exv10w2





Exhibit
10.2


COMPOSITE VERSION reflects all amendments through May 29, 2009


29 May 2009


CS EUROPE FINANCE LIMITED and CS UK FINANCE LIMITED,

as the Borrowers and Guarantors


CAPITALSOURCE FUNDING III LLC and CSE QRS FUNDING I LLC

as Additional Guarantors


EACH OF THE CONDUIT LENDERS AND INSTITUTIONAL LENDERS

FROM TIME TO TIME PARTY HERETO AS LENDERS,

as the Lenders


EACH OF THE LENDER AGENTS

FROM TIME TO TIME PARTY HERETO AS LENDER AGENTS,

as the Lender Agents


EACH OF THE SWINGLINE LENDER AGENTS

FROM TIME TO TIME PARTY HERETO AS SWINGLINE LENDER AGENTS

as the Swingline Lender Agents


EACH OF THE CONDUIT LENDERS AND INSTITUTIONAL LENDERS

FROM TIME TO TIME PARTY HERETO AS SWINGLINE LENDERS,

as the Swingline Lenders


CAPITALSOURCE FINANCE LLC

as the Servicer


WACHOVIA BANK, N.A.

as the Administrative Agent and the Security Trustee


and


WACHOVIA SECURITIES INTERNATIONAL LTD.,

as Lead Arranger and Sole Bookrunner


AMENDED

€100,675,000 MULTICURRENCY FACILITY

AGREEMENT











 








TABLE OF CONTENTS




	 	 	 	 	 
	1. DEFINITIONS AND INTERPRETATION
	 	 	2	 
	 
	 	 	 	 
	2. THE FACILITY
	 	 	43	 
	 
	 	 	 	 
	3. PURPOSE
	 	 	43	 
	 
	 	 	 	 
	4. PROCEDURE FOR EXTENSION OF FACILITY
	 	 	44	 
	 
	 	 	 	 
	5. LOAN TRANSFERS
	 	 	44	 
	 
	 	 	 	 
	6. REPAYMENT, PRE-PAYMENT AND CANCELLATION
	 	 	48	 
	 
	 	 	 	 
	7. INTEREST
	 	 	50	 
	 
	 	 	 	 
	8. PAYMENT MECHANICS
	 	 	52	 
	 
	 	 	 	 
	9. COLLECTIONS AND ALLOCATIONS
	 	 	55	 
	 
	 	 	 	 
	10. PAYMENTS, COMPUTATIONS, ETC.
	 	 	56	 
	 
	 	 	 	 
	11. FEES
	 	 	57	 
	 
	 	 	 	 
	12. TAX GROSS UP AND INDEMNITIES
	 	 	58	 
	 
	 	 	 	 
	13. INCREASED COSTS
	 	 	62	 
	 
	 	 	 	 
	14. OTHER INDEMNITIES
	 	 	64	 
	 
	 	 	 	 
	15. INDEMNIFICATION AND EXPENSES
	 	 	64	 
	 
	 	 	 	 
	16. REPRESENTATIONS AND WARRANTIES
	 	 	67	 
	 
	 	 	 	 
	17. INFORMATION UNDERTAKINGS
	 	 	76	 
	 
	 	 	 	 
	18. GENERAL UNDERTAKINGS
	 	 	78	 
	 
	 	 	 	 
	19. PERMITTED TRANSFER AND SYNDICATION
	 	 	82	 
	 
	 	 	 	 
	20. EVENTS OF DEFAULT
	 	 	84	 
	 
	 	 	 	 
	21. CHANGES TO THE LENDERS
	 	 	87	 
	 
	 	 	 	 
	22. CHANGES TO THE BORROWERS
	 	 	91	 
	 
	 	 	 	 
	23. ROLE OF THE ADMINISTRATIVE AGENT AND THE SECURITY TRUSTEE
	 	 	91	 
	 
	 	 	 	 
	24. CONDUCT OF BUSINESS BY THE SECURED PARTIES
	 	 	98	 






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	25. PAYMENT MECHANICS
	 	 	98	 
	 
	 	 	 	 
	26. BORROWER CROSS-GUARANTEE AND INDEMNITY
	 	 	102	 
	 
	 	 	 	 
	27. ADDITIONAL GUARANTEE
	 	 	105	 
	 
	 	 	 	 
	28. SET-OFF
	 	 	108	 
	 
	 	 	 	 
	29. NOTICES
	 	 	109	 
	 
	 	 	 	 
	30. CALCULATIONS AND CERTIFICATES
	 	 	114	 
	 
	 	 	 	 
	31. PARTIAL INVALIDITY
	 	 	114	 
	 
	 	 	 	 
	32. REMEDIES AND WAIVERS
	 	 	114	 
	 
	 	 	 	 
	33. AMENDMENTS AND WAIVERS
	 	 	114	 
	 
	 	 	 	 
	34. COUNTERPARTS
	 	 	123	 
	 
	 	 	 	 
	35. GOVERNING LAW
	 	 	124	 
	 
	 	 	 	 
	36. ENFORCEMENT
	 	 	124	 
	 
	 	 	 	 
	37. SERVICE OF PROCESS
	 	 	124	 







- iv -









 







THIS AMENDED FACILITY AGREEMENT (this “Agreement”) is dated 29 May 2009 and made among:





	(1)	 	CS EUROPE FINANCE LIMITED (“CSEF”), a wholly-owned subsidiary of CapitalSource Europe
Limited. incorporated in England and Wales under registered number 6340019 and CS UK FINANCE
LIMITED (“CSUF”), a wholly-owned subsidiary of CapitalSource UK Limited incorporated in
England and Wales under registered number 6340034, each as a borrower and guarantor (each, a
“Borrower” and together the “Borrowers” and each a “Guarantor” and together the “Guarantors”);
	 
	(2)	 	CAPITALSOURCE FUNDING III LLC, a special purpose bankruptcy remote wholly owned subsidiary of
CapitalSource Finance LLC and CSE QRS FUNDING I LLC, a special purpose bankruptcy remote
wholly owned subsidiary of CSE Mortgage LLC, (each an “Additional Guarantor”, and together,
the “Additional Guarantors”);
	 
	(3)	 	EACH OF THE CONDUIT LENDERS FROM TIME TO TIME PARTY HERETO AND LISTED IN ANNEX B FROM TIME TO
TIME AS A CONDUIT LENDER, (each a “Conduit Lender” and together the “Conduit Lenders”);
	 
	(4)	 	EACH OF THE INSTITUTIONAL LENDERS FROM TIME TO TIME PARTY HERETO AND LISTED IN ANNEX B FROM
TIME TO TIME AS AN INSTITUTIONAL LENDER, (each an “Institutional Lender” and together the
“Institutional Lenders”);
	 
	(5)	 	EACH OF THE LENDER AGENTS FROM TIME TO TIME PARTY HERETO AND LISTED IN ANNEX B FROM TIME TO
TIME AS A LENDER AGENT, (each a “Lender Agent” and together the “Lender Agents”);
	 
	(6)	 	EACH OF THE CONDUIT LENDERS AND INSTITUTIONAL LENDERS LISTED IN ANNEX B FROM TIME TO TIME AS
A SWINGLINE LENDER, (each, a “Swingline Lender”, together the “Swingline Lenders” and,
together with the Conduit Lenders and the Institutional Lenders, the “Lenders”);
	 
	(7)	 	EACH OF THE SWINGLINE LENDER AGENTS FROM TIME TO TIME PARTY HERETO AND LISTED IN ANNEX B FROM
TIME TO TIME AS A SWINGLINE LENDER AGENT, (each a “Swingline Lender Agent” and together the
“Swingline Lender Agents”);
	 
	(8)	 	CAPITALSOURCE FINANCE LLC, as the servicer (the “Servicer”);
	 
	(9)	 	WACHOVIA BANK, N.A., as the administrative agent, (the “Administrative Agent”) and as the
security trustee (the “Security Trustee”); and
	 
	(10)	 	WACHOVIA SECURITIES INTERNATIONAL LTD., as lead arranger (the “Lead Arranger”) and sole
bookrunner (the “Sole Bookrunner”).





WHEREAS,





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	 	(A)	 	The parties hereto entered into a €250,000,000 multicurrency facility agreement
dated 3 October 2007, as amended on 24 September 2008 and as amended on 10 February 2009
(the “Facility Agreement”) whereby the Lenders have
made available to the Borrowers a multicurrency loan facility in order to finance the purchase and
origination of certain Eligible Loans (as defined in the Facility Agreement), subject to
the terms specified therein;
	 
	 	(B)	 	The parties hereto have agreed to make certain amendments to the Facility Agreement by
a deed of amendment dated 29 May 2009 (the “Deed of Amendment”)’
	 
	 	(C)	 	The Amendment Agreement shall amend and restate the Facility Agreement as set out
herein;
	 
	 	(D)	 	The Borrowers intend to re-finance the Facility through a non-managed collateralised
debt obligation and transfer assets to companies which at the time of such transfer will be
asset-holding or note-issuing companies for the purposes of Regulations 5 or 6 of The
Taxation of Securitisation Companies Regulations 2006;
	 
	 	(E)	 	Each of the Borrowers intends to retain a profit of not less than €5,000 per annum;
	 
	 	(F)	 	Each of the Borrowers intends that it will satisfy the payments condition provided in
Regulation 11 of The Taxation of Securitisation Companies Regulations 2006. Each of the
Borrowers therefore enters into this Agreement with the intention that if it receives any
amounts (“R”) during an accounting period (as defined in section 12 of the Income and
Corporation Taxes Act 1988), it will pay out to parties, during that accounting period or
within 18 months after the end of that accounting period, the total amount of R minus: (i)
any amount retained as profit; (ii) any amount reasonably required to provide for losses or
expenses arising from its business; and (iii) any amount reasonably required to maintain or
enhance its creditworthiness; and
	 
	 	(G)	 	Each of the Borrowers also intends to ensure that any amounts that: (i) are no longer
reasonably required to provide against losses or expenses arising from its business; (ii)
are no longer reasonably required to maintain such Borrower’s creditworthiness; or (iii)
are required to be used to meet such losses or expenses, will be added to R for purposes of
the preceding paragraph for the accounting period in which such amounts are determined to
no longer be required or are used.





IT IS AGREED as follows:





	1.	 	DEFINITIONS AND INTERPRETATION
	 
	1.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	“Account Bank” means Bank of America, N.A. or any replacement Account Bank appointed pursuant
to the terms of the Servicing Agreement.
	 
	 	 	“Accreted Interest” shall mean the accrued interest on a PIK Loan that is added to the
principal amount of such PIK Loan instead of being paid as it accrues.




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	 	 	“Accrual Period” means, with respect to (i) the first Payment Date, the period from and
including the date of the Initial Advance, to and including the last day of the calendar
month immediately preceding the first Payment Date and (ii) any subsequent
Payment Date, the period from and including the first calendar day of the calendar month in
which the immediately preceding Payment Date occurred, to and including the last day of the
calendar month immediately preceding such subsequent Payment Date.
	 
	 	 	“Additional Cost Rate” has the meaning given to it in ANNEX C (Mandatory Cost Formulae).
	 
	 	 	“Additional Guarantee” means the guarantee granted by the Additional Guarantors in Clause 27.
	 
	 	 	“Adjusted Balance” on any date of determination shall be calculated as follows:






	 	(i)	 	for any Defaulted Loan, the Outstanding Loan Balance of such Loan multiplied by
the lesser of (a) the Recovery Rate or (b) 100% minus the percentage equivalent of
specific reserves taken by the Servicer for such Loan per the Credit and Collection
Policy, provided that if a Loan is and continues to be a Defaulted Loan for a period of
one year, the Adjusted Balance will be reduced to zero; and
	 
	 	(ii)	 	for any Loan rated 5 or 6 (but not a Defaulted Loan), the Outstanding Loan
Balance of such Loan multiplied by 100% minus the percentage equivalent of specific
reserves taken by the Servicer for such loan per the Credit and Collection Policy.






	 	 	“Administrative Agent’s Accounts” means the accounts set out on ANNEX E attached hereto.
	 
	 	 	“Advance” means any outstanding advance of funds by the Lenders to the Borrowers under the
terms of this Agreement.
	 
	 	 	“Advance Cut-Off” means 11:00 a.m. (London time) on the day falling two Business Days after
the Funding Date in respect of an Advance.
	 
	 	 	“Advances Outstanding” means on any day, the aggregate principal amount outstanding of
Advances made under the Facility by the Lenders on such day, after giving effect to all
repayments of Advances on such day; provided that the Advances Outstanding may be reduced by:






	 	(a)	 	Principal Collections; and
	 
	 	(b)	 	Repayments,






	 	 	provided further that the principal amount of any Advance in an Alternative Currency shall in
each case other than for the purpose of calculating the Cost of Funds, be computed using the
Euro Equivalent of such Advance on such day.
	 
	 	 	“Affected Party” means the Administrative Agent, each Lender Agent, each Lender, all
assignees and participants of the Lenders including any Conduit Assignee,





- 3 -









 





	 	 	any successor to
Wachovia Bank, N.A. as Administrative Agent and any sub-agent of the Administrative Agent.
	 
	 	 	“Affiliate” with respect to a Person, means any other Person controlling, controlled by or
under common control with 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 power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting shares, by contract
or otherwise; and the terms “controlling” or “controlled” have meanings correlative to the
foregoing; provided that in the case of the Servicer or any Subsidiary, “Affiliate” shall not
include any Obligor or any Person in which a Borrower has a Portfolio Investment.
	 
	 	 	“Aggregate Outstanding Loan Balance” means, as of any date of determination, the sum of the
Outstanding Loan Balances of all Eligible Loans included as part of the Collateral on such
date (x) minus the Outstanding Loan Balances of all Defaulted Loans included as part of the
Collateral on such date, (y) minus the Outstanding Loan Balances of all Loans rated 5 or 6
(except those which have been designated as Defaulted Loans) and (z) plus the aggregate
Adjusted Balances of Defaulted Loans and the aggregate Adjusted Balances of Loans rated 5 or
6; provided that there shall be no double counting of Loans as between items x, y and z.
	 
	 	 	“Aggregate Combined Facility Unpaids” has the meaning given to the term “Aggregate Unpaids”
in the Combined Facility.
	 
	 	 	“Aggregate Unpaids” means, at any time, an amount equal to the sum of all unpaid Advances
Outstanding, Cost of Funds, Breakage Costs and all other amounts owed by the relevant
Borrower to the Lenders, the Lender Agents, the Swingline Lender Agents, the Administrative
Agent, the Servicer, the Successor Servicer, the Account Bank and the Security Trustee
hereunder or under the other Transaction Documents (including, without limitation, all
Indemnified Amounts, other amounts payable under Clause 14 and amounts required to be paid
under Clause 12 to any Indemnified Party) or by a Borrower or any other Person under any fee
letter delivered in connection with the transactions contemplated by this Agreement, in each
case whether due or accrued.
	 
	 	 	“Alternative Currency” means, at any time, any of Dollars, Pounds Sterling, and, with the
agreement of each Lender, any other Currency other than Euro, so long as, in respect of any
Currency that is to be considered an Alternative Currency, at such time:






	 	(a)	 	such Currency is dealt with in the London interbank deposit market;
	 
	 	(b)	 	such Currency is freely transferable and convertible into Euro in the London
foreign exchange market; and
	 
	 	(c)	 	no central bank or other governmental authorisation in the country of issue of
such Currency is required to permit use of such Currency by any Lender for making an
Advance hereunder or to permit the relevant Borrower to borrow and repay the principal
thereof and to pay the interest thereon, unless such authorisation has been obtained and
is in full force and effect.




- 4 -









 












	 	 	“Alternative Currency Account” means any of the accounts established by the Account Bank from
time to time for the purpose of receiving amounts denominated in an Alternative Currency
other than Dollars and Pounds Sterling.
	 
	 	 	“Alternative Currency Equivalent” means, with respect to any amount stated in Euro, the
amount of the applicable Alternative Currency that would be required to purchase such amount
stated in Euro on any date of calculation, based on the spot selling rate determined by the
Administrative Agent, in its sole discretion, for delivery 2 Business Days later.
	 
	 	 	“Amendment Date” means 29 May 2009.
	 
	 	 	“Amortisation Period” means the period beginning on the Amendment Date and ending on the
Collection Date.
	 
	 	 	“Applicable Law” means for any Person or property of such Person, all 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 and applicable judgments, decrees, injunctions, writs, orders,
or line action of any court, arbitrator or other administrative, judicial, or quasi-judicial
tribunal or agency of competent jurisdiction.
	 
	 	 	“Approved Country” means each Group I Country, Group II Country or Group III Country.
	 
	 	 	“Approved Currency” means Norwegian Krone, Swedish Krona or such other Currency approved in
writing by the Administrative Agent in its sole discretion, so long as, in respect of any
Currency that is to be considered an Approved Currency, at such time:






	 	(a)	 	such Currency is dealt with in the London interbank deposit market;
	 
	 	(b)	 	such Currency is freely transferable and convertible into Euro in the London
foreign exchange market; and
	 
	 	(c)	 	no central bank or other governmental authorisation in the country of issue of
such Currency is required to permit use of such Currency by any Lender for making an
Advance hereunder or to permit the relevant Borrower to borrow and repay the principal
thereof and to pay the interest thereon, unless such authorisation has been obtained and
is in full force and effect.






	 	 	“Available Funds” means with respect to any Payment Date, (a) all amounts held in or credited
to the Collection Accounts (including, without limitation, any Collections on any of the
Collateral) as of the later of (i) the immediately preceding Determination Date or (ii) the
date of the calculations set out in the most recent Borrower Notice and (b) all amounts held
in or credited to the Reserve Fund as of the immediately preceding Determination Date.
	 
	 	 	“Base Currency” means Euro.




- 5 -









 






	 	 	“Base Rate” means in relation to Advances in (i) Dollars, an interest rate per annum equal to
WBNA’s LIBOR market index rate (“LMIR”) as determined by the Administrative Agent in its sole
discretion or, if a LIBOR Disruption Event has occurred and is continuing, the higher of the
Federal Funds Rate in effect on such day plus 0.50% per annum and the Prime Rate in effect on
such day, (ii) Pounds Sterling,
the base rate as set by the Monetary Policy Committee of the Bank of England plus 0.50% per
annum and (iii) Euro, the main refinancing rate as set by the European Central Bank plus
0.50% per annum.
	 
	 	 	“Basel II Framework” means the framework for measuring the capital adequacy of banks in the
form set out in the paper entitled “International Convergence of Capital Measurement and
Capital Standards, a Revised Framework” issued by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this Agreement.
	 
	 	 	“Borrower Cross-Guarantee” means the guarantee of each Borrower in respect of the payment
obligations of each other Borrower pursuant to Clause 26;
	 
	 	 	“Borrower Cut-Off Date” means, with respect to each Loan, the date such Loan is originated or
otherwise acquired by the relevant Borrower, on and after which Collections on such Loan
become included as part of the Collateral.
	 
	 	 	“Borrower Notice” means a written notice, in the form of Exhibit A-1 or Exhibit A-2, as
applicable, to be used for each repayment of each Advance or termination or reduction of the
Facility Amount or prepayments of Advances.
	 
	 	 	“Breakage Costs” means any amount or amounts as shall compensate a party for any loss, cost
or expense incurred by such party (as reasonably determined by the applicable Lender Agent on
behalf of such Lender) as a result of (i) a prepayment by a Borrower of Advances Outstanding
(including Advances Outstanding in an Alternative Currency) or Interest prior to the end of
the then applicable Interest Period, (ii)(a) solely in the case of a Conduit Lender, the
excess, if any, of the CP Rate over the Interest Rate, as applicable, and, (b) solely in the
case of a Borrower, the excess, if any, of the Interest Rate over the CP Rate or (iii) solely
in the case of an Institutional Lender, the excess, if any, of the applicable EURIBOR Rate or
LIBOR Rate over the applicable Base Rate for the number of days that the relevant Advance is
outstanding. All Breakage Costs shall be due and payable upon the next Payment Date following
notification to the Administrative Agent, subject to and in accordance with Clause 7.4.1. The
determination by (x) in the case of Breakage Costs payable to a Lender, the applicable Lender
Agent of the amount of any such loss or expense shall be set out in a written notice to the
Borrower and (y) in the case of Breakage Costs payable to a Borrower by a Conduit Lender as
contemplated by clause (ii)(b) above, the applicable Lender Agent of the amount of any such
loss or expense shall be set out in a written notice to such Borrower, which, in each case,
shall be conclusive absent manifest error. Breakage Costs shall be paid in the currency in
which such costs are incurred by the relevant Lender.
	 
	 	 	“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for
general business in London and New York City and in relation to any date for payment or
purchase of: (i) a Currency other than Euro, the Principal Financial Centre of the country of
that Currency; or (ii) Euro, any TARGET Day that is also a day on




- 6 -









 






	 	 	which dealings in deposits
are conducted by and between banks in the London Interbank market.
	 
	 	 	“Capital Expenditures” means, with respect to any Person and for any period, the sum of
capital expenditures and payments under Capitalised Leases of such Person for such period
determined and consolidated in accordance with GAAP.
	 
	 	 	“Capitalised Leases” means, with respect to any Person, leases of (or other agreements
conveying the right to use) any property (whether real, personal or mixed) by such Person as
lessee that, in accordance with GAAP, either would be required to be classified and accounted
for as capital leases on a balance sheet of such Person or otherwise be disclosed as such in
a note to such balance sheet.
	 
	 	 	“CapitalSource Europe Limited.” means CapitalSource Europe Limited., a company incorporated
in England and Wales with registered number 5433665.
	 
	 	 	“Change-in-Control” means the date on which (a) the Servicer ceases to be CapitalSource
Finance LLC or an Affiliate thereof, (b) CapitalSource Inc. ceases to hold, either directly
or indirectly, more than 50% (or such greater percentage that may be necessary to maintain a
controlling interest) of the share capital in CapitalSource Finance LLC, CapitalSource Europe
Limited., and CapitalSource UK Limited and 100% of the share capital in each of the
Borrowers, (c) CapitalSource Europe Limited. ceases to hold 100% of the share capital in CSEF
or (d) CapitalSource UK Limited ceases to hold 100% of the share capital in CSUF.
	 
	 	 	“Charged Account Control Deed” means the charged account control deed dated 3 October 2007
entered into by each Borrower with the Account Bank and the Security Trustee.
	 
	 	 	“Closing Date” means 3 October 2007.
	 
	 	 	“Collateral” means all right, title and interest, whether now owned or hereafter acquired or
arising, and wherever located, of the Borrowers, in and to property owned, directly or
indirectly, by the Borrowers, including, without limitation, the property described in
paragraphs (i) through (x) below and all accounts, cash and currency, copyrights, copyright
licenses, equipment, fixtures, contract rights, general intangibles, instruments,
certificates of deposit, certificated securities, uncertificated securities, financial
assets, securities entitlements, 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:






	 	(i)	 	the Loans, and all monies due or to become due in payment of such Loans on and
after the related Borrower Cut-Off Date, including but not limited to all Collections
and all obligations owed to the Borrowers in connection with such Loans;
	 
	 	(ii)	 	any Related Property securing or purporting to secure the Loans (to the extent
the relevant Borrower has been Granted Security thereon) including the related Security
Granted by the Obligor under such Loans and all proceeds from any sale or other
disposition of such Related Property;




- 7 -









 






	 	(iii)	 	all Security and property subject thereto from time to time purporting to secure
payment of any Loan, together with all security registration filings required under the
laws of the relevant jurisdiction relating thereto;
	 
	 	(iv)	 	all claims, suits, causes of action, and any other right of the Borrowers,
whether known or unknown, against the related Obligors, if any, or any of their
respective Affiliates, agents, representatives, contractors, advisors, or any other
Person that in any way is based upon, arises out of or is related to any of the
foregoing, including, to the extent permitted to be assigned under applicable law, all
claims (including contract claims, tort claims, professional negligence claims, and
claims under any law governing the purchase and sale of, or indentures for, securities),
suits, causes of action, and any other right of the Borrowers against any lawyer,
accountant, financial advisor, or other Person arising under or in connection with the
related Loan Documents;
	 
	 	(v)	 	all cash, securities, or other property, and all setoffs and recoupments,
received or effected by or for the account of the Borrowers under such Loans (whether
for principal, interest, fees, reimbursement obligations, or otherwise) after the
related Borrower Cut-Off Date, including all distributions obtained by or through
redemption, consummation of a plan of reorganisation, restructuring, liquidation, or
otherwise of any related Obligor or the related Loan Documents, and all cash,
securities, interest, dividends, and other property that may be exchanged for, or
distributed or collected with respect to, any of the foregoing;
	 
	 	(vi)	 	all Insurance Policies;
	 
	 	(vii)	 	the Loan Documents with respect to the Loans;
	 
	 	(viii)	 	all warrants, preferential rights to subscribe, convertibles or other instruments
received as consideration for entering into the Loans;
	 
	 	(ix)	 	each Collection Account and the Reserve Fund, together with all funds held in or
credited to such accounts, and all certificates and instruments, if any, from time to
time representing or evidencing each of the foregoing or such funds;
	 
	 	(x)	 	the proceeds of each of the foregoing; and
	 
	 	(xi)	 	all other property of the Borrowers,






	 	 	but excluding
	 
	 	 	(a) any of the foregoing which has been the subject of a Permitted Transfer; and
	 
	 	 	(b) any Retained Interest or any of items (i) to (xii) above to the extent they relate
exclusively to a Retained Interest or a portion of a loan representing a Retained Interest.
	 
	 	 	“Collateral Custodian” means Wells Fargo Bank, National Association, or any other Person
approved by the Administrative Agent to act as collateral custodian pursuant to the terms of
the Custody Agreement in respect of any US Loans acquired or held by the Borrowers.




- 8 -









 






	 	 	“Collection Account” means each of the Dollar Collection Account, the Euro Collection Account
and the Pounds Sterling Collection Account.
	 
	 	 	“Collection Date” means the date following the Termination Date on which the Obligations have
been reduced to zero and irrevocably paid in full other than contingent indemnification
obligations.
	 
	 	 	“Collection Excluded Amounts” means any amount received by a Borrower on or with respect to
any Collateral, which amount is attributable to (a) the payment of any tax, fee or other
charge imposed by any Governmental Authority on such Loan, (b) any amount representing a
reimbursement of insurance premiums and (c) any amount with respect to the Loan or other
Collateral which has been the subject of a Permitted Transfer (if the relevant Borrower has
decided that such Loan is no longer to be included in the Collateral), to the extent such
amount is attributable to a time after the effective date of the Permitted Transfer.
	 
	 	 	“Collection Period” means with respect to the first Payment Date, the period from and
including the Closing Date to and including the Determination Date preceding the first
Payment Date; and thereafter, the period from but excluding the Determination Date preceding
the previous Payment Date to and including the Determination Date preceding the current
Payment Date.
	 
	 	 	“Collections” means:






	 	(a)	 	all cash collections or other cash proceeds received by the Borrowers (or any
Affiliate of a Borrower) or the Servicer (or any Affiliate of the Servicer) on behalf of
the Borrowers, from any source in payment of any amounts owed in respect of a Loan
(including, without limitation, any Remaining Loan), including, without limitation,
Interest Collections, Principal Collections, Insurance Proceeds, interest earnings in
the Collection Accounts, all Recoveries and any other funds received by or on behalf of
the Borrowers with respect to any Collateral; and
	 
	 	(b)	 	all funds received from the Combined Facility, in accordance with such facility’s
priority of payments, or under the Additional Guarantee,






	 	 	but shall exclude any Collection Excluded Amounts.
	 
	 	 	“Combined Facility” means the $ 106,518,000 Sale and Servicing Agreement to be entered into
between CapitalSource Funding III LLC, CSE QRS Funding I LLC, Wachovia Capital Markets LLC
and others dated 29 May 2009, as the same may be amended from time to time.
	 
	 	 	“Combined Facility Guarantee” means the guarantee of the Combined Facility granted by CSEF
and CSUF in Article XIV of the Combined Facility to guarantee the payment of the “Aggregate
Combined Facility Unpaids”.
	 
	 	 	“Combined Facility Secured Party” has the meaning given to “Secured Party” in the Combined
Facility.
	 
	 	 	“Committed Conduit Lender” means each of the Conduit Lenders identified as such in ANNEX B
from time to time and any other Person to




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	 	 	which such Committed
Conduit Lender may assign all or a portion of its Commitment and its rights and obligations
under this Agreement that is committed to fund Advances hereunder.
	 
	 	 	“Commitment” means with respect to each Lender Group, the commitment (without duplication) of
each Institutional Lender or each Committed Conduit Lender in such Lender Group to make
Advances, in accordance herewith in an amount not to exceed (a) prior to the Termination
Date, the amount set out opposite such Lender’s name in ANNEX B hereto and (b) on and after
the Termination Date, the outstanding Advances of such Lender.
	 
	 	 	“Commitment Fee” means a Commitment Fee, payable in arrears on each Payment Date in Euro in
respect of each Accrual Period, equal to the sum of the products for each day during the
applicable Accrual Period of (i) one divided by 360, (ii) the applicable Commitment Fee Rate
and (iii) the amount of each Lender’s Commitment on such day minus the Advances outstanding
funded by each such Lender on such day, except that in the case of the First Payment Date,
the Accrual Period for purposes of the Commitment Fee shall be deemed to begin on (and
include) the Closing Date and end on (and include) the last day of the calendar month
immediately preceding the First Payment Date. For the avoidance of doubt, no Commitment Fee
shall accrue on or after the Amendment Date.
	 
	 	 	“Commitment Fee Rate” means the rate set out in the Fee Letter.
	 
	 	 	“Concentration Limits” means, on any day prior to the Amendment Date, each of the following
(each limit stated as a percentage shall be calculated on the basis of a percentage of the
Aggregate Outstanding Loan Balance unless otherwise indicated), without double counting:






	 	(a)	 	the sum of the Outstanding Loan Balances of Eligible Loans which have been
included as part of the Collateral for 24 months or more shall not exceed 70%.
	 
	 	(b)	 	the sum of the Outstanding Loan Balances of all Eligible Loans to a single
Obligor (including affiliates thereof) shall not exceed the greater of 8% and
€18,000,000; provided that the Outstanding Loan Balances of all Eligible Loans to the
single largest Obligor (including affiliates thereof) shall not exceed the greater of 8%
and €30,000,000 and the Outstanding Loan Balances of all Eligible Loans to the second
largest Obligor (including affiliates thereof) shall not exceed the greater of 8% and
€21,000,000.
	 
	 	(c)	 	the sum of the Outstanding Loan Balances of all Eligible Loans divided by the
number of Obligors (including affiliates thereof) shall not exceed the greater of 2.5%
and €11,500,000.
	 
	 	(d)	 	the sum of the Outstanding Loan Balances of all Eligible Loans to Obligors which
are in the same Industry (as defined by Moody’s Industry Classifications) for each of
the three largest industry concentrations shall not exceed the greater of 15% and
€37,500,000 and the greater of 15% and €27,500,000 for each other Industry.




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	 	(e)	 	the sum of the Outstanding Loan Balances of Eligible Loans that are denominated
in Dollars shall not in the aggregate exceed the greater of 40% or €70,000,000;
	 
	 	(f)	 	the sum of the Outstanding Loan Balances of all Eligible Loans denominated in an
Approved Currency shall not in the aggregate exceed the greater of 10% or
€15,000,000;
	 
	 	(g)	 	the sum of the Outstanding Loan Balances of Eligible Loans that have a risk
rating of 4, 5 or 6 according to the Servicer’s Credit and Collection Policy shall not
exceed 20%, 10% and 0%, respectively;
	 
	 	(h)	 	the sum of the Outstanding Loan Balances of Eligible Loans denominated in Pounds
Sterling shall not in aggregate exceed the greater of 50% and €100,000,000;
	 
	 	(i)	 	the sum of the Outstanding Loan Balances of Eligible Loans that are unsecured
loans shall not exceed zero; and
	 
	 	(j)	 	The sum of the Outstanding Loan Balances of Eligible Loans that are
Sub-Participation Loans and Regulatory Sub-Participation Loans in the aggregate shall
not exceed the greater of the aggregate percentage and Euro limits outlined in the
following table:





	 	 	 	 	 
	Granting Institution Rating	 	 	 	Aggregate € Limit
	Moody’s/S&P	 	Aggregate % Limit	 	(millions)
	Aa3/AA- and higher

	 	20%
	 	€32.5
	A2/A to but excluding Aa3/AA-
	 	10%
	 	€16
	Regulatory Sub-Participation 

Loans granted by CSEL
	 	10%
	 	€10







	 	Note:	 	 The limits outlined in the table above are cumulative (i.e. the limit of Aa3/AA- and
higher will include both Sub-Participation Loans granted by A2/A to but excluding Aa3/AA-
rated institutions and Regulatory Sub-Participation Loans) provided that the Borrower shall
only acquire such Regulatory Sub-Participation Loans if there are tax or regulatory reasons
which prevent direct acquisition of such Eligible Loan.
	 
	 	“Conduit Assignee” means any special purpose entity that finances its activities directly or
indirectly through the issuance of asset backed commercial paper and is administered by a
Lender Agent or any Affiliate thereof and is designated by a Lender Agent from time to time
to accept an assignment from a Conduit Lender of all or a portion of such Conduit Lender’s
Advances.




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	 	 	“Conduit Lender” means any Committed Conduit Lender (subject to Clause 33.19) and any other
special purpose entity that finances its activities directly or indirectly through asset
backed commercial paper as may from time to time become a Lender hereunder by executing and
delivering a Transfer Certificate to the Administrative Agent and the Borrowers as
contemplated by Clause 21.1 and identified as a Conduit Lender in ANNEX B from time to time;
provided that each Conduit Lender shall be a party to a Liquidity Purchase Agreement.
	 
	 	 	“Contractual Obligation” means, 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.
	 
	 	 	“Cost of Funds” shall mean, in respect of each Accrual Period, the aggregate of the Usage Fee
and the applicable Interest Rate(s) and based upon Advances Outstanding.
	 
	 	 	“Country Grouping” means either a Group I Country, Group II Country or Group III Country
being the country group to which a Loan is attributed by the Servicer acting reasonably and
in good faith based first on where a majority of the Obligor’s revenues are generated,
secondly on where the Obligor’s primary operations are conducted and third on where the
Obligor’s head office is located. For the avoidance of doubt, each Loan shall be attributed
to only one Country Group.
	 
	 	 	“CP Rate” means, for any Interest Period, the per annum rate equivalent to the weighted
average of the per annum rates paid or payable by a Conduit Lender 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 Conduit Lender maturing on dates other than those certain dates on which such
Conduit Lender is to receive funds) in respect of the commercial paper issued by such Conduit
Lender that are allocated, in whole or in part, by the applicable Lender Agent (on behalf of
such Conduit Lender) to fund or maintain the Advances Outstanding during such period, as
determined by the applicable Lender Agent (on behalf of such Conduit Lender) and reported to
the relevant Borrower 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
applicable Lender Agent (on behalf of such Conduit Lender) and (ii) other borrowings by such
Conduit Lender, including, without limitation, borrowings to fund Dollar, GBP or Euro amounts
that are not easily accommodated in the commercial paper market; provided that if any
component of such rate is a discount rate, in calculating the CP Rate, the applicable Lender
Agent shall for such component use the rate resulting from converting such discount rate to
an interest bearing equivalent rate per annum.
	 
	 	 	“Credit and Collection Policy” means the credit and collection policy of the Servicer in
effect on the Closing Date and attached hereto as Exhibit C, furnished to the Administrative
Agent by the Servicer as the same may be amended, modified or supplemented from time to time
in accordance with this Agreement and the Servicing Agreement.




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	 	 	“CSEF” means CS Europe Finance Limited, a company incorporated in England and Wales with
registered number 6340019.
	 
	 	 	“CSUF” means CS UK Finance Limited, a company incorporated in England and Wales with
registered number 6340034.
	 
	 	 	“Currency” means Euro, Dollars, Pounds Sterling or any other currency selected with the
unanimous consent of all of the Lenders.
	 
	 	 	“Currency-Specific Borrowing Base” means on any date of determination, in respect of any
Currency, an amount equal to (i) the sum of the aggregate Outstanding Loan Balance of all
Eligible Loans denominated in such Currency minus (ii) any Defaulted Loans denominated in
such Currency and minus (iii) the sum of the aggregate Outstanding Loan Balances of all Loans
denominated in that currency rated 5 or 6 and plus (iv) the aggregate Adjusted Balances of
all Defaulted Loans and Loans rated 5 or 6 which are denominated in that currency provided
that there shall be no double counting of Loans as between items (ii) (iii) or (iv).
	 
	 	 	“Currency-Specific Maximum Availability” means at any time, in respect of any Currency, an
amount equal to the sum of (i) the Currency-Specific Borrowing Base for such Currency and
(ii) the amount of Principal Collections on deposit in the Collection Accounts received in
reduction of the Outstanding Loan Balance of any Loan denominated in such Currency.
	 
	 	 	“Custody Agreement” means any custody agreement entered into between a Borrower or the
Borrowers, the Security Trustee and Wells Fargo Bank, National Association or such other
Person as approved for such purpose by the Administrative Agent providing for custodial
arrangements in respect, inter alia, of any US Loans acquired or held by the Borrowers.
	 
	 	 	“Debentures” means the debentures, dated on or about the Closing Date and in a form
satisfactory to the Administrative Agent, granted by the Borrowers in favour of the Security
Trustee.
	 
	 	 	“Deed of Subordination” means the deed of subordination, dated the date hereof, between,
inter alia, the Borrowers, the Lenders, CSEL, the Security Trustee and the Administrative
Agent as the same may be amended or supplemented from time to time.
	 
	 	 	“Default” shall mean any event or circumstance specified in Clause 20.1, other than under
Clause 20.1.16 which would (with the expiry of a grace period, the giving of notice, the
making of any determination under the Transaction Documents or any combination of any of the
foregoing) be an Event of Default.
	 
