup Servicer, the Collateral Custodian, the Seller and the Servicer.
Unless approved by each Purchaser Agent, only one such ninety (90) day
extension of the Termination Date, as described in this Section 2.1(d),
may occur. The Seller confirms that each Liquidity Bank and each Purchaser, in
their sole and absolute discretion, without regard to the value or performance
of the Collateral or any other factor, may elect not to extend any Liquidity
Agreement or Facility Termination Date (as applicable).



     Section 2.2 Procedures for Swingline Advances by the Swingline
Purchaser.



     (a) Subject to the limitations set forth in Section 2.1, the Seller
may request a Swingline Advance from the Swingline Purchaser by delivering to
the Administrative Agent and



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the Collateral Custodian, as applicable, at certain times the
information and documents set forth in this Section 2.2.



     (b) No later than 2:00 p.m. (Charlotte, North Carolina time) on the
Business Day of the proposed Funding Date the Seller (or the Servicer on its
behalf) shall deliver:




     (i) to the Administrative Agent and the Collateral Custodian written
notice of such proposed Funding Date;




     (ii) to the Administrative Agent a description of the Obligor and
the proposed Loan or Lease transaction that is the subject of the
proposed Swingline Advance;




     (iii) to the Administrative Agent and the Collateral Custodian a
duly completed Borrowing Base Certificate and Tape updated to such date;




     (iv) to the administrative agent a wire disbursement and
authorization form;




     (v) to the Administrative Agent a certification substantially in the
form of Exhibit M from outside counsel to the Originator or the
Obligor of such Assets concerning the Collateral Custodian’s receipt of
certain documentation relating to the funding of Eligible Asset(s)
related to such Swingline Advance; and




     (vi) to the Administrative Agent and the Collateral Custodian a duly
completed Swingline Funding Request, which shall (a) specify the
aggregate amount of the requested Swingline Advance, which shall be in an
amount equal to at least $1,000,000, (b) specify the date of the
requested Swingline Advance, (c) specify the amount of Advances
Outstanding, (d) include a representation that all conditions precedent
for a funding have been met, (e) include a calculation of the Borrowing
Base as of the date the Swingline Advance is requested, and (f) include
an updated Asset List including each Asset that is subject to the
requested Swingline Advance. Any Swingline Funding Request shall be
irrevocable. If any Swingline Funding Request is received by the
Administrative Agent after 2:00 p.m. (Charlotte, North Carolina time) on
the Business Day for which such Swingline Advance is requested or on a
day that is not a Business Day, such Swingline Funding Request shall be
deemed to be received by the Administrative Agent at 9:00 a.m.
(Charlotte, North Carolina time) on the next following Business Day.



     (c) On the Funding Date, the Swingline Purchaser shall, subject to the
limitations set forth in Section 2.1, and upon satisfaction of the
applicable conditions set forth in Article III, make available to the
Seller in same day funds, at such bank or other location reasonably designated
by the Seller in the Swingline Funding Request given pursuant to this
Section 2.2, an amount equal to the least of (i) the amount requested by
the Seller for such Swingline Advance, (ii) $50,000,000 minus the amount of all
Swingline Advances outstanding on such Funding Date and (iii) the Availability
on such Funding Date.



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     Section 2.3 Procedures for Advances by Conduit Purchasers.



     (a) Each Advance from a Conduit Purchaser hereunder shall be effected by
the Seller (or the Servicer on its behalf) delivering to the Administrative
Agent, each Purchaser Agent and the Swingline Purchaser (with a copy to the
Collateral Custodian and the Backup Servicer) a duly completed Borrowing Notice
(along with a Borrowing Base Certificate) no later than 2:00 p.m. (Charlotte,
North Carolina time) at least one Business Day prior to the proposed Funding
Date. Each Borrowing Notice (along with a Borrowing Base Certificate) shall
(i) specify the desired amount of such Advance, which amount must be at least
equal to $250,000 per Conduit Purchaser, (ii) specify the date of such Advance,
(iii) specify the Assets to be financed on such Funding Date (including the
appropriate file number, Outstanding Asset Balance for each Asset and
identifying each Loan by type and whether such Loan is a Senior Secured ABL
Loan, Senior Secured Term Loan, Stretch Senior Secured Loan, Senior B-Note
Loan, Senior Subordinated Loan, Junior Subordinated Loan, Acquired Loan,
Assigned Loan, or Participation Loan) and (iv) include a representation that
all conditions precedent for an Advance described in Article III hereof
have been met. Each Borrowing Notice shall be irrevocable.



     (b) On the date of each Advance, each Conduit Purchaser shall, upon
satisfaction of the applicable conditions set forth in Article III, make
available to the Seller in same day funds, at such bank or other location
reasonably designated by Seller in its Borrowing Notice given pursuant to this
Section 2.3, an amount equal to its Pro-Rata Share of the lesser of (i)
the amount requested by the Seller for such Advance, (ii) an amount equal to
the Availability on such Funding Date or (iii) the Facility Amount.



     (c) On each Funding Date, the obligation of each Purchaser to remit its
Pro-Rata Share of any such Advance shall be several from that of each other
Purchaser and the failure of any Purchaser to so make such amount available to
the Seller shall not relieve any other Purchaser of its obligation hereunder.



     Section 2.4 Reduction of the Facility Amount; Mandatory and Optional Repayments.



     (a) The Seller may, upon at least twenty (20) Business Days’ prior written
notice (such notice to be received by the Administrative Agent and each
Purchaser Agent no later than 5:00 p.m. (Charlotte, North Carolina time) on
such day) to the Administrative Agent and each Purchaser Agent, terminate in
whole or reduce in part the portion of the Facility Amount that exceeds the sum
of the Advances Outstanding, accrued Interest, Breakage Costs and Hedge
Breakage Costs; provided, however, that each partial reduction of
the Facility Amount shall be in an aggregate amount equal to at least
$1,000,000. Each notice of reduction or termination pursuant to this
Section 2.4(a) shall be irrevocable.



     (b) The Seller may, upon one Business Days’ prior written notice (such
notice to be received by the Administrative Agent, each Hedge Counterparty and
each Purchaser Agent no later than 2:00 p.m. (Charlotte, North Carolina time)
on such day) to the Administrative Agent and each Purchaser Agent, reduce the
Advances Outstanding by remitting, in accordance with their Pro-Rata Share, to
each Purchaser Agent, for payment to the respective Purchasers, (i) cash and
(ii) instructions to reduce such Advances Outstanding, related accrued
Interest, Breakage



60









 







Costs and Hedge Breakage Costs; provided, that, no such
reduction shall be given effect (1) unless the Seller has complied with the
terms of any Hedging Agreement requiring that one or more Hedge Transactions be
terminated in whole or in part as the result of any such reduction of the
Advances Outstanding, and Seller has paid all Hedge Breakage Costs and any
payments owing to the relevant Hedge Counterparty for any such termination (2)
if a Termination Event or Unmatured Termination Event has occurred, is
continuing or would result from such reduction. Any reduction of the Advances
Outstanding shall be in a minimum amount of $500,000. Any such reduction will
occur only if sufficient funds have been remitted to pay all such amounts in
the succeeding sentence in full. Upon receipt of such amounts, the Purchaser
Agents shall apply such amounts first to the pro-rata reduction of the
Advances Outstanding, second to the payment of related accrued Interest
on the amount of the Advances Outstanding to be repaid by paying such amounts
to the respective Purchasers, and third to the payment of any Breakage
Costs and Hedge Breakage Costs and any other payments owing to the applicable
Hedge Counterparty in respect of the termination of any Hedge Transaction. Any
notice relating to any prepayment pursuant to this Section 2.4(b) shall
be irrevocable.



     (c) If on any day (i) the Administrative Agent, as agent for the Secured
Parties, does not own or have a valid and perfected first priority security
interest in any of the Collateral or (ii) any Asset which has been represented
by the Seller to be an Eligible Asset is later determined not to have been an
Eligible Asset as of the related Cut-Off Date, upon the earlier of the Seller’s
receipt of notice from the Administrative Agent or the Seller becoming aware
thereof and the Seller’s failure to cure such breach within thirty (30) days,
the Seller shall be deemed to have received on such day a collection (a
“Deemed Collection”) of such Asset in full and shall on such day pay to
the Administrative Agent, on behalf of the Purchasers and each Hedge
Counterparty, an amount equal to (x) the Outstanding Asset Balance of the Asset
to be applied to the pro-rata reduction of the principal of each VFC plus (y)
any Breakage Costs and Hedge Breakage Costs and any other payments owing to the
applicable Hedge Counterparty in respect of the termination of any Hedge
Transaction required as a result of the Deemed Collection and retransfer of the
related Asset contemplated by this Section 2.4(c). In connection with
any such Deemed Collection, the Administrative Agent, as agent for the Secured
Parties, shall automatically and without further action, be deemed to transfer
to the Seller, free and clear of any Lien created by the Administrative Agent,
all of the right, title and interest of the Administrative Agent, as agent for
the Secured Parties, in, to, and under the Asset with respect to which the
Administrative Agent has received such Deemed Collection, but without any other
representation and warranty of any kind, express or implied.



     Section 2.5 Determination of Interest.



     (a) The VFCC Agent shall determine the VFCC CP Rate and the Interest
(including unpaid Interest, if any, due and payable on a prior Payment Date but
excluding the Additional CP Rates) to be paid by the Seller with respect to
each Advance on each Payment Date for the related Accrual Period and shall
advise the Servicer thereof on or before the third (3rd) Business Day prior to
such Payment Date.



     (b) Each Additional Agent shall determine such Additional Agent’s
Additional Agent CP Rate (including unpaid Interest related to such Additional
Agent CP Rate, if any, due and
payable to a prior Payment Date) to be paid by the Seller with respect to
each Advance on each



61









 







Payment Date for the related Accrual Period and shall
advise the Servicer thereof on or before the third (3rd) Business Day prior to
such Payment Date.



     (c) The Administrative Agent shall determine the Interest (including
unpaid Interest, if any, due and payable on a prior Payment Date) to be paid by
the Seller with respect to each Swingline Advance on each Payment Date for the
related Accrual Period and shall advise the Servicer thereof on or before the
third (3rd) Business Day prior to such Payment Date.



     Section 2.6 Percentage Evidenced by each Variable Funding Certificate.



     The variable percentage ownership interest in the Collateral represented
by each VFC shall be initially computed on its date of purchase. Thereafter,
until the Termination Date, each VFC shall be automatically recomputed (or
deemed to be recomputed) on each day prior to the Termination Date. The
variable percentage ownership interest in the Collateral represented by each
VFC as computed (or deemed recomputed) as of the close of business on the day
immediately preceding the Termination Date shall remain constant at all times
on and after the Termination Date. The variable percentage ownership interest
in the Collateral represented by each VFC shall become zero when its Advances
or Swingline Advances and Interest have been indefeasibly paid in full.



     Section 2.7 Reimbursement of Swingline Advances.



     The Conduit Purchasers hereby agree that if the Swingline Purchaser funds
any Swingline Advance, the Conduit Purchasers shall reimburse the Swingline
Purchaser for such Swingline Advance not later than one Business Day after the
Swingline Purchaser funds such Swingline Advance. Such reimbursement shall be
accomplished by the Conduit Purchasers remitting to the Swingline Purchaser at
the Swingline Purchaser’s Account or such other account as designated in
writing by the Swingline Purchaser the amount (up to the amount of the
outstanding Swingline Advance) that the Conduit Purchasers otherwise would be
required to remit to the account designated by the Borrower pursuant to
Section 2.3(b) in connection with the Advance being made on the date of
such reimbursement. The Seller and the Servicer hereby authorize and instruct
the Conduit Purchasers to reimburse the Swingline Purchaser in such manner.



     Section 2.8 Notations on Variable Funding Certificates.



     Each Purchaser Agent and the Swingline Purchaser is hereby authorized to
enter on a schedule attached to the VFC a notation (which may be computer
generated) with respect to each Advance or Swingline Advance under the VFC made
by the related Purchaser or Swingline Purchaser of: (a) the date and principal
amount thereof, and (b) each repayment of principal thereof, and any such
recordation shall constitute prima facie evidence of the accuracy of the
information so recorded. The failure of any Purchaser Agent or the Swingline
Purchaser to make any such notation on the schedule attached to the VFC shall
not limit or otherwise affect the obligation of the Seller to repay the
Advances or Swingline Advances in accordance with their respective terms as set
forth herein.



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     Section 2.9 Settlement Procedures During the Revolving Period.



     (a) On each Payment Date during the Revolving Period, the Servicer shall
direct the Collateral Custodian to pay pursuant to the Monthly Report to the
following Persons, from (1) the Collection Account, to the extent of Available
Funds, and (2) Servicer Advances received with respect to the immediately
preceding Collection Period that ended on the last day of the calendar month
immediately preceding the calendar month in which such Payment Date occurs, the
following amounts in the following order of priority:




     (i) FIRST, pro rata to each Hedge Counterparty, any amounts,
(other than any Hedge Breakage Costs and any payments due in respect of
the termination of any Hedging Transaction), owing to that Hedge
Counterparty under its respective Hedging Agreement in respect of any
Hedge Transaction(s), for the payment thereof;




     (ii) SECOND, to the Servicer, in an amount equal to any
unreimbursed Servicer Advances, for the payment thereof;




     (iii) THIRD, to the Servicer, in an amount equal to any
accrued and unpaid Servicing Fees and Revolving Servicing Fees to the end
of the preceding Collection Period, for the payment thereof;




     (iv) FOURTH, to the extent not paid for by the Originator,
pro rata to the Backup Servicer and the Collateral Custodian, in an
amount equal to any accrued and unpaid Backup Servicing Fees, Collateral
Custodian Fees and Transition Expenses, for the payment thereof;




     (v) FIFTH, to each Purchaser Agent and the Swingline
Purchaser, pro rata in accordance with the amount of Advances Outstanding
hereunder for the account of the applicable Purchaser, in an amount equal
to any accrued and unpaid Interest, Program Fee, Commitment Fee and
Breakage Costs, for the payment thereof;




     (vi) SIXTH, to each Purchaser Agent and the Swingline
Purchaser, if the Required Advance Reduction Amount is greater than zero
or an Overcollateralization Shortfall exists, an amount necessary to
reduce the Required Advance Reduction Amount to zero and an amount
necessary to cure such Overcollateralization Shortfall, pro rata in
accordance with the amount of Advances Outstanding hereunder for the
account of the applicable Purchaser, for the payment thereof;




     (vii) SEVENTH, if any Required Equity Shortfall exists, an
amount necessary to cure such Required Equity Shortfall, to the Excess
Spread Account, for the payment thereof;




     (viii) EIGHTH, pro-rata to each Hedge Counterparty, any Hedge
Breakage Costs and payments due in termination of any Hedge Transaction,
owing to that Hedge Counterparty under its respective Hedging Agreement,
for the payment thereof;




     (ix) NINTH, to the Administrative Agent, each Purchaser
Agent, the applicable Purchaser, the Backup Servicer, the Collateral
Custodian, the Affected Parties,



63









 






the Indemnified Parties or the Secured
Parties, pro rata in accordance with the amount owed to such Person under
this NINTH clause, all other amounts, including Increased Costs
but other than Advances Outstanding, then due under this Agreement, for
the payment thereof; and




     (x) TENTH, any remaining amount shall be distributed to the
Seller.



     (b) On the terms and conditions hereinafter set forth, from time to time
during the Revolving Period, the Servicer may, to the extent of any Principal
Collections on deposit in the Principal Collections Account, withdraw such
funds for the purpose of reinvesting in additional Eligible Assets, provided
the following conditions are satisfied:




     (i) all conditions precedent set forth in Section 3.2(b) have
been satisfied;




     (ii) the Servicer provides same day written notice to the
Administrative Agent and Collateral Custodian by facsimile (to be
received no later than 2:00 p.m. (Charlotte, North Carolina time) on such
day) of the request to withdraw Principal Collections and the amount
thereof;




     (iii) the notice required in clause (ii) above shall be accompanied
by a Borrowing Notice in the form of Exhibit A-2 and a Borrowing
Base Certificate and the same are executed by the Seller and at least one
Responsible Officer of the Servicer;




     (iv) the Collateral Custodian provides to the Administrative Agent
by facsimile (to be received no later than 2:00 p.m. (Charlotte, North
Carolina time) on that same date) a statement reflecting the total amount
on deposit on such day in the Principal Collections Account; and




     (v) upon the satisfaction of the conditions set forth in clauses (i)
through (iv) above, and the Administrative Agent’s confirmation of
available funds, the Administrative Agent will instruct the Collateral
Custodian by facsimile on such day to release funds from the Principal
Collections Account to the Servicer in an amount not to exceed the lesser
of (A) the amount requested by the Servicer and (B) the amount on deposit
in the Principal Collections Account on such day.



     Section 2.10 Settlement Procedures During the Amortization Period.



     (a) On each Payment Date during the Amortization Period, the Servicer
shall direct the Collateral Custodian to pay pursuant to the Monthly Report to
the following Persons, from (i) the Collection Account, to the extent of
Available Funds, and (ii) Servicer Advances received with respect to the
immediately preceding Collection Period, the following amounts in the following
order of priority:




     (i) FIRST, pro rata to each Hedge Counterparty, any amounts,
(including any Hedge Breakage Costs and any payments due in respect of
the termination of any Hedge Transaction in an amount not to exceed
$250,000 in the aggregate for all Hedging Agreements), owing to that
Hedge Counterparty under its respective Hedging Agreement in respect of
any Hedge Transaction(s), for the payment thereof;



64









 






     (ii) SECOND, to the Servicer, in an amount equal to any
unreimbursed Servicer Advances, for the payment thereof;




     (iii) THIRD, to the Servicer, in an amount equal to any
accrued and unpaid Servicing Fees and Revolving Servicing Fees to the end
of the preceding Collection Period, for the payment thereof;




     (iv) FOURTH, to the extent not paid for by the Originator,
pro rata to the Backup Servicer and the Collateral Custodian, in an
amount equal to any accrued and unpaid Backup Servicing Fees, Collateral
Custodian Fees and Transition Expenses, for the payment thereof;




     (v) FIFTH, to each Purchaser Agent and the Swingline
Purchaser, pro rata in accordance with the amount of Advances Outstanding
hereunder for the account of the applicable Purchaser, in an amount equal
to any accrued and unpaid Interest, Program Fee, Commitment Fee and
Breakage Costs, for the payment thereof;




     (vi) SIXTH, to each Purchaser Agent and the Swingline
Purchaser, pro rata in accordance with the amount of Advances Outstanding
hereunder for the account of the applicable Purchaser, in an amount
necessary to reduce the Advances Outstanding and Aggregate Unpaids to
zero, for the payment thereof;




     (vii) SEVENTH, to each Purchaser Agent, if the Required
Advance Reduction Amount is greater than zero or an Overcollateralization
Shortfall Exists, an amount necessary to reduce the Required Advance
Reduction Amount to zero and an amount necessary to cure such
Overcollateralization Shortfall, pro rata in accordance with the amount
of Advances Outstanding hereunder for the account of the applicable
Purchaser, for the payment thereof;




     (viii) EIGHTH, if any Required Equity Shortfall exists, an
amount necessary to cure such Required Equity Shortfall, to the Excess
Spread Account, for the payment thereof;




     (ix) NINTH, pro-rata to each Hedge Counterparty, any Hedge
Breakage Costs and payments due in termination of any Hedge Transaction,
owing to that Hedge Counterparty under its respective Hedging Agreement
to the extent not reimbursed pursuant to clause FIRST above, for
the payment thereof;




     (x) TENTH, to the Administrative Agent, each Purchaser Agent,
the applicable Purchaser, the Backup Servicer, the Collateral Custodian,
the Affected Parties, the Indemnified Parties or the Secured Parties, pro
rata in accordance with the amount owed to such Person under this
TENTH clause, all other amounts,
including Increased Costs but other than Advances Outstanding, then
due under this Agreement, for the payment thereof; and




     (xi) ELEVENTH, any remaining amount shall be distributed to
the Seller.



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     Section 2.11 Collections and Allocations.



     (a) Collections. The Servicer shall promptly identify any
collections received as being on account of Interest Collections, Principal
Collections or other Collections and shall transfer, or cause to be
transferred, all Collections received directly by it or on deposit in the form
of available funds in the Lock-Box Accounts to the Collection Account by the
close of business on the second (2nd) Business Day after such Collections are
received. In transferring Collections to the Collection Account, the Servicer
shall segregate Principal Collections and transfer the same to the
corresponding Principal Collections Account. The Servicer shall make such
deposits or payments on the date indicated therein by wire transfer, in
immediately available funds. The Servicer shall further include a statement as
to the amount of Principal Collections and Interest Collections on deposit in
the Collection Account on each Reporting Date in the Monthly Report delivered
pursuant to Section 6.10(b).



     (b) Initial Deposits. On the Closing Date and on each Addition
Date thereafter, the Servicer will deposit (in immediately available funds)
into the Collection Account all Collections received after the applicable
Cut-Off Date and through and including the Closing Date or Addition Date, as
the case may be, in respect of Eligible Assets being transferred to and
included as part of the Collateral on such date.



     (c) Excluded Amounts. With the prior written consent of the
Administrative Agent and each Purchaser Agent, which consent shall not be
unreasonably withheld (a copy of which will be provided by the Servicer to the
Backup Servicer), the Servicer may withdraw from the Collection Account any
deposits thereto constituting Excluded Amounts if the Servicer has, prior to
such withdrawal and consent, delivered to the Administrative Agent and each
Purchaser Agent a report setting forth the calculation of such Excluded Amounts
in a format satisfactory to the Administrative Agent and each Purchaser Agent
in their sole discretion.



     (d) Investment of Funds. Until the occurrence of a Termination
Event, to the extent there are uninvested amounts deposited in the Collection
Account, and the Excess Spread Account, all amounts shall be invested in
Permitted Investments selected by the Servicer that mature no later than the
Business Day immediately preceding the next Payment Date; from and after the
occurrence of a Termination Event, to the extent there are uninvested amounts
in the Collection Account, and the Excess Spread Account (net of losses and
investment expenses), all amounts may be invested in Permitted Investments
selected by the Administrative Agent that mature no later than the Business Day
immediately preceding the next Payment Date. All earnings (net of losses and
investment expenses) thereon shall be retained or deposited into the Collection
Account and shall be applied pursuant to the provisions of Section 2.9
and Section 2.10.



     Section 2.12 Payments, Computations, Etc.



     (a) Unless otherwise expressly provided herein, all amounts to be paid or
deposited by the Seller or the Servicer hereunder shall be paid or deposited in
accordance with the terms hereof no later than 2:00 p.m. (Charlotte, North
Carolina time) on the day when due in lawful money of the United States in
immediately available funds to the applicable Purchaser Agent’s Account or
Swingline Purchaser’s Account and if not received before such time shall be
deemed



66









 







received on the next Business Day. The Seller shall, to the extent
permitted by law, pay to the Secured Parties interest on all amounts not paid
or deposited when due hereunder at 2% per annum above the Base Rate, payable on
demand; provided, however, that such interest rate shall not at
any time exceed the maximum rate permitted by Applicable Law. Such interest
shall be for the account of, and distributed to, each applicable Purchaser.
All computations of interest and all computations of Interest and other fees
hereunder shall be made on the basis of a year consisting of 360 days (other
than calculations with respect to the Base Rate which shall be based on a year
consisting of 365 or 366 days, as applicable) for the actual number of days
(including the first but excluding the last day) elapsed.



     (b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of the payment of Interest or any fee payable hereunder, as the
case may be. For avoidance of doubt, to the extent that Available Funds are
insufficient on any Payment Date to satisfy the full amount of any Increased
Costs pursuant to clause NINTH of Section 2.9(a) or clause
TENTH of Section 2.10, such unpaid amounts shall remain due and
owing and shall accrue Interest until repaid in full.



     (c) If any Advance or Swingline Advance requested by the Seller and
approved by the applicable Purchaser or Swingline Purchaser and the Purchaser
Agents or, in the case of a Swingline Advance, the Administrative Agent,
pursuant to Section 2.2 or 2.3 is not, for any reason made or
effectuated, as the case may be, on the date specified therefor, the Seller
shall indemnify the applicable Purchaser or the Swingline Purchaser against any
reasonable loss, cost or expense incurred by the applicable Purchaser or the
Swingline Purchaser including, without limitation, any loss (including loss of
anticipated profits, net of anticipated profits in the reemployment of such
funds in the manner determined by each Purchaser or the Swingline Purchaser, as
applicable), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by the applicable Purchaser or
Swingline Purchaser to fund or maintain such Advance or Swingline Advance.



     Section 2.13 Optional Repurchase.



     At any time following the Termination Date when the Borrowing Base is less
than fifteen (15%) percent of the Borrowing Base as of the Termination Date,
the Seller may notify the Administrative Agent and each Purchaser Agent in
writing of its intention to purchase all remaining Collateral; provided,
that, all Hedge Transactions have been terminated in accordance with
their terms. On the Payment Date next succeeding any such notice, the Seller
shall purchase all such Collateral for a price equal to the Aggregate Unpaids
and the proceeds of such purchase will be deposited into the Collection
Account and paid in accordance with Section 2.10.



     Section 2.14 Fees.




     (a) The Servicer on behalf of the Seller shall pay in accordance with
Section 2.9(a)(v) and Section 2.10(a)(v), as applicable, to the
applicable Purchaser Agent from the Collection Account to the extent funds are
available on each Payment Date, monthly in arrears, the applicable Program Fee
and the applicable Commitment Fee agreed to between the Seller and



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such Purchaser Agent in the VFCC Fee Letter and the relevant Additional Agent Fee
Letter, as applicable.



     (b) The Servicer shall be entitled to receive a fee (the “Servicing
Fee”), monthly in arrears in accordance with Section 2.9(a)(iii) and
Section 2.10(a)(iii), as applicable, which fee shall be equal to the
product of (i) the Servicing Fee Rate, (ii) the Aggregate Outstanding Asset
Balance, as of the first day of the immediately preceding Collection Period and
(iii) the actual number of days in such Collection Period divided by 360.



     (c) The Servicer shall be entitled to receive a fee (the “Revolving
Servicing Fee”), monthly in arrears in accordance with Section
2.9(a)(iii) and Section 2.10(a)(iii), as applicable, which fee shall
be equal to the product of (i) the Revolving Servicing Fee Rate, (ii) the
aggregate Outstanding Asset Balance of all Revolving Loans as of the first day
of the immediately preceding Collection Period and (iii) the actual number of
days in such Collection Period divided by 360.



     (d) The Backup Servicer shall be entitled to receive the Backup Servicing
Fee in accordance with Section 2.9(a)(iv) and Section
2.10(a)(iv), as applicable.



     (e) The Collateral Custodian shall be entitled to receive the Collateral
Custodian Fee in accordance with Section 2.9(a)(iv) and Section
2.10(a)(iv), as applicable.



     (f) The Seller shall pay to Mayer, Brown, Rowe & Maw LLP as counsel to the
Administrative Agent, on the Closing Date, its reasonable estimated fees and
out-of-pocket expenses in immediately available funds and shall pay all
additional reasonable fees and out-of-pocket expenses of Mayer, Brown, Rowe &
Maw LLP within thirty (30) Business Days after receiving an invoice for such
amounts.



     Section 2.15 Increased Costs; Capital Adequacy; Illegality.



     (a) If either (i) the introduction of or any change (including, without
limitation, any change by way of imposition or increase of reserve
requirements) in or in the interpretation of any law or regulation or (ii) the
compliance by an Affected Party with any guideline or request from any central
bank or other Governmental Authority (whether or not having the force of law),
shall (a) subject an Affected Party to any Tax (except for Taxes on the overall
net income of such Affected Party), duty or other charge with respect to any
ownership interest in the Collateral, or any right to make Advances or
Swingline Advances hereunder, or on any payment made hereunder, (b) impose,
modify or deem applicable any reserve requirement (including, without
limitation, any reserve requirement imposed by the Board of Governors of
the Federal Reserve System, but excluding any reserve requirement, if any,
included in the determination of Interest), special deposit or similar
requirement against assets of, deposits with or for the amount of, or credit
extended by, any Affected Party or (c) impose any other condition affecting the
ownership interest in the Collateral conveyed to the Purchasers hereunder or
the Purchasers’ rights hereunder, the result of which is to increase the cost
to any Affected Party or to reduce the amount of any sum received or receivable
by an Affected Party under this Agreement, then within ten days after demand by
such Affected Party (which demand shall be accompanied by a statement setting
forth the basis for such demand), the Servicer shall pay (and to the extent the



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Servicer does not make such payment the Seller shall pay) directly to such
Affected Party such additional amount or amounts as will compensate such
Affected Party for such additional or increased cost incurred or such reduction
suffered.



     (b) If either (i) the introduction of or any change in or in the
interpretation of any law, guideline, rule, regulation, directive or request or
(ii) compliance by any Affected Party with any law, guideline, rule,
regulation, directive or request from any central bank or other governmental
authority or agency (whether or not having the force of law), including,
without limitation, compliance by an Affected Party with any request or
directive regarding capital adequacy, has or would have the effect of reducing
the rate of return on the capital of any Affected Party as a consequence of its
obligations hereunder or arising in connection herewith to a level below that
which any such Affected Party could have achieved but for such introduction,
change or compliance (taking into consideration the policies of such Affected
Party with respect to capital adequacy) by an amount deemed by such Affected
Party to be material, then from time to time, within ten days after demand by
such Affected Party (which demand shall be accompanied by a statement setting
forth the basis for such demand), the Servicer shall pay (and to the extent the
Servicer does not make such payment the Seller shall pay) directly to such
Affected Party such additional amount or amounts as will compensate such
Affected Party for such reduction. For the avoidance of doubt, if the issuance
of Interpretation No. 46 by the Financial Accounting Standards Board or any
other change in accounting standards or the issuance of any other
pronouncement, release or interpretation, causes or requires the consolidation
of all or a portion of the assets and liabilities of the Originator or Seller
with the assets and liabilities of the Administrative Agent, any Purchaser
Agent, any Purchaser or any Liquidity Bank, such event shall constitute a
circumstance on which such Affected Party may base a claim for reimbursement
under this Section 2.15.



     (c) If as a result of any event or circumstance similar to those described
in clause (a) or (b) of this Section 2.15, any Affected Party is
required to compensate a bank or other financial institution providing
liquidity support, credit enhancement or other similar support to such Affected
Party in connection with this Agreement or the funding or maintenance of
Advances or Swingline Advances hereunder, then within ten days after demand by
such Affected Party, the Servicer shall pay (or to the extent the Servicer does
not make such payment the Seller shall pay) to such Affected Party such
additional amount or amounts as may be necessary to reimburse such Affected
Party for any amounts payable or paid by it.



     (d) In determining any amount provided for in this Section 2.15,
the Affected Party may use any reasonable averaging and attribution methods.
Any Affected Party making a claim under this Section 2.15 shall submit
to the Servicer a written description
as to such additional or increased cost or reduction and the calculation
thereof, which written description shall be conclusive absent demonstrable
error.



