Exhibit 10.5


 




 





 


AMENDED
AND RESTATED TRUST AGREEMENT


 


 


by and between


 


 


ARCC CLO
2006 LLC,


as the Trust Depositor


 


 


WILMINGTON
TRUST COMPANY,


as the Owner Trustee


 


 


and


 


 


U.S.
BANK NATIONAL ASSOCIATION,


as the Certificate
Registrar and Paying Agent


 


 


Dated as of July 7, 2006


 




 





 


ARCC Commercial Loan
Trust 2006 Notes, Series 2006


Class A-1A, Class A-1A
VFN, Class A-2B, Class A-2,A, Class A-2B,


Class B, Class C, Class D
and Class E Notes
















 


TABLE
OF CONTENTS


 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
  Other Terms

  	
   

  	
  2

  
	
  Section 1.03

  	
  Computation of Time Periods

  	
   

  	
  2

  
	
  Section 1.04

  	
  Interpretation

  	
   

  	
  3

  
	
  Section 1.05

  	
  References

  	
   

  	
  3

  
	
  Section 1.06

  	
  Calculations

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II ORGANIZATION

  	
   

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Name

  	
   

  	
  4

  
	
  Section 2.02

  	
  Office

  	
   

  	
  4

  
	
  Section 2.03

  	
  Purposes and Powers

  	
   

  	
  4

  
	
  Section 2.04

  	
  Appointment of Owner Trustee

  	
   

  	
  5

  
	
  Section 2.05

  	
  Initial Capital Contribution of Trust Estate

  	
   

  	
  5

  
	
  Section 2.06

  	
  Declaration of Trust

  	
   

  	
  6

  
	
  Section 2.07

  	
  Liability of the Certificateholders and the Owner
  Trust

  	
   

  	
  6

  
	
  Section 2.08

  	
  Title to Trust Property

  	
   

  	
  6

  
	
  Section 2.09

  	
  Situs of Trust

  	
   

  	
  6

  
	
  Section 2.10

  	
  Representations and Warranties of the Trust
  Depositor

  	
   

  	
  7

  
	
  Section 2.11

  	
  Federal Income Tax Allocations

  	
   

  	
  8

  
	
  Section 2.12

  	
  Covenant of Certificateholders

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III CERTIFICATES AND TRANSFER OF INTERESTS

  	
   

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Initial Ownership

  	
   

  	
  8

  
	
  Section 3.02

  	
  The Certificates

  	
   

  	
  8

  
	
  Section 3.03

  	
  Authentication of Certificates

  	
   

  	
  9

  
	
  Section 3.04

  	
  Registration of Transfer and Exchange of
  Certificates

  	
   

  	
  9

  
	
  Section 3.05

  	
  Mutilated, Destroyed, Lost or Stolen Certificates

  	
   

  	
  10

  
	
  Section 3.06

  	
  Persons Deemed Certificateholders

  	
   

  	
  10

  
	
  Section 3.07

  	
  Access to List of Certificateholders’ Names and
  Addresses

  	
   

  	
  10

  
	
  Section 3.08

  	
  Maintenance of Office or Agency

  	
   

  	
  11

  
	
  Section 3.09

  	
  Appointment of Paying Agent

  	
   

  	
  11

  
	
  Section 3.10

  	
  Transfer Restrictions

  	
   

  	
  12

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV ACTIONS BY OWNER TRUSTEE

  	
   

  	
  14

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Prior Notice to and Consent by Certificateholders
  with Respect to Certain Matters

  	
   

  	
  14

  
	
  Section 4.02

  	
  Action by Certificateholders with Respect to
  Bankruptcy

  	
   

  	
  15

  
	
  Section 4.03

  	
  Restrictions on Certificateholders’ Power

  	
   

  	
  16

  
	
  Section 4.04

  	
  Majority Control

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V APPLICATION OF TRUST FUNDS; CERTAIN DUTIES

  	
   

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Establishment of Trust Account

  	
   

  	
  16

  



 



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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.02

  	
  Application of Trust Funds

  	
   

  	
  17

  
	
  Section 5.03

  	
  Method of Payment

  	
   

  	
  17

  
	
  Section 5.04

  	
  No Segregation of Moneys; No Interest

  	
   

  	
  18

  
	
  Section 5.05

  	
  Accounting and Reports to the Certificateholders,
  the Internal Revenue Service and Others

  	
   

  	
  18

  
	
  Section 5.06

  	
  Signature on Returns; Tax Matters Partner

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI AUTHORITY AND DUTIES OF OWNER TRUSTEE

  	
   

  	
  19

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  General Authority

  	
   

  	
  19

  
	
  Section 6.02

  	
  General Duties

  	
   

  	
  19

  
	
  Section 6.03

  	
  Action upon Instruction

  	
   

  	
  20

  
	
  Section 6.04

  	
  No Duties Except as Specified in this Agreement or
  in Instructions

  	
   

  	
  21

  
	
  Section 6.05

  	
  Restrictions

  	
   

  	
  22

  
	
  Section 6.06

  	
  No Action Except Under Specified Documents or
  Instructions

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII CONCERNING THE OWNER TRUSTEE

  	
   

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Acceptance of Trusts and Duties

  	
   

  	
  22

  
	
  Section 7.02

  	
  Furnishing of Documents

  	
   

  	
  24

  
	
  Section 7.03

  	
  Representations and Warranties

  	
   

  	
  24

  
	
  Section 7.04

  	
  Reliance; Advice of Counsel

  	
   

  	
  25

  
	
  Section 7.05

  	
  Not Acting in Individual Capacity

  	
   

  	
  25

  
	
  Section 7.06

  	
  Owner Trustee Not Liable for Certificates or Loans

  	
   

  	
  25

  
	
  Section 7.07

  	
  Owner Trustee May Own Certificates and Notes

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII COMPENSATION OF OWNER TRUSTEE

  	
   

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Trust Company’s Fees and Expenses

  	
   

  	
  26

  
	
  Section 8.02

  	
  Indemnification

  	
   

  	
  26

  
	
  Section 8.03

  	
  Payments to the Owner Trustee

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX TERMINATION OF TRUST AGREEMENT

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Termination of Trust Agreement

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
  OWNER TRUSTEES

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Eligibility Requirements for Owner Trustee

  	
   

  	
  28

  
	
  Section 10.02

  	
  Resignation or Removal of Owner Trustee

  	
   

  	
  29

  
	
  Section 10.03

  	
  Successor Owner Trustee

  	
   

  	
  29

  
	
  Section 10.04

  	
  Merger or Consolidation of Owner Trustee

  	
   

  	
  30

  
	
  Section 10.05

  	
  Appointment of Co–Trustee or Separate Trustee

  	
   

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI MISCELLANEOUS

  	
   

  	
  32

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Supplements and Amendments

  	
   

  	
  32

  
	
  Section 11.02

  	
  No Legal Title to Trust Estate in Certificateholders

  	
   

  	
  33

  



 



 ii
 






 



 


	
  

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.03

  	
  Limitations on Rights of Others

  	
   

  	
  33

  
	
  Section 11.04

  	
  Notices

  	
   

  	
  33

  
	
  Section 11.05

  	
  Severability

  	
   

  	
  34

  
	
  Section 11.06

  	
  Separate Counterparts

  	
   

  	
  34

  
	
  Section 11.07

  	
  Successors and Assigns

  	
   

  	
  34

  
	
  Section 11.08

  	
  No Petition

  	
   

  	
  34

  
	
  Section 11.09

  	
  No Recourse

  	
   

  	
  35

  
	
  Section 11.10

  	
  Headings

  	
   

  	
  35

  
	
  Section 11.11

  	
  GOVERNING LAW

  	
   

  	
  35

  



 



 iii















 


TRUST
AGREEMENT


THIS AMENDED AND RESTATED
TRUST AGREEMENT (such agreement as amended, modified, waived, supplemented or
restated from time to time, the “Trust Agreement” or this “Agreement”),
dated as of July 7, 2006, is between ARCC CLO 2006 LLC, a Delaware limited
liability company, as trust depositor (the “Trust Depositor”),
WILMINGTON TRUST COMPANY, as trust company (in its individual capacity,
together with its successors and assigns, the “Trust Company”), and as
owner trustee (solely in such capacity, the “Owner Trustee”), and U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as certificate
registrar (together with its successors and assigns, the “Certificate
Registrar”) and as paying agent (together with its successors and assigns,
the “Paying Agent”).


R E C I T A L S


WHEREAS, the Trust
Depositor and the Owner Trustee established ARCC Commercial Loan Trust 2006
(the “Trust”), a Delaware statutory trust, pursuant to a Trust
Agreement, dated as of June 21, 2006 (the “Original Trust Agreement”),
and a Certificate of Trust filed with the Secretary of State on June 21, 2006;


WHEREAS, the Trust
Depositor and the Owner Trustee hereby desire to continue the Trust and to
amend and restate in its entirety the Original Trust Agreement;


WHEREAS,
the Owner Trustee is willing to continue to serve as trustee of the Trust; and


WHEREAS, each of the
Trust Depositor and the Owner Trustee consents to the amendment and restatement
of the Original Trust Agreement pursuant to this agreement.


NOW, THEREFORE, based
upon the above recitals, the mutual promises and agreements contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree to amend and restate the Original Trust Agreement as follows:


ARTICLE
I


DEFINITIONS


Section 1.01           Definitions.


For all purposes of this Trust Agreement, except as
otherwise expressly provided below or unless the context otherwise requires,
capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Sale and Servicing Agreement, dated as of July 7,
2006 (the “Sale and Servicing Agreement”), among ARCC CLO 2006 LLC, as
the Trust Depositor, Ares Capital Corporation, as the Originator and as the
Servicer, U.S. Bank National Association, as the Trustee and as the Collateral
Administrator, Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio
Services), as the Backup Servicer, and ARCC Commercial Loan Trust 2006, as the Issuer
and Wilmington Trust Company as the Owner Trustee.



   
 






 



 


“Bankruptcy Action” shall have the meaning
given to such term in Section 4.02 of this Agreement.


“Certificate Account” shall have the meaning
given to such term in Section 5.01 of this Trust Agreement.


“Certificate Register” shall mean the
certificate register established and maintained in accordance with this Trust
Agreement.


“Certificate of Trust” shall mean the
certificate of trust duly executed and filed with the Secretary of State on
June 21, 2006.


“Corporate Trust Office” means in the case of
Owner Trustee:  Wilmington Trust Company,
1100 North Market Street, Wilmington, Delaware 19801 and in the case of the
Trustee/Certificate Registrar:  U.S. Bank
National Association, One Federal Street, 3rd Floor, Boston, Massachusetts
02110, or at such other address as the Owner Trustee or the Trustee may
designate from time to time by notice to the Trust Depositor.