	 	 	“Defaulted Loan” means any Loan: (i) that (a) in the case of Loans with interest payable no
less frequently than quarterly, is 90 days or more past due on any principal or interest
payment, (b) in the case of Loans with interest payable less frequently than quarterly, is 5
or more days past due on any principal or interest payment, (ii) has been modified, waived or
varied due to an inability (or potential inability) of the Obligor to pay principal or
interest, (iii) is on non-accrual status, (iv) is due from an Obligor that is not paying
interest or principal payments on a current basis when due, (v) for which the related Obligor
has become subject to an Insolvency Proceeding or (vi) in respect




- 13 -









 






	 	 	of which the Servicer has determined that the related Obligor is Insolvent or that such Loan
is not collectible in full, provided that a Loan will cease to be a Defaulted Loan under (i)
above if the Obligor pays all arrears in full and remains current on its scheduled interest
and principal payments under such Loan for a period of at least 90 days.
	 
	 	 	“Delayed Draw Term Loan” means a Loan that is fully committed on the initial funding date of
such Loan and is required to be fully funded in one or more instalments on draw dates to
occur within one year of the initial funding of such Loan but which, once all such
instalments have been made, has the characteristics of a Term Loan.
	 
	 	 	“Derivatives” means any exchange-traded or over-the-counter (a) forward, future, option,
swap, cap, collar, floor, foreign exchange contract, any combination thereof, whether for
physical delivery or cash settlement, relating to any interest rate, interest rate index,
currency, currency 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, (b) any similar
transaction, contract, instrument, undertaking or security, or (c) any transaction, contract,
instrument, undertaking or security containing any of the foregoing.
	 
	 	 	“Determination Date” means the last day of each calendar month.
	 
	 	 	“Discharged Rights and Obligations” has the meaning given in Clause 21.4.3(a).
	 
	 	 	“Discretionary Sale” has the meaning given in Clause 5.2.1.
	 
	 	 	“Discretionary Sale Date” means the Business Day identified by the Borrower to the
Administrative Agent in a Discretionary Sale Notice as the proposed date of a Discretionary
Sale.
	 
	 	 	“Discretionary Sale Notice” has the meaning given in Clause 5.2.1(a).
	 
	 	 	“Distribution” has the meaning given in Clause 18.1.1(h).
	 
	 	 	“Dollar Collection Account” means the account specified in Schedule 7 of the Servicing
Agreement maintained in the name of the Borrowers for the purpose of receiving Collections in
Dollars at the Account Bank or any replacement account designated as the “Dollar Collection
Account” which the Borrowers (or the Servicer on behalf of the Borrowers) may open with the
Account Bank in accordance with clause 5.3 of the Servicing Agreement.
	 
	 	 	“Dollars” or “$” means the lawful currency of the United States of America.
	 
	 	 	“Eligible Loan” means any Loan included on the Loan List that satisfies each of the following
requirements on the Amendment Date:






	 	(i)	 	the Loan is a Senior Secured Loan or Subordinated Loan;
	 
	 	(ii)	 	(a) the relevant Borrower has good legal and beneficial title to, and is the sole
owner of, such Loan, (b) the relevant Borrower has Granted to the Security Trustee a
valid and effective security interest in the Loan and Related Property




- 14 -









 






	 	 	 	in accordance with the terms of the Security Document or other instrument purporting
to create such security interest, subject to any filing, registration or
notarisation (including registration of a debenture necessary to perfect such
security interests in circumstances where perfection is required pursuant to the
Transaction Documents and to make such security interest enforceable and effective),
for the benefit of the Secured Parties and (c) all original loan documents required
to be delivered to the Collateral Custodian or CSEL (or applicable affiliate
thereof), with respect to such Loan, have been or will be delivered within a
reasonable and customary timeframe from the applicable funding date;
	 
	 	(iii)	 	the Loan, together with the related Loan Documents or other instruments
evidencing the relevant Borrower’s rights in relation to or interest in the Loan, (a) is
in full force and effect and subject to relevant priority of payments provisions or
intercreditor arrangements in the Loan Documents relating to the relevant Loan,
constitutes the legal, valid and binding obligation of the Obligor of such Loan to pay
the stated amount of the Loan and interest thereon, and the related Loan Documents are
enforceable against such Obligor in accordance with their respective terms and (b) has
not had asserted with respect to it any right of rescission, setoff, counterclaim,
defence or other material dispute;
	 
	 	(iv)	 	all material consents, licenses, approvals or authorizations of, or registrations
or declarations with, any governmental authority or any other person required to be
obtained, effected or given in connection with the making of such Loan and taking
security in any related collateral (“Approvals”) have been obtained, effected or given
and are in full force and effect or if any Approval is not obtained, such approval is
obtained within 60 days of the date on which such Loan is advanced to the related
Obligor, provided that such an Approval is limited to approvals required for the purpose
of the target group in an acquisition financing to perfect any up-stream security
package and further provided that, any Loan made as a share acquisition facility that
does not yet fully comply with criterion (iv) above solely due to pending “whitewash
procedures” or similar procedures will not be deemed ineligible for this reason alone,
provided that (a) such Loan is granted a valid and effective security interest in 100%
of the ownership interest of the related Obligor, (b) no other person has any senior or
pari passu security interest over the assets that are expected to secure the Loan upon
the completion of the “whitewash procedures” unless the Loan is not a senior secured
loan and the sole person(s) with any senior or pari passu interest(s) is/are the senior
creditor(s) ranking prior to the Loan as contemplated in the Loan Documents and (c) if
the “whitewash procedures” are not completed within 60 days of the initial funding of
such Loan, such Loan will be classified as a Subordinated Loan until the “whitewash
procedures” have been completed;
	 
	 	(v)	 	the Loan was originated, documented, closed or purchased in accordance with the
terms of the Credit and Collection Policy and arose in the ordinary course of the
Borrower’s business from the extension of credit to the Obligor thereof;
	 
	 	(vi)	 	such Loan was originated or purchased pursuant to the business plan of CSEL and
its Affiliates in Europe;




- 15 -









 






	 	(vii)	 	as of the date such Loan is first included in the Collateral, (a) such Loan is
not more than 10 days delinquent in payment of principal or interest, (b) such Loan has
not been more than 30 days delinquent in payment of either principal or interest in the
trailing 36-month period (unless otherwise approved by the Administrative Agent), and
(c) on the date such Loan was originated or acquired by the relevant Borrower, no other
loan and/or extension of credit to the related Obligor was more than 30 days delinquent
in payment of either principal or interest in the trailing 36 month period;
	 
	 	(viii)	 	such Loan was purchased at a price of not less than 85% of its par value;
	 
	 	(ix)	 	from and after the date on which the relevant Borrower purchased or originated
such Loan, the Loan is not a Materially Modified Loan and such Loan is not a loan
(including, without limitation, a new loan that replaced a prior loan by the relevant
Borrower or any of its Affiliates to the Obligor that was a Defaulted Loan) or extension
of credit by such Borrower to the Obligor for the purpose of (a) reducing or delaying
payments due on such Loan, (b) preventing such Loan or any other loan to such Obligor
from becoming past due or (c) causing a Defaulted Loan to cease to be so classified;
provided that the foregoing provisions of this paragraph (ix) shall not include any loan
and/or extension of credit provided solely for refinancing purposes at such Loan’s
original scheduled maturity date;
	 
	 	(x)	 	the proceeds of such Loan will not be used to finance activities of the type
engaged in by businesses classified as residential building construction,
non-residential building construction or utility system construction;
	 
	 	(xi)	 	any applicable taxes in connection with the transfer of such Loan have been paid
or will be paid when due and the Obligor has been given any assurances (including with
respect to the payment of transfer taxes and compliance with securities laws) required
by the Loan Documents in connection with the transfer of the Loan;
	 
	 	(xii)	 	payments of interest on such Loan are not subject to withholding or similar tax
imposed by any governmental authority unless (a) such withholding or similar tax can be
sheltered in full under an applicable “double tax treaty” in respect of which the
Obligor and the relevant Borrower have complied with all necessary formalities for such
shelter to be applicable or (b) subject to completion of the necessary formalities and
to customary provisions such as tax credit or tax mitigation provisions the Obligor is
required to make “gross-up” payments on an after-tax basis for the full amount of such
tax;
	 
	 	(xiii)	 	the Loan is denominated and payable only in Euro or in an Alternative Currency and the
related Loan Documents do not permit such Loan to be repaid in any Currency other than
the Currency in which such Loan was made, provided that certain Loans may be denominated
in an Approved Currency subject to currency hedging acceptable to the Administrative
Agent (in each case determined in its sole discretion) for each such Loan individually;
	 
	 	(xiv)	 	such Loan provides for (x) periodic payments of a portion of accrued and unpaid
interest in cash on a current basis, no less frequently than semi-




- 16 -









 






	 	 	 	annually of not less than (a) 4% if the Loan is a fixed rate loan or (b) 1.25% if
the Loan is a Senior Secured Loan with a floating interest rate, or (c) 2% if the
Loan is a floating rate loan other than a Senior Secured Loan and (y) a fixed amount
of principal payable in cash no later than its stated maturity, and does not allow
for the deferral of due interest and principal (ie is not a ‘PIK toggle’ loan);
	 
	 	(xv)	 	the Loan, together with the Loan Documents related thereto, was originated in
accordance with, and does not contravene in a material respect any Applicable Laws
(including, without limitation, laws, rules and regulations relating to usury, predatory
lending, truth in lending, fair credit billing, fair credit reporting, equal credit
opportunity, fair debt collection practices and privacy) and with respect to which no
party to the Loan Documents related thereto is in violation in any material respect of
any such Applicable Laws (which, for the avoidance of doubt, shall in this paragraph
(xv) mean Applicable Laws in effect on the Borrower Cut-Off Date with respect to such
Loan);
	 
	 	(xvi)	 	the Loan, together with the related Loan Documents, is capable of being assigned
or transferred by way of security to the Security Trustee (or its successor, provided
that such successor is a bank) or another bank or financial institution nominated by the
Security Trustee, subject only to customary requirements for the consent of the relevant
Obligor and/or security agent or trustee;
	 
	 	(xvii)	 	the Loan and the relevant Borrower’s interest in all related Collateral and Related
Property are free of any Security, except for Permitted Security;
	 
	 	(xviii)	 	any Related Property with respect to such Loan is insured by the Obligor in
accordance with the Credit and Collection Policy;
	 
	 	(xix)	 	the Loan Documents with respect to such Loan are complete in accordance with the
Credit and Collection Policy and are in the English language (or, to the extent that
Loan Documents are not in English, the relevant Borrower shall provide a copy of the
relevant investment committee meeting minutes, papers or memoranda produced at such
investment committee meeting in English and an English translation of the relevant
financial covenants contained in the Loan Documents) and all such Loan Documents have
been or will be delivered to the Servicer (or applicable affiliate thereof) or the
Security Trustee within a reasonable and customary timeframe from the applicable Funding
Date, but in no event more than 15 Business Days after such Funding Date;
	 
	 	(xx)	 	the Obligor with respect to such Loan is an Eligible Obligor;
	 
	 	(xxi)	 	the Loan does not represent payment obligations relating to “put” rights;
	 
	 	(xxii)	 	the Loan does not by its terms permit the payment obligation of the Obligor thereunder
to be converted into or exchanged for equity capital of such Obligor;




- 17 -









 






	 	(xxiii)	 	the Obligor of such Loan has waived to the fullest extent permitted by law all rights
of set-off and/or counterclaim against the relevant Borrower and all assignees thereof;
	 
	 	(xxiv)	 	all information on the Loan List delivered to the Administrative Agent with respect to
such Loan is true and correct;
	 
	 	(xxv)	 	the Obligor of such Loan has executed all appropriate documentation required by
the Borrower, as required by, and in accordance with, the Credit and Collection Policy
and the Servicing Standard;
	 
	 	(xxvi)	 	as of the date on which such Loan becomes part of the Collateral, the Weighted Average
Spread Test is satisfied; provided that if immediately prior to such date, the Weighted
Average Spread Test was not satisfied, such test is maintained or improved after giving
effect to the inclusion of such Loan in the Collateral (for the avoidance of doubt, the
requirement to satisfy the Weighted Average Spread test applies at the date of inclusion
of a Loan as part of the Collateral but is not a continuing obligation); and
	 
	 	(xxvii)	 	if the Loan is a Revolving Loan or a Delayed-Draw Term Loan, it is subject to the
Retained Interest provision of this Agreement.






	 	 	“Eligible Loan Type” shall refer to the classification of Loans into categories in accordance
with the definitions of Senior Secured Loans or Subordinated Loans, as applicable.
	 
	 	 	“Eligible Obligor” means on any day, any Obligor that satisfies each of the following
requirements at all times:






	 	(i)	 	such Obligor is not a natural person and is a legal operating entity or holding
company, duly incorporated or organised and validly existing under the laws of its
jurisdiction of incorporation or organisation;
	 
	 	(ii)	 	such Obligor is not (and has not been for at least three years immediately
preceding the relevant date of determination) the subject of any Insolvency Proceeding,
unless otherwise approved by the Administrative Agent in its sole discretion;
	 
	 	(iii)	 	such Obligor is not a Governmental Authority;
	 
	 	(iv)	 	such Obligor (a) is not a casino in the business of gaming or gambling, including
accepting, recording or registering bets for money or other items of value (b) is not an
internet-based startup and (c) is not in the nuclear waste, biotechnology, natural
resource exploration and/or production industries unless approved in writing by the
Administrative Agent;
	 
	 	(v)	 	such Obligor is in compliance with all material terms and conditions of its Loan
Documents;
	 
	 	(vi)	 	such Obligor is organised and incorporated and all or substantially all of the
related collateral securing the Loans of such Obligor is located in, an





- 18 -









 





	 	 	 	Approved Country, unless otherwise approved in writing by the Administrative Agent
in its sole discretion;
	 
	 	(vii)	 	such Obligor is not organised in, and does not have a principal office in, any
jurisdiction in which the origination or acquisition of such Loan by the relevant
Borrower would result in a conflict with or breach or violation of any provision of any
Loan Document or the laws of such jurisdiction;
	 
	 	 	 	and
	 
	 	(viii)	 	such Obligor has an Eligible Risk Rating.






	 	 	“Eligible Risk Rating” means, with respect to a designated Obligor, as of the date a Loan to
such Obligor is originated or acquired by the relevant Borrower, a risk rating of 1, 2 or 3
as determined in accordance with the Credit and Collection Policy or such analogous rating
under any successor risk rating system as the Administrative Agent has approved and notified
to the Borrowers, such notice to be in the form provided as Exhibit B.
	 
	 	 	“Equity Security” means any equity security or other obligation or security that does not
entitle the holder thereof to receive periodic payments of interest and one or more
instalments of principal excluding PIK Securities.
	 
	 	 	“EU Insolvency Regulation” means Council Regulation (EC) No. 1346/2000 of 20 May 2000.
	 
	 	 	“EURIBOR Rate” means for any Interest Period for any Advance in Euro, an interest rate per
annum equal to:






	 	(i)	 	the rate appearing on the Screen as EURIBOR Rate for deposits in Euro as of 11:00
a.m. Brussels time two TARGET Days before the applicable Funding Date (with respect to
the initial Interest Period for such Advance) and two TARGET Days before the first day
of the applicable Interest Period (with respect to all subsequent Interest Periods for
such Advance);
	 
	 	(ii)	 	if no such rate appears on the Screen at such time and day, then the EURIBOR Rate
for Euro shall be equal to the arithmetic mean (calculated by the Administrative Agent)
of the offered quotations of four Reference Banks in the Relevant Interbank Market for
deposits in Euro as of 11:00 a.m. Brussels time two TARGET Days before the applicable
Funding Date (with respect to the initial Interest Period for such Advance) and two
TARGET Days before the first day of the applicable Interest Period (with respect to all
subsequent Interest Periods for such Advance); provided that if, on any such date, at
least two of the Reference Banks provide such quotations, EURIBOR shall equal the
arithmetic mean of such quotations; or
	 
	 	(iii)	 	with respect to any Interest Period having a designated maturity of less than
one month, EURIBOR will be determined through the use of straight-line interpolation by
reference to two rates calculated in accordance with paragraphs (i) or (ii) above, one
of which will be determined as if the maturity of the deposits in such Currency referred
to therein were the period of time for




- 19 -









 






	 	 	 	which rates are available next shorter than such Interest Period and the other of
which will be determined as if the maturity were the period of time for which rates
are available next longer than such Interest Period.






	 	 	“EURIBOR Rate Disruption Event” means:






	 	(i)	 	at or about noon on the Quotation Day for the relevant Interest Period the rate
appearing on the Screen as EURIBOR Rate for deposits in Euro is not available and none
or only one of the Reference Banks supplies a rate to the Administrative Agent to
determine the EURIBOR Rate for the relevant currency and Interest Period; or
	 
	 	(ii)	 	before close of business in London on the Quotation Day for the relevant Interest
Period, the Administrative Agent receives notifications from any Institutional Lender
representing, in aggregate, more than 50% of the aggregate Commitment of the Lenders
then in effect, that the cost to it of obtaining matching deposits in the Relevant
Interbank Market would be in excess of EURIBOR.






	 	 	“Euro” or “€” means the lawful currency of the Participating Member States.
	 
	 	 	“Euro Collection Account” means, in relation to each Borrower, the account specified in
Schedule 7 of the Servicing Agreement maintained in the name of such Borrower for the purpose
of receiving Collections in Euro at the Account Bank or any replacement account designated as
the “Euro Collection Account” which such Borrower (or the Servicer on behalf of such
Borrower) may open with the Account Bank in accordance with clause 5.3 of the Servicing
Agreement.
	 
	 	 	“Euro Equivalent” means on any day, with respect to the amount of any Alternative Currency,
the amount of Euro that would be required to purchase such amount of Alternative Currency on
such day, based on the spot selling rate the Administrative Agent for delivery two Business
Days after such date.
	 
	 	 	“Eurocurrency Disruption Event” means with respect to any Currency, the occurrence of any of
the following: (a) any Institutional Lender shall have notified the Administrative Agent of a
determination by such Institutional Lender or any of their respective assignees or
participants, as applicable, 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 such Currency in the London interbank market to fund any Advance or (b) the
Administrative Agent is unable, for any reason, to determine the Interest Rate for such
Currency.
	 
	 	 	“Event of Default” means any event or circumstance specified as such in Clause 20.
	 
	 	 	“Facility” means the multicurrency loan facility made available to the Borrowers by the
Lenders pursuant to this Agreement.
	 
	 	 	“Facility Amount” means on and after the Amendment Date, the lower of €100,675,000 and the
then Advances Outstanding.
	 
	 	 	“Federal Funds Rate” means, with respect to any Lender, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted average




- 20 -









 






	 	 	of the federal funds rate as quoted by the applicable Lender Agent (in the case of any
Conduit Lender or Institutional Lender) and confirmed 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 preceding Business Day), or, if, for
any reason, such rate is not available on any day, the rate determined, in the sole opinion
of each Lender Agent, to be the rate at which federal funds are being offered for sale in the
national federal funds market at 9.00 a.m. (London time).
	 
	 	 	“Fee Letter” means, in respect of fees to accrue on or after 29 May 2009, the fee letter
dated 29 May 2009 (and in respect of fees accrued prior to 29 May 2009, the previous fee
letters dated 10 February 2009, 3 October 2007 and 24 September 2008), between each of the
Borrowers, the Administrative Agent and the Lenders.
	 
	 	 	“First Currency” has the meaning given in Clause 14.
	 
	 	 	“Fixed Rate Loan” means a Loan that is not a Floating Rate Loan.
	 
	 	 	“Floating Rate Loan” means a Loan where the interest rate payable by the Obligor thereof is
based on the prime interest rate or other comparable daily rate, the LIBOR Rate or the
EURIBOR Rate, plus some specified interest percentage in addition thereto, and such Loan
provides that such interest rate will reset at the end of each interest period (howsoever
defined).
	 
	 	 	“Funding Date” means any Business Day on which an Advance is made or rolled-over, being the
first day of each Interest Period.
	 
	 	 	“GAAP” means (i) in the case of any Person organised or incorporated in the United States,
the generally accepted accounting principles in the United States, (ii) in the case of a
Borrower, the generally accepted accounting principles in its country of incorporation or the
United States or applicable international accounting standards and (iii) in the case of any
other Person, the generally accepted accounting principles in accordance with which such
Person prepares its audited accounts. All ratios and computations based on GAAP contained in
this Agreement shall be computed in conformity with GAAP as in effect on the date hereof.
	 
	 	 	“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof,
any entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, any court or arbitrator and any accounting board or
authority (whether or not a part of the government) which is responsible for the
establishment or interpretation of national or international accounting principles.
	 
	 	 	“Grant” shall mean to grant, bargain, sell, warrant, alienate, remise, demise, release,
convey, assign, transfer, mortgage, pledge, create and grant a security interest in and right
of set-off against, deposit, set over and confirm. A Grant of any instrument, shall include
all rights, powers and options (but none of the obligations) of the granting party
thereunder, including without limitation, the immediate and continuing right to claim for,
collect, receive and give receipt for principal and interest payments in respect thereof, and
all other monies payable thereunder, to give and receive notices and other communications, to
make waivers or other agreements, to exercise all rights




- 21 -









 






	 	 	and options, to bring any suit in equity, action at law or other judicial or administrative
proceeding in the name of the granting party or otherwise, and generally to do and receive
anything that the granting party may be entitled to do or receive thereunder or with respect
thereto.
	 
	 	 	“Group I Country” means Canada, the Channel Islands, the Isle of Man, the Netherlands, the
United Kingdom and the United States.
	 
	 	 	“Group II Country” means Germany, Ireland, Sweden and Switzerland.
	 
	 	 	“Group III Country” means Austria, Belgium, Denmark, Finland, France, Italy, Liechtenstein,
Luxembourg, Norway, Portugal and Spain and any other member of the European Economic and
Monetary Union which has a foreign currency issuer credit rating of at least AA from S&P or
Aa2 from Moody’s and which is not a Group I Country or a Group II Country.
	 
	 	 	“Guarantor” means, in respect of each Borrower, the other Borrower pursuant to the Borrower
Cross-Guarantee.
	 
	 	 	“Holding Company” means, in relation to a company or corporation, any other company or
corporation in respect of which it is a Subsidiary.
	 
	 	 	“Increased Costs” means any amounts required to be paid by a Borrower to an Affected Party
pursuant to Clause 13.
	 
	 	 	“Indebtedness” means with respect to any Person as of any date, whether or not reflected on
the balance sheet or comparable statement of financial position of such Person, (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, (including, without limitation, any note, bond, debenture or
similar instrument issued in connection with a securitisation transaction), (b) all
obligations of such Person under 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 Security 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, determined as of such date on a net
mark-to-market basis in accordance with customary market practice and (f) obligations under
direct or indirect guaranties in respect of obligation (contingent or otherwise) to purchase
or otherwise acquire, or to otherwise assure a creditor against loss in respect of, clauses
(a) through (e) above.
	 
	 	 	“Indemnified Amounts” shall have the meaning given in Clause 15.1.1.
	 
	 	 	“Indemnified Parties” shall have the meaning given in Clause 15.1.1.
	 
	 	 	“Independent Director” shall have the meaning given in Clause 16.1.19(p).
	 
	 	 	“Industry” means the industry of an Obligor as determined, in the reasonable discretion of
the relevant Borrower, by reference to the two-digit standard industry classification or
North American Industry Classification System codes.




- 22 -









 






	 	 	“Initial Advance” means the first Advance made under this Agreement.
	 
	 	 	“Insolvency Laws” means the insolvency laws of any country, and all other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganisation, suspension of payments, or similar debtor relief laws from time
to time in effect affecting the rights of creditors generally.
	 
	 	 	“Insolvency Proceeding” means
	 
	 	 	Any corporate action, legal proceedings or other procedure or step is taken by any person in
relation to:






	 	(a)	 	the suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary arrangement, scheme
of arrangement or otherwise) of any Borrower;
	 
	 	(b)	 	a composition, compromise, assignment or arrangement with any creditor of any
Borrower;
	 
	 	(c)	 	the appointment of a liquidator, receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect of any Borrower or any
of its assets; or
	 
	 	(d)	 	enforcement of any Security over any assets of any Borrower,






		 	or any analogous procedure or step is taken in any jurisdiction.
	 
	 	 	“Insolvent” means, in relation to any person, (i) such person is unable or admits inability
to pay its debts as they fall due or is deemed to or declared to be unable to pay its debts
under applicable law; (ii) such person suspends or threatens to suspend making payments on
any of its debts or, by reason of actual or anticipated financial difficulties; (iii) such
person commences negotiations with one or more of its creditors with a view to rescheduling
any of its indebtedness; (iv) the value of the assets of such person is less than its
liabilities (taking into account contingent and prospective liabilities); (v) a moratorium is
declared in respect of any indebtedness of such person; or (vi) such person is engaged in a
business or a transaction or is about to engage in a business or a transaction for which such
person’s property would constitute unreasonably small capital.
	 
	 	 	“Institutional Lender” means each Lender designated as such on its signatures page hereto and
each financial institution other than a commercial paper conduit which may from time to time
become a Lender hereunder by executing and delivering a Transfer Certificate to the
Administrative Agent and the Borrowers as contemplated by Clause 21.1, and in each case
identified as such on ANNEX B hereto.
	 
	 	 	“Insurance Policy” means with respect to any Loan, an insurance policy covering physical
damage to or loss to any assets or Related Property of the Obligor securing such Loan.
	 
	 	 	“Insurance Proceeds” means any amounts payable or any payments made to the relevant Borrower
or to the Servicer on its behalf under any Insurance Policy.





- 23 -









 





     “Interest” means for each Accrual Period and each Advance outstanding during such Accrual
Period, an amount equal to:








Where




	 	 	 	 	 
	N

	 	=
	 	the number of days in the Accrual Period;
	 
	 	 	 	 
	IRi

	 	=
	 	the Interest Rate applicable on day i of the Accrual Period;
	 
	 	 	 	 
	Pi

	 	=
	 	the principal amount of such Advance on day i of the Accrual Period; and
	 
	 	 	 	 
	D

	 	=
	 	360 days or, where an Advance is denominated in Pounds Sterling, 365 or 366
days, as applicable;







	 	 	provided that (i) no provision of this Agreement shall require 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” means any and all amounts received on a Loan from or on behalf of any
Obligors that are deposited into the Collection Accounts, or received by a Borrower or by the
Servicer on behalf of a Borrower in respect of Loans, not constituting Principal Collections
including interest, amendment, waiver fees, late or prepayment fees (but excluding any other
fees provided that such other fees are not structured in a manner to intentionally reduce
Interest Collections).
	 
	 	 	“Interest Period” means (i) with respect to an Advance accruing Interest at the Base Rate,
each day, and (ii) with respect to an Advance accruing Interest at the LIBOR Rate or the
EURIBOR Rate, each calendar month; provided that the initial Interest Period with respect to
such an Advance will be the period from and including the date of such Advance to and
including the last day of the calendar month in which such Advance is made. Notwithstanding
the foregoing, if any Interest Period pertaining to an Advance would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless the result of such extension would be to carry such Interest Period into
another month, in which event such Interest Period shall end on the immediately preceding
Business Day, and any Interest Period in respect of any Advance that would otherwise extend
beyond the Termination Date shall end on the Termination Date.
	 
	 	 	“Interest Rate” shall be calculated pursuant to Clause 7.1.
	 
	 	 	“Investment” means with respect to any Person, any direct or indirect loan, advance or
investment by such Person in any other Person, whether by means of share purchase, capital
contribution, loan or otherwise, excluding commission, travel and similar advances to
officers, employees and directors made in the ordinary course of business.




- 24 -









 






	 	 	“Lender Agent” means with respect to each Conduit Lender which may from time to time become
party hereto, the Person designated as the “Lender Agent” with respect to such Lender in the
applicable Transfer Certificate and identified as such in ANNEX B from time to time; provided
that each Lender designated as an Institutional Lender on its signature page hereto, or as
such for the limited purposes of Clause 33.19, and each other Institutional Lender which may
from time to time become a party hereto, shall be deemed to be its own Lender Agent.
	 
	 	 	“Lender Group” means, (i) with respect to any Conduit Lender, such Conduit Lender and each
Institutional Lender identified as being part of such Conduit Lender’s Lender Group, and each
assignee of any of the foregoing that is otherwise permitted under this Agreement, and (ii)
with respect to any Institutional Lender that is not part of a Conduit Lender’s Lender Group,
such Institutional Lender, in each case as identified as such in ANNEX B from time to time.
	 
	 	 	“LIBOR” means for any Currency, the rate at which deposits denominated in such Currency are
offered to leading banks in the London interbank market.
	 
	 	 	“LIBOR Market Index Rate” means for any day during a specified Accrual Period, the one-month
rate for LIBOR for Dollar deposits as reported on Reuters Page 3750 as of 11:00 a.m., London
time, on such day, or if such day is not a Business Day, then the immediately preceding
Business Day (or if not so reported, then as determined by the Administrative Agent from
another recognised source for interbank quotation).
	 
	 	 	“LIBOR Rate” means for any Interest Period for any Advance in any Alternative Currency, an
interest rate per annum equal to:






	 	(i)	 	the rate appearing on the Screen as LIBOR for deposits in such Alternative
Currency at approximately 11:00 a.m. two Business Days before the applicable Funding
Date (with respect to the initial Interest Period for such Advance) and as of the second
Business Day before the first day of the applicable Interest Period (with respect to all
subsequent Interest Periods for such Advance);
	 
	 	(ii)	 	if no such rate appears on the Screen at such time and day, then the LIBOR Rate
for such Alternative Currency shall be equal to the arithmetic mean (calculated by the
Administrative Agent) of the offered quotations of four Reference Banks in the Relevant
Interbank Market for deposits in such Alternative Currency as of 11:00 a.m. Brussels
time two Business Days before the applicable Funding Date (with respect to the initial
Interest Period for such Advance) and two Business Days before the first day of the
applicable Interest Period (with respect to all subsequent Interest Periods for such
Advance); provided that if, on any such date, at least two of the Reference Banks
provide such quotations, LIBOR shall equal such arithmetic mean of such quotations; or
	 
	 	(iii)	 	with respect to any Interest Period having a designated maturity of less than
one month, (a) for any Advance in an Alternative Currency other than Dollars, LIBOR will
be determined through the use of straight-line interpolation by reference to two rates
calculated in accordance with paragraphs (i) or (ii) above, one of which will be
determined as if the maturity of the deposits in




- 25 -









 






	 	 	 	such Alternative Currency referred to therein were the period of time for which
rates are available next shorter than such Interest Period and the other of which
will be determined as if the maturity were the period of time for which rates are
available next longer than such Interest Period, and (ii) for any Advance in
Dollars, the LIBOR Rate shall be the LIBOR Market Index Rate.






	 	 	“LIBOR Rate Disruption Event” means:






	 	(i)	 	at or about noon on the Quotation Day for the relevant Interest Period, the rate
appearing on the Screen as LIBOR Rate for deposits in Pounds Sterling is not available
and none or only one of the Reference Banks supplies a rate to the Administrative Agent
to determine the LIBOR Rate for the relevant currency and Interest Period; or
	 
	 	(ii)	 	before close of business in London on the Quotation Day for the relevant Interest
Period, the Administrative Agent receives notifications from any Institutional Lender
representing, in aggregate, more than 50% of the aggregate Commitment of the Lenders
then in effect, that the cost to it of obtaining matching deposits in the Relevant
Interbank Market would be in excess of LIBOR.






	 	 	“Liquidation Expenses” means with respect to any Defaulted Loan, the aggregate amount of all
out-of-pocket expenses reasonably incurred by the Borrower or on behalf of the Borrower by
the Servicer (including amounts paid to any subservicer) in connection with the repossession,
refurbishing and disposition of any related assets securing such Loan including the attempted
collection of any amount owing pursuant to such Loan.
	 
	 	 	“Loan” means any commercial loan, note or bond (being a borrowing structured in the form of
privately-placed bonds for tax or regulatory reasons but not publicly listed high-yield bonds
or any equivalent thereof) or, as the case may be, the portion thereof comprised in the
Collateral (and includes, for the avoidance of doubt, any Sub-Participation Loan and any
Regulatory Sub-Participation Loan) in any Currency originated by or assigned or otherwise
transferred by way of a transaction pursuant to which the Borrower has acquired full legal
and beneficial title at fair market value and on arm’s length terms and available as
Collateral for the Lenders arising from the extension of credit to an Obligor in the ordinary
course of such Borrower’s business, in each case including monies due and owing and all
Interest Collections, Principal Collections and other amounts received from time to time with
respect to such loan (or portion thereof forming part of the Collateral) and all Proceeds
thereof provided that the foregoing shall exclude any Retained Interest.
	 
	 	 	“Loan Documents” means with respect to any Loan, any related loan agreement, security
agreement, mortgage, assignment of Loans, guarantee, intercreditor and/or subordination
agreement and all amendments or modifications thereof executed by the Obligor thereof or by
another Person on the Obligor’s behalf in respect of such Loan including, without limitation,
any promissory note, bond subscription or other instruments which evidence a Borrower’s
interest in a Loan, general or limited guaranties and, for each Loan secured by real property
and evidenced by a mortgage, debenture, charge, standard security, deed of trust, or other
security agreement or similar instruments or documents.




- 26 -









 






	 	 	“Loan File” means with respect to any Loan, each of the Loan Documents related thereto.
	 
	 	 	“Loan List” means the Loan List provided by the Borrower to the Administrative Agent and the
Security Trustee in connection with each Advance, as the same may be amended, modified or
supplemented from time to time in accordance with the provisions hereof.
	 
	 	 	“Loan Rate” means for each Loan in a Collection Period, the current cash pay interest rate
for such Loan in such period, as specified in the related Loan Documents.
	 
	 	 	“LTV” shall be defined as (a) the sum of the commitment amount of the applicable Loan and any
other more senior or pari passu indebtedness for borrowed money of the Obligor, divided by
(b) the enterprise value of the Obligor determined in good faith by the Servicer at the time
of the Loan’s acquisition by the Borrower and in an amount consistent with third-party
transactions of a similar nature.
	 
	 	 	“Mandatory Costs” means the costs calculated in accordance with ANNEX C.
	 
	 	 	“Market Servicing Fee” shall have the meaning given in the Servicing Agreement.
	 
	 	 	“Market Servicing Fee Differential” means, on any date of determination, an amount equal to
the excess, if any, of the Market Servicing Fee over the Servicing Fee.
	 
	 	 	“Market Value” means as of any date in respect of any Loan, the lesser of (i) the price at
which such Loan could readily be sold as determined in the Administrative Agent’s sole good
faith discretion, which price may be determined to be zero; and (ii) 100% of the par amount
of the Loan. The Administrative Agent’s determination of Market Value shall be conclusive
upon the parties.
	 
	 	 	“Material Adverse Change” means with respect to any Person, any material adverse change in
the business, condition, operations, performance, properties or prospects of such Person.
	 
	 	 	“Material Adverse Effect” means with respect to any event or circumstance, a material adverse
effect on, as applicable, (a) the business, condition, operations, performance, properties or
prospects of the Servicer, a Parent or a Borrower (b) the validity, enforceability or
collectibility of this Agreement or any other Transaction Document or the validity,
enforceability or collectibility of the Loans generally or any material portion of the Loans,
(c) the rights and remedies of the Administrative Agent, the Security Trustee, or any other
Secured Party under this Agreement or any Transaction Document or (d) the ability of the
Servicer or a Borrower to perform its obligations under this Agreement or any other
Transaction Document, or (e) the status, existence, perfection (where perfection may be
required under the Transaction Documents), priority, or enforceability of the Administrative
Agent’s, the Security Trustee’s or Secured Parties’ interest in the Collateral.
	 
	 	 	“Material Modification” means any amendment or waiver of, or modification or supplement to,
an Underlying Instrument governing a Loan executed or effected on or after the date on which
the relevant Borrower originated or acquired the Loan, that:




- 27 -









 












	 	(a)	 	reduces or forgives any or all of the principal amount due under such Loan;
	 
	 	(b)	 	waives one or more interest payments, or reduces the spread over the applicable
LIBOR, EURIBOR Rate or Prime Rate comprising the interest rate on such Loan; provided
that the spread may be reduced by not more than 1.5% applicable to the spread of such
Loan on the related Funding Date, so long as the interest coverage ratio (howsoever
defined in the related Underlying Instruments) is greater than 2.0:1 at the time of such
reduction;
	 
	 	(c)	 	contractually or structurally subordinates such Loan by operation of a priority
of payments, turnover provisions, the transfer of assets in order to limit recourse to
the related Obligor or the Granting of Security (other than Permitted Security) on any
of the Related Property securing such Loan;
	 
	 	(d)	 	substitutes, alters or releases the Related Property securing such Loan, if such
substitution, alteration or release could reasonably be expected to have a material
adverse effect on the collectibility of the Loan, unless in the Servicer’s determination
(to be made in accordance with the Credit and Collection Policy), the value of any new
or remaining Related Property obtained as security for such Loan equals or exceeds the
Outstanding Loan Balance; or
	 
	 	(e)	 	provides an increased commitment to the Obligor of such Loan with the intent of
keeping that Loan current;






	 	 	provided that no Material Modification will be deemed to have occurred with respect to any
publicly rated Loan if after the occurrence of any of the events listed in the paragraphs (a)
to (e) of this definition either S&P or Moody’s (or, if such Loan is rated by both S&P and
Moody’s each of S&P and Moody’s) has affirmed its public rating of such Loan or, if such Loan
is not publicly rated, the amendment, waiver or modification has been approved as not
material by the Administrative Agent acting in its sole discretion.
	 
	 	 	“Materially Modified Loan” means any Loan subject to a Material Modification, but shall not
include any loan and/or extension of credit provided solely for refinancing purposes at such
Loan’s original scheduled maturity date.
	 
	 	 	“Minimum Overcollateralization Ratio” shall mean 190%.
	 