     (e) If the applicable Purchaser or Swingline Purchaser shall notify their
respective Purchaser Agent (or, in the case of the Swingline Purchaser, the
Administrative Agent) that a Eurodollar Disruption Event as described in
clause (a) of the definition of “Eurodollar Disruption Event” has
occurred, the applicable Purchaser Agent or the Administrative Agent shall in
turn so notify the Seller, whereupon all Advances Outstanding of the affected
Purchaser or Swingline



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Purchaser in respect of which Interest accrues at the
Adjusted Eurodollar Rate shall immediately be converted into Advances
Outstanding in respect of which Interest accrues at the Base Rate.



     Section 2.16 Taxes.




     (a) All payments made by an Obligor in respect of an Asset and all
payments made by the Seller or the Servicer under this Agreement will be made
free and clear of and without deduction or withholding for or on account of any
Taxes. If any Taxes are required to be withheld from any amounts payable to
the Administrative Agent, the Purchaser Agents, any Affected Party or any
Secured Party, then the amount payable to such Person will be increased (such
increase, the “Additional Amount”) such that every net payment made
under this Agreement after withholding for or on account of any Taxes
(including, without limitation, any Taxes on such increase) is not less than
the amount that would have been paid had no such deduction or withholding been
deducted or withheld. The foregoing obligation to pay Additional Amounts,
however, will not apply with respect to net income or franchise taxes imposed
on the Purchasers, any Affected Party, the Administrative Agent or the
Purchaser Agents, respectively, with respect to payments required to be made by
the Seller or Servicer under this Agreement, by a taxing jurisdiction in which
the Purchasers, any Affected Party, the Administrative Agent or the Purchaser
Agents, are organized, conducts business or is paying taxes (as the case may
be).



     (b) The Servicer will indemnify (and to the extent the indemnification
provided by the Servicer is insufficient the Seller will indemnify) each
Affected Party for the full amount of Taxes payable by such Person in respect
of Additional Amounts and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. All payments in respect
of this indemnification shall be made within ten days from the date a written
invoice therefor is delivered to the Seller.



     (c) Within thirty (30) days after the date of any payment by the Seller
and the Servicer of any Taxes, the Seller and the Servicer will furnish to the
Administrative Agent and each of the Purchaser Agents at its address set forth
under its name on the signature pages hereof, appropriate evidence of payment
thereof.



     (d) If a Purchaser is not created or organized under the laws of the
United States or a political subdivision thereof, such Purchaser shall deliver
to the Seller, with a copy to the Administrative Agent, (i) within fifteen (15)
days after the date hereof, two (or such other number as may from time to time
be prescribed by Applicable Laws) duly completed copies of IRS Form W-8BEN or
Form W-8ECI (or any successor forms or other certificates or statements that
may be required from time to time by the relevant United States taxing
authorities or
Applicable Laws), as appropriate, to permit the Seller to make payments
hereunder for the account of such Purchaser without deduction or withholding of
United States federal income or similar Taxes and (ii) upon the obsolescence of
or after the occurrence of any event requiring a change in, any form or
certificate previously delivered pursuant to this Section 2.16(d),
copies (in such numbers as may from time to time be prescribed by Applicable
Laws or regulations) of such additional, amended or successor forms,
certificates or statements as may be required under Applicable Laws or
regulations to permit the Seller and the Servicer to make payments hereunder
for the account of such Purchaser without deduction or withholding of United
States federal income or similar Taxes.



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     (e) If, in connection with an agreement or other document providing
liquidity support, credit enhancement or other similar support to the
Purchasers in connection with this Agreement or the funding or maintenance of
Advances hereunder, the Purchasers are required to compensate a bank or other
financial institution in respect of Taxes under circumstances similar to those
described in this Section 2.16, then, within ten days after demand by
the Purchasers, the Servicer shall pay (or to the extent the Servicer does not
make such payment the Seller shall pay) to the Purchasers such additional
amount or amounts as may be necessary to reimburse the Purchasers for any
amounts paid by them.



     (f) Without prejudice to the survival of any other agreement of the Seller
and the Servicer hereunder, the agreements and obligations of the Seller and
the Servicer contained in this Section 2.16 shall survive the
termination of this Agreement.



     Section 2.17 Assignment of the Sale Agreement.



     The Seller hereby assigns to the Administrative Agent, for the ratable
benefit of the Secured Parties hereunder, all of the Seller’s right, title and
interest in and to, but none of its obligations under, the Sale Agreement and
any UCC financing statements filed under or in connection therewith. In
furtherance and not in limitation of the foregoing, the Seller hereby assigns
to the Administrative Agent for the benefit of the Secured Parties its right to
indemnification under Article VIII of the Sale Agreement. The Seller
confirms that the Administrative Agent on behalf of the Secured Parties shall
have the sole right to enforce the Seller’s rights and remedies under the Sale
Agreement and any UCC financing statements filed under or in connection
therewith for the benefit of the Secured Parties.



     Section 2.18 Substitution of Assets.



     On any day prior to the occurrence of a Termination Event (and after the
Termination Date at the discretion of the Administrative Agent with the consent
of the Purchaser Agents), the Seller may, subject to the conditions set forth
in this Section 2.18 and subject to the other restrictions contained
herein, replace any Asset with one or more Eligible Assets (each, a
“Substitute Asset”); provided, that, no such replacement
shall occur unless each of the following conditions is satisfied as of the date
of such replacement and substitution:



     (a) the Seller has recommended to the Administrative Agent (with a copy to
the Collateral Custodian) in writing that the Asset to be replaced should be
replaced (each a “Replaced Asset”);



     (b) each Substitute Asset is an Eligible Asset on the date of
substitution;



     (c) after giving effect to any such substitution, the Advances Outstanding
do not exceed the lesser of (i) the Facility Amount and (ii) the Maximum
Availability;



     (d) for purposes only of substitutions pursuant to Section 4.6
undertaken because an Asset has become a Warranty Asset, the aggregate
Outstanding Asset Balance of such Substitute Assets shall be equal to or
greater than the aggregate Outstanding Asset Balances of the Replaced Assets;



71









 





     (e) for purposes only of substitutions pursuant to Section 4.6
undertaken because an Asset has become a Warranty Asset, such Substitute
Assets, at the time of substitution by the Seller, shall have no greater
weighted average life than the Replaced Asset;



     (f) all representations and warranties of the Seller contained in
Section 4.1 and Section 4.2 shall be true and correct as of the
date of substitution of any such Substitute Asset;



     (g) the substitution of any Substitute Asset does not cause a Termination
Event or Unmatured Termination Event to occur;



     (h) the sum of (1) the Outstanding Asset Balance of all Assets that are
Substitute Assets does not exceed 20% of the Facility Amount, calculated on an
annualized basis commencing with the Closing Date;



     (i) the sum of the Outstanding Asset Balance of all Substitute Assets
substituted for Delinquent Assets, Charged-Off Assets and Warranty Assets shall
not exceed 10% of the Facility Amount, calculated on an annualized basis
commencing with the Closing Date;



     (j) the Seller shall deliver to the Administrative Agent on the date of
such substitution a certificate of a Responsible Officer certifying that each
of the foregoing is true and correct as of such date; and



     (k) each Asset that is replaced pursuant to the terms of this Section
2.18 shall be substituted only with another Asset that meets the foregoing
conditions.



     In addition, the Seller shall in connection with such substitution deliver
to the Collateral Custodian the related Required Asset Documents. In
connection with any such substitution, the Administrative Agent, as agent for
the Secured Parties, shall, automatically and without further action, be deemed
to transfer to the Seller, free and clear of any Lien created pursuant to this
Agreement, all of the right, title and interest of the Administrative Agent, as
agent for the Secured Parties, in, to and under such Replaced Asset, but
without any representation and warranty of any kind, express or implied.



     Section 2.19 Optional Sales.




     (a) On any Optional Sale Date, the Seller shall have the right to prepay
all or a portion of the Advances Outstanding in connection with the sale and
assignment to the Seller by the Administrative Agent, on behalf of the Secured
Parties, of the Collateral (each, an “Optional Sale”), subject to the
following terms and conditions:




     (i) The Seller shall have given the Administrative Agent at least
forty-five (45) Business Days’ prior written notice of its intent to
effect an Optional Sale, unless such notice is waived or reduced by the
Administrative Agent;




     (ii) Any Optional Sale shall be in connection with a Permitted
Securitization Transaction;



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     (iii) Unless an Optional Sale is to be effected on a Payment Date
(in which case the relevant calculations with respect to such Optional
Sale shall be reflected on the applicable Monthly Report), the Servicer
shall deliver to the Administrative Agent a certificate and evidence to
the reasonable satisfaction of the Administrative Agent (which evidence
may consist solely of a certificate from the Servicer) that the Seller
shall have sufficient funds on the related Optional Sale Date to effect
the contemplated Optional Sale in accordance with this Agreement. In
effecting an Optional Sale, the Seller may use the Proceeds of sales of
the Collateral;




     (iv) After giving effect to the Optional Sale and the assignment to
the Seller of the Collateral on any Optional Sale Date, (a) the remaining
Advances Outstanding shall not exceed the lesser of the Facility Amount
and the Maximum Availability, (b) the representations and warranties
contained in Section 4.1 hereof shall continue to be correct in
all material respects, except to the extent relating to an earlier date,
(c) the eligibility of any Asset remaining as part of the Collateral
after the Optional Sale will be redetermined as of the Optional Sale
Date, (d) the Pool Concentration Criteria will be redetermined as of the
Optional Sale Date, and (e) neither an Unmatured Termination Event nor a
Termination Event shall have resulted;




     (v) On the related Optional Sale Date, the Administrative Agent, the
Swingline Purchaser, each Purchaser Agent, on behalf of the applicable
Purchaser and the Hedge Counterparties, shall have received, as
applicable, in immediately available funds, an amount equal to the sum of
(a) the portion of the Advances Outstanding to be prepaid plus (b)
an amount equal to all unpaid Interest to the extent reasonably
determined by the Administrative Agent and the Purchaser Agents to be
attributable to that portion of the Advances Outstanding to be paid in
connection with the Optional Sale plus (c) an aggregate amount
equal to the sum of all other amounts due and owing to the Administrative
Agent, the Collateral Custodian, the Backup Servicer, the Purchaser
Agents, the applicable Purchaser, the Affected Parties and the Hedge
Counterparties, as applicable, under this Agreement and the other
Transaction Documents, to the extent accrued to such date and to accrue
thereafter (including, without limitation, Breakage Costs, Hedge Breakage
Costs and any other payments owing to the applicable Hedge Counterparty
in respect of the termination of any Hedge Transaction);
provided, that, the Administrative Agent and each
Purchaser Agent shall have the right to determine whether the amount paid
(or proposed to be paid) by the Seller on the Optional Sale Date is
sufficient to satisfy the requirements of clauses (iii),
(iv) and (v) and is sufficient to reduce the Advances
Outstanding to the extent requested by the Seller in connection with the
Optional Sale; and




     (vi) On or prior to each Optional Sale Date, the Seller shall have
delivered to the Administrative Agent a list specifying all Assets to be
sold and assigned pursuant to such Optional Sale.



     (b) In connection with any Optional Sale, following receipt by the
Purchaser Agents of the amounts referred to in clause (v) above, there
shall be sold and assigned to the Seller without recourse, representation or
warranty all of the right, title and interest of the Administrative Agent, the
Purchaser Agents, the Purchasers and the Secured Parties in, to and



73









 







under the
portion of the Collateral so retransferred and such portion of the Collateral
so retransferred shall be released from the Lien of this Agreement (subject to
the requirements of clause (iv) above).



     (c) The Seller hereby agrees to pay the reasonable legal fees and expenses
of the Administrative Agent, each Purchaser Agent and the Secured Parties in
connection with any Optional Sale (including, but not limited to, expenses
incurred in connection with the release of the Lien of the Administrative
Agent, the Secured Parties and any other party having an interest in the
Collateral in connection with such Optional Sale).



     (d) In connection with any Optional Sale, on the related Optional Sale
Date, the Administrative Agent, on behalf of the Secured Parties, shall, at the
expense of the Seller (i) execute such instruments of release with respect to
the portion of the Collateral to be retransferred to the Seller, in recordable
form if necessary, in favor of the Seller as the Seller may reasonably request,
(ii) deliver any portion of the Collateral to be retransferred to the Seller in
its possession to the Seller and (iii) otherwise take such actions, and cause
or permit the Collateral Custodian to take such actions, as are necessary and
appropriate to release the Lien of the Administrative Agent and the Secured
Parties on the portion of the Collateral to be retransferred to the Seller and
release and deliver to the Seller such portion of the Collateral to be
retransferred to the Seller.



ARTICLE III




CONDITIONS TO ADVANCES AND SWINGLINE ADVANCES




     Section 3.1 Conditions to Closing and Initial Advance.



     The Purchasers shall not be obligated to make any Advance hereunder on the
occasion of the Initial Advance, nor shall any Purchaser, Administrative Agent,
the Purchaser Agents, the Backup Servicer and the Collateral Custodian be
obligated to take, fulfill or perform any other action hereunder, until the
following conditions have been satisfied, in the sole discretion of, or waived
in writing by, the Administrative Agent and each Purchaser Agent:



     (a) Each Transaction Document shall have been duly executed by, and
delivered to, the parties thereto, and the Administrative Agent and each
Purchaser Agent shall have received such other documents, instruments,
agreements and legal opinions as the Administrative Agent and each Purchaser
Agent shall reasonably request in connection with the transactions contemplated
by this Agreement, including, without limitation, all those specified in the
Schedule of Documents attached hereto as Schedule I, each in form and
substance satisfactory to the Administrative Agent and each Purchaser Agent;



     (b) The Administrative Agent and each Purchaser Agent shall have received
(i) satisfactory evidence that the Seller and the Servicer have obtained all
required consents and approvals of all Persons, including all requisite
Governmental Authorities, to the execution, delivery and performance of this
Agreement and the other Transaction Documents to which each is a party and the
consummation of the transactions contemplated hereby or thereby or (ii) an
Officer’s Certificate from each of the Seller and the Servicer in form and
substance reasonably



74









 







satisfactory to the Administrative Agent and each
Purchaser Agent affirming that no such consents or approvals are required; it
being understood that the acceptance of such evidence or officer’s certificate
shall in no way limit the recourse of the Administrative Agent, each Purchaser
Agent or any Secured Party against the Originator or the Seller for a breach of
the Originator’s and the Seller’s representation or warranty that all such
consents and approvals have, in fact, been obtained;



     (c) The Seller, the Servicer and the Originator shall each be in
compliance in all material respects with all Applicable Laws and shall have
delivered to the Administrative Agent and each Purchaser Agent as to this and
other closing matters certification in the form of Exhibits F-1 and
F-2;



     (d) The Seller and the Servicer shall have delivered to the Administrative
Agent and each Purchaser Agent duly executed Powers of Attorney in the form of
Exhibits G-1 and G-2;



     (e) The Seller and the Servicer shall each have delivered to the
Administrative Agent and each Purchaser Agent a certificate as to Solvency in
the form of Exhibits E-1 and E-2 and a perfection certificate in form
reasonably acceptable to the Administrative Agent; and



     (f) The Administrative Agent shall have received evidence satisfactory to
it that the greater of (i) the sum of all amounts payable to VFCC under the
CapitalSource Funding I Transaction and (ii) the amount of the commitment of
VFCC under the CapitalSource Funding I Transaction, does not exceed
$250,000,000 in the aggregate.



     Section 3.2 Conditions Precedent to All Advances and Swingline Advances.



     Each Advance or Swingline Advance to the Seller by the applicable
Purchaser (each, a “Transaction”) shall be subject to the further
conditions precedent that:



     (a) (i) With respect to any Advance (including the Initial Advance) or
Swingline Advance, the Servicer shall have delivered to the Administrative
Agent and each Purchaser
Agent (with a copy to the Collateral Custodian and the Backup Servicer),
(x) in the case of an Advance, no later than 2:00 p.m. (Charlotte, North
Carolina time), one Business Day prior to the related Funding Date, and (y) in
the case of a Swingline Advance, no later than 2:00 p.m. (Charlotte, North
Carolina time) on the related Funding Date, in a form and substance
satisfactory to the Administrative Agent and each Purchaser Agent, (1) a
Borrowing Notice (Exhibit A-1 or A-1-S, as applicable), Borrowing
Base Certificate (Exhibit A-3), Asset List and Monthly Report, if
applicable, and (2) a Certificate of Assignment (Exhibit A to the Sale
Agreement including Schedule I, thereto) and containing such additional
information as may be reasonably requested by the Administrative Agent and each
Purchaser Agent, and (ii) with respect to any reduction in Advances Outstanding
pursuant to Section 2.4(b) or any reinvestment of Principal Collections
permitted by Section 2.9(b), the Servicer shall have delivered to the
Administrative Agent and each Purchaser Agent (with a copy to the Backup
Servicer) at least one Business Day prior to any reduction of Advances
Outstanding or same day notice no later than 2:00 p.m. (Charlotte, North
Carolina time) on such day for any reinvestment of Principal Collections a
Borrowing Notice (Exhibit A-2) and a Borrowing Base Certificate
(Exhibit A-3) executed by the Servicer and the Seller;



75









 





     (b) On the date of such Transaction the following statements shall be
true, and the Seller shall be deemed to have certified that:




     (i) The representations and warranties contained in Section
4.1, Section 4.2 and Section 4.3 are true and correct
on and as of such day as though made on and as of such day and shall be
deemed to have been made on such day;




     (ii) No event has occurred and is continuing, or would result from
such Transaction, that constitutes a Termination Event or Unmatured
Termination Event;




     (iii) On and as of such day, after giving effect to such
Transaction, the Advances Outstanding shall not exceed the lesser of (x)
the Facility Amount and (y) the Maximum Availability, and, if such
Transaction involves a Swingline Advance, the aggregate amount of
Swingline Advances outstanding does not exceed $50,000,000;




     (iv) After giving effect to such Advance or Swingline Advance,
reduction of Advances Outstanding or reinvestment of Principal
Collections, there is not and will be no deficiency in the Minimum
Overcollateralization Amount;




     (v) On and as of such day, the Seller and the Servicer each has
performed all of the covenants and agreements contained in this Agreement
to be performed by such person at or prior to such day; and




     (vi) No law or regulation shall prohibit, and no order, judgment or
decree of any federal, state or local court or governmental body, agency
or instrumentality shall prohibit or enjoin, the making of such Advance,
incremental Advance or Swingline Advance by the Purchaser or the
Swingline Purchaser in accordance with the provisions
hereof, the reduction of Advances Outstanding, the reinvestment of
Principal Collections or any other transaction contemplated herein;



     (c) The Seller shall have delivered to the Collateral Custodian (with a
copy to the Backup Servicer and the Administrative Agent) (i) in the case of an
Advance, no later than 2:00 p.m. (Charlotte, North Carolina time) one Business
Day prior to any Funding Date, and (ii) in the case of a Swingline Advance, no
later than 2:00 p.m. (Charlotte, North Carolina time) on the related Funding
Date, a faxed copy of the duly executed original promissory notes, master
purchase agreement and purchase statements or a copy of the Loan Register, as
applicable, for the Loans or duly executed Lease Contracts, as applicable, and,
if any Assets are closed in escrow, a certificate (in the form of Exhibit
M) from the counsel to the Originator or the Obligor of such Assets
certifying the possession of the Required Asset Documents, provided,
however, notwithstanding the foregoing, the Required Asset Documents
(including any UCCs included in the Required Asset Documents) shall be in the
possession of the Collateral Custodian within two Business Days of any related
Funding Date as to any Additional Assets;



     (d) The Seller shall not have requested the Termination Date to occur;



     (e) The Facility Termination Date shall not have occurred;




76










 





     (f) On the date of such Transaction, the Administrative Agent and each
Purchaser Agent shall have received such other approvals, opinions or documents
as the Administrative Agent and each Purchaser Agent may reasonably require;



     (g) The Required Equity Contribution, if any, shall have been made to the
Seller;



     (h) The Administrative Agent shall have received from the Seller all
hedging confirms related to any Hedging Agreement required by this Agreement;



     (i) The Seller and Servicer shall have delivered to the Administrative
Agent and each Purchaser Agent all reports required to be delivered as of the
date of such Transaction including, without limitation, all deliveries required
by Section 2.2 or 2.3, as applicable;



     (j) With respect to any Acquired Loan intended to be included as a part of
the Collateral, the Administrative Agent and each Purchaser Agent shall have
received an opinion of counsel in accordance with Schedule I;



     (k) The Seller shall have paid all fees required to be paid, including all
fees required hereunder and under the VFCC Fee Letter and any Additional Agent
Fee Letter and shall have reimbursed the Purchasers, the Administrative Agent
and each Purchaser Agent for all fees, costs and expenses of closing the
transactions contemplated hereunder and under the other Transaction Documents,
including the reasonable attorney fees and any other legal and document
preparation costs incurred by the Purchasers, the Administrative Agent and each
Purchaser Agent;



     (l) In the case of each Swingline Advance, the Administrative Agent shall
have consented to such Swingline Advance; and



     (m) The Seller shall have delivered to the Administrative Agent and each
Purchaser Agent an Officer’s Certificate (which may be part of the Borrowing
Notice) in form and substance reasonably satisfactory to the Administrative
Agent and each Purchaser Agent certifying that each of the foregoing conditions
precedent has been satisfied.



     The failure of the Seller to satisfy any of the foregoing conditions
precedent in respect of any Advance or Swingline Advance shall give rise to a
right of the Administrative Agent and the applicable Purchaser Agent (or, in
the case of a Swingline Advance, the Administrative Agent), which right may be
exercised at any time on the demand of the applicable Purchaser Agent (or, in
the case of a Swingline Advance, the Administrative Agent), to rescind the
related Advance or Swingline Advance and direct the Seller to pay to the
Administrative Agent for the benefit of the applicable Purchaser or Swingline
Purchaser an amount equal to the Advances or Swingline Advances made during any
such time that any of the foregoing conditions precedent were not satisfied.



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ARTICLE IV




REPRESENTATIONS AND WARRANTIES




     Section 4.1 Representations and Warranties of the Seller.



     The Seller represents and warrants as follows:



     (a) Organization and Good Standing. The Seller has been duly
organized, and is validly existing as a limited liability company in good
standing, under the laws of the State of Delaware, with all requisite company
power and authority to own or lease its properties and conduct its business as
such business is presently conducted, and had at all relevant times, and now
has all necessary power, authority and legal right to acquire, own and sell the
Collateral.



     (b) Due Qualification. The Seller is duly qualified to do business
and is in good standing as a limited liability company, and has obtained all
necessary licenses and approvals, in all jurisdictions in which the ownership
or lease of property or the conduct of its business requires such
qualification, licenses or approvals.



     (c) Power and Authority; Due Authorization; Execution and Delivery.
The Seller (i) has all necessary power, authority and legal right to (a)
execute and deliver this Agreement and the other Transaction Documents to which
it is a party, (b) carry out the terms of the Transaction Documents to which it
is a party, (c) sell and assign an ownership interest in the Collateral, and
(d) receive Advances and Swingline Advances and sell the Collateral on the
terms and conditions provided herein and (ii) has duly authorized by all
necessary company action the execution, delivery and performance of this
Agreement and the other Transaction Documents to which it is a party and the
sale and assignment of an ownership interest in the Collateral on the terms and
conditions herein provided. This Agreement and each other Transaction Document
to which the Seller is a party have been duly executed and delivered by the
Seller.



     (d) Binding Obligation. This Agreement and each other Transaction
Document to which the Seller is a party constitutes a legal, valid and binding
obligation of the Seller enforceable against the Seller in accordance with its respective
terms, except as such enforceability may be limited by Insolvency Laws and by
general principles of equity (whether considered in a suit at law or in
equity).



     (e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party and the fulfillment of the terms hereof and thereof will not (i)
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
the Seller’s operating agreement or any Contractual Obligation of the Seller,
(ii) result in the creation or imposition of any Lien (other than Permitted
Liens) upon any of the Seller’s properties pursuant to the terms of any such
Contractual Obligation, other than this Agreement, or (iii) violate any
Applicable Law.



     (f) No Proceedings. There is no litigation, proceeding or
investigation pending or, to the best knowledge of the Seller, threatened
against the Seller, before any Governmental Authority (i) asserting the
invalidity of this Agreement or any other Transaction Document to



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which the
Seller is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other Transaction Document
to which the Seller is a party or (iii) seeking any determination or ruling
that could reasonably be expected to have Material Adverse Effect.




     (g) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any Governmental
Authority (if any) required for the due execution, delivery and performance by
the Seller of this Agreement and any other Transaction Document to which the
Seller is a party have been obtained.



     (h) Bulk Sales. The execution, delivery and performance of this
Agreement and the transactions contemplated hereby do not require compliance
with any “bulk sales” act or similar law by Seller.



     (i) Solvency. The Seller is not the subject of any Insolvency
Proceedings or Insolvency Event. The transactions under this Agreement and any
other Transaction Document to which the Seller is a party do not and will not
render the Seller not Solvent and the Seller shall deliver to the
Administrative Agent and each Purchaser Agent on the Closing Date a
certification in the form of Exhibit E-1.



     (j) Selection Procedures. No procedures believed by the Seller to
be adverse to the interests of the Purchaser were utilized by the Seller in
identifying and/or selecting the Assets in the Collateral. In addition, each
Asset shall have been underwritten in accordance with and satisfy the standards
of any Credit and Collection Policy that has been established by the Seller or
the Originator and is then in effect.



     (k) Taxes. The Seller has filed or caused to be filed all tax
returns that are required to be filed by it. The Seller has paid or made
adequate provisions for the payment of all Taxes and all assessments made
against it or any of its property (other than any amount of Tax the validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in accordance with GAAP have been provided on
the books of the Seller), and no tax lien has been filed and, to the Seller’s knowledge, no
claim is being asserted, with respect to any such Tax, fee or other charge.



     (l) Exchange Act Compliance; Regulations T, U and X. None of the
transactions contemplated herein (including, without limitation, the use of the
proceeds from the sale of the Collateral) will violate or result in a violation
of Section 7 of the Securities Exchange Act, or any regulations issued
pursuant thereto, including, without limitation, Regulations T, U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. The
Seller does not own or intend to carry or purchase, and no proceeds from the
Advances or the Swingline Advances will be used to carry or purchase, any
“margin stock” within the meaning of Regulation U or to extend “purpose credit”
within the meaning of Regulation U.



     (m) Security Interest.




          (i) This Agreement creates a valid and continuing security interest
(as defined in the applicable UCC) in the Collateral in favor of the
Administrative Agent, on behalf of the Secured Parties, which security
interest is prior to all other Liens (except for



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Permitted Liens), and is
enforceable as such against creditors of and purchasers from the Seller;




          (ii) the Asset, along with the related Asset Files, constitute (A)
in the case of a Loan, a “general intangible,” an “instrument,” an
“account,” or “chattel paper,” and (B) in the case of a Lease, an
“account”, “chattel paper” or a “general intangible,” in each case within
the meaning of the applicable UCC;




          (iii) the Seller owns and has good and marketable title to the
Collateral free and clear of any Lien (other than Permitted Liens), claim
or encumbrance of any Person;




          (iv) the Seller has received all consents and approvals required by
the terms of any Asset to the sale and granting of a security interest in
the Assets hereunder to the Administrative Agent, on behalf of the
Secured Parties;




          (v) the Seller has caused the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions
under Applicable Law in order to perfect the security interest in the
Collateral granted to the Administrative Agent, on behalf of the Secured
Parties, under this Agreement;




          (vi) other than the security interest granted to the Administrative
Agent, on behalf of the Secured Parties, pursuant to this Agreement, the
Seller has not pledged, assigned, sold, granted a security interest in or
otherwise conveyed any of the Collateral. The Seller has not authorized
the filing of and is not aware of any financing statements against the
Seller that include a description of collateral covering the Collateral
other than any financing statement (A) relating to the security interest
granted to the Seller under the Sale Agreement, or (B) that has been
terminated. The Seller is not aware of the filing of any judgment or tax
lien filings against the Seller;




          (vii) all original executed copies of each underlying promissory
note or copies of each Loan Register, as applicable, or underlying Lease
Contract that constitute or evidence each Loan or Lease, as applicable,
has been, or subject to the delivery requirements contained herein, will
be delivered to the Collateral Custodian;




          (viii) the Seller has received a written acknowledgment from the
Collateral Custodian that the Collateral Custodian or its bailee is
holding the underlying promissory notes (if any), the copies of the Loan
Registers and the underlying Lease Contracts that constitute or evidence
the Assets solely on behalf of and for the benefit of the Secured Parties
provided, however, notwithstanding the foregoing, with
respect to any Asset to be funded with the proceeds of a Swingline
Advance, the Seller shall have received a written acknowledgment from the
Collateral Custodian (A) that the Collateral Custodian has received a
faxed copy of the applicable underlying promissory note or Loan Register,
as applicable, or underlying Lease Contract and (B) within two Business
Days after such Funding Date, that the Collateral Custodian or its bailee
is holding the applicable underlying promissory note or Loan Register, as
applicable, or underlying Lease Contract that constitute or evidence the
Assets included in the Collateral solely on behalf of, and for the
benefit of, the Secured Parties;



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          (ix) none of the underlying promissory notes or Loan Registers, as
applicable, nor the underlying Lease Contracts that constitute or
evidence the Assets has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the
Administrative Agent, on behalf of the Secured Parties; and




          (x) With respect to any Lease that constitutes “tangible chattel
paper”, if any, the Seller (or the Servicer on its behalf) has in its
possession the original copies of such tangible chattel paper that
constitutes or evidences such Lease, and the Seller has caused (and will
cause the Originator to cause), on or prior to the initial funding
hereunder, the filing of financing statements described in clause (3)(j)
of the definition of “Eligible Asset”, each of which will contain a
statement that: “A purchase of, or security interest in, any collateral
described in this financing statement will violate the rights of the
Administrative Agent.” The Leases to the extent they are evidenced by
“tangible chattel paper” do not have any marks or notations indicating
that they have been pledged, assigned or otherwise conveyed to any Person
other than the Seller or the Administrative Agent.



     (n) Reports Accurate. All Monthly Reports (if prepared by the
Seller, or to the extent that information contained therein is supplied by the
Seller), information, exhibits, financial statements, documents, books, records
or reports furnished or to be furnished by the Seller to the Administrative
Agent, each Purchaser Agent or any Purchaser in connection with this Agreement
are true, complete and correct.



     (o) Location of Offices. The Seller’s location (within the meaning
of Article 9 of the UCC) is Delaware. The office where the Seller keeps
all the Records is at the address of the Seller referred to in Section
13.2 hereof (or at such other locations as to which the notice and other
requirements specified in Section 5.2(g) shall have
been satisfied). The Seller’s Federal Employee Identification Number is
20-0878666. The Seller has not changed its name, whether by amendment of its
certificate of formation, by reorganization or otherwise, and has not changed
its location within the four months preceding the Closing Date.