“Majority Certificateholders” means the Holder
or Holders of Certificates evidencing an aggregate Percentage Interest in
excess of 50%.


“Percentage Interest” shall mean (i) with
respect to a Certificate, the percentage set forth on the face thereof, and
(ii) with respect to a Class E Note, the fraction, expressed as a percentage,
the numerator of which is the original principal balance of such Class E Note
and the denominator of which is the aggregate original principal balance of all
Class E Notes.


“Secretary of State” shall have the meaning
given to such term in Section 2.02 of this Agreement.


“Trust Estate” shall mean all right, title and
interest of the Trust in and to the Loan Assets and other property and rights
assigned to the Trust pursuant to the Sale and Servicing Agreement, all funds
on deposit from time to time in the Transaction Accounts and the Certificate
Account, and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Transaction
Documents.


Section
1.02           Other Terms.


All accounting terms used
but not specifically defined herein shall be construed in accordance with
generally accepted accounting principles. The symbol “$” shall mean the lawful
currency of the United States of America. All terms used in Article 9 of the
UCC in the State of New York, and not specifically defined herein, are used
herein as defined in such Article 9.


Section
1.03           Computation of Time Periods.


Unless otherwise stated
in this Agreement, in the computation of a period of time from a specified date
to a later specified date, the word “from” means “from and including”, the
words



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“to” and “until” each mean “to but excluding”, and the
word “within” means “from and excluding a specified date and to and including a
later specified date”.


Section
1.04           Interpretation.


In
this Agreement, unless a contrary intention appears:


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


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


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


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


(e)         unless otherwise stated, reference to
any time means New York, New York time;


(f)         references
to “writing” include printing, typing, lithography, electronic or other means
of reproducing words in a visible form;


(g)        reference
to any agreement (including any Transaction Document), document or instrument
means such agreement, document or instrument as amended, modified,
supplemented, replaced, restated, waived or extended and in effect from time to
time in accordance with the terms thereof and, if applicable, the terms of the
other Transaction Documents, and reference to any promissory note includes any
promissory note that is an extension or renewal thereof or a substitute or
replacement therefor; and


(h)        reference
to any Applicable Law means such Applicable Law as amended, modified, codified,
replaced or reenacted, in whole or in part, and in effect from time to time,
including rules and regulations promulgated thereunder and reference to any
Section or other provision of any Applicable Law means that provision of such
Applicable Law from time to time in effect and constituting the substantive
amendment, modification, codification, replacement or reenactment of such
Section or other provision.


Section
1.05           References.


All Section references
(including references to the Preamble), unless otherwise indicated,
shall be to Sections (and the Preamble) in this Agreement.


Section
1.06           Calculations.


Except as otherwise provided herein, all interest rate
and basis point calculations hereunder will be made on the basis of a 360 day
year and the actual days elapsed in the relevant period and will be carried out
to at least three decimal places.



 3
 






 



 


ARTICLE
II


ORGANIZATION


Section
2.01           Name.


The Trust created hereby
shall be known as the “ARCC Commercial Loan Trust 2006,” in which name the
Trust shall have power and authority and is hereby authorized and empowered,
without the need for further action on the part of the Trust, and the Owner
Trustee shall have power and authority, and is hereby authorized and empowered,
to conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and sue and be sued for the use and benefit
of the Certificateholders subject, however, to the provisions of the Indenture.


Section
2.02           Office.


The office of the Trust
shall be in care of the Owner Trustee at the Corporate Trust Office or at such
other address in the State of Delaware as the Owner Trustee may designate by
written notice to the Certificateholders and the Trust Depositor. The Trust
shall constitute a statutory trust within the meaning of Section 3801(a) of the
Delaware Statutory Trust Act for which the Owner Trustee has filed the
Certificate of Trust with the Secretary of State of the State of Delaware (the “Secretary
of State”), pursuant to Section 3810(a) of the Delaware Statutory Trust Act
(the “Delaware Statutory Trust Act”). The execution and filing of the
Certificate of Trust by the Owner Trustee is hereby ratified, authorized, and
approved. The Owner Trustee shall have power and authority, and is hereby
authorized and empowered, to execute and file with the Secretary of State any
other certificate required or permitted under the Delaware Statutory Trust Act
to be filed with the Secretary of State. It is the intention of the parties
hereto that this Trust Agreement constitute the governing instrument of such
statutory trust.


Section
2.03           Purposes and Powers.


The purpose of the Trust
is, and the Trust shall have the power and authority and is hereby authorized
and empowered, without the need for further action on the part of the Trust or
any other Person, and the Owner Trustee shall have power and authority, and is
hereby authorized and empowered, in the name and on behalf of the Trust, to do
or cause to be done all acts and things necessary, appropriate or convenient to
cause the Trust, to engage in the following activities:


(a)         to
execute, authenticate, deliver, perform and issue from time to time the Notes
pursuant to the Indenture and the Certificates pursuant to this Trust Agreement
and, if applicable, a supplement hereto, and to sell the Notes and to transfer
the Certificates pursuant to such agreements and the other Transaction
Documents;


(b)        with the proceeds of the sale of the
Notes, to purchase the Loans, to pay the organizational, start–up and
transactional expenses of the Trust and to fund the Transaction Accounts then
permitted or required to be funded pursuant to the Sale and Servicing Agreement
or the Indenture;



 4
 






 



 


(c)         as
permitted under the Transaction Documents, to purchase, acquire, own, hold,
receive, manage, exercise rights and remedies with respect to, sell, transfer
and dispose of, the Trust Estate or any portion thereof;


(d)        to
assign, grant, transfer, pledge, mortgage, convey and grant a security interest
in the Trust Estate pursuant to the Indenture and to hold, manage, transfer and
distribute to the Certificateholders pursuant to the terms of this Trust
Agreement and the Sale and Servicing Agreement any portion of the Trust Estate
released from the lien of, and remitted to the Trust pursuant to, the
Indenture;


(e)         to
enter into, execute, deliver and perform its obligations under the Transaction
Documents and each agreement, document, instrument and other writing to which
it is or becomes a party and to exercise its rights and remedies thereunder;


(f)         subject
to compliance with the Transaction Documents, to engage in such other activities
as may be required in connection with the conservation of the Trust Estate and
the making of distributions to the Certificateholders, the Noteholders and
others specified in the Transaction Documents; and


(g)        to
engage in those activities, including entering into agreements, that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith.


The Trust is hereby authorized to engage in the
foregoing activities. The Trust shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement or the other Transaction Documents. Nothing contained
herein shall be deemed to authorize the Owner Trustee on behalf of the Trust to
engage in any other business operations or any activities other than those set
forth in this Section 2.03 or in any written instruction received from
the Certificateholders. Specifically, the Owner Trustee shall have no authority
on behalf of the Trust to engage in any business operations, or acquire any
assets other than those specifically included in the Trust Estate, or otherwise
vary the assets held by the Trust other than as provided in the Transaction
Documents or in any written instruction received from the Certificateholders. Similarly,
the Owner Trustee shall have no discretionary duties other than performing
those ministerial acts set forth above necessary to accomplish the purpose of
this Trust as set forth in this Section 2.03. Notwithstanding anything
to the contrary contained herein, the Trust may hold the Notes prior to their
sale by the Initial Purchaser.


Section
2.04           Appointment of Owner Trustee.


The Trust Depositor
hereby appoints the Owner Trustee as trustee of the Trust effective as of the
date hereof, to have all the rights, powers, authority and duties set forth
herein, and the Owner Trustee hereby accepts such appointment.


Section
2.05           Initial Capital Contribution of Trust Estate.


The Trust Depositor hereby sells, assigns, transfers,
conveys and sets over to the Owner Trustee, as of the date hereof, the sum of
$10.00. The Owner Trustee hereby acknowledges receipt from the Trust Depositor,
as of the date hereof, of the foregoing contribution, which shall



 5
 






 



 


constitute the initial Trust Estate (prior to giving
effect to the conveyances described in the Sale and Servicing Agreement) and
shall be deposited in the Certificate Account. The Trust Depositor shall pay
organizational expenses of the Trust as they may arise or shall, upon the
request of the Owner Trustee, promptly reimburse the Owner Trustee for any such
expenses paid by the Owner Trustee.


Section
2.06           Declaration of Trust.


The Owner Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Transaction Documents. It is
the intention of the parties hereto that the Trust constitutes a statutory
trust under the Delaware Statutory Trust Act and that this Trust Agreement
constitute the governing instrument of such statutory trust. It is the
intention of the parties hereto that, solely for federal income tax purposes,
the Trust shall be treated as set forth in Section 2.11 of this Agreement.
The parties agree that, unless otherwise required by appropriate tax
authorities, the Trust will file or cause to be filed annual or other necessary
returns, reports and other forms consistent with the characterization of the
Trust as set forth in Section 2.11 of this Agreement. Effective as of
the date hereof, the Owner Trustee shall have all rights, powers and authority
set forth herein and in the Delaware Statutory Trust Act with respect to
accomplishing the purposes of the Trust. Except as otherwise provided in this
Agreement, the rights of the Certificateholders will be those of beneficial
owners of the Trust.


Section
2.07           Liability of the Certificateholders and the Owner
Trust.


Neither the
Certificateholders nor the Owner Trustee shall have any personal liability for
any liability or obligation of the Trust.


Section
2.08           Title to Trust Property.


Legal title to all of the
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where Applicable Law in any jurisdiction requires title to any
part of the Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be. If any portion of the Trust Estate is
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, (a) the Owner Trustee, upon a Responsible Officer of the Owner Trustee
having actual knowledge thereof, will immediately notify the Trustee and the
Servicer and (b) the Servicer will cause to be filed such UCC financing
statements and related filings, documents, or writings as are necessary (or as
shall be reasonably requested by the Trustee) to maintain the Trustee’s
security interest in the Collateral under the Sale and Servicing Agreement.


Section
2.09           Situs of Trust.


All bank accounts maintained by the Owner Trustee on
behalf of the Trust shall be located in the State of Delaware or such other
state in which the Corporate Trust Office may be located. The Trust shall not
have any employees in any state other than Delaware; provided that nothing herein shall restrict or prohibit the
Owner Trustee from having employees within or without the State of Delaware. Payments
will be received by the Trust only in Delaware or such other state in which the
Corporate Trust Office may be located, and payments will be made by



 6
 






 



 


the Trust only from Delaware or such other state in
which the Corporate Trust Office may be located. The only office of the Trust
will be at the Corporate Trust Office in Delaware.


Section
2.10           Representations and Warranties of the Trust Depositor.


The
Trust Depositor hereby represents and warrants to the Owner Trustee that:


(a)         The
Trust Depositor is duly organized and validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with power
and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.