	 	 	“Minimum Weighted Average Spread” shall be calculated as of any date of determination by
taking the weighted average (based on Outstanding Loan Balance) of each Loan’s minimum spread
based on the table below:





	 	 	 	 	 
	Eligible Loan Type	 	Floating	 	Fixed
	Senior Secured Loans
	 	2.85%
	 	7.5%
	Subordinated Loans
	 	5.00%
	 	9.5%







	 	 	“Monthly Report” shall mean the monthly report in the form set out in Schedule 2 to the
Amended Servicing Agreement.




- 28 -









 






	 	 	“Moody’s” means Moody’s Investors Service, Inc., or any successor to its ratings business.
	 
	 	 	“National Currency” means the currency, other than the Euro, of a Participating Member State.
	 
	 	 	“Norwegian Krone” or “NOK” means the lawful currency of Norway.
	 
	 	 	“Obligations” means all loans, advances, debts, liabilities and obligations, for monetary
amounts owing by the relevant Borrower(s) to the Secured Parties, the Servicer, any Successor
Servicer and the Account Bank or any of their assigns, as the case may be, whether due or to
become due, matured or unmatured, liquidated or unliquidated, contingent or non-contingent,
and all covenants and duties regarding such amounts, of any kind or nature, present or
future, arising under or in respect of any of this Agreement, any other Transaction Document,
as amended or supplemented from time to time, whether or not evidenced by any separate note,
agreement or other instrument. This term “Obligations” includes, without limitation, all
Advances Outstanding, any accrued and payable Cost of Funds, Breakage Costs, fees, including,
without limitation, any and all arrangement fees, loan fees, Commitment Fees, and any and all
other fees, expenses, costs or other sums (including legal costs) and indemnity payments
chargeable to the relevant Borrower(s) under any of the Transaction Documents and includes
all obligations of the Borrowers under the Combined Facility Guarantee.
	 
	 	 	“Obligor” means with respect to any Loan, any Person or Persons obligated to make payments
pursuant to or in respect of such Loan, including any guarantor thereof. For purposes of
calculating compliance with (1) the Concentration Limits and (2) the definition of Eligible
Obligor, Loans or loans to become Loans 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 Loans (other
than because of a common financial sponsor), of such other Obligor; for example, if company A
is an Affiliate of company B; and the aggregate Outstanding Loan Balance of all of company
A’s Loans constitutes 10% of the Aggregate Outstanding Loan Balance and the aggregate
Outstanding Loan Balance of all company B’s Loans constitute 10% of the Aggregate Outstanding
Loan Balance, the combined Obligor concentration for company A and company B would be 20%.
	 
	 	 	“Officer’s Certificate” means a certificate signed by any Responsible Officer of a Borrower
or the Servicer, as the case may be, and delivered to the Administrative Agent.
	 
	 	 	“Opinion of Counsel” means a written opinion of external counsel, who may be external counsel
for a Borrower, the Lenders or the Servicer, as the case may be, and who shall be reasonably
acceptable to the Administrative Agent.
	 
	 	 	“Other Costs” shall have the meaning given in Clause 33.9.3.
	 
	 	 	“Outstanding Loan Balance” means (i) when referring to an individual Loan purchased at no
less than 95% of par or originated directly by CSEL or an Affiliate, the principal balance
outstanding (excluding any PIK component or accrued interest payable) of such individual
Loan, (ii) when referring to an individual Loan purchased





- 29 -









 





	 	 	at less than 95% of par, the
purchase price (excluding any PIK component or accrued interest payable) of such individual
Loan and (iii) when referring to more than one Loan, the aggregate of the amounts referenced
in (i) and (ii) above as applicable for
such referenced Loans, provided that, the Outstanding Loan Balance of any Loan denominated in
an Alternative Currency shall be calculated by reference to the Euro Equivalent of such
amount on such date of determination.
	 
	 	 	“Overcollateralization Ratio” means the fraction expressed as a percentage the numerator of
which is (A) the Aggregate Outstanding Loan Balance plus Principal Collections and the
denominator of which is (B) Advances Outstanding.
	 
	 	 	“Overcollateralization Ratio Certificate” means a certificate of a Responsible Officer of the
Servicer in the form of Exhibit D as of the date set out in such certificate and in the
manner of calculation thereof, to be delivered to the parties and at the times specified
herein.
	 
	 	 	“Parent” means each of CapitalSource UK Limited (the parent company of CS UK Finance Limited)
and CapitalSource Europe Limited (the parent company of CS Europe Finance Limited.
	 
	 	 	“Participating Member State” means a member state of the European Community which has adopted
the single currency in accordance with the Treaty of Rome of 25 March 1957, as amended, inter
alia, by the Single European Act and the Treaty of European Union of 7 February 1992,
establishing the European Union.
	 
	 	 	“Paying Agent” means CapitalSource Finance LLC in its capacity as Servicer and any Successor
Servicer.
	 
	 	 	“Payment Date” means the 20th day of each April, July, October and January, and if such day
is not a Business Day, the next succeeding Business Day, except that the first Payment Date
shall be 22 January 2008.
	 
	 	 	“Permitted Activities” has the meaning given in Clause 16.1.19(a).
	 
	 	 	“Permitted Country” means any country with outstanding marketable obligations of its
government or central bank having a rating of “Aaa” from Moody’s or “AAA” from S&P.
	 
	 	 	“Permitted Indebtedness” means any intra-group loan which has been made to a Borrower by
CapitalSource Europe Limited. (in the case of CSEF) or CapitalSource UK Limited (in the case
of CSUF) and which has been subordinated pursuant to the Deed of Subordination and any
Indebtedness pursuant to the Transaction Documents.
	 
	 	 	“Permitted Investments” means negotiable instruments or securities or other investments 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 which may include one or more of the following types of investments:






	 	(a)	 	marketable obligations of the government or central bank of the United Kingdom,
the United States or any Permitted Country the full and timely





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	 	 	 	payment of which are
backed by the full faith and credit of the United Kingdom, the United States or such
Permitted Country as the case may be;
	 
	 	(b)	 	marketable obligations, the full and timely payment of which are directly and
fully guaranteed by the full faith and credit of the United Kingdom, the United States
or any Permitted Country as the case may be;
	 
	 	(c)	 	bankers’ acceptances and certificates of deposit and other interest-bearing
obligations denominated and payable in an Alternative Currency and issued by any
domestic office of any commercial bank with capital, surplus and undivided profits
aggregating at least €100,000,000 organised under the laws of a Group I Country or
any state thereof the short-term obligations of which are rated “A-1” by S&P and “P-1”
by Moody’s; provided that such bankers’ acceptances, certificates of deposit and other
interest-bearing obligations are held in a securities account located in the United
Kingdom and that the Security Trustee benefits from a valid, first ranking charge,
pledge or security interest over such security account and/or such assets;
	 
	 	(d)	 	repurchase obligations for underlying securities of the types described in
paragraphs (a), (b) and (c) above entered into with any bank of the type described in
paragraph (c) above;
	 
	 	(e)	 	commercial paper rated at least “A-1” by S&P and “P-1” by Moody’s;
	 
	 	(f)	 	investments in money market funds rated in the highest investment category or
otherwise approved in writing by S&P or Moody’s; and
	 
	 	(g)	 	demand deposits, time deposits or certificates of deposit (having original
maturities of no more than 365 days of depository institutions or trust companies
incorporated under the laws of the United States or any state thereof, or domestic
branches of any foreign bank) and subject to supervision and examination by banking or
depository institution authorities; provided that at the time such investment, or the
commitment to make such investment, is entered into, the short-term debt rating of such
depository institution or trust company shall be at least “A-1” by S&P and “P-1” by
Moody’s.






	 	 	Each of the Permitted Investments may be purchased by or through the Account Bank or an
Affiliate of the Account Bank.
	 
	 	 	“Permitted Payment” has the meaning given to such term in the Deed of Subordination.
	 
	 	 	“Permitted Security” means (a) in relation to a Loan, (i) any Security in favour of the
Security Trustee, acting on behalf of the Secured Parties, created pursuant to this Agreement
or any Security Document, (ii) any right of set-off or liens arising by operation of law only
in the ordinary course of business for sums not due or sums that are being contested in good
faith, and (b) in relation to the Related Property of an Obligor securing a Borrower’s
interest in a Loan, (i) any Security granted by such Obligor in favour of the relevant
Borrower as security for the relevant Loan, (ii) any Security granted to a senior creditor
pursuant to the relevant Loan Documents as contemplated in the definition of Subordinated
Loan, (iii) any other security interest





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	 	 	identified as permitted security under the related
Loan Documents in accordance with market practice for the relevant type of loan, (iv) any
right of set-off or liens arising by operation of law only in the ordinary course of business
for sums not due or sums that
are being contested in good faith, (v) Security for state, municipal and other local taxes if
such taxes are not at the time due and payable or if the Obligor shall currently be
contesting the validity thereof in good faith by appropriate proceedings, (vi) purchase money
security interests in equipment and, with respect to subordinated Loans made to an Obligor or
with respect to senior Loans made to an Obligor, any turnover trust or analogous agreement
under any intercreditor agreement entered into with other lenders to such Obligor, and as to
which no enforcement, collection, execution, levy or foreclosure proceedings shall have been
commenced.
	 
	 	 	“Permitted Security Release” shall have the meaning given in Clause 19.1.1.
	 
	 	 	“Permitted Security Release Date” means the date specified as such by the relevant Borrower
in a Transfer Certificate delivered by it in relation to a Permitted Transfer, which date may
be any Business Day, provided written notice is given in accordance with Clause 19.1.1(a).
	 
	 	 	“Permitted Transfer” means any transfer by a Borrower pursuant to Clause 5.
	 
	 	 	“Person” means an individual, partnership, corporation (including a business or statutory
trust), limited liability company, limited liability partnership, joint stock company, trust,
unincorporated association, sole proprietorship, joint venture, government (or any agency or
political subdivision thereof) or other entity.
	 
	 	 	“PIK Loan” means a Loan to an Obligor, which provides for a portion of the interest that
accrues thereon to be added to the principal amount of such Loan for some period of the time
prior to such Loan requiring the current cash payment of interest on a monthly or quarterly
basis, which cash payment shall be treated as Interest Collections at the time it is
received.
	 
	 	 	“Portfolio Investment” means an Investment made by a Borrower in the ordinary course of
business in a Person that is accounted for under GAAP as a portfolio investment of such
Borrower.
	 
	 	 	“Pounds Sterling” or “£” means the lawful currency of the United Kingdom.
	 
	 	 	“Pounds Sterling Collection Account” means, in relation to a Borrower, the account specified
in Schedule 7 of the Servicing Agreement, maintained in the name of such Borrower for the
purpose of receiving Collections in Pounds Sterling at the Account Bank or any replacement
account designated as the “Pounds Sterling Collection Account” which such Borrower (or the
Servicer on behalf of such Borrower) may open with the Account Bank in accordance with clause
5.3 of the Servicing Agreement.
	 
	 	 	“Prime Rate” means, at any time, the rate of interest per annum publicly announced or
otherwise identified to the Borrowers from time to time by Wachovia Bank, N.A., London Branch
as its prime commercial lending rate. The parties hereto acknowledge that the rate announced
publicly by the Wachovia Bank, N.A., London Branch as its Prime Rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers or other banks.




- 32 -









 






	 	 	“Principal Collections” means, in relation to a Borrower, any and all amounts received in
respect of any principal due and payable under any Loan from or on behalf
of Obligors that are deposited into the Collection Accounts of such Borrower, or received by
such Borrower, or by the Servicer on behalf of such Borrower, in respect of Loans and applied
to reduce the Outstanding Loan Balance of a Loan in accordance with the Credit and Collection
Policy.
	 
	 	 	“Principal Financial Centre” means in the case of any Currency, the principal financial
centre where such Currency is cleared and settled, as determined by the Administrative Agent.
	 
	 	 	“Proceeds” means with respect to any Collateral, whatever is receivable or received when such
Collateral is sold, collected, 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 Policy relating to such Collateral.
	 
	 	 	“Pro Rata Share” means with respect to each Advance, the percentage obtained for each Conduit
Lender and each Institutional Lender by dividing each such Lender’s Commitment (in each case
as determined under (a) of the definition of “Commitment”) by the aggregate Commitments of
all Conduit Lenders and Institutional Lenders.
	 
	 	 	“Protected Party” has the meaning given in Clause 12.
	 
	 	 	“Qualified Institution” shall have the meaning given in Clause 6.3 of the Servicing
Agreement.
	 
	 	 	“Qualifying Lender” means:






	 	(a)	 	a Lender (other than a Lender within sub-paragraph (ii) below)
which is beneficially entitled to interest payable to that Lender in respect of
an advance under a Transaction Document and is:






	 	(i)	 	a Lender:






	 	(1)	 	which is a bank (as defined for the
purpose of section 879 of ITA) making an advance under a
Transaction Document; or
	 
	 	(2)	 	in respect of an advance made under a
Transaction Document by a person that was a bank (as defined for
the purpose of section 879 of ITA) at the time that that advance
was made,






	 	 	 	and which is within the charge to United Kingdom corporation tax as respects
any payments of interest made in respect of that advance; or






	 	(ii)	 	a Lender which is:






	 	(1)	 	a company resident in the United
Kingdom for United Kingdom tax purposes;
	 
	 	(2)	 	a partnership each member of which is:






	 	(a)	 	a company so resident in the
United Kingdom; or




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	 	(b)	 	a company not so resident in
the United Kingdom which carries on a trade in the United
Kingdom through a permanent establishment and which brings
into account in computing its chargeable profits (for the
purposes of section 11(2) of the Taxes Act) the whole of any
share of interest payable in respect of that advance that
falls to it by reason of sections 114 and 115 of the Taxes
Act; or






	 	(3)	 	a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account interest
payable in respect of that advance in computing the chargeable
profits (for the purposes of section 11(2) of the Taxes Act) of
that company; or






	 	(iii)	 	a Treaty Lender; or






	 	(b)	 	a Lender which is a building society (as defined for the
purpose of section 880 of ITA) making an advance under a Transaction Document.






	 	 	“Quotation Date” means, in relation to any period for which an interest rate is to be
determined:






	 	(i)	 	(if the Currency is Pounds Sterling) the first day of that period;
	 
	 	(ii)	 	(if the Currency is Euro) two TARGET Days before the first day of that period; or
	 
	 	(iii)	 	(for any other Currency) two Business Days before the first day of that period,






	 	 	unless market practice differs in the Relevant Interbank Market for a Currency, in which case
the Quotation Day for that Currency will be determined by the Administrative Agent in
accordance with market practice in the Relevant Interbank Market (and if quotations would
normally be given by leading banks in the Relevant Interbank Market on more than one day, the
Quotation Day will be the last of those days).
	 
	 	 	“Rating Agency” means each of S&P, Moody’s and any other rating agency that has issued a
rating with respect to the commercial paper issued by a Conduit Lender.
	 
	 	 	“Records” means with respect to any Loans, all documents, books, records and other
information (including without limitation, computer programs, tapes, disks, punch cards, data
processing software and related property and rights) maintained with respect to any item of
Collateral and the related Obligors, other than the Loan Documents.
	 
	 	 	“Recovery Rate” means for Senior Secured Loans 50% and for Subordinated Loans 15%.
	 
	 	 	“Recoveries” means with respect to any Defaulted Loan, proceeds of the sale of any Related
Property, proceeds of any related Insurance Policy, and any other recoveries





- 34 -









 





	 	 	with respect to such Loan and Related Property, and amounts representing late fees and
penalties, net of Liquidation Expenses and amounts, if any, received that are required to be
refunded to the Obligor on such Loan.
	 
	 	 	“Reference Banks” means, with respect to the determination of LIBOR or EURIBOR, any four
major banks in the Relevant Interbank Market, selected by the Administrative Agent.
	 
	 	 	“Regulatory Sub-Participation Loans” means Eligible Loans which for regulatory and/or tax
reasons cannot be acquired by a Borrower directly but where the relevant Borrower is entitled
to acquire a sub-participation. All Regulatory Sub-Participation Loans shall be originated by
CSEL and appropriate security satisfactory to the Administrative Agent shall be granted by
CSEL in respect of the loan in which it has an interest, provided that any such Loan shall
exclude any Retained Interest.
	 
	 	 	“Related Property” means with respect to any Loan, any property or other assets of the
Obligor thereunder (together with, where relevant, the issued share capital of the Obligor)
on which such Obligor (and/or its parent and/or its Affiliate) has Granted or purported to
Grant a Security to a Borrower (in its capacity as lender under such Loan) to secure the
repayment of such Loan.
	 
	 	 	“Relevant Interbank Market” means (i) in relation to Euro, the European interbank market and,
in relation to any Alternative Currency, the London interbank market.
	 
	 	 	“Repeating Representation” has the meaning given in Clause 16.
	 
	 	 	“Replaced Loan” has the meaning given in Clause 5.2.1.
	 
	 	 	“Reporting Date” shall mean the earlier of the 16th calendar day of each month or
3 Business Days prior to the next Payment Date.
	 
	 	 	“Required Lenders” means the Lender Groups representing in aggregate more than 66.67% of the
aggregate Commitments of the Lender Groups then in effect; provided that for the purposes of
determining the Required Lenders, in the event that a Lender Group fails to provide funding
for an Advance hereunder for which all conditions precedent have been satisfied, such Lender
Group shall not constitute a Required Lender hereunder (and the Commitment of such Lender
Group shall be disregarded for purposes of determining whether the consent of the Required
Lenders has been obtained).
	 
	 	 	“Reserve Fund” means the account specified in ANNEX F, as amended from time to time.
	 
	 	 	“Responsible Officer” means as to any Person, any officer of such Person with direct
responsibility for the administration of this Agreement and also, with respect to a
particular matter, any other officer to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject and with respect to any
certificate required to be signed by a Responsible Officer, an authorised signatory.
	 
	 	 	“Restricted Payments” shall have the meaning given in Clause 18.1.1(r).






- 35 -











 






	 	 	“Retained Interest” means (A) with respect to any Revolving Loan, Delayed Draw Term Loan
(until such time as it becomes a Term Loan), or any Loan that is transferred in part to a
Borrower, all of the obligations, if any, to provide additional funding with respect to such
Loan, and (B) with respect to any Loan that is transferred by an originator to the Borrowers,
(i) all of the obligations, if any, of the agent(s), administrative agent, arranger, security
trustee or security agent under the documentation evidencing such Loan and (ii) the
applicable portion of the interests, rights and obligations under the documentation
evidencing such Loan 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.
	 
	 	 	“Retransfer Price” shall have the meaning given in Clause 5.1.
	 
	 	 	“Revolving Loan” means any Loan that is a line of credit or other similar extension of credit
by a Borrower where such Borrower’s commitment under such Loan is not fully funded and/or the
proceeds of such Loan may be repaid and reborrowed provided that any such Loan shall exclude
any Retained Interest.
	 
	 	 	“Revolving Period” means the period commencing on (and including) the Closing Date and ending
on the day immediately preceding the Amendment Date.
	 
	 	 	“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., or any successor to its ratings business.
	 
	 	 	“Scheduled Debt Amortisation” means the principal amount of Indebtedness scheduled to be
amortised in any period on Indebtedness other than revolving Indebtedness.
	 
	 	 	“Scheduled Payment” means, as of any Determination Date, with respect to any Loan, each
monthly, quarterly or semi-annual payment (whether principal, interest or principal and
interest) scheduled to be made by the Obligor thereof after such Determination Date under the
terms of such Loan.
	 
	 	 	“Screen” means (a) for Euro, the relevant display page for EURIBOR Rate (as determined by the
Administrative Agent) appearing on Reuters Page 248 and 249, as applicable (or if such page
is replaced or service ceases to be available, another page as agreed between the Borrower
and the Administrative Agent), (b) for Dollars and Pounds Sterling, the LIBOR offered rate
appearing on Reuters Page 3750 (or if such page is replaced or service ceases to be
available, another page as agreed between the Borrower and the Administrative Agent) and (c)
for any other Alternative Currency, the relevant display page for LIBOR for such Currency (as
determined by the Administrative Agent) on the Reuters Service; provided that, if the
Administrative Agent determines that there is no such relevant display page for EURIBOR Rate
or LIBOR for such Currency, “Screen” means the relevant display page for EURIBOR Rate or
LIBOR for such Currency (as determined by the Administrative Agent) on the Reuters Monitor
Money Rates Service.
	 
	 	 	“Second Currency” has the meaning given in Clause 14.
	 
	 	 	“Secured Obligations” means all obligations owing to the Secured Parties or to the Security
Trustee (whether for its own account or as trustee for the Secured Parties) by





- 36 -









 






	 	 	the Borrowers under or pursuant to the Transaction Documents including any liability in
respect of any Advances made under the Transaction Documents, whether present or future,
actual or contingent (and whether incurred by the Borrowers alone or jointly, and whether as
principal or surety or in some other capacity) except for any obligation or liability which,
if it were included, would cause that obligation or liability or any of the Security in
respect thereof, to be unlawful or prohibited by any applicable law (and for the avoidance of
doubt the “Secured Obligations” includes the obligations of the Borrowers under the Combined
Facility Guarantee).
	 
	 	 	“Secured Party” means (a) each Lender; (b) each Successor Servicer; (c) the Administrative
Agent, the Account Bank, and the Security Trustee and (d) each Combined Facility Secured
Party.
	 
	 	 	“Security” means, with respect to any Collateral, (a) any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such Collateral, or (b) the
interest of a vendor or lessor under any conditional sale agreement, financing Loan or other
title retention agreement relating to such Collateral.
	 
	 	 	“Security Documents” means, together, the Debentures, the Second Ranking Debentures, the
Share Pledge Agreements, the Second Ranking Share Pledge Agreements, and any other documents
or instruments Granting Security to the Security Trustee over the issued share capital in,
and the property, accounts and assets of a Borrower that may be executed by a Borrower from
time to time.
	 
	 	 	“Security Trustee” means Wachovia, or any replacement Security Trustee appointed pursuant to
the terms of the Transaction Documents.
	 
	 	 	“Second Ranking Debentures” means the second ranking debentures, dated on or about the
Amendment Date in a form satisfactory to the Administrative Agent granted by the Borrowers in
favour of the Security Trustee.
	 
	 	 	“Second Ranking Share Pledge Agreements” means the share pledge agreements dated the date of
the Amendment Date and entered into between each Parent and the Security Trustee whereby each
Parent has granted a second ranking fixed charge, in favour of the Security Trustee, over the
Shares of the relevant Borrower, as continuing security for the payment and discharge of the
Secured Obligations.
	 
	 	 	“Selling Institution” means a financial institution with a public rating from (i) Moody’s of
“A2” or better and (ii) S&P of “A” or better from which the Borrower acquires a
Sub-Participation Loan.
	 
	 	 	“Senior Secured Loans” shall mean a Loan (or participation therein) that is a senior secured
obligation as determined by the Servicer in its reasonable business judgment, provided that:






	 	(a)	 	such Loan is secured by (i) fixed assets of the Obligor or guarantor thereof if
and to the extent that a pledge of fixed assets is permissible under any applicable law
(save in the case of assets so numerous that the failure to take such security is
consistent with reasonable secured lending practices as determined by the Servicer in
its reasonable discretion) and otherwise (ii)




- 37 -









 












	 	 	 	100% of the equity interests in the stock of an entity owning directly or
indirectly, such fixed assets.
	 
	 	(b)	 	no other obligation of any lender of the Obligor or guarantor thereof has any
higher priority security interest in such fixed assets and/or stock referred to in (a)
above and the Servicer has received assurances to such effect that are (so far as
possible) customary in the secured loan market.
	 
	 	(c)	 	such Loan is at an LTV not greater than 60%; and
	 
	 	(d)	 	such Loan has an original term to stated maturity that does not exceed 102
months.






	 	 	“Servicer” means CapitalSource Finance LLC or any replacement servicer appointed pursuant to
the Servicing Agreement.
	 
	 	 	“Servicer Termination Event” shall have the meaning given in the Servicing Agreement.
	 
	 	 	“Servicer’s Certificate” shall have the meaning given in the Servicing Agreement.
	 
	 	 	“Servicing Agreement” means the Servicing Agreement dated on or about the date hereof and
made between, among others, the Servicer and the Borrowers.
	 
	 	 	“Servicing Fee” means for each Payment Date, an amount equal to the sum of the products, for
each day during the related Collection Period, of (a) a fraction, the numerator of which is
the sum of (i) the Aggregate Outstanding Loan Balance as of the first day of such Collection
Period plus (ii) the Aggregate Outstanding Loan Balance as of the last day of such Collection
Period, and the denominator of which is two, (b) the Servicing Fee Rate, and (c) a fraction,
the numerator of which is 1 and the denominator of which is 360.
	 
	 	 	“Servicing Fee Rate” means a rate equal to 0.75% per annum.
	 
	 	 	“Servicing Standard” has the meaning given in the Servicing Agreement.
	 
	 	 	“Share Pledge Agreements” means the share pledge agreements dated the date of the Closing
Date and entered into between each Parent and the Security Trustee, whereby each Parent has
granted a first fixed charge, in favour of the Security Trustee, over the shares of the
relevant Borrower, as continuing security for the payment and discharge of the Secured
Obligations.
	 
	 	 	“Sub-Participation Loan” means the sub-participation interest in a Loan that has been granted
to a Borrower by another person (other than any Affiliate) in accordance with the Credit and
Collection Policy and such transaction has been fully consummated, pursuant to commercially
reasonable documentation consistent with the Credit and Collection Policy, prior to such Loan
becoming an Eligible Loan. All Sub-Participation Loans must be originated by a counterparty
rated ‘A2/A’ or better by Moody’s and S&P, respectively, unless appropriate security
satisfactory to the Administrative Agent is granted in respect of the loan in which the
person granting the sub-participation interest has itself a participation provided that any
such Loan shall exclude any Retained Interest.




- 38 -









 






	 	 	“Subordinated Debt” means any debt that is subordinated in right of payment to the
obligations of a Borrower under this Agreement.
	 
	 	 	“Subordinated Loan” means a second (or third) ranking secured Loan or unsecured loan (or
participation therein) that is a second or lower ranking Obligation (or first ranking
obligation which fails to satisfy one or more of the criteria set forth in paragraphs (a)
through (d) of the definition of Senior Secured Loan), provided that (a) such Loan is at an
LTV not greater than 85% and (b) such Loan has an original term to stated maturity that does
not exceed 130 months.
	 
	 	 	“Subservicer” means CapitalSource Europe Limited, CapitalSource Bank, or such other person as
may be appointed subservicer pursuant to the Servicing Agreement.
	 
	 	 	“Subsidiary” means, in the case of a company incorporated in England and Wales, a subsidiary
within the meaning of Section 736 of the Companies Act 1985 and with respect to any other
Person, means any corporation, partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the issued and outstanding share
capital having ordinary voting power to elect a majority of the board of directors of such
entity (irrespective of whether at the time share capital of any other class or classes of
such entity shall or might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership, limited liability company or joint
venture or (c) the beneficial interest in such trust or estate that is at the time directly
or indirectly owned or controlled by such Person, or such Person and one or more of its other
Subsidiaries or by one or more of such Person’s other Subsidiaries.
	 
	 	 	“Successor Servicer” shall have the meaning given in the Servicing Agreement.
	 
	 	 	“Successor Servicer Expenses” means the reasonable out-of-pocket expenses to be paid to the
Successor Servicer under and in accordance with the Servicing Agreement.
	 
	 	 	“Sum” has the meaning given in Clause 14.
	 
	 	 	“Swedish Krona” or “SEK” means the lawful currency of Sweden.
	 
	 	 	“Swingline Lender” means each of the Conduit Lenders and Institutional Lenders from time to
time party hereto as a swingline lender and identified as such in ANNEX B from time to time.
	 
	 	 	“Swingline Lender Agent” means each of the swingline lender agents from time to time party
hereto as a swingline lender agent and identified as such in ANNEX B from time to time.
	 
	 	 	“Syndication” means any syndication of all or any part of the Commitments of the Lenders as
contemplated by Clause 19.
	 
	 	 	“Tape” shall have the meaning given thereto in the Servicing Agreement.
	 
	 	 	“TARGET Day” means a day on which the TARGET System is operating.
	 
	 	 	“TARGET System” means the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System or any successor thereto.




- 39 -









 






	 	 	“Tax Credit” has the meaning given in Clause 12.
	 
	 	 	“Tax Deduction” has the meaning given in Clause 12.
	 
	 	 	“Tax Payment” has the meaning given in Clause 12.
	 
	 	 	“Taxes” means 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” means the earliest to occur of: (a) the date the entire Facility Amount is
reduced to zero pursuant to Clause 6.2.1, (b) the Business Day designated by the Borrowers to
the Administrative Agent as the Termination Date at any time upon at least 5 Business Days
prior written notice, (c) 364 days from the Amendment Date (unless extended under Clause
4.1.1) and (d) the date declared as such upon the occurrence of an Event of Default.
	 
	 	 	“Term Loan” means a Loan that is a term loan that has been fully funded and does not contain
any unfunded commitment arising from an extension of credit to an Obligor.
	 
	 	 	“Third Parties Act” has the meaning given in Clause 1.3.1.
	 
	 	 	“Transaction Documents” means this Agreement, the Amendment Deed, the Servicing Agreement,
the Deed of Subordination, the Share Pledge Agreements, the Second Ranking Share Pledge
Agreements, the Debentures, the Second Ranking Debentures, the Fee Letter, the Charged
Account Control Deed, any Custody Agreement (all as amended and restated from time to time),
the Combined Facility and any other document designated as a “Transaction Document” by the
Administrative Agent and the Borrowers.
	 
	 	 	“Transfer Certificate” means the form of document attached hereto as SCHEDULE 1.
	 
	 	 	“Transition Costs” means the reasonable costs and expenses incurred by any Successor Servicer
in transitioning to Servicer; provided that in no event shall such Transition Costs exceed
€50,000 in the aggregate.
	 
	 	 	“Underlying Instruments” means the loan agreement, credit agreement or other agreement
pursuant to which a Loan has been issued or created and each other agreement that governs the
terms of or secures the obligations represented by such Loan or of which the holders of such
Loan are the beneficiaries.
	 
	 	 	“United States” means the United States of America.
	 
	 	 	“Usage Fee” shall mean the applicable percentage rate per annum (calculated by reference to a
year of 360 days except for Advances denominated in Pounds Sterling which are calculated by
reference to a year of 365/366 days) over the applicable Interest Rate (together the “Cost of
Funds”), payable to the Administrative Agent in arrears on each Payment Date, based upon the
Advances Outstanding and payable in the applicable currency of each Advance as provided in
the Fee Letter.
	 
	 	 	“Wachovia” means Wachovia Bank, N.A.




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	 	 	“Warranty Event” means, as to any Loan, the discovery that as of the related Borrower Cut-Off
Date there existed a breach of any representation or warranty relating to such Loan (other
than any representation or warranty that the Loan satisfies the criteria of the definition of
Eligible Loan) and the failure of the relevant Borrower to cure such breach, or cause the
same to be cured, within 30 days after the earlier occur of the relevant Borrower’s receipt
of notice thereof from the Administrative Agent or such Borrower becoming aware thereof.
	 
	 	 	“Warranty Loan” means any Loan with respect to which a Warranty Event has occurred, and
including any Loan deemed a Warranty Loan pursuant to Clause 5.1.2.
	 
	 	 	“Weighted Average Spread” means as of any Determination Date, the weighted average (based on
Outstanding Loan Balance) of (i) the sum of (a) the cash coupon and (b) 25% of the PIK coupon
(if any) of each Floating Rate Loan that is not a Defaulted Loan excluding 1-month
LIBOR/EURIBOR; and (ii) the sum of (a) the cash coupon and (b) 25% of the PIK coupon (if any)
of each fixed rate Loan that is not a Defaulted Loan.
	 
	 	 	“Weighted Average Spread Test” means, a test that will be satisfied if the Weighted Average
Spread exceeds Minimum Weighted Average Spread.
	 
	1.2	 	Construction






	 	1.2.1	 	In each Transaction Document, unless a contrary indication appears any reference
to:






	 	(a)	 	the “the Administrative Agent”, “the Security Trustee”, any
“Conduit Lender”, any “Institutional Lender”, any “Lender Agent”, any
“Swingline Lender”, any “Swingline Lender Agent”, any “Secured Party”,
“Servicer”, “Successor Servicer”, “Account Bank”, any “the Lender” or any
“Obligor” shall be construed so as to include its successors in title,
permitted assigns and permitted transferees;
	 
	 	(b)	 	“Collateral” includes present and future properties, revenues
and rights of every description;
	 
	 	(c)	 	a “Transaction Document” or any other agreement or instrument
is a reference to that Transaction Document or other agreement or instrument as
amended or novated;
	 
	 	(d)	 	a provision of law is a reference to that provision as amended
or re-enacted;
	 
	 	(e)	 	reference to any “gender” includes each other gender;
	 
	 	(f)	 	all accounting terms not specifically defined herein shall be
construed in accordance with the appropriate GAAP;
	 
	 	(g)	 	reference to day or days without further qualification means
calendar days;




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	 	(h)	 	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”;
	 
	 	(i)	 	“writing” include printing, typing, lithography, electronic or
other means of reproducing words in a visible form;
	 
	 	(j)	 	reference to any agreement (including any Transaction
Document), document or instrument means such agreement, document or instrument
as amended, modified, waived, supplemented or restated and in effect from time
to time in accordance with the terms thereof and, if applicable, the terms of
the other Transaction Documents;
	 
	 	(k)	 	reference to any Applicable Law or provision of law means such
Applicable Law or provision of law as amended, modified, codified, replaced or
re-enacted, in whole or in part, and in effect from time to time, including
rules and regulations promulgated thereunder and reference to any Clause or
other provision of any Applicable Law or provision of law means that provision
of such Applicable Law or provision of law from time to time in effect and
constituting the substantive amendment, modification, codification, replacement
or re-enactment of such Clause or other provision;
	 
	 	(l)	 	all Clause references shall be to Clauses in this Agreement;
and
	 
	 	(m)	 	unless otherwise specified, a time of day is a reference to
London time.






	 	1.2.2	 	Clause, Exhibits, Annexes and Schedule headings are for ease of reference only.
	 
	 	1.2.3	 	Unless a contrary indication appears, a term used in any other Transaction
Document or in any notice given under or in connection with any Transaction Document has
the same meaning in that Transaction Document or notice as in this Agreement.
	 
	 	1.2.4	 	A Default (other than an Event of Default) is “continuing” if it has not been
remedied or waived and an Event of Default is “continuing” if it has not been remedied
or waived.
	 
	 	1.2.5	 	Unless a contrary intention appears words importing the singular shall include
the plural and vice versa.






	1.3	 	Third party rights






	 	1.3.1	 	Unless expressly provided to the contrary in a Transaction Document, a person
who is not a party (save for the Account Bank) has no right under the Contracts (Rights
of Third Parties) Act 1999 (the “Third Parties Act”) to enforce or enjoy the benefit of
any term of any Transaction Document.
	 
	 	1.3.2	 	Notwithstanding any term of any Transaction Document, the consent of any person
who is not a party is not required to rescind or vary any Transaction Document at any
time.




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	2.	 	THE FACILITY






	2.1	 	The Facility






	 	2.1.1	 	Subject to the terms of this Agreement, the Lenders have made available to the
Borrowers as joint and several principal obligors a multicurrency loan facility.
	 
	 	2.1.2	 	The principal amount of Advances made under this Agreement and outstanding on
the Amendment Date is equal to €100,675,000.






	2.2	 	Secured Parties’ rights and obligations






	 	2.2.1	 	The obligations of each Secured Party under the Transaction Documents are
several. Failure by a Secured Party to perform its obligations under the Transaction
Documents shall not affect the obligations of any other party under the Transaction
Documents. No Secured Party is responsible for the obligations of any other Secured
Party under the Transaction Documents.
	 
	 	2.2.2	 	Subject to the terms and conditions of this Agreement, during the Revolving
Period the Borrower may borrow, repay and reborrow hereunder, provided that,
notwithstanding the foregoing, no Lender shall have any obligation to make an Advance to
the Borrower in excess of its Commitment.
	 
	 	2.2.3	 	The rights of each Secured Party under or in connection with the Transaction
Documents are separate and independent rights and any debt arising under the Transaction
Documents to a Secured Party from the Borrower shall be a separate and independent debt.
	 
	 	2.2.4	 	A Secured Party may, except as otherwise stated in the Transaction Documents,
separately enforce its rights under the Transaction Documents.






	2.3	 	Borrowers obligations
	 
	 	 	The obligations of the Borrowers under the Transaction Documents are joint and several.






	3.	 	PURPOSE






	3.1	 	Purpose
	 
	 	 	Each Borrower shall apply all amounts borrowed by it under the Facility:






	 	3.1.1	 	towards the financing of Eligible Loans;






	 	 	and/or






	 	3.1.2	 	towards the payment of fees, costs and expenses under the Transaction Documents.






	3.2	 	Monitoring
	 
	 	 	No Secured Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.




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	4.	 	PROCEDURE FOR EXTENSION OF FACILITY






	4.1	 	Extension Option






	 	4.1.1	 	The Borrowers may, within 60 days but not less than 45 days prior to the
Termination Date then in effect pursuant to paragraph (c) of the definition thereof,
request by written notice to (i) each Lender Agent with respect to a Conduit Lender
(other than the Committed Conduit Lender) and, (ii) each Lender Agent, as applicable,
for each Lender, to extend the date then in effect pursuant to paragraph (c) of the
definition of Termination Date for an additional period of no more than 364 days.
	 
	 	4.1.2	 	Each Lender Agent, as applicable, will give prompt notice to the related Lender,
as applicable, of its receipt of any request referred to in Clause 4.1.1 above, and each
Lender shall make a determination, each in its respective sole discretion, not less than
15 days prior to the Termination Date then in effect pursuant to paragraph (c) of the
definition thereof, as to whether or not it will agree to the extension(s) requested.
The failure of a Lender to provide timely notice of its decision to the Borrowers shall
be deemed to constitute a refusal by the applicable Lender to extend the Termination
Date then in effect pursuant to paragraph (c) of the definition thereof. Each of the
Borrowers confirms that each Lender, in its sole and absolute discretion, without regard
to the value or performance of the Collateral or any other factor, may elect not to
extend Termination Date then in effect pursuant to paragraph (c) of the definition
thereof.