     (p) Lock-Boxes. The names and addresses of all the Lock-Box Banks,
together with the account numbers of the Lock-Box Accounts of the Seller at
such Lock-Box Banks and the names, addresses and account numbers of all
accounts to which Collections of the Collateral outstanding before the Initial
Advance hereunder have been sent, are specified in Schedule II (which
shall be deemed to be amended in respect of terminating or adding any Lock-Box
Account or Lock-Box Bank upon satisfaction of the notice and other requirements
specified in Section 5.2(k)). The Seller has not granted any Person
other than the Administrative Agent and Collateral Custodian an interest in any
Lock-Box Account at a future time or upon the occurrence of a future event.



     (q) Tradenames. The Seller has no trade names, fictitious names,
assumed names or “doing business as” names or other names under which it has
done or is doing business.



     (r) Sale Agreement. The Sale Agreement is the only agreement
pursuant to which the Seller purchases Collateral.



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     (s) Value Given. The Seller shall have given reasonably equivalent
value to the Originator in consideration for the transfer to the Seller of the
Collateral under the Sale Agreement, no such transfer shall have been made for
or on account of an antecedent debt owed by the Originator to the Seller, and
no such transfer is or may be voidable or subject to avoidance under any
section of the Bankruptcy Code.



     (t) Accounting. The Seller accounts for the transfers to it from
the Originator of interests in Collateral under the Sale Agreement as
financings of such Collateral for tax and consolidated accounting purposes
(with a notation that it is treating the transfers as a sale for legal and all
other purposes on its books, records and financial statements, in each case
consistent with GAAP and with the requirements set forth herein).



     (u) Special Purpose Entity. The Seller has not and shall not:




          (i) engage in any business or activity other than the purchase and
receipt of Collateral and related assets from the Originator under the
Sale Agreement, the sale of Collateral under the Transaction Documents,
and such other activities as are incidental thereto;




          (ii) acquire or own any material assets other than (a) the
Collateral and related assets from the Originator under the Sale
Agreement and (b) incidental property as may be necessary for the
operation of the Seller;




          (iii) merge into or consolidate with any Person or dissolve,
terminate or liquidate in whole or in part, transfer or otherwise dispose
of all or substantially all of its assets or change its legal structure,
without in each case first obtaining the consent of the Administrative
Agent and each Purchaser Agent;




          (iv) fail to preserve its existence as an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its organization or formation, or without the prior written consent of
the Administrative Agent and each Purchaser Agent, amend, modify,
terminate or fail to comply with the provisions of its operating
agreement, or fail to observe limited liability company formalities;




          (v) own any Subsidiary or make any investment in any Person without
the consent of the Administrative Agent and each Purchaser Agent;




          (vi) except as permitted by this Agreement and the Lock-Box
Agreement, commingle its assets with the assets of any of its Affiliates,
or of any other Person;




          (vii) incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than indebtedness to the
Secured Parties hereunder or in conjunction with a repayment of all
Advances or Swingline Advances owed to the Purchasers or the Swingline
Purchaser, except for trade payables in the ordinary course of its
business; provided, that, such debt is not evidenced by a
note and is paid when due;




          (viii) become insolvent or fail to pay its debts and liabilities
from its assets as the same shall become due;



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          (ix) fail to maintain its records, books of account and bank
accounts separate and apart from those of any other Person;




          (x) enter into any contract or agreement with any Person, except
upon terms and conditions that are commercially reasonable and
intrinsically fair and substantially similar to those that would be
available on an arms-length basis with third parties other than such
Person;




          (xi) seek its dissolution or winding up in whole or in part;




          (xii) fail to correct any known misunderstandings regarding the
separate identity of Seller and the Originator or any principal or
Affiliate thereof or any other Person;




          (xiii) guarantee, become obligated for, or hold itself out to be
responsible for the debt of another Person;




          (xiv) make any loan or advances to any third party, including any
principal or Affiliate, or hold evidence of indebtedness issued by any
other Person (other than cash and investment-grade securities);




          (xv) fail to file its own separate tax return, or file a
consolidated federal income tax return with any other Person, except as
may be required by the Internal Revenue Code and regulations;




          (xvi) fail either to hold itself out to the public as a legal entity
separate and distinct from any other Person or to conduct its business
solely in its own name in order not (a) to mislead others as to the
identity with which such other party is transacting business, or (b) to
suggest that it is responsible for the debts of any third party
(including any of its principals or Affiliates);




          (xvii) fail to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in
light of its contemplated business operations;




          (xviii) file or consent to the filing of any petition, either
voluntary or involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, or make an assignment
for the benefit of creditors;




          (xix) except as may be required by the Internal Revenue Code and
regulations, share any common logo with or hold itself out as or be
considered as a department or division of (a) any of its principals or
affiliates, (b) any Affiliate of a principal or (c) any other Person;




          (xx) permit any transfer (whether in one or more transactions) of
any direct or indirect ownership interest in the Seller to the extent it
has the ability to control the same, unless the Seller delivers to the
Administrative Agent and each Purchaser Agent an



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acceptable
non-consolidation opinion and the Administrative Agent consents to such
transfer;





          (xxi) fail to maintain separate financial statements, showing its
assets and liabilities separate and apart from those of any other Person;




          (xxii) fail to pay its own liabilities and expenses only out of its
own funds;




          (xxiii) fail to pay the salaries of its own employees in light of
its contemplated business operations;




          (xxiv) acquire the obligations or securities of its Affiliates or
stockholders;




          (xxv) fail to allocate fairly and reasonably any overhead expenses
that are shared with an Affiliate, including paying for office space and
services performed by any employee of an Affiliate;




          (xxvi) fail to use separate invoices and checks bearing its own
name;




          (xxvii) pledge its assets for the benefit of any other Person, other
than with respect to payment of the indebtedness to the Secured Parties
hereunder;




          (xxviii) fail at any time to have at least one independent director
(an “Independent Director”) who is not and has not been for at
least five years a director, officer, employee, trade credit or
shareholder (or spouse, parent, sibling or child of the foregoing) of (a)
the Servicer, (b) the Seller, (c) any principal of the Servicer, (d)
any Affiliate of the Servicer, or (e) any Affiliate of any principal
of the Servicer; provided, however, such Independent
Director may be an independent director of another special purpose entity
affiliated with the Servicer or fail to ensure that all limited liability
company action relating to the selection, maintenance or replacement of
the Independent Director are duly authorized by the unanimous vote of the
board of directors (including the Independent Director);




          (xxix) to provide that the unanimous consent of all directors
(including the consent of the Independent Director) is required for the
Seller to (a) dissolve or liquidate, in whole or part, or institute
proceedings to be adjudicated bankrupt or insolvent, (b) institute or
consent to the institution of bankruptcy or insolvency proceedings
against it, (c) file a petition seeking or consent to reorganization or
relief under any applicable federal or state law relating to bankruptcy
or insolvency, (d) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator, custodian or any similar
official for the Seller, (e) make any assignment for the benefit of the
Seller’s creditors, (f) admit in writing its inability to pay its debts
generally as they become due, or (g) take any action in furtherance of
any of the foregoing; and




          (xxx) take or refrain from taking, as applicable, each of the
activities specified in the non-consolidation opinion of Patton Boggs
LLP, dated as of the date hereof, upon which the conclusions expressed
therein are based.



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     (v) Confirmation from the Originator. The Seller has received in
writing from the Originator confirmation that the Originator will not cause the
Seller to file a voluntary petition under the Bankruptcy Code or Insolvency
Laws. Each of the Seller and the Originator is aware that in light of the
circumstances described in the preceding sentence and other relevant facts, the
filing of a voluntary petition under the Bankruptcy Code for the purpose of
making any Collateral or any other assets of the Seller available to satisfy
claims of the creditors of the Originator would not result in making such
assets available to satisfy such creditors under the Bankruptcy Code.



     (w) Investment Company Act. The Seller is not, and is not
controlled by, an “investment company” within the meaning of the 40 Act, as
amended, or is exempt from the provisions of the 40 Act.



     (x) ERISA. The present value of all benefits vested under all
“employee pension benefit plans,” as such term is defined in Section 3
of ERISA, maintained by the Seller, or in which employees of the Seller are
entitled to participate, as from time to time in effect (herein called the
“Pension Plans”), does not exceed the value of the assets of the Pension
Plan allocable to such vested benefits (based on the value of such assets as of
the last annual valuation date). No prohibited transactions, accumulated
funding deficiencies, withdrawals or reportable events have occurred with
respect to any Pension Plans that, in the aggregate, could subject the Seller
to any material tax, penalty or other liability. No notice of intent to
terminate a Pension Plan has been billed, nor has any Pension Plan been
terminated under Section 4041(f) of ERISA, nor has the Pension Benefit
Guaranty Corporation instituted proceedings to terminate, or appoint a trustee
to administer a Pension Plan and no
event has occurred or condition exists that might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to administer, any Pension Plan.



     (y) PUHCA. The Seller is not a “holding company” or a “subsidiary
holding company” of a “holding company” within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or any successor statute.



     (z) Compliance with Law. The Seller has complied in all respects
with all Applicable Laws to which it may be subject, and no item of Collateral
contravenes any Applicable Laws (including, without limitation, all applicable
predatory and abusive lending laws and all laws, rules and regulations relating
to licensing, truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices, and privacy).



     (aa) Credit and Collection Policy. The Seller has complied in all
material respects with the Credit and Collection Policy with respect to all of
the Collateral.



     (bb) Collections. The Seller acknowledges that all Collections
received by it or its Affiliates with respect to the Collateral sold hereunder
are held and shall be held in trust for the benefit of the Secured Parties
until deposited into the Collection Account within two Business Days from
receipt as required herein.



     (cc) Set-Off, etc. Other than Senior Subordinated Loans or Junior
Subordinated Loans, no Collateral has been compromised, adjusted, extended,
satisfied, subordinated,



85









 




rescinded, set-off or modified by the Seller, the
Originator or the Obligor thereof, and no Collateral is subject to compromise,
adjustment, extension, satisfaction, subordination, rescission, set-off,
counterclaim, defense, abatement, suspension, deferment, deduction, reduction,
termination or modification, whether arising out of transactions concerning the
Collateral or otherwise, by the Seller, the Originator or the Obligor with
respect thereto, except for amendments to such Collateral otherwise permitted
under Section 6.4(a) of this Agreement and in accordance with the Credit
and Collection Policy.




     (dd) Full Payment. The Seller has no knowledge of any fact which
should lead it to expect that any Collateral will not be paid in full.



     (ee) Accuracy of Representations and Warranties. Each
representation or warranty by the Seller contained herein or in any certificate
or other document furnished by the Seller pursuant hereto or in connection
herewith is true and correct in all material respects.



     (ff) Representations and Warranties in Sale Agreement. The
representations and warranties made by the Originator to the Seller in the Sale
Agreement are hereby remade by the Seller on each date to which they speak in
the Sale Agreement as if such representations and warranties were set forth
herein. For purposes of this Section 4.1(ff), such representations and
warranties are incorporated herein by reference as if made by the Seller to the
Administrative Agent, each Purchaser Agent and each of the Secured Parties
under the terms hereof mutatis mutandis.



     (gg) Reaffirmation of Representations and Warranties by the Seller.
On each day that any Advance or Swingline Advance is made hereunder, the
Seller shall be deemed to
have certified that all representations and warranties described in
Section 4.1 hereof are correct on and as of such day as though made on
and as of such day.



     (hh) Participation, Acquired and Assigned Loans. The
participations created with respect to the Participation Loans and the sale to
the Originator with respect to the Acquired and Assigned Loans do not violate
any provisions of the underlying Required Asset Documents and such documents do
not contain any express or implied prohibitions on participations or sales of
such Loans.



     (ii) Environmental.




          (i) Each item of the Related Property is in compliance with all
applicable Environmental Laws, and there is no violation of any
Environmental Law with respect to such Related Property and there are no
conditions relating to such Related Property that could give rise to
liability under any applicable Environmental Laws.




          (ii) None of the Related Property contains, or has previously
contained, any Materials of Environmental Concern at, on or under the
Related Property in amounts or concentrations that constitute or
constituted a violation of, or could give rise to liability under,
Environmental Laws.




          (iii) None of the Seller, the Originator nor the Servicer has
received any written or verbal notice of, or inquiry from any
Governmental Authority regarding, any



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violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Related Property, nor does any such Person have knowledge or reason to
believe that any such notice will be received or is being threatened.





          (iv) Materials of Environmental Concern have not been transported or
disposed of from the Related Property, or generated, treated, stored or
disposed of at, on or under any of the Related Property or any other
location, in each case by or on behalf of the Seller, the Originator
and/or the Servicer in violation of, or in a manner that would be
reasonably likely to give rise to liability under, any applicable
Environmental Law.




          (v) No judicial proceeding or governmental or administrative action
is pending or, to the best knowledge of the Seller, the Originator and/or
the Servicer, threatened, under any Environmental Law to which any of the
Seller, the Originator and/or the Servicer is or will be named as a
party, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other administrative or
judicial requirements, outstanding under any Environmental Law with
respect to any of the Seller, the Originator, the Servicer or the Related
Property.




          (vi) There has been no release or threat of release of Materials of
Environmental Concern at or from any of the Related Property, or arising
from or related to the operations (including, without limitation,
disposal) of any of the Seller, the Originator and/or the Servicer in
connection with the Related Property in violation of or in amounts or in
a manner that could give rise to liability under Environmental Laws.



     (jj) USA PATRIOT Act. Neither the Seller nor any Affiliate of the
Seller is (i) a country, territory, organization, person or entity named on an
Office of Foreign Asset Control (OFAC) list, (ii) a Person that resides or has
a place of business in a country or territory named on such lists or which is
designated as a “Non-Cooperative Jurisdiction” by the Financial Action Task
Force on Money Laundering, or whose subscription funds are transferred from or
through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of
the USA PATRIOT Act, i.e., a foreign bank that does not have a physical
presence in any country and that is not affiliated with a bank that has a
physical presence and an acceptable level of regulation and supervision; or
(iv) a person or entity that resides in or is organized under the laws of a
jurisdiction designated by the United States Secretary of the Treasury under
Sections 311 or 312 of the USA PATRIOT Act as warranting special measures due
to money laundering concerns.



     The representations and warranties in Section 4.1(m) shall survive
the termination of this Agreement and such representations and warranties may
not be waived by any party hereto.



     Section 4.2 Representations and Warranties of the Seller Relating to
the Agreement and the Collateral.



     The Seller hereby represents and warrants, as of the Closing Date and as
of each Addition Date:



     (a) Binding Obligation, Valid Transfer and Security Interest.



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          (i) This Agreement and each other Transaction Document to which the
Seller is a party each constitute a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its
respective terms, except as such enforceability may be limited by
Insolvency Laws and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity).




          (ii) This Agreement constitutes a valid transfer to the
Administrative Agent, as agent for the Secured Parties, of all right,
title and interest of the Seller in, to and under all of the Collateral,
free and clear of any Lien of any Person claiming through or under the
Seller or its Affiliates, except for Permitted Liens. If the conveyances
contemplated by this Agreement are determined to be transfer for
security, then this Agreement constitutes a grant of a security interest
in all of the Collateral to the Administrative Agent, as agent for the
Secured Parties, which upon the delivery of the Required Asset Documents
to the Collateral Custodian and the filing of the financing statements
described in Section 4.1(m) and, in the case of Additional Assets
on the applicable Addition Date, shall be a first priority perfected
security interest in all Collateral, subject only to Permitted Liens.
Neither the Seller nor any Person claiming through or under Seller shall
have any claim to or interest in the Collection Account or the Excess
Spread Account and, if this Agreement constitutes the grant of a security
interest in such property, except for the interest of Seller in such
property as a debtor for purposes of the UCC.



     (b) Eligibility of Collateral. As of the Closing Date and each
Addition Date, (i) the Asset List and the information contained in the
Borrowing Notice delivered pursuant to Section 2.2 or Section
2.3, as applicable, is an accurate and complete listing in all material
respects of all Collateral as of the Cut-Off Date and the information contained
therein with respect to the identity of such Collateral and the amounts owing
thereunder is true and correct in all material respects as of the related
Cut-Off Date, (ii) each such Asset that is part of the Borrowing Base is an
Eligible Asset as of such date, (iii) each such item of Collateral is free and
clear of any Lien of any Person (other than Permitted Liens) and in compliance
with all Applicable Laws, (iv) with respect to each such item of Collateral,
all consents, licenses, approvals or authorizations of or registrations or
declarations of any Governmental Authority required to be obtained, effected or
given by the Seller in connection with the transfer of an ownership interest in
such Collateral to the Administrative Agent as agent for the Secured Parties
have been duly obtained, effected or given and are in full force and effect,
and (v) the representations and warranties set forth in Section 4.2(a)
are true and correct with respect to each item of Collateral.



     (c) No Fraud. Each Asset was originated without any fraud or
material misrepresentation by the Originator or, to the best of the Seller’s
knowledge, on the part of the Obligor.



     (d) Loans Secured by Real Property. Less than 45% of the Aggregate
Outstanding Asset Balance of the Collateral as of the Closing Date consists of
Loans principally secured by real property, and less than 45% of the Aggregate
Outstanding Asset Balance of the Collateral as of each Addition Date shall
consist of Loans principally secured by real property.



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     Section 4.3 Representations and Warranties of the Servicer.



     The Servicer represents and warrants as follows:



     (a) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a limited liability company in good
standing under the laws of the State of Delaware, with all requisite company
power and authority to own or lease its properties and to conduct its business
as such business is presently conducted and to enter into and perform its
obligations pursuant to this Agreement.



     (b) Due Qualification. The Servicer is duly qualified to do
business as a limited liability company and is in good standing as a limited
liability company, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property and or the
conduct of its business requires such qualification, licenses or approvals.



     (c) Power and Authority; Due Authorization; Execution and Delivery.
The Servicer (i) has all necessary power, authority and legal right to (a)
execute and deliver this Agreement and the other Transaction Documents to which
it is a party, (b) carry out the terms of the Transaction Documents to which it
is a party, and (ii) has duly authorized by all necessary company action the
execution, delivery and performance of this Agreement and the other Transaction
Documents to which it is a party. This Agreement and each other Transaction
Document to which the Servicer is a party have been duly executed and
delivered by the Servicer.



     (d) Binding Obligation. This Agreement and each other Transaction
Document to which the Servicer is a party constitutes a legal, valid and
binding obligation of the Servicer enforceable against the Servicer in
accordance with its respective terms, except as such enforceability may be
limited by Insolvency Laws and general principles of equity (whether considered
in a suit at law or in equity).



     (e) No Violation. The consummation of the transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party and the fulfillment of the terms hereof and thereof will not (i)
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time or both) a default under,
the Servicer’s operating agreement or any Contractual Obligation of the
Servicer, (ii) result in the creation or imposition of any Lien upon any of the
Servicer’s properties pursuant to the terms of any such Contractual Obligation,
other than this Agreement, or (iii) violate any Applicable Law.



     (f) No Proceedings. There is no litigation, proceedings or
investigations pending or, to the best knowledge of the Servicer, threatened
against the Servicer, before any Governmental Authority (i) asserting the
invalidity of this Agreement or any other Transaction Document to which the
Servicer is a party, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or any other Transaction Document
to which the Servicer is a party or (iii) seeking any determination or ruling
that could reasonably be expected to have Material Adverse Effect.



     (g) All Consents Required. All approvals, authorizations,
consents, orders, licenses or other actions of any Person or of any
Governmental Authority (if any) required for the due



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execution, delivery and
performance by the Servicer of this Agreement and any other Transaction
Document to which the Servicer is a party have been obtained.




     (h) Reports Accurate. All Servicer Certificates and other written
and electronic information, exhibits, financial statements, documents, books,
records or reports furnished by the Servicer to the Administrative Agent, each
Purchaser Agent or any Purchaser in connection with this Agreement are
accurate, true and correct.



     (i) Credit and Collection Policy. The Servicer has complied in all
material respects with the Credit and Collection Policy with regard to the
origination, underwriting and servicing of the Assets.



     (j) Collections. The Servicer acknowledges that all Collections
received by it or its Affiliates with respect to the Collateral sold hereunder
are held and shall be held in trust for the benefit of the Secured Parties
until deposited into the Collection Account within two Business Days from
receipt as required herein.



     (k) Bulk Sales. The execution, delivery and performance of this
Agreement do not require compliance with any “bulk sales” act or similar law by
the Servicer.



     (l) Solvency. The Servicer is not the subject of any Insolvency
Proceedings or Insolvency Event. The transactions under this Agreement and any
other Transaction Document to which the Servicer is a party do not and will not
render the Servicer not Solvent and the Servicer shall deliver to the
Administrative Agent and each Purchaser Agent on the Closing Date a
certification in the form of Exhibit E-2.



     (m) Taxes. The Servicer has filed or caused to be filed all tax
returns that are required to be filed by it. The Servicer has paid or made
adequate provisions for the payment of all Taxes and all assessments made
against it or any of its property (other than any amount of Tax the validity of
which is currently being contested in good faith by appropriate proceedings and
with respect to which reserves in accordance with GAAP have been provided on
the books of the Servicer), and no tax lien has been filed and, to the
Servicer’s knowledge, no claim is being asserted, with respect to any such Tax,
fee or other charge.



     (n) Exchange Act Compliance; Regulations T, U and X. None of the
transactions contemplated herein (including, without limitation, the use of the
Proceeds from the sale of the Collateral) will violate or result in a violation
of Section 7 of the Securities Exchange Act, or any regulations issued
pursuant thereto, including, without limitation, Regulations T, U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II. The
Servicer does not own or intend to carry or purchase, and no proceeds from the
Advances or Swingline Advances will be used to carry or purchase, any “margin
stock” within the meaning of Regulation U or to extend “purpose credit” within
the meaning of Regulation U.



     (o) Security Interest. The Servicer will take all steps necessary
to ensure that the Seller has granted a security interest (as defined in the
UCC) to the Administrative Agent, as agent for the Secured Parties, in the
Collateral, which is enforceable in accordance with Applicable Law upon
execution and delivery of this Agreement. Upon the filing of UCC-1 financing
statements naming the Administrative Agent as secured party and the Seller as
debtor,



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the Administrative Agent, as agent for the Secured Parties, shall have
a first priority perfected security interest in the Collateral (except for any
Permitted Liens). All filings (including, without limitation, such UCC
filings) as are necessary for the perfection of the Secured Parties’ security
interest in the Collateral have been (or prior to the date of the applicable
Advance or Swingline Advance will be) made.




     (p) ERISA. The present value of all benefits vested under all
“employee pension benefit plans,” as such term is defined in Section 3
of ERISA, maintained by the Servicer, or in which employees of the Servicer are
entitled to participate, as from time to time in effect (herein called the
“Pension Plans”), does not exceed the value of the assets of the Pension Plan
allocable to such vested benefits (based on the value of such assets as of the
last annual valuation date). No prohibited transactions, accumulated funding
deficiencies, withdrawals or reportable events have occurred with respect to
any Pension Plans that, in the aggregate, could subject the Servicer to any
material tax, penalty or other liability. No notice of intent to terminate a
Pension Plan has been billed, nor has any Pension Plan been terminated under
Section 4041(f) of ERISA, nor has the Pension Benefit Guaranty
Corporation instituted proceedings to terminate, or appoint a trustee to
administer, a Pension Plan and no event has occurred or condition exists that
might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan.



     (q) Investment Company Act. The Servicer is not, and is not
controlled by, an “investment company” within the meaning of the 40 Act, as
amended, or is exempt from the provisions of the 40 Act.



     (r) USA PATRIOT Act. Neither the Servicer nor any Affiliate of the
Servicer is (i) a country, territory, organization, person or entity named on
an OFAC list, (ii) a Person that resides or has a place of business in a
country or territory named on such lists or which is designated as a
“Non-Cooperative Jurisdiction” by the Financial Action Task Force on Money
Laundering, or whose subscription funds are transferred from or through such a
jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA PATRIOT Act,
i.e., a foreign bank that does not have a physical presence in any country and
that is not affiliated with a bank that has a physical presence and an
acceptable level of regulation and supervision; or (iv) a person or entity that
resides in or is organized under the laws of a jurisdiction designated by the
United States Secretary of the Treasury under Sections 311 or 312 of the USA
PATRIOT Act as warranting special measures due to money laundering concerns.



     Section 4.4 Representations and Warranties of the Backup Servicer.



     The Backup Servicer in its individual capacity and as Backup Servicer
represents and warrants as follows:



     (a) Organization and Corporate Power. It is a duly organized and
validly existing national banking association in good standing under the laws
of the United States. It has full corporate power, authority and legal right
to execute, deliver and perform its obligations as Backup Servicer under this
Agreement.



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     (b) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for herein have
been duly authorized by all necessary association action on its part, either in
its individual capacity or as Backup Servicer, as the case may be.



     (c) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated hereby and the fulfillment of the
terms hereof will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Backup Servicer is a
party or by which it or any of its property is bound.



     (d) No Violation. The execution and delivery of this Agreement,
the performance of the transactions contemplated hereby and the fulfillment of
the terms hereof will not conflict with or violate, in any material respect,
any Applicable Law.



     (e) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or Governmental Authority
applicable to the Backup Servicer, required in connection with the execution
and delivery of this Agreement, the performance by the Backup Servicer of the
transactions contemplated hereby and the fulfillment by the Backup Servicer of
the terms hereof have been obtained.



     (f) Validity, Etc. This Agreement constitutes the legal, valid and
binding obligation of the Backup Servicer, enforceable against the Backup
Servicer in accordance with its terms, except as such enforceability may be
limited by applicable Insolvency Laws or general principles of equity (whether
considered in a suit at law or in equity).



     Section 4.5 Representations and Warranties of the Collateral
Custodian.



     The Collateral Custodian in its individual capacity and as Collateral
Custodian represents and warrants as follows:



     (a) Organization and Corporate Power. It is a duly organized and
validly existing national banking association in good standing under the laws
of the United States. It has full corporate power, authority and legal right
to execute, deliver and perform its obligations as Collateral Custodian under
this Agreement.



     (b) Due Authorization. The execution and delivery of this
Agreement and the consummation of the transactions provided for herein have
been duly authorized by all necessary association action on its part, either in
its individual capacity or as Collateral Custodian, as the case may be.



     (c) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated hereby and the fulfillment of the
terms hereof will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a default under any indenture, contract, agreement,
mortgage, deed of trust, or other instrument to which the Collateral Custodian
is a party or by which it or any of its property is bound.



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     (d) No Violation. The execution and delivery of this Agreement,
the performance of the Transactions contemplated hereby and the fulfillment of
the terms hereof will not conflict with or violate, in any material respect,
any Applicable Law.



     (e) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or Governmental Authority
applicable to the Collateral Custodian, required in connection with the
execution and delivery of this Agreement, the performance by the Collateral
Custodian of the transactions contemplated hereby and the fulfillment by the
Collateral Custodian of the terms hereof have been obtained.



     (f) Validity, Etc. The Agreement constitutes the legal, valid and
binding obligation of the Collateral Custodian, enforceable against the
Collateral Custodian in accordance with its terms, except as such
enforceability may be limited by applicable Insolvency Laws and general
principles of equity (whether considered in a suit at law or in equity).



     Section 4.6 Breach of Certain Representations and Warranties.



     If on any day an Asset is (or becomes) a Warranty Asset, no later than two
Business Days following the earlier of knowledge by the Seller of such Asset
becoming a Warranty Asset or receipt by the Seller from the Administrative
Agent or the Servicer of written notice thereof, the Seller shall either: (a)
make a deposit to the Collection Account (for allocation pursuant to
Section 2.9 or Section 2.10, as applicable) in immediately
available funds in an amount equal to the sum of (i) the amount which, if
deposited to the Collection Account on such date, would cause the Availability
as of such date (after giving effect to such Warranty Asset) to be greater than
or equal to zero, (ii) any outstanding Servicer Advances thereon, (iii) any
accrued and unpaid interest, (iv) all Hedge Breakage Costs owed to the relevant
Hedge Counterparty for any termination of one or more Hedge Transactions, in
whole or in part, as required by the terms of any Hedging Agreement and (v) in
the case of a Loan, any costs and damages incurred in connection with any
violation by such Loan of any predatory- or abusive-lending law; or (b) subject
to the satisfaction of the conditions in Section 2.18, substitute for
such Warranty Asset a Substitute Asset. In either of the foregoing instances,
the Seller may (in its discretion) accept retransfer of each such Warranty
Asset and any Related Security and the Borrowing Base shall be reduced by the
Outstanding Asset Balance of each such Warranty Asset and, if applicable,
increased by the Outstanding Asset Balance of each Substitute Asset. Upon
confirmation of the deposit of such Retransfer Price into the Collection
Account or the delivery by the Seller of a Substitute Asset for each Warranty
Asset (the “Retransfer Date”), such Warranty Asset shall not be included
in the Borrowing Base (and, if and when the Seller elects to accept the
retransfer of such Warranty Asset, the Collateral) and, as applicable, the
Substitute Asset shall be included in the Collateral. Upon the Retransfer Date
of each Warranty Asset, the Administrative Agent, as agent for the Secured
Parties, shall (if and when the Seller elects to accept the retransfer of such
Warranty Asset) automatically and without further action be deemed to transfer,
assign and set-over to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Administrative Agent, as
agent for the Secured Parties in, to and under such Warranty Asset and all
future monies due or to become due with respect thereto, the Related Security,
all Proceeds of such Warranty Asset, Recoveries and Insurance Proceeds relating
thereto, all rights to security for any such Warranty Asset, and all Proceeds
and products of the foregoing. The Administrative Agent, as agent for the
Secured Parties, shall (if and when the Seller elects to



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accept the retransfer
of such Warranty Asset), at the sole expense of the Servicer, execute such
documents and instruments of transfer as may be prepared by the Servicer on
behalf of the Seller and take other such actions as shall reasonably be
requested by the Seller to effect the transfer of such Warranty Asset pursuant
to this Section 4.6.




ARTICLE V




GENERAL COVENANTS




     Section 5.1 Affirmative Covenants of the Seller.



     From the date hereof until the Collection Date:



     (a) Compliance with Laws. The Seller will comply in all material
respects with all Applicable Laws, including those with respect to the
Collateral or any part thereof.



     (b) Preservation of Company Existence. The Seller will preserve
and maintain its company existence, rights, franchises and privileges in the
jurisdiction of its formation, and qualify and remain qualified in good
standing as a limited liability company in each jurisdiction where the failure
to preserve and maintain such existence, rights, franchises,
privileges and qualification has had, or could reasonably be expected to
have, a Material Adverse Effect.



     (c) Performance and Compliance with Collateral. The Seller will,
at its expense, timely and fully perform and comply (or cause the Originator to
perform and comply pursuant to the Sale Agreement) with all provisions,
covenants and other promises required to be observed by it under the Collateral
and all other agreements related to such Collateral.