(b)        The
Trust Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms. The Trust Depositor has full power and
authority to sell and assign the property to be sold and assigned to and
deposited with the Trust and the Trust Depositor has duly authorized such sale
and assignment and deposit to the Trust by all necessary limited liability
company action.


(c)         The
execution, delivery and performance of this Agreement have been duly authorized
by the Trust Depositor by all necessary limited liability company action.


(d)        This
Agreement constitutes a legal, valid and binding obligation of the Trust
Depositor enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors’
rights generally and subject to general principles of equity.


(e)         The
execution, delivery and performance of this Trust Agreement and the other
Transaction Documents to which it is a party by the Trust Depositor, and the
consummation of the transactions contemplated hereby and thereby, will not
violate any material Applicable Law applicable to the Trust Depositor, or
constitute a material breach of any mortgage, indenture, contract or other
agreement to which the Trust Depositor is a party or by which the Trust Depositor
or any of the Trust Depositor’s properties may be bound, or result in the
creation or imposition of any security interest, lien, charge, pledge,
preference, equity or encumbrance of any kind upon any of its properties
pursuant to the terms of any such mortgage, indenture, contract or other
agreement, other than as contemplated by the Transaction Documents.


(f)         To the Trust Depositor’s best
knowledge, there are no proceedings or investigations pending, or to the Trust
Depositor’s knowledge threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Trust Depositor or its properties: 
(i) asserting the invalidity of this Trust Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this Trust
Agreement or (iii) seeking any determination or ruling that might materially
and adversely affect the performance by the Trust Depositor of its obligations
under, or the validity or enforceability of, this Trust Agreement.



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Section
2.11           Federal Income Tax Allocations.


For purposes of federal
income taxes, where partnership rules apply, partnership items shall be
allocated in a manner that, to the extent possible and in compliance with the
Code, results in the same allocation of income to the Class E Note Holders and
the Certificateholders as if the partnership rules did not apply.


It is the intent of the
Trust Depositor, the Class E Noteholders and the Certificateholders that, (i)
in the event that the Certificates and the Class E Notes are owned by a single
Holder, for federal income tax purposes, the Trust will be treated as a
division of such Holder, and such Holder, by acceptance of the Certificates and
the Class E Notes, agrees to take no action inconsistent with such treatment
and (ii) in the event that the Certificates and/or the Class E Notes are owned
by more than one Holder, for federal income tax purposes, the Trust will be
treated as a partnership, the partners of which are the Certificateholders and
the Class E Noteholders, and the Certificateholders and the Class E
Noteholders, by acceptance of a Certificate and a Class E Note, respectively,
agree to treat the Certificates and the Class E Notes as equity and to take no
action inconsistent with such treatment.


Section
2.12           Covenant of Certificateholders.


Each Certificateholder
agrees to be bound by the terms and conditions of the Trust Certificates and of
this Trust Agreement, including any supplements or amendments hereto, and to
perform the obligations of a Certificateholder as set forth therein or herein,
in all respects as if it were a signatory hereto. This undertaking is made for
the benefit of the Trust Depositor, the Trust, the Owner Trustee, the Trust
Company, the Paying Agent and all other Certificateholders present and future.


Each Certificateholder
agrees to make no transfers that would violate the transfer restrictions set
out in this Agreement.


ARTICLE
III


CERTIFICATES
AND TRANSFER OF INTERESTS


Section
3.01           Initial Ownership.


Upon the formation of the
Trust and the contribution made by the Trust Depositor pursuant to Section
2.05 and until the issuance of the Certificates, the Trust Depositor shall
be the sole beneficiary of the Trust.


Section
3.02           The Certificates.


(a)         The Certificates shall be substantially
in the form set forth in Exhibit A hereto, with such changes as may be
specified in a supplement to this Trust Agreement. Except as otherwise set
forth in a supplement to this Trust Agreement, the Certificates shall be issued
in minimum Percentage Interests of 10% and integral multiples of 1% in excess
thereof; provided that one
Certificate may be issued in a different denomination. The Certificates shall
be executed on behalf of the Trust by manual or facsimile signature of an authorized
officer of the



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Owner
Trustee. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the
benefit of this Trust Agreement, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.


(b)        A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee’s acceptance of a Certificate duly registered in
such transferee’s name pursuant to Section 3.04.


Section
3.03           Authentication of Certificates.


Concurrently with the
initial transfer of the Loans to the Trust pursuant to the Sale and Servicing
Agreement, the Trust shall issue the Certificates, in an aggregate Percentage
Interest equal to 100%, executed by the Owner Trustee on behalf of the Trust,
authenticated by the Owner Trustee or the Certificate Registrar in accordance
with this Trust Agreement and delivered to or upon the written order of the
Trust Depositor. No Certificate shall entitle its Holder to any benefit under
this Agreement or be valid for any purpose unless there shall appear on such
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Owner Trustee or the Certificate
Registrar, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate has been duly and validly authorized, issued,
authenticated and delivered hereunder and, subject to the terms of this
Agreement, is fully paid and non–assessable. All Certificates shall be dated
the date of their authentication.


Section
3.04           Registration of Transfer and Exchange of Certificates.


(a)         The
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 3.08, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and, subject to Section
3.10 hereof, of transfers and exchanges of Certificates as herein provided.
The Trustee shall be the initial Certificate Registrar. Promptly upon written
request therefor from the Owner Trustee, the Certificate Registrar shall
provide to the Owner Trustee in writing such information regarding or contained
in the Certificate Register as the Owner Trustee may reasonably request. The
Owner Trustee shall be entitled to rely (and shall be fully protected in
relying) on such information.


(b)        Upon surrender for registration of
transfer of any Certificate at the office or agency maintained pursuant to Section
3.08, the Certificate Registrar shall cause the Owner Trustee to execute
and the Owner Trustee or the Certificate Registrar, shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Certificates in authorized denominations of a like aggregate amount dated
the date of authentication by the Owner Trustee or any authenticating agent. At
the option of a Certificateholder, Certificates may be exchanged for other
Certificates of authorized denominations of a like aggregate



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amount
upon surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.08.


(c)         Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to the Owner Trustee and the Certificate Registrar duly executed by the
registered Certificateholder or such registered Certificateholder’s attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.


(d)        No
service charge shall be made for any registration of transfer or exchange of
Certificates, but the Owner Trustee (as such or in its individual capacity) or
the Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Certificates.


Section
3.05           Mutilated, Destroyed, Lost or Stolen Certificates.


If (a) any mutilated
Certificate shall be surrendered to the Certificate Registrar, or if the
Certificate Registrar and the Owner Trustee shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate, and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee (as
such and in its individual capacity) such security or indemnity as may be
reasonably required by them to defend and save each of them harmless, then in
the absence of notice to the Trust that such Certificate has been acquired by a
protected purchaser, the Certificate Registrar shall cause the Owner Trustee on
behalf of the Trust to execute and the Owner Trustee or the Certificate
Registrar shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor and denomination. The Holder of such Certificate shall pay the
reasonable expenses and charges of the Certificate Registrar and the Owner
Trustee in connection therewith. In connection with the issuance of any new
Certificate under this Section, the Owner Trustee or the Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership of a beneficial interest in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.


Section
3.06           Persons Deemed Certificateholders.


Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee, the
Certificate Registrar or any Paying Agent or other agent thereof may treat the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none
of the Owner Trustee, the Certificate Registrar or any Paying Agent or other
agent thereof shall be bound by any notice to the contrary.


Section
3.07           Access to List of Certificateholders’ Names and
Addresses.


The Certificate Registrar shall furnish or cause to be
furnished to the Paying Agent, the Owner Trustee, the Servicer and the Trust
Depositor, on the Closing Date and thereafter within



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ten days after receipt by the Certificate Registrar of
a written request therefor from the Paying Agent, the Owner Trustee, the
Servicer or the Trust Depositor, a list, in such form as the Paying Agent, the
Owner Trustee, the Servicer or the Trust Depositor may reasonably require, of
the names and addresses of the Certificateholders as of the most recent Record
Date. If three or more Certificateholders or one or more Holders of
Certificates evidencing not less than 25% of the Percentage Interests apply in
writing to the Certificate Registrar, and such application states that the
applicants desire to communicate with other Certificateholders with respect to
their rights under this Trust Agreement or under the Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Certificate Registrar shall, within five Business
Days after the receipt of such application, afford such applicants access
during normal business hours to the current list of Certificateholders. Upon
receipt of any such application, the Certificate Registrar will promptly notify
the Trust Depositor by providing a copy of such application and a copy of the
list of Certificateholders produced in response thereto. Each Certificateholder,
by receiving and holding a Certificate, shall be deemed to have agreed not to
hold any of the Trust Depositor, the Certificate Registrar and the Owner
Trustee (as such or in its individual capacity) accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.


Section
3.08           Maintenance of Office or Agency.


The Certificate Registrar
shall maintain an office or offices or agency or agencies where Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Certificate Registrar in respect of the Certificates
and the Transaction Documents may be served. The Certificate Registrar
initially designates the office of the Certificate Registrar at the Corporate
Trust Office as its office for such purposes. The Certificate Registrar shall
give prompt written notice to the Trust Depositor, any Paying Agent, the Owner
Trustee and the Certificateholders of any change in the location of the Certificate
Register or any such office or agency.


Section
3.09           Appointment of Paying Agent.


(a)         The Paying Agent shall make
distributions to Certificateholders from the Certificate Account pursuant to Section
5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Certificate Account for the purpose of making the distributions referred to
above. The Trust Depositor may revoke such power and remove the Paying Agent if
the Trust Depositor determines in its sole discretion that the Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. The Paying Agent initially shall be U.S. Bank National
Association, as Trustee under the Indenture (the “Paying Agent”). U.S.
Bank National Association shall be permitted to resign as Paying Agent upon 30
days’ written notice to the Trust Depositor, the Owner Trustee and the Servicer.
In the event that U.S. Bank National Association shall no longer be the Paying
Agent, the Trust Depositor shall appoint a successor to act as Paying Agent
(which shall be a bank or trust company). The Trust Depositor shall cause the
Paying Agent and such successor Paying Agent or any additional Paying Agent
appointed by the Trust Depositor to execute and deliver to the Trust Depositor
an instrument in which the Paying Agent and such successor Paying Agent or
additional Paying Agent shall agree with the Trust Depositor that, as Paying
Agent, the Paying Agent and such



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successor
Paying Agent or additional Paying Agent will hold all sums, if any, held by it
for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trust and upon removal of a Paying Agent such Paying Agent shall also return
all funds in its possession to the Trust. The provisions of Sections 7.01,
7.04, 7.05, 7.06, 8.01 and 8.02 shall apply
to the Paying Agent and Certificate Registrar as if such Person were named in
such Sections, for so long as U.S. Bank National Association or the Owner
Trustee shall act as Paying Agent or Certificate Registrar and, to the extent
applicable, to any other paying agent or certificate registrar appointed
hereunder. Any reference in this Agreement to the Paying Agent shall include
any co–paying agent unless the context requires otherwise.