	5.	 	LOAN TRANSFERS






	5.1	 	Repurchase of Warranty Loans






	 	5.1.1	 	No later than 3 Business Days after the occurrence of a Warranty Event which is
continuing, the relevant Borrower shall repay Advances Outstanding in an amount equal to
the aggregate Retransfer Price of the applicable Warranty Loan(s) to which such Warranty
Event relates on the terms and conditions set forth below. Notwithstanding anything
contained in this Clause 5.1 to the contrary, no later than 3 Business Days after the
occurrence of a Warranty Event, and provided that it is continuing, the relevant
Borrower shall repay Advances Outstanding in an amount equal to the sum of (I) the
portion of the Advances Outstanding to be repaid that are attributable to the relevant
Warranty Loan(s) and which permits the Overcollateralization Ratio to be maintained at a
level which is equal to or greater than the Overcollateralization Ratio as calculated
immediately prior to the removal or repurchase of the relevant Warranty Loan(s), (II)
any accrued and unpaid interest thereon, and (III) any Breakage Costs incurred in
connection with the retransfer of such Warranty Loan pursuant to this Clause 5.1.1
(collectively, the “Retransfer Price”), and the Security Trustee on behalf of the
Secured Parties shall release to the relevant Borrower any such Warranty Loan(s) and any
other Collateral related to such Warranty Loan(s) and relinquish any Security created
pursuant to the Security Documents or otherwise, and the Secured Parties shall, in
connection with such conveyance and without further action, be deemed to represent and
warrant that they have the corporate authority and have taken all necessary corporate
action to accomplish such release, but without any other




- 44 -









 






	 	 	 	representation or warranty, express or implied. In the foregoing instances, the
relevant Borrower shall make such repayment and on and after the date of such
repayment, each Warranty Loan so repaid shall not be included in the Collateral. In
consideration of any such release by the Secured Parties, the relevant Borrower
shall, on the date of such repayment, remit to the Administrative Agent, on behalf
of the Secured Parties, in immediately available funds an amount equal to the
Retransfer Price therefor. Upon each such repayment, the Administrative Agent, on
behalf of the Secured Parties, shall automatically and without further action be
deemed to release to the relevant Borrower all the right, title and interest of the
Secured Parties in, to and under such Warranty Loan(s) and all monies due or to
become due with respect thereto, all proceeds thereof and all rights to security for
any such Warranty Loan, and all proceeds and products of the foregoing and any other
Collateral related to such Warranty Loan(s). The Administrative Agent and the
Security Trustee shall, at the sole expense of the relevant Borrower, execute such
documents and instruments of transfer as may be prepared by such Borrower and take
such other actions as shall reasonably be requested by such Borrower to effect the
transfer of such Warranty Loan free of the Security under the Security Documents
pursuant to this Clause 5.1.1. (including, if so requested, to confirm the
non-crystallization of the floating charge created under the Security Documents).






	 	5.1.2	 	Each of the Borrowers hereby agrees that (x) if any real property collateral
securing any Loan becomes the subject of any claims, proceedings, Liens or encumbrances
with respect to any material violation or claimed material violation of any applicable
environmental laws or regulations or (y) in the event of a breach of the representation
and warranty in Clause 16.1.21, such Loan shall for all purposes hereunder be, at and
following the time of discovery by the Servicer of such fact, the relevant Borrower, the
Administrative Agent or any other Secured Party, deemed a Warranty Loan and the relevant
Borrower shall repay Advances Outstanding in an amount equal to the aggregate Retransfer
Price of such Warranty Loan. Such Warranty Loan shall otherwise be treated in accordance
with Clause 5.1 and shall be subject to the same remedial and recourse provisions
hereunder as other Loans determined to be Warranty Loans hereunder.
	 
	 	5.1.3	 	If any Advance Outstanding required to be repaid pursuant to Clause 5.1.1 is an
Advance in an Alternative Currency, such Advance Outstanding shall be repaid in the same
Alternative Currency.
	 
	 	5.1.4	 	The Borrowers shall not be entitled to substitute for any Warranty Loans under
this Clause 5.1 on or after the Amendment Date.




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	5.2	 	Discretionary Sales






	 	5.2.1	 	Prior to the occurrence of a Default or an Event of Default or the Termination
Date, on any Discretionary Sale Date, a Borrower shall have the right to prepay all or a
portion of the Advances Outstanding in connection with the sale and assignment to such
Borrower by the Administrative Agent, on behalf of the Secured Parties, of all or part
of the Collateral (each, an “Discretionary Sale”), subject to the following terms and
conditions:






	 	(a)	 	At least two Business Days prior to each Discretionary Sale
Date, the relevant Borrower shall have given the Administrative Agent written
notice of its intent to effect a Discretionary Sale (each such notice a
“Discretionary Sale Notice”), specifying the Discretionary Sale Date and
including a list of all Loans to be sold and assigned pursuant to such
Discretionary Sale together with an Overcollateralization Ratio Certificate;
	 
	 	(b)	 	Any Discretionary Sale shall be made by the relevant Borrower
to an unaffiliated third party purchaser in a transaction (i) reflecting
arms-length market terms and (ii) in which such Borrower makes no
representations, warranties or covenants and provides no indemnification for
the benefit of any other party to the Discretionary Sale; provided that the
Borrower may make a Discretionary Sale to an Affiliate for a purchase price
equal to the Market Value of the Loans to be sold and assigned pursuant to such
Discretionary Sale;
	 
	 	(c)	 	After giving effect to the Discretionary Sale and the
assignment to the relevant Borrower of the Collateral on any Discretionary Sale
Date, (i) the Repeating Representations contained in Clause 17 hereof shall
continue to be correct in all material respects, except to the extent relating
to an earlier date and (ii) neither a Default nor an Event of Default shall
have occurred;
	 
	 	(d)	 	On the related Discretionary Sale Date, the Administrative
Agent, on behalf of the Secured Parties, shall have received, as applicable, in
immediately available funds, an amount equal to the sum of (i) the portion of
the Advances Outstanding to be repaid (that are attributable to the Collateral
to be sold by the Borrower(s) in connection with such Discretionary Sale), (ii)
an amount equal to all unpaid Interest to the extent reasonably determined by
the Administrative Agent to be attributable to that portion of the Advances
Outstanding to be repaid in connection with the Discretionary Sale and (iii) an
aggregate amount equal to the sum of all other Aggregate Unpaids due and owing
to the Secured Parties under this Agreement and the other Transaction Documents
(that are attributable to the Collateral to be sold by the Borrower(s) in
connection with such Discretionary Sale), to the extent accrued to such date;
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
relevant Borrower on the Discretionary Sale Date is sufficient to satisfy the
requirements of clauses (i) through (iii) and is sufficient to reduce the
Advances Outstanding to




- 46 -









 






	 	 	 	the extent requested by the relevant Borrower in connection with the
Discretionary Sale;
	 
	 	(e)	 	A Discretionary Sale of a Loan may only occur if the sale price
of each Loan is equal to or greater than 90% of the percentage price for which
such Loan was acquired by the Borrower, provided that the first €10,000,000
or equivalent (of Outstanding Loan Balances) of Loans which are the subject of
a Discretionary Sale after the Amendment Date are not required to comply with
this condition. Notwithstanding the foregoing, the Administrative Agent at its
discretion may consent to a Discretionary Sale of a Loan which does not comply
with the foregoing condition; and
	 
	 	(f)	 	On the related Discretionary Sale Date, the proceeds from such
Discretionary Sale have been sent directly into the applicable Collection
Account.






	 	5.2.2	 	Subject to the provisions of Clause 5.2.1(d) above, upon the proceeds of a
Discretionary Sale being credited to the Collection Account, the Administrative Agent,
on behalf of the Secured Parties, shall automatically and without further action be
deemed to release to the relevant Borrower all the right, title and interest of the
Secured Parties in, to and under the Loan(s) subject to the Discretionary Sale and all
monies due or to become due with respect thereto, all proceeds thereof and all rights to
security for any such Loan(s), and all proceeds and products of the foregoing and any
other Collateral related to such Loan(s). The Administrative Agent and the Security
Trustee shall, at the sole expense of the relevant Borrower, execute such documents and
instruments of transfer as may be prepared by such Borrower and take such other actions
as shall reasonably be requested by such Borrower to effect the transfer of such Loan
free of the Security under the Debenture (including, if so requested, to confirm the
non-crystallization of the floating charge under the Debenture).






	5.3	 	The Borrowers may, with the prior consent of the Administrative Agent, by themselves or by an
Affiliate, enter into a securitisation or other financing transaction that is secured directly
or indirectly by loans which have previously formed part of the Collateral (or any portion
thereof or interest therein) including any collateralised loan or collateralised debt
obligation. The Administrative Agent shall consent to such transaction if such transaction
complies with the conditions applicable to Discretionary Sales set out in Clauses 5.1 and 5.2
save that in respect of Clause 5.2.1(b) the Borrower may grant representations, warranties and
indemnities consistent with customary market practice in relation to any securitization
transaction. The Administrative Agent may at its sole discretion consent to a securitization
transaction which does not comply with these conditions.




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	6.	 	REPAYMENT, PRE-PAYMENT AND CANCELLATION






	6.1	 	Illegality
	 
	 	 	If, at any time, it is or will become unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to fund or maintain its
participation in any Loan:






	 	6.1.1	 	that Lender shall promptly notify the Administrative Agent upon becoming aware
of that event and the Administrative Agent shall promptly notify the Lenders of such
event;
	 
	 	6.1.2	 	upon the Administrative Agent notifying the relevant Borrower, the relevant Loan
of that Lender will be immediately cancelled; and
	 
	 	6.1.3	 	the relevant Borrower shall repay that Lender’s participation in the relevant
Loan made to the relevant Borrower on the date specified by the Lender in the notice
delivered to the Administrative Agent (being no earlier than the last day of any
applicable grace period permitted by law).






	6.2	 	Voluntary pre-payment of Advances






	 	6.2.1	 	The Borrowers may, upon three Business Days’ prior written notice (such notice
to be received by the Administrative Agent no later than 11:00 a.m. (London time) on
such day) to the Administrative Agent, prepay the Advances Outstanding by remitting to
the Administrative Agent, for payment to the respective Lenders (i) cash, in the
Currency of such Advances, in an amount equal to the amount of such Advances Outstanding
to be prepaid, accrued Interest on the amount of Advances Outstanding to be prepaid, any
Breakage Costs and (ii) instructions to reduce such Advances Outstanding by the amount
of such prepayment. Any prepayment of the Advances Outstanding shall be in a minimum
amount of €1,000,000 and (a) with respect to the first €500,000 of any prepayment
hereunder, integral multiples of €100,000 in excess thereof and (b) thereafter, with
respect to any such prepayment, integral multiples of €1. Any such prepayment will
occur only if sufficient funds have been remitted to pay all of the following amounts in
full: upon receipt of such funds, the Administrative Agent shall apply such amounts (i)
to the pro rata prepayment of the Advances Outstanding to the respective Lenders, (ii)
to the payment of accrued Interest on the amount of the Advances Outstanding to be
prepaid by paying such amounts to the respective Lenders and (iii) to the payment of any
Breakage Costs. Any Advances Outstanding so prepaid may, subject to the terms and
conditions hereof, be reborrowed during the Revolving Period. Any Borrower Notice
relating to any prepayment pursuant to this Clause 6.2.1 shall be irrevocable.
	 
	 	6.2.2	 	If on any day (i) the Security Trustee, on behalf of the Secured Parties, does
not own or have a valid and effective security interest in any Loan and Related Property
(subject to Permitted Security) or (ii) any Loan which has been represented by a
Borrower to be an Eligible Loan is later determined not to have been an Eligible Loan at
the time such representation was made by such Borrower, upon the earlier of such
Borrower’s receipt of notice from the Security Trustee or such Borrower becoming aware
thereof and such




- 48 -









 






	 	 	 	Borrower’s failure to cure or procure the cure of such breach within 30 days (if
cure is reasonably possible and otherwise immediately upon receipt of such notice or
upon such Borrower becoming aware of such breach), such Loan shall cease to be an
Eligible Loan for all purposes hereunder.






	6.3	 	Mandatory Repayment — Conversion — Rebalancing






	 	6.3.1	 	The Borrowers or the Servicer on behalf of the Borrowers shall calculate the
Euro Equivalent amount of all Advances Outstanding denominated in an Alternative
Currency (a) at the time of each Advance and (b) on each Determination Date. The
Administrative Agent may calculate the Euro Equivalent amount of all Advances
Outstanding denominated in an Alternative Currency at such times as may be deemed
necessary by the Administrative Agent in its sole discretion. If at any such time the
Euro Equivalent Amount of all Advances Outstanding, so determined by the Administrative
Agent, the Borrowers or the Servicer, in the aggregate, exceeds an amount which permits
compliance with the Minimum Overcollateralization Ratio, the Administrative Agent shall
notify each Lender and may request that the Borrowers (and the Borrowers shall, upon
receipt of such request), immediately prepay all or a portion of such Advances
Outstanding, in such amount so that, following the making of such payment, the Euro
Equivalent amount of such Advances Outstanding so as to restore compliance with the
Minimum Overcollateralization Ratio. All prepayments under this Clause 6.3 shall be
accompanied by (i) Cost of Funds on the principal amount of the Advances Outstanding
prepaid through the date of prepayment, (ii) any Commitment Fees and (iii) any and all
Breakage Costs. Upon receipt of such amounts, the Administrative Agent shall apply such
amounts to the pro rata reduction of the Advances Outstanding of the Lenders in the
related Alternative Currencies and to the payment of accrued Interest and any other
amounts owed on such Advances Outstanding by paying such amounts to the respective
Lenders.
	 
	 	6.3.2	 	The Borrowers may, upon giving three Business Days written notice to the
Administrative Agent in the form set out in Exhibit A-2, repay an amount of Advances
Outstanding denominated in one Currency and re-draw an equivalent amount denominated in
another Currency (converted at the rate of exchange determined by the Administrative
Agent as at the day of such reimbursement and re-drawing) such that the aggregate of
Advances Outstanding is not increased (“Rebalancing”), but such Rebalancing may only
occur in the event that the Obligor of any Eligible Loan has repaid its drawing under
one Currency and re-borrowed its drawing in such other Currency. Such Rebalancing may
only be done if the Currency-Specific Maximum Availability is not exceeded.
Notwithstanding non-compliance with the foregoing condition, the Borrowers may request
the Administrative Agent to allow a Rebalancing that the Administrative Agent may permit
in its sole discretion.






	6.4	 	Principal Repayments






	 	6.4.1	 	Unless sooner prepaid pursuant to Clauses 5, 6.2.1, 6.2.2 6.3, 19 or 20, the
Advances Outstanding shall be repaid in full in the Currency of such Advances on the
Termination Date.




- 49 -









 












	 	6.4.2	 	All repayments of any Advance or any portion thereof shall be made together with
payment of (i) all Cost of Funds accrued and unpaid on the amount repaid to the date of
such repayment, (ii) any Commitment Fees, and (iii) any and all Breakage Costs.
	 
	 	6.4.3	 	On the Amendment Date the Borrowers shall use all amounts then credited to the
Reserve Fund together with amounts credited to the Collection Accounts and other sources
made available to the Borrowers to repay a corresponding principal amount of Advances
Outstanding so as to reduce the principal amount of Advances Outstanding to
€100,675,000.






	6.5	 	Release of Security Interest






	 	 	Upon the termination of this Agreement and the repayment by the Borrowers of all Obligations
and the performance and discharge in full of all of the Borrowers’ other obligations under
the Transaction Documents (including their obligations under the Combined Facility Guarantee)
and related documents in accordance with the Debenture and the Security Documents the
Security Trustee shall release its security interest in any remaining Collateral.






	7.	 	INTEREST






	7.1	 	Calculation of Interest






	 	7.1.1	 	Advances denominated in Euro or Pounds Sterling shall bear interest, at the
relevant Borrower’s option, at (i) the applicable Base Rate, or (ii) in the case of
Advances denominated in Euro, the applicable EURIBOR Rate (except that in the case of
Interest Periods of less than one month, the EURIBOR Rate shall be determined in
accordance with clause (iii) of the definition thereof), or (iii) in the case of
Advances denominated in Pounds Sterling, the applicable LIBOR Rate (except that in the
case of Interest Periods of less than one month, the LIBOR Rate shall be determined in
accordance with clause (iii) of the definition thereof), plus Mandatory Costs, if any;
provided that for so long as a EURIBOR Rate Disruption Event or a LIBOR Rate Disruption
Event is continuing, all such Advances shall bear interest at the Base Rate.
	 
	 	7.1.2	 	Advances denominated in Dollars shall bear interest, at the relevant Borrower’s
option, at (i) the applicable Base Rate, or (ii) the applicable LIBOR Rate plus
Mandatory Costs, if any; provided that for so long as a LIBOR Rate Disruption Event is
continuing, all such Advances shall bear interest at the Base Rate.
	 
	 	7.1.3	 	In addition to the Interest calculated in accordance with Clauses 7.1.1 — 7.1.2,
a Usage Fee shall be payable by the Borrower(s), such Usage Fee to be calculated, on any
date of determination, on the basis of the aggregate principal amount of the Advances
Outstanding on such date, as provided in the Fee Letter.






	7.2	 	Interest Periods
	 
	 	 	A Borrower may in relation to each Advance select Interest Periods of one or three months by
giving written notice to the Administrative Agent in the form set out in




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	 	 	Exhibit A-2 no later than 10:00 a.m. two Business Days prior to each Funding Date provided
that:






	 	(a)	 	if no such written notice is given by a Borrower the Interest Period shall be of
one month;
	 
	 	(b)	 	no Interest Period may extend beyond the Termination Date; and
	 
	 	(c)	 	the number of all Advances outstanding shall not exceed five.






	7.3	 	Payment of Interest
	 
	 	 	Interest shall accrue on each Advance, as applicable, during each Accrual Period at the
applicable Interest Rate. The relevant Borrower shall pay Interest on the unpaid principal
amount of each Advance, as applicable, for the period commencing on and including the Funding
Date of such Advance, as applicable, through but excluding the date that such Advance, as
applicable, shall be paid in full. Accrued and unpaid Interest shall be payable on each
Advance on each Payment Date, unless earlier paid pursuant to (i) a prepayment in accordance
with Clause 6.2 or (ii) a reimbursement or repayment in accordance with Clause 6.3 or 6.4, as
applicable.






	7.4	 	Default Interest






	 	7.4.1	 	If a Borrower fails to pay any amount payable by it under a Transaction Document
on its due date, interest shall accrue on the overdue amount from the due date up to the
date of actual payment (both before and after judgment) at a rate which, subject to
Clause 7.5, is 2.0% higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a duration selected by the
Administrative Agent in its reasonable discretion. Any interest accruing under this
Clause 7.4 shall be immediately payable by the relevant Borrower on demand by the
Administrative Agent.
	 
	 	7.4.2	 	Default interest (if unpaid) arising on an overdue amount will be compounded
with the overdue amount at the end of each Accrual Period applicable to that overdue
amount but will remain immediately due and payable.






	7.5	 	Notification of rates of interest






	 	7.5.1	 	Each Lender Agent shall determine the amount of any Breakage Costs due to such
Lender Agent on each Payment Date and shall inform the Administrative Agent of the
amount of such Breakage Costs no later than 6 Business Days before such Payment Date.
Any Breakage Costs not notified by such time shall be payable on the next following
Payment Date.
	 
	 	7.5.2	 	The Administrative Agent shall determine: (i) the Interest Rate on each
Quotation Date and shall advise each Lender Agent and Servicer of such Interest Rate
promptly thereafter and (ii) Interest (including unpaid Interest, if any, due and
payable on a prior Payment Date) to be paid by the relevant Borrower with respect to
each Advance and each Swingline Advance on each Payment Date and shall advise each
Lender Agent and the Servicer on behalf




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	 	 	 	of the relevant Borrower thereof five Business Days prior to each Payment Date.






	8.	 	PAYMENT MECHANICS






	8.1	 	Payments during the Revolving Period.
	 
	 	 	Provided that no Event of Default has occurred which is continuing and subject to Clause 9.3,
on each Payment Date during the Revolving Period, the Administrative Agent shall pay to the
following Persons, pursuant to the most recent Monthly Report, from amounts released by the
Account Bank (with the consent of the Security Trustee) from each Collection Account and the
Reserve Fund, to the extent of Available Funds in such Collection Account and the Reserve
Fund, the following amounts, provided that the consent of the Security Trustee to the release
of amounts from each Collection Account and Reserve Fund shall be deemed to be given for the
purpose of this Clause provided such amounts are in accordance with the Monthly Report and
the Monthly Report provides for the application of funds to be made in accordance with the
following order of priority such that no funds are applied to an item in the order of
priority until all sums due (in whatever currency) in respect of items with a higher ranking
in the order of priority are paid in full:






	 	8.1.1	 	to any party owed, administrative fees (if any) (not to
exceed €5,000 in any
trailing 12-month period);
	 
	 	8.1.2	 	to the Servicer, (or Successor Servicer, as the case may be) in an amount equal
to its accrued and unpaid Servicing Fees to the end of the preceding Collection Period,
for the payment thereof;
	 
	 	8.1.3	 	to each Lender Agent (and, with respect to any accrued and unpaid Breakage
Costs, the relevant Borrower(s)), pro rata in accordance with the amount of Advances
Outstanding, in an amount equal to any accrued and unpaid Cost of Funds, Commitment Fee
and Breakage Costs;
	 
	 	8.1.4	 	to the Administrative Agent, for the account of the applicable Affected Party,
to be paid pro rata to such Affected Parties in accordance with the amount owed to such
Person under this Clause 8.1.4, in an amount equal to any unpaid Increased Costs, Taxes
and any Other Costs, for the payment thereof;
	 
	 	8.1.5	 	to the Administrative Agent, each Conduit Lender and each Institutional Lender,
the Affected Parties and the Indemnified Parties, pro rata in accordance with the amount
owed to such Person under this Clause 8.1.5, all other amounts (other than Advances
Outstanding) then due under this Agreement, for the payment thereof;
	 
	 	8.1.6	 	at the option of the Borrower(s), to the Reserve Fund, an amount, if any, which,
when so deposited, causes the balance of the Reserve Fund to equal the one-month
Required Interest Reserve Amount, the two-month Required Interest Reserve Amount or the
three-month Required Interest Reserve Amount;
	 
	 	8.1.7	 	to the extent not paid by the Servicer, to any Successor Servicer, pro rata in
accordance with the amount owed to such Person under this Clause 8.1.7, in an




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	 	 	 	amount equal to any accrued and unpaid Transition Costs, Successor Servicer Expenses
and Market Servicing Fee Differential, for the payment thereof;
	 
	 	8.1.8	 	€1,500 to the Borrower in respect of its retained profit referred to in
Recital (C);
	 
	 	8.1.9	 	at the option of the Borrower(s): (i) to be invested in additional Eligible
Loans that become part of the Collateral within two Business Days of such date or
distributed to the Borrower(s); and (ii) to be invested in Permitted Investments in
accordance with Clause 1.1; and (iii) to make (or reserve towards making) payments
relating to the Permitted Indebtedness; provided that the following conditions are
satisfied following such payment(s) as determined by the Administrative Agent: neither a
Default, an Event of Default nor a Servicer Termination Event has occurred or would
result from the actions set forth in clauses (i) — (iii) above; and
	 
	 	8.1.10	 	the surplus to the Borrower, provided that the conditions to be satisfied under Clause
8.1.9 above are also satisfied following payment of such surplus.






	8.2	 	Re-Investment during the Revolving Period. On the terms and conditions hereinafter set out,
provided that no Event of Default has occurred which is continuing and subject to Clause 9.3,
from time to time during the Revolving Period, a Borrower or the Servicer on its behalf, may,
to the extent of any Principal Collections on deposit in any Collection Account:






	 	8.2.1	 	request that the Account Bank (with the consent of the Security Trustee,
provided that the consent of the Security Trustee to the release of amounts from each
Collection Account and Reserve Fund shall be deemed to be given for the purpose of this
Clause provided such amounts are in accordance with the Monthly Report and the Monthly
Report provides for the application of funds to be made in accordance with the priority
of payments provided in Clause 8.1 above), release such funds to the Servicer for the
purpose of reinvesting in additional Eligible Loans, provided the following conditions
are satisfied:






	 	(a)	 	the Servicer provides same day written notice to the
Administrative Agent by facsimile (to be received no later than 11:00 a.m.
(London time) on such day) of such request and the amount thereof;
	 
	 	(b)	 	the notice required in Clause 8.2.1(a) above shall be
accompanied by a Borrower Notice in the form of Exhibit A-1 executed by the
relevant Borrower and at least one Responsible Officer of the Servicer;
	 
	 	(c)	 	the Account Bank provides to the Administrative Agent by
facsimile or email (to be received no later than 11:00 a.m. (London time) on
that same date) a statement reflecting the total amount of Principal
Collections on deposit on such day in such Collection Account; and
	 
	 	(d)	 	upon the satisfaction of the conditions set out in
Clauses 8.2.1(a) to 8.2.1(c) above, and the Account Bank’s confirmation of
available funds, the Account Bank shall, with the consent of the Security
Trustee, release




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	 	 	 	funds consisting of Principal Collections from such Collection Account to the
Servicer in an amount not to exceed the lesser of (A) the amount requested by
the Servicer and (B) the amount of Principal Collections on deposit in such
Collection Account on such day; or request that such funds be applied to make
payments in respect of the Advances Outstanding at such time in accordance
with and subject to the terms of Clause 6.2.1, in which case the Account Bank
shall deposit such funds into the appropriate Administrative Agent’s Account
and the Administrative Agent shall apply such funds in accordance with
Clause 6.2.1.






	8.3	 	During the Amortisation Period. Provided that no Event of Default has occurred which is
continuing and subject to Clause 9.3, on each Payment Date during the Amortisation Period, the
Administrative Agent shall pay to the following Persons, pursuant to the most recent Monthly
Report, from amounts transferred by the Account Bank (with the consent of the Security
Trustee) from each Collection Account and the Reserve Fund to the corresponding Administrative
Agent’s Account, to the extent of Available Funds in such Collection Account and the Reserve
Fund, the following amounts, provided that the consent of the Security Trustee to the release
of amounts from each Collection Account and Reserve Fund shall be deemed to be given for the
purpose of this Clause provided such amounts are in accordance with the Monthly Report and the
Monthly Report provides for the application of funds to be made in accordance with the
following order of priority such that no funds are applied to an item in the order of priority
until all sums due (in whatever currency) in respect of items with a higher ranking in the
order of priority are paid in full in the following order of priority are paid in full:






	 	8.3.1	 	to any party owed, administrative fees (if any) (not to exceed €5,000 in any
trailing 12 month period);
	 
	 	8.3.2	 	to the extent not paid by the Servicer, to the Successor Servicer in an amount
equal to any accrued and unpaid currently due Successor Servicer Fees, for the payment
thereof;
	 
	 	8.3.3	 	to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to
the end of the preceding Collection Period, for the payment thereof;
	 
	 	8.3.4	 	to each Lender Agent (and, with respect to any accrued and unpaid Breakage
Costs, the relevant Borrower(s)), pro rata in accordance with the amount of Advances
Outstanding hereunder, in an amount equal to any accrued and unpaid Interest, Commitment
Fee and Breakage Costs;
	 
	 	8.3.5	 	to each Lender Agent, pro rata in accordance with the amount of Advances
Outstanding hereunder, for the account of the applicable Lender, in an amount necessary
to reduce the Advances Outstanding and Obligations due to such Lender to zero, for the
payment thereof;
	 
	 	8.3.6	 	to the Administrative Agent and each Lender Agent, for the account of the
applicable Affected Party, to be paid pro rata to such Affected Parties in accordance
with the amount owed to such Person under this Clause 8.3.6, in an




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	 	 	 	amount equal to any unpaid Increased Costs, Taxes and any Other Costs, for the
payment thereof;
	 
	 	8.3.7	 	to each Lender Agent, the Lenders, the Affected Parties and the Indemnified
Parties, pro rata in accordance with the amount owed to such Person under this Clause,
all other amounts (other than Advances Outstanding) then due under this Agreement, for
the payment thereof;
	 
	 	8.3.8	 	to the extent not paid by the Servicer, to any Successor Servicer, pro rata in
accordance with the amount owed to such Person under this Clause, in an amount equal to
any accrued and unpaid Transition Costs, Successor Servicer Expenses and Market
Servicing Fee Differential, for the payment thereof;
	 
	 	8.3.9	 	to Wachovia Capital Markets LLC in an amount equal to the Aggregate Combined
Facility Unpaids which are outstanding under the Combined Facility together with any
amounts due under the Combined Facility Guarantee (but without double counting);
	 
	 	8.3.10	 	pro rata, to each Borrower, an amount of not more than €6,000 per annum in respect
of that Borrower’s retained profit as referred to in Recital (F)(C);
	 
	 	8.3.11	 	to each Person entitled thereto, pro rata, an amount equal to all outstanding
Obligations owed to such Person; and
	 
	 	8.3.12	 	after the occurrence of the “Collection Date” as defined in the Combined Facility, any
remaining amounts shall be distributed to the Borrowers.






	8.4	 	Consolidated Orders of Priorities. For the avoidance of doubt, given the joint and several
liabilities of the Borrowers under this Agreement, the orders of priority shall be applied on
a consolidated basis regardless of whether the moneys in question are in an account in the
name of one or the other Borrower and regardless of whether the moneys represent amounts
received or collected by one Borrower rather than the other.






	9.	 	COLLECTIONS AND ALLOCATIONS






	9.1	 	On or before the date on which a Borrower originates or otherwise acquires a Loan, such
Borrower, or the Servicer on behalf of such Borrower, shall have instructed the related
Obligor to make all payments in respect of such Loan to the Collection Account corresponding
to the Currency in which such Loan is denominated. The relevant Borrower, or the Servicer on
behalf of the relevant Borrower, shall promptly (but in no event later than two Business Days
after the receipt thereof) identify any Collections received in the Collection Accounts as
being Interest Collections or Principal Collections. In the event that any Collections are
received in the Reserve Fund (whether by reason of outstanding direct debits or otherwise)
they shall be promptly transferred to the Collection Account within one Business Day.






	9.2	 	Notwithstanding anything to the contrary contained herein or in any other Transaction
Document, all payments required to be made by a Borrower hereunder shall be made by such
Borrower through the Servicer acting as its Paying Agent. In addition, each Borrower
authorises the Servicer to execute on such Borrower’s behalf, notices given pursuant to Clause
6.2 and each Borrower’s certification to be delivered.




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	9.3	 	The Servicer shall allocate and apply Collections in each Collection Account to the payment
of amounts payable in the Currency deposited into such Collection Account. To the extent that
aggregate amounts payable or to become payable in any Currency exceed the amount of
Collections denominated in such Currency on deposit in any Collection Account for such
Currency and available for such payment, and Collections denominated in any other Currency on
deposit in any Collection Account are available for such payment, then the Servicer shall
allocate such other Collections to the payment of such amount, and on the Payment Date the
Servicer, in consultation with the Administrative Agent, shall instruct the Account Bank to
cause such other Collections to be converted to the Currency of payment using the spot selling
rate as of the related Determination Date and shall apply the amounts so converted to the
making of such payment such that no item in the orders of priority is paid unless and until
items due (in whatever currency) which have a higher ranking in the order of priority have
been paid in full.






	9.4	 	With respect to any Revolving Loans or Delayed Draw Term Loans (until such time as they
become Term Loans) 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 Borrower(s) and to the portion not owned by the Borrower(s) (if any) on a
pro rata basis according to the outstanding principal amount of such portion.






	10.	 	PAYMENTS, COMPUTATIONS, ETC.






	10.1	 	Unless otherwise expressly provided herein, all amounts to be paid or deposited by a Borrower
or the Servicer on behalf of a Borrower or which are transferred by the Account Bank from the
Collection Accounts and the Reserve Fund shall be paid or deposited in accordance with the
terms hereof no later than 12:00 p.m. (or 10:00 a.m. local time in the Principal Financial
Centre of the Alternative Currency), on the day when due in immediately available funds to the
applicable Administrative Agent’s Account as set out in ANNEX E. All amounts to be made
available by any Lender, Lender Agent to the Administrative Agent in connection with the
making of any Advance, whether in Euro or in an Alternative Currency, shall be sent to the
Administrative Agent on the date when due in immediately available funds to an account
designated by the Administrative Agent to each such Lender or Lender Agent or Swingline Lender
Agent, which amounts, if in an Alternative Currency, shall be made available to the
Administrative Agent no later than 12:00 p.m. (or 10:00 a.m. local time in the Principal
Financial Centre of the Alternative Currency) on the date when due. If, under any provisions
of this Agreement, any Lender or Lender Agent is owed any amount in respect of Breakage Costs,
each such Lender or Lender Agent, as the case may be, shall send a statement to the
Administrative Agent listing each such amount in accordance with Clause 7.4.






	10.2	 	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 payment of Interest, other interest or
any fee payable hereunder, as the case may be.






	10.3	 	All payments hereunder shall be made without set-off or counterclaim and in such Currency and
in such amounts as may be necessary in order that all such payments




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	 	 	shall not be less than the amounts otherwise specified to be paid under this Agreement (after
withholding for or on account of any Taxes).






	10.4	 	Except to the extent otherwise provided herein or in any other Transaction Document, all
amounts owing under this Agreement or under any such other Transaction Document are payable in
Euro, except for the principal of, and Cost of Funds on, any Advance denominated in any
Alternative Currency and Breakage Costs relating thereto, which are payable in such
Alternative Currency. If a Borrower shall fail to pay any principal of, or any Interest on,
any Advance when due (whether at stated maturity, by acceleration, by mandatory prepayment or
otherwise), the unpaid portion of such Advance shall, if such Advance is not denominated in
Euro, automatically be redenominated in Euro on the due date thereof (or, if such due date is
a day other than the last day of the Accrual Period therefor, on the last day of such Accrual
Period) in an amount equal to the Euro Equivalent thereof using the spot selling rate as of
such date.






	11.	 	FEES






	11.1	 	The Borrowers shall pay to each Lender Agent, quarterly in arrears, in accordance with
Clauses 8.1.3 and 8.3.4, to the extent of Available Funds:






	 	11.1.1	 	from the Collection Accounts and the Reserve Fund on each Payment Date, the Commitment
Fee; and
	 
	 	11.1.2	 	from (i) the Collection Account corresponding to the currency of each Advance
Outstanding and (ii) the Reserve Fund, the Usage Fee.






	11.2	 	The Borrower(s) shall pay to the Administrative Agent, in accordance with Clause 33.9, (i) on
the Closing Date, an amount equal to the estimated reasonable legal fees and itemised
out-of-pocket expenses of the Administrative Agent’s counsel as of such date, and (ii) all
additional reasonable fees and out-of-pocket expenses of such counsel within 30 Business Days
after receiving an invoice for such amounts.






	11.3	 	If, in respect of the next Payment Date, the Administrative Agent determines that there would
be an insufficient amount of Collections available in any Currency to pay the amounts to be
paid under Clauses 11.1 and 11.2 denominated in such Currency at a particular level of the
Priority of Payments on such Payment Date, then the Administrative Agent shall exchange an
amount of Collections available in any other Currency (as selected by the Administrative Agent
in a commercially reasonable manner) equal to such shortfall at the spot selling rate
determined by the Administrative Agent for delivery two Business Days after such date of
determination, which amounts shall be applied on the next Payment Date in accordance with the
Priority of Payments, and (ii) if such Collections are insufficient to fully pay the
shortfall, apply the Reserve Fund to such shortfall. If any item at a particular level of the
Priority of Payments remains unpaid after such application then, with respect to the item (or
if more than one item, those items ranking pari passu in priority of payment) which will not
be paid in full, the relevant shortfall shall be borne proportionately between such items of
the same priority.






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	12.	 	TAX GROSS UP AND INDEMNITIES
	 
	12.1	 	Definitions
	 
	 	 	In this Agreement:
	 
	 	 	“Protected Party” means a Lender which is or will be subject to any liability or required to
make any payment for or on account of Tax in relation to a sum received or receivable (or any
sum deemed for the purposes of Tax to be received or receivable) under a Transaction
Document.
	 
	 	 	“Tax Confirmation” means a confirmation by a Lender that the person beneficially entitled to
interest payable to that Lender in respect of an advance under a Transaction Document is
either:






	 	(i)	 	a company resident in the United Kingdom for United Kingdom tax purposes; or
	 
	 	(ii)	 	a partnership each member of which is:






	 	(A)	 	a company so resident in the United Kingdom; or
	 
	 	(B)	 	a company not so resident in the United Kingdom which carries
on a trade in the United Kingdom through a permanent establishment and which
brings into account in computing its chargeable profits (for the purposes of
section 11(2) of the Taxes Act) the whole of any share of interest payable in
respect of that advance that falls to it by reason of sections 114 and 115 of
the Taxes Act; or
	 
	 	(C)	 	a company not so resident in the United Kingdom which carries
on a trade in the United Kingdom through a permanent establishment and which
brings into account interest payable in respect of that advance in computing
the chargeable profits (for the purposes of section 11(2) of the Taxes Act) of
that company.






	 	 	“Tax Credit” means a credit against, relief or remission for, or repayment of, any Tax.
	 
	 	 	“Tax Deduction” means a deduction or withholding for or on account of Tax from a payment
under a Transaction Document.
	 
	 	 	“Tax Payment” means either the increase in a payment made by an Obligor to a Lender under
Clause 12.2 or a payment under Clause 12.3.
	 
	 	 	“Treaty Lender” means a Lender which:






	 	12.1.1	 	is treated as a resident of a Treaty State for the purposes of the Treaty and under
the terms of that Treaty is entitled to receive payment of interest (subject to the
completion of any necessary procedural formalities) without any deduction or withholding
on account of Tax; and
	 
	 	12.1.2	 	does not carry on a business in the United Kingdom through a permanent establishment
with which that Lender’s participation in the Loan is effectively connected.