     (d) Keeping of Records and Books of Account. The Seller will
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing the Collateral in
the event of the destruction of the originals thereof), and keep and maintain
all documents, books, records and other information reasonably necessary or
advisable for the collection of all or any portion of the Collateral.



     (e) Originator’s Collateral. With respect to the Collateral
acquired by the Seller, the Seller will (i) acquire such Collateral pursuant to
and in accordance with the terms of the Sale Agreement, (ii) (at the Servicer’s
expense) take all action necessary to perfect, protect and more fully evidence
the Seller’s ownership of such Collateral free and clear of any Lien other than
the Lien created hereunder and Permitted Liens, including, without limitation,
(a) filing and maintaining (at the Servicer’s expense), effective financing
statements against the Originator in all necessary or appropriate filing
offices, and filing continuation statements, amendments or assignments with
respect thereto in such filing offices, and (b) executing or causing to be
executed such other instruments or notices as may be necessary or appropriate,
(iii) permit the Administrative Agent, each Purchaser Agent or their respective
agents or representatives to visit the offices of the Seller during normal
office hours and upon reasonable notice examine and make copies of all
documents, books, records and other information concerning the Collateral and
discuss matters related thereto with any of the officers or employees of the
Seller having knowledge of such matters, and (iv) take all additional action
that the Administrative Agent or



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any Purchaser Agent may reasonably request to
perfect, protect and more fully evidence the respective interests of the
parties to this Agreement in the Collateral.




     (f) Delivery of Collections. The Seller will pay to the Servicer
promptly (but in no event later than two Business Days after receipt) all
Collections received by Seller in respect of the Collateral and cause the same
to be promptly deposited into the Collection Account by the Servicer in
accordance with Section 5.4(l).



     (g) Separate Limited Liability Company Existence. The Seller shall
be in compliance with the Special Purpose Entity requirements set forth in
Section 4.1(u).



     (h) Credit and Collection Policy. The Seller will (a) comply in
all material respects with the Credit and Collection Policy in regard to the
Collateral, and (b) furnish to the Administrative Agent and each Purchaser
Agent, prior to its effective date, prompt notice of any material changes in
the Credit and Collection Policy. The Seller will not agree to or otherwise
permit to occur any material change in the Credit and Collection Policy, which
change would impair the collectibility of any of the Collateral or otherwise
adversely affect the interests or remedies of the Administrative Agent, each
Purchaser Agent or the Secured Parties under this
Agreement or any other Transaction Document, without the prior consent of
the Administrative Agent and each Purchaser Agent (which consent shall not be
unreasonably withheld).



     (i) Termination Events. The Seller will provide the Administrative
Agent and each Purchaser Agent with immediate written notice of the occurrence
of each Termination Event and each Unmatured Termination Event of which the
Seller has knowledge or has received notice. In addition, no later than two
Business Days following the Seller’s knowledge or notice of the occurrence of
any Termination Event or Unmatured Termination Event, the Seller will provide
to the Administrative Agent and each Purchaser Agent a written statement of the
chief financial officer or chief accounting officer of Seller setting forth the
details of such event and the action that the Seller proposes to take with
respect thereto.



     (j) Taxes. The Seller will file and pay any and all Taxes required
to meet the obligations of the Transaction Documents.



     (k) Use of Proceeds. The Seller will use the proceeds of the
Advances or Swingline Advances only to acquire Collateral or to make
distributions to its members in accordance with the terms hereof.



     (l) Obligor Notification Forms. The Seller shall furnish the
Administrative Agent with an appropriate power of attorney to send (at the
Administrative Agent’s discretion after the occurrence of a Termination Event
or an Unmatured Termination Event) Obligor notification forms to give notice to
the Obligors of the Secured Parties’ interest in the Collateral and the
obligation to make payments as directed by the Administrative Agent.



     (m) Adverse Claims. The Seller will not create, or participate in
the creation of, or permit to exist, any Liens in relation to each Lock-Box
Account other than as disclosed to the Administrative Agent and each Purchaser
Agent.



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     (n) Seller’s Collateral. With respect to each item of Collateral
acquired by the Secured Parties, the Seller will (i) take all action necessary
to perfect, protect and more fully evidence the Secured Parties’ ownership of
such Collateral, including, without limitation, (a) filing and maintaining (at
the Servicer’s expense), effective financing statements against the Seller in
all necessary or appropriate filing offices, and filing continuation
statements, amendments or assignments with respect thereto in such filing
offices, and (b) executing or causing to be executed such other instruments or
notices as may be necessary or appropriate and (ii) take all additional action
that the Administrative Agent may reasonably request to perfect, protect and
more fully evidence the respective interests of the parties to this Agreement
in such Collateral.



     (o) Notices. The Seller will furnish to the Administrative Agent
and each Purchaser Agent:




          (i) Income Tax Liability. Within ten Business Days after the
receipt of revenue agent reports or other written proposals,
determinations or assessments of the Internal Revenue Service or any
other taxing authority which propose, determine or otherwise set forth
positive adjustments to the Tax liability of any Affiliated group (within
the meaning of Section 1504(a)(l) of the Internal Revenue Code of
1986 (as amended from time to time)) which equal or exceed $1,000,000 in
the aggregate, telephonic, telex or telecopy notice (confirmed in writing
within five Business Days) specifying the nature of the items giving rise
to such adjustments and the amounts thereof;




          (ii) Auditors’ Management Letters. Promptly after the
receipt thereof, any auditors’ management letters are received by the
Seller or by its accountants;




          (iii) Representations. Forthwith upon receiving knowledge of
same, the Seller shall notify the Administrative Agent and each Purchaser
Agent if any representation or warranty set forth in Section 4.1
was incorrect at the time it was given or deemed to have been given and
at the same time deliver to the Administrative Agent and each Purchaser
Agent a written notice setting forth in reasonable detail the nature of
such facts and circumstances. In particular, but without limiting the
foregoing, the Seller shall notify the Administrative Agent and each
Purchaser Agent in the manner set forth in the preceding sentence before
any Funding Date of any facts or circumstances within the knowledge of
the Seller which would render any of the said representations and
warranties untrue at the date when such representations and warranties
were made or deemed to have been made;




          (iv) ERISA. Promptly after receiving notice of any
“reportable event” (as defined in Title IV of ERISA) with respect to the
Seller (or any Affiliate thereof), a copy of such notice;




          (v) Proceedings. As soon as possible and in any event within
three Business Days after any executive officer of the Seller receives
notice or obtains knowledge thereof, of any settlement of, material
judgment (including a material judgment with respect to the liability
phase of a bifurcated trial) in or commencement of any material



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labor
controversy, material litigation, material action, material suit or
material proceeding before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Collateral, the Transaction Documents, the Secured
Parties’ interest in the Collateral, or the Seller, the Servicer or the
Originator or any of their Affiliates; provided, however,
notwithstanding the foregoing, any settlement, judgment, labor
controversy, litigation, action, suit or proceeding affecting the
Collateral, the Transaction Documents, the Secured Parties’ interest in
the Collateral, or the Seller, the Servicer or the Originator or any of
their Affiliates in excess of $2,500,000 or more shall be deemed to be
material for purposes of this Section 5.1(o); and





          (vi) Notice of Material Events. Promptly upon becoming aware
thereof, notice of any other event or circumstances that, in the
reasonable judgment of the Seller, is likely to have a Material Adverse
Effect.



     (p) On or prior to the SLP Closing Date, the Seller and the Servicer shall
instruct US Bank National Association to cause all Collections on the MPAs
purchased from the SLP Financing Originator to be removed and deposited on a
daily basis into a Lock-Box Account in the Administrative Agent’s control. On
or prior to the related Funding Date with respect to any
MPA financed under this Agreement after the Closing Date, the Seller and
the Servicer shall instruct each of the Obligors on such MPAs to cause all
subsequent Collections on such MPAs to be deposited directly to a Lock-Box
Account in the Administrative Agent’s control. Without the Administrative
Agent’s prior written consent, neither the Servicer nor the Seller shall change
the directions and instructions with respect to Collections on the MPAs
described in this Section 5.1(p)



     (q) Other. The Seller will furnish to the Administrative Agent and
each Purchaser Agent promptly, from time to time, such other information,
documents, records or reports respecting the Collateral or the condition or
operations, financial or otherwise, of Seller or Originator as the
Administrative Agent and each Purchaser Agent may from time to time reasonably
request in order to protect the interests of the Administrative Agent, each
Purchaser Agent or the Secured Parties under or as contemplated by this
Agreement.



     Section 5.2 Negative Covenants of the Seller.



     From the date hereof until the Collection Date:



     (a) Other Business. Seller will not (i) engage in any business
other than the transactions contemplated by the Transaction Documents, (ii)
incur any Indebtedness, obligation, liability or contingent obligation of any
kind other than pursuant to this Agreement or under any Hedging Agreement
required by Section 5.3(a), or (iii) form any Subsidiary or make any
Investments in any other Person.



     (b) Collateral Not to be Evidenced by Instruments. The Seller will
take no action to cause any Collateral that is not, as of the Closing Date or
the related Addition Date, as the case may be, evidenced by an Instrument, to
be so evidenced except in connection with the enforcement or collection of such
Collateral.



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     (c) Security Interests. Except as otherwise permitted herein and
in respect of any Optional Sale and Permitted Securitization, the Seller will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Collateral, whether now
existing or hereafter transferred hereunder, or any interest therein, and the
Seller will not sell, pledge, assign or suffer to exist any Lien on its
interest, if any, hereunder. The Seller will promptly notify the
Administrative Agent and each Purchaser Agent of the existence of any Lien on
any Collateral and the Seller shall defend the right, title and interest of the
Administrative Agent as agent for the Secured Parties in, to and under the
Collateral against all claims of third parties; provided,
however, that nothing in this Section 5.2(c) shall prevent or be
deemed to prohibit the Seller from suffering to exist Permitted Liens upon any
of the Collateral.



     (d) Mergers, Acquisitions, Sales, etc. The Seller will not be a
party to any merger or consolidation, or purchase or otherwise acquire any of
the assets or any stock of any class of, or any partnership or joint venture
interest in, any other Person, or sell, transfer, convey or lease any of its
assets, or sell or assign with or without recourse any Collateral or any
interest therein (other than pursuant hereto or to the Sale Agreement).



     (e) Deposits to Special Accounts. Except as otherwise provided in
the Lock-Box Agreement, the Seller will not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account cash or
cash proceeds other than Collections in respect of the Collateral.



     (f) Restricted Payments. The Seller shall not make any Restricted
Junior Payment, except that, so long as no Termination Event or Unmatured
Termination Event has occurred and is continuing or would result therefrom, the
Seller may declare and make distributions to its members on their membership
interests.



     (g) Change of Name or Location of Loan Files. The Seller shall not
(x) change its name, move the location of its principal place of business and
chief executive office, change the offices where it keeps the records from the
location referred to in Section 13.2, or change the jurisdiction of its
formation, or (y) move, or consent to the Collateral Custodian or Servicer
moving, the Required Asset Documents and the Asset Files from the location
thereof on the Closing Date, unless the Seller has given at least thirty (30)
days’ written notice to the Administrative Agent and has taken all actions
required under the UCC of each relevant jurisdiction in order to continue the
first priority perfected security interest of the Administrative Agent, as
agent for the Secured Parties, in the Collateral.



     (h) Accounting of Purchases. Other than for tax and consolidated
accounting purposes, the Seller will not account for or treat (whether in
financial statements or otherwise) the transactions contemplated hereby in any
manner other than as a sale of the Collateral by the Seller to the Secured
Parties. Other than for tax and consolidated accounting purposes, the Seller
will not account for or treat (whether in financial statements or otherwise)
the transactions contemplated by the Sale Agreement in any manner other than as
a sale of the Collateral by the Originator to the Seller.



     (i) ERISA Matters. The Seller will not (a) engage or permit any
ERISA Affiliate to engage in any prohibited transaction for which an exemption
is not available or has not



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previously been obtained from the United States
Department of Labor, (b) permit to exist any accumulated funding deficiency, as
defined in Section 302(a) of ERISA and Section 412(a) of the
Code, or funding deficiency with respect to any Benefit Plan other than a
Multiemployer Plan, (c) fail to make any payments to a Multiemployer Plan that
the Seller or any ERISA Affiliate may be required to make under the agreement
relating to such Multiemployer Plan or any law pertaining thereto, (d)
terminate any Benefit Plan so as to result in any liability, or (e) permit to
exist any occurrence of any reportable event described in Title IV of ERISA.




     (j) Operating Agreement; Sale Agreement. The Seller will not
amend, modify, waive or terminate any provision of its operating agreement or
the Sale Agreement without the prior written consent of the Administrative
Agent and each Purchaser Agent.



     (k) Changes in Payment Instructions to Obligors. The Seller will
not add or terminate any bank as a Lock-Box Bank or any Lock-Box Account from
those listed in Schedule II or make any change, or permit Servicer to
make any change, in its instructions to Obligors regarding payments to be made
to Seller or Servicer or payments to be
made to any Lock-Box Bank, unless the Administrative Agent has consented
to such addition, termination or change (which consent shall not be
unreasonably withheld) and has received duly executed copies of Lock-Box
Agreements with each new Lock-Box Bank or with respect to each new Lock-Box
Account, as the case may be.



     (l) Extension or Amendment of Collateral. The Seller will not,
except as otherwise permitted in Section 6.4(a), waive, extend, amend or
otherwise modify, or permit the Servicer to extend, amend or otherwise modify,
the terms of any Collateral (including the Related Security)
provided, however, that no waiver, extension, modification or alteration otherwise
permitted under Section 6.4(a) shall (i) alter the status of any Asset
as a Delinquent Asset or Charged-Off Asset, (ii) in the reasonable judgment of
the Administrative Agent, prevent or delay any Asset from becoming a Delinquent
Asset or Charged-Off Asset, or (iii) limit and/or impair the rights of the
Administrative Agent or the Secured Parties under this Agreement.



     (m) Credit and Collection Policy. The Seller will not materially
amend, modify, restate or replace, in whole or in part, the Credit and
Collection Policy, which amendment, modification, restatement or replacement
would impair the collectibility of any of the Collateral or otherwise adversely
affect the interests or remedies of the Administrative Agent, each Purchaser
Agent or the Secured Parties under this Agreement or any other Transaction
Document, without the prior written consent of the Administrative Agent and
each Purchaser Agent (which consent will not be unreasonably withheld).



     Section 5.3 Covenants of the Seller Relating to the Hedging of
Assets.



     (a) On or prior to each Funding Date, the Seller shall enter into one or
more Hedge Transactions for that Advance or Swingline Advance; provided,
that, each such Hedge Transaction shall:




          (i) be entered into with a Hedge Counterparty and governed by a
Hedging Agreement;



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          (ii) have a schedule of monthly calculation periods the first of
which commences on the Funding Date of that Advance or Swingline Advance
and the last of which ends on the last Scheduled Payment due to occur
under or with respect to the Assets included in the Aggregate Outstanding
Asset Balance to which that Advance or Swingline Advance relates;




          (iii) have an amortizing notional amount such that the Hedge
Notional Amount shall be at least equal to the product of the Hedge
Percentage and the portion of the Hedge Amount represented by such
Advance or Swingline Advances; and




          (iv) provide for two series of monthly payments to be netted against
each other, one such series being payments to be made by the Seller to a
Hedge Counterparty (solely on a net basis) by reference to a fixed rate
for that Advance or Swingline Advance, and the other such series being
payments to be made by such Hedge Counterparty to the Administrative
Agent (solely on a net basis) at a floating rate equal to “USD-LIBOR-BBA”
(as defined in the ISDA Definitions), the net amount of which shall
be paid into the Collection Account (if payable by such Hedge
Counterparty) or from the Collection Account to the extent funds are
available under Section 2.9(a)(i) and Section 2.10(a)(i) of
this Agreement (if payable by the Seller).



     (b) As additional security hereunder, Seller hereby assigns to the
Administrative Agent, as agent for the Secured Parties, all right, title and
interest but none of the obligations of the Seller in each Hedging Agreement,
each Hedge Transaction, and all present and future amounts payable by a Hedge
Counterparty to Seller under or in connection with the respective Hedging
Agreement and Hedge Transaction(s) with that Hedge Counterparty (“Hedge
Collateral”), and grants a security interest to the Administrative Agent,
as agent for the Secured Parties, in the Hedge Collateral. Seller acknowledges
that, as a result of that assignment, Seller may not, without the prior written
consent of the Administrative Agent, exercise any rights under any Hedging
Agreement or Hedge Transaction, except for Seller’s right under any Hedging
Agreement to enter into Hedge Transactions in order to meet the Seller’s
obligations under Section 5.3(a) hereof. Nothing herein shall have the
effect of releasing the Seller from any of its obligations under any Hedging
Agreement or any Hedge Transaction, nor be construed as requiring the consent
of the Administrative Agent or any Secured Party for the performance by Seller
of any such obligations.



     Section 5.4 Affirmative Covenants of the Servicer.



     From the date hereof until the Collection Date:



     (a) Compliance with Law. The Servicer will comply in all material
respects with all Applicable Laws, including those with respect to the
Collateral or any part thereof.



     (b) Preservation of Company Existence. The Servicer will preserve
and maintain its company existence, rights, franchises and privileges in the
jurisdiction of its formation, and qualify and remain qualified in good
standing as a limited liability company in each jurisdiction where the failure
to preserve and maintain such existence, rights, franchises, privileges and
qualification has had, or could reasonably be expected to have, a Material
Adverse Effect.



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     (c) Obligations and Compliance with Collateral. The Servicer will
duly fulfill and comply with all obligations on the part of the Seller to be
fulfilled or complied with under or in connection with each Collateral and will
do nothing to impair the rights of the Administrative Agent, as agent for the
Secured Parties, or of the Secured Parties in, to and under the Collateral.



     (d) Keeping of Records and Books of Account.




          (i) The Servicer will maintain and implement administrative and
operating procedures (including without limitation, an ability to
recreate records evidencing Collateral in the event of the destruction of
the originals thereof), and keep and maintain all documents, books,
records and other information reasonably necessary or advisable for the
collection of all Collateral and the identification of the Collateral.




          (ii) The Servicer shall permit the Administrative Agent, each
Purchaser Agent or their respective agents or representatives, to visit
the offices of the Servicer during normal office hours and upon
reasonable notice and examine and make copies of all documents, books,
records and other information concerning the Collateral and discuss
matters related thereto with any of the officers or employees of the
Servicer having knowledge of such matters.




          (iii) The Servicer will on or prior to the date hereof, mark its
master data processing records and other books and records relating to
the Collateral with a legend, acceptable to the Administrative Agent and
each Purchaser Agent, describing the sale of the Collateral (A) from the
Originator to the Seller, and (B) from the Seller to the Purchaser.



     (e) Preservation of Security Interest. The Servicer (at its own
expense) will execute and file such financing and continuation statements and
any other documents that may be required by any law or regulation of any
Governmental Authority to preserve and protect fully the security interest of
the Administrative Agent as agent for the Secured Parties in, to and under the
Collateral.



     (f) Credit and Collection Policy. The Servicer will (i) comply in
all material respects with the Credit and Collection Policy in regard to the
Collateral, and (ii) furnish to the Administrative Agent and each Purchaser
Agent, prior to its effective date, prompt notice of any proposed material
change in the Credit and Collection Policy. Without the prior written consent
of the Administrative Agent and each Purchaser Agent (which consent will not be
unreasonably withheld), the Servicer will not agree to or otherwise permit to
occur any material change in the Credit and Collection Policy, which change
would impair the collectibility of any of the Collateral or otherwise adversely
affect the interests or remedies of the Administrative Agent, each Purchaser
Agent or the Secured Parties under this Agreement or any other Transaction
Document.



     (g) Termination Events. The Servicer will provide the
Administrative Agent and each Purchaser Agent with immediate written notice of
the occurrence of each Termination Event and each Unmatured Termination Event
of which the Servicer has knowledge or has received notice. In addition, no
later than two Business Days following the Servicer’s



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knowledge or notice of
the occurrence of any Termination Event or Unmatured Termination Event, the
Servicer will provide to the Administrative Agent and each Purchaser Agent a
written statement of the chief financial officer or chief accounting officer of
the Servicer setting forth the details of such event and the action that the
Servicer proposes to take with respect thereto.




     (h) Taxes. The Servicer will file and pay any and all Taxes
required to meet the obligations of the Seller and the Servicer under the
Transaction Documents.



     (i) Other. The Servicer will promptly furnish to the
Administrative Agent and each Purchaser Agent such other information,
documents, records or reports respecting the Collateral or the condition or
operations, financial or otherwise, of the Seller or the Servicer as the
Administrative Agent and each Purchaser Agent may from time to time reasonably
request in
order to protect the interests of the Administrative Agent, each Purchaser
Agent or Secured Parties under or as contemplated by this Agreement.



     (j) Proceedings. As soon as possible and in any event within three
Business Days after any executive officer of the Servicer receives notice or
obtains knowledge thereof, of any settlement of, material judgment (including a
material judgment with respect to the liability phase of a bifurcated trial) in
or commencement of any material labor controversy material litigation, material
action, material suit or material proceeding before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Collateral, the Transaction Documents, the Secured
Parties’ interest in the Collateral, or the Seller, the Servicer or the
Originator or any of their Affiliates; provided, however,
notwithstanding the foregoing, any settlement, judgment, labor controversy,
litigation, action, suit or proceeding affecting the Collateral, the
Transaction Documents, the Secured Parties’ interest in the Collateral, or the
Seller, the Servicer or the Originator or any of their Affiliates in excess of
$2,500,000 or more shall be deemed to be material for purposes of this
Section 5.4(j).



     (k) Deposit of Collections. The Servicer shall promptly (but in no
event later than two Business Days after receipt) deposit into the Collection
Account any and all Collections received by the Seller, the Servicer or any of
their Affiliates.



     (l) Servicing of Participation, Acquired and Assigned Loans. With
respect to Participation Loans, Acquired Loans and Assigned Loans, the Servicer
shall: (i) segregate all Loan Files with respect to such Loans; (ii) keep
separate records with respect to such Loans; and (iii) identify each such Type
of Loan on the Servicing Reports required hereunder with respect to such Loans.



     (m) Change-in-Control. Upon the occurrence of a Change-in-Control
(including any merger or consolidation of the Originator or transfer of
substantially all of its assets and its business), the Servicer shall provide
the Administrative Agent, each Purchaser Agent and the Hedge Counterparties
with notice of such Change-in-Control within thirty (30) days after completion
of the same.



     (n) Loan Register.




          (i) The Servicer shall maintain with respect to each Noteless Loan a
register (each, a “Loan Register”) in which it will record (v) the
amount of such Loan, (w) the



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amount of any principal or interest due and
payable or to become due and payable from the Obligor thereunder, (x) the
amount of any sum in respect of such Loan received from the Obligor and
each Purchaser’s share thereof, (y) the date of origination of such Loan
and (z) the maturity date of such Loan. The entries made in each Loan
Register maintained pursuant to this Section 5.04(n) shall be
prima facie evidence of the existence and amounts of the obligations
therein recorded; provided, however, that the failure of
the Servicer to maintain any such Loan Register or any error therein
shall not in any manner affect the obligations of the Obligor to repay
the related Loans in accordance with their terms or any Purchaser’s
interest therein.





          (ii) At any time a Noteless Loan is included as part of the
Collateral pursuant to this Agreement, the Servicer shall deliver to the
Collateral Custodian a copy of the related Loan Register, together with a
certificate of a Responsible Officer of the Servicer certifying to the
accuracy of such Loan Register as of the date such Loan is included as
part of the Collateral.



     Section 5.5 Negative Covenants of the Servicer.



     From the date hereof until the Collection Date.



     (a) Deposits to Special Accounts. Except as otherwise provided in
the Lock-Box Agreement, the Servicer will not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to any Lock-Box Account cash or
cash proceeds other than Collections in respect of the Collateral.



     (b) Mergers, Acquisition, Sales, etc. The Servicer will not
consolidate with or merge into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person, unless the
Servicer is the surviving entity and unless:




          (i) the Servicer has delivered to the Administrative Agent and each
Purchaser Agent an Officer’s Certificate and an Opinion of Counsel each
stating that any consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 5.5 and that all
conditions precedent herein provided for relating to such transaction
have been complied with and, in the case of the Opinion of Counsel, that
such supplemental agreement is legal, valid and binding with respect to
the Servicer and such other matters as the Administrative Agent may
reasonably request;




          (ii) the Servicer shall have delivered notice of such consolidation,
merger, conveyance or transfer to the Administrative Agent and each
Purchaser Agent;




          (iii) after giving effect thereto, no Termination Event or Servicer
Default or event that with notice or lapse of time would constitute
either a Termination Event or a Servicer Default shall have occurred; and




          (iv) the Administrative Agent and each Purchaser Agent have
consented in writing to such consolidation, merger, conveyance or
transfer.



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     (c) Change of Name or Location of Loan Files. The Servicer shall
not (x) change its name, move the location of its principal place of business
and chief executive office, change the offices where it keeps records
concerning the Collateral from the location referred to in Section 13.2,
or change the jurisdiction of its formation, or (y) move, or consent to the
Collateral Custodian moving, the Required Asset Documents and Asset Files from
the location thereof on the Closing Date, unless the Servicer has given at
least thirty (30) days’ written notice to the Administrative Agent and has
taken all actions required under the UCC of each relevant jurisdiction in order
to continue the first priority perfected security interest of the
Administrative Agent as agent for the Secured Parties in the Collateral.



     (d) Change in Payment Instructions to Obligors. The Servicer will
not add or terminate any bank as a Lock-Box Bank or any Lock-Box Account from
those listed in Schedule II or make any change in its instructions to
Obligors regarding payments to be made to the Seller or the Servicer or
payments to be made to any Lock-Box Bank, unless the Administrative Agent has
consented to such addition, termination or change (which consent shall not be
unreasonably withheld) and has received duly executed copies of Lock-Box
Agreements with each new Lock-Box Bank or with respect to each new Lock-Box
Account, as the case may be.



     (e) Extension or Amendment of Assets. The Servicer will not,
except as otherwise permitted in Section 6.4(a), extend, amend or
otherwise modify the terms of any Assets; provided,
however, that
no waiver, extension, modification or alteration otherwise permitted under
Section 6.4(a) shall (i) alter the status of any Asset as a Delinquent
Asset or Charged-Off Asset, (ii) in the reasonable judgment of the
Administrative Agent, prevent or delay any Asset from becoming a Delinquent
Asset or Charged-Off Asset, or (iii) limit and/or impair the rights of the
Administrative Agent or the Secured Parties under this Agreement.



     Section 5.6 Affirmative Covenants of the Backup Servicer.



     From the date hereof until the Collection Date:



     (a) Compliance with Law. The Backup Servicer will comply in all
material respects with all Applicable Laws.



     (b) Preservation of Existence. The Backup Servicer will preserve
and maintain its existence, rights, franchises and privileges in the
jurisdiction of its formation, and qualify and remain qualified in good
standing in each jurisdiction where the failure to preserve and maintain such
existence, rights, franchises, privileges and qualification has had, or could
reasonably be expected to have, a Material Adverse Effect.



     Section 5.7 Negative Covenants of the Backup Servicer.



     From the date hereof until the Collection Date:



     (a) No Changes in Backup Servicer Fee. The Backup Servicer will
not make any changes to the Backup Servicer Fee set forth in the Backup
Servicer Fee Letter without the prior written approval of the Administrative
Agent and each Purchaser Agent.



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     Section 5.8 Affirmative Covenants of the Collateral Custodian.



     From the date hereof until the Collection Date:



     (a) Compliance with Law. The Collateral Custodian will comply in
all material respects with all Applicable Laws.



     (b) Preservation of Existence. The Collateral Custodian will
preserve and maintain its existence, rights, franchises and privileges in the
jurisdiction of its formation and
qualify and remain qualified in good standing in each jurisdiction where
failure to preserve and maintain such existence, rights, franchises, privileges
and qualification has had, or could reasonably be expected to have, a Material
Adverse Effect.



     (c) Location of Required Asset Documents. The Required Asset
Documents shall remain at all times in the possession of the Collateral
Custodian at the address set forth herein unless notice of a different address
is given in accordance with the terms hereof or unless the Administrative Agent
agrees to allow certain Required Asset Documents to be released to the Servicer
on a temporary basis in accordance with the terms hereof.



     Section 5.9 Negative Covenants of the Collateral Custodian.



     From the date hereof until the Collection Date:



     (a) Required Asset Documents. The Collateral Custodian will not
dispose of any documents constituting the Required Asset Documents in any
manner that is inconsistent with the performance of its obligations as the
Collateral Custodian pursuant to this Agreement and will not dispose of any
Collateral except as contemplated by this Agreement.



     (b) No Changes in Collateral Custodian Fee. The Collateral
Custodian will not make any changes to the Collateral Custodian Fee set forth
in the Collateral Custodian Fee Letter without the prior written approval of
the Administrative Agent and each Purchaser Agent.



ARTICLE VI




ADMINISTRATION AND SERVICING OF CONTRACTS




     Section 6.1 Designation of the Servicer.



     (a) Initial Servicer. The servicing, administering and collection
of the Collateral shall be conducted by the Person designated as the Servicer
hereunder from time to time in accordance with this Section 6.1. Until
the Administrative Agent gives to the Originator a Servicer Termination Notice,
the Originator is hereby designated as, and hereby agrees to perform the duties
and responsibilities of, the Servicer pursuant to the terms hereof.



     (b) Successor Servicer. Upon the Servicer’s receipt of a Servicer
Termination Notice (with a copy to the Backup Servicer) from the Administrative
Agent pursuant to the terms of Section 6.15, the Servicer agrees that it
will terminate its activities as Servicer hereunder in a manner that the
Administrative Agent reasonably believes will facilitate the transition of the



105









 




performance of such activities to a successor Servicer, and the successor
Servicer shall assume each and all of the Servicer’s obligations to service and
administer the Collateral, on the terms and subject to the conditions herein
set forth, and the Servicer shall use its best reasonable efforts to assist the
successor Servicer in assuming such obligations.




     (c) Subcontracts. The Servicer may, with the prior consent of the
Administrative Agent, subcontract with any other Person for servicing,
administering or collecting the Collateral; provided, however,
that the Servicer shall remain
liable for the performance of the duties and obligations of the Servicer
pursuant to the terms hereof and that any such subcontract may be terminated
upon the occurrence of a Servicer Default.



     (d) Servicing Programs. In the event that the Servicer uses any
software program in servicing the Collateral that it licenses from a third
party, the Servicer shall use its best reasonable efforts to obtain, either
before the Closing Date or as soon as possible thereafter, whatever licenses or
approvals are necessary to allow the Administrative Agent or the Servicer to
use such program.



     Section 6.2 Duties of the Servicer.