(b)        Any
Paying Agent agrees that it will be bound by the provisions of this Trust
Agreement and the Sale and Servicing Agreement relating to the Paying Agent and
shall:


(i)            hold
all sums held by it for the payment of amounts due with respect to the
Certificates in trust for the benefit of the Person entitled thereto until such
sums shall be paid to such Person or otherwise disposed of as herein provided;


(ii)           give
the Owner Trustee and the Trust Depositor notice of any default by the Paying
Agent in the making of any payment required to be made hereunder or under the
Sale and Servicing Agreement;


(iii)          at
any time during the continuance of any such default, upon the written request
of the Owner Trustee or the Trust Depositor, forthwith pay to the Trust all
sums so held in trust by such Paying Agent;


(iv)          immediately
resign as Paying Agent and forthwith pay to the Trust all sums held by it in
trust for the payment of the Certificates if at any time it ceases to meet the
standards under this Section 3.09 required to be met by the Paying Agent
at the time of its appointment; and


(v)           not
institute bankruptcy proceedings against the Trust in connection with this
Trust Agreement.


Section
3.10           Transfer Restrictions.


The Certificates and the
Class E Notes (the “Securities”) may not be offered, transferred or sold
except to the Trust Depositor or an Affiliate thereof or to Qualified
Institutional Buyers (“QIBs”) for purposes of Rule 144A under the
Securities Act, and who are United States persons (as defined in Section
7701(a)(30) of the Code) in reliance on an exemption from the registration
requirements of the Securities Act.


(a)         The Securities have not been registered
or qualified under the Securities Act, or any state securities law. No
transfer, sale, pledge or other disposition of any Securities shall be made
unless such disposition is made in a transaction which does not require
effective registration or qualification under applicable federal or state
securities laws. No transfer of any Certificates shall be made if such transfer
would require the Trust to register as an “investment



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company” under the 1940 Act. In the event that a
transfer is to be made, the transferee shall execute and deliver to the Trust
Depositor and the Certificate Registrar a certification substantially in the
form of Exhibit C hereto. In the event that such transfer is to be made
in reliance on the availability of an exemption under the Securities Act, the
Certificate Registrar may require the prospective transferee to provide an
Opinion of Counsel satisfactory to it that such transfer may be made pursuant
to an exemption from the Securities Act, which Opinion of Counsel shall not be
an expense of the Certificate Registrar (as such or in its individual capacity)
or of the Trust.


(b)           Neither the Securities nor any
beneficial interest in such Securities may be acquired or held, directly or
indirectly, by, on behalf of or with any assets of any employee benefit plan as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended (“ERISA”), and subject to Title I of ERISA or a “plan” as
defined in and subject to Section 4975 of the Code (a “Benefit Plan”)
and any such purported transfer shall not be effective. Each transferee of
Securities shall be required to represent in a writing delivered to the Owner
Trustee and the Certificate Registrar (i) that it is not a Benefit Plan and is
not acquiring such Securities for, on behalf of or with any assets of a Benefit
Plan and (ii) that if such Securities is subsequently deemed to be a plan asset
of such a Benefit Plan, it will dispose of such Securities.


(c)           Each Certificate will bear the
legends set forth in paragraph 9 of Exhibit C hereto.


(d)           No Certificate may be acquired or
owned by any Person that is classified for U.S. federal income tax purposes as
a partnership, subchapter S corporation or grantor trust unless such Person
represents in writing that (i) the value of the Certificates and Class E Notes
proposed to be transferred to such Person, together with the value of any
Certificates and Trust Certificates already held by such Person, will not
constitute substantially all of the value of the assets of such Person and (ii)
such Person is not part of any arrangement the principal purpose of which is to
cause the Certificates and Class E Notes to be treated as owned by 100 persons
or less within the meaning of Treas. Reg. § 1.7704-1(h)(1)(ii).


(e)           No Certificate (or interest therein)
may be acquired by any Person unless such Person represents that it has not
acquired the Certificates pursuant to a trade on an “established securities market”
and agrees that it will not trade any Certificates on an “established
securities market.” For this purpose, the term “established securities market”
includes any national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended, or exempted from registration
because of the limited volume; any foreign securities exchange that, under the
laws of the jurisdiction where it is organized, satisfies regulatory
requirements that are analogous to the regulatory requirements imposed under
the Securities Exchange Act of 1934; any regional or local exchange; and any
interdealer quotation system that regularly disseminates firm buy and sell
quotations by identified brokers or dealers, by electronic means or otherwise.


(f)            No
transfer, sale, pledge or other disposition of one or more Certificates (a “Transfer”)
shall be made unless simultaneously with the Transfer (i) a proportionate
amount of Class E Notes are Transferred so that the Percentage Interest of the
Trust Certificates so



 13
 






 



 


Transferred
equals the Percentage Interest of the Class E Notes so Transferred, (ii) the
Transfers of the Certificates and Class E Notes referred to herein are made to
the same Person, and (iii) the Percentage Interest of the Certificates and the Class
E Notes, respectively, so Transferred is no less than ten (10%) percent.


(g)        Notwithstanding
any other provision herein or elsewhere, other than to determine that any
certification delivered to the Owner Trustee or the Certificate Registrar, as
the case may be, pursuant to subsection 3.10(a) hereof is substantially
in the form of Exhibit C hereto and to determine (solely based on one or
more certificates from the Person transferring such Certificate) that any
transfer of a Certificate described in such certification delivered to the
Owner Trustee complies with subsection 3.10(d), the Owner Trustee and
the Certificate Registrar shall have no obligation to determine whether or not
any transfer or exchange or proposed or purported transfer or exchange of a
Certificate is permitted under or in accordance with this Agreement, and the
Owner Trustee and the Certificate Registrar shall have no personal liability to
any Person in connection with any transfer or exchange or proposed or purported
transfer or exchange (and/or registration thereof); the Owner Trustee shall be
entitled to rely (and shall be fully justified and protected (each as such and
in its individual capacity) in so relying) on the Certificate Register as to
the identity of the Certificateholders and as to the Certificates and the
denominations thereof.


ARTICLE
IV


ACTIONS
BY OWNER TRUSTEE


Section
4.01           Prior Notice to and Consent by Certificateholders with
Respect to Certain Matters.


With respect to the
following matters, the Trust shall not take action unless at least five days
before the taking of such action, the Owner Trustee shall have notified the
Certificateholders and each Rating Agency in writing of the proposed action and
the Certificateholders holding a Percentage Interest of not less than 66-2/3%
shall not, prior to the fifth day after such notice is given, have notified the
Owner Trustee in writing that such Certificateholders have withheld consent or
provided alternative direction:


(a)         the
initiation of any material claim or lawsuit by the Trust and the compromise of
any material action, claim or lawsuit brought by or against the Trust;


(b)        the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Delaware Statutory Trust Act);


(c)         the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;


(d)        the amendment of the Indenture by a
supplemental indenture in circumstances where the consent of any Noteholder is
not required and such amendment materially adversely affects the interest of
the Certificateholders;



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(e)         the
appointment pursuant to the Indenture of a successor Paying Agent or Trustee or
pursuant to this Trust Agreement of a successor Certificate Registrar, or the
consent to the assignment by the Paying Agent or Trustee or Certificate
Registrar of its obligations under the Indenture or this Trust Agreement, as
applicable;


(f)         the
consent to the calling or waiver of any Event of Default of any Transaction
Document;


(g)        the
consent to the assignment of the Trustee or Servicer of their respective
obligations under any Transaction Document;


(h)        except
as provided in Article IX hereof, the dissolution, termination or
liquidation of the Trust in whole or in part;


(i)          the
merger or consolidation of the Trust with or into any other entity, or
conveyance or transfer of all or substantially all of the Trust’s assets to any
other entity;


(j)          the
incurrence, assumption or guaranty by the Trust of any indebtedness other than
as set forth in this Agreement or the Transaction Documents;


(k)         the
doing of any act which would make it impossible to carry on the ordinary
business of the Trust as described in Section 2.03 hereof;


(l)          the confession of a judgment against the
Trust;


(m)        the
possession of Loan Assets, or assignment of the Trust’s right to property, for
other than a purpose permitted under Section 2.03;


(n)        the
lending by the Trust of any funds to any entity, except as permitted or
required under the Sale and Servicing Agreement with respect to the Loan Assets
including the funding of any Delayed Draw Term Loan or any Revolving Loan;


(o)        the
change in the Trust’s purpose and powers from those set forth in this Trust
Agreement; or


(p)        the removal or replacement of the
Servicer or the Trustee.


In addition, the Trust
shall not commingle its assets with those of any other entity. The Trust shall
maintain its financial and accounting books and records separate from those of
any other entity. Except as expressly set forth herein, the Trust shall pay its
indebtedness, operating expenses and liabilities from its own funds, and the
Trust shall not pay the indebtedness, operating expenses and liabilities of any
other entity.


Section
4.02           Action by Certificateholders with Respect to
Bankruptcy.


The Trust shall not have the power, without the
unanimous prior written approval of the Certificateholders, and to the extent
otherwise consistent with the Transaction Documents, to (a) institute
proceedings to have the Trust declared or adjudicated as bankrupt or insolvent,



 15
 






 



 


(b) consent to the institution of bankruptcy or
insolvency proceedings against the Trust, (c) file a petition or consent to a
petition seeking reorganization or relief on behalf of the Trust under any
applicable federal or state law relating to bankruptcy, (d) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any
similar official) of the Trust or a substantial portion of the property of the
Trust, (e) make any assignment for the benefit of the Trust’s creditors, (f)
cause the Trust to admit in writing its inability to pay its debts generally as
they become due, or (g) take any action, or cause the Trust to take any action,
in furtherance of any of the foregoing (any of the above, a “Bankruptcy
Action”). So long as the Indenture remains in effect, no Certificateholder
shall have the power to take and shall not take any Bankruptcy Action with
respect to the Trust or direct the Owner Trustee to take any Bankruptcy Action
with respect to the Trust.


Section
4.03           Restrictions on Certificateholders’ Power.


The Certificateholders
shall not direct the Owner Trustee to take or to refrain from taking any action
if such action or inaction would be contrary to any obligation of the Trust or
the Owner Trustee under this Trust Agreement or any of the Transaction
Documents or would cause a violation of any of the Transaction Documents or
would be contrary to or inconsistent with Section 2.03, nor shall the
Owner Trustee be obligated to follow any such direction, if given.


Section
4.04           Majority Control.