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	 	 	“Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with the
United Kingdom which makes provision for full exemption from withholding tax imposed by the
United Kingdom on interest.
	 
	 	 	Unless a contrary indication appears, in this Clause 12 a reference to “determines” or
“determined” means a determination made in the sole discretion of the person making the
determination acting in good faith.
	 
	12.2	 	Tax gross-up






	 	12.2.1	 	The Borrowers and the Additional Guarantors shall make all payments to be made by them
under any Transaction Document without any Tax Deduction, unless a Tax Deduction is
required by law.
	 
	 	12.2.2	 	Each Borrower and Additional Guarantor shall promptly upon becoming aware that it must
make a Tax Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Administrative Agent accordingly. Each Lender shall promptly
notify the Administrative Agent on becoming so aware in respect of a payment payable to
that Lender. If the Administrative Agent receives such notification from a Lender, it
shall promptly notify the relevant Borrower or Additional Guarantor.
	 
	 	12.2.3	 	If a Tax Deduction is required by law to be made by a Borrower or Additional Guarantor
the amount of the payment due from such Borrower or Additional Guarantor shall be
increased to an amount necessary to ensure that (after making such Tax Deduction) it
leaves an amount equal to the payment which would have been due if no Tax Deduction had
been required.
	 
	 	12.2.4	 	A Borrower or Additional Guarantor is not required to make an increased payment to a
Lender under Clause 12.2.3 above for a Tax Deduction, in respect of tax imposed in the
United Kingdom, if on the date on which the payment falls due:






	 	(a)	 	the payment could have been made to the relevant Lender without
a Tax Deduction if it was a Qualifying Lender, but on that date that Lender is
not or has ceased to be a Qualifying Lender other than as a result of any
change after the date it became a Lender under this Agreement in (or in the
generally published interpretation, administration, or application of) any law
or Treaty, or any generally published practice or concession of any relevant
taxing authority; or
	 
	 	(b)	 	 






	 	(A)	 	the relevant Lender is a Qualifying Lender solely
under sub-paragraph (a)(ii) of the definition of Qualifying Lender;
	 
	 	(B)	 	an officer of HM Revenue & Customs has given (and
not revoked) a direction (a “Direction”) under section 931 of the Income
Tax Act (as that provision has effect on the date on which the relevant
Lender became a Party) which relates to that payment and that




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	 	 	 	Lender has received from that Borrower or Additional Guarantor a
certified copy of that Direction; and
	 
	 	(C)	 	the payment could have been made to the Lender
without any Tax Deduction in the absence of that Direction; or






	 	(c)	 	the relevant Lender is a Qualifying Lender solely under
sub-paragraph (a)(ii) of the definition of Qualifying Lender and it has not,
other than by reason of any change after the date of this Agreement in (or in
the generally published interpretation, administration or application of) any
law, or any generally published practice or concession of any relevant taxing
authority, given a Tax Confirmation to the Borrower or Additional Guarantor; or
	 
	 	(d)	 	the relevant Lender is a Treaty Lender and the Borrower or
Additional Guarantor making the payment is able to demonstrate that the payment
could have been made to the Lender without the Tax Deduction had that Lender
complied with its obligations under Clause 12.2.7 below ; or
	 
	 	(e)	 	the increased payment is due as a result of any assignment or
transfer of the Loans by an Existing Lender to a New Lender pursuant to Clause
21.






	 	12.2.5	 	If a Borrower or Additional Guarantor is required to make a Tax Deduction as a result
of a change in the Applicable Law, such Borrower or Additional Guarantor shall make that
Tax Deduction and any payment required in connection with that Tax Deduction within the
time allowed and in the minimum amount required by law.
	 
	 	12.2.6	 	Within 30 days of making either a Tax Deduction or any payment required in connection
with that Tax Deduction, the relevant Borrower or Additional Guarantor shall deliver to
the Administrative Agent, for the Lender entitled to the payment, evidence reasonably
satisfactory to that Lender that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
	 
	 	12.2.7	 	A Treaty Lender and the relevant Borrower or Additional Guarantor, to the extent a
Borrower or Additional Guarantor makes a payment to which that Treaty Lender is
entitled, shall co-operate in completing any procedural formalities (including the
completion and submission of any relevant form) necessary for such Borrower or
Additional Guarantor to obtain authorisation to make that payment without a Tax
Deduction and in particular each Treaty Lender shall, as soon as reasonably practicable,
submit an application for gross payment to its local tax authority and provide a copy of
such application to the Administrative Agent and the relevant Borrower or Additional
Guarantor.






	12.3	 	Tax indemnity






	 	12.3.1	 	The relevant Borrower shall (within three Business Days of demand by the
Administrative Agent) pay (or procure payment) to a Protected Party an amount equal to
the loss, liability or cost which that Protected Party determines, acting in good faith,
will be or has been (directly or indirectly)




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	 	 	 	suffered for or on account of Tax by that Protected Party in respect of a
Transaction Document. A copy of a certificate confirming the amount and date of the
loss, liability or Tax suffered or to be suffered shall accompany the demand for
payment.
	 
	 	12.3.2	 	Clause 12.3.1 above shall not apply:






	 	(a)	 	with respect to any Tax assessed on a Protected Party:






	 	(i)	 	under the law of the jurisdiction in which that
Protected Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Protected Party is treated as resident for
tax purposes; or
	 
	 	(ii)	 	under the law of the jurisdiction in which that
Protected Party’s Facility Office is located in respect of amounts
received or receivable in that jurisdiction,






	 	(b)	 	if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be received or
receivable) by that Protected Party; or






	 	(c)	 	to the extent a loss, liability or cost:






	 	(i)	 	is compensated for by an increased payment under
Clause 12.2;
	 
	 	(ii)	 	would have been compensated for by an increased
payment under Clause 12.2 but was not (or will not be) so compensated
solely because one of the exclusions in sub-clause 12.2.4 of Clause 12.2
applied (or will apply); or
	 
	 	(iii)	 	arises as a result of wilful misconduct by such
Protected Party.






	 	12.3.3	 	A Protected Party making, or intending to make a claim pursuant to Clause 12.3.1 above
shall promptly notify the Administrative Agent of the event which will give, or has
given, rise to the claim, following which the Administrative Agent shall notify the
relevant Borrower.
	 
	 	12.3.4	 	A Protected Party shall, on receiving a payment from a Borrower under this Clause
12.3, notify the Administrative Agent.
	 
	 	12.3.5	 	This Clause 12.3 shall not apply to the extent any loss, liability, cost or Tax is
attributable to the wilful misconduct of the relevant Protected Party or any of its
affiliates or agents.






	12.4	 	Tax Credit
	 
	 	 	If a Borrower or Additional Guarantor makes a Tax Payment and the relevant Secured Party
determines that:






	 	12.4.1	 	a Tax Credit is either attributable to that Tax Payment or to the Tax Deduction to
which that Tax Payment relates; and










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	 	12.4.2	 	that Secured Party has obtained, utilised and fully retained that Tax Credit on an
affiliated group basis,






	 	 	the Secured Party shall pay an amount to the relevant Borrower or Additional Guarantor which
that Secured Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by the relevant Borrower
or Additional Guarantor.
	 
	12.5	 	Stamp Taxes
	 
	 	 	Each Borrower shall pay and, within three Business Days of demand, indemnify each Lender
against any cost, loss or liability that Lender incurs in relation to all stamp duty,
registration and other similar Taxes payable in respect of any Transaction Document.
	 
	12.6	 	Value Added Tax






	 	12.6.1	 	All consideration expressed to be payable under a Transaction Document by any party to
a Lender shall be deemed to be exclusive of any VAT. If VAT is chargeable on any supply
made by any Lender to any party in connection with a Transaction Document, that party
shall pay to the Lender (in addition to and at the same time as paying the
consideration) an amount equal to the amount of the VAT and such Lender shall promptly
provide an appropriate VAT invoice to such Party.
	 
	 	12.6.2	 	Where a Transaction Document requires any party to reimburse a Secured Party for any
costs or expenses, that party shall also at the same time pay and indemnify that Secured
Party against all VAT incurred by the Secured Party in respect of the costs or expenses
to the extent that the Secured Party reasonably determines that neither it, nor any
other member of any group of which it is a member for VAT purposes, is entitled to
credit or repayment from the relevant tax authority in respect of the VAT.






	13.	 	INCREASED COSTS
	 
	13.1	 	Increased costs






	 	13.1.1	 	If either (i) the introduction of or any change in or in the interpretation of any
Applicable Law, guideline, rule, regulation, directive or request (including the
implementation of the Basel II Framework by national authorities) or (ii) compliance by
any Affected Party with any Applicable Law, guideline, rule, regulation, directive or
request from any central bank or other Governmental Authority (whether or not having the
force of law) (including any national regulation which implements the Basel II
Framework), including, without limitation, compliance by an Affected Party with any
request or directive regarding capital adequacy, has or would have the effect of (i)
reducing the rate of return on the capital of any Affected Party or any Lender’s Holding
Company, (ii) imposing an additional or increased cost, or (iii) reducing any amount due
and payable under any Transaction Document, in each case as a consequence of its
obligations hereunder or arising in connection herewith or an additional or increased
cost of any Affected Party to the extent that it is




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	 	 	 	attributable to that Affected Party having entered into its Commitment or funding or
performing an obligation in connection herewith to a level below or above, as
applicable, that which any such Affected Party or such Lender’s Holding Company
could have achieved but for such introduction, change or compliance (taking into
consideration the policies of such Affected Party or such Lender’s Holding Company
with respect to capital adequacy) by an amount deemed by such Affected Party or such
Lender’s Holding Company to be material, then from time to time, within 10 days
after demand by such Affected Party (which demand shall be accompanied by a
statement setting out the basis for such demand), the relevant Borrower(s) shall pay
directly to such Affected Party or the Lender with respect to such Holding Company
such additional amount or amounts as will compensate such Affected Party for such
reduction.
	 
	 	13.1.2	 	If as a result of any event or circumstance similar to those described in
Clause 13.1.1, 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 hereunder, then within 10 days after demand by such Affected Party, the
relevant Borrower(s) shall pay to such Affected Party such additional amount or amounts
as may be necessary to reimburse such Affected Party for any such amounts paid by it.
	 
	 	13.1.3	 	In determining any amount provided for in this Clause 13.1, the Affected Party may use
any reasonable averaging and attribution methods. Any Affected Party making a claim
under this Clause 13.1 shall submit to the relevant Borrower(s) a certificate as to such
additional or increased cost or reduction, which certificate shall calculate in
reasonable detail any such charges and shall be conclusive absent demonstrable error.
	 
	 	13.1.4	 	If a Lender shall notify the Administrative Agent that a Eurocurrency Disruption Event
as described in paragraph (a) of the definition of “Eurocurrency Disruption Event” has
occurred, the Administrative Agent shall in turn so notify the Borrowers, whereupon all
Advances in respect of which Interest accrues at the LIBOR Rate shall immediately be
converted into Advances in respect of which Interest accrues at the applicable Base
Rate.
	 
	 	13.1.5	 	Failure or delay on the part of any Affected Party to demand compensation pursuant to
this Clause 13.1 shall not constitute a waiver of such Affected Party’s right to demand
such compensation.






	13.2	 	Exceptions





	 	13.2.1	 	Clause 13.1 does not apply to the extent any Increased Cost is:






	 	(a)	 	Attributable to a Tax Deduction required by law to be made by a
Borrower or Additional Guarantor;
	 
	 	(b)	 	compensated for by Clause 12.2 or 12.3 (or would have been
compensated for under Clause 12.2 or 12.3 but was not so compensated solely
because any of the exclusions in Clause 12.2 or 12.3.2 applied); or




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	 	(c)	 	compensated for by the payment of the Mandatory Cost.






	 	13.2.2	 	In this Clause 13.2, a reference to a “Tax Deduction” has the same meaning given to
the term in Clause 12.1.






	14.	 	OTHER INDEMNITIES
	 
	14.1	 	Currency indemnity






	 	14.1.1	 	If any sum due from a Borrower or Additional Guarantor under the Transaction Documents
(a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the “First Currency”) in which that Sum is payable into
another currency (the “Second Currency”) for the purpose of:






	 	(a)	 	making or filing a claim or proof against such Borrower or
Additional Guarantor;






	 	(b)	 	obtaining or enforcing an order, judgment or award in relation
to any litigation or arbitration proceedings,






	 	 	 	such Borrower or Additional Guarantor shall as an independent obligation, within
three Business Days of demand, indemnify each Secured Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to convert that Sum
from the First Currency into the Second Currency and (B) the rate or rates of
exchange available to that person at the time of its receipt of that Sum.
	 
	 	14.1.2	 	Each of the Borrowers and Additional Guarantors waives any right it may have in any
jurisdiction to pay any amount under the Transaction Documents in a currency or currency
unit other than that in which it is expressed to be payable.






	15.	 	INDEMNIFICATION AND EXPENSES
	 
	15.1	 	Indemnification and Expenses






	 	15.1.1	 	Without limiting any other rights that any such Person may have hereunder or under
Applicable Law, each of the Borrowers hereby agrees to indemnify the Administrative
Agent, the Successor Servicer (if it is not an Affiliate of the Borrower), the Security
Trustee, any other Secured Party or its assignee and each of their respective Affiliates
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 reasonable legal fees and
disbursements to the extent expressly set forth below (all of the foregoing being
collectively referred to as “Indemnified Amounts”) awarded against or incurred by, any
such Indemnified Party arising out of or as a result of this Agreement, excluding,
however, Indemnified Amounts to the extent resulting from (i) fraud, gross negligence or
wilful misconduct on the part of such Indemnified Party or (ii) Indemnified Amounts to
the extent already compensated for under Clause 12,




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	 	 	 	13, 14, 15 or 33. Without limiting the foregoing, each of the Borrowers shall
indemnify the Indemnified Parties for Indemnified Amounts relating to or resulting
from:






	 	(a)	 	any Loan treated as or represented by the relevant Borrower to
be an Eligible Loan that is not at the applicable time an Eligible Loan;
	 
	 	(b)	 	reliance on any representation or warranty made or repeated by
the Borrowers, the Servicer or any of their respective officers under or in
connection with this Agreement, which shall have been false or incorrect in any
material respect when made or repeated;
	 
	 	(c)	 	the failure by the relevant Borrower to comply with any term,
provision or covenant contained in this Agreement or any other Transaction
Document, or with any Applicable Law with respect to any Loan comprising a
portion of the Collateral, or the nonconformity of any Loan or any Related
Property with any such Applicable Law or any breach by the relevant Borrower
thereof to perform its obligations under the Loans included as a part of the
Collateral;
	 
	 	(d)	 	the failure to vest and maintain vested in the Security
Trustee, on behalf of the Secured Parties a valid, effective and first ranking
security interest in the Collateral in accordance with the Transaction
Documents;
	 
	 	(e)	 	the failure to file, or any delay in filing, security
registrations or other similar instruments or documents of any applicable
jurisdiction or other Applicable Laws with respect to any Collateral, or to
place any loan note or Loan Documents in the possession of the Collateral
Custodian as required by the Transaction Documents;
	 
	 	(f)	 	any dispute, claim, offset or defence (other than the discharge
in bankruptcy) of the relevant Obligor to the payment of any Loan included as
part of the Collateral that is, or is purported to be, an Eligible Loan
(including, without limitation, a defence based on the Loan not being a legal,
valid and binding obligation of the relevant Obligor enforceable against it in
accordance with its terms);
	 
	 	(g)	 	any failure of a Borrower or the Servicer to perform its duties
or obligations in accordance with the provisions of this Agreement or any
failure by the Servicer, a Borrower or any Affiliate thereof to perform its
respective duties under the Loans;
	 
	 	(h)	 	any products liability claim or environmental 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, merchandise or services that are the subject of any Loan included as
part of the Collateral or the Related Property included as part of the
Collateral;




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	 	(i)	 	the failure by a Borrower to pay when due any Taxes for which
such Borrower is liable, including without limitation, sales, excise or
personal property taxes payable in connection with the Collateral;
	 
	 	(j)	 	any repayment by the Administrative Agent or another Secured
Party of any amount previously distributed in reduction of Advances
Outstanding, or payment of Cost of Funds or any other amount due hereunder, in
each case which amount the Administrative Agent or another Secured Party
believes in good faith is required to be repaid;
	 
	 	(k)	 	any investigation, litigation or proceeding related to this
Agreement or the use of proceeds of Advances or in respect of any Loan included
as part of the Collateral or the Related Property included as part of the
Collateral;
	 
	 	(l)	 	any failure by a Borrower to give reasonably equivalent value
to any transferor in consideration for the transfer by such Person to such
Borrower of any Loan or the Related Property or any attempt by any Person to
void or otherwise avoid any such transfer under any statutory provision or
common law or equitable action;
	 
	 	(m)	 	the failure of a Borrower, any of its agents or representatives
to remit to the Servicer or the Administrative Agent, Collections on the
Collateral remitted to such Borrower or any such agent or representative in
accordance with the terms hereof or the commingling by a Borrower or any
Affiliate of any collections;
	 
	 	(n)	 	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
amount which permits compliance with the Minimum Overcollateralization Ratio on
such Business Day; or
	 
	 	(o)	 	fluctuations in a Currency which a Lender may sustain as a
consequence of the payment of any Advance Outstanding in that Currency
(including as a result of any mandatory prepayment hereunder or the occurrence
of an Event of Default that is continuing or the Termination Date) other than
in the Currency in which such Advance was made.






	 	15.1.2	 	Any amounts subject to the indemnification provisions of this Clause 15.1 shall be
paid by the relevant Borrower to the applicable Indemnified Party within five Business
Days following such Person’s demand therefor.
	 
	 	15.1.3	 	If for any reason the indemnification provided above in this Clause 15.1 is
unavailable to the Indemnified Party or is insufficient to hold an Indemnified Party
harmless, then the relevant Borrower(s) 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 relevant Borrower(s) on the other hand but
also the relative fault of such Indemnified Party as well as any other relevant
equitable considerations.




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	 	15.1.4	 	The obligations of the Borrowers under this Clause 15.1 shall survive the removal of
the Administrative Agent, the Servicer, the Successor Servicer or the Security Trustee
and the termination of this Agreement.






	16.	 	REPRESENTATIONS AND WARRANTIES
	 
	16.1	 	The Borrowers jointly and severally make the representations and warranties set out in this
Clause 16.1 to each Secured Party on the Closing Date and on the date of the Initial Advance
and in addition, the Repeating Representations are deemed to be made by each Borrower with
reference to the facts and circumstances then existing on each Funding Date. For the purpose
of this Clause and this Agreement, “Repeating Representations” means each of the
representations set out in this Clause 16 except for those in Clauses 16.1.9 and 16.1.25 (to
the extent it applies to the date of the Initial Advance, but which shall otherwise be
repeated by reference to the circumstances existing on each date on which it is repeated).






	 	16.1.1	 	Organisation; Power and Authority. Each of the Borrowers is a private limited company
duly organised and validly existing under the laws of the jurisdiction of its formation
and has full power, authority and legal right to own its assets and conduct its business
as such business is presently conducted and to enter into and perform its obligations
under this Agreement and each other Transaction Document to which it is a party,
including the Combined Facility.
	 
	 	16.1.2	 	Due Qualification. Each of the Borrowers is duly qualified to do business as a
private limited company in its country of incorporation and in each jurisdiction where
it conducts business.
	 
	 	16.1.3	 	Due Authorisation. The execution and delivery of this Agreement and each Transaction
Document to which each Borrower is a party, including the Combined Facility and the
consummation of the transactions provided for herein and therein have been duly
authorised by the relevant Borrower by all necessary action on the part of such
Borrower.
	 
	 	16.1.4	 	No Conflict. The execution and delivery of this Agreement and each Transaction
Document to which each Borrower is a party, including the Combined Facility, the
performance by each Borrower of the transactions contemplated hereby and thereby and the
fulfilment of the terms hereof and thereof will not conflict with or result in any
breach of any of the terms and provisions of, and will not constitute (with or without
notice or lapse of time or both) a default under, the relevant Borrower’s articles of
incorporation or any Contractual Obligation of the relevant Borrower.
	 
	 	16.1.5	 	No Violation. The execution and delivery of this Agreement and each Transaction
Document to which each Borrower is a party, including the Combined Facility, the
performance of the transactions contemplated hereby and thereby and the fulfilment of
the terms hereof and thereof will not conflict with or violate any Applicable Law.
	 
	 	16.1.6	 	No Proceedings. Except as previously disclosed to the Administrative Agent and each
Lender Agent in writing, there are no proceedings or investigations




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	 	 	 	(formal or informal) pending or, to the best knowledge of the Borrowers, threatened
against either Borrower, before any Governmental Authority:






	 	(a)	 	asserting the invalidity of this Agreement or any Transaction
Document to which either Borrower is a party, including the Combined Facility,
	 
	 	(b)	 	seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any Transaction Document to which either
Borrower is a party, including the Combined Facility, or
	 
	 	(c)	 	seeking any determination or ruling that could reasonably be
expected to have a Material Adverse Effect.






	 	16.1.7	 	All Consents Required. All approvals, authorisations, consents, orders or other
actions of any Person or of any Governmental Authority (if any) required in connection
with the due execution, delivery and performance by each Borrower of this Agreement and
by each Borrower of any Transaction Document to which such Borrower is a party,
including the Combined Facility, have been obtained.
	 
	 	16.1.8	 	EU Insolvency Regulation. Each Borrower:






	 	(a)	 	has its “centre of main interests” (within the meaning of
Article 3(l) of the EU Insolvency Regulation) in England and Wales; and






	 	(b)	 	has no “establishment” (as that term is used in Article 2(h) of
the EU Insolvency Regulation) or branch office in any jurisdiction outside
England and Wales ; and






	 	(c)	 	has no Subsidiaries, no employees and, except as previously
disclosed to the Administrative Agent, no premises.






	 	16.1.9	 	Insolvency, Etc. The transactions contemplated under this Agreement and each
Transaction Document to which each Borrower is a party, including the Combined Facility
do not and will not render such Borrower Insolvent. Neither of the Borrower is Insolvent
or subject to any Insolvency Proceeding.






	 	16.1.10	 	Selection Procedures. No procedures believed by either Borrower to be materially
adverse to the interests of the Secured Parties were utilised by such Borrower in
identifying and/or selecting the Loans that are part of the Collateral.






	 	16.1.11	 	Taxes.






	 	(a)	 	Each Borrower has filed or caused to be filed all Tax returns
required to be filed by it. Each Borrower has paid 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 such Borrower), and no Tax lien has
been filed and, to each Borrower’s knowledge, no claim is being asserted, with
respect to any such Tax, fee or other charge.




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	 	(b)	 	Neither Borrower has engaged nor will it engage in any course
of conduct (whether by act, omission or otherwise) which has given rise to or
might reasonably be expected to give rise to any liability of such Borrower
under section 767A or section 767AA ICTA;






	 	(c)	 	Neither Borrower has acquired any right or title to, or
interest in, any asset (or any part of an asset) in circumstances in which,
were it to cease to be a member of the same group of companies (for any
relevant tax purposes) as the company from which it acquired that right or
title to, or interest in, that asset (or part thereof), it could have a
liability to pay tax under section 179 TCGA, paragraphs 3, 9 or 11 Schedule 7
FA 2003, paragraph 12A Schedule 9 FA 1996, paragraph 30A Schedule 26 FA 2002,
or otherwise;






	 	(d)	 	No steps have been taken by either Borrower, nor will any steps
be taken by either Borrower which could cause such Borrower to be a member of a
VAT group with any company that is not a Borrower.






	 	16.1.12	 	Agreements Enforceable. This Agreement and each Transaction Document to which each
Borrower is a party, including the Combined Facility, constitutes the legal, valid and
binding obligation of such Borrower enforceable against such Borrower in accordance with
their respective terms, except as such enforceability may be limited by applicable
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).
	 
	 	16.1.13	 	Reports Accurate. All Monthly Reports and information furnished or to be furnished
by a Borrower or the Servicer to the Administrative Agent or any Lender in connection
with this Agreement are true, complete and accurate.
	 
	 	16.1.14	 	Location of Offices. Since its formation, no Borrower has changed its name,
identity, structure, existence or state of formation, whether by an amendment of its
constitutional documents, by reorganisation or otherwise.
	 
	 	16.1.15	 	Tradenames. Other than ‘CapitalSource’, neither of the Borrowers has any trade
names, fictitious names, assumed names or “doing business as” names or other names under
which it has done or is doing business.
	 
	 	16.1.16	 	Management. Each Borrower is centrally managed and tax resident in the United Kingdom
and neither Borrower is tax resident in any other jurisdiction.
	 
	 	16.1.17	 	Value Given. Each Borrower has given reasonably equivalent value to any transferor
in consideration for the transfer by such Person to such Borrower of the Loans, no such
transfer was made for or on account of an antecedent debt owed by such Person to such
Borrower, and no such transfer is voidable or subject to avoidance under any Insolvency
Law.
	 
	 	16.1.18	 	Articles of Incorporation. The articles of incorporation of each of the Borrowers
are in the forms supplied to the Administrative Agent on the Amendment Date.




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	 	16.1.19	 	Separate Entity. Neither of the Borrowers has:






	 	(a)	 	engaged in any business or activity other than (a) entering
into the Transaction Documents to which it is a party, (b) making, purchasing,
owning, originating, holding, selling, exchanging, redeeming, pledging,
contracting for the management of and otherwise dealing with Loans and Related
Property in the Collateral as contemplated by the terms of the Transaction
Documents, and (c) such other activities as are incidental or related thereto
(together, the “Permitted Activities”);






	 	(b)	 	merged into or consolidated with any Person or dissolved,
terminated or liquidated in whole or in part, transferred or otherwise disposed
of all or substantially all of its assets or changed its legal structure,
without in each case first obtaining the consent of the Administrative Agent
and each Lender Agent other than as contemplated in the Transaction Documents;






	 	(c)	 	failed to preserve its existence as an entity duly organised
and validly existing under the laws of the jurisdiction of its organisation or
formation, or without the prior written consent of the Administrative Agent or
each Lender Agent, amended, modified, terminated or failed to comply with the
provisions of its articles of incorporation (except in relation to the issue of
shares, which shares are subject to Security in favour of the Secured Parties),
or failed to comply with any formalities applicable to its form of
incorporation;






	 	(d)	 	except as permitted by this Agreement and the other Transaction
Documents, commingled its assets with the assets of any of its Affiliates, or
of any other Person;






	 	(e)	 	incurred any debt, secured or unsecured, direct or contingent,
other than (A) Indebtedness to the Secured Parties hereunder or in conjunction
with a repayment of all Advances owed to any of the Lenders, (B) liabilities
incidental to the maintenance of its existence, or (C) Indebtedness approved by
the Administrative Agent and the Lenders (in their sole discretion) that is
either non-recourse to the relevant Borrower or Permitted Indebtedness;






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






	 	(g)	 	entered into any contract or agreement with any Person, other
than (i) the transactions permitted or contemplated by this Agreement, any
other Transaction Document, including the Combined Facility, and (ii) other
transactions (including, without limitation, transactions related to the use of
office space or computer equipment or software by the Borrower to or from an
Affiliate) (A) in the ordinary course of business, (B) pursuant to the
reasonable requirements of the Borrower’s business and (C) upon fair and
reasonable terms that are no less favourable to the Borrower than could be
obtained in a comparable arm’s-length transaction with third parties;




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	 	(h)	 	failed to correct any known misunderstandings regarding the
separate identity of either of the Borrowers and CapitalSource Europe Limited.,
CapitalSource Finance LLC, CapitalSource UK Limited, CapitalSource Inc. or any
principal or Affiliate thereof or any other Person;
	 
	 	(i)	 	guaranteed, become obligated for, or held itself out to be
responsible for the debt of another Person other than pursuant to the
Transaction Documents, and the Combined Facility Guarantee;
	 
	 	(j)	 	failed 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);
	 
	 	(k)	 	except as may be required by any Insolvency Laws, shared any
common logo with or held itself out as or been 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;
	 
	 	(l)	 	failed to maintain separate financial statements, showing its
assets and liabilities separate and apart from those of any other Person;
	 
	 	(m)	 	failed to pay its own liabilities and expenses only out of its
own funds;
	 
	 	(n)	 	acquired the obligations or securities of its Affiliates or
shareholders;
	 
	 	(o)	 	if applicable, failed to use separate invoices and checks
bearing its own name;
	 
	 	(p)	 	failed at any time to have appointed at least one independent
director (each, an “Independent Director”), which is not and, for the
immediately preceding two year period, was not (a) a director (other than an
Independent Director), officer or employee of either Borrower; (b) a director,
officer or employee of CapitalSource Europe Limited. or any of its Affiliates;
(c) a supplier, independent contractor or any other Person who derives more
than 15% of its gross revenues from its activities with a Parent, the Servicer,
CapitalSource TRS Inc., CapitalSource Inc. and/or any Affiliate of the
foregoing; or (d) a member of the immediate family of any person meeting the
criteria set fourth in paragraphs (a), (b) or (c) of this Clause (p); provided
that any such Independent Director may be an Independent Director of another
special purpose entity affiliated with the relevant Borrower;
	 
	 	(q)	 	failed to provide that the consent of a majority of the
directors (including the consent of all of the Independent Directors) where a
majority of the directors and all of the Independent Directors of the relevant
Borrower in attendance is required for a Borrower 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




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	 	 	 	insolvency proceedings against it, (c) file a petition seeking or consent to
reorganisation 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 relevant Borrower, (e) make any assignment for the
benefit of the relevant Borrower’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.






	 	16.1.20	 	Accuracy of Representations and Warranties. Without prejudice to the terms and
effect of any other representation or warranty, each representation or warranty by the
Borrowers contained herein or in any certificate or other document furnished by a
Borrower pursuant hereto or in connection herewith is true and correct in all material
respects.
	 
	 	16.1.21	 	Environmental. As of the Borrower Cut-Off Date with respect to any Loan where
mortgaged property that is material to the operations of the related business
constitutes Related Property securing such Loan, as far as the relevant Borrower is
aware, the related mortgaged property was free of contamination from toxic substances or
hazardous wastes requiring action under Applicable Law or is subject to ongoing
environmental rehabilitation approved by the Servicer, and, as of the related Borrower
Cut-Off Date of such Loan, the relevant Borrower has no knowledge of any such
contamination from toxic substances or hazardous waste material on any such mortgaged
property unless such items are below action levels.
	 
	 	16.1.22	 	Material Adverse Change. (i) as of the Closing Date, there has been no Material
Adverse Change with respect to the Servicer, CapitalSource Europe Limited, CapitalSource
UK Limited or any Borrower and (ii) as of each Funding Date, there has been no Material
Adverse Change with respect to the Servicer, CapitalSource Europe Limited, CapitalSource
UK Limited or any Borrower since the Closing Date.
	 
	 	16.1.23	 	No Default






	 	(a)	 	No Default exists or would result from the making of any
Advance.
	 
	 	(b)	 	No other event or circumstance is outstanding which constitutes
a default under any other agreement or instrument which is binding on either
Borrower or to which its assets are subject which would reasonably be expected
to have a Material Adverse Effect.






	 	16.1.24	 	Pari Passu Ranking
	 
	 	16.1.25	 	Each of the Borrower’s payment obligations under the Transaction Documents rank at
least pari passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations preferred by law applying to companies generally.
	 
	 	16.1.26	 	Representations and Warranties of the Borrowers Relating to the Agreement and the
Loans




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	 	16.1.27	 	Each of the Borrowers hereby represents and warrants to the Administrative Agent and
each other Secured Party that:






	 	(a)	 	Eligibility of Loans. As of the date of the Initial Advance
and on each Funding Date, (i) the Loan List and the information contained in
the Borrower Notice delivered under this Agreement is an accurate and complete
listing in all material respects of all the Loans that are part of the
Collateral as of such date, and the information contained therein with respect
to the identity of such Loans and the amounts owing thereunder is true and
correct in all material respects as of such date, (ii) each such Loan satisfies
the criteria of the definition of Eligible Loan on the Amendment Date, (iii)
each such Loan and the Related Property is free and clear of any Security
(other than Permitted Security).
	 
	 	(b)	 	No Fraud. Each Loan was originated without any fraud or
material misrepresentation by the relevant Borrower or, to the best of the
relevant Borrower’s knowledge, on the part of any transferor of such Loan or
the Obligor.






	 	16.1.28	 	Collateral; Collateral Security






	 	(a)	 	Save for any Permitted Security, neither of the Borrowers (in
its capacity as a lender) has assigned, pledged, or otherwise conveyed or
encumbered the Eligible Loans or any of its other assets to any Person.






	 	(b)	 	The provisions of the Debentures and the other Security
Documents are effective to create in favour of the Security Trustee the
security interests which the Debentures and such other Security Documents
purport to create, and those security interests are valid and effective, in
each case subject to any filing, registration or notarisation (including
registration of the Debenture) necessary to perfect (where perfection may be
required in accordance with the Security Documents) such Security interests and
make such Security interests enforceable and effective.






	 	16.1.29	 	True and Complete Disclosure
	 
	 	 	 	The information, reports, financial statements, exhibits and schedules furnished in
writing by or on behalf of each Borrower to the Administrative Agent in connection
with the negotiation, preparation or delivery of this Agreement and the other
Transaction Documents or included herein or therein or delivered pursuant hereto or
thereto, when taken as a whole, do not contain any untrue statement of material fact
or omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not misleading,
it being understood and agreed that, for the purposes of this Clause 16.1.29, such
information shall not include projections and pro forma financial information. All
written information (other than any pro forma financial information) furnished after
the date hereof by or on behalf of each Borrower to the Administrative Agent in
connection with this Agreement and the other Transaction Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate in
every material respect, or (in the case of




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	 	 	 	any projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to a Responsible Officer
of either Borrower, after due inquiry, that could reasonably be expected to have a
Material Adverse Effect that has not been disclosed herein, in the other Transaction
Documents or in a report, financial statement, exhibit, schedule, disclosure letter
or other writing furnished to the Administrative Agent for use in connection with
the transactions contemplated hereby or thereby.






	 	16.1.30	 	Employees/Defined Benefit Scheme
Neither of the Borrowers has any employees or maintains a pension scheme.
	 
	 	16.1.31	 	Subsidiaries
Neither of the Borrowers has any Subsidiaries.
	 
	 	16.1.32	 	Business Affairs






	 	(a)	 	The business and affairs of each Borrower have at all times
been, and will at all times be, managed, controlled and conducted in its own
name as an identifiable business, separate, independent and identifiable from
the business of any other Person.
	 
	 	(b)	 	The records, books, accounts and minutes of each Borrower have
at all times been, and will continue at all future times to be, maintained
separate and distinct from those of any other Person.
	 
	 	(c)	 	The assets and liabilities and the funds of each Borrower have
at all times been, and will continue at all future times to be, kept separate
and distinct from any other Person; and each Borrower has received, deposited,
withdrawn, paid and disbursed, and will at all future times receive, deposit,
withdraw, pay and disburse, all monies, funds and receivables in the ordinary
course of its business and in a manner separate and distinct from any other
Person.
	 
	 	(d)	 	Neither Borrower has paid nor will it pay nor is it or will it
become liable for, any debt of any other Person except as contemplated under
the Transaction Documents.
	 
	 	(e)	 	All dealings and transactions of each Borrower with all other
persons have at all times been and will continue at all times to be at
arms-length.
	 
	 	(f)	 	Any Contractual Obligation of a Borrower (other than any Loans
originated or otherwise acquired by such Borrower and the related Loan transfer
documents) shall contain an agreement by each of the other parties thereto not
to institute against, or join any other Person in instituting against, such
Borrower any Insolvency Proceeding so long as there shall not have elapsed a
period of one year and one day (or such longer preference period as shall then
be in effect) since the Collection Date.










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	 	16.1.33	 	The representations and warranties in this Clause 16 shall survive the termination of
this Agreement.






	16.2	 	The Additional Guarantors jointly and severally make the representations and warranties set
out in this Clause 16.2 to each Secured Party on the Amendment Date and in addition, shall be
deemed to repeat such representations (other than those in Clause 16.2.8 below) with reference
to the facts and circumstances then existing on each Funding Date.






	 	16.2.1	 	Organisation; Power and Authority. Each of the Additional Guarantors is duly
organised and validly existing under the laws of the jurisdiction of its formation and
has full power, authority and legal right to own its assets and conduct its business as
such business is presently conducted and to enter into and perform its obligations under
this Agreement.
	 
	 	16.2.2	 	Due Qualification. Each of the Additional Guarantors is duly qualified to do business
in its country of incorporation and in each jurisdiction where it conducts business.
	 
	 	16.2.3	 	Due Authorisation. The execution and delivery of this Agreement and each Transaction
Document to which each Additional Guarantor is a party and the consummation of the
transactions provided for herein and therein have been duly authorised by the relevant
Additional Guarantor by all necessary action on the part of such Additional Guarantor.
	 
	 	16.2.4	 	No Conflict. The execution and delivery of this Agreement, the performance by each
Additional Guarantor of the transactions contemplated hereby and the fulfilment of the
terms hereof will not conflict with or result in any breach of any of the terms and
provisions of, and will not constitute (with or without notice or lapse of time or both)
a default under, the relevant Additional Guarantor’s articles of incorporation or any
Contractual Obligation of the relevant Additional Guarantor.
	 
	 	16.2.5	 	No Violation. The execution and delivery of this Agreement, the performance of the
transactions contemplated hereby and the fulfilment of the terms hereof will not
conflict with or violate any Applicable Law.
	 
	 	16.2.6	 	No Proceedings. Except as previously disclosed to the Administrative Agent and each
Lender Agent in writing, there are no proceedings or investigations (formal or informal)
pending or, to the best knowledge of the Additional Guarantors, threatened against
either Additional Guarantor, before any Governmental Authority:






	 	(a)	 	asserting the invalidity of this Agreement,
	 
	 	(b)	 	seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or
	 
	 	(c)	 	seeking any determination or ruling that could reasonably be
expected to have a Material Adverse Effect.