     (a) Appointment. The Seller hereby appoints the Servicer as its
agent, as from time to time designated pursuant to Section 6.1, to
service the Collateral and enforce its respective rights in and under such
Collateral. The Servicer hereby accepts such appointment and agrees to perform
the duties and obligations with respect thereto as set forth herein. The
Servicer and the Seller hereby acknowledge that the Administrative Agent, each
Purchaser Agent and the Secured Parties are third party beneficiaries of the
obligations undertaken by the Servicer hereunder.



     (b) Duties. The Servicer shall take or cause to be taken all such
actions as may be necessary or advisable to collect on the Collateral from time
to time, all in accordance with Applicable Laws, with reasonable care and
diligence, and in accordance with the Credit and Collection Policy. Without
limiting the foregoing, the duties of the Servicer shall include the following:




          (i) preparing and submitting of claims to, and post-billing liaison
with, Obligors on each Asset;




          (ii) maintaining all necessary servicing records with respect to the
Collateral and providing such reports to the Administrative Agent and
each Purchaser Agent in respect of the servicing of the Collateral
(including information relating to its performance under this Agreement)
as may be required hereunder or as the Administrative Agent and each
Purchaser Agent may reasonably request;




          (iii) maintaining and implementing administrative and operating
procedures (including, without limitation, an ability to recreate
servicing records evidencing the Collateral in the event of the
destruction of the originals thereof) and keeping and maintaining all
documents, books, records and other information reasonably necessary or
advisable for the collection of the Collateral;



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          (iv) promptly delivering to the Administrative Agent, each Purchaser
Agent or the Collateral Custodian, from time to time, such information
and servicing records (including information relating to its performance
under this Agreement) as the Administrative Agent, each Purchaser Agent
or the Collateral Custodian may from time to time reasonably request;




          (v) identifying each Asset clearly and unambiguously in its
servicing records to reflect that such Asset is owned by the Seller and
that the Seller is selling an undivided ownership interest therein to the
Secured Parties pursuant to this Agreement;




          (vi) notifying the Administrative Agent and each Purchaser Agent of
any material action, suit, proceeding, dispute, offset, deduction,
defense or counterclaim (1) that is or is threatened to be asserted by an
Obligor with respect to any Asset (or portion thereof) of which it has
knowledge or has received notice; or (2) that is reasonably expected to
have a Material Adverse Effect;




          (vii) notifying the Administrative Agent and each Purchaser Agent of
any proposed change in the Credit and Collection Policy that could have
an adverse effect on the collectibility of the Collateral, on the Seller
or on the interests of the Administrative Agent, each Purchaser Agent or
any Secured Party;




          (viii) using its reasonable best efforts to maintain the perfected
security interest of the Administrative Agent, as agent for the Secured
Parties, in the Collateral;




          (ix) maintaining in the same manner as the Collateral Custodian
holds the Required Asset Documents, the Asset File (other than Required
Asset Documents) with respect to each Asset included as part of the
Collateral; and




          (x) the Servicer shall make payments pursuant to the terms of the
Monthly Report in accordance with Section 2.9 and Section
2.10.



     (c) Notwithstanding anything to the contrary contained herein, the
exercise by the Administrative Agent, each Purchaser Agent and the Secured
Parties of their rights hereunder shall not release the Servicer, the
Originator or the Seller from any of their duties or responsibilities with
respect to the Collateral. The Secured Parties, the Administrative Agent, each
Purchaser Agent and the Collateral Custodian (except in the role of Backup
Servicer) shall not have any obligation or liability with respect to any
Collateral, nor shall any of them be obligated to perform any of the
obligations of the Servicer hereunder.



     (d) Any payment by an Obligor in respect of any Indebtedness owed by it to
the Originator or the Seller shall, except as otherwise specified by such
Obligor or otherwise required by contract or law and unless otherwise
instructed by the Administrative Agent, be applied as a Collection of an item
of Collateral of such Obligor (starting with the oldest such Collateral) to the
extent of any amounts then due and payable thereunder before being applied to
any other receivable or other obligation of such Obligor.



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     Section 6.3 Authorization of the Servicer.



     (a) Each of the Seller, the Administrative Agent, each Purchaser Agent,
each Purchaser and each Hedge Counterparty hereby authorizes the Servicer
(including any successor thereto) to take any and all reasonable steps in its
name and on its behalf necessary or desirable and not inconsistent with the
sale of the Collateral to the Purchasers and each Hedge Counterparty, in the
determination of the Servicer, to collect all amounts due under any and all
Collateral, including, without limitation, endorsing any of their names on
checks and other instruments representing Collections, executing and delivering any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Collateral
and, after the delinquency of any Collateral and to the extent permitted under
and in compliance with Applicable Law, to commence proceedings with respect to
enforcing payment thereof, to the same extent as the Originator could have done
if it had continued to own such Collateral. The Originator, the Seller and the
Administrative Agent on behalf of the Secured Parties and each Hedge
Counterparty shall furnish the Servicer (and any successors thereto) with any
powers of attorney and other documents necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder, and
shall cooperate with the Servicer to the fullest extent in order to ensure the
collectibility of the Collateral. In no event shall the Servicer be entitled
to make the Secured Parties, any Hedge Counterparty, the Collateral Custodian,
the Administrative Agent or the Purchaser Agents a party to any litigation
without such party’s express prior written consent, or to make the Seller a
party to any litigation (other than any routine foreclosure or similar
collection procedure) without the Administrative Agent’s and each Purchaser
Agent’s consent.



     (b) After a Termination Event has occurred and is continuing, at the
direction the Administrative Agent, the Servicer shall take such action as the
Administrative Agent may deem necessary or advisable to enforce collection of
the Collateral; provided, however, that the Administrative Agent
may, at any time that a Termination Event or Unmatured Termination Event has
occurred and is continuing, notify any Obligor with respect to any Collateral
of the assignment of such Collateral to the Administrative Agent and direct
that payments of all amounts due or to become due be made directly to the
Administrative Agent and each Purchaser Agent or any servicer, collection agent
or lock-box or other account designated by the Administrative Agent and each
Purchaser Agent and, upon such notification and at the expense of the Seller,
the Administrative Agent may enforce collection of any such Collateral, and
adjust, settle or compromise the amount or payment thereof.



     Section 6.4 Collection of Payments.



     (a) Collection Efforts, Modification of Collateral. The Servicer
will use its reasonable best efforts to collect all payments called for under
the terms and provisions of the Assets included in the Collateral as and when
the same become due in accordance with the Credit and Collection Policy, and
will follow those collection procedures that it follows with respect to all
comparable Collateral that it services for itself or others. The Servicer may
not waive, modify or otherwise vary any provision of an item of Collateral in a
manner that, in its reasonable judgment, would impair the collectibility of the
Collateral or in any manner contrary to the Credit and Collection Policy.



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     (b) Prepaid Asset. Prior to a Termination Event, upon any Asset
becoming a Prepaid Asset, the Servicer shall either (x) provide a Substitute
Asset in accordance with Section 2.18 or (y) deposit to the Collection
Account (in addition to all amounts received from the related Obligor upon the
prepayment of such Asset) an amount equal to the excess, if any, of the sum of
(a) the Outstanding Asset Balance on the date of such payment, (b) any
outstanding Servicer Advances thereon, (c) any accrued and unpaid interest, and
(d) all Hedge Breakage Costs owing to the relevant Hedge Counterparty for any
termination of one or more Hedge Transactions, in whole or in part, as required
by the terms of any Hedging Agreement as the result of any such Asset becoming a Prepaid Asset,
over the amount received from the related Obligor upon such prepayment
(such excess, the “Prepayment Amount”), in each case, only to the extent
necessary to cause the Availability as of such date (after giving effect to
such substitution or deposit, as applicable) to be greater than or equal to
zero. After a Termination Event has occurred, upon any Asset becoming a
Prepaid Asset, the Servicer shall deposit to the Collection Account all amounts
received from the related Obligor upon the prepayment of such Asset plus the
Prepayment Amount, if any.



     (c) Acceleration. If required by the Credit and Collection Policy,
the Servicer shall accelerate the maturity of all or any Scheduled Payments or
Lease Payments, as applicable and other amounts due under any Asset in which a
default under the terms thereof has occurred and is continuing (after the lapse
of any applicable grace period) promptly after such Asset becomes a Charged-Off
Asset.



     (d) Taxes and other Amounts. To the extent provided for in any
Asset, the Servicer will use its reasonable best efforts to collect all
payments with respect to amounts due for taxes, assessments and insurance
premiums relating to such Asset and remit such amounts to the appropriate
Governmental Authority or insurer on or prior to the date such payments are
due.



     (e) Payments to Lock-Box Account. Subject to Section 5.1(p), on or
before the applicable Cut-Off Date, the Servicer shall have instructed all
Obligors to make all payments in respect of the Collateral to the Lock-Box or
directly to the Lock-Box Account.



     (f) Establishment of the Collection Account. The Servicer shall
cause to be established, on or before the Closing Date, with the Collateral
Custodian, and maintained in the name of the Administrative Agent as agent for
the Secured Parties, with an office or branch of a depository institution or
trust company a segregated corporate trust account entitled Collection Account
for Wachovia Capital Markets, LLC, as Administrative Agent for the Secured
Parties (the “Collection Account”), and the Servicer shall further
maintain a subaccount within the Collection Account for the purpose of
segregating, within two Business Days of the receipt of any Collections,
Principal Collections (the “Principal Collections Account”), over which
the Collateral Custodian as agent for the Secured Parties shall have control
and from which neither the Originator, Servicer nor the Seller shall have any
right of withdrawal except in accordance with Section 2.9(b);
provided, however, that at all times such depository institution
or trust company shall be acceptable to the Administrative Agent and a
depository institution organized under the laws of the United States of America
or any one of the States thereof or the District of Columbia (or any domestic
branch of a foreign bank), (i) (a) that has either (1) a long-term unsecured
debt rating of “A” or better by S&P and “A2” or better by Moody’s or (2) a
short-term unsecured debt rating or certificate of deposit rating of “A-1” or
better by S&P or “P-1” or better



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by Moody’s, (b) the parent corporation of
which has either (1) a long-term unsecured debt rating of “A” or better by S&P
and “A2” or better by Moody’s or (2) a short-term unsecured debt rating or
certificate of 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 deposits are insured by the Federal Deposit Insurance Corporation (any
such depository institution or trust company, a “Qualified
Institution”).




     (g) Establishment of the Excess Spread Account. The Seller or the
Servicer on its behalf shall establish, on or before the Closing Date, with the
Collateral Custodian, and maintained in the name of the Seller and assigned to
the Administrative Agent, with a Qualified Institution an account into which
Collections shall be deposited for the purpose of funding the Required Equity
Shortfall (the “Excess Spread Account”). If the Seller fails to
maintain the Required Equity Contribution at any time when it is obligated to
do so, Collections shall be deposited into the Excess Spread Account pursuant
to Sections 2.9(a)(vii) and 2.10(a)(viii), as applicable, until
such time as the Required Equity Contribution on any day equals or exceeds the
amount prescribed in the definition of “Required Equity Contribution.” To the
extent that, on any Payment Date, there are funds on deposit in the Excess
Spread Account in excess of those required to fund the Required Equity
Shortfall, an amount equal to such excess shall be deposited, on such Payment
Date, to the Collection Account for application in accordance with Section
2.9 and Section 2.10, as applicable.



     (h) Adjustments. If (i) the Servicer makes a deposit into the
Collection Account in respect of a Collection of an item of Collateral and such
Collection was received by the Servicer in the form of a check that is not
honored for any reason or (ii) the Servicer makes a mistake with respect to the
amount of any Collection and deposits an amount that is less than or more than
the actual amount of such Collection, the Servicer shall appropriately adjust
the amount subsequently deposited into the Collection Account to reflect such
dishonored check or mistake. Any Scheduled Payment or Lease Payment in respect
of which a dishonored check is received shall be deemed not to have been paid.



     Section 6.5 Servicer Advances.



     For each Collection Period, if the Servicer determines that any Scheduled
Payment or Lease Payment (or portion thereof) that was due and payable pursuant
to an Asset during such Collection Period was not received prior to the last
day of such Collection Period, the Servicer may (in its sole and absolute
discretion) make an advance in an amount up to the amount of such delinquent
Scheduled Payment or Lease Payment (or portion thereof). The Servicer will
deposit any Servicer Advances into the Collection Account on or prior to 9:00
a.m. (Charlotte, North Carolina time) on the Business Day prior to the related
Payment Date, in immediately available funds. Notwithstanding anything to the
contrary contained herein, no Successor Servicer shall have any responsibility
to make Servicer Advances.



     Section 6.6 Realization Upon Charged-Off Assets.



     The Servicer will use reasonable efforts to repossess or otherwise
comparably convert the ownership of any Related Property relating to a
Charged-Off Asset and will act as sales and processing agent for Related
Property that it repossesses. The Servicer will follow such other



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practices
and procedures as it deems necessary or advisable and as are customary and
usual in its servicing of contracts and other actions by the Servicer in order
to realize upon such Related Property, which practices and procedures may
include reasonable efforts to enforce all obligations of Obligors and
repossessing and selling such Related Property at public or private sale in
circumstances other than those described in the preceding sentence. Without
limiting the generality of the foregoing, unless the Administrative Agent has
specifically given instruction to the contrary, the Servicer may sell any such
Related Property to the Servicer or its Affiliates for a purchase price equal to the then fair market value thereof, any such sale
to be evidenced by a certificate of a Responsible Officer of the Servicer
delivered to the Administrative Agent setting forth the Asset, the Related
Property, the sale price of the Related Property and certifying that such sale
price is the fair market value of such Related Property. In any case in which
any such Related Property has suffered damage, the Servicer will not expend
funds in connection with any repair or toward the repossession of such Related
Property unless it reasonably determines that such repair and/or repossession
will increase the Recoveries by an amount greater than the amount of such
expenses. The Servicer will remit to the Collection Account the Recoveries
received in connection with the sale or disposition of Related Property
relating to a Charged-Off Asset.




     Section 6.7 Maintenance of Insurance Policies.



     The Servicer will use its reasonable best efforts to ensure that each
Obligor maintains an Insurance Policy with respect to any Related Property
(other than accounts receivable) in an amount at least equal to the Servicer’s
good faith and commercially reasonable estimate of the value of the real
property, inventory, and/or equipment constituting such Related Property and
shall ensure that each such Insurance Policy names the Servicer as loss payee
and as an insured thereunder and all of the Seller’s right, title and interest
therein is fully assigned to the Administrative Agent, as agent for the Secured
Parties. Additionally, the Servicer will require that each Obligor maintain
property damage liability insurance during the term of each Asset in amounts
and against risks customarily insured against by the Obligor on property owned
by it. If an Obligor fails to maintain property damage insurance, the Servicer
may in its discretion purchase and maintain such insurance on behalf of, and at
the expense of, the Obligor. In connection with its activities as Servicer,
the Servicer agrees to present, on behalf of the Administrative Agent, claims
to the insurer under each Insurance Policy and any such liability policy, and
to settle, adjust and compromise such claims, in each case, consistent with the
terms of each Asset. The Servicer’s Insurance Policies with respect to the
Related Property will insure against liability for physical damage relating to
such Related Property in accordance with the requirements of the Credit and
Collection Policy. The Servicer hereby disclaims any and all right, title and
interest in and to any Insurance Policy and Insurance Proceeds with respect to
any Related Property, including any Insurance Policy with respect to which it
is named as loss payee and as an insured, and agrees that it has no equitable,
beneficial or other interest in the Insurance Polices and Insurance Proceeds
other than being named as loss payee and as an insured. The Servicer
acknowledges that with respect to the Insurance Policies and Insurance Proceeds
thereof that it is acting solely in the capacity as agent for the
Administrative Agent, as agent for the Secured Parties.



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     Section 6.8 Servicing Compensation.



     As compensation for its servicing activities hereunder and reimbursement
for its expenses, the Servicer shall be entitled to receive the Servicing Fee
and the Revolving Servicing Fee to the extent of funds available therefor
pursuant to the provisions of Section 2.9(a)(iii) or Section
2.10(a)(iii), as applicable.



     Section 6.9 Payment of Certain Expenses by Servicer.



     The Servicer will be required to pay all expenses incurred by it in
connection with its activities under this Agreement, including fees and
disbursements of independent accountants, Taxes imposed on the Servicer,
expenses incurred in connection with payments and reports pursuant to this
Agreement, and all other fees and expenses not expressly stated under this
Agreement for the account of the Seller, but excluding Liquidation Expenses
incurred as a result of activities contemplated by Section 6.6;
provided, however, for avoidance of doubt, to the extent
Liquidation Expenses relate to a Loan and a Retained Interest such Liquidation
Expenses shall be allocated pro rata. The Servicer will be required to pay all
reasonable fees and expenses owing to any bank or trust company in connection
with the maintenance of the Collection Account, the Excess Spread Account and
the Lock-Box Account. The Servicer shall be required to pay such expenses for
its own account and shall not be entitled to any payment therefor other than
the Servicing Fee and, as applicable, the Revolving Servicing Fee.



     Section 6.10 Reports.



     (a) Borrowing Notice. On each Funding Date, on each reduction of
Advances Outstanding pursuant to Section 2.4(b) and on each reinvestment
of Principal Collections pursuant to Section 2.9(b), the Seller (and the
Servicer on its behalf) will provide a Borrowing Notice, updated as of such
date, to the Administrative Agent and each Purchaser Agent (with a copy to the
Collateral Custodian).



     (b) Monthly Report. On each Reporting Date, the Servicer will
provide to the Seller, the Administrative Agent, each Purchaser Agent, the
Backup Servicer and any Liquidity Bank, a monthly statement including a
Borrowing Base calculated as of the most recent Determination Date (a
“Monthly Report”), with respect to the related Collection Period, signed
by a Responsible Officer of the Servicer and the Seller and substantially in
the form of Exhibit C.



     (c) Servicer’s Certificate. Together with each Monthly Report, the
Servicer shall submit to the Administrative Agent, each Purchaser Agent and any
Liquidity Bank a certificate (a “Servicer’s Certificate”), signed by a
Responsible Officer of the Servicer and substantially in the form of Exhibit
J.



     (d) Financial Statements. The Servicer will submit to the
Administrative Agent, each Purchaser Agent, each Purchaser, the Backup Servicer
and any Liquidity Bank, (i) within forty-five (45) days after the end of each
of its first three fiscal quarters, commencing with the fiscal quarter ending
March 31, 2004, a copy of the quarterly report on Form 10-Q of CapitalSource
Inc. for the most recent fiscal quarter, and (ii) within ninety (90) days after
the end of each fiscal year, commencing with the fiscal year ended December 31,
2003, a copy of the annual report on



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Form 10-K of CapitalSource Inc., in each
case in the form as filed with the Securities and Exchange Commission.




     (e) Tax Returns. Upon demand by the Administrative Agent, each
Purchaser Agent and any Liquidity Bank, copies of all federal, state and local
Tax returns and reports filed by the Seller and Servicer, or in which the Seller or
Servicer was included on a consolidated or combined basis (excluding sales, use
and like taxes).



     Section 6.11 Annual Statement as to Compliance.



     The Servicer will provide to the Administrative Agent and each Purchaser
Agent, within ninety (90) days following the end of each fiscal year of the
Servicer, commencing with the fiscal year ending on December 31, 2004, a fiscal
report signed by a Responsible Officer of the Servicer certifying that (a) a
review of the activities of the Servicer, and the Servicer’s performance
pursuant to this Agreement, for the fiscal period ending on the last day of
such fiscal year has been made under such Person’s supervision and (b) the
Servicer has performed or has caused to be performed in all material respects
all of its obligations under this Agreement throughout such year and no
Servicer Default has occurred and is continuing.



     Section 6.12 Annual Independent Public Accountant’s Servicing
Reports.



     The Servicer will cause a firm of nationally recognized independent public
accountants (who may also render other services to the Servicer) to furnish to
the Administrative Agent, each Purchaser Agent, the Collateral Custodian and
the Backup Servicer, within ninety (90) days following the end of each fiscal
year of the Servicer, commencing with the fiscal year ending on December 31,
2004: (i) a report relating to such fiscal year to the effect that (a) such
firm has reviewed certain documents and records relating to the servicing of
the Collateral, and (b) based on such examination, such firm is of the opinion
that the Monthly Reports for such year were prepared in compliance with this
Agreement, except for such exceptions as it believes to be immaterial and such
other exceptions as will be set forth in such firm’s report and (ii) a report
covering such fiscal year to the effect that such accountants have applied
certain agreed-upon procedures (which procedures shall have been approved by
the Administrative Agent and each Purchaser Agent) to certain documents and
records relating to the Collateral under any Transaction Document, compared the
information contained in the Monthly Reports and the Servicer’s Certificates
delivered during the period covered by such report with such documents and
records and that no matters came to the attention of such accountants that
caused them to believe that such servicing was not conducted in compliance with
this Article VI of this Agreement, except for such exceptions as such
accountants shall believe to be immaterial and such other exception as shall be
set forth in such statement.



     Section 6.13 Limitation on Liability of the Servicer and Others



     Except as provided herein, the Servicer shall not be under any liability
to the Administrative Agent, each Purchaser Agent, the Secured Parties or any
other Person for any action taken or for refraining from the taking of any
action pursuant to this Agreement whether arising from express or implied
duties under this Agreement; provided, however, notwithstanding
anything to the contrary contained herein nothing shall protect the Servicer



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against any liability that would otherwise be imposed by reason of its willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of its willful misconduct hereunder.




     Section 6.14 The Servicer Not to Resign.



     The Servicer shall not resign from the obligations and duties hereby
imposed on it except upon the Servicer’s determination that (i) the performance
of its duties hereunder is or becomes impermissible under Applicable Law and
(ii) there is no reasonable action that the Servicer could take to make the
performance of its duties hereunder permissible under Applicable Law. Any such
determination permitting the resignation of the Servicer shall be evidenced as
to clause (i) above by an Opinion of Counsel to such effect delivered to the
Administrative Agent, each Purchaser Agent and the Backup Servicer. No such
resignation shall become effective until a Successor Servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 6.2.



     Section 6.15 Servicer Defaults.



     If any one of the following events (a “Servicer Default”) shall
occur and be continuing:



     (a) any failure by the Servicer to make any payment, transfer or deposit
(including without limitation with respect to Collections) as required by this
Agreement which continues unremedied for a period of one Business Day;



     (b) any failure by the Servicer to give instructions or notice to the
Administrative Agent and each Purchaser Agent as required by this Agreement, or
to deliver any required Monthly Report or other Required Reports hereunder on
or before the date occurring two Business Days after the date such instruction,
notice or report is required to be made or given, as the case may be, under the
terms of this Agreement;



     (c) any failure on the part of the Servicer duly to observe or perform in
any material respect any other covenants or agreements of the Servicer set
forth in this Agreement or the other Transaction Documents to which the
Servicer is a party and the same continues unremedied for a period of thirty
(30) days after the earlier to occur of (i) the date on which written notice of
such failure requiring the same to be remedied shall have been given to the
Servicer by the Administrative Agent and each Purchaser Agent and (ii) the date
on which the Servicer becomes aware thereof;



     (d) any representation, warranty or certification made by the Servicer in
any Transaction Document or in any certificate delivered pursuant to any
Transaction Document shall prove to have been incorrect when made, which has a
Material Adverse Effect on the Administrative Agent, any Purchaser Agent or the
Secured Parties and which continues to be unremedied for a period of thirty
(30) days after the earlier to occur of (i) the date on which written notice of
such incorrectness requiring the same to be remedied shall have been given to
the Servicer by the Administrative Agent or any Purchaser Agent and (ii) the
date on which the Servicer becomes aware thereof;



     (e) an Insolvency Event shall occur with respect to the Servicer;




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     (f) any material delegation of the Servicer’s duties that is not permitted
by Section 6.1;



     (g) any financial or other information reasonably requested by the
Administrative Agent, any Purchaser Agent or any Purchaser is not provided as
requested within a reasonable amount of time following such request;



     (h) the rendering against the Servicer of one or more final judgments,
decrees or orders for the payment of money in excess of $7,500,000,
individually or in the aggregate, and the continuance of such judgment, decree
or order unsatisfied and in effect for any period of more than sixty (60)
consecutive days without a stay of execution;



     (i) the failure of the Servicer to make any payment due with respect to
any recourse debt or other obligations, which debt or other obligations are in
excess of $7,500,000, individually or in the aggregate, or the occurrence of
any event or condition that would permit acceleration of such recourse debt or
other obligations whether or not waived;



     (j) CapitalSource Inc. fails to maintain GAAP stockholders’ equity equal
to at least $700,000,000 plus 80% of the proceeds of any equity offerings
subsequent to the SLP Closing Date;



     (k) [Reserved];



     (l) the Servicer fails in any material respect to comply with the Credit
and Collection Policy regarding the servicing of the Collateral;



     (m) the Servicer consents or agrees to, or otherwise permits to occur, any
amendment, modification, change, supplement or rescission of or to the Credit
and Collection Policy (after the adoption of same) in whole or in part that
could be reasonably expected to have a Material Adverse Effect upon the
Collateral, the Administrative Agent, any Purchaser Agent or the Secured
Parties, without the prior written consent of the Administrative Agent and each
Purchaser Agent;



     (n) CapitalSource Finance ceases to be the Servicer; or



     (o) the Servicer fails to maintain the Asset Loss Reserve for any
Watchlist Assets;



then notwithstanding anything herein to the contrary, so long as any such
Servicer Default shall not have been remedied within any applicable cure period
prior to the date of the Servicer Termination Notice (defined below), the
Administrative Agent, by written notice to the Servicer (with a copy to the
Backup Servicer) (a “Servicer Termination Notice”), may terminate all of
the rights and obligations of the Servicer as Servicer under this Agreement.



     Section 6.16 Appointment of Successor Servicer.



     (a) On and after the receipt by the Servicer of a Servicer Termination
Notice pursuant to Section 6.15, the Servicer shall continue to perform
all servicing functions under this Agreement until the date specified in the
Servicer Termination Notice or otherwise specified by



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the Administrative Agent in writing or, if no such date is specified in such Servicer Termination Notice
or otherwise specified by the Administrative Agent, until a date mutually
agreed upon by the Servicer and the Administrative Agent. The Administrative
Agent may at the time described in the immediately preceding sentence in its sole discretion, appoint the
Backup Servicer as the Servicer hereunder, and the Backup Servicer shall on
such date assume all obligations of the Servicer hereunder, and all authority
and power of the Servicer under this Agreement shall pass to and be vested in
the Backup Servicer. As compensation therefor, the Backup Servicer shall be
entitled to the Servicing Fee and the Revolving Servicing Fee, together with
other servicing compensation in the form of assumption fees, late payment
charges or otherwise as provided herein; including, without limitation,
Transition Expenses. In the event that the Administrative Agent does not so
appoint the Backup Servicer, there is no Backup Servicer or the Backup Servicer
is unable to assume such obligations on such date, the Administrative Agent
shall as promptly as possible appoint a successor servicer (the “Successor
Servicer”), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Administrative Agent and each
Purchaser Agent. In the event that a Successor Servicer has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Administrative Agent shall petition a court of competent jurisdiction to
appoint any established financial institution, having a net worth of not less
than $50,000,000 and whose regular business includes the servicing of
Collateral, as the Successor Servicer hereunder.




     (b) Upon its appointment, the Backup Servicer (subject to Section
6.16(a)) or the Successor Servicer, as applicable, shall be the successor
in all respects to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer shall be deemed to
refer to the Backup Servicer or the Successor Servicer, as applicable;
provided, however, that the Backup Servicer or Successor
Servicer, as applicable, shall have (i) no liability with respect to any action
performed by the terminated Servicer prior to the date that the Backup Servicer
or Successor Servicer, as applicable, becomes the successor to the Servicer or
any claim of a third party based on any alleged action or inaction of the
terminated Servicer, (ii) no obligation to perform any advancing obligations,
if any, of the Servicer unless it elects to in its sole discretion, (iii) no
obligation to pay any taxes required to be paid by the Servicer
(provided, that the Backup Servicer or Successor Servicer, as
applicable, shall pay any income taxes for which it is liable), (iv) no
obligation to pay any of the fees and expenses of any other party to the
transactions contemplated hereby, and (v) no liability or obligation with
respect to any Servicer indemnification obligations of any prior Servicer,
including the original Servicer. The indemnification obligations of the Backup
Servicer or the Successor Servicer, as applicable, upon becoming a Successor
Servicer, are expressly limited to those arising on account of its failure to
act in good faith and with reasonable care under the circumstances. In
addition, the Backup Servicer or Successor Servicer, as applicable, shall have
no liability relating to the representations and warranties of the Servicer
contained in Article IV. Further, for so long as the Backup Servicer
shall be the Successor Servicer, the provisions of Section 2.15,
Section 2.16(b) and Section 2.16(e) of this Agreement shall not
apply to it in its capacity as Servicer.



     (c) All authority and power granted to the Servicer under this Agreement
shall automatically cease and terminate upon termination of this Agreement and
shall pass to and be vested in the Seller and, without limitation, the Seller
is hereby authorized and empowered to



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execute and deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The Servicer
agrees to cooperate with the Seller in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing of the
Collateral.




     (d) Upon the Backup Servicer receiving notice that it is required to serve
as the Servicer hereunder pursuant to the foregoing provisions of this
Section 6.16, the Backup Servicer will promptly begin the transition to
its role as Servicer. Notwithstanding the foregoing, the Backup Servicer may,
in its discretion, appoint, or petition a court of competent jurisdiction to
appoint, any established servicing institution as the successor to the Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer hereunder. As compensation, any Successor
Servicer (including, without limitation, the Administrative Agent) so appointed
shall be entitled to receive the Servicing Fee and the Revolving Servicing Fee,
together with any other servicing compensation in the form of assumption fees,
late payment charges or otherwise as provided herein that accrued prior
thereto, including, without limitation, Transition Expenses. In the event the
Backup Servicer is required to solicit bids as provided herein, the Backup
Servicer shall solicit, by public announcement, bids from banks and mortgage
servicing institutions meeting the qualifications set forth in Section
6.16(a) above. Such public announcement shall specify that the Successor
Servicer shall be entitled to the full amount of the Servicing Fee and the
Revolving Servicing Fee as servicing compensation, together with the other
servicing compensation in the form of assumption fees, late payment charges or
otherwise that accrued prior thereto. Within thirty (30) days after any such
public announcement, the Backup Servicer shall negotiate and effect the sale,
transfer and assignment of the servicing rights and responsibilities hereunder
to the qualified party submitting the highest qualifying bid. The Backup
Servicer shall deduct from any sum received by the Backup Servicer from the
successor to the Servicer in respect of such sale, transfer and assignment all
costs and expenses of any public announcement and of any sale, transfer and
assignment of the servicing rights and responsibilities hereunder and the
amount of any unreimbursed Servicing Advances. After such deductions, the
remainder of such sum shall be paid by the Backup Servicer to the Servicer at
the time of such sale, transfer and assignment to the Servicer’s successor.
The Backup Servicer and such successor shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. No
appointment of a successor to the Servicer hereunder shall be effective until
written notice of such proposed appointment shall have been provided by the
Backup Servicer to the Administrative Agent and each Purchaser Agent and the
Backup Servicer shall have consented thereto. The Backup Servicer shall not
resign as servicer until a Successor Servicer has been appointed and accepted
such appointment. Notwithstanding anything to the contrary contained herein,
in no event shall Wells Fargo, in any capacity, be liable for any Servicing
Fee, Revolving Servicing Fee or for any differential in the amount of the
Servicing Fee or Revolving Servicing Fee paid hereunder and the amount
necessary to induce any Successor Servicer under this Agreement and the
transactions set forth or provided for by this Agreement.