Except as expressly
provided herein or in any supplement to this Trust Agreement, any action or
direction that may be taken or given by the Certificateholders under this Trust
Agreement may not be taken or given unless agreed to by the Holders of
Certificates evidencing not less than a majority of the aggregate Percentage
Interest. Except as expressly provided herein or in any supplement to this
Trust Agreement, any written notice of the Certificateholders delivered
pursuant to this Trust Agreement shall be effective if signed by
Certificateholders holding Certificates evidencing not less than a majority of
the aggregate Percentage Interest at the time of the delivery of such notice.


ARTICLE
V


APPLICATION
OF TRUST FUNDS; CERTAIN DUTIES


Section
5.01           Establishment of Trust Account.


(a)         For
the benefit of the Certificateholders, the Paying Agent shall establish and
maintain in the name of the Trust an Eligible Deposit Account with the Trustee
(the “Certificate Account”), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the
Certificateholders. Each Qualified Institution maintaining the Certificate
Account shall agree in writing (and the Trustee does hereby so agree) to comply
with all instructions originated by the Paying Agent or Owner Trustee directing
the disposition of funds in the account without the further consent of the
Trust.


(b)        The Trust shall possess all right, title
and interest in all funds on deposit from time to time in the Certificate
Account and in all proceeds thereof. Except as provided in Section 3.09
or as otherwise expressly provided herein, the Certificate Account shall be
under



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the
sole dominion and control of the Owner Trustee for the benefit of the
Certificateholders. If, at any time, the Certificate Account ceases to be an
Eligible Deposit Account, the Paying Agent shall within ten Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Certificate Account as an Eligible Deposit Account
and shall transfer any cash and/or any investments to such new Certificate
Account.


Section
5.02           Application of Trust Funds.


(a)         On
each Distribution Date and at the instruction of the Servicer, the Paying Agent
shall distribute to the Certificateholders, pro
rata based on their respective Percentage Interests, the amounts
deposited in the Certificate Account received from the Trustee pursuant to the
Indenture or the Sale and Servicing Agreement.


(b)        On
each Distribution Date, the Trustee shall, or shall cause the Paying Agent to,
make available to each Certificateholder the statement or statements provided
to the Trustee by the Servicer pursuant to the Indenture and the Sale and
Servicing Agreement with respect to such Distribution Date.


(c)         In
the event that any withholding tax is imposed on the Trust’s payment (or
allocations of income) to a Certificateholder, such tax shall reduce the amount
otherwise distributable to the Certificateholder in accordance with this Section
5.02. The Paying Agent is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Owner Trustee or the Paying Agent from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by Applicable Law, pending the outcome of such
proceedings). The amount of any withholding tax imposed with respect to a
Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non–U.S.
Certificateholder), the Paying Agent may in its sole discretion withhold such
amounts in accordance with this subparagraph (c). The Paying Agent and
the Trustee shall provide to the Certificateholders written evidence of such
tax liability of the Trust and any other supporting information reasonably
requested by a Certificateholder. In the event that a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee or the
Paying Agent shall use best efforts to cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee and the Paying Agent for any out–of–pocket expenses incurred.


Section
5.03           Method of Payment.


Subject to Section 9.01(c), distributions
required to be made to Certificateholders on any Distribution Date shall be
made to each Certificateholder of record on the preceding Record Date either by
wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar and the Paying Agent appropriate written instructions at



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least five Business Days prior to such Distribution
Date or, if not, by check mailed to such Certificateholder at the address of
such holder appearing in the Certificate Register.


Section
5.04           No Segregation of Moneys; No Interest.


Subject to Sections
5.01 and 5.02, moneys received by the Owner Trustee or the Paying
Agent hereunder need not be segregated in any manner except to the extent
required by any Applicable Law or the Sale and Servicing Agreement and may be
deposited under such general conditions as may be prescribed by any Applicable
Law, and neither the Paying Agent, the Trust Company nor the Owner Trustee
shall be liable for any interest thereon.


Section
5.05           Accounting and Reports to the Certificateholders, the
Internal Revenue Service and Others.


The Owner Trustee shall
(a) maintain (or cause to be maintained) the books of the Trust on a calendar
year basis on the accrual method of accounting; provided that the Owner Trustee
shall be entitled to rely upon the written directions provided by the Servicer
or upon information as furnished by the Servicer, (b) deliver (or cause to be
delivered) to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including,
if applicable, Schedule K–1) to enable each Certificateholder to prepare its
federal and state income tax returns, to the extent the Owner Trustee has come
into possession thereof, (c) pursuant to written directions provided by the
Servicer, cause to be prepared, and file, or cause to be filed, all tax
returns, if any, relating to the Trust (including, if applicable, a partnership
information return, IRS Form 1065) and make such elections relating to the
Trust as from time to time may be required or appropriate, as directed by the
Trust Depositor, under any applicable state or federal statute or any rule or
regulation thereunder so as to maintain the Trust’s characterization as a
partnership for federal income tax purposes or an entity the existence of which
is disregarded as separate from the Certificateholders under applicable
Treasury Regulations depending on whether the Certificates are held by one
owner or more than one owner, (d) pursuant to written directions provided by
the Servicer, collect or cause to be collected any withholding tax as described
in and in accordance with subsection 5.02(c) with respect to income or
distributions to Certificateholders and (e) upon the request of the Trust,
provide to necessary parties such reasonably current information, to the extent
the Owner Trustee has come into possession thereof, or cause the Servicer to
provide such reasonably current information, as is specified in paragraph
(d)(4) of Rule 144A under the Securities Act. In performing the foregoing duties,
the Owner Trustee shall rely entirely on the written directions of and the
information furnished by the Servicer and shall have no personal liability for
or in respect of performing any of the foregoing duties or the contents of such
information provided by the Servicer. The Owner Trustee shall make all
elections pursuant to this Section 5.05 as directed by the Trust Depositor in
writing. In making such elections, the Owner Trustee shall rely entirely on the
written directions of the Trust Depositor and shall have no personal liability
for or in respect of such elections.


Section
5.06           Signature on Returns; Tax Matters Partner.


(a)         The Servicer shall sign on behalf of
the Trust the tax returns of the Trust, and any other returns as may be
required by law if any, as the same shall be furnished to it in



 18














 


execution
form by the Trust Depositor, unless Applicable Law requires a Certificateholder
to sign such documents, in which case such documents shall not be furnished to
the Servicer, but shall be furnished to and signed by the Trust Depositor so
long as it is a Certificateholder, in its capacity as “tax matters partner” (if
applicable), or such other Certificateholder as may have been designated “tax
matters partner” (if applicable). In executing any such return, the Servicer
shall rely entirely upon, and shall have no personal liability for, information
or calculations provided by the Trust Depositor.


(b)        In the
event the Trust Depositor is a Certificateholder and the Trust is characterized
as a partnership, the Trust Depositor shall be the “tax matters partner” of the
Trust pursuant to the Code.


ARTICLE
VI


AUTHORITY
AND DUTIES OF OWNER TRUSTEE


Section
6.01           General Authority.


Each of the Owner
Trustee, the Servicer and the Trust Depositor shall have power and authority,
and each is hereby authorized and empowered, in the name and on behalf of the
Trust, to execute and deliver the Transaction Documents to which the Trust is
to be a party and each certificate or other document attached as an Exhibit to
or contemplated by the Transaction Documents to which the Trust is to be a
party and any amendment or other agreement or instrument, in each case, in such
form as the Owner Trustee, the Servicer or the Trust Depositor shall approve,
as evidenced conclusively by the Owner Trustee’s, the Servicer’s or the Trust
Depositor’s execution thereof. In addition to the foregoing, the Owner Trustee
shall have power and authority and hereby is further authorized to take all
actions required of the Trust pursuant to the Transaction Documents and is
hereby authorized to delegate such power and authority or any portion thereof
to the Servicer. The Owner Trustee shall have power and authority and hereby is
further authorized from time to time to take such action as the Servicer
recommends with respect to the Transaction Documents.


Section
6.02           General Duties.


It shall be the duty of the Owner Trustee to discharge
(or cause to be discharged) all of the duties and responsibilities expressly
required to be performed by the Owner Trustee under the terms of this Agreement
and the Transaction Documents and to administer the Trust in the interest of
the Certificateholders, subject to the Transaction Documents and in accordance
with the provisions of this Agreement and Transaction Documents. Notwithstanding
the foregoing, the Owner Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the Transaction Documents to the
extent the Trust Depositor has expressly agreed hereunder or the Servicer has
expressly agreed in the Sale and Servicing Agreement to perform any act or to
discharge any duty of the Owner Trustee or of the Trust, and the Owner Trustee
shall not be held personally liable for the default or failure of the Trust
Depositor or the Servicer to carry out its obligations under the Sale and
Servicing Agreement or this Trust Agreement, as applicable.



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Notwithstanding anything
in this Agreement or any Transaction Document to the contrary, the Owner
Trustee shall have no duty or obligation to supervise or otherwise monitor any
other party to this Agreement or any Transaction Document, or any other Person
or any agents, employees or servants of any of the foregoing, nor shall the
Owner Trustee (as such and in its individual capacity) have any liability for
any act or omission of any other party to this Agreement or any Transaction
Document, or any other Person or any agents, employees or servants thereof in
preparing, executing, delivering or filing any document or otherwise carrying
out such Person’s duties hereunder or under any Transaction Document.


Section
6.03           Action upon Instruction.


(a)         Subject
to Article IV and Section 7.01 and in accordance with the terms
of the Transaction Documents, the Certificateholders shall by written
instruction direct the Owner Trustee in the management of the Trust. Such direction
may be exercised at any time by written instruction of the Certificateholders
evidencing not less than a majority of the aggregate Percentage Interest. The
Certificateholder shall not instruct the Owner Trustee in a manner inconsistent
with this Agreement, the Transaction Documents or Applicable Law.
Notwithstanding the foregoing, the Owner Trustee shall, upon due authorization
and consent by the Trust Depositor, execute and deliver such notices, consents
to the service of process and other necessary registration forms as may be
required to qualify the Trust under the securities laws of any jurisdiction in
which the underwriters of the Trust’s securities may seek to qualify the Notes
or Certificates for sale. The Trust is not hereby authorized without the
express consent of the Trust Depositor to qualify the Trust Depositor as a
foreign corporation or to execute on behalf of the Trust Depositor a general
consent to service of process in any jurisdiction.


(b)        The
Owner Trustee shall not be required to take any action hereunder or under any
Transaction Document if the Owner Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to result in
personal liability on the part of the Owner Trustee or is contrary to the terms
hereof or of any Transaction Document or is otherwise contrary to Applicable
Law.