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	 	16.2.7	 	All Consents Required. All approvals, authorisations, consents, orders or other
actions of any Person or of any Governmental Authority (if any) required in connection
with the due execution, delivery and performance by each Additional Guarantor of this
Agreement have been obtained.
	 
	 	16.2.8	 	Insolvency, Etc. The transactions contemplated under this Agreement and each
Transaction Document to which each Additional Guarantor is a party do not and will not
render such Additional Guarantor Insolvent. No Additional Guarantor is Insolvent or
subject to any Insolvency Proceeding.






	17.	 	INFORMATION UNDERTAKINGS
	 
	 	 	The undertakings in this Clause remain in force from the date of this Agreement until the
Collection Date.
	 
	17.1	 	Financial statements
	 
	 	 	Each Borrower shall supply, to the extent not supplied by the other Borrower or the Servicer
hereunder or under the Servicing Agreement, to each of the Lenders:






	 	17.1.1	 	as soon as available and in any event within 60 days after the end of each of the
first three quarterly fiscal periods of each fiscal year of (i) the Borrower and (ii)
the relevant Parent, the unaudited balance sheet of (i) the Borrower and (ii) the
relevant Parent, as at the end of such period, and the related unaudited statement of
income and retained earnings and statement of equity for (i) the Borrower and (ii) the
relevant Parent, for such period and the portion of the fiscal year through the end of
such period, setting out in each case in comparative form the figures for the previous
year (if any), accompanied by a certificate of a Responsible Officer of (i) the Borrower
and (ii) the relevant Parent, which certificate shall state that said financial
statements fairly present the financial condition and results of operations of (i) the
Borrower and (ii) the relevant Parent, in accordance with GAAP, consistently applied, as
at the end of, and for, such period (subject to normal year-end audit adjustments),
provided that such balance sheets and statements in respect of CapitalSource UK Limited
shall be required to be provided only upon it having commenced its operations;
	 
	 	17.1.2	 	as soon as available and in any event within 120 days after the end of each fiscal
year of (i) the Borrower and (ii) the relevant Parent, the audited balance sheet of (i)
the Borrower and (ii) the relevant Parent, as at the end of such fiscal year and the
related audited statement of income and retained earnings and audited statement of
equity for (i) the Borrower and (ii) the relevant Parent, for such year, setting out in
each case in comparative form the figures for the previous year (if any), accompanied by
an opinion thereon of independent certified public accountants of recognised national
standing, which opinion shall not be qualified as to scope of audit or going concern and
shall state that said financial statements fairly present the financial condition and
results of operations of (i) the Borrower and (ii) the relevant Parent as at the end of,
and for, such fiscal year in accordance with GAAP, provided that such audited balance
sheets and statements in respect of CapitalSource UK Limited shall be required to be
provided only upon it having commenced its




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	 	 	 	operations and provided further that if no such audited balance sheets or statements
are available at the relevant time, unaudited balance sheets and statements shall be
provided;
	 
	 	17.1.3	 	(i) within 45 days after the end of each of its first three fiscal quarters, a copy of
the quarterly report on Form 10-Q of CapitalSource Inc. for the most recent fiscal
quarter and unaudited consolidating statements, and (ii) within 90 days after the end of
each fiscal year, a copy of the annual report on Form 10-K of CapitalSource Inc., in
each case in the form as filed with the Securities and Exchange Commission and unaudited
consolidating statements;
	 
	 	17.1.4	 	within 15 Business Days after the Administrative Agent’s request, such other
information regarding the operation of or the Collateral, or the financial condition,
operations, or business of the Borrower as may be reasonably requested by the
Administrative Agent, including all business plans prepared by or for the Borrower;
	 
	 	17.1.5	 	upon the Administrative Agent’s request, a copy of any financial or other report the
Borrower shall receive from any Obligor with respect to an item of Collateral within 15
days after the Borrower’s receipt thereof.; and






	17.2	 	Information; Miscellaneous
	 
	 	 	The Borrower shall supply to the Administrative Agent (in sufficient copies for all the
Lenders, if the Administrative Agent so requests, and the Administrative Agent shall promptly
send to each Lender):






	 	17.2.1	 	promptly, and in any event within 10 days after service of process on any of the
following, the notice of all litigation, actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are pending or, to Borrower’s
knowledge threatened) and copies of any and all notices, certificates or documents
delivered to the Borrower in connection therewith or any other legal or arbitration
proceedings affecting the Borrower or affecting any of the property of the Borrower
before any Governmental Authority that (i) questions or challenges the validity or
enforceability of any of the Transaction Documents or any action to be taken in
connection with the transactions contemplated hereby; (ii) makes a claim or claims in an
aggregate amount greater than €5,000,000; or (iii) individually or in the aggregate, if
adversely determined, could reasonably be expected to have a Material Adverse Effect and
copies of any and all notices, certificates or documents delivered to the Borrower in
connection therewith; and
	 
	 	17.2.2	 	promptly, such further information regarding the financial condition, business and
operations of any shareholder of the Borrower as the Administrative Agent may reasonably
request.






	17.3	 	Notification of Default






	 	17.3.1	 	Each Borrower will furnish to the Administrative Agent and each Lender Agent, as soon
as possible and in any event within three Business Days after the occurrence of each
Event of Default and each Default, a written statement




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	 	 	 	setting out the details of such event and the action that the Borrower proposes to
take with respect thereto.
	 
	 	17.3.2	 	Promptly upon a request by the Administrative Agent, each Borrower shall supply to the
Administrative Agent (and the Administrative Agent shall promptly send to each Lender) a
certificate signed by a Responsible Officer certifying that no Default is continuing (or
if a Default is continuing, specifying the Default and the steps, if any, being taken to
remedy it).






	18.	 	GENERAL UNDERTAKINGS
	 
	 	 	The undertakings in this Clause which relate to the Borrowers remain in force from the date
of this Agreement until the Collection Date.






	 	18.1.1	 	Each of the Borrowers hereby covenants that:






	 	(a)	 	Compliance with Laws. The Borrower will comply in all material
respects with all Applicable Laws, including those with respect to the Loans in
the Collateral and any Related Property.
	 
	 	(b)	 	Preservation of Corporate Existence. The Borrower will
preserve and maintain its existence, rights, franchises and privileges in the
jurisdiction of its formation, and qualify and remain qualified to do business
in each jurisdiction where the failure to maintain such existence, rights,
franchises, privileges and qualification could reasonably be expected to have a
Material Adverse Effect.
	 
	 	(c)	 	Security. Except as contemplated in this Agreement and except
in the case of any Permitted Security, the Borrower will not sell, pledge,
assign or transfer to any other Person, or Grant, create, incur, assume or
suffer to exist any Security on any part of the Collateral, whether now
existing or hereafter transferred hereunder, or any interest therein. The
Borrower will promptly notify the Administrative Agent of the existence of any
Security on any part of the Collateral and the Borrower shall defend the right,
title and interest of the Administrative Agent as agent for the Secured Parties
in, to and under any part of the Collateral, against all claims of third
parties; provided that nothing in this Clause (c) shall prevent or be deemed to
prohibit the Borrower from suffering to exist Permitted Security upon any part
of the Collateral.
	 
	 	(d)	 	Activities of the Borrower. The Borrower shall not engage in
any business or activity other than Permitted Activities.
	 
	 	(e)	 	Indebtedness. The Borrower shall not create, incur, assume or
suffer to exist any Indebtedness or other liability whatsoever, except (i)
Indebtedness to the Secured Parties hereunder or in connection with a repayment
of all Advances owed to any of the Lenders, (ii) obligations in respect of any
Transaction Document, (iii) liabilities incidental to the maintenance of its
existence, or (iv) Indebtedness approved by the Administrative Agent and the
Lenders (in their sole discretion) that is either non-recourse to the Borrower
or Permitted Indebtedness.




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	 	(f)	 	Guarantees. Save for the “Borrower Cross-Guarantee” and the
Combined Facility Guarantee or in connection with any Sub-Participation Loan or
Revolving Loan, the Borrower shall not become obligated for, or hold itself out
as being responsible for the debt of another Person other than pursuant to the
Transaction Documents.
	 
	 	(g)	 	Merger; Sales. The Borrower shall not enter into any
transaction of merger or consolidation, or liquidate or dissolve itself or
dispose of all or substantially all of its assets or change its legal
structure, except as provided for in this Agreement or any other Transaction
Document.
	 
	 	(h)	 	Distributions. The Borrower may not declare or pay or make,
directly or indirectly, any distribution (whether in cash or other property)
with respect to the assets of the Borrower or any Person’s interest therein
(collectively, a “Distribution”); provided that if no Event of Default has
occurred which is continuing or will occur as a result thereof, the Borrower
may make Distributions.
	 
	 	(i)	 	Agreements. The Borrower shall not amend or modify the
provisions of its articles of incorporation or other constitutional documents
(except in relation to the issue of shares, which shares are subject to
Security in favour of the Secured Parties), without the consent of the
Administrative Agent and each Lender Agent or issue any power of attorney other
than to the Administrative Agent, the Servicer, or a director, officer or
senior employee of the Borrower, CapitalSource UK Limited or CapitalSource
Europe Limited. or as otherwise contemplated in the Transaction Documents.
	 
	 	(j)	 	Separate Existence. The Borrower shall not take any action or
permit or acquiesce in any action to be taken which would have the effect,
directly or indirectly, of causing the representations and warranties made
pursuant to Clause 16.1.19 to be inaccurate in any respect.
	 
	 	(k)	 	Collateral Originated or Acquired by the Borrower. With
respect to each item of Collateral originated or acquired by the Borrower, the
Borrower will (i) take all action necessary to protect the Borrower’s ownership
of such Collateral, including, without limitation, (A) filing and maintaining,
effective security registrations statements 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 protect the respective interests of the parties to this
Agreement in the Collateral and to enable the Security Trustee to perfect and
enforce such interests. In circumstances where the Security Trustee is entitled
in accordance with the Transaction Documents to perfect any security interest
in the Collateral, the Security Trustee shall have the right to make filings,
notifications and to take any other steps in accordance with the laws of the
relevant jurisdiction in order to perfect such security interest under local
law (where such perfection is required in accordance with the




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	 	 	 	Transaction Documents). If any US Loans are acquired or held by a Borrower,
such Borrower or the Servicer on its behalf shall procure that the loan notes
or other Loan Documents relating thereto are transferred into the possession
of the Collateral Custodian in accordance with the provisions of the Custody
Agreement.
	 
	 	(l)	 	Transactions with Affiliates. The Borrower will not enter
into, or be a party to, any transaction with any of its Affiliates, except (i)
the transactions permitted or contemplated by this Agreement and any other
Transaction Document, and (ii) other transactions (including, without
limitation, transactions related to the use of office space or computer
equipment or software by the Borrower to or from an Affiliate) (A) in the
ordinary course of business, (B) pursuant to the reasonable requirements of the
Borrower’s business and (C) upon fair and reasonable terms that are no less
favourable to the Borrower than could be obtained in a comparable arm’s-length
transaction with a Person not an Affiliate of the Borrower.
	 
	 	(m)	 	Change in the Transaction Documents. The Borrower shall
provide notice of any proposed amendment, modification, waiver or termination
of any terms or conditions of the Transaction Documents other than this
Agreement to the Administrative Agent and each Lender Agent. The Borrower will
not amend, modify, waive or terminate any terms or conditions of any of the
Transaction Documents other than this Agreement to which it is a party, without
the prior written consent of the Required Lenders (subject to Clauses 33.3 and
33.4). For the avoidance of doubt, the amendment, modification or waiver of
this Agreement is governed by Clause 33.
	 
	 	(n)	 	Credit and Collection Policy and Servicing Standard. The
Borrower will (a) timely and fully comply in all material respects with the
Credit and Collection Policy and Servicing Standard in regard to each Loan, the
related Loan Documents and the Related Property and (b) furnish to the
Administrative Agent and each Lender Agent, prior to its effective date, prompt
written notice of any material changes in the Credit and Collection Policy.
The Borrower will not agree to or otherwise permit to occur any material change
in the Credit and Collection Policy or Servicing Standard that would adversely
affect the enforceability or impair the collectibility of any of the Collateral
or otherwise adversely affect the interests or remedies of the Administrative
Agent, each Lender Agent or the Secured Parties under this Agreement or any of
the Transaction Documents, without prior written consent of the Administrative
Agent and each Lender Agent (which consent shall not be unreasonably withheld).
	 
	 	(o)	 	Inspection of Records. The Borrower will, at any time and from
time to time during regular business hours, as requested by the Administrative
Agent and any Lender Agent upon giving reasonable notice, permit the
Administrative Agent and any Lender Agent, or its agents or representatives at
the Borrower’s expense, (i) to examine and make copies of and take abstracts
from all books, records, Loan Files,




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	 	 	 	investment committee memoranda, other underwriting materials and documents
(including electronic storage media) relating to the Loans and the related
Loan Documents and (ii) to visit the offices and properties of the Borrower,
or the Servicer, as applicable, for the purpose of examining such materials
described in (i) above; provided that the Administrative Agent and any
Lenders’ Agent shall not be entitled to conduct such visit more than twice (in
aggregate) each calendar year; provided, further, that upon the occurrence and
continuation of an Event of Default the ability of the Administrative Agent
and any Lenders’ Agent to conduct such visit shall be unlimited, and to
discuss matters relating to the Loans or the Borrower’s or the Servicer’s
performance hereunder or pursuant to the Servicing Agreement as applicable,
under the Loan Documents and under the other Transaction Documents to which
such Person is a party with any of the officers, directors, employees or
independent public accountants of the Borrower or the Servicer, as applicable,
having knowledge of such matters.
	 
	 	(p)	 	Keeping of Records. The Borrower will maintain and implement
administrative and operating procedures (including an ability to recreate
records evidencing Loans and the related Loan Documents in the event of the
destruction of the originals thereof), and keep and maintain, all documents,
books, computer tapes, disks, records and other information reasonably
necessary or advisable for the collection of all Loans (including records
adequate to permit the daily identification of each new Loan and all
Collections of and adjustments to each existing Loan).
	 
	 	(q)	 	Compliance with Loans. The Borrower will, at its own expense,
timely and fully perform and comply with all material provisions, covenants and
other promises required to be observed by it under the Loans and the related
Loan Documents.
	 
	 	(r)	 	Restricted Payments. The Borrower shall not (i) purchase or
redeem any shares of its capital stock, (ii) prepay, purchase or redeem any
Indebtedness, (iii) lend or advance any funds or (iv) repay any loans or
advances to, for or from any of its Affiliates (the amounts described in (i)
through (iv) above being referred to as “Restricted Payments”), except that the
Borrower may make Restricted Payments if, no Event of Default has occurred
which is continuing or would result therefrom.
	 
	 	(s)	 	EU Insolvency Regulation.  Unless the Administrative Agent and
each of the Lender Agents otherwise agree (such agreement not to be
unreasonably withheld), each of the Borrowers shall maintain its “centre of
main interests” (within the meaning of Article 3(l) of the EU Insolvency
Regulation) in England and Wales, and each Borrower will not transfer such
centre of main interests to another jurisdiction. The Borrowers shall not
establish any “establishment” (as that term is used in Article 2(h) of the EU
Insolvency Regulation) outside England and Wales.
	 
	 	(t)	 	Consents. The Borrower shall use all reasonable efforts to
obtain any consents required under the terms of Loan Documents so as to allow
the






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	 	 	 	Administrative Agent or any Secured Party to exercise their rights under this
Agreement and the other Transaction Documents.
	 
	 	(u)	 	Material Modifications. In the event that any Loan becomes a
Materially Modified Loan as a result of a substitution, alteration or release
of the Related Property securing such Loan, the Borrower shall procure that the
Servicer recalculates the LTV on such Loan for purposes of determining the
Eligible Loan Type of such Loan.






	18.2	 	Hedging
	 
	 	 	With effect from the Amendment Date the Borrowers shall not be required to enter into
or to maintain hedge transactions.
	 
	19.	 	PERMITTED TRANSFER AND SYNDICATION
	 
	19.1	 	Permitted Security Release






	 	19.1.1	 	Notwithstanding any provision contained in this Agreement to the contrary, provided
there is not then existing an Event of Default, on a Permitted Security Release Date, a
Borrower may request that and, if so requested, the Administrative Agent and the
Security Trustee, on behalf of the Secured Parties, shall release their Security as to a
portion of the Loans or portions thereof (each, a “Permitted Security Release”), subject
to the satisfaction of the following terms and conditions:






	 	(a)	 	The relevant Borrower and the Servicer shall have given the
Administrative Agent at least two Business Days’ prior written notice of their
intent to effectuate a Permitted Security Release, unless such notice is waived
by the Administrative Agent;
	 
	 	(b)	 	Any Permitted Security Release shall only be in connection with
a Permitted Transfer;
	 
	 	(c)	 	After giving effect to the Permitted Security Release on the
Permitted Security Release Date, (1) the Repeating Representations and
warranties contained in Clause 17 hereof shall continue to be correct in all
material respects, except to the extent relating to an earlier date, (2) the
eligibility of any Loan remaining as part of the Collateral after the Permitted
Security Release will be redetermined as of the Permitted Security Release
Date, (3) the Overcollateralization Ratio must be maintained at a level equal
to or greater than the Overcollateralization Ratio prior to the Permitted
Transfer, (4) neither a Default, an Event of Default nor a Servicer Termination
Event shall have resulted and (5) no claim has been asserted or proceeding
commenced challenging the enforceability or validity of any of the Transaction
Documents;
	 
	 	(d)	 	Such Permitted Security Release must be in compliance with
Applicable Law and may not (1) be made with the intent to hinder, delay or
defraud any creditor of the relevant Borrower or (2) leave the relevant
Borrower, immediately after giving effect to the Permitted Security Release,
(a) insolvent, (b) with insufficient funds to pay its obligations as and when




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	 	 	 	they become due or (c) with inadequate capital for its present and anticipated
business and transactions;
	 
	 	(e)	 	On or prior to the Permitted Security Release Date, the
relevant Borrower shall have (1) delivered to each of the Administrative Agent
and the Security Trustee a list specifying all Loans or portions thereof to be
transferred pursuant to such Permitted Security Release and the Administrative
Agent and the Security Trustee shall have signed the release in relation to
such Loans and (2) obtained all authorisations, consents and approvals required
to effectuate the Permitted Security Release (and the Security Trustee shall
sign such release if conditions for a Permitted Transfer have been fulfilled);
	 
	 	(f)	 	A portion of a Loan may be transferred pursuant to a Permitted
Security Release; provided that (1) such transfer does not have an adverse
effect (and for the avoidance of doubt, the effect of the relevant Borrower no
longer being a majority lender under the relevant Loan shall not constitute an
‘adverse effect’ under this Clause) on the portion of such Loan remaining as a
part of the Collateral, any other Collateral, the Lenders, the Administrative
Agent, the Security Trustee or the other Secured Parties, (2) the Loan
Documents for such portion of the Loan remaining as a part of the Collateral
have been amended, if necessary, to contain customary pro rata sharing,
intercreditor and, if applicable, subordination provisions and (3) unless the
Security Trustee is otherwise satisfied that alternative arrangements
reasonably satisfactory to it are in place, if such Loan is evidenced by a
promissory note, a new promissory note for the portion of the Loan remaining as
a part of the Collateral has been executed, and the original thereof has been
endorsed and delivered to the Security Trustee;
	 
	 	(g)	 	When requesting a Permitted Security Release the relevant
Borrower shall deliver an Overcollateralization Ratio Certificate to the
Administrative Agent which reflects the anticipated level of this ratio after
giving effect to the Permitted Security Release; and
	 
	 	(h)	 	The relevant Borrower shall have paid in full an aggregate
amount equal to the sum of all amounts due and owing to the Administrative
Agent, the Security Trustee and the Lenders as applicable, under this Agreement
and the other Transaction Documents, to the extent accrued to such date
(including, without limitation, Breakage Costs) with respect to the Loans to be
released pursuant to such Permitted Security Release and incurred in connection
with the transfer of such Loans pursuant to such Permitted Security Release, in
whole or in part, in connection therewith.






	 	19.1.2	 	In connection with the Permitted Security Release, the Loans or portions thereof so
released (together with, in the case of the release of the Loans but not portions
thereof, any related Collateral) shall be released from the Security of this Agreement
(subject to the requirements above).
	 
	 	19.1.3	 	Each of the Borrowers hereby agrees to pay the reasonable legal fees and expenses of
the Administrative Agent, the Security Trustee and the other




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	 	 	 	Secured Parties in connection with any Permitted Security Release (including, but
not limited to, expenses incurred in connection with the release of the Security of
the Security Trustee, on behalf of the Secured Parties, and any other party having
an interest in the Loans in connection with such Permitted Security Release).
	 
	 	19.1.4	 	In connection with any Permitted Security Release, on the related Permitted Security
Release Date, the Security Trustee, on behalf of the Secured Parties, shall, at the
expense of the relevant Borrower (i) execute such instruments of release with respect to
the Loans or portions thereof to be released to such Borrower (together with, in the
case of the release of the Loans but not portions thereof, any related Collateral), in
recordable form if necessary, in favour of the relevant Borrower as such Borrower may
reasonably request, (ii) deliver any portion of the Loans or portions thereof to be
released to the relevant Borrower (together with, in the case of the release of the
Loans but not portions thereof, any related Collateral) in its possession to such
Borrower and (iii) otherwise take such actions, and cause or permit the Security Trustee
to take such actions, as are necessary and appropriate to release the Security of the
Security Trustee on behalf of the Secured Parties on the Loans or portions thereof to be
released to the relevant Borrower (together with, in the case of the release the Loans
but not portions thereof, any related Collateral).






	20.	 	EVENTS OF DEFAULT
	 
	20.1	 	Each of the events or circumstances set out in this Clause 20.1 is an Event of Default.






	 	20.1.1	 	A Borrower shall default in the payment of any amount required to be made under the
terms of this Agreement and such failure continues unremedied for a period of two
Business Days after the due date set out herein for such payment, or if no due date is
specified, such failure continues for a period of 15 days after written request for such
payment has been made; or
	 
	 	20.1.2	 	The Overcollateralization Ratio falls below the Minimum Overcollateralization Ratio on
any day; or
	 
	 	20.1.3	 	Any failure of (i) any Borrower to make any payment due under the Combined Facility
Guarantee or (ii) any Additional Guarantor to make any payment due under the Additional
Guarantee after the due date set out herein or therein; or
	 
	 	20.1.4	 	A Borrower shall fail to perform or observe in any material respect any other covenant
or other agreement of such Borrower set out in this Agreement or any other Transaction
Document to which it is a party, when such failure continues unremedied for more than 15
days after the earlier of (a) the date on which written notice thereof shall have been
given by the Administrative Agent or any other Secured Party to such Borrower or (b) the
date on which a Responsible Officer of either such Borrower or the Servicer becomes
aware thereof; or
	 
	 	20.1.5	 	Any representation or warranty made or repeated hereunder shall prove to be incorrect
as of the time when the same shall have been made, and such incorrect representation or
warranty shall not have been eliminated or




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	 		 	otherwise cured within a period of 15 days after written notice thereof shall have
been given by the Administrative Agent to the relevant Borrower(s), and in any such
case only where such event could reasonably be expected to have a material adverse
effect upon the Lenders or the value or the recoverability of the Loans or the
ability of a Borrower to service its debt obligations hereunder, provided that any
incorrect representation as to the eligibility of an Eligible Loan shall not of
itself constitute an Event of Default or a Default; or
	 
	 	20.1.6	 	A Borrower or any Additional Guarantor becomes Insolvent or becomes subject to any
Insolvency Proceeding; or
	 
	 	20.1.7	 	A Servicer Termination Event occurs and is continuing; or
	 
	 	20.1.8	 	A Borrower fails to make any payment of any principal of or any interest on any debt
or other obligations (other than that arising under this Agreement) when due and payable
(after giving effect to any periods of grace) which is outstanding in a principal amount
of more than €500,000 in the aggregate, or such debt or other obligation is accelerated;
or
	 
	 	20.1.9	 	(a) The Security Trustee, on behalf of the Lenders, shall fail for any reason to have
a valid and effective security interest in any of the Collateral (including, without
limitation, any Collateral pledged pursuant to the Pledge Agreement or any Agreed Form
Pledge Agreement that may be executed) pledged pursuant to any Security Document or
other instrument purporting to create such security interest and in accordance with the
terms thereof and such failure is not cured within two Business Days of the earlier to
occur of: (i) the date on which written notice of such failure is given or (ii) the date
a Responsible Officer of the relevant Borrower becomes aware thereof or (b) the relevant
Borrower shall fail to have taken such additional timely actions as the Security Trustee
shall have reasonably requested under the Transaction Documents and believes are or
would be necessary or customary to enable the Security Trustee to perfect (where
perfection is required in accordance with the Transaction Documents) such security
interest and make such security interest enforceable and effective; or
	 
	 	20.1.10	 	(i) A final judgment or judgments for the payment of money in excess in aggregate of
€2,000,000 shall have been rendered against either or both Borrowers by a court of
competent jurisdiction and such judgment has not been paid, discharged or the execution
thereof has not been stayed pending appeal (ii) a Borrower shall have failed to make
payments of amounts, in excess of €2,000,000 in aggregate, in settlement of any
litigation, claim or dispute; or
	 
	 	20.1.11	 	The occurrence or existence of any event or circumstance which has caused a Material
Adverse Effect; or
	 
	 	20.1.12	 	A Borrower or the Borrowers agree(s) or consent(s) to, or otherwise permit(s) to
occur, any amendment, modification, change, supplement or recession of or to the Credit
and Collection Policy in whole or in part that could reasonably be expected to have a
Material Adverse Effect, without the prior written consent of the Administrative Agent
and the Lenders; or




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	 	20.1.13	 	Either: (i) the authorisation of CapitalSource Europe Limited. as a credit
institution is revoked or becomes subject to further restriction as a result of
regulatory enforcement action by the Financial Services Authority; or (ii) following a
demand by the Financial Services Authority, CapitalSource Europe Limited. surrenders its
authorisation as a credit institution; or (iii) the Financial Services Authority
petitions for an insolvency proceeding in relation to CapitalSource Europe Limited; or
	 
	 	20.1.14	 	A Change in Control occurs; or
	 
	 	20.1.15	 	The Servicer or a Borrower changes the jurisdiction in which it is incorporated
without the prior consent of the Administrative Agent; or
	 
	 	20.1.16	 	The Facility has not been repaid in full on or prior to the Termination Date; or
	 
	 	20.1.17	 	HM Revenue & Customs asserts a claim that either:






	 	(a)	 	a Borrower is liable for tax other than under the Taxation of
Securitisation Companies Regulations 2006; or
	 
	 	(b)	 	a Borrower is liable for tax as a result of the breach of the
undertakings of the Borrowers provided in Clauses 16.1.11(b) to 16.1.11(d) of
this Agreement or Clause 9.2 of the Servicing Agreement,






	 	 	 	and, in either case, (i) a tax opinion in form and substance satisfactory to the
Administrative Agent to the effect that the Borrower is not so liable to the
relevant tax; or (ii) an indemnity or guarantee in form and substance satisfactory
to the Administrative Agent in respect of the tax liability that would arise in the
relevant Borrower if the asserted claim was successful, is not provided to the
Administrative Agent within 30 days of such claim being asserted; or
	 
	 	20.1.18	 	A “Termination Date” is declared in relation to the Combined Facility by reason of
the occurrence of a “Termination Event” (as such term as defined in the Combined
Facility).






	 	 	Upon the occurrence of an Event of Default, the Administrative Agent may, with the consent of
the Required Lenders, and shall, at the direction of the Required Lenders, by notice to the
Borrowers, declare the Termination Date to have occurred, without demand, protest or future
notice of any kind, all of which are hereby expressly waived by the Borrowers, and all
Obligations owing by the Borrowers under this Agreement shall be accelerated and become
immediately due and payable. Upon any such declaration of the Termination Date, no Advances
will be made, and the Administrative Agent and the other Secured Parties shall have, in
addition to all other rights and remedies under this Agreement or otherwise, all rights and
remedies provided under each applicable jurisdiction and other Applicable Laws, including the
right to sell the Collateral, which rights and remedies shall be cumulative; provided that if
the Administrative Agent proposes to sell the Collateral or any part thereof in one or more
parcels at a public or private sale, the Servicer and its Affiliates shall have the right of
first refusal to purchase the Collateral, in whole but not in part, prior to such sale at a
price not less than the Obligations as of the date of such proposed




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		 	repurchase. The aforementioned rights and remedies shall be without limitation, and shall be
in addition to all other rights and remedies of the Administrative Agent, the Servicer, the
Security Trustee and the Secured Parties otherwise available under any provision of this
Agreement by operation of law, at equity or otherwise, each of which are expressly preserved.
	 
	20.2	 	No Duty Of The Security Trustee
	 
	 	 	The powers conferred on the Security Trustee hereunder are solely to protect the Security
Trustee’s interests in the Collateral and shall not impose any duty upon it to exercise any
such powers. The Security Trustee shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor any of its officers,
directors, employees or agents shall be responsible to the Borrowers for any act or failure
to act hereunder, except for its or their own gross negligence or wilful misconduct.
	 
	21.	 	CHANGES TO THE LENDERS
	 
	21.1	 	Assignments and transfers by the Lenders






	 	21.1.1	 	Each Lender (the “Existing Lender”) may (subject, in the case of transfer by a Lender
to a person which is not an Affiliate, to the prior written consent of the Borrowers and
of the Administrative Agent, which consents shall not be unreasonably withheld) at any
time assign, or Grant a security interest or sell a sub-participation interest in, any
Advance (or portion thereof) to any other bank or financial institution (the “New
Lender”); provided that (i) no such consent of the relevant Borrower shall be required
following the occurrence of an Event of Default which is continuing, (ii) in the case of
an assignment of any of its rights or obligations under this Agreement with respect to
such Lender, the assignee (other than any assignee described in the following provision)
executes and delivers to the Servicer and the Administrative Agent a fully-executed
Transfer Certificate in the form of SCHEDULE 1 attached hereto, and (iii) any
Institutional Lender shall not need prior consent to at any time assign, or Grant a
security interest or sell a sub-participation interest in, any Advance (or portion
thereof) to an Affiliate of its related Lender Agent and (iv) any Conduit Lender shall
not need prior consent (x) to at any time assign all of its right, title and interest in
and to this Agreement to a Conduit Assignee or an Affiliate of its related Lender Agent
or (y) to at any time assign, or Grant a security interest or sell a sub-participation
interest in, any Advance (or portion thereof) to a Conduit Assignee or an Affiliate of
its related Lender Agent. The parties to any such assignment, Grant or sale of a
participation interest by a Lender shall execute and deliver to the Administrative
Agent, for its acceptance and recording in its books and records, such agreement or
document as may be satisfactory to such parties and the Administrative Agent. The
Borrowers shall not assign or delegate, or Grant any interest in, or permit any Security
to exist upon, any of the Borrowers’ rights, obligations or duties under this Agreement
without the prior written consent of the Administrative Agent.
	 
	 	21.1.2	 	Without limiting the foregoing, each Conduit Lender may, from time to time, with prior
or concurrent notice to the relevant Borrower and the Servicer, in




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	 		 	one transaction or a series of transactions, assign all or a portion of any Advance
and its rights and obligations under this Agreement and any other Transaction
Documents to which it is a party to a Conduit Assignee. Upon and to the extent of
such assignment by the Conduit Lender to a Conduit Assignee, (i) such Conduit
Assignee shall be the owner of the assigned portion of such Advance, (ii) the
related administrator for such Conduit Assignee will act as the Lender Agent for
such Conduit Assignee, with all corresponding rights and powers, express or implied,
granted to a Lender Agent hereunder or under the other Transaction Documents, (iii)
such Conduit Assignee (and any related commercial paper issuer, if such Conduit
Assignee does not itself issue commercial paper) and their respective liquidity
support provider(s) and credit support provider(s) and other related parties shall
have the benefit of all the rights and protections provided to the Conduit Lender
herein and in the other Transaction Documents (including any limitation on recourse
against such Conduit Assignee or related parties, any agreement not to file or join
in the filing of a petition to commence an insolvency proceeding against such
Conduit Assignee, and the right to assign to another Conduit Assignee as provided in
this paragraph), (iv) such Conduit Assignee shall assume all (or the assigned or
assumed portion) of the Conduit Lender’s obligations, if any, hereunder or under any
other Transaction Document, and the Conduit Lender shall be released from such
obligations, in each case to the extent of such assignment, and the obligations of
the Conduit Lender and such Conduit Assignee shall be several and not joint, (v) all
distributions in respect of the Advances shall be made to the applicable agent or
Lender Agent, as applicable, on behalf of the Conduit Lender and such Conduit
Assignee on a pro rata basis according to their respective interests, (vi) the
definition of the term “CP Rate” with respect to the portion of the Advances funded
with commercial paper issued by the Conduit Lender (or the related commercial paper
issuer, if such Conduit Assignee does not itself issue commercial paper) from time
to time shall be determined in the manner set out in the definition of “CP Rate”
applicable to the Conduit Lender on the basis of the interest rate or discount
applicable to commercial paper issued by such Conduit Assignee (rather than the
Conduit Lender), (vii) the defined terms and other terms and provisions of this
Agreement and the other Transaction Documents shall be interpreted in accordance
with the foregoing, (viii) if such Conduit Assignee takes an assignment of all of
the rights and obligations of the Conduit Lender, such Conduit Assignee shall become
such “Conduit Lender” for purposes hereof and, if such Conduit Assignee takes an
assignment of only a portion of the rights and obligations of the Conduit Lender,
such Conduit Assignee shall, together with such Conduit Lender, each be a “Conduit
Lender” and the Institutional Lender relating to each such Conduit Lender shall be
the Institutional Lender paired with such Conduit Lender in ANNEX A for purposes
hereof, and (ix) if requested by the Administrative Agent or Lender Agent with
respect to the Conduit Assignee, the parties will execute and deliver such further
agreements and documents and take such other actions as the Administrative Agent or
such Lender Agent may reasonably request to evidence and give effect to the
foregoing.






	21.2	 	In the event that a Conduit Lender makes an assignment to a Conduit Assignee in accordance
with Clause 21.1.2 above, the Institutional Lenders for such Conduit




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	 	 	Lender: (i) if requested by the applicable Lender Agent, shall terminate
their participation in the applicable Liquidity Purchase Agreement to the
extent of such assignment, (ii) if requested by the applicable Lender
Agent, shall execute (either directly or through a participation
agreement, as determined by the applicable Lender Agent) the program
support agreement related to such Conduit Assignee, to the extent of such
assignment, the terms of which shall be substantially similar to those of
the participation or other agreement entered into by such Institutional
Lender with respect to the applicable program support agreement (or which
shall be otherwise reasonably satisfactory to the applicable Lender Agent
and the applicable Institutional Lenders), (iii) if requested by such
Conduit Lender, shall enter into such agreements as requested by such
Conduit Lender pursuant to which they shall be obligated to provide
funding to the Conduit Assignee on substantially the same terms and
conditions as provided for in this Agreement in respect of such Conduit
Lender (or which agreements shall be otherwise reasonably satisfactory to
such Conduit Lender and the Institutional Lenders), and (iv) shall take
such actions as the Administrative Agent shall reasonably request in
connection therewith.
	 
	21.3	 	Limitation of responsibility of Existing Lenders






	 	21.3.1	 	Unless expressly agreed to the contrary, an Existing Lender makes no representation or
warranty and assumes no responsibility to a New Lender for:






	 	(a)	 	the legality, validity, effectiveness, adequacy or
enforceability of the Transaction Documents or any other documents;
	 
	 	(b)	 	the financial condition of either Borrower;
	 
	 	(c)	 	the performance and observance by either Borrower of its
obligations under the Transaction Documents or any other documents; or
	 
	 	(d)	 	the accuracy of any statements (whether written or oral) made
in or in connection with any Transaction Document or any other document,






	 	 	and any representations or warranties implied by law are excluded.






	 	21.3.2	 	Each New Lender confirms to the Existing Lender and the other Secured Parties that it:






	 	(a)	 	has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs of each
Borrower and its related entities in connection with its participation in this
Agreement and has not relied exclusively on any information provided to it by
the Existing Lender(s) in connection with any Transaction Document; and
	 
	 	(b)	 	will continue to make its own independent appraisal of the
creditworthiness of each Borrower and its related entities whilst any amount is
or may be outstanding under the Transaction Documents or any Commitment is in
force.






	 	21.3.3	 	Nothing in any Transaction Document obliges an Existing Lender to:




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	 	(a)	 	accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 21; or
	 
	 	(b)	 	support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by a Borrower of its obligations under
the Transaction Documents or otherwise.






	21.4	 	Procedure for transfer






	 	21.4.1	 	Subject to the conditions set out in Clause 21.1, a transfer is effected in accordance
with this Clause 21.4 when the Administrative Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New Lender. The
Administrative Agent shall, subject to this Clause 21.4, as soon as reasonably
practicable after receipt by it of a duly completed Transfer Certificate appearing on
its face to comply with the terms of this Agreement and delivered in accordance with the
terms of this Agreement, execute that Transfer Certificate.
	 
	 	21.4.2	 	The Administrative Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary “know your customer” or other similar checks under all
applicable laws and regulations in relation to the transfer to such New Lender.
	 
	 	21.4.3	 	On the Transfer Date:






	 	(a)	 	to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations under the
Transaction Documents the relevant Borrower(s) and the Existing Lender shall be
released from further obligations towards one another under the Transaction
Documents and their respective rights against one another under the Transaction
Documents shall be cancelled (being the “Discharged Rights and Obligations”);
	 
	 	(b)	 	the relevant Borrower(s) and the New Lender shall assume
obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as the
Borrower(s) and the New Lender have assumed and/or acquired the same in place
of the Borrower(s) and the Existing Lender;
	 
	 	(c)	 	the Administrative Agent, the New Lender and other Lenders
shall acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New Lender been an
original Lender with the rights and/or obligations acquired or assumed by it as
a result of the transfer and to that extent the Administrative Agent, and the
Existing Lender shall each be released from further obligations to each other
under the Transaction Documents; and
	 
	 	(d)	 	the New Lender shall become a party as a “Lender”.