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ARTICLE VII




THE BACKUP SERVICER




     Section 7.1 Designation of the Backup Servicer.



     (a) Initial Backup Servicer. The backup servicing role with
respect to the Collateral shall be conducted by the Person designated as Backup
Servicer hereunder from time to time in accordance with this Section
7.1. Until the Administrative Agent shall give to Wells Fargo a Backup
Servicer Termination Notice, Wells Fargo is hereby designated as, and hereby
agrees to perform the duties and obligations of, a Backup Servicer pursuant to
the terms hereof.



     (b) Successor Backup Servicer. Upon the Backup Servicer’s receipt
of Backup Servicer Termination Notice from the Administrative Agent of the
designation of a replacement Backup Servicer pursuant to the provisions of
Section 7.5, the Backup Servicer agrees that it will terminate its
activities as Backup Servicer hereunder.



     Section 7.2 Duties of the Backup Servicer.



     (a) Appointment. The Seller and the Administrative Agent, as agent
for the Secured Parties, each hereby appoints Wells Fargo to act as Backup
Servicer, for the benefit of the Administrative Agent, each Purchaser Agent and
the Secured Parties, as from time to time designated pursuant to Section
7.1. The Backup Servicer hereby accepts such appointment and agrees to
perform the duties and obligations with respect thereto set forth herein.



     (b) Duties. On or before the initial Funding Date, and until its
removal pursuant to Section 7.5, the Backup Servicer shall perform, on
behalf of the Administrative Agent and the Secured Parties, the following
duties and obligations:




     (i) On or before the Closing Date, the Backup Servicer shall accept
from the Servicer delivery of the information required to be set forth in
the Monthly Reports (if any) in hard copy and on computer tape;
provided, however, the computer tape is in an MS DOS, PC
readable ASCII format or other format to be agreed upon by the Backup
Servicer and the Servicer on or prior to closing.




     (ii) Not later than 12:00 noon Charlotte, North Carolina time on
each Reporting Date, the Servicer shall deliver to the Backup Servicer
the asset tape, which shall include but not be limited to the following
information: (x) for each Asset, the name and number of the related
Obligor, the collection status, the loan or lease status, the date of
each Scheduled Payment or Lease Payment, as applicable and the
Outstanding Asset Balance, (y) the Borrowing Base and (z) the Aggregate
Outstanding Asset Balance (the “Tape”). The Backup Servicer shall
accept delivery of the Tape.




     (iii) Prior to the related Payment Date, the Backup Servicer shall
review the Monthly Report to ensure that it is complete on its face and
that the following items in such Monthly Report have been accurately
calculated, if applicable, and reported: (A) the Borrowing Base, (B) the Backup Servicing Fee, (C) the Assets
that are current and not past due, (D) the Assets that are 1 — 30 days
past due, (E) the Assets that are 31 — 60



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days past due, (F) the Assets that are 61 — 90 days past due, (G) the Assets that are 90+ days past
due, (H) the Pool Charged-Off Ratio, and (I) the Aggregate Outstanding
Asset Balance. The Backup Servicer by a separate written report shall
notify the Administrative Agent and the Servicer of any disagreements
with the Monthly Report based on such review not later than the Business
Day preceding such Payment Date to such Persons.




     (iv) If the Servicer disagrees with the report provided under
paragraph (iii) above by the Backup Servicer or if the Servicer or any
subservicer has not reconciled such discrepancy, the Backup Servicer
agrees to confer with the Servicer to resolve such disagreement on or
prior to the next succeeding Determination Date and shall settle such
discrepancy with the Servicer if possible, and notify the Administrative
Agent of the resolution thereof. The Servicer hereby agrees to cooperate
at its own expense with the Backup Servicer in reconciling any
discrepancies herein. If within twenty (20) days after the delivery of
the report provided under paragraph (iii) above by the Backup Servicer,
such discrepancy is not resolved, the Backup Servicer shall promptly
notify the Administrative Agent of the continued existence of such
discrepancy. Following receipt of such notice by the Administrative
Agent, the Servicer shall deliver to the Administrative Agent, the
Secured Parties and the Backup Servicer no later than the related Payment
Date a certificate describing the nature and amount of such discrepancies
and the actions the Servicer proposes to take with respect thereto.



     (c) Reliance on Tape. With respect to the duties described in
Section 7.2(b), the Backup Servicer, is entitled to rely conclusively,
and shall be fully protected in so relying, on the contents of each Tape,
including, but not limited to, the completeness and accuracy thereof, provided
by the Servicer.



     Section 7.3 Merger or Consolidation.



     Any Person (i) into which the Backup Servicer may be merged or
consolidated, (ii) that may result from any merger or consolidation to which
the Backup Servicer shall be a party, or (iii) that may succeed to the
properties and assets of the Backup Servicer substantially as a whole, which
Person in any of the foregoing cases executes an agreement of assumption to
perform every obligation of the Backup Servicer hereunder, shall be the
successor to the Backup Servicer under this Agreement without further act on
the part of any of the parties to this Agreement provided such Person is
organized under the laws of the United States of America or any one of the
States thereof or the District of Columbia (or any domestic branch of a foreign
bank), (i) (a) that has either (1) a long-term unsecured debt rating of “A” or
better by S&P and “A2” or better by Moody’s or (2) a short-term unsecured debt
rating or certificate of deposit rating of “A-1” or better by S&P or “P-1” or
better by Moody’s, (b) the parent corporation which has either (1) a long-term
unsecured debt rating of “A” or better by S&P and “A2” or better by Moody’s or
(2) a short-term unsecured debt rating or certificate of 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.



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     Section 7.4 Backup Servicing Compensation.



     As compensation for its back-up servicing activities hereunder, the Backup
Servicer shall be entitled to receive the Backup Servicing Fee from the
Servicer. To the extent that such Backup Servicing Fee is not paid by the
Servicer, the Backup Servicer shall be entitled to receive the unpaid balance
of its Backup Servicing Fee to the extent of funds available therefor pursuant
to Section 2.9(a)(iv) and Section 2.10(a)(iv), as applicable.
The Backup Servicer’s entitlement to receive the Backup Servicing Fee shall
cease (excluding any unpaid outstanding amounts as of that date) on the
earliest to occur of: (i) it becoming the Successor Servicer, (ii) its removal
as Backup Servicer pursuant to Section 7.5, or (iii) the termination of
this Agreement. Upon becoming Successor Servicer pursuant to Section
6.16, the Backup Servicer shall be entitled to the Servicing Fee and the
Revolving Servicing Fee.



     Section 7.5 Backup Servicer Removal.



     The Backup Servicer may be removed, with or without cause, by the
Administrative Agent by notice given in writing to the Backup Servicer (the
“Backup Servicer Termination Notice”). In the event of any such
removal, a replacement Backup Servicer may be appointed by the Administrative
Agent.



     Section 7.6 Limitation on Liability.



     (a) The Backup Servicer undertakes to perform only such duties and
obligations as are specifically set forth in this Agreement, it being expressly
understood by all parties hereto that there are no implied duties or
obligations of the Backup Servicer hereunder. Without limiting the generality
of the foregoing, the Backup Servicer, except as expressly set forth herein,
shall have no obligation to supervise, verify, monitor or administer the
performance of the Servicer. The Backup Servicer may act through its agents,
nominees, attorneys and custodians in performing any of its duties and
obligations under this Agreement, it being understood by the parties hereto
that the Backup Servicer will be responsible for any misconduct or negligence
on the part of such agents, attorneys or custodians acting on the routine and
ordinary day-to-day operations for and on behalf of the Backup Servicer.
Neither the Backup Servicer nor any of its officers, directors, employees or
agents shall be liable, directly or indirectly, for any damages or expenses
arising out of the services performed under this Agreement other than damages
or expenses that result from the gross negligence or willful misconduct of it
or them or the failure to perform materially in accordance with this Agreement.



     (b) The Backup Servicer shall not be liable for any obligation of the
Servicer contained in this Agreement or for any errors of the Servicer
contained in any computer tape, certificate or other data or document delivered
to the Backup Servicer hereunder or on which the Backup Servicer must rely in
order to perform its obligations hereunder, and the Secured Parties, the
Administrative Agent and the Collateral Custodian each agree to look only to
the Servicer to perform such obligations. The Backup Servicer shall have no
responsibility and shall not be in default hereunder or incur any liability for
any failure, error, malfunction or any delay in carrying out any of its duties
under this Agreement if such failure or delay results from the Backup Servicer
acting in accordance with information prepared or supplied by a Person other than the Backup Servicer or the failure of any such other Person to
prepare or provide such



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information. The Backup Servicer shall have no
responsibility, shall not be in default and shall incur no liability for (i)
any act or failure to act of any third party, including the Servicer, (ii) any
inaccuracy or omission in a notice or communication received by the Backup
Servicer from any third party, (iii) the invalidity or unenforceability of any
Collateral under Applicable Law, (iv) the breach or inaccuracy of any
representation or warranty made with respect to any Collateral, or (v) the acts
or omissions of any successor Backup Servicer.




     Section 7.7 The Backup Servicer Not to Resign.



     The Backup Servicer shall not resign (except with prior consent of the
Administrative Agent which consent shall not be unreasonably withheld) from the
obligations and duties hereby imposed on it except upon the Backup Servicer’s
determination that (i) the performance of its duties hereunder is or becomes
impermissible under Applicable Law and (ii) there is no reasonable action that
the Backup Servicer could take to make the performance of its duties hereunder
permissible under Applicable Law. Any such determination permitting the
resignation of the Backup Servicer shall be evidenced as to clause (i) above by
an Opinion of Counsel to such effect delivered to the Administrative Agent and
each Purchaser Agent. No such resignation shall become effective until a
successor Backup Servicer shall have assumed the responsibilities and
obligations of the Backup Servicer hereunder.



ARTICLE VIII




THE COLLATERAL CUSTODIAN




     Section 8.1 Designation of Collateral Custodian.



     (a) Initial Collateral Custodian. The role of collateral custodian
with respect to the Required Asset Documents shall be conducted by the Person
designated as Collateral Custodian hereunder from time to time in accordance
with this Section 8.1. Until the Administrative Agent shall give to
Wells Fargo a Collateral Custodian Termination Notice, Wells Fargo is hereby
designated as, and hereby agrees to perform the duties and obligations of,
Collateral Custodian pursuant to the terms hereof.



     (b) Successor Collateral Custodian. Upon the Collateral
Custodian’s receipt of a Collateral Custodian Termination Notice from the
Administrative Agent of the designation of a successor Collateral Custodian
pursuant to the provisions of Section 8.5, the Collateral Custodian
agrees that it will terminate its activities as Collateral Custodian hereunder.



     Section 8.2 Duties of Collateral Custodian.



     (a) Appointment. The Seller and the Administrative Agent each
hereby appoints Wells Fargo to act as Collateral Custodian, for the benefit of
the Administrative Agent, as agent for the Secured Parties. The Collateral
Custodian hereby accepts such appointment and agrees to perform the duties and
obligation with respect thereto set forth herein.



     (b) Duties. On or before the initial Funding Date, and until its
removal pursuant to Section 8.5, the Collateral Custodian shall perform
on behalf of the Administrative Agent and the Secured Parties, the following
duties and obligations:



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     (i) The Collateral Custodian shall take and retain custody of the
Required Asset Documents delivered by the Seller pursuant to Section
3.2 hereof in accordance with the terms and conditions of this
Agreement, all for the benefit of the Secured Parties and subject to the
Lien thereon in favor of the Administrative Agent as agent for the
Secured Parties. Within five Business Days of its receipt of any
Required Asset Documents, the Collateral Custodian shall review the
related Collateral and Required Asset Documents to confirm that (A) such
Collateral has been properly executed and has no missing or mutilated
pages, (B) any UCC and other filings (as set forth on the Asset
Checklists) have been made, (C) an Insurance Policy exists with respect
to any real or personal property constituting the Related Property, and
(D) confirming the related Outstanding Asset Balance, Asset number and
Obligor name with respect to such Asset is referenced on the related
Asset List and is not a duplicate Asset (collectively, the “Review
Criteria”). In order to facilitate the foregoing review by the
Collateral Custodian, in connection with each delivery of Required Asset
Documents hereunder to the Collateral Custodian, the Servicer shall
provide to the Collateral Custodian an electronic file (in EXCEL or a
comparable format) that contains the related Asset List or that otherwise
contains the Asset identification number and the name of the Obligor with
respect to each related Asset. If, at the conclusion of such review, the
Collateral Custodian shall determine that (i) the Outstanding Asset
Balances of the Collateral it has received Required Asset Documents with
respect to is less than as set forth on the electronic file, the
Collateral Custodian shall immediately notify the Administrative Agent of
such discrepancy, and (ii) any Review Criteria is not satisfied, the
Collateral Custodian shall within one Business Day notify the Servicer of
such determination and provide the Servicer with a list of the
non-complying Assets and the applicable Review Criteria that they fail to
satisfy. The Servicer shall have five Business Days to correct any
non-compliance with a Review Criteria. If after the conclusion of such
time period the Servicer has still not cured any non-compliance by an
Asset with a Review Criteria, the Collateral Custodian shall promptly
notify the Seller and the Administrative Agent of such determination by
providing a written report to such persons identifying, with
particularity, each Asset and each of the applicable Review Criteria that
such Asset fails to satisfy. In addition, if requested in writing by the
Servicer and approved by the Administrative Agent within ten Business
Days of the Collateral Custodian’s delivery of such report, the
Collateral Custodian shall return any Asset which fails to satisfy a
Review Criteria to the Seller. Other than the foregoing, the Collateral
Custodian shall not have any responsibility for reviewing any Required
Asset Documents.




     (ii) In taking and retaining custody of the Required Asset
Documents, the Collateral Custodian shall be deemed to be acting as the
agent of the Administrative Agent and the Secured Parties;
provided, however, that the Collateral Custodian makes no
representations as to the existence, perfection or priority of any Lien
on the Required Asset Documents or the instruments therein; and
provided, further, that, the Collateral Custodian’s duties as
agent shall be limited to those expressly contemplated herein.




     (iii) All Required Asset Document shall be kept in fire resistant
vaults, rooms or cabinets at the locations specified on Schedule
III attached hereto, or at such other office as shall be specified to
the Administrative Agent by the Collateral Custodian in a written notice
delivered at least forty-five (45) days prior to such change. All
Required



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Asset Documents shall be placed together with an appropriate
identifying label and maintained in such a manner so as to permit
retrieval and access. All Required Asset Documents shall be clearly
segregated from any other documents or instruments maintained by the
Collateral Custodian.




     (iv) The Collateral Custodian shall make payments pursuant to the
terms of the Monthly Report in accordance with Section 2.9 and
Section 2.10 (the “Payment Duties”).




     (v) On each Reporting Date, the Collateral Custodian shall provide a
written report to the Administrative Agent and the Servicer (in a form
acceptable to the Administrative Agent) identifying each Asset for which
it holds Required Asset Documents, the non-complying Assets and the
applicable Review Criteria that any non-complying Asset fails to satisfy.




     (vi) In performing its duties, the Collateral Custodian shall use
the same degree of care and attention as it employs with respect to
similar Collateral that it holds as Collateral Custodian.



     Section 8.3 Merger or Consolidation.



     Any Person (i) into which the Collateral Custodian may be merged or
consolidated, (ii) that may result from any merger or consolidation to which
the Collateral Custodian shall be a party, or (iii) that may succeed to the
properties and assets of the Collateral Custodian substantially as a whole,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Collateral Custodian hereunder, shall be the
successor to the Collateral Custodian under this Agreement without further act
of any of the parties to this Agreement.



     Section 8.4 Collateral Custodian Compensation.



     As compensation for its collateral custodian activities hereunder, the
Collateral Custodian shall be entitled to a Collateral Custodian Fee (the
“Collateral Custodian Fee”) from the Servicer. To the extent that such
Collateral Custodian Fee is not paid by the Servicer, the Collateral Custodian
shall be entitled to receive the unpaid balance of its Collateral Custodian Fee
to the extent of funds available therefor pursuant to the provision of
Section 2.9(a)(iv) or Section 2.10(a)(iv), as applicable. The
Collateral Custodian’s entitlement to receive the Collateral Custodian Fee
shall cease on the earlier to occur of: (i) its removal as Collateral
Custodian pursuant to Section 8.5 or (ii) the termination of this
Agreement.



     Section 8.5 Collateral Custodian Removal.



     The Collateral Custodian may be removed, with or without cause, by the
Administrative Agent by notice given in writing to the Collateral Custodian
(the “Collateral Custodian Termination Notice”); provided,
however, notwithstanding its receipt of a Collateral Custodian
Termination Notice, the Collateral Custodian shall continue to act in such
capacity until a successor Collateral Custodian has been appointed, has agreed
to act as Collateral Custodian



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hereunder, and has received all Required Asset
Documents held by the previous Collateral Custodian.




     Section 8.6 Limitation on Liability.




     (1) The Collateral Custodian may conclusively rely on and shall be
fully protected in acting upon any certificate, instrument, opinion,
notice, letter, telegram or other document delivered to it and that in
good faith it reasonably believes to be genuine and that has been signed
by the proper party or parties. The Collateral Custodian may rely
conclusively on and shall be fully protected in acting upon (a) the
written instructions of any designated officer of the Administrative
Agent or (b) the verbal instructions of the Administrative Agent.




     (2) The Collateral Custodian may consult counsel satisfactory to it
and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with the advice
or opinion of such counsel.




     (3) The Collateral Custodian shall not be liable for any error of
judgment, or for any act done or step taken or omitted by it, in good
faith, or for any mistakes of fact or law, or for anything that it may do
or refrain from doing in connection herewith except in the case of its
willful misconduct or grossly negligent performance or omission of its
duties and in the case of the negligent performance of its Payment Duties
and in the case of its negligent performance of its duties in taking and
retaining custody of the Required Asset Documents.




     (4) The Collateral Custodian makes no warranty or representation and
shall have no responsibility (except as expressly set forth in this
Agreement) as to the content, enforceability, completeness, validity,
sufficiency, value, genuineness, ownership or transferability of the
Collateral, and will not be required to and will not make any
representations as to the validity or value (except as expressly set
forth in this Agreement) of any of the Collateral. The Collateral
Custodian shall not be obligated to take any legal action hereunder that
might in its judgment involve any expense or liability unless it has been
furnished with an indemnity reasonably satisfactory to it.




     (5) The Collateral Custodian shall have no duties or
responsibilities except such duties and responsibilities as are
specifically set forth in this Agreement and no covenants or obligations
shall be implied in this Agreement against the Collateral Custodian.




     (6) The Collateral Custodian shall not be required to expend or risk
its own funds in the performance of its duties hereunder.




     (7) It is expressly agreed and acknowledged that the Collateral
Custodian is not guaranteeing performance of or assuming any liability
for the obligations of the other parties hereto or any parties to the
Collateral.



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     Section 8.7 The Collateral Custodian Not to Resign.



     The Collateral Custodian shall not resign from the obligations and duties
hereby imposed on it except upon the Collateral Custodian’s determination that
(i) the performance of its duties hereunder is or becomes impermissible under
Applicable Law and (ii) there is no reasonable action that the Collateral
Custodian could take to make the performance of its duties hereunder
permissible under Applicable Law. Any such determination permitting the
resignation of the Collateral Custodian shall be evidenced as to clause
(i) above by an Opinion of Counsel to such effect delivered to the
Administrative Agent and each Purchaser Agent. No such resignation shall
become effective until a successor Collateral Custodian shall have assumed the
responsibilities and obligations of the Collateral Custodian hereunder.



     Section 8.8 Release of Documents.



     (a) Release for Servicing. From time to time and as appropriate
for the enforcement or servicing any of the Collateral, the Collateral
Custodian is hereby authorized (unless and until such authorization is revoked
by the Administrative Agent), upon written receipt from the Servicer of a
request for release of documents and receipt in the form annexed hereto as
Exhibit L, to release to the Servicer the related Required Asset
Documents or the documents set forth in such request and receipt to the
Servicer. All documents so released to the Servicer shall be held by the
Servicer in trust for the benefit of the Administrative Agent in accordance
with the terms of this Agreement. The Servicer shall return to the Collateral
Custodian the Required Asset Documents or other such documents (i) immediately
upon the request of the Administrative Agent, or (ii) when the Servicer’s need
therefor in connection with such foreclosure or servicing no longer exists,
unless the Asset shall be liquidated, in which case, upon receipt of an
additional request for release of documents and receipt certifying such
liquidation from the Servicer to the Collateral Custodian in the form annexed
hereto as Exhibit H, the Servicer’s request and receipt submitted
pursuant to the first sentence of this subsection shall be released by the
Collateral Custodian to the Servicer.



     (b) Limitation on Release. The foregoing provision respecting
release to the Servicer of the Required Asset Documents and documents by the
Collateral Custodian upon request by the Servicer shall be operative only to
the extent that at any time the Collateral Custodian shall not have released to
the Servicer active Required Asset Documents (including those requested)
pertaining to more than fifteen (15) Assets at the time being serviced by the
Servicer under this Agreement. Any additional Required Asset Documents or
documents requested to be released by the Servicer may be released only upon
written authorization of the Administrative Agent. The limitations of this
paragraph shall not apply to the release of Required Asset Documents to the
Servicer pursuant to the immediately succeeding subsection.



     (c) Release for Payment. Upon receipt by the Collateral Custodian
of the Servicer’s request for release of documents and receipt in the form
annexed hereto as Exhibit L (which certification shall include a
statement to the effect that all amounts received in connection with such
payment or repurchase have been credited to the Collection Account as provided
in this Agreement), the Collateral Custodian shall promptly release the related
Required Asset Documents to the Servicer.



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     Section 8.9 Return of Required Asset Documents.



     The Seller may, with the prior written consent of the Administrative Agent
(such consent not to be unreasonably withheld), require that the Collateral
Custodian return each Required Asset Document (a) delivered to the Collateral
Custodian in error, (b) for which a Substitute Asset has been substituted in
accordance with Section 2.18, (c) as to which the lien on the Related
Property has been so released pursuant to Section 9.2, (d) that has been
repaid by the Seller pursuant to Section 4.6 or (e) that is required to
be redelivered to the Seller in connection with the termination of this
Agreement, in each case by submitting to the Collateral Custodian and the
Administrative Agent a written request in the form of Exhibit H hereto
(signed by both the Seller and the Administrative Agent) specifying the
Collateral to be so returned and reciting that the conditions to such release
have been met (and specifying the Section or Sections of this Agreement being
relied upon for such release). The Collateral Custodian shall upon its receipt
of each such request for return executed by the Seller and the Administrative
Agent promptly, but in any event within five Business Days, return the Required
Asset Documents so requested to the Seller.


     Section 8.10
Access to Certain Documentation and Information Regarding the Collateral; Audits.




     The Collateral Custodian shall provide to the Administrative Agent and
each Purchaser Agent access to the Required Asset Documents and all other
documentation regarding the Collateral including in such cases where the
Administrative Agent and each Purchaser Agent is required in connection with
the enforcement of the rights or interests of the Secured Parties, or by
applicable statutes or regulations, to review such documentation, such access
being afforded without charge but only (i) upon two Business Days prior written
request, (ii) during normal business hours and (iii) subject to the Servicer’s
and Collateral Custodian’s normal security and confidentiality procedures.
Prior to the Closing Date and periodically thereafter at the discretion of the
Administrative Agent and each Purchaser Agent, the Administrative Agent and
each Purchaser Agent may review the Servicer’s collection and administration of
the Collateral in order to assess compliance by the Servicer with the Credit
and Collection Policy, as well as with this Agreement and may conduct an audit
of the Collateral, Required Asset Documents in conjunction with such a review.
Such review shall be reasonable in scope and shall be completed in a reasonable
period of time. Without limiting the foregoing provisions of this Section
8.10, from time to time on request of the Administrative Agent, the
Collateral Custodian shall permit certified public accountants or other
auditors acceptable to the Administrative Agent to conduct, at the Servicer’s
expense, a review of the Required Asset Documents and all other documentation
regarding the Collateral.



ARTICLE IX




SECURITY INTEREST




     Section 9.1 Grant of Security Interest.



     The parties to this Agreement intend that the conveyance of the Collateral
by the Seller to the applicable Purchasers be treated as sales for all purposes
(other than for the purposes



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described in Section 13.19). If, despite
such intention, a determination is made that such transactions not be treated
as sales, then the parties hereto intend that this Agreement constitute a
security agreement and the transactions effected hereby constitute secured
loans by the applicable Purchasers to the Seller under Applicable Law. For
such purpose, the Seller hereby transfers, conveys, assigns and grants as of
the Closing Date to the Administrative Agent, as agent for the Secured Parties,
a lien and continuing security interest in all of the Seller’s right, title and
interest in, to and under (but none of the obligations under) all Collateral
(including any Hedging Agreements), whether now existing or hereafter arising
or acquired by the Seller, and wherever the same may be located, to secure the
prompt, complete and indefeasible payment and performance in full when due,
whether by lapse of time, acceleration or otherwise, of the Aggregate Unpaids
of the Seller arising in connection with this Agreement and each other
Transaction Document, whether now or hereafter existing, due or to become due,
direct or indirect, or absolute or contingent, including, without limitation,
all Aggregate Unpaids. The assignment under this Section 9.1 does not
constitute and is not intended to result in a creation or an assumption by the
Administrative Agent, the Purchaser Agents, any Hedge Counterparty, the
Liquidity Banks or any of the Secured Parties of any obligation of the Seller
or any other Person in connection with any or all of the Collateral or under
any agreement or instrument relating thereto. Anything herein to the contrary
notwithstanding, (a) the Seller shall remain liable under the Collateral to the
extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Agreement had not been executed, (b)
the exercise by the Administrative Agent, as agent for the Secured Parties, of
any of its rights in the Collateral shall not release the Seller from any of
its duties or obligations under the Collateral, and (c) none of the
Administrative Agent, the Purchaser Agents, any Hedge Counterparty, the
Liquidity Banks or any Secured Party shall have any obligations or liability
under the Collateral by reason of this Agreement, nor shall the Administrative
Agent, the Purchaser Agents, any Hedge Counterparty, the Liquidity Banks or any
Secured Party be obligated to perform any of the obligations or duties of the
Seller thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.




     Section 9.2 Release of Lien on Collateral.



     At the same time as (i) any Collateral expires by its terms and all
amounts in respect thereof have been paid in full by the related Obligor and
deposited in the Collection Account, (ii) any Asset becomes a Prepaid Asset and
all amounts in respect thereof have been paid in full by the related Obligor
and deposited in the Collection Account, (iii) such Asset is replaced in
accordance with Section 2.18, or (iv) this agreement terminates in
accordance with Section 13.6, the Administrative Agent as agent for the
Secured Parties will, to the extent requested by the Servicer, release its
interest in such Collateral. In connection with any sale of such Related
Property, the Administrative Agent as agent for the Secured Parties will after the deposit by the Servicer of the Proceeds of such sale into the
Collection Account, at the sole expense of the Servicer, execute and deliver to
the Servicer any assignments, bills of sale, termination statements and any
other releases and instruments as the Servicer may reasonably request in order
to effect the release and transfer of such Related Property; provided,
that, the Administrative Agent as agent for the Secured Parties will
make no representation or warranty, express or implied, with respect to any
such Related Property in connection with such sale or transfer and assignment.
Nothing in this section shall diminish the Servicer’s obligations pursuant to
Section 6.6 with respect to the Proceeds of any such sale.



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     Section 9.3 Further Assurances.



     The provisions of Section 13.12 shall apply to the security
interest granted under Section 9.1 as well as to the Advances and
Swingline Advances hereunder.



     Section 9.4 Remedies.



     Upon the occurrence of a Termination Event, the Administrative Agent and
Secured Parties shall have, with respect to the Collateral granted pursuant to
Section 9.1, and in addition to all other rights and remedies available
to the Administrative Agent and Secured Parties under this Agreement or other
Applicable Law, all rights and remedies of a secured party upon default under
the UCC.



     Section 9.5 Waiver of Certain Laws.



     Each of the Seller and the Servicer agrees, to the full extent that it may
lawfully so agree, that neither it nor anyone claiming through or under it will
set up, claim or seek to take advantage of any appraisement, valuation, stay,
extension or redemption law now or hereafter in force in any locality where any
Collateral may be situated in order to prevent, hinder or delay the enforcement
or foreclosure of this Agreement, or the absolute sale of any of the Collateral
or any part thereof, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchasers thereof, and each of the Seller
and the Servicer, for itself and all who may at any time claim through or under
it, hereby waives, to the full extent that it may be lawful so to do, the
benefit of all such laws, and any and all right to have any of the properties
or assets constituting the Collateral marshaled upon any such sale, and agrees
that the Administrative Agent or any court having jurisdiction to foreclose the
security interests granted in this Agreement may sell the Collateral as an
entirety or in such parcels as the Administrative Agent or such court may
determine.



     Section 9.6 Power of Attorney.



     Each of the Seller and the Servicer hereby irrevocably appoints the
Administrative Agent its true and lawful attorney (with full power of
substitution) in its name, place and stead and at is expense, in connection
with the enforcement of the rights and remedies provided for in this Agreement,
including without limitation the following powers: (a) to give any necessary
receipts or acquittance for amounts collected or received hereunder, (b) to
make all necessary transfers of the Collateral in connection with any such sale
or other disposition made pursuant hereto, (c) to execute and deliver for value
all necessary or appropriate bills of sale, assignments and other instruments in connection with any such sale or other disposition, the
Seller and the Servicer hereby ratifying and confirming all that such attorney
(or any substitute) shall lawfully do hereunder and pursuant hereto, and (d) to
sign any agreements, orders or other documents in connection with or pursuant
to any Transaction Document or Hedging Agreement. Nevertheless, if so
requested by the Administrative Agent or a Purchaser Agent, the Seller shall
ratify and confirm any such sale or other disposition by executing and
delivering to the Administrative Agent or such purchaser all proper bills of
sale, assignments, releases and other instruments as may be designated in any
such request.



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ARTICLE X




TERMINATION EVENTS




     Section 10.1 Termination Events.