(c)         Whenever the Owner Trustee is unable to
decide between alternative courses of action permitted or required by the terms
of this Trust Agreement or under any Transaction Document, the Owner Trustee
shall promptly give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction as to the
course of action to be adopted and stating that if the Owner Trustee shall not
have received appropriate instruction within ten Business Days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Agreement and the other Transaction Documents as it shall deem to be in the
best interests of the Certificateholders and shall have no personal liability
to any Person for such action or inaction. To the extent the Owner Trustee acts
in good faith in accordance with any written instruction received from the
Certificateholders evidencing not less than a majority of the aggregate
Percentage Interest, the Owner Trustee shall not be personally liable on
account of such action or inaction to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten Business Days of such
notice (or within such shorter period of time as



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reasonably
may be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action as
it shall deem to be in the best interests of the Certificateholders and shall
have no personal liability to any Person for such action or inaction.


(d)        In the
event that the Owner Trustee is unsure as to the application of any provision
of this Trust Agreement or any Transaction Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Trust Agreement permits
any determination by the Owner Trustee or is silent or is incomplete as to the
course of action that the Owner Trustee is required or permitted to take with
respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and stating that if the Owner Trustee
shall not have received appropriate instruction within ten Business Days of
such notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Agreement or the other Transaction Documents as it shall
deem to be in the best interests of the Certificateholders, and shall have no
personal liability to any Person for such action or inaction. To the extent
that the Owner Trustee acts or refrains from acting in good faith in accordance
with any such instruction received from Holders of Certificates evidencing not
less than a majority of the aggregate Percentage Interest, the Owner Trustee
shall not be personally liable, on account of such action or inaction, to any
Person. If the Owner Trustee shall not have received appropriate instruction
within ten Business Days of such notice (or within such shorter period of time
as reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action
or inaction.


Section
6.04           No Duties Except as Specified in this Agreement or in
Instructions.


The Owner Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record, sell,
dispose of, or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, the Transaction
Documents or any document contemplated hereby or thereby (including as provided
in Section 6.02), except as expressly provided by the terms of this
Trust Agreement or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.03; and no implied duties or obligations
shall be read into this Trust Agreement or any other Transaction Document
against the Owner Trustee. Except as may be expressly provided in this Trust
Agreement, the Owner Trustee shall have no responsibility for filing any
financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Trust Agreement or any Transaction Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense (and not
at the expense of the Trust), promptly take all action as may be necessary to
discharge any liens on any part of the Trust Estate that result from actions
by, or are attributable to claims against, the Owner Trustee in its individual
capacity that are not related to the ownership or the administration of the
Trust Estate.



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The Owner Trustee is
authorized to execute on behalf of the Trust all documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Trust to
prepare, file, or deliver pursuant to the Transaction Documents. Notwithstanding
the foregoing, the Owner Trustee shall procure, prepare or cause to be prepared
or obtain for delivery with respect to the following matters: (i)  the maintenance of the books of the Trust
pursuant to Section 5.05(a); (ii) the furnishing of any notices to
Certificateholders as required under the Transaction Documents, including
notices regarding amendments pursuant to Section 11.01, to the extent
the Owner Trustee has come into possession of such notices; and (iii) the
filing of tax returns (once delivered to it in final form) and elections of the
Trust pursuant to Section 5.05.


Section
6.05           Restrictions.


The Owner Trustee shall
not take any action that, (i) is inconsistent with the purposes of the Trust
set forth in Section 2.03 or (ii) to the actual knowledge of a
Responsible Officer of the Owner Trustee, would result in the Trust’s becoming
taxable as a corporation for federal income tax purposes. The
Certificateholders shall not direct the Owner Trustee to take action that would
violate the provisions of this Section 6.05.


Section
6.06           No Action Except Under Specified Documents or
Instructions.


The Owner Trustee shall
not manage, control, use, sell, dispose of or otherwise deal with any part of,
the Trust Estate except (i) in accordance with the powers granted to and the
authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in
accordance with the Transaction Documents and (iii) in accordance with any
document or instruction delivered to the Owner Trustee pursuant to Section
6.03.


ARTICLE
VII


CONCERNING
THE OWNER TRUSTEE


Section
7.01           Acceptance of Trusts and Duties.


The Owner Trustee accepts
the trusts hereby created and agrees to perform only such duties as are
expressly required to be performed by the Owner Trustee hereunder, but only
upon the terms of this Trust Agreement and the Transaction Documents. The Owner
Trustee also agrees to disburse or cause to be disbursed all moneys actually
received by it constituting part of the Trust Estate upon the terms of this
Trust Agreement. The Owner Trustee shall not be personally answerable or
accountable hereunder or under any other Transaction Document to any Person
under any circumstances, except to the Trust and the Certificateholders (i) for
its own willful misconduct, bad faith or gross negligence or (ii) in the case
of the inaccuracy of any representation or warranty contained in Section
7.03 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding sentence):


(a)         the Owner Trustee shall not be
personally liable for any error of judgment made in good faith by a Responsible
Officer of the Owner Trustee which did not result from gross negligence on the part
of such Responsible Officer;



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(b)           the Owner Trustee shall not be
personally liable with respect to any action taken or omitted to be taken by it
in good faith in accordance with the instructions of the Trust Depositor, the
Servicer or of Certificateholders holding such Percentage Interest as is
required with respect thereto under this Agreement or the applicable
Transaction Documents;


(c)           no provision of this Trust Agreement
or any other Transaction Document shall require the Owner Trustee to expend or
risk its own funds or otherwise incur any personal financial liability in the
performance of any of its rights, duties or powers hereunder or under any
Transaction Document if the Owner Trustee shall have reasonable grounds for
believing repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;


(d)           under no circumstances shall the
Owner Trustee be personally liable for indebtedness evidenced by or arising
under any of the Transaction Documents, including the principal of and interest
on the Notes;


(e)           the Owner Trustee shall not be
personally responsible (i) for or in respect of the validity or sufficiency of
this Trust Agreement or for the due execution hereof by the Trust Depositor,
(ii) for the form, character, genuineness, sufficiency, value or validity of
any of the Trust Estate, or (iii) for or in respect of the validity or
sufficiency of the Transaction Documents, other than the Owner Trustee’s due
execution of the Certificates on behalf of the Trust and, if applicable, of the
certificate of authentication on the Trust Certificates, and the Owner Trustee
shall in no event assume or incur any personal liability, duty, or obligation
to any Noteholder or any Certificateholder other than as expressly provided for
herein and in the Transaction Documents;


(f)            the Owner Trustee shall not be
personally liable for the default or misconduct of the Trust Depositor, the
Trustee or the Servicer or any other Person under any of the Transaction
Documents or otherwise and the Owner Trustee shall have no obligation or
personal liability to perform the obligations of the Trust under this Trust
Agreement or the other Transaction Documents that are required to be performed
by the Trustee under the Indenture or the Servicer or the Trust Depositor under
the Sale and Servicing Agreement; and


(g)           the
Owner Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement, or to institute, conduct or defend
any litigation under this Trust Agreement or otherwise or in relation to this
Trust Agreement or any other Transaction Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee (as such and in its individual capacity) security
or indemnity satisfactory to it against the costs, expenses and liabilities
that may be incurred by the Owner Trustee therein or thereby. The right of the
Owner Trustee to perform any discretionary act enumerated in this Trust
Agreement or in any other Transaction Document shall not be construed as a
duty, and the Owner Trustee shall not be personally answerable therefor other
than to the Trust, the Trust Depositor and the Certificateholders for its
willful misconduct, bad faith or negligence in the performance of any such act.



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Section
7.02           Furnishing of Documents.


The Owner Trustee shall
furnish to the Certificateholders duplicates or copies of all reports, notices,
requests, demands, certificates, financial statements and any other instruments
furnished to the Owner Trustee under the Transaction Documents.


Section
7.03           Representations and Warranties.


The Owner Trustee hereby
represents and warrants to the Trust Depositor, for the benefit of the Trust
Depositor and Certificateholders, that:


(a)         It is
a trust company duly organized and validly existing in good standing under the
laws of Delaware. It has all requisite corporate power and authority, and all
franchises, grants, authorizations, consents, orders and approvals from all
Governmental Authorities necessary to execute, deliver and perform its
obligations under this Trust Agreement.


(b)        It has
taken all corporate action necessary to authorize the execution and delivery by
it of this Trust Agreement, and each Transaction Document to which the Trust is
a party and this Trust Agreement and each Transaction Document will be executed
and delivered by one of its officers who is duly authorized to execute and
deliver this Trust Agreement on its behalf.


(c)         Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by it
with any of the terms or provisions hereof, will (i) contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Trust Company or any judgment or order binding on it, (ii)
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound or (iii) result in the creation or
imposition of an lien, charge or encumbrance on the Trust Estate resulting from
actions by or claims against the Owner Trustee individually which are unrelated
to this Agreement or the other Transaction Documents.


(d)        This
Agreement constitutes a legal, valid and binding obligation of the Owner
Trustee enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors’
rights generally and creditors of national banking associations and subject to
general principles of equity.


(e)         To the Owner Trustee’s best knowledge,
there are no proceedings or investigations pending, or to the Owner Trustee’s
knowledge threatened, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Owner
Trustee or its properties:  (A) asserting
the invalidity of this Trust Agreement, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Trust Agreement or (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Owner Trustee of its obligations under, or the validity or enforceability
of, this Trust Agreement.



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Section
7.04           Reliance; Advice of Counsel.


(a)         The
Owner Trustee shall incur no personal liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by an appropriate Person or Persons.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any Person as conclusive evidence that
such resolution has been duly adopted by such body and that the same is in full
force and effect. As to any fact or matter the method of determination of which
is not specifically prescribed herein, the Owner Trustee may for all purposes
hereof require and rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officer or agent of an
appropriate Person or Persons or of any manager thereof, as to such fact or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.


(b)        In the
exercise or administration of the trusts hereunder and in the performance of
its duties and obligations under this Trust Agreement or the other Transaction
Documents, the Owner Trustee may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be personally liable for the conduct or misconduct of such
agents or attorneys if such agents or attorneys shall have been selected by the
Owner Trustee with reasonable care, and may consult with counsel, accountants
and other skilled Persons to be selected with reasonable care and employed by
it. The Owner Trustee shall not be personally liable for anything done,
suffered or omitted in good faith by it in accordance with the written opinion
or advice of any such counsel, accountants or other such Persons. The Owner
Trustee shall have no duty to monitor or supervise any other trustee, the
Certificate Registrar, the Paying Agent, the Trust Depositor, the Holders, the
Servicer, any Subservicer, the Trustee, any agent, independent contractor,
officer, employee or manager of the Trust, any delegate of any trustee, or any
other Person.


Section
7.05           Not Acting in Individual Capacity.


Except as provided in
this Article VII, in performing its duties hereunder, the Trust Company
acts solely as Owner Trustee hereunder and not in its individual capacity, and
all Persons having any claim against the Owner Trustee by reason of the
transactions contemplated by this Trust Agreement or any Transaction Document
shall look only to the Trust Estate for payment or satisfaction thereof.