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	21.5	 	Copy of Transfer Certificate to the Borrowers
	 
	 	 	The Administrative Agent shall, as soon as reasonably practicable after it has executed a
Transfer Certificate, send to each of the Borrowers a copy of that Transfer Certificate.
	 
	21.6	 	Disclosure of information
	 
	 	 	Any Lender may disclose to any of its Affiliates and any other Person:






	 	21.6.1	 	to (or through) whom that Lender assigns or transfers (or may potentially assign or
transfer) all or any of its rights and obligations under this Agreement;
	 
	 	21.6.2	 	with (or through) whom that Lender enters into (or may potentially enter into) any
participation in relation to, or any other transaction under which payments are to be
made by reference to, this Agreement or a Borrower; or
	 
	 	21.6.3	 	to whom, and to the extent that, information is required to be disclosed by any
Applicable Law any information about the relevant Borrower(s) and the Transaction
Documents as that Lender shall consider appropriate.






	22.	 	CHANGES TO THE BORROWERS
	 
	 	 	A Borrower and each Guarantor and Additional Guarantor may not assign or otherwise transfer
any of its rights or transfer any of its rights or obligations under the Transaction
Documents except with the written consent of the Administrative Agent.
	 
	23.	 	ROLE OF THE ADMINISTRATIVE AGENT AND THE SECURITY TRUSTEE
	 
	23.1	 	Appointment of the Administrative Agent and the Security Trustee






	 	23.1.1	 	Each other Secured Party appoints the Administrative Agent to act as its agent under
and in connection with the Transaction Documents. Each other Secured Party appoints the
Security Trustee to act on its behalf under and in connection with the Transaction
Documents.






	 	23.1.2	 	Each other Secured Party authorises the each of the Administrative Agent and the
Security Trustee to exercise the rights, powers, authorities and discretions
specifically given to it under or in connection with the Transaction Documents together
with any other incidental rights, powers, authorities and discretions.






	23.2	 	Duties of the Administrative Agent






	 	23.2.1	 	The Administrative Agent shall promptly forward to a party the original or a copy of
any document which is delivered to the Administrative Agent for that party by any other
party.
	 
	 	23.2.2	 	Except where a Transaction Document specifically provides otherwise, the
Administrative Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another party.




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	 	23.2.3	 	If the Administrative Agent receives notice from a party referring to this Agreement,
describing a Default and stating that the circumstance described is a Default, it shall
promptly notify the other Secured Parties.
	 
	 	23.2.4	 	If the Administrative Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Secured Party (other than the Administrative
Agent) under this Agreement it shall promptly notify the other Secured Parties.






	23.3	 	No fiduciary duties






	 	23.3.1	 	Nothing in this Agreement constitutes the Administrative Agent as a trustee or
fiduciary of any other Person.






	 	23.3.2	 	The Administrative Agent shall not be bound to account to any Lender for any sum or
the profit element of any sum received by it for its own account.






	23.4	 	Rights and discretions of the Administrative Agent






	 	23.4.1	 	The Administrative Agent may rely on:






	 	(a)	 	any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
	 
	 	(b)	 	any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify.






	 	23.4.2	 	The Administrative Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that:






	 	(a)	 	no Default has occurred;
	 
	 	(b)	 	any right, power, authority or discretion vested in any party
or the Required Lenders has not been exercised; and
	 
	 	(c)	 	any notice or request made by a Borrower (other than a Funding
Request) is made on behalf of and with the consent and knowledge of any
Obligor.






	 	23.4.3	 	The Administrative Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.
	 
	 	23.4.4	 	The Administrative Agent may act in relation to the Transaction Documents through its
personnel and agents.
	 
	 	23.4.5	 	Subject to Clause 33.13, the Administrative Agent may disclose to any other party any
information it reasonably believes it has received as agent under this Agreement.
	 
	 	23.4.6	 	Notwithstanding any other provision of any Transaction Document to the contrary, the
Administrative Agent is not obliged to do or omit to do anything




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	 	 	 	if it would or might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of confidentiality.






	23.5	 	Required Lenders’ instructions






	 	23.5.1	 	Unless a contrary indication appears in a Transaction Document, the Administrative
Agent shall (i) exercise any right, power, authority or discretion vested in it as the
Administrative Agent in accordance with any instructions given to it by the Required
Lenders (or, if so instructed by the Required Lenders, refrain from exercising any
right, power, authority or discretion vested in it as the Administrative Agent) and (ii)
not be liable for any act (or omission) if it acts (or refrains from taking any action)
in accordance with an instruction of the Required Lenders.
	 
	 	23.5.2	 	Unless a contrary indication appears in a Transaction Document, any instructions given
by the Required Lenders will be binding on all the Secured Parties.
	 
	 	23.5.3	 	The Administrative Agent may refrain from acting in accordance with the instructions
of the Required Lenders (or, if appropriate, the Lenders) until it has received such
security as it may require for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
	 
	 	23.5.4	 	In the absence of instructions from the Required Lenders, (or, if appropriate, the
Lenders) the Administrative Agent may act (or refrain from taking action) as it
considers to be in the best interest of the Lenders.
	 
	 	23.5.5	 	The Administrative Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender’s consent) in any legal or arbitration proceedings relating to any
Transaction Document.






	23.6	 	Responsibility for documentation
	 
	 	 	The Administrative Agent is not:






	 	23.6.1	 	responsible for the adequacy, accuracy and/or completeness of any information (whether
oral or written) supplied by the Administrative Agent, an Obligor or any other Person
given in or in connection with any Transaction Document; or






	 	23.6.2	 	responsible for the legality, validity, effectiveness, adequacy or enforceability of
any Transaction Document or any other agreement, arrangement or document entered into,
made or executed in anticipation of or in connection with any Transaction Document.






	23.7	 	Exclusion of liability






	 	23.7.1	 	The Administrative Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required under the Transaction
Documents to be paid by the Administrative Agent if the Administrative Agent has taken
all necessary steps as soon as reasonably




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	 	 	 	practicable to comply with the regulations or operating procedures of any recognised
clearing or settlement system used by the Administrative Agent for that purpose.
	 
	 	23.7.2	 	Nothing in this Agreement shall oblige the Administrative Agent to carry out any “know
your customer” or other checks in relation to any person on behalf of any Lender and
each Lender confirms to the Administrative Agent that it is solely responsible for any
such checks it is required to carry out and that it may not rely on any statement in
relation to such checks made by the Administrative Agent.






	23.8	 	Lenders’ indemnity to the Administrative Agent
	 
	 	 	Each Lender (or, in the case of a Conduit Lender which is not a Committed Conduit Lender, its
Institutional Lender) shall (in proportion to its share of the Advances Outstanding)
indemnify the Administrative Agent, within three Business Days of demand, against any cost,
loss or liability (including, without limitation, for negligence or any other category of
liability whatsoever) incurred by the Administrative Agent (otherwise than by reason of the
Administrative Agent’s gross negligence or wilful misconduct) (or, in the case of any cost,
loss or liability pursuant to Clause 25.9 notwithstanding the Administrative Agent’s
negligence, gross negligence, or any other category of liability whatsoever but not including
any claim based on the fraud of the Administrative Agent) in acting as the Administrative
Agent under the Transaction Documents (unless the Administrative Agent has been reimbursed by
an Obligor pursuant to a Transaction Document).
	 
	23.9	 	Non-Receipt of Funds by the Administrative Agent






	 	23.9.1	 	Except as provided in Clause 23.9.3, unless the Administrative Agent shall have been
notified in writing by a Lender prior to the date an Advance is to be made by such
Lender (which notice shall be effective upon receipt) that such Lender does not intend
to make the proceeds of such Advance available to the Administrative Agent, the
Administrative Agent may assume that such Lender has made such proceeds available to the
Administrative Agent on such date, and the Administrative Agent may in reliance upon
such assumption (but shall not be required to) make available to the relevant
Borrower(s) a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent, the Administrative Agent shall be able to recover
such corresponding amount from such Lender. If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefore, the
Administrative Agent will promptly notify the relevant Borrower(s), and such Borrower(s)
shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or Borrower(s),
as the case may be, interest on such corresponding amount in respect of each day from
the date such corresponding amount was made available by the Administrative Agent to the
Borrower(s) to the date such corresponding amount is recovered by the Administrative
Agent at a per annum rate equal to (i) from the Borrower(s) at the Interest Rate
applicable to the Advance requested pursuant to the related Funding Request and (ii)
from a Lender at the Base Rate.




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	 	23.9.2	 	A certificate of the Administrative Agent submitted to a Borrower or any Lender with
respect to any amount owing under this Clause 23.9.2 shall be conclusive in the absence
of manifest error.
	 
	 	23.9.3	 	On the date of any borrowing of an Advance in an Alternative Currency, the
Administrative Agent shall make available to the relevant Borrower(s) the proceeds of
such borrowing only upon actual receipt by the Administrative Agent from each Lender of
such Lender’s pro rata portion of such borrowing in such Alternative Currency.






	23.10	 	Resignation of the Administrative Agent






	 	23.10.1	 	The Administrative Agent may resign and appoint one of its Affiliates acting through
an office in the United Kingdom as successor by giving 30 days’ prior written notice to
the other Secured Parties and the Borrowers.
	 
	 	23.10.2	 	Alternatively the Administrative Agent may resign by giving 30 days’ prior written
notice to the other Secured Parties and the Borrowers, in which case the Required
Lenders (after consultation with the Borrowers) may appoint a successor agent.
	 
	 	23.10.3	 	If the Required Lenders have not appointed a successor agent in accordance with
Clause 23.10.2 above within 30 days after notice of resignation was given, the
Administrative Agent (after consultation with the Borrowers) may appoint a successor
agent (acting through an office in the United Kingdom).
	 
	 	23.10.4	 	The Administrative Agent shall, at its own cost, make available to the successor
agent such documents and records and provide such assistance as the successor agent may
reasonably request for the purposes of performing its functions as the Administrative
Agent under the Transaction Documents.
	 
	 	23.10.5	 	The Administrative Agent’s resignation notice shall only take effect upon the
appointment of a successor.
	 
	 	23.10.6	 	Upon the appointment of a successor, the retiring Administrative Agent shall be
discharged from any further obligation in respect of the Transaction Documents but shall
remain entitled to the benefit of this Clause 23. Its successor and each of the other
Parties shall have the same rights and obligations amongst themselves as they would have
had if such successor had been an original party.






	23.11	 	Relationship with the Lenders






	 	23.11.1	 	The Administrative Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless it has received not
less than five Business Days prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
	 
	 	23.11.2	 	Each Lender shall supply the Administrative Agent with any information required by
the Administrative Agent in order to calculate the Mandatory Cost in accordance with
ANNEX C (Mandatory Cost formulae).




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	23.12	 	Credit appraisal by the Lenders
	 
	 	 	Without affecting the responsibility of a Borrower for information supplied by it or on its
behalf in connection with any Transaction Document, each Lender confirms to the
Administrative Agent that it has been, and will continue to be, solely responsible for making
its own independent appraisal and investigation of all risks arising under or in connection
with any Transaction Document including but not limited to:






	 	23.12.1	 	the status and nature of the Collateral;
	 
	 	23.12.2	 	the legality, validity, effectiveness, adequacy or enforceability of any Transaction
Document and any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Transaction Document;
	 
	 	23.12.3	 	whether that Lender has recourse, and the nature and extent of that recourse, against
any party or any of its respective assets under or in connection with any Transaction
Document, the transactions contemplated by the Transaction Documents or any other
agreement, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Transaction Document; and
	 
	 	23.12.4	 	the adequacy, accuracy and/or completeness of any information provided by the
Administrative Agent, any party or by any other Person under or in connection with any
Transaction Document, the transactions contemplated by the Transaction Documents or any
other agreement, arrangement or document entered into, made or executed in anticipation
of, under or in connection with any Transaction Document.






	23.13	 	Deduction from amounts payable by the Administrative Agent
	 
	 	 	If any party owes an amount to the Administrative Agent under the Transaction Documents the
Administrative Agent may, after giving notice to that party, deduct an amount not exceeding
that amount from any payment to that party which the Administrative Agent would otherwise be
obliged to make under the Transaction Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Transaction Documents that party
shall be regarded as having received any amount so deducted.
	 
	23.14	 	The Security Trustee as trustee






	 	23.14.1	 	The Security Trustee declares that it holds all rights, title and interests in, to
and under those Transaction Documents to which it is a party and expressed to be a
trustee (acting as trustee for the Secured Parties), and all proceeds of the enforcement
of such Transaction Documents, on trust for the Secured Parties from time to time. This
trust shall remain in force even if the Security Trustee (in whatever capacity) is at
any time the sole Secured Party.
	 
	 	23.14.2	 	The Security Trustee, in its capacity as trustee or otherwise under any Transaction
Document is not liable for any failure:




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	 	(a)	 	to require the deposit with it of any title deed, any
Transaction Document; or any other documents in connection with any Transaction
Document;
	 
	 	(b)	 	in it (or its solicitors) holding any title deed, any
Transaction Document or any other documents in connection with any Transaction
Document in its own possession or to take any steps to protect or preserve the
same including permitting a Borrower to retain any such title deeds, any
Transaction Documents or any other documents;
	 
	 	(c)	 	to obtain any licence, consent or other authority for the
execution, delivery, validity, legality, adequacy, performance, enforceability
or admissibility in evidence of any such Transaction Document;
	 
	 	(d)	 	to effect or ensure registration of or otherwise protect any of
the security created by any such Transaction Document by registering the same
under the Land Registration Act 2002 or any other applicable registration laws
in any jurisdiction or otherwise by registering any notice, caution or other
entry prescribed by or pursuant to the provisions of the said Act or laws;
	 
	 	(e)	 	to take or require a Borrower to take any step to render the
security created or purported to be created by or pursuant to any such
Transaction Document effective or to secure the creation of any ancillary
security under the laws of any jurisdiction;
	 
	 	(f)	 	to require any further assurances in relation to any such
Transaction Document; or
	 
	 	(g)	 	to insure any asset or require any other Person to maintain any
such insurance or be responsible for any loss which may be suffered by any
person as a result of the lack, or inadequacy or insufficiency, of any such
insurance.






	 	23.14.3	 	The Security Trustee may accept, without enquiry, any right or title that a Borrower
may (or may purport to) have to any asset which is the subject of any such Transaction
Document and shall not be bound or concerned to investigate or make any enquiry into the
right or title of such Borrower to any such asset or to require such Borrower to remedy
any defect in its right or title to the same.
	 
	 	23.14.4	 	Save as otherwise provided in the Transaction Documents, all moneys, which under the
trusts contained in any Transaction Document are received by the Security Trustee in its
capacity as trustee or otherwise, may be invested in the name of, or under the control
of, the Security Trustee in any investment for the time being authorised by English law
for the investment by a trustee of trust money or in any other investments which may be
selected by the Security Trustee. Additionally, the same may be placed on deposit in
the name of, or under the control of, the Security Trustee at such bank or institution
(including the Security Trustee) and upon such terms as the Administrative Agent may
think fit.




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	 	23.14.5	 	Section 1 of the Trustee Act 2000 shall not apply to the duties of the Security
Trustee in relation to the trusts constituted by any Transaction Document. Where there
are any inconsistencies between that Act and the provisions of that Transaction
Document, the provisions of that Transaction Document shall, to the extent allowed by
law, prevail and, in the case of any inconsistency with that Act, the provisions of that
Transaction Document shall constitute a restriction or exclusion for the purposes of
that Act.
	 
	 	23.14.6	 	The perpetuity period for the trusts in this Agreement is 80 years.






	23.15	 	Resignation of the Security Trustee
	 
	 	 	The Security Trustee may resign as security trustee under the Transaction Documents, and such
resignation shall be subject to Clause 23.10, save that all references to “Administrative
Agent” and “agent” in that Clause shall be understood to be references to “Security Trustee”
and “security trustee”, respectively.
	 
	24.	 	CONDUCT OF BUSINESS BY THE SECURED PARTIES
	 
	 	 	No provision of this Agreement will:
	 
	24.1	 	interfere with the right of any Secured Party to arrange its affairs (tax or otherwise) in
whatever manner it thinks fit;
	 
	24.2	 	oblige any Secured Party to investigate or claim any credit, relief, remission or repayment
available to it or the extent, order and manner of any claim; or
	 
	24.3	 	oblige any Secured Party to disclose any information relating to its affairs (tax or
otherwise) or any computations in respect of Tax.
	 
	25.	 	PAYMENT MECHANICS
	 
	25.1	 	Payments to the Administrative Agent






	 	25.1.1	 	On each date on which a Borrower or a Lender is required to make a payment under a
Transaction Document, such Borrower or Lender shall make the same available to the
Administrative Agent (unless a contrary indication appears in a Transaction Document)
for value on the due date at the time and in such funds specified by the Administrative
Agent as being customary at the time for settlement of transactions in the relevant
currency in the place of payment.
	 
	 	25.1.2	 	Payment shall be made to such account in the principal financial centre of the country
of that currency (or, in relation to euro, in a principal financial centre in London or
a Participating Member State) with such bank as the Administrative Agent specifies.






	25.2	 	Distributions by the Administrative Agent
	 
	 	 	Each payment received by the Administrative Agent under the Transaction Documents for another
party shall, subject to Clause 25.3 and Clause 25.4 be made available by the Administrative
Agent as soon as practicable after receipt to the party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the




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	 	 	account of its Facility Office), to such account as that party may notify to the
Administrative Agent by not less than five Business Days’ notice with a bank in the principal
financial centre of the country of that currency (or, in relation to euro, in the principal
financial centre of London or a Participating Member State).






	25.3	 	Distributions to the Borrowers
	 
	 	 	The Administrative Agent may (with the consent of a Borrower or in accordance with Clause
25.9) apply any amount received by it for such Borrower in or towards payment (on the date
and in the currency and funds of receipt) of any amount due from such Borrower under the
Transaction Documents or in or towards purchase of any amount of any currency to be so
applied.
	 
	25.4	 	Clawback






	 	25.4.1	 	Where a sum is to be paid to the Administrative Agent under the Transaction Documents
for another party, the Administrative Agent is not obliged to pay that sum to that other
party (or to enter into or perform any related exchange contract) until it has been able
to establish to its satisfaction that it has actually received that sum.
	 
	 	25.4.2	 	If the Administrative Agent pays an amount to another party and it proves to be the
case that the Administrative Agent had not actually received that amount, then the party
to whom that amount (or the proceeds of any related exchange contract) was paid by the
Administrative Agent shall on demand refund the same to the Administrative Agent
together with interest on that amount from the date of payment to the date of receipt by
the Administrative Agent, calculated by the Administrative Agent to reflect its cost of
funds.






	25.5	 	No set-off by the Borrowers
	 
	 	 	All payments to be made by the Borrowers under the Transaction Documents shall be calculated
and be made without (and free and clear of any deduction for) set-off or counterclaim.
	 
	25.6	 	Business Days






	 	25.6.1	 	Any payment which is due to be made on a day that is not a Business Day shall be made
on the next Business Day.
	 
	 	25.6.2	 	During any extension of the due date for payment of any principal or Unpaid Sum under
this Agreement interest is payable on the principal or Unpaid Sum at the rate payable on
the original due date.






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	25.7	 	Currency of account






	 	25.7.1	 	Subject to Clauses 25.7.2 to 25.7.5, the Base Currency is the currency of account and
payment for any sum due from a Borrower under any Transaction Document.
	 
	 	25.7.2	 	A repayment of an Advance or Obligation or a part of an Advance or Obligation shall be
made in the currency in which that Advance or Obligation is denominated on its due date.
	 
	 	25.7.3	 	Each payment of interest shall be made in the currency in which the sum in respect of
which the interest is payable was denominated when that interest accrued.
	 
	 	25.7.4	 	Each payment in respect of costs, expenses or Taxes shall be made in the currency in
which the costs, expenses or Taxes are incurred.
	 
	 	25.7.5	 	Any amount expressed to be payable in a currency other than the Base Currency shall be
paid in that other currency.






	25.8	 	Change of currency






	 	25.8.1	 	At any time, any reference in the definition of the term “Alternative Currency” or in
any other provision of this Agreement to the Currency of any particular State means the
lawful currency of such State at such time whether or not the name of such Currency is
the same as it was on the date hereof. For purposes of determining:






	 	(a)	 	whether the amount of any Advance, together with all other
Advances then outstanding or to be borrowed at the same time as such Advance,
would exceed the Facility Amount;
	 
	 	(b)	 	whether any Lender’s Pro Rata Share of any Advance, together
with its Pro Rata Share of all other Advances then outstanding or to be
borrowed at the same time as such Advance, would exceed the amount of such
Lender’s Commitment; and
	 
	 	(c)	 	whether Advances Outstanding are required to be prepaid, the
outstanding principal amount of any Advance that is denominated in any
Alternative Currency shall be deemed to be the Euro Equivalent of such amount
of Alternative Currency determined as of the date of such Advance.






	 	25.8.2	 	Wherever in this Agreement in connection with an Advance an amount, such as a required
minimum or multiple amount, is expressed in Euro, but such Advance is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency Equivalent
of such Euro amount (rounded to the nearest 1,000 units of such Alternative Currency).
	 
	 	25.8.3	 	In addition, for purposes of (A) complying with any requirement of this Agreement
stated in Euro and (B) calculating any ratio or other test set out in this Agreement,
the amount of any Advance that is denominated in an




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	 	 	 	Alternative Currency shall be deemed to be the Euro Equivalent of such amount of
Alternative Currency determined as of the date of such calculation. Without
limitation, the following defined terms used in this Agreement (together with any
defined terms in which such defined terms are used) may require amounts denominated
in an Alternative Currency to be calculated as the Euro Equivalent of such amounts:
“Aggregate Outstanding Loan Balance”, “Concentration Limits”, “Interest
Collections”, “Outstanding Loan Balance”, “Permitted Investments”, “Principal
Collections”, “Scheduled Payment” and “Servicing Fee”.






	 	25.8.4	 	Each obligation hereunder of any party hereto that is denominated in the National
Currency of a state that is not a Participating Member State on the date hereof shall,
effective from the date on which such state becomes a Participating Member State, be
redenominated in Euro in accordance with the legislation of the European Union
applicable to the European Monetary Union; provided that if and to the extent that any
such legislation provides that any such obligation of any such party payable within such
Participating Member State by crediting an account of the creditor can be paid by the
debtor either in Euro or such National Currency, such party shall be entitled to pay or
repay such amount either in Euro or in such National Currency. If the basis of accrual
of interest or fees expressed in this Agreement with respect to an Alternative Currency
of any country that becomes a Participating Member State after the date on which such
currency becomes an Alternative Currency shall be inconsistent with any convention or
practice in the interbank market for the basis of accrual of interest or fees in respect
of the Euro, such convention or practice shall replace such expressed basis effective as
of and from the date on which such state becomes a Participating Member State; provided
that with respect to any Advance denominated in such currency that is outstanding
immediately prior to such date, such replacement shall take effect at the end of the
Interest Period therefor.
	 
	 	25.8.5	 	Without prejudice to the respective liabilities of the Borrowers to the Lenders and
the Lenders to the Borrowers under or pursuant to this Agreement, each provision of this
Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time, in consultation with the Borrowers,
reasonably specify to be necessary or appropriate to reflect the introduction or
changeover to the Euro in any country that becomes a Participating Member State after
the date hereof; provided that the Administrative Agent shall provide the Borrowers and
each Lender Agent with prior notice of the proposed change with an explanation of such
change in sufficient time to permit the Borrowers and the Lenders an opportunity to
respond to such proposed change.






	25.9	 	Disruption to Payment Systems, Etc.
	 
	 	 	If either the Administrative Agent determines (in its discretion) that a Disruption Event has
occurred or the Administrative Agent is notified by a Borrower that a Eurocurrency Disruption
Event has occurred:






	 	25.9.1	 	the Administrative Agent may, and shall (subject to Clause 25.9.2 below) if requested
to do so by a Borrower, consult with the Borrowers with a view to




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	 	 	 	agreeing with the Borrowers such changes to the operation or administration of this
Agreement as the Administrative Agent may deem necessary in the circumstances;






	 	25.9.2	 	the Administrative Agent shall not be obliged to consult with the Borrowers in
relation to any changes mentioned in Clause 25.9.1 if, in its reasonable opinion, it is
not practicable to do so in the circumstances and, in any event, shall have no
obligation to agree to such changes;
	 
	 	25.9.3	 	the Administrative Agent may consult with the Secured Parties in relation to any
changes mentioned in Clause 25.9.1 but shall not be obliged to do so if, in its opinion,
it is not practicable to do so in the circumstances;
	 
	 	25.9.4	 	any such changes agreed upon by the Administrative Agent and the Borrowers shall
(whether or not it is finally determined that a Eurocurrency Disruption Event has
occurred) be binding upon the parties as an amendment to (or, as the case may be, waiver
of) the terms of the Transaction Documents notwithstanding the provisions of Clause 30;
	 
	 	25.9.5	 	the Administrative Agent shall not be liable for any damages, costs or losses
whatsoever (including, without limitation for negligence, gross negligence or any other
category of liability whatsoever but not including any claim based on the fraud of the
Administrative Agent) arising as a result of its taking, or failing to take, any actions
pursuant to or in connection with this Clause 25.9.5; and
	 
	 	25.9.6	 	the Administrative Agent shall notify the Secured Parties of all changes agreed
pursuant to Clause 25.9.4.






	26.	 	BORROWER CROSS-GUARANTEE AND INDEMNITY
	 
	26.1	 	Each Guarantor irrevocably and unconditionally jointly and severally:






	 	(a)	 	guarantees to the Lenders punctual performance by each Borrower
of all that Borrower’s obligations under the Transaction Documents;
	 
	 	(b)	 	undertakes with the Lenders that whenever a Borrower does not
pay any amount when due under or in connection with any Transaction Document,
that Guarantor shall immediately on demand pay that amount as if it was the
principal obligor; and
	 
	 	(c)	 	indemnifies the Lenders immediately on demand against any cost,
loss or liability suffered by the Lenders if any obligation guaranteed by it is
or becomes unenforceable, invalid or illegal. The amount of the cost, loss or
liability shall be equal to the amount which the Lenders would otherwise have
been entitled to recover.






	 	26.1.2	 	Continuing guarantee
	 
	 	 	 	This guarantee is a continuing guarantee and will extend to the ultimate balance of
sums payable by any Borrower under the Transaction Documents, regardless of any
intermediate payment or discharge in whole or in part.




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	 	26.1.3	 	Reinstatement






	 	(a)	 	If any payment by a Borrower or Guarantor or any discharge
given by the Lenders (whether in respect of the obligations of any Borrower or
Guarantor or any security for those obligations or otherwise) is avoided or
reduced as a result of insolvency or any similar event:
	 
	 	(b)	 	the liability of each Guarantor shall continue as if the
payment, discharge, avoidance or reduction had not occurred; and
	 
	 	(c)	 	the Lender shall be entitled to recover the value or amount of
that security or payment from each Guarantor, as if the payment, discharge,
avoidance or reduction had not occurred.






	 	26.1.4	 	Waiver of defences
	 
	 	 	 	The obligations of each Guarantor under this Clause 26 will not be affected by an
act, omission, matter or thing which, but for this Clause, would reduce, release or
prejudice any of its obligations under this Clause 26 (without limitation and
whether or not known to it or the Lenders) including:






	 	(a)	 	any time, waiver or consent granted to, or composition with, a
Borrower or other person;
	 
	 	(b)	 	the release of any Borrower or any other person under the terms
of any composition or arrangement with any creditor;
	 
	 	(c)	 	the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect (where perfection is required in
accordance with the Transaction Documents), take up or enforce, any rights
against, or security over assets of, any Borrower or other person or any
non-presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of any
security;
	 
	 	(d)	 	any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of a Borrower or any other
person;
	 
	 	(e)	 	any amendment, novation, supplement, extension restatement
(however fundamental and whether or not more onerous) or replacement of a
Transaction Document or any other document or security including without
limitation any change in the purpose of, any extension of or any increase in
any facility or the addition of any new facility under any Transaction Document
or other document;
	 
	 	(f)	 	any unenforceability, illegality or invalidity of any
obligation of any person under any Transaction Document or any other document
or security; or
	 
	 	(g)	 	any insolvency or similar proceedings.




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	 	26.1.5	 	Immediate recourse
	 
	 	 	 	Each Guarantor waives any right it may have of first requiring the Lenders (or the
Security Trustee on their behalf) to proceed against or enforce any other rights or
security or claim payment from any person before claiming from that Guarantor under
this Clause 26. This waiver applies irrespective of any law or any provision of a
Transaction Document [or the Combined Facility] to the contrary.
	 
	 	26.1.6	 	Appropriations
	 
	 	 	 	Until all amounts which may be or become payable by the Borrowers under or in
connection with the Transaction Documents, [or the Combined Facility] have been
irrevocably paid in full, the Lenders (or the Security Trustee on their behalf) may:






	 	(a)	 	refrain from applying or enforcing any other moneys, security
or rights held or received by the Lender (or any trustee or agent on its
behalf) in respect of those amounts, or apply and enforce the same in such
manner and order as it sees fit (whether against those amounts or otherwise)
and no Guarantor shall be entitled to the benefit of the same; and
	 
	 	(b)	 	hold in an interest-bearing suspense account any moneys
received from any Guarantor or on account of any Guarantor liability under this
Clause 26.






	 	26.1.7	 	Deferral of Guarantors’ rights
	 
	 	 	 	Until all amounts which may be or become payable by the Borrowers under or in
connection with the Finance Documents have been irrevocably paid in full and unless
the Lender otherwise directs, no Guarantor will exercise any rights which it may
have by reason of performance by it of its obligations under the Transaction
Documents:






	 	(a)	 	to be indemnified by an Borrower;
	 
	 	(b)	 	to claim any contribution from any other guarantor of any
Borrower’s obligations under the Finance Documents; and/or
	 
	 	(c)	 	to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Lender under the Finance
Documents or of any other guarantee or security taken pursuant to, or in
connection with, the Transaction Documents by the Lenders.






	 	 	 	If a Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent necessary
to enable all amounts which may be or become payable to the Lenders by the Borrowers
under or in connection with the Transaction Documents to be repaid in full on trust
for the Lenders and shall promptly pay or transfer the same to the Lender or as the
Lender may direct for application in accordance with the Transaction Documents.




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	 	26.1.8	 	Release of Guarantor’s right of contribution
	 
	 	 	 	If any Guarantor (a “Retiring Guarantor”) ceases to be a Guarantor in accordance
with the terms of the Transaction Documents for the purpose of any sale or other
disposal of that Guarantor then on the date such Guarantor ceases to be a Guarantor:






	 	(a)	 	that Retiring Guarantor is released by the other Guarantor and
the Additional Guarantors from any liability (whether past, present or future
and whether actual or contingent) to make a contribution to any other Guarantor
or Additional Guarantor arising by reason of the performance by such other
Guarantor of its obligations under the Transaction Documents; and
	 
	 	(b)	 	each Guarantor waives any rights it may have by reason of the
performance of its obligations under the Transaction Documents to take the
benefit (in whole or in part and whether by way of subrogation or otherwise) of
any rights of the Lenders under any Transaction Document or of any other
security taken pursuant to, or in connection with, any Transaction Document
where such rights or security are granted by or in relation to the assets of
the Retiring Guarantor.






	 	26.1.9	 	Additional security
	 
	 	 	 	This guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by the Lenders.






	27.	 	ADDITIONAL GUARANTEE
	 
	 	 	Each Additional Guarantor irrevocably and unconditionally jointly and severally:






	 	27.1.1	 	guarantees to the Lenders punctual performance by each Borrower of all that Borrower’s
obligations under the Transaction Documents;
	 
	 	27.1.2	 	undertakes with the Lenders that whenever a Borrower does not pay any amount when due
under or in connection with any Transaction Document, that Additional Guarantor shall
immediately on demand pay that amount as if it was the principal obligor; and
	 
	 	27.1.3	 	indemnifies the Lenders immediately on demand against any cost, loss or liability
suffered by the Lenders if any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal. The amount of the cost, loss or liability shall be equal to the
amount which the Lenders would otherwise have been entitled to recover.






	27.2	 	Continuing guarantee
	 
	 	 	This guarantee is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Borrower under the Transaction Documents, regardless of any intermediate
payment or discharge in whole or in part.




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	27.3	 	Reinstatement
	 
	 	 	If any payment by a Borrower or Additional Guarantor or any discharge given by the Lenders
(whether in respect of the obligations of any Borrower or Additional Guarantor or any
security for those obligations or otherwise) is avoided or reduced as a result of insolvency
or any similar event:






	 	27.3.1	 	the liability of each Additional Guarantor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
	 
	 	27.3.2	 	the Lender shall be entitled to recover the value or amount of that security or
payment from each Additional Guarantor, as if the payment, discharge, avoidance or
reduction had not occurred.






	27.4	 	Waiver of defences
	 
	 	 	The obligations of each Additional Guarantor under this Clause 27 will not be affected by an
act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice
any of its obligations under this Clause 27 (without limitation and whether or not known to
it or the Lenders) including:






	 	27.4.1	 	any time, waiver or consent granted to, or composition with, a Borrower or other
person;
	 
	 	27.4.2	 	the release of any Borrower or any other person under the terms of any composition or
arrangement with any creditor;
	 
	 	27.4.3	 	the taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect (where perfection is required in accordance with the Transaction
Documents), take up or enforce, any rights against, or security over assets of, any
Borrower or other person or any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure to realise the full value
of any security;
	 
	 	27.4.4	 	any incapacity or lack of power, authority or legal personality of or dissolution or
change in the members or status of a Borrower or any other person;
	 
	 	27.4.5	 	any amendment, novation, supplement, extension restatement (however fundamental and
whether or not more onerous) or replacement of a Transaction Document or any other
document or security including without limitation any change in the purpose of, any
extension of or any increase in any facility or the addition of any new facility under
any Transaction Document or other document;
	 
	 	27.4.6	 	any unenforceability, illegality or invalidity of any obligation of any person under
any Transaction Document or any other document or security; or
	 
	 	27.4.7	 	any insolvency or similar proceedings.






	27.5	 	Immediate recourse
	 
	 	 	Each Additional Guarantor waives any right it may have of first requiring the Lenders (or the
Security Trustee on their behalf) to proceed against or enforce any other rights




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	 	 	or security or claim payment from any person before claiming from that Additional Guarantor
under this Clause 27. This waiver applies irrespective of any law or any provision of a
Transaction Document to the contrary.






	27.6	 	Appropriations
	 
	 	 	Until all amounts which may be or become payable by the Borrowers under or in connection with
the Transaction Documents have been irrevocably paid in full, the Lenders (or the Security
Trustee on their behalf) may:






	 	27.6.1	 	refrain from applying or enforcing any other moneys, security or rights held or
received by the Lender (or any trustee or agent on its behalf) in respect of those
amounts, or apply and enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Additional Guarantor shall be entitled to the
benefit of the same; and
	 
	 	27.6.2	 	hold in an interest-bearing suspense account any moneys received from any Additional
Guarantor or on account of any Additional Guarantor liability under this Clause 27.






	27.7	 	Deferral of Additional Guarantors’ rights
	 
	 	 	Until all amounts which may be or become payable by the Borrowers under or in connection with
the Finance Documents have been irrevocably paid in full and unless the Lender otherwise
directs, no Additional Guarantor will exercise any rights which it may have by reason of
performance by it of its obligations under the Transaction Documents:






	 	27.7.1	 	to be indemnified by an Borrower;
	 
	 	27.7.2	 	to claim any contribution from any other guarantor of any Borrower’s obligations under
the Finance Documents; and/or
	 
	 	27.7.3	 	to take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Lender under the Finance Documents or of any other
guarantee or security taken pursuant to, or in connection with, the Transaction
Documents by the Lenders.






	 	 	If an Additional Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent necessary to enable
all amounts which may be or become payable to the Lenders by the Borrowers under or in
connection with the Transaction Documents to be repaid in full on trust for the Lenders and
shall promptly pay or transfer the same to the Lender or as the Lender may direct for
application in accordance with the Transaction Documents.
	 
	27.8	 	Release of Additional Guarantor’s right of contribution
	 
	 	 	If any Additional Guarantor (a “Retiring Additional Guarantor”) ceases to be an Additional
Guarantor in accordance with the terms of the Transaction Documents for the purpose of any
sale or other disposal of that Additional Guarantor then on the date such Additional
Guarantor ceases to be an Additional Guarantor:




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	 	27.8.1	 	that Retiring Additional Guarantor is released by the other Additional Guarantor and
Guarantors from any liability (whether past, present or future and whether actual or
contingent) to make a contribution to any other Additional Guarantor or Guarantor
arising by reason of the performance by such other Additional Guarantor or Guarantor of
its obligations under the Transaction Documents; and
	 
	 	27.8.2	 	each Additional Guarantor and each Guarantor waives any rights it may have by reason
of the performance of its obligations under the Transaction Documents to take the
benefit (in whole or in part and whether by way of subrogation or otherwise) of any
rights of the Lenders under any Transaction Document or of any other security taken
pursuant to, or in connection with, any Transaction Document where such rights or
security are granted by or in relation to the assets of the Retiring Additional
Guarantor.






	27.9	 	Additional security
	 
	 	 	This guarantee is in addition to and is not in any way prejudiced by any other guarantee or
security now or subsequently held by the Lenders.
	 
	27.10	 	Limit on Liability
	 
	 	 	The obligations of the Additional Guarantors to make payment under this Additional Guarantee
at any time shall be limited to the extent that the Additional Guarantors have amounts
available to them on a Payment Date (as that term is defined in the Combined Facility) to
make such payments as described in Section 2.10(viii) (Settlement Procedures) of the Combined
Facility on such date. To the extent that such funds are insufficient to discharge in full
each Additional Guarantor’s liability under this Clause 27, then such unpaid amount shall
remain outstanding and due from the Additional Guarantors for the purpose of making any
further demand under the Additional Guarantee, subject always to the terms of the Combined
Facility.
	 