     The following events shall be Termination Events (“Termination
Events”) hereunder:



     (a) as of any Determination Date, the Average Portfolio Delinquency Ratio
exceeds 5.0%; or



     (b) as of any Determination Date, the Average Pool Charged-Off Ratio
exceeds 2.0%; or



     (c) as of any Determination Date, the Average Portfolio Charged-Off Ratio
exceeds 2.5%; or



     (d) the Advances Outstanding on any day exceeds the lesser of the Facility
Amount and Maximum Availability and the same continues unremedied for two
Business Days; provided, however, during the period of time that
such event remains unremedied, no additional Advances or Swingline Advances
will be made under this Agreement and any payments required to be made by the
Servicer on a Payment Date shall be made under Section 2.10; or



     (e) a Servicer Default occurs and is continuing; or



     (f) the Facility Termination Date shall have occurred; or



     (g) failure on the part of the Seller or Originator to make any payment or
deposit (including without limitation with respect to Collections) required by
the terms of any Transaction Document on the day such payment or deposit is
required to be made and the same continues unremedied for two Business Days; or



     (h) the occurrence of an Insolvency Event relating to the Originator, the
Seller, the Servicer or any Affiliate of the Originator which is a party to a
Permitted Securitization Transaction; or



     (i) the Seller shall become required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended
(the “40 Act”) or the arrangements contemplated by the Transaction
Documents shall require registration as an “investment company” within the
meaning of the 40 Act; or



     (j) a regulatory, tax or accounting body has ordered that the activities
of the Seller or any Affiliate of the Seller contemplated hereby be terminated
or, as a result of any other event or circumstance, the activities of the
Seller contemplated hereby may reasonably be expected to cause the Seller or
any of its respective Affiliates to suffer materially adverse regulatory,
accounting or tax consequences; or



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     (k) there shall exist any event or occurrence that has caused a Material
Adverse Effect; or



     (l) the Internal Revenue Service shall file notice of a lien pursuant to
Section 6323 of the Code with regard to any assets of the Seller or the
Originator and such lien shall not have been released within five Business
Days, or the Pension Benefit Guaranty Corporation shall file notice of a lien
pursuant to Section 4068 of ERISA with regard to any of the assets of
the Seller or the Originator and such lien shall not have been released within
five Business Days; or



     (m) any Change-in-Control shall occur; or



     (n)      (i) any Transaction Document, or any lien or security interest granted
thereunder, shall (except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally valid, binding and
enforceable obligation of the Seller, the Originator, or the Servicer,




     (ii) the Seller, the Originator, the Servicer or any other party
shall, directly or indirectly, contest in any manner the effectiveness,
validity, binding nature or enforceability of any Transaction Document or
any lien or security interest thereunder, or




     (iii) any security interest securing any obligation under any
Transaction Document shall, in whole or in part, cease to be a perfected
first priority security interest; or



     (o) on any date of determination, the aggregate Hedge Notional Amount in
effect for that day under all Hedge Transactions is less than the product of
the Hedge Percentage on such day and the Hedge Amount on that day, and the same
continues unremedied for a period of two Business Days; or



     (p) any failure on the part of the Seller or the Originator duly to
observe or perform in any material respect any other covenants or agreements of
the Seller or the Originator set forth in this Agreement or the other
Transaction Documents to which the Seller or the Originator is a party and the
same continues unremedied for a period of thirty (30) days after the earlier to
occur of (i) the date on which written notice of such failure requiring the
same to be remedied shall have been given to the Seller or the Originator by
the Administrative Agent and (ii) the date on which the Seller or the
Originator becomes aware thereof; or



     (q) any representation, warranty or certification made by the Seller or
the Originator in any Transaction Document or in any certificate delivered
pursuant to any Transaction Document shall prove to have been incorrect when
made, which has a Material Adverse Effect on the Secured Parties and which
continues to be unremedied for a period of thirty (30) days after the earlier
to occur of (i) the date on which written notice of such incorrectness
requiring the same to be remedied shall have been given to the Seller or the
Originator by the Administrative Agent and (ii) the date on which the Seller or
the Originator becomes aware thereof; or



     (r) any failure by the Seller to give instructions or notice to the
Administrative Agent as required by this Agreement, or to deliver any required
Monthly Report or other Required



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Reports hereunder on or before the date
occurring two Business Days after the date such instruction, notice or report
is required to be made or given, as the case may be, under the terms of this
Agreement; or




     (s) the failure of the Seller, the Servicer or the Originator to make any
payment due with respect to recourse debt or other obligations, in the case of
the Servicer or the Originator, in excess of $7,500,000, or the occurrence of
any event or condition that would permit acceleration of such recourse debt or
other obligations whether or not such event or condition has been waived; or



     (t)      (1) the rendering of one or more final judgments, decrees or orders
by a court or arbitrator of competent jurisdiction for the payment of money in
excess of $7,500,000, individually or in the aggregate, against the Originator,
or $2,000,000 against the Seller, individually or in the aggregate, and the
Originator shall not have either (i) discharged or provided for the discharge
of any such judgment, decree or order in accordance with its terms or (ii)
perfected a timely appeal of such judgment, decree or order and caused the
execution of same to be stayed during the pendency of the appeal or (2) the
Originator or the Seller shall have made payments of amounts in excess of
$5,000,000 by the Originator, or $2,000,000 by the Seller, in the settlement of
any litigation, claim or dispute (excluding payments made from insurance
proceeds); or



     (u) as of any Determination Date, the Pool Yield does not equal or exceed
the Minimum Pool Yield and the same continues unremedied by the following
Determination Date; or



     (v) any deficiency exists in the Minimum Overcollateralization Amount on
any day and the same continues unremedied for two Business Days; or



     (w) [Reserved]; or



     (x) as of any Quarterly Determination Date, the Originator’s ratio of
Consolidated Funded Indebtedness to Consolidated Tangible Net Worth is more
than 5 to 1.



     Section 10.2 Remedies.




     (a) Upon the occurrence of a Termination Event (other than a Termination
Event described in Section 10.1(i)), the Administrative Agent shall, at
the request of, or may, with the consent of, any of the Purchasers, by notice to the Seller,
declare the Termination Date to have occurred and the Amortization Period to
have commenced.



     (b) Upon the occurrence of a Termination Event described in Section
10.1(i), the Termination Date shall occur immediately and the Amortization
Period shall commence automatically.



     (c) Upon the occurrence of any Termination Event described in Section
10.1, no Advances or Swingline Advances will thereafter be made, and the
Administrative Agent and the Secured Parties shall have, in addition to all
other rights and remedies under this Agreement or otherwise, all other rights
and remedies provided under the UCC of each applicable jurisdiction



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and other
Applicable Laws, which rights shall be cumulative, and also may require the
Seller and Servicer to, and the Seller and Servicer hereby agree that they will
at the Servicer’s expense and upon request of the Administrative Agent
forthwith, (i) assemble all or any part of the Collateral as directed by the
Administrative Agent and make the same available to the Administrative Agent at
a place to be designated by the Administrative Agent and (ii) without notice
except as specified below, sell the Collateral or any part thereof in one or
more parcels at a public or private sale, at any of the Administrative Agent’s
offices or elsewhere, for cash, on credit or for future delivery, and upon such
other terms as the Administrative Agent may deem commercially reasonable. The
Seller agrees that, to the extent notice of sale shall be required by law, at
least ten days’ notice to the Seller of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to
make any sale of Collateral regardless of notice of sale having been given.
The Administrative Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. All cash Proceeds received by the Administrative Agent in respect
of any sale of, collection from, or other realization upon, all or any part of
the Collateral (after payment of any amounts incurred in connection with such
sale) shall be deposited into the Collection Account and to be applied against
all or any part of the Aggregate Unpaids pursuant to Section 2.10 or
otherwise in such order as the Administrative Agent shall elect in its
discretion.




ARTICLE XI




INDEMNIFICATION




     Section 11.1 Indemnities by the Seller.



     (a) Without limiting any other rights that any such Person may have
hereunder or under Applicable Law, the Seller hereby agrees to indemnify the
Administrative Agent, the Purchaser Agents, the Backup Servicer, the Collateral
Custodian, the Secured Parties, the Affected Parties and each of their
respective assigns and officers, directors, employees and agents thereof
(collectively, the “Indemnified Parties”), forthwith on demand, from and
against any and all damages, losses, claims, liabilities and related costs and
expenses, including attorneys’ fees and disbursements (all of the foregoing
being collectively referred to as the “Indemnified Amounts”) awarded
against or incurred by such Indemnified Party and other non-monetary damages of
any such Indemnified Party or any of them arising out of or as a result of this Agreement or the ownership of an interest in the Collateral
or in respect of any Asset included in the Collateral, excluding, however, (a)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of such Indemnified Party or (b) Indemnified Amounts
that have the effect of recourse for non-payment of the Assets included in the
Collateral due to credit problems of the Obligors (except as otherwise
specifically provided in this Agreement). If the Seller has made any indemnity
payment pursuant to this Section 11.1 and such payment fully indemnified
the recipient thereof and the recipient thereafter collects any payments from
others in respect of such Indemnified Amounts then, the recipient shall repay
to the Seller an amount equal to the amount it has collected from others in
respect of such indemnified amounts. Without limiting the foregoing, the
Seller shall indemnify each Indemnified Party for Indemnified Amounts relating
to or resulting from:



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     (i) any representation or warranty made or deemed made by the
Seller, the Servicer (if the Originator or one of its Affiliates is the
Servicer) or any of their respective officers under or in connection with
this Agreement or any other Transaction Document, which shall have been
false or incorrect in any material respect when made or deemed made or
delivered;




     (ii) the failure by the Seller or the Servicer (if the Originator or
one of its Affiliates is the Servicer) to comply with any term, provision
or covenant contained in this Agreement or any agreement executed in
connection with this Agreement, or with any Applicable Law, with respect
to any Collateral or the nonconformity of any Collateral with any such
Applicable Law;




     (iii) the failure to vest and maintain vested in the Administrative
Agent, as agent for the Secured Parties, an undivided ownership interest
in the Collateral, together with all Collections, free and clear of any
Lien (other than Permitted Liens) whether existing at the time of any
Advance or Swingline Advance or at any time thereafter;




     (iv) the failure to maintain, as of the close of business on each
Business Day prior to the Termination Date, an amount of Advances
Outstanding that is less than or equal to the lesser of (x) the Facility
Amount and (y) the Maximum Availability on such Business Day;




     (v) the failure to file, or any delay in filing, financing
statements, continuation statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or other
Applicable Laws with respect to any Collateral, whether at the time of
any Advance or Swingline Advance or at any subsequent time;




     (vi) any dispute, claim, offset or defense (other than the discharge
in bankruptcy of the Obligor) of the Obligor to the payment with respect
to any Collateral (including, without limitation, a defense based on the
Collateral not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or any
other claim resulting from the sale of the merchandise or services
related to such Collateral or the furnishing or failure to furnish such
merchandise or services;




     (vii) any failure of the Seller or the Servicer (if the Originator
or one of its Affiliates is the Servicer) to perform its duties or
obligations in accordance with the provisions of this Agreement or any of
the other Transaction Documents to which it is a party or any failure by
the Originator, the Seller or any Affiliate thereof to perform its
respective duties under any Collateral;




     (viii) the failure of any Lock-Box Bank to remit any amounts held in
a Lock-Box Account pursuant to the instructions of the Servicer or the
Administrative Agent (to the extent such Person is entitled to give such
instructions in accordance with the terms hereof and of any applicable
Lock-Box Agreement) whether by reason of the exercise of set-off rights
or otherwise;




     (ix) any inability to obtain any judgment in, or utilize the court
or other adjudication system of, any state in which an Obligor may be
located as a result of the



133









 






failure of the Seller or the Originator to qualify to do business or file any notice or business activity report or
any similar report;




     (x) any action taken by the Seller or the Originator (in its
capacity as Servicer) in the enforcement or collection of any Collateral;




     (xi) any products liability claim or personal injury or property
damage suit or other similar or related claim or action of whatever sort
arising out of or in connection with the Related Property or services
that are the subject of any Collateral;




     (xii) any claim, suit or action of any kind arising out of or in
connection with Environmental Laws including any vicarious liability;




     (xiii) the failure by Seller to pay when due any Taxes for which the
Seller is liable, including without limitation, sales, excise or personal
property taxes payable in connection with the Collateral;




     (xiv) any repayment by the Administrative Agent, the Purchaser
Agents or a Secured Party of any amount previously distributed in
reduction of Advances Outstanding or payment of Interest or any other
amount due hereunder or under any Hedging Agreement, in each case which
amount the Administrative Agent, the Purchaser Agents or a Secured Party
believes in good faith is required to be repaid;




     (xv) the commingling of Collections on the Collateral at any time
with other funds;




     (xvi) any investigation, litigation or proceeding related to this
Agreement or the use of proceeds of Advances or Swingline Advances or the
security interest in the Collateral;




     (xvii) any failure by the Seller to give reasonably equivalent value
to the Originator in consideration for the transfer by the Originator to
the Seller of any item of Collateral or any attempt by any Person to void
or otherwise avoid any such transfer under any statutory provision or common law or equitable action,
including, without limitation, any provision of the Bankruptcy Code;




     (xviii) the use of the proceeds of any Advance or Swingline Advance
in a manner other than as provided in this Agreement and the Sale
Agreement;




     (xix) the failure of the Seller, the Originator or any of their
respective agents or representatives to remit to the Servicer or the
Administrative Agent or the Purchaser Agents, Collections on the
Collateral remitted to the Seller, the Originator, the Servicer or any
such agent or representative; or




     (xx) the failure by the Seller to comply with any of the covenants
relating to any Hedging Agreement in accordance with the Transaction
Documents.



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     (b) Any amounts subject to the indemnification provisions of this
Section 11.1 shall be paid by the Seller to the Indemnified Party within
five Business Days following such Person’s demand therefor.



     (c) If for any reason the indemnification provided above in this
Section 11.1 is unavailable to the Indemnified Party or is insufficient
to hold an Indemnified Party harmless, then the Seller or the Servicer, as the
case may be, shall contribute to the amount paid or payable by such Indemnified
Party as a result of such loss, claim, damage or liability in such proportion
as is appropriate to reflect not only the relative benefits received by such
Indemnified Party on the one hand and the Seller or the Servicer, as the case
may be, on the other hand but also the relative fault of such Indemnified Party
as well as any other relevant equitable considerations.



     (d) The obligations of the Seller under this Section 11.1 shall
survive the resignation or removal of the Administrative Agent, the Purchaser
Agents, the Servicer, the Backup Servicer or the Collateral Custodian and the
termination of this Agreement.



     Section 11.2 Indemnities by the Servicer.



     (a) Without limiting any other rights that any such Person may have
hereunder or under Applicable Law, the Servicer hereby agrees to indemnify each
Indemnified Party, forthwith on demand, from and against any and all
Indemnified Amounts awarded against or incurred by any such Indemnified Party
by reason of any acts, omissions or alleged acts or omissions of the Servicer,
including, but not limited to (i) any representation or warranty made by the
Servicer under or in connection with any Transaction Document, any Monthly
Report, Servicer’s Certificate or any other information or report delivered by
or on behalf of the Servicer pursuant hereto, which shall have been false,
incorrect or misleading in any material respect when made or deemed made, (ii)
the failure by the Servicer to comply with any Applicable Law, (iii) the
failure of the Servicer to comply with its duties or obligations in accordance
with the Agreement, (iv) the failure by the Servicer to comply with any of the
covenants relating to any Hedging Agreement in accordance with the Transaction
Documents, or (v) any litigation, proceedings or investigation against the
Servicer. The provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations hereof.



     (b) Any amounts subject to the indemnification provisions of this
Section 11.2 shall be paid by the Servicer to the Indemnified Party
within five Business Days following such Person’s demand therefor.



     (c) The Servicer shall have no liability for making indemnification
hereunder to the extent any such indemnification constitutes recourse for
uncollectible or uncollected Assets.



     (d) The obligations of the Servicer under this Section 11.2 shall
survive the resignation or removal of the Administrative Agent, the Purchaser
Agents, the Backup Servicer or the Collateral Custodian and the termination of
this Agreement.



     (e) Any indemnification pursuant to this Section 11.2 shall not be
payable from the Collateral.



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     Section 11.3 After-Tax Basis.




     Indemnification under Section 11.1 and Section 11.2 shall be
in an amount necessary to make the Indemnified Party whole after taking into
account any tax consequences to the Indemnified Party of the receipt of the
indemnity provided hereunder, including the effect of such tax or refund on the
amount of tax measured by net income or profits that is or was payable by the
Indemnified Party.



ARTICLE XII




THE ADMINISTRATIVE AGENT




AND PURCHASER AGENTS




     Section 12.1 The Administrative Agent.



     (a) Each Purchaser Agent and each Secured Party hereby appoints and
authorizes the Administrative Agent as its agent and bailee for purposes of
perfection pursuant to the applicable UCC or other Applicable Law and hereby
further authorizes the Administrative Agent to appoint additional agents and
bailees to act on its behalf and for the benefit of each of the Purchaser
Agents and each Secured Party. Each of the Purchaser Agents and each Secured
Party further authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement and the other
Transaction Documents as are delegated to the Administrative Agent by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. In furtherance, and without limiting the generality, of the
foregoing, each Secured Party hereby appoints the Administrative Agent as its
agent to execute and deliver all further instruments and documents, and take
all further action that the Administrative Agent may deem necessary or
appropriate or that a Secured Party may reasonably request in order to perfect,
protect or more fully evidence the security interests granted by the Seller
hereunder, or to enable any of them to exercise or enforce any of their
respective rights hereunder, including, without limitation, the execution by
the Administrative Agent as secured party/assignee of such financing or
continuation statements, or amendments thereto or assignments thereof, relative
to all or any of the Collateral now existing or hereafter arising, and such
other instruments or notices, as may be necessary or appropriate for the
purposes stated hereinabove. The Purchaser Agents and the Purchasers may
direct the Administrative Agent to take any such incidental action hereunder. With
respect to other actions which are incidental to the actions specifically
delegated to the Administrative Agent hereunder, the Administrative Agent shall
not be required to take any such incidental action hereunder, but shall be
required to act or to refrain from acting (and shall be fully protected in
acting or refraining from acting) upon the direction of the Purchaser Agents
and the Purchasers; provided, however, that the Administrative
Agent shall not be required to take any action hereunder if the taking of such
action, in the reasonable determination of the Administrative Agent, shall be
in violation of any Applicable Law or contrary to any provision of this
Agreement or shall expose the Administrative Agent to liability hereunder or
otherwise. In the event the Administrative Agent requests the consent of a
Purchaser Agent or a Purchaser pursuant to the foregoing provisions and the
Administrative Agent does not receive a consent (either positive or negative)
from such Person within ten Business Days of such Person’s receipt of such
request, then such



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Purchaser Agent or Purchaser shall be deemed to have
declined to consent to the relevant amendments.




     (b) The Administrative Agent shall exercise such rights and powers vested
in it by this Agreement and the other Transaction Documents, and use the same
degree of care and skill in their exercise as a prudent person would exercise
or use under the circumstances in the conduct of such person’s own affairs.



     (c) Administrative Agent’s Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them as
Administrative Agent under or in connection with this Agreement or any of the
other Transaction Documents, except for its or their own gross negligence or
willful misconduct. Without limiting the foregoing, the Administrative Agent:
(i) may consult with legal counsel (including counsel for the Seller or the
Originator), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (ii) makes no warranty or representation and shall not be responsible
for any statements, warranties or representations made in or in connection with
this Agreement; (iii) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
this Agreement or any of the other Transaction Documents on the part of the
Seller, the Originator, or the Servicer or to inspect the property (including
the books and records) of the Seller, the Originator, or the Servicer; (iv)
shall not be responsible for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any of the
other Transaction Documents or any other instrument or document furnished
pursuant hereto or thereto; and (v) shall incur no liability under or in
respect of this Agreement or any of the other Transaction Documents by acting
upon any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by telex) believed by it to be genuine and
signed or sent by the proper party or parties.



     (d) Credit Decision with Respect to the Administrative Agent. Each
Purchaser Agent and Secured Party acknowledges that it has, independently and
without reliance upon the Administrative Agent, or any of the Administrative
Agent’s Affiliates, and based upon such documents and information as it has
deemed appropriate, made its own evaluation and decision to enter into this
Agreement and the other Transaction Documents to which it is a party. Each
Purchaser Agent and Secured Party also acknowledges that it will, independently
and without reliance upon the Administrative Agent, or any of the
Administrative Agent’s Affiliates, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own decisions in
taking or not taking action under this Agreement and the other Transaction
Documents to which it is a party.



     (e) Indemnification of the Administrative Agent. Each Purchaser
Agent and Purchaser agrees to indemnify the Administrative Agent (to the extent
not reimbursed by the Seller or the Servicer), ratably in accordance with its
Pro-Rata Share from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement or any of the other Transaction Documents, or any action
taken or omitted by the Administrative




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Agent hereunder or thereunder; provided, that, none of the Purchaser Agents or Purchasers shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent’s gross negligence or willful
misconduct. Without limitation of the foregoing, each Purchaser Agent and
Purchaser agrees to reimburse the Administrative Agent, ratably in accordance
with its Pro-Rata Share promptly upon demand for any out-of-pocket expenses
(including counsel fees) incurred by the Administrative Agent in connection
with the administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and the other
Transaction Documents, to the extent that such expenses are incurred in the
interests of or otherwise in respect of the Purchaser Agents, or the Purchasers
hereunder and/or thereunder and to the extent that the Administrative Agent is
not reimbursed for such expenses by the Seller or the Servicer.




     (f) Successor Administrative Agent. The Administrative Agent may
resign at any time, effective upon the appointment and acceptance of a
successor Administrative Agent as provided below, by giving at least five days’
written notice thereof to each Purchaser Agent, the Swingline Purchaser and the
Seller and may be removed at any time with cause by the Purchaser Agents and
the Swingline Purchaser acting jointly. Upon any such resignation or removal,
the Purchaser Agents acting jointly shall appoint a successor Administrative
Agent. Each of the Purchaser Agents agrees that it shall not unreasonably
withhold or delay its approval of the appointment of a successor Administrative
Agent. If no such successor Administrative Agent shall have been so appointed,
and shall have accepted such appointment, within thirty (30) days after the
retiring Administrative Agent’s giving of notice of resignation or the removal
of the retiring Administrative Agent, then the retiring Administrative Agent
may, on behalf of the Secured Parties, appoint a successor Administrative Agent
which successor Administrative Agent shall be either (i) a commercial bank
organized under the laws of the United States or of any state thereof and have
a combined capital and surplus of at least $50,000,000 or (ii) an Affiliate of
such a bank. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent’s resignation or
removal hereunder as Administrative Agent, the provisions of this Article XII shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.



     (g) Payments by the Administrative Agent. Unless specifically
allocated to a specific Purchaser Agent or the Swingline Purchaser pursuant to
the terms of this Agreement, all amounts received by the Administrative Agent
on behalf of the Purchaser Agents and the Swingline Purchaser shall be paid by
the Administrative Agent to the Purchaser Agents and the Swingline Purchaser in
accordance with their respective Pro-Rata Shares in the applicable Advances
Outstanding, or if there are no Advances Outstanding then to the Purchaser
Agents in accordance with the most recent applicable Commitment, on the
Business Day received by the Administrative Agent, unless such amounts are
received after 12:00 noon on such Business Day, in which case the
Administrative Agent shall use its reasonable efforts to pay such amounts to




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each Purchaser Agent on such Business Day, but, in any event, shall pay such
amounts to such Purchaser Agent not later than the following Business Day.




     Section 12.2 VFCC Agent.



     (a) Authorization and Action. VFCC hereby designates and appoints
WCM as the VFCC Agent hereunder, and authorizes the VFCC Agent to take such
actions as agent on its behalf and to exercise such powers as are delegated to
the VFCC Agent by the terms of this Agreement together with such powers as are
reasonably incidental thereto. The VFCC Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with VFCC, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities on the part of the VFCC Agent shall be read
into this Agreement or otherwise exist for the VFCC Agent. In performing its
functions and duties hereunder, the VFCC Agent shall act solely as agent for
VFCC and does not assume nor shall be deemed to have assumed any obligation or
relationship of trust or agency with or for the Seller or any of its successors
or assigns. The VFCC Agent shall not be required to take any action that
exposes the VFCC Agent to personal liability or that is contrary to this
Agreement or Applicable Law. The appointment and authority of the VFCC Agent
hereunder shall terminate at the indefeasible payment in full of the Aggregate
Unpaids.



     (b) Delegation of Duties. The VFCC Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The VFCC Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.



     (c) Exculpatory Provisions. Neither the VFCC Agent nor any of its
directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken 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 the case of the VFCC Agent, the breach of its
obligations expressly set forth in this Agreement), or (ii) responsible in any
manner to VFCC for any recitals, statements, representations or warranties made
by the Seller contained in this Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received under
or in connection with, this Agreement, for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
document furnished in connection herewith, for any failure of the Seller
to perform its obligations hereunder, or for the satisfaction of any condition
specified in Article III. The VFCC Agent shall not be under any
obligation to VFCC to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Seller. The VFCC Agent shall not be deemed to have knowledge of any Unmatured
Termination Event, Termination Event or Servicer Default unless the VFCC Agent
has received notice from the Seller or a Secured Party.



     (d) Reliance. The VFCC Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Seller),
independent



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accountants and other experts selected by the VFCC Agent. The VFCC
Agent shall in all cases be fully justified in failing or refusing to take any
action under this Agreement or any other document furnished in connection
herewith unless it shall first receive such advice or concurrence of VFCC, as
it deems appropriate, or it shall first be indemnified to its satisfaction by
VFCC; provided, that, unless and until the VFCC Agent shall have
received such advice, the VFCC Agent may take or refrain from taking any action
as the VFCC Agent shall deem advisable and in the best interests of VFCC. The
VFCC Agent shall in all cases be fully protected in acting, or in refraining
from acting, in accordance with a request of VFCC, and such request and any
action taken or failure to act pursuant thereto shall be binding upon VFCC.



     (e) Non-Reliance on the VFCC Agent and Other Purchasers. VFCC
expressly acknowledges that neither the VFCC Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the VFCC Agent hereafter
taken, including, without limitation, any review of the affairs of the Seller,
shall be deemed to constitute any representation or warranty by the VFCC Agent.
VFCC represents and warrants to the VFCC Agent that it has and will,
independently and without reliance upon the VFCC Agent, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Seller and made its
own decision to enter into this Agreement or any Hedging Agreement, as the case
may be.



     (f) The VFCC Agent in its Individual Capacity. The VFCC Agent and
any of its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Seller or any Affiliate of the Seller
as though the VFCC Agent were not the VFCC Agent hereunder. With respect to
the Advances made pursuant to this Agreement, the VFCC Agent and each of its
Affiliates shall have the same rights and powers under this Agreement as the
Purchasers and may exercise the same as though it were not the VFCC Agent and
the terms “Purchaser” and “Purchasers” shall include the VFCC Agent in its
individual capacity.



     (g) Successor VFCC Agent. The VFCC Agent may, upon five days’
notice to the Seller and VFCC, and the VFCC Agent will, upon the direction of
VFCC, resign as VFCC Agent. If the VFCC Agent shall resign, then VFCC, during
such five day period, shall appoint a
successor agent. If for any reason no successor VFCC Agent is appointed
by VFCC during such five day period, then effective upon the expiration of such
five day period, the Seller shall make all payments it otherwise would have
made to the VFCC Agent in respect of the Aggregate Unpaids or under any fee
letter delivered in connection herewith directly to VFCC and for all purposes
shall deal directly with VFCC. After any retiring VFCC Agent’s resignation
hereunder as VFCC Agent, the provisions of Articles XI and XII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
the VFCC Agent under this Agreement. Notwithstanding the resignation or
removal of the VFCC Agent, Wachovia, as Hedge Counterparty, shall continue to
be a Secured Party hereunder.



     Section 12.3 Additional Agent.



     (a) Authorization and Action. Each Additional Purchaser hereby
designates and appoints the relevant Additional Agent designated in the related
Additional Purchaser Agreement to act as its agent hereunder and under each
other Transaction Document, and authorizes such



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Additional Agent to take such
actions as agent on its behalf and to exercise such powers as are delegated to
the Additional Agent by the terms of this Agreement and the other Transaction
Documents together with such powers as are reasonably incidental thereto. No
Additional Agent shall have any duties or responsibilities, except those
expressly set forth herein or in any other Transaction Document, or any
fiduciary relationship with such related Additional Purchaser, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities on
the part of such Additional Agent shall be read into this Agreement or any
other Transaction Document or otherwise exist for such Additional Agent. In
performing its functions and duties hereunder and under the other Transaction
Documents, each Additional Agent shall act solely as agent for the related
Additional Purchaser and does not assume nor shall be deemed to have assumed
any obligation or relationship of trust or agency with or for the Seller or the
Servicer or any of the Seller’s or the Servicer’s successors or assigns. No
Additional Agent shall be required to take any action that exposes the
Additional Agent to personal liability or that is contrary to this Agreement,
any other Transaction Document or Applicable Law. The appointment and
authority of each Additional Agent hereunder shall terminate upon the
indefeasible payment in full of all Aggregate Unpaids. Each Additional Agent
hereby authorizes the Administrative Agent to execute each of the UCC financing
statements on behalf of such Additional Agent (the terms of which shall be
binding on such Additional Agent).



     (b) Delegation of Duties. Any of the Additional Agents may execute
any of its duties under this Agreement and each other Transaction Document by
or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. No Additional Agent
shall be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.



     (c) Exculpatory Provisions. Neither any Additional Agent nor any
of its directors, officers, agents or employees shall be (i) liable for any
action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Transaction Document (except for
its, their or such Person’s own gross negligence or willful misconduct), or
(ii) responsible in any manner to any Additional Purchaser for any recitals,
statements, representations or warranties made by the Seller or the Servicer
contained in Article IV, any other Transaction Document or any
certificate, report, statement or other document referred
to or provided for in, or received under or in connection with, this
Agreement or any other Transaction Document, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement,
any other Transaction Document or any other document furnished in connection
herewith or therewith, or for any failure of the Seller or the Servicer to
perform its obligations hereunder or thereunder, or for the satisfaction of any
condition specified in this Agreement, or for the perfection, priority,
condition, value or sufficiency of any collateral pledged in connection
herewith. No Additional Agent shall be under any obligation to any Additional
Purchaser to ascertain or to inquire as to the observance or performance of any
of the agreements or covenants contained in, or conditions of, this Agreement
or any other Transaction Document, or to inspect the properties, books or
records of the Seller or the Servicer. No Additional Agent shall be deemed to
have knowledge of any Termination Event or Unmatured Termination Event unless
such Additional Agent has received notice from the Seller or the related
Additional Purchaser.