Section
7.06           Owner Trustee Not Liable for Certificates or Loans.


The recitals contained herein and in the Certificates
shall be taken as the statements of the Trust Depositor and the Owner Trustee
assumes no personal responsibility for the correctness thereof. The Owner
Trustee makes no representations as to the validity or sufficiency of this
Trust Agreement, of any other Transaction Document or of the Certificates
(other than as to the due execution by the Owner Trustee of the Certificates on
behalf of the Trust and, if applicable, the certificate of authentication of
the Owner Trustee on the Certificates) or the Notes, or of any Loan or related
documents. The Owner Trustee shall at no time have any personal responsibility
or liability for or with respect to the legality, validity and enforceability
of any Loan, or for or



 25
 






 



 


with respect to the sufficiency of the Trust Estate or
its ability to generate the payments to be distributed to Certificateholders
under this Trust Agreement or the Noteholders under the Indenture, including,
without limitation:  (a) the existence,
condition and ownership of any collateral securing a Loan; (b) the existence
and enforceability of any insurance thereon; (c) the validity of the assignment
of any Loan to the Trust or of any intervening assignment; (d) the performance
or enforcement of any Loan; and (e) the compliance by the Trust Depositor, the
Trustee or the Servicer with any warranty or representation made under any
Transaction Document or in any related document or the accuracy of any such
warranty or representation, or any action of the Trust Depositor, the Trustee
or the Servicer or any subservicer taken in the name of the Owner Trustee.


Section
7.07           Owner Trustee May Own Certificates and Notes.


The Owner Trustee in its
individual or any other capacity may become the owner or pledgee of
Certificates or Notes and may deal with the Trust Depositor, the Trustee, the
Paying Agent and the Servicer in banking transactions with the same rights as
it would have if it were not Owner Trustee.


ARTICLE
VIII


COMPENSATION
OF OWNER TRUSTEE


Section
8.01           Trust Company’s Fees and Expenses.


The Trust Company shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Trust Depositor and
the Trust Company as set forth in the fee letter dated July 7, 2006, and the
Owner Trustee shall be entitled to be reimbursed by the Trust Depositor for its
other reasonable expenses hereunder, including, but not limited to, the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder. The Trust Depositor shall be responsible for such fees and expenses
only to the extent the same are not paid pursuant to Sections 7.05(a) or
7.05(b) of the Sale and Servicing Agreement.


Section
8.02           Indemnification.


The Trust Depositor shall be liable as primary obligor
for, and shall indemnify, defend and hold harmless the Owner Trustee and their
successors, assigns, agents, employees, officers and servants (each, an “Indemnified
Party” and collectively, the “Indemnified Parties”) from and
against, any and all liabilities, obligations, losses, damages, taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature
whatsoever (collectively, “Expenses”) which may at any time be imposed
on, incurred by or asserted against an Indemnified Party in any way relating to
or arising out of this Trust Agreement, the Transaction Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Trust Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from the gross negligence,



 26
 






 



 


willful misconduct or fraud on the part of the
Indemnified Party. The indemnities contained in this Section 8.02 shall
survive the resignation or removal of the Owner Trustee and the termination of
this Trust Agreement. If an Indemnified Party seeks indemnification hereunder
it shall promptly notify the Trust Depositor if a Responsible Officer of the
Indemnified Party receives a complaint, claim, compulsory process or other
notice of any loss, claim, damage or liability giving rise to a claim of
indemnification hereunder but failure to provide such notice shall not relieve
the Trust Depositor of its indemnification obligations hereunder. The Trust
Depositor shall assume (with the consent of the Indemnified Party, such consent
not to be unreasonably withheld) the defense and any settlement of any such
claim and promptly pay, discharge and satisfy any judgment or decree which may
be entered against the Indemnified Party in respect of such claim.


Section
8.03           Payments to the Owner Trustee.


Any amounts paid to the
Owner Trustee pursuant to this Article VIII shall be deemed not to be a
part of the Trust Estate immediately after such payment.


ARTICLE
IX


TERMINATION
OF TRUST AGREEMENT


Section
9.01           Termination of Trust Agreement.


(a)         The
Trust shall dissolve, be wound up and terminate in accordance with Section 3808
of the Delaware Statutory Trust Act upon (i) the final distribution by the
Paying Agent of all moneys or other property or proceeds of the Trust Estate in
accordance with the terms of the Indenture, the Sale and Servicing Agreement
and Article V, upon which time the Paying Agent shall notify the Owner
Trustee and the Trust Depositor in writing and (ii) the written consent of the
Certificateholders. The bankruptcy, liquidation, dissolution, death or
incapacity of any Certificateholder shall not (x) operate to dissolve or
terminate this Trust Agreement or the Trust or (y) entitle such
Certificateholder’s legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Trust or Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.


(b)        Except
as provided in subsection 9.01(a), neither the Trust Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.


(c)         Notice of any termination of the Trust,
specifying the Distribution Date upon which the Certificateholders shall
surrender their Certificates to the Paying Agent for payment of the final
distribution and cancellation, shall be given by the Paying Agent by letter to
Certificateholders mailed within five Business Days of receipt by the Paying
Agent and the Owner Trustee of written notice of such termination from the
Servicer stating, as set forth in such notice from the Servicer, (i) the
Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable,



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payments
being made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Paying Agent shall give such
notice to the Certificate Registrar (if other than the Paying Agent) and the
Owner Trustee at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Paying Agent shall cause to
be distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.02.


In the event that all of
the Certificateholders shall not surrender their Certificates for cancellation
within six months after the date specified in the above mentioned written
notice, the Paying Agent shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and receive
the final distribution with respect thereto. If within one year after the
second notice all the Certificates shall not have been surrendered for cancellation,
the Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Trust after exhaustion of such remedies shall be
distributed by the Paying Agent to the Trust Depositor. Certificateholders
shall thereafter look solely to the Trust Depositor as general unsecured
creditors.


(d)        Upon
receipt of written notice from the Trust Depositor that the winding up of the
Trust has been completed and payment of all liabilities in accordance with
Section 3808 of the Delaware Statutory Trust Act, the Owner Trustee shall cause
the Certificate of Trust to be cancelled by filing a certificate of
cancellation with the Secretary of State in accordance with the provisions of
Section 3810 of the Delaware Statutory Trust Act. Thereupon, the Trust and this
Trust Agreement (other than the rights, benefits, protections, privileges and
immunities of the Owner Trustee and the Trust Company) shall terminate.


ARTICLE
X


SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES


Section
10.01         Eligibility Requirements for Owner Trustee.


The Owner Trustee or any Successor Trustee shall at
all times be a Person (a) satisfying the provisions of Section 3807(a) of the
Delaware Statutory Trust Act; (b) authorized to exercise corporate trust
powers; (c) having a combined capital and surplus of at least $200,000,000 and
subject to supervision or examination by federal or state banking authorities;
and (d) having (or having a parent that has) a rating of at least BBB from
S&P and Baa2 from Moody’s. If such Person shall publish reports of
condition at least annually pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.02.



 28
 






 



 


Section
10.02           Resignation or Removal of Owner Trustee.


(a)           The Owner Trustee may at any time
resign and be discharged from the trusts hereby created by giving 30 days’
prior written notice thereof to the Trust Depositor. Upon receiving such notice
of resignation, the Trust Depositor shall promptly appoint a successor Owner
Trustee meeting the qualifications set forth in Section 10.01 by written
instrument, in duplicate, one copy of which instrument shall be delivered to
the resigning Owner Trustee and one copy to the successor Owner Trustee. If no
successor Owner Trustee shall have been so appointed and have accepted
appointment within 60 days after the giving of such notice of resignation, the
resigning Owner Trustee, at the expense of the Trust Depositor, may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.


(b)           If at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of Section
10.01 and shall fail to resign after written request therefor by the Trust
Depositor, or if at any time the Owner Trustee shall be legally unable to act,
or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Owner Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation or at any time with or without
cause, then the Trust Depositor may remove the Owner Trustee. If the Trust
Depositor shall remove the Owner Trustee under the authority of the immediately
preceding sentence, the Trust Depositor shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Owner Trustee so removed, and one copy to
the successor Owner Trustee, and shall pay all fees owed to the outgoing Owner
Trustee (as such and in its individual capacity).


(c)           Any resignation or removal of the
Owner Trustee and appointment of a successor Owner Trustee pursuant to any of
the provisions of this Section shall not become effective until the appointment
by the successor Owner Trustee pursuant to Section 10.03 has become
effective and, in the case of removal, payment of all accrued and unpaid fees
and expenses owed to the outgoing Owner Trustee as such and in its individual
capacity. The Trust Depositor shall provide notice of such resignation or
removal of the Owner Trustee to all Holders, the Trustee, the Servicer, the
Paying Agent and each Rating Agency.


Section
10.03           Successor Owner Trustee.


(a)           Any
successor Owner Trustee appointed pursuant to Section 10.02 shall
execute, acknowledge and deliver to the Trust Depositor and to its predecessor
Owner Trustee an instrument accepting such appointment under this Trust
Agreement, and thereupon the resignation or removal of the predecessor Owner
Trustee shall become effective, and such successor Owner Trustee, without any
further act, deed or conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this Trust Agreement,
with like effect as if originally named as Owner Trustee. The predecessor Owner
Trustee shall upon payment of fees and expenses owing to it in its individual
capacity deliver to the successor Owner Trustee all documents and statements
and monies held by it under this Trust Agreement; and the Trust Depositor and
the predecessor Owner Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and



 29
 






 



 


certainly
vesting and confirming in the successor Owner Trustee all such rights, powers,
duties and obligations.


(b)        No
successor Owner Trustee shall accept appointment as provided in this Section unless
at the time of such acceptance such successor Owner Trustee shall be eligible
pursuant to Section 10.01.


(c)         Upon
acceptance of appointment by a successor Owner Trustee pursuant to this
Section, the Trust Depositor shall mail notice thereof to all Holders, the
Trustee, the Servicer, each Rating Agency and the Paying Agent. If the Trust
Depositor shall fail to mail such notice within ten days after acceptance of
such appointment by the successor Owner Trustee, the successor Owner Trustee
shall cause such notice to be mailed at the expense of the Trust Depositor.


Section
10.04         Merger or Consolidation of Owner Trustee.


Any Person into which the
Owner Trustee may be merged or converted or with which it may be consolidated,
or any Person resulting from any merger, conversion or consolidation to which
the Owner Trustee shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall
be the successor of the Owner Trustee hereunder, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided that such Person shall be
eligible pursuant to Section 10.01; and, provided  further
that the Owner Trustee shall mail notice of such merger or consolidation to all
Holders, each Rating Agency, the Paying Agent, the Certificate Registrar, the
Trustee, the Servicer and the Trust Depositor.