	28.	 	SET-OFF
	 
	 	 	In addition to any rights and remedies of the Lenders provided by this Agreement and by law,
each Lender shall have the right, without prior notice to the Borrowers, and such notice
being expressly waived by the Borrowers to the extent permitted by Applicable Law, upon any
amount becoming due and payable by a Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such amount any and
all deposits of the relevant Borrower (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or unmatured, at any
time held or owing by the relevant Lender or any Affiliate thereof to or for the credit or
the account of the relevant Borrower, as applicable. Each Lender agrees promptly to notify
the relevant Borrower after any such set-off and application made by the Lender provided that
the failure to give such notice shall not affect the validity of such set-off and
application.




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	29.	 	NOTICES
	 
	 	 	All notices, requests and demands to or upon the respective parties hereto to be effective
shall be in each case, addressed as follows in the case of the Borrowers, the Servicer, the
Security Trustee and the Administrative Agent, and as set out in ANNEX A in the case of the
Lenders, or to such other address as may be hereafter notified by the respective parties
hereto:
	 
	 	 	The Borrowers and Guarantors
	 
	 	 	CS Europe Finance Limited

c/o CapitalSource Europe Limited

105 Victoria Street, London SW1E 6QT

Attention: Adam Scarrott, Secretary

Telecopier: +44 (0)845 257 6601

Telephone: +44 (0)845 257 6629
	 
	 	 	with a copy to:
	 
	 	 	CapitalSource Finance LLC

4445 Willard Avenue

Chevy Chase, MD 20815

USA
	 
	 	 	Attention: Chief Legal Officer

Facsimile: +(301) 841 2380

Telephone: +(301) 841 2732
	 
	 	 	and to:
	 
	 	 	CapitalSource Finance LLC

4445 Willard Avenue

Chevy Chase, MD 20815

USA
	 
	 	 	Attention: Treasurer and Vice President

Facsimile: +(301) 841 2307

Telephone: +(301) 841 2795
	 
	 	 	CS UK Finance Limited

c/o CapitalSource Europe Limited

105 Victoria Street, London SW1E 6QT

Attention: Adam Scarrott, Secretary

Telecopier: +44 (0)845 257 6601

Telephone: +44 (0)845 257 6629
	 
	 	 	with a copy to:
	 
	 	 	CapitalSource Finance LLC

4445 Willard Avenue




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	 	 	Chevy Chase, MD 20815

USA






	 	 	Attention: Chief Legal Officer

Facsimile: +(301) 841 2380

Telephone: +(301) 841 2732
	 
	 	 	and to:
	 
	 	 	The Additional Guarantors
	 
	 	 	CapitalSource Finance LLC

4445 Willard Avenue

Chevy Chase, MD 20815

USA
	 
	 	 	Attention: Treasurer and Vice President

Facsimile: +(301) 841 2307

Telephone: +(301) 841 2795
	 
	 	 	CapitalSource Finance LLC
	 
	 	 	c/o CapitalSource Finance LLC

4445 Willard Avenue

Chevy Chase, MD 20815

USA
	 
	 	 	Attention: Chief Legal Officer

Facsimile: +(301) 841 2380

Telephone: +(301) 841 2732
	 
	 	 	and to:
	 
	 	 	CapitalSource Finance LLC

4445 Willard Avenue

Chevy Chase, MD 20815

USA
	 
	 	 	Attention: Treasurer and Vice President

Facsimile: +(301) 841 2307

Telephone: +(301) 841 2795
	 
	 	 	CapitalSource Funding III LLC

4445 Willard Avenue, 12th Floor

Chevy Chase, Maryland 20815

Attention: Treasury

Facsimile No.: (301) 841-2307

Confirmation No.: (301) 841-2779





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	 	 	CSE QRS Funding I LLC

4445 Willard Avenue, 12th Floor

Chevy Chase, Maryland 20815

Attention: Treasurer

Facsimile No.: (301) 841-2375

Confirmation No.:(301) 841-2731
	 
	 	 	The Swingline Lenders
	 
	 	 	Wachovia Bank, N.A., London Branch

3 Bishopsgate

London EC2N 3AB

England

Attention: Michelle Clark/Ian King

Telecopier: +44 20 7929 4645

Telephone: +44 20 7956 4310/4316

e-mail: loanadmin.london@wachovia.com
	 
	 	 	The Administrative Agent
	 
	 	 	Wachovia Bank, National Association

1525 West WT Harris Boulevard

NC0600

Charlotte, North Carolina 28262

Attention: Syndication Agency Services

Telecopier: +(704) 590-2782

Telephone: +(704) 590-2733

Email: scp.mmloans@wachovia.com
	 
	 	 	With a copy to:
	 
	 	 	Wachovia Bank, N.A.

301 South College Street

NC0600

Charlotte, NC 28288-0600

Attention: Raj Shah

Telecopier: +(704) 715-0067

Telephone: +(704) 374-6230
	 
	 	 	The Lead Arranger and Sole Bookrunner
	 
	 	 	Wachovia Securities International Ltd.

3 Bishopsgate

London EC2N 3AB

England

Attention: Michelle Clark/Jonathan Lloyd Gane




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	 	 	Telecopier: +44 20 7929 4645

Telephone: +44 20 7956 4310/4316
	 
	 	 	With a copy to:
	 
	 	 	Wachovia Bank, N.A.

301 South College Street

NC0600

Charlotte, NC 28288-0600

Attention: Raj Shah

Telecopier: +(704) 715-0067

Telephone: +(704) 374-6230
	 
	 	 	provided that a notice given by a Borrower pursuant to this Clause shall be effective only
upon receipt thereof by the Administrative Agent and notices given pursuant to this Clause
shall only be effective upon receipt in the case of any notice sent by mail.
	 
	29.1	 	Addresses
	 
	 	 	The address and fax number (and the department or officer, if any, for whose attention the
communication is to be made) of each party for any communication or document to be made or
delivered under or in connection with the Transaction Documents is:






	 	29.1.1	 	in the case of a Borrower, that identified with its name above;
	 
	 	29.1.2	 	in the case of each Lender, that notified in writing to the Administrative Agent on or
prior to the date on which it becomes a party; and
	 
	 	29.1.3	 	in the case of the Administrative Agent, that identified with its name above,






	 	 	or any substitute address or fax number or department or officer as the party may notify to
the Administrative Agent (or the Administrative Agent may notify to the other Parties, if a
change is made by the Administrative Agent) by not less than five Business Days’ notice.
	 
	29.2	 	Delivery






	 	29.2.1	 	Any communication or document made or delivered by one person to another under or in
connection with the Transaction Documents will only be effective:






	 	(a)	 	if by way of fax, when received in legible form; or
	 
	 	(b)	 	if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the post postage prepaid
in an envelope addressed to it at that address,






	 	 	 	and, if a particular department or officer is specified as part of its address
details provided under Clause 29, if addressed to that department or officer.
	 
	 	29.2.2	 	Any communication or document to be made or delivered to the Administrative Agent will
be effective only when actually received by the Administrative Agent and then only if it
is expressly marked for the attention




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	 	 	 	of the department or officer identified with the Administrative Agent’s signature
below (or any substitute department or officer as the Administrative Agent shall
specify for this purpose).






	 	29.2.3	 	All notices from or to a Borrower shall be sent through the Administrative Agent.






	29.3	 	Notification of address and fax number
	 
	 	 	Promptly upon receipt of notification of an address and fax number or change of address or
fax number pursuant to Clause 29 or changing its own address or fax number, the
Administrative Agent shall notify the other Parties.
	 
	29.4	 	Electronic communication






	 	29.4.1	 	Any communication to be made between the Administrative Agent and a Lender under or in
connection with the Transaction Documents may be made by electronic mail or other
electronic means, if the Administrative Agent and the relevant Lender:






	 	(a)	 	agree that, unless and until notified to the contrary, this is
to be an accepted form of communication;
	 
	 	(b)	 	notify each other in writing of their electronic mail address
and/or any other information required to enable the sending and receipt of
information by that means; and
	 
	 	(c)	 	notify each other of any change to their address or any other
such information supplied by them.






	 	29.4.2	 	Any electronic communication made between the Administrative Agent and a Lender will
be effective only when actually received in readable form and in the case of any
electronic communication made by a Lender to the Administrative Agent only if it is
addressed in such a manner as the Administrative Agent shall specify for this purpose.






	29.5	 	English language






	 	29.5.1	 	Any notice given under or in connection with any Transaction Document must be in
English.
	 
	 	29.5.2	 	All other documents provided under or in connection with any Transaction Document must
be:






	 	(a)	 	in English; or
	 
	 	(b)	 	if not in English, and if so required by the Administrative
Agent, accompanied by a certified English translation and, in this case, the
English translation will prevail unless the document is a constitutional,
statutory or other official document.




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	30.	 	CALCULATIONS AND CERTIFICATES
	 
	30.1	 	Accounts
	 
	 	 	In any litigation or arbitration proceedings arising out of or in connection with a
Transaction Document, the entries made in the accounts maintained by a Secured Party are
prima facie evidence of the matters to which they relate.
	 
	30.2	 	Certificates and Determinations
	 
	 	 	Any certification or determination by a Secured Party of a rate or amount under any
Transaction Document is, in the absence of manifest error, conclusive evidence of the matters
to which it relates.
	 
	31.	 	PARTIAL INVALIDITY
	 
	 	 	If, at any time, any provision of the Transaction Documents is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction will in any way be
affected or impaired.
	 
	32.	 	REMEDIES AND WAIVERS
	 
	 	 	No failure to exercise, nor any delay in exercising, on the part of any Secured Party, any
right or remedy under the Transaction Documents shall operate as a waiver, nor shall any
single or partial exercise of any right or remedy prevent any further or other exercise or
the exercise of any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies provided by law.
	 
	33.	 	AMENDMENTS AND WAIVERS
	 
	33.1	 	Except as provided in this Clause 33.1, no amendment, waiver or other modification (any such
amendment, waiver or other modification being hereinafter referred to in this Clause 33.1 as a
“modification”) of any provision of this Agreement shall be effective without the written
agreement of the relevant Borrower(s), the Servicer, the Administrative Agent, and the
Required Lenders; provided that any modification of this Agreement that is solely for the
purpose of adding a Lender may be effected with the written consent of (x) the Administrative
Agent at any time when the Aggregate Commitments of the Conduit Lenders and Institutional
Lenders shall be less than or equal to €750,000,000 (after giving effect to the proposed
Commitment of the Lender to be added), and (y) each Lender Agent at any time when the
Aggregate Commitments of the Conduit Lenders and Institutional Lenders shall be greater than
€750,000,000 (after giving effect to the proposed Commitment of the Lender to be added);
and provided further that any modification to this Agreement that would (i) reduce or impair
collections or the payment of interest, principal or fees to the Lenders, (ii) modify any
provisions of this Agreement relating to the timing of payments required to be made by a
Borrower or the application of the proceeds of such payments, including, without limitation,
any provisions of Clause 8, (iii) release any Collateral from the Security (iv) increase the
Facility Amount, any Lender’s Commitment or extend the Termination Date or (v) make any
modification to the




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	 	 	definitions of “Advance”, “Advances Outstanding”, “Alternative Currency”, “Approved Country”,
“Overcollateralization Ratio”, “Minimum Overcollateralization Ratio”, “Concentration Limits”,
“Eligible Loan”, “Eligible Obligor”, “Required Lenders”, “Facility Amount”, “Permitted
Transfers”, “Credit and Collection Policy”, “Pro Rata Share”, or “Event of Default” (each of
the modifications described in (i) through (v) of this proviso, a “Material Amendment”),
shall not be effective without the written agreement of the Borrowers, the Administrative
Agent and each of the Lenders;
	 
	33.2	 	No amendment, waiver or other modification having a material adverse effect on the rights or
obligations of the Security Trustee or the Successor Servicer shall be effective against such
person without the written agreement of such person. The Borrowers or the Servicer on their
behalf will deliver a copy of all waivers and amendments to the Security Trustee.
	 
	33.3	 	Replacement of Lenders






	 	33.3.1	 	If at any time any Lender becomes a Non-Consenting Lender (as defined in paragraph
33.3.3 below) then any Borrower may on 5 Business Days’ prior written notice to the
Administrative Agent and that Lender, replace such Lender by requiring such Lender to
(and such Lender shall) transfer pursuant to Clause 21.1 all (and not part only) of its
rights and obligations under this Agreement to a Lender or other bank, financial
institution, trust, fund or other entity (a “Replacement Lender”) selected by the
relevant Borrower, and which is acceptable to the Administrative Agent (acting
reasonably), and which confirms its willingness to assume and does assume all the
obligations of the transferring Lender (including the assumption of the transferring
Lender’s participations on the same basis as the transferring Lender) for a purchase
price in cash payable at the time of transfer equal to the outstanding principal amount
of such Lender’s participation in the outstanding Utilisations and all accrued interest,
Breakage Costs and other amounts payable in relation thereto under the Transaction
Documents.
	 
	 	33.3.2	 	The replacement of a Lender pursuant to this Clause shall be subject to the following
conditions:






	 	(a)	 	the Borrowers shall have no right to replace the Administrative
Agent;
	 
	 	(b)	 	neither the Administrative Agent nor the Non-Consenting Lender
shall have any obligation to the Borrowers to find a Replacement Lender;
	 
	 	(c)	 	in the event of a replacement of a Non-Consenting Lender such
replacement must take place no later than 45 days after the date the
Non-Consenting Lender notifies the Borrowers and the Administrative Agent of
its failure or refusal to agree to any consent, waiver or amendment to the
Finance Documents requested by a Borrower; and
	 
	 	(d)	 	in no event shall the Lender replaced under this paragraph
33.3.2 be required to pay or surrender to such Replacement Lender any of the
fees received by such Lender pursuant to the Transaction Documents.




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	 	33.3.3	 	In the event that:






	 	(a)	 	a Borrower or the Administrative Agent (at the request of a
Borrower) has requested the Lenders to consent to a waiver or amendment of any
provisions of the Transaction Documents;
	 
	 	(b)	 	the waiver or amendment in question requires the consent of all
the Lenders; and
	 
	 	(c)	 	Lenders whose Commitments aggregate more than 66 2/3 per cent.
of the Total Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 66 2/3 per cent. of the Commitments prior to that
reduction) have consented to such waiver or amendment,






	 	 	 	then any Lender who does not and continues not to agree to such waiver or amendment
shall be deemed a Non-Consenting Lender.






	33.4	 	Decisions by Required Lenders






	 	33.4.1	 	If, within 15 Business Days (or such longer period as the relevant Borrower and the
Administrative Agent may agree in relation to any particular request) of a written
request and acknowledged receipt in relation to a consent, waiver or amendment which
requires the approval of the Required Lenders:






	 	(a)	 	the Minimum Lenders have explicitly accepted or rejected that
request or explicitly abstain from accepting or rejecting that request; and
	 
	 	(b)	 	a Lender does not explicitly accept or reject that request or
explicitly abstain from accepting or rejecting that request,






	 	 	 	the Commitment and/or participation in the Loan of that Lender shall be treated as a
rejection of the relevant request when calculating whether the approval of the
Required Lenders has been obtained.
	 
	 	33.4.2	 	In this clause, Minimum Lenders means at any time Lenders who are entitled to vote as
a Required Lender:






	 	(a)	 	the aggregate of whose shares in the outstanding Loans and
undrawn Commitments then represents 50 per cent. or more of the aggregate of
the outstanding Loan;
	 
	 	(b)	 	if there is no Loan then outstanding, whose undrawn Commitments
then aggregate 50 per cent. or more of the Total Commitments; or
	 
	 	(c)	 	if there is no Loan then outstanding and the Total Commitment
have been reduced to zero, whose Commitments aggregated 50 per cent. or more of
the Total Commitments immediately before the reduction.






	33.5	 	If a Lender has by notice to the Administrative Agent divided its Commitment into separate
amounts to reflect participation or similar arrangements, and required such separate amounts
to be counted separately, that division will be effective for the purposes of determining the
Minimum Lenders.




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	33.6	 	Liabilities to Obligors
	 
	 	 	No obligation or liability to any Obligor under any of the Loans is intended to be assumed by
the Administrative Agent or the other Secured Parties under or as a result of this Agreement
and the transactions contemplated hereby.
	 
	33.7	 	Binding Effect
	 
	 	 	This Agreement shall be binding upon and inure to the benefit of each Borrower, the
Administrative Agent, the other Secured Parties and their respective Successors and permitted
assigns.
	 
	33.8	 	Term of this Agreement
	 
	 	 	This Agreement, including, without limitation, the obligation of each Borrower to observe its
covenants set out herein shall remain in full force and effect until the Collection Date;
provided that the rights and remedies with respect to any breach of any representation and
warranty made or deemed made by a Borrower herein and the indemnification and payment
provisions herein shall be continuing and shall survive any termination of this Agreement.
	 
	33.9	 	Costs, Expenses and Taxes






	 	33.9.1	 	In addition to the rights of indemnification granted to the Administrative Agent, the
other Secured Parties, the Successor Servicer and the Security Trustee and its or their
Affiliates and officers, directors, employees and agents thereof under this Agreement,
each Borrower agrees to pay on demand all reasonable costs and expenses of the
Administrative Agent, the Security Trustee and the other Secured Parties incurred in
connection with the preparation, execution, delivery, administration (including periodic
auditing and expenses for travel and lodging), 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, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent, the
Security Trustee and the other Secured Parties with respect thereto and with respect to
advising the Administrative Agent, the Security Trustee and the other Secured Parties as
to their respective rights and remedies under this Agreement and the other documents to
be delivered hereunder or in connection herewith and all costs and expenses, if any
(including reasonable counsel fees and expenses), incurred by the Administrative Agent,
the Security Trustee or the other Secured Parties in connection with the enforcement of
this Agreement and the other documents to be delivered hereunder or in connection
herewith.
	 
	 	33.9.2	 	The Borrowers 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, with respect to any Conduit Lender, any agreement or other document providing
liquidity support, credit enhancement or other similar support in connection with this
Agreement or the funding or maintenance of Advances hereunder.




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	 	33.9.3	 	The Borrowers shall pay within 5 Business days of demand all other costs, expenses and
taxes (excluding income taxes), including, without limitation, all reasonable costs and
expenses incurred by the Administrative Agent, the Security Trustee and each Lender
Agent in connection with periodic audits of the Borrowers’ (subject to the limitations
set out in this Agreement) or the Servicer’s books and records (subject to the
limitations set out in the Servicing Agreement), the cost of rating each Conduit
Lender’s commercial paper by independent financial rating agencies as agreed by the
relevant Borrower(s) and such Conduit Lender, which are incurred as a result of the
execution of the Transaction Documents, and the amount of any taxes and insurance due
and unpaid by an Obligor with respect to any Loan or Related Property (together, the
“Other Costs”).






	33.10	 	Limited Recourse and No Proceedings






	 	33.10.1	 	In the event of enforcement of the Transaction Documents, recourse by the Secured
Parties in respect of the Transaction Documents shall be limited to the aggregate of (a)
the value at such time of the assets of the Borrowers in respect of which they have
granted security under the Transaction Documents, (b) the value of the shares of the
Borrowers which are the object of the Share Pledge Agreement(s) together with (c) any
other rights against the Servicer under the Transaction Documents and (d) any assets of
the Additional Guarantors which are Collateral for their obligations under the Combined
Facility and/or the Additional Guarantees. If, after realising and recovering the
amounts referred to in (a), (b), (c) and (d), the Security Trustee certifies that in its
sole opinion there is no reasonable likelihood of there being any further realisations
or recoveries in respect of the Secured Obligations (whether arising from the Security
and the Collateral or otherwise) which would be available to pay amounts outstanding in
respect of the Transaction Documents, the Secured Parties shall have no further claim in
respect of such unpaid amounts which shall be deemed to have been discharged in full.
	 
	 	33.10.2	 	Each of the parties hereto hereby agrees that it will not institute against, or join
any other Person in instituting against, any Conduit Lender any Insolvency Proceeding so
long as any commercial paper and other rated obligations issued by such Conduit Lender
shall be outstanding and there shall not have elapsed one year and one day (or such
longer preference period as shall then be in effect) since the last day on which any
such rated obligations shall have been outstanding.
	 
	 	33.10.3	 	Each of the parties hereto (other than the Administrative Agent) hereby agrees that
it will not institute against, or join any other Person in instituting against a
Borrower any Insolvency Proceeding so long as there shall not have elapsed one year and
one day (or such longer preference period as shall then be in effect) since the
Collection Date.






	33.11	 	Recourse Against Certain Parties






	 	33.11.1	 	Save as provided herein and/or in the Transaction Documents, no recourse under any
obligation, covenant or agreement of a Borrower contained in this Agreement shall be had
against any member, shareholder, officer, director,




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	 	 	 	trustee, manager or administrator of such Borrower in their capacity as such member,
shareholder, officer, director, trustee, manager or administrator, 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 this
Agreement is solely a corporate obligation of each Borrower, and that no personal
liability whatever shall attach to or be incurred by any member, shareholder,
officer, director, trustee, manager or administrator of a Borrower, as such, or any
of them under or by reason of any of the obligations, covenants or agreements of
such Borrower contained in this Agreement, or implied therefrom, and that any and
all personal liability for breaches by a Borrower of any of such obligations,
covenants or agreements, either at common law or at equity, or by statute or
constitution, of every such member, shareholder, officer, director, trustee, manager
or administrator is hereby expressly waived as a condition of and in consideration
for the execution of this Agreement.
	 
	 	33.11.2	 	The agreements of the Administrative Agent, the Security Trustee, any Lender Agent,
any Lender, any other Secured Party and the Successor Servicer contained in this
Agreement or any other agreement, instrument and document entered into by it pursuant
hereto or in connection herewith are, in each case, solely the corporate obligations of
such Person, and no personal liability whatsoever shall attach to or be incurred by any
incorporator, shareholder, affiliate, officer, employee or director thereof under or by
reason of any of the obligations, covenants or agreements of such Person contained in
this Agreement or in any other such instruments, documents or agreements, or that are
implied therefrom, and any and all personal liability of such Person and each
incorporator, shareholder, affiliate, officer, employee or director thereof for breaches
by such Person 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.
	 
	 	33.11.3	 	Notwithstanding anything to the contrary contained herein, the obligations of each
Conduit Lender under this Agreement are solely the obligations of such Conduit Lender
and shall be payable at such time as funds are received by or are available to such
Conduit Lender in excess of funds necessary to pay in full all outstanding commercial
paper or other rated indebtedness of such Conduit Lender and, to the extent funds are
not available to pay such obligations, the claims relating thereto shall not constitute
a claim against such Conduit Lender but shall continue to accrue. Each party hereto
agrees that the payment of any claim of any such party shall be subordinated to the
payment in full of all commercial paper and other rated indebtedness of such Conduit
Lender.
	 
	 	33.11.4	 	The provisions of this Clause 33 shall survive the termination of this Agreement.






	33.12	 	Protection of Security Interest; Appointment of Agent as Attorney-in-Fact






	 	33.12.1	 	The Lenders shall be entitled to convert the floating charge created by the
Transaction Documents into a fixed charge with respect to all or any of the Borrower’s
charged assets at any time if (a) a Default or Event of Default has




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	 	 	 	occurred and is continuing unwaived or (b) the Security Trustee considers in good
faith those assets to be in danger of being seized or sold by a third party under
any form of distress, attachment, execution or other legal process or to be
otherwise in jeopardy. Prior to the occurrence of any event referred to in (a) or
(b) above, a Borrower shall not be required to notify any underlying Obligor of the
security interest granted by such Borrower in relation to any Loan of such Obligor
pursuant to this Agreement.
	 
	 	33.12.2	 	Each Borrower shall, or shall cause the Servicer to, 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 Security
Trustee, 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 Security Trustee, as
agent for the Secured Parties, hereunder to all property comprising the Collateral. Each
Borrower shall deliver or, shall cause the Servicer to deliver, to the Security Trustee
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. Each Borrower shall cooperate fully in connection with the obligations set out
above and will execute any and all documents reasonably required to fulfil the intent of
this Clause 33.12.
	 
	 	33.12.3	 	Each of the Borrowers agrees that from time to time, at its expense, it will promptly
execute and deliver all instruments and documents, and take all actions, that may
reasonably be necessary or desirable, or that the Security Trustee may reasonably
request, to perfect (where perfection is required in accordance with the Transaction
Documents), protect or more fully evidence the security interest Granted to the Security
Trustee under and in accordance with the Security Documents, as agent for the Secured
Parties, in the Collateral, or to enable the Security Trustee or the other Secured
Parties to exercise and enforce their rights and remedies hereunder.
	 
	 	33.12.4	 	If a Borrower fails to perform any of its obligations hereunder, or a Borrower or the
Servicer fails to perform any of its obligations under the Servicing Agreement, after
five Business Days’ notice from the Administrative Agent or any other Secured Party, the
Security Trustee and any other Secured Party may (but shall not be required to) perform,
or cause performance of, such obligation; and the Security Trustee’s or Secured Party’s
reasonable costs and expenses incurred in connection therewith shall be payable by the
relevant Borrower(s) (if the Servicer that fails to so perform is a Borrower or an
Affiliate thereof) as provided hereunder, as applicable. Each of the Borrowers
irrevocably authorises each of the Administrative Agent and the Security Trustee and
irrevocably and by way of security for the performance of its obligations under the
Transaction Documents appoints each of the Administrative Agent and the Security Trustee
as its attorney-in-fact to act on behalf of such Borrower to execute on behalf of such
Borrower such deeds and documents, to carry out such acts and to make such filings,
notifications or registrations as are necessary or desirable in the Administrative
Agent’s and




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	 	 	 	the Security Trustee’s sole discretion to perfect (where perfection is required in
accordance with the Transaction Documents) and to maintain the perfection (as
applicable) and priority of the interest of the Secured Parties in the Collateral.






	33.13	 	Confidentiality






	 	33.13.1	 	Each Party shall maintain and shall cause each of its employees and officers to
maintain the confidentiality of this Agreement and the other confidential proprietary
information with respect to the other parties 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 under a duty of confidence to its external
accountants, investigators, auditors, lawyers, investors, potential investors or other
agents engaged by such party in connection with any due diligence or advice or
comparable activities with respect to the transactions and Collateral contemplated
herein and the agents of such Persons, (ii) disclose the existence of this Agreement,
but not the financial terms thereof and (iii) 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 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.
	 
	 	33.13.2	 	Anything herein to the contrary notwithstanding, each of the Borrowers hereby
consents to the disclosure of any non-public information with respect to it for use in
connection with the transactions contemplated herein and in the Transaction Documents
(i) to the Administrative Agent or the other Secured Parties by each other, (ii) by the
Administrative Agent or the other Secured Parties to any prospective or actual New
Lender or Conduit Assignee or participant of any of them or (iii) by the Administrative
Agent or the Lenders to any Rating Agency, commercial paper dealer or provider of a
surety, guarantee or credit or liquidity enhancement to a Lender and to any officers,
directors, employees, outside accountants and lawyers of any of the foregoing, provided
that each such Person is informed of the confidential nature of such information and
agrees to be bound hereby or provides a legally binding undertaking containing
substantially similar restrictions as set out in this Clause 33.13. In addition, the
Lenders, the Administrative Agent and each Borrower may disclose any such non-public
information pursuant to any law, rule, regulation, direction, request or order of any
judicial, administrative or regulatory authority or proceedings.
	 
	 	33.13.3	 	Each Party agrees that it shall not (and shall not permit any of its Affiliates to)
issue any news release or make any public announcement or public disclosure pertaining
to the transactions contemplated by this Agreement and the other Transaction Documents
without the prior written consent of the Administrative Agent (which consent shall not
be unreasonably withheld) unless such news release or public announcement or disclosure
is required by law or the rules and regulations of an exchange or by the instructions of
a supervisory authority with whose instructions such Party is required or is accustomed
to




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	 	 	 	comply. A Party may, however, disclose the general terms of the transactions
contemplated by this Agreement and the other Transaction Documents to regulators,
trade creditors, suppliers and other similarly situated Persons so long as such
disclosure is not in the form of a news release or public announcement.






	33.14	 	Execution in Counterparts; Severability; Integration
	 
	 	 	This Agreement may be executed in any number of counterparts and by different parties hereto
in separate counterparts, 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 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 to the Administrative Agent and the Lenders.
	 
	33.15	 	Waiver of Setoff
	 
	 	 	Each of the parties hereto (other than each Conduit Lender) hereby waives any right of setoff
it may have or to which it may be entitled under this Agreement from time to time against any
Conduit Lender or its assets.
	 
	33.16	 	Non-Confidentiality of Tax Treatment
	 
	 	 	All parties hereto agree that each of them and each of their employees, representatives, and
other agents may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure of the transactions under the Transaction Documents and all
materials of any kind (including, without limitation, opinions or other tax analyses) that
are provided to any of them relating to such tax treatment and tax structure. “Tax treatment”
and “tax structure” shall have the same meaning as such terms have for purposes of U.S.
Treasury Regulation Section 1.6011-4; provided that with respect to any document or similar
item that in either case contains information concerning the tax treatment or tax structure
of the transactions under the Transaction Documents as well as other information, the
provisions of this Clause 33.16 shall only apply to such portions of the document or similar
item that relate to the tax treatment or tax structure of the transactions contemplated
hereby.
	 
	33.17	 	Conduit Lender as Institutional Lender
	 
	 	 	Notwithstanding anything herein to the contrary, a Conduit Lender may execute this Agreement
as both a Conduit Lender and an Institutional Lender and, in such event, such Conduit Lender
shall have the rights and obligations (without duplication) of both a Conduit Lender and an
Institutional Lender set out herein.
	 
	33.18	 	Institutional Lenders and Conduit Lenders




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	 	33.18.1	 	Notwithstanding anything herein to the contrary, an Institutional Lender may execute
this Agreement without having a related Conduit Lender.
	 
	 	33.18.2	 	Notwithstanding anything herein to the contrary, a Conduit Lender may not execute or
become party to this Agreement without a related Institutional Lender concurrently
executing or becoming party to this Agreement.






	33.19	 	Committed Conduit Lenders
	 
	 	 	Notwithstanding anything herein to the contrary, a Committed Conduit Lender shall have the
rights and obligations of a Conduit Lender for all purposes hereunder, save that, for
purposes of Clause 4.1, a Committed Conduit Lender shall have the rights and obligations of
an Institutional Lender.
	 
	33.20	 	Judgment Currency
	 
	 	 	This is an international loan transaction in which the specification of Euro or any
Alternative Currency, as the case may be (the “Specified Currency”), and payment in a
specified city or country of the Specified Currency (the “Specified Place”) is of the
essence, and the Specified Currency shall be the currency of account in all events relating
to Advances denominated in the Specified Currency. The payment obligations of the Borrowers
under this Agreement shall not be discharged or satisfied by an amount paid in another
currency or in another place, whether pursuant to a judgment or otherwise, to the extent that
the amount so paid on conversion to the Specified Currency and transfer to the Specified
Place under normal banking procedures does not yield the amount of the Specified Currency at
the Specified Place due hereunder. If for the purpose of obtaining judgment in any court it
is necessary to convert a sum due hereunder in the Specified Currency into another currency
(the “Second Currency”), the rate of exchange that shall be applied shall be the rate at
which in accordance with normal banking procedures the Administrative Agent could purchase
the Specified Currency with the Second Currency on the Business Day next preceding the day on
which such judgment is rendered. The obligation of a Borrower in respect of any such sum due
from it to the Administrative Agent, any Lender or any other Person hereunder or under any
other Transaction Document (in this Clause 33.20 called an “Entitled Person”) shall,
notwithstanding the rate of exchange actually applied in rendering such judgment, be
discharged only to the extent that on the Business Day following receipt by such Entitled
Person of any sum adjudged to be due hereunder in the Second Currency such Entitled Person
may in accordance with normal banking procedures purchase and transfer to the Specified Place
the Specified Currency with the amount of the Second Currency so adjudged to be due; and each
of the Borrowers hereby, as a separate obligation and notwithstanding any such judgment,
agrees to indemnify such Entitled Person against, and to pay such Entitled Person on demand,
in the Specified Currency, the amount (if any) by which the sum originally due to such
Entitled Person in the Specified Currency hereunder exceeds the amount of the Specified
Currency so purchased and transferred.
	 
	34.	 	COUNTERPARTS
	 
	 	 	This Agreement may be executed in any number of counterparts, and this has the same effect as
if the signatures on the counterparts were on a single copy of the Agreement.




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	35.	 	GOVERNING LAW
	 
	 	 	This Agreement is governed by English law.
	 
	36.	 	ENFORCEMENT
	 
	36.1	 	Jurisdiction






	 	36.1.1	 	The courts of England have non-exclusive jurisdiction to settle any dispute arising
out of or in connection with this Agreement (including a dispute regarding the
existence, validity or termination of this Agreement) (a “Dispute”).
	 
	 	36.1.2	 	The parties agree that the courts of England are the most appropriate and convenient
courts to settle Disputes and accordingly no party will argue to the contrary.
	 
	 	36.1.3	 	This Clause 36.1 is for the benefit of the Secured Parties only. As a result, no
Secured Party shall be prevented from taking proceedings relating to a Dispute in any
other courts with jurisdiction. To the extent allowed by law, the Secured Parties may
take concurrent proceedings in any number of jurisdictions.






	37.	 	SERVICE OF PROCESS
	 
	 	 	Without prejudice to any other mode of service allowed under any relevant law, each party
(other than a party incorporated in England and Wales) irrevocably appoints the following
Person as its agent for service of process in relation to any proceedings before the English
courts in connection with any Transaction Document, and agrees that failure by an agent for
service of process to notify the relevant party of the process will not invalidate the
proceedings concerned.





	 	 	 
	The Lead Arranger and Sole
Bookrunner

	 	Wachovia Securities International Ltd.

Wachovia Bank, N.A., London Branch

3 Bishopsgate

London EC2N 3AB
	 
	 	 
	The Institutional Lenders

	 	As provided in ANNEX B
	 
	 	 
	The Conduit Lenders

	 	As provided in ANNEX B
	 
	 	 
	The Lender Agents

	 	As provided in ANNEX B
	 
	 	 
	The Swingline Lenders

	 	As provided n ANNEX B
	 
	 	 
	The Swingline Lender Agents

	 	As provided in ANNEX B
	 
	 	 
	The Administrative Agent and the
Security Trustee

	 	Wachovia Bank, N.A., London Branch

3 Bishopsgate

London EC2N 3AB






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This Agreement has been entered into and delivered on the date stated at the beginning of this
Agreement.





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SIGNATURES


Executed as an Agreement by:



	 	 	 
	/S/ JEFFREY A. LIPSON
	 	 
	 

Name: Jeffrey A. Lipson

	 	 
	Signed under power of attorney dated 28 May 2009
	 	 
	for and on behalf of CS EUROPE FINANCE LIMITED,
borrower and guarantor 
	 	 





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Executed as an Agreement by:



	 	 	 
	/S/ JEFFREY A. LIPSON
	 	 
	 

Name: Jeffrey A. Lipson

	 	 
	Signed under power of attorney dated 28 May 2009
	 	 
	for and on behalf of CS UK FINANCE LIMITED,
borrower and guarantor 
	 	 





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Executed as an Agreement by:



	 	 	 
	/S/ JEFFREY A. LIPSON
	 	 
	 

Name: Jeffrey A. Lipson

	 	 
	Authorised Signatory
	 	 
	for and on behalf of CAPITAL
SOURCE FUNDING III LLC, additional guarantor and additional subordinated creditor
	 	 





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Executed as an Agreement by:



	 	 	 
	/S/ JEFFREY A. LIPSON
	 	 
	 

Name: Jeffrey A. Lipson

	 	 
	Authorised Signatory
	 	 
	for and on behalf of CSE QRS FUNDING I LLC,
additional guarantor and additional subordinated creditor
	 	 





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Executed as an Agreement by:



	 	 	 
	/S/ RAJ SHAH
	 	 
	 

Name: Raj Shah

	 	 
	Managing Director
	 	 
	for and on behalf of WACHOVIA BANK, N.A.,
administrative agent and security trustee
	 	 





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Executed as an Agreement by:



	 	 	 
	/S/ RAJ SHAH
	 	 
	 

Name: Raj Shah

	 	 
	Managing Director
	 	 
	for and on behalf of WACHOVIA BANK, N.A.,
institutional lender
	 	 





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Executed as an Agreement by:




	 	 	 
	/S/ RAJ SHAH
	 	 
	 

Name: Raj Shah

	 	 
	Managing Director
	 	 
	for
and on behalf of WACHOVIA BANK, N.A., swingline lender
	 	 






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Executed as an Agreement by:




	 	 	 
	/S/ RAJ SHAH
	 	 
	 

Name: Raj Shah

	 	 
	Managing Director
	 	 
	for
and on behalf of WACHOVIA BANK, N.A., lender agent
	 	 






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Executed as an Agreement by:




	 	 	 
	/S/ RAJ SHAH
	 	 
	 

Name: Raj Shah

	 	 
	Managing Director
	 	 
	for
and on behalf of WACHOVIA BANK, N.A., swingline lender agent
	 	 






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Executed as an Agreement by:




	 	 	 
	/S/ JOHN HARVEY
	 	 
	 

Name: John Harvey

	 	 
	Director/Authorised Signatory for and on behalf of
	 	 
	WACHOVIA
SECURITIES INTERNATIONAL LTD., lead arranger and sole bookrunner
	 	 






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Executed as an Agreement by:




	 	 	 
	/S/ JEFFREY A. LIPSON
	 	 
	 

Name: Jeffrey A. Lipson

	 	 
	Authorised Signatory
	 	 
	for
and on behalf of CAPITALSOURCE FINANCE LLC, servicer
	 	 







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