     (d) Reliance by Additional Agent. Each Additional Agent shall in
all cases be entitled to rely, and shall be fully protected in relying, upon
any document or conversation



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believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Seller), independent accountants and other experts selected by such Additional
Agent. Each Additional Agent shall in all cases be fully justified in failing
or refusing to take any action under this Agreement or any other Transaction
Document unless it shall first receive such advice or concurrence of the
related Additional Purchaser as it deems appropriate and it shall first be
indemnified to its satisfaction by such Additional Purchaser; provided,
that, unless and until such Additional Agent shall have received such
advice, the Additional Agent may take or refrain from taking any action, as the
Additional Agent shall deem advisable and in the best interests of the Related
Additional Purchaser. Each Additional Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of the related Additional Purchaser, and such request and any action taken or
failure to act pursuant thereto shall be binding upon such Additional
Purchaser.



     (e) Non-Reliance on Additional Agent. Each Additional Purchaser
expressly acknowledges that neither any Additional Agent, nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has
made any representations or warranties to it and that no act by such Additional
Agent hereafter taken, including, without limitation, any review of the affairs
of the Seller or the Servicer, shall be deemed to constitute any representation
or warranty by such Additional Agent. Each Additional Purchaser represents and
warrants to the related Additional Agent that it has and will, independently
and without reliance upon such Additional Agent, such Additional Purchaser and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of the Seller
and made its own decision to enter into this Agreement, the other Transaction
Documents and all other documents related hereto or thereto.



     (f) Additional Agent in its Individual Capacity. Each Additional
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with the Seller or any Affiliate of the Seller
as though such Additional Agent were not an Additional Agent hereunder. With
respect to Advances pursuant to this Agreement, each
Additional Agent shall have the same rights and powers under this
Agreement in its individual capacity as any Purchaser and may exercise the same
as though it were not an Additional Agent, and the terms “Purchaser,” and
“Purchasers,” shall include the Additional Agent in its individual capacity.



     (g) Successor Additional Agent. Each Additional Agent may, upon
five days’ notice to the Seller, and the related Additional Purchaser, and such
Additional Agent will, upon the direction of such Additional Purchaser (other
than such Additional Agent, in its individual capacity) resign as Additional
Agent. If any Additional Agent shall resign, then the related Additional
Purchaser during such five day period shall appoint a successor agent. If for
any reason no successor Additional Agent is appointed by the related Additional
Purchaser during such five day period, then effective upon the termination of
such five day period, and the Seller shall make all payments in respect of the
Aggregate Unpaids directly to such Additional Purchaser, and for all purposes
shall deal directly with such Additional Purchaser. After any retiring
Additional Agent’s resignation hereunder as an Additional Agent, the provisions
of



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Articles XI and XII shall inure to its benefit with respect to
any actions taken or omitted to be taken by it while it was an Additional Agent
under this Agreement.



ARTICLE XIII




MISCELLANEOUS




     Section 13.1 Amendments and Waivers.



     Except as provided in this Section 13.1, no amendment, waiver or
other modification of any provision of this Agreement (other than Appendix
B) shall be effective without the written agreement of the Seller, the
Servicer, the Backup Servicer, the Collateral Custodian, the Administrative
Agent and the Secured Parties; provided, that, no such amendment,
waiver or modification adversely affecting the rights or obligations of any
Hedge Counterparty shall be effective without the written agreement of such
Person.



     Section 13.2 Notices, Etc.



     All notices, reports and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including telex
communication and communication by facsimile copy) and mailed, telexed,
transmitted or delivered, as to each party hereto, at its address set forth
under its name on the signature pages hereof or at such other address as shall
be designated by such party in a written notice to the other parties hereto
(provided, however, for avoidance of doubt, Lord Securities Corp. shall
not receive notices, reports and other communications provided pursuant to
Article II, and Section 6.10, Section 6.11 and Section
6.12 hereof). All such notices and communications shall be effective, upon
receipt, or in the case of (a) notice by mail, five days after being deposited
in the United States mail, first class postage prepaid, (b) notice by telex,
when telexed against receipt of answer back, or (c) notice by facsimile copy,
when verbal communication of receipt is obtained.



     Section 13.3 Ratable Payments.



     If any Secured Party, whether by setoff or otherwise, has payment made to
it with respect to any portion of the Aggregate Unpaids owing to such Secured
Party (other than payments received pursuant to Section 11.1) in a
greater proportion than that received by any other Secured Party, such Secured
Party agrees, promptly upon demand, to purchase for cash without recourse or
warranty a portion of the Aggregate Unpaids held by the other Secured Parties
so that after such purchase each Secured Party will hold its ratable proportion
of the Aggregate Unpaids; provided, however, that if all
or any portion of such excess amount is thereafter recovered from such Secured
Party, such purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest.



     Section 13.4 No Waiver; Remedies.



     No failure on the part of the Administrative Agent, the Purchaser Agents,
the Collateral Custodian, the Backup Servicer or a Secured Party to exercise,
and no delay in exercising, any right or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right or remedy
hereunder preclude any other or further exercise thereof or the



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exercise of any
other right. The rights and remedies herein provided are cumulative and not
exclusive of any rights and remedies provided by law.



     Section 13.5 Binding Effect; Benefit of Agreement.



     This Agreement shall be binding upon and inure to the benefit of the
Seller, the Servicer, the Administrative Agent, the Purchaser Agents, the
Backup Servicer, the Collateral Custodian, the Secured Parties and their
respective successors and permitted assigns and, in addition, the provisions of
Section 2.9(a)(i) and Section 2.10(a)(i) shall inure to the
benefit of each Hedge Counterparty, whether or not that Hedge Counterparty is a
Secured Party.



     Section 13.6 Term of this Agreement.



     This Agreement, including, without limitation, the Seller’s
representations and covenants set forth in Articles IV and V, and
the Servicer’s representations, covenants and duties set forth in Articles
VI, VII and VIII, create and constitute the continuing
obligation of the parties hereto in accordance with its terms, and shall remain
in full force and effect until the Collection Date; provided,
however, that the rights and remedies with respect to any breach of any
representation and warranty made or deemed made by the Seller pursuant to
Articles III and IV the indemnification and payment provisions of
Article XI and the provisions of Section 13.9, Section
13.10 and Section 13.11, shall be continuing and shall survive any
termination of this Agreement.



     Section 13.7 Governing Law; Consent to Jurisdiction; Waiver of
Objection to Venue.



     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AND EACH HEDGE
COUNTERPARTY HEREBY AGREES TO THE
NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE
OF NEW YORK. EACH OF THE PARTIES HERETO AND EACH SECURED PARTY HEREBY WAIVES
ANY OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO
THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT.



     Section 13.8 Waiver of Jury Trial.



     TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO AND
EACH HEDGE COUNTERPARTY HEREBY WAIVES ANY RIGHT TO HAVE 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 CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.



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     Section 13.9 Costs, Expenses and Taxes.



     (a) In addition to the rights of indemnification granted to the
Administrative Agent, the Purchaser Agents, the Backup Servicer, the Collateral
Custodian, the Secured Parties and its or their Affiliates and officers,
directors, employees and agents thereof under Article XI hereof, the Seller and
Originator agrees to pay on demand all reasonable costs and expenses of the
Administrative Agent, the Purchaser Agents, the Backup Servicer, the Collateral
Custodian and the Secured Parties incurred in connection with the preparation,
execution, delivery, administration (including periodic auditing, which shall
be limited to two audits per year prior to the occurrence of a Termination
Event), renewal, amendment or modification of, or any waiver or consent issued
in connection with, this Agreement and the other documents to be delivered
hereunder or in connection herewith (including any Hedging Agreement),
including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent, the Purchaser Agents, the Backup
Servicer, the Collateral Custodian and the Secured Parties with respect thereto
and with respect to advising the Administrative Agent, the Purchaser Agents,
the Backup Servicer, the Collateral Custodian and the Secured Parties as to
their respective rights and remedies under this Agreement and the other
documents to be delivered hereunder or in connection herewith (including any
Hedging Agreement), and all costs and expenses, if any (including reasonable
counsel fees and expenses), incurred by the Administrative Agent, the Purchaser
Agents, the Backup Servicer, the Collateral Custodian or the Secured Parties in
connection with the enforcement of this Agreement and the other documents to be
delivered hereunder or in connection herewith (including any Hedging
Agreement).



     (b) The Seller and Originator shall pay on demand any and all stamp,
sales, excise and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of this
Agreement, the other documents to be delivered hereunder
or any agreement or other document providing liquidity support, credit
enhancement or other similar support to the Purchasers and the Swingline
Purchaser in connection with this Agreement or the funding or maintenance of
Advances or Swingline Advances hereunder.



     (c) The Seller and Originator shall pay on demand all other reasonable
costs, expenses and Taxes (excluding income taxes) incurred by the
Administrative Agent, the Purchaser Agents, the Secured Parties (“Other
Costs”), including, without limitation, all costs and expenses incurred by
the Administrative Agent and the Purchaser Agents in connection with periodic
audits of the Seller’s or the Servicer’s books and records.



     Section 13.10 No Proceedings.



     (a) Each of the parties hereto (other than VFCC) and each Hedge
Counterparty (by accepting the benefits of this Agreement) hereby agrees that
it will not institute against, or join any other Person in instituting against,
VFCC, the Administrative Agent, the VFCC or any Liquidity Banks any Insolvency
Proceeding so long as any commercial paper issued by VFCC shall be outstanding
and there shall not have elapsed one year and one day since the last day on
which any such commercial paper shall have been outstanding.



145









 





     (b) Each of the parties hereto (other than a particular Additional
Purchaser) hereby agrees that it will not institute against, or join any other
Person in instituting against such Additional Purchaser, the related Additional
Agent or any of its Liquidity Banks any Insolvency Proceeding so long as any
commercial paper issued by such Additional Purchaser shall be outstanding and
there shall not have elapsed one year and one day since the last day on which
any such commercial paper shall have been outstanding.



     (c) Each of the parties hereto (other than the Administrative Agent
without the consent of the Purchaser Agents) hereby agrees that it will not
institute against, or join any other Person in instituting against, the Seller
any Insolvency Proceeding so long as there shall not have elapsed one year and
one day since the Collection Date; provided, that nothing in this
Section 13.10 shall limit any party’s right to file any claim in or
otherwise take any action with respect to any insolvency proceeding that was
instituted by any other Person.



     Section 13.11 Recourse Against Certain Parties.



     (a) No recourse under or with respect to any obligation, covenant or
agreement (including, without limitation, the payment of any fees or any other
obligations) of the Administrative Agent, the Purchaser Agents, or any Secured
Party as contained in this Agreement or any other agreement, instrument or
document entered into by it pursuant hereto or in connection herewith shall be
had against any administrator of the Administrative Agent, the Purchaser
Agents, or any Secured Party, or any incorporator, affiliate, stockholder,
officer, employee or director of the Administrative Agent, the Purchaser
Agents, or any Secured Party, or of any such administrator, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly
agreed and understood that the agreements of the
Administrative Agent, the Purchaser Agents, or any Secured Party contained in
this Agreement and all of the other agreements, instruments and documents
entered into by it pursuant hereto or
in connection herewith are, in each case, solely the corporate obligations
of the Administrative Agent, the Purchaser Agents, or any Secured Party, and
that no personal liability whatsoever shall attach to or be incurred by any
administrator of the Administrative Agent, the Purchaser Agents, or any Secured
Party or any incorporator, stockholder, affiliate, officer, employee or
director of the Administrative Agent, the Purchaser Agents, or any Secured
Party or of any such administrator, as such, or any other of them, under or by
reason of any of the obligations, covenants or agreements of the Administrative
Agent, the Purchaser Agents, or any Secured Party contained in this Agreement
or in any other such instruments, documents or agreements, or that are implied
therefrom, and that any and all personal liability of every such administrator
of the Administrative Agent, the Purchaser Agents, or any Secured Party and
each incorporator, stockholder, affiliate, officer, employee or director of the
Administrative Agent, the Purchaser Agents, or any Secured Party or of any such
administrator, or any of them, for breaches by the Administrative Agent, the
Purchaser Agents, or any Secured Party of any such obligations, covenants or
agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement. The
provisions of this Section 13.11 shall survive the termination of this
Agreement.



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     (b) Notwithstanding anything in this Agreement to the contrary, neither
VFCC nor any Additional Purchaser shall have any obligation to pay any amount
required to be paid by it hereunder in excess of any amount available to VFCC
or such Additional Purchaser, as applicable, after paying or making provision
for the payment of its Commercial Paper Notes. All payment obligations of VFCC
and each Additional Purchaser, as applicable, hereunder are contingent on the
availability of funds in excess of the amounts necessary to pay its Commercial
Paper Notes; and each of the other parties hereto agrees that it will not have
a claim under Section 101(5) of the Bankruptcy Code if and to the extent
that any such payment obligation owed to it by VFCC or an Additional Purchaser,
as applicable, exceeds the amount available to VFCC or such Additional
Purchaser, as applicable, to pay such amount after paying or making provision
for the payment of its Commercial Paper Notes.



     (c) Notwithstanding any contrary provision set forth herein, no claim may
be made by the Seller, the Originator or the Servicer or any other Person
against the Administrative Agent and the Secured Parties or their respective
Affiliates, directors, officers, employees, attorneys or agents for any
special, indirect, consequential or punitive damages in respect to any claim
for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act,
omission or event occurring in connection therewith; and the Seller, the
Originator and the Servicer each hereby waives, releases, and agrees not to sue
upon any claim for any such damages, whether or not accrued and whether or not
known or suspected.



     (d) No obligation or liability to any Obligor under any of the Assets is
intended to be assumed by the Administrative Agent and the Secured Parties
under or as a result of this Agreement and the transactions contemplated hereby




		
	     Section 13.12 	Protection of Right, Title and Interest in the
Collateral; Further Action Evidencing Advances and Swingline
Advances.





     (a) The Servicer shall cause this Agreement, all amendments hereto and/or
all financing statements and continuation statements and any other necessary
documents covering the right, title and interest of the Administrative Agent as
agent for the Secured Parties and of the Secured Parties to the Collateral to
be promptly recorded, registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such 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 Parties hereunder to all
property comprising the Collateral. The Servicer shall deliver to the
Administrative Agent file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. The Seller shall cooperate
fully with the Servicer in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this Section 13.12(a).



     (b) The Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all instruments and documents, and take all
actions, that the Administrative Agent may reasonably request in order to
perfect, protect or more fully evidence the Advances and Swingline Advances
hereunder and the security interest granted in the Collateral, or to enable the



147









 








Administrative Agent or the Secured Parties to exercise and enforce their
rights and remedies hereunder or under any Transaction Document.



     (c) If the Seller or the Servicer fails to perform any of its obligations
hereunder, the Administrative Agent or any Secured Party may (but shall not be
required to) perform, or cause performance of, such obligation; and the
Administrative Agent’s or such Secured Party’s costs and expenses incurred in
connection therewith shall be payable by the Seller as provided in Article
XI. The Seller irrevocably authorizes the Administrative Agent and
appoints the Administrative Agent as its attorney-in-fact to act on behalf of
the Seller (i) to execute on behalf of the Seller as debtor and to file
financing statements necessary or desirable in the Administrative Agent’s sole
discretion to perfect and to maintain the perfection and priority of the
interest of the Secured Parties in the Collateral and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing statement
with respect to the Collateral as a financing statement in such offices as the
Administrative Agent in its sole discretion deems necessary or desirable to
perfect and to maintain the perfection and priority of the interests of the
Secured Parties in the Collateral. This appointment is coupled with an
interest and is irrevocable.



     (d) Without limiting the generality of the foregoing, Seller will, not
earlier than six months and not later than three months prior to the fifth
anniversary of the date of filing of the financing statement referred to in
Section 3.1 or any other financing statement filed pursuant to this
Agreement or in connection with any Advance or Swingline Advance hereunder,
unless the Collection Date shall have occurred:




          (i) execute and deliver and file or cause to be filed an appropriate
continuation statement with respect to such financing statement; and




          (ii) deliver or cause to be delivered to the Administrative Agent an
opinion of the counsel for Seller, in form and substance reasonably
satisfactory to the Administrative Agent, confirming and updating the
opinion delivered pursuant to Section 3.1 with respect to
perfection and otherwise to the effect that the security interest
hereunder continues to be an enforceable and perfected security interest,
subject to no other Liens of record except as provided herein or
otherwise permitted hereunder, which opinion may contain usual and
customary assumptions, limitations and exceptions.



     Section 13.13 Confidentiality



     (a) Each of the Administrative Agent, the Purchaser Agents, the Secured
Parties, the Servicer, the Collateral Custodian, the Backup Servicer and the
Seller shall maintain and shall cause each of its employees and officers to
maintain the confidentiality of the Agreement and all information with respect
to the other parties, including all information regarding the business of the
Seller and the Servicer hereto and their respective businesses obtained by it
or them in connection with the structuring, negotiating and execution of the
transactions contemplated herein, except that each such party and its officers
and employees may (i) disclose such information to its external accountants,
attorneys, investors, potential investors and the agents of such Persons
(“Excepted Persons”); provided, however, that each
Excepted Person shall, as a condition to any such disclosure, agree for the
benefit of the Administrative Agent, the Purchaser



148









 







Agents, the Secured Parties,
the Servicer, the Collateral Custodian, the Backup Servicer and the Seller that
such information shall be used solely in connection with such Excepted Person’s
evaluation of, or relationship with, the Seller and its affiliates, (ii)
disclose the existence of the Agreement, but not the financial terms thereof,
(iii) disclose such information as is required by Applicable Law and (iv)
disclose the Agreement and such information in any suit, action, proceeding or
investigation (whether in law or in equity or pursuant to arbitration)
involving any of the Transaction Documents or any Hedging Agreement for the
purpose of defending itself, reducing its liability, or protecting or
exercising any of its claims, rights, remedies, or interests under or in
connection with any of the Transaction Documents or any Hedging Agreement. It
is understood that the financial terms that may not be disclosed except in
compliance with this Section 13.13(a) include, without limitation, all
fees and other pricing terms, and all Termination Events, Servicer Defaults,
and priority of payment provisions.



     (b) Anything herein to the contrary notwithstanding, the Seller and the
Servicer each hereby consents to the disclosure of any nonpublic information
with respect to it (i) to the Administrative Agent, the Purchaser Agents, the
Collateral Custodian, the Backup Servicer or the Secured Parties by each other,
(ii) by the Administrative Agent, the Purchaser Agents, the Collateral
Custodian, the Backup Servicer and the Secured Parties to any prospective or
actual assignee or participant of any of them provided such Person agrees to
hold such information confidential, or (iii) by the Administrative Agent, the
Purchaser Agents, and the Secured Parties to any commercial paper dealer or
provider of a surety, guaranty or credit or liquidity enhancement to any
Purchaser, as applicable, and to any officers, directors, employees, outside
accountants and attorneys of any of the foregoing, provided each such Person is
informed of the confidential nature of such information. In addition, the
Secured Parties, the Administrative Agent and the Purchaser Agents, may
disclose any such nonpublic information as required
pursuant to any law, rule, regulation, direction, request or order of any
judicial, administrative or regulatory authority or proceedings (whether or not
having the force or effect of law).



     (c) Notwithstanding anything herein to the contrary, the foregoing shall
not be construed to prohibit (i) disclosure of any and all information that is
or becomes publicly known; (ii) disclosure of any and all information (a) if
required to do so by any applicable statute, law, rule or regulation, (b) to
any government agency or regulatory body having or claiming authority to
regulate or oversee any respects of the Administrative Agents’, the Purchaser
Agents’, the Secured Parties’, the Collateral Custodian’s or the Backup
Servicer’s business or that of their affiliates, (c) pursuant to any subpoena,
civil investigative demand or similar demand or request of any court,
regulatory authority, arbitrator or arbitration to which the Administrative
Agent, the Purchaser Agents, the Secured Parties, the Collateral Custodian or
the Backup Servicer or an officer, director, employer, shareholder or affiliate
of any of the foregoing is a party, (d) in any preliminary or final offering
circular, registration statement or contract or other document approved in
advance by the Seller, the Servicer or the Originator or (e) to any affiliate,
independent or internal auditor, agent, employee or attorney of the Collateral
Custodian or Backup Servicer having a need to know the same, provided,
that the Collateral Custodian or Backup Servicer advises such recipient
of the confidential nature of the information being disclosed; or (iii) any
other disclosure authorized by the Seller, Servicer or Originator.



149









 





     Section 13.14 Execution in Counterparts; Severability;
Integration.



     This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts (including by facsimile),
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement. In case
any provision in or obligation under this Agreement shall be invalid, illegal
or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired
thereby. This Agreement and any agreements or letters (including fee letters)
executed in connection herewith contains the final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter hereof, superseding all prior oral or written
understandings other than any fee letter delivered by the Originator to the
Administrative Agent, the Purchaser Agents, and the Secured Parties.



     Section 13.15 Waiver of Setoff.



     (a) Each of the parties hereto (other than VFCC) hereby waives any right
of setoff it may have or to which it may be entitled under this Agreement from
time to time against VFCC or its assets.



     (b) Each of the parties hereto (other than any one of the Additional
Purchasers) hereby waives any right of setoff it may have or to which it may be
entitled under this Agreement from time to time against such Additional
Purchaser or its assets.



     Section 13.16 Assignments.



     (a) The Purchasers may at any time assign, or grant a security interest or
sell a participation interest in, any Advance (or portion thereof) to any
Person; provided, that, in the case of an assignment of the VFCC
Variable Funding Certificate or Additional Purchaser Variable Funding
Certificate, the assignee (other than any assignee that is a Liquidity Bank)
shall execute and deliver to the Servicer and the Administrative Agent a
Transferee Letter substantially in the form of Exhibit K hereto (the
“Transferee Letter”). The parties to any such assignment, grant or sale
of participation interest shall execute and deliver to the VFCC Agent or the
related Additional Agent, as applicable, for its acceptance and recording in
its books and records, such agreement or document as may be satisfactory to
such parties and the VFCC Agent or such Additional Agent, as applicable. The
Seller shall not assign or delegate, or grant any interest in, or permit any
Lien to exist upon, any of the Seller’s rights, obligations or duties under
this Agreement without the prior written consent of the Administrative Agent
and each Hedge Counterparty.



     (b) The Originator may, with the written consent of the Administrative
Agent and VFCC, add additional Persons as an Additional Purchaser or an
Additional Agent or cause an existing Purchaser to increase its Commitment;
provided, however, that the Commitment of any Purchaser may only
be increased with the prior written consent of such Purchaser and the
Administrative Agent. Each new Additional Purchaser and Additional Agent shall
become a



150









 







party hereto by executing and delivering to the Administrative Agent
and the Originators an Assumption Agreement substantially in the form of
Exhibit L hereto (the “Assumption Agreement”).



     Section 13.17 Heading and Exhibits.



     The headings herein are for purposes of references only and shall not
otherwise affect the meaning or interpretation of any provision hereof. The
schedules and exhibits attached hereto and referred to herein shall constitute
a part of this Agreement and are incorporated into this Agreement for all
purposes.



     Section 13.18 Loans Subject to Retained Interest Provisions.



     (a) With respect to any Loan included in the Collateral subject to the
Retained Interest provisions of this Agreement, the Seller will own only the
principal portion of such Loans outstanding as of the applicable Cut-Off Date.
Principal Collections received by the Seller or the Servicer on any Revolving
Loans (other than such Loans to SPE Obligors) will be allocated first to the
portion of such Revolving Loan owned by the Seller, until the principal amount
of such portion is reduced to zero, and then to the portion not owned by the
Seller; provided, however, if (i) a payment default occurs with respect
to any of the related Loans, (ii) a Liquidity Factor Reduction Event occurs and
continues, (iii) the Originator has determined in its sole discretion that an
Obligor’s credit has deteriorated or the Originator has determined in its sole
discretion to reduce its commitment to an Obligor, or (iv) an Allocation
Adjustment Event occurs, then Principal Collections received on (x) the
applicable Loan (in the case of clause (i) or (iii) above or
during the time that a Liquidity Factor Reduction Event exists and continues in
the case of clause (ii) above) or (y) all the Revolving Loans (in the
case of clauses (iv) above) will be allocated between the portion
owned by the Seller and the portion not owned by the Seller, pro rata based
upon the outstanding principal amount of each such portion.



     (b) With respect to any Revolving Loan to SPE Obligors included in the
Collateral subject to the Retained Interest provisions of this Agreement,
Interest Collections received by the Servicer on those Loans will be allocated
between the portion owned by the Seller and the portion not owned by the Seller
on a pro rata basis according to the outstanding principal amount of each such
portion.



     (c) With respect to any Term Loans included in the Collateral subject to
the Retained Interest provisions of this Agreement, Principal Collections and
Interest Collections received by the Servicer will be allocated between the
portion owned by the Seller and to the portion not owned by the Seller (if any)
on a pro rata basis according to the outstanding principal amount of such
portion.



     Section 13.19 Tax Treatment of Advances.



     It is the intention of the Seller and the Purchasers that, for U.S.
federal, state and local income and franchise tax purposes only, the Advances
and Swingline Advances made hereunder will be treated as indebtedness secured
by the Collateral. The Seller, by entering into this Agreement, and the
Purchasers, by making the Advances and Swingline Advances, as applicable,
described herein, agree to treat the Advances and Swingline Advances, as
applicable, for U.S.



151









 







federal, state and local income and franchise tax purposes
as indebtedness. The provisions of this Agreement and all related Transaction
Documents shall be construed to further these intentions of the parties.



[Remainder of Page Intentionally Left Blank.]




152









 







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



	 	 	 	 	 
	THE SELLER:	 	CAPITALSOURCE FUNDING III LLC
	 
	 	 	 	 
	 	 	By: /s/ STEVEN A. MUSELES
	 	 	

	 	 	Name: Steven A. Museles
	 	 	Title: Senior Vice President
	 	 	CapitalSource Funding III LLC
	 	 	4445 Willard Avenue, 12th Floor
	 	 	Chevy Chase, Maryland 20815
	

	 	Attention:
	 	James Mozingo
	

	 	Facsimile No.:
	 	(301) 841-2375
	

	 	Confirmation No.:
	 	(301) 841-2731
	 
	 	 	 	 
	THE ORIGINATOR	 	CAPITALSOURCE FINANCE LLC
	AND SERVICER:
	 	 	 	 
	 
	 	 	 	 
	 	 	By: /s/ STEVEN A. MUSELES
	 	 	

	 	 	Name: Steven A. Museles
	 	 	Title: Senior Vice President
	 	 	CapitalSource Finance LLC
	 	 	4445 Willard Avenue, 12th Floor
	 	 	Chevy Chase, Maryland 20815
	

	 	Attention:
	 	James Mozingo
	

	 	Facsimile No.:
	 	(301) 841-2375
	

	 	Confirmation No.:
	 	(301) 841-2731







[Signatures Continued on the Following Page]


Sale and Servicing Agreement


 









 








	 	 	 	 	 
	VFCC:	 	VARIABLE FUNDING CAPITAL
	 	 	CORPORATION
	 
	 	 	 	 
	Commitment:
	 	 	 	 
	 	 	By: Wachovia Capital Markets, LLC,
	$400,000,000	 	         as attorney-in-fact
	 
	 	 	 	 
	 	 	By: /s/ DOUGLAS R. WILSON, SR.
	 	 	

	 	 	Name: Douglas R. Wilson, Sr.
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	Variable Funding Capital Corporation
	 	 	c/o Wachovia Capital Markets, LLC
	 	 	One Wachovia Center, Mail Code: NC0610
	 	 	Charlotte, North Carolina 28288
	

	 	Attention:
	 	Conduit Administration
	

	 	Facsimile No.:
	 	(704) 383-9579
	

	 	Confirmation No.:
	 	(704) 374-2520







With respect to notices required pursuant to Section 13.2, a copy of
notices sent to VFCC shall be sent to:




	 	 	 	 	 
	 	 	Lord Securities Corp.
	 	 	2 Wall Street, 19th Floor
	 	 	New York, New York 10005
	

	 	Attention:
	 	Vice President
	

	 	Facsimile No.:
	 	(212) 346-9012
	

	 	Confirmation No.:
	 	(212) 346-9008
	 
	 	 	 	 
	THE ADMINISTRATIVE AGENT	 	WACHOVIA CAPITAL MARKETS, LLC
	AND THE VFCC AGENT
	 	 	 	 
	 

	 	By: /s/ PAUL A. BURKHART

	 	 	

	 	 	Name: Paul A. Burkhart
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	Wachovia Capital Markets, LLC
	 	 	One Wachovia Center, Mail Code: NC0600
	 	 	Charlotte, North Carolina 28288
	

	 	Attention:
	 	Raj Shah
	

	 	Facsimile No.:
	 	(704) 383-4012
	

	 	Confirmation No.:
	 	(704) 374-6230







[Signatures Continued on the Following Page]




Sale and Servicing Agreement






 









 








	 	 	 	 	 
	THE SWINGLINE PURCHASER:	 	WACHOVIA BANK, NATIONAL
	 	 	ASSOCIATION
	Commitment:
	 	 	 	 
	 
	 	 	 	 
	$50,000,000	 	By: /s/ RAJ SHAH
	 	 	

	 	 	Name: Raj Shah
	 	 	Title: Director
	 
	 	 	 	 
	 	 	Wachovia Bank, National Association
	 	 	One Wachovia Center, Mail Code: NC0600
	 	 	Charlotte, North Carolina 28288
	

	 	Attention:
	 	Raj Shah
	

	 	Facsimile No.:
	 	(704) 383-4012
	

	 	Confirmation No.:
	 	(704) 374-6230







[Signatures Continued on the Following Page]




Sale and Servicing Agreement


 









 








	 	 	 	 	 
	THE BACKUP SERVICER:	 	WELLS FARGO BANK, NATIONAL
	AND THE COLLATERAL	 	ASSOCIATION, not in its individual capacity but
	CUSTODIAN:	 	solely as Backup Servicer
	 
	 	 	 	 
	 	 	By: /s/ JOE NARDI
	 	 	

	 	 	Name: Joe Nardi
	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	Wells Fargo Bank, National Association
	 	 	Sixth Street and Marquette Avenue
	 	 	MAC N9311-161
	 	 	Minneapolis, Minnesota 55479
	

	 	Attention:
	 	Corporate Trust Services
	

	 	 	 	Collateral-Backed Administration
	

	 	Facsimile No.:
	 	(612) 667-3539
	

	 	Confirmation No.:
	 	(612) 667-8058







[Signatures Continued on the Following Page]




Sale and Servicing Agreement





 









 








	 	 	 
	Acknowledged and Agreed to
	as of the date first written above.
	 
	 	 
	WACHOVIA BANK, NATIONAL ASSOCIATION,
	as the Hedge Counterparty
	 
	 	 
	By: /s/ BRUCE YOUNG
	 	 
	

	Name: Bruce Young
	Title: Senior Vice President
	 
	 	 
	Wachovia Bank, National Association
	One Wachovia Center, DC-8
	Charlotte, North Carolina 28202-0600
	Attention:

	 	Bruce M. Young
	Facsimile No.:

	 	(704) 383-0575
	Confirmation No.:

	 	(704) 383-8778







Sale and Servicing Agreement