Section
10.05         Appointment of Co-Trustee or Separate Trustee.


(a)         Notwithstanding
any other provisions of this Trust Agreement, at any time, for the purpose of
meeting any legal requirements of any jurisdiction in which any part of the
Trust Estate may at the time be located, the Trust Depositor and the Owner
Trustee acting jointly shall have the power and authority to execute and
deliver all instruments to appoint one or more Persons approved by the Trust
Depositor and Owner Trustee to act as co–trustee, jointly with the Owner
Trustee, or as separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust Estate or any part thereof and, subject to the other provisions of this Section
10.05, such powers, duties, obligations, rights and trusts as the Trust
Depositor and the Owner Trustee may consider necessary or desirable. If the
Trust Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, the Owner Trustee alone shall have the
power, authority and authorization to make such appointment. No co–trustee or
separate trustee under this Trust Agreement shall be required to meet the terms
of eligibility as a successor Owner Trustee pursuant to Section 10.01
and no notice of the appointment of any co–trustee or separate trustee shall be
required pursuant to Section 10.03.


(b)        Each separate trustee and co–trustee
shall, to the extent permitted by any Applicable Law, be appointed and act
subject to the following provisions and conditions:



 30
 






 



 


(i)               all
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co–trustee jointly (it being understood that such
separate trustee or co–trustee is not authorized to act separately without the
Owner Trustee joining in such act), except to the extent that under any
Applicable Law of any jurisdiction in which any particular act or acts are to
be performed, the Owner Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust Estate or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such separate
trustee or co–trustee, but solely at the direction of the Owner Trustee;


(ii)              no
separate trustee or co–trustee under this Trust Agreement or the Owner Trustee
shall be personally liable by reason of any act or omission of any other
trustee under this Trust Agreement; and


(iii)             the
Trust Depositor and the Owner Trustee acting jointly may at any time accept the
resignation of or remove any separate trustee or co–trustee.


(c)           Any notice, request or other writing
given to the Owner Trustee shall be deemed to have been given to each of the
then separate trustees and co–trustees, as effectively as if given to each of
them. Every instrument appointing any separate trustee or co–trustee shall
refer to this Trust Agreement and the conditions of this Article X. Each
separate trustee and co–trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Owner Trustee or separately, as may be
provided therein, subject to all the provisions of this Trust Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the Owner
Trustee. Each such instrument shall be filed with the Owner Trustee and a copy
thereof given to each of the Trust Depositor, the Trustee, the Paying Agent and
the Servicer.


(d)           Any
separate trustee or co–trustee may at any time appoint the Owner Trustee as its
agent or attorney–in–fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name, and the Owner Trustee shall have the
full power and authority to delegate its responsibilities to the Servicer as
provided for herein and in the other Transaction Documents. If any separate
trustee or co–trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor co–trustee or separate trustee.



 31
 






 



 


ARTICLE
XI


MISCELLANEOUS


Section 11.01         Supplements
and Amendments.


(a)           This Trust Agreement may be amended
by the Trust Depositor and the Owner Trustee without the consent of the
Noteholders or the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions in this Trust Agreement or for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions in this Trust Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders; provided
that such action shall not, as evidenced by an Opinion of Counsel, materially
adversely affect the interests of any Noteholder or Certificateholder.


(b)           Except as provided in Section
11.01(a), this Trust Agreement may be amended from time to time by the
Trust Depositor and the Owner Trustee, with the consent of the Majority
Noteholders, and, to the extent materially adversely affected thereby, the
consent of the Majority Certificateholders (which consents shall be conclusive
and binding on such Certificateholder or Noteholder and all future
Certificateholders or Noteholders and of any Certificate or Note issued upon
the transfer thereof or in exchange thereof a in lieu thereof whether or not
notation of such consent is made upon the Certificate or Note), for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Trust Agreement or of modifying in any manner the rights of
the Noteholders or the Certificateholders hereunder; provided that no such amendment shall (a) increase or reduce
in any manner the amount of, or accelerate or delay the timing of any amounts
received on the Loans which are required to be distributed on any Note or
Certificate without the consent of the Holder of that Note or Certificate or
(b) reduce the aforesaid percentage of Noteholders and the aggregate Percentage
Interest of Certificateholders required to consent to any such amendment,
without the consent of the holders of all the outstanding Notes and
Certificates.


(c)           Promptly after the execution of any
such amendment or consent, the Owner Trustee shall furnish written notification
of the substance of such amendment or consent to each Certificateholder and a
copy of each such amendment or consent to the Paying Agent, the Trustee, the
Servicer and each Rating Agency.


(d)           It shall not be necessary for the
consent of Certificateholders or Noteholders pursuant to this Section 11.01
to approve the particular form of any proposed amendment or consent, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Certificateholders
or Noteholders provided for in this Trust Agreement or in any other Transaction
Document) and of evidencing the authorization of the execution thereof by
Certificateholders or Noteholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.


(e)           Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State of
Delaware.



 32
 






 



 


(f)         Prior
to the execution of any amendment to this Trust Agreement or the Certificate of
Trust, the Owner Trustee at the expense of the Trust, shall be entitled to
receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Trust Agreement and that all
conditions precedent to the execution and delivery of such amendment has been
satisfied. The Owner Trustee and the Trust Company may, but shall not be
obligated to, enter into any such amendment that affects the Owner Trustee’s or
the Trust Company’s own rights, duties or immunities under this Trust Agreement
or otherwise. Notwithstanding any other provision herein or elsewhere, no
provision, amendment, supplement, waiver, or consent of or with respect to any
of the Transaction Documents that affects any right, power, authority, duty,
benefit, protection, privilege, immunity or indemnity of the Owner Trustee or
the Trust Company shall be binding on the Owner Trustee or the Trust Company
unless the Owner Trustee and the Trust Company shall have expressly consented
thereto in writing.


Section
11.02         No Legal Title to Trust Estate in Certificateholders.


The Certificateholders
shall not have legal title to any part of the Trust Estate. The
Certificateholders shall be entitled to receive distributions with respect to
their undivided beneficial ownership interest therein only in accordance with Articles
V and IX. No transfer, by operation of law or otherwise, of any
right, title or interest of the Certificateholders to and in their beneficial
ownership interest in the Trust Estate shall operate to dissolve the Trust or
terminate this Agreement or the trusts hereunder or entitle any transferee to
an accounting or to the transfer to it of legal title to any part of the Trust
Estate.


Section
11.03         Limitations on Rights of Others.


The provisions of this
Trust Agreement are solely for the benefit of the Owner Trustee, the Trust
Company, the Indemnified Parties, the Trust Depositor, the Certificateholders
and, to the extent expressly provided herein, the Trustee and the Noteholders,
and nothing in this Trust Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Estate or under or in respect of this Trust Agreement or any
covenants, conditions or provisions contained herein.


Section
11.04         Notices.


(a)         Any request, demand, authorization,
direction, notice, consent, waiver or Act of Certificateholders or other
documents provided or permitted by this Trust Agreement shall be in writing to
and mailed, return receipt requested, hand delivered, sent by overnight courier
service guaranteeing next day delivery or by facsimile or telecopy in legible
form, if to the Owner Trustee, addressed to its Corporate Trust Office; if to
either of the Certificate Registrar or Paying Agent, addressed to their
Corporate Trust Office; or if to the Trust Depositor, addressed to ARCC CLO
2006 LLC, 280 Park Avenue, 22nd Floor, Building East, New York, New York 10017,
Attention: Michael J. Arougheti, Facsimile No.: (212) 750-1777; or if to a
Certificateholder shall be given by first–class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register.



 33
 






 



 


(b)        Delivery
of any request, demand, authorization, direction, notice, consent, waiver or
act of Noteholders or other documents made as provided above will be deemed
effective (except that notice to the Owner Trustee shall be deemed given only
upon actual receipt by the Owner Trustee): 
(i) if in writing and delivered in Person or by overnight courier
service, on the date it is delivered; (ii) if sent by facsimile transmission,
on the date that transmission is received by the recipient in legible form (it
being agreed that the burden of proving receipt will be on the sender and will
not be met by a transmission report generated by the sender’s facsimile
machine); and (iii) if sent by mail, on the date that mail is delivered or its
delivery is attempted; in each case, unless the date of that delivery (or
attempted delivery) or that receipt, as applicable, is not a Business Day or
that communication is delivered (or attempted) or received, as applicable,
after the close of business on a Business Day, in which case that communication
shall be deemed given and effective on the first following day that is a
Business Day.


Section
11.05         Severability.


Any provision of this
Trust Agreement that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.


Section
11.06         Separate Counterparts.


This Trust Agreement may
be executed by the parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.


Section
11.07         Successors and Assigns.


All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
each of the Trust Depositor, the Owner Trustee, the Trust Company, each
Certificateholder and their respective successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Certificateholder shall bind the successors and
assigns of such Certificateholder.


Section
11.08         No Petition.


(a)         The Trust Depositor
shall not be liable for the default or misconduct of the Owner Trustee, the
Trustee or the Paying Agent under any of the Transaction Documents or this
Trust Agreement or otherwise and, except as expressly provided herein or in the
Transaction Documents, the Trust Depositor shall have no obligation or
liability to perform the obligations of the Trust under this Trust Agreement or
the Transaction Documents that are required to be performed by the Owner
Trustee or the Trustee.


(b)        The
Trust Depositor will not, prior to the date which is one year and one day (or,
if longer, the applicable preference period then in effect) after payment in
full of each Class of Offered Notes rated by any Rating Agency (or such longer
preference period as shall then be in



 34
 






 



 


effect),
institute against the Trust any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, this Trust Agreement or any of the
other Transaction Documents.


(c)         The
Owner Trustee, by entering into this Trust Agreement, each Certificateholder,
by accepting a Certificate, and the Trustee and each Noteholder, by accepting
the benefits of this Trust Agreement, hereby covenant and agree that they will
not, prior to the date which is one year and one day (or if longer, the
applicable preference period as shall then be in effect) after payment in full
of each Class of Notes rated by any Rating Agency (or such longer preference
period as shall then be in effect), institute against the Trust, or join in any
institution against the Trust of, any bankruptcy proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to the Certificates, the Notes, this Trust Agreement or
any of the other Transaction Documents.


(d)        The
provisions of this Section 11.08 shall survive the termination of this
Trust Agreement for any reason whatsoever.


Section
11.09         No Recourse.


Each Certificateholder by
accepting a Certificate acknowledges that such Certificateholder’s Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Trust Depositor, the Servicer, the Originator, the
Owner Trustee, the Trustee, the Paying Agent, the Certificate Registrar or any
Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Trust
Agreement, the Certificates or the Transaction Documents. The right to
distributions of the assets of the Trust or the proceeds thereof arising under
this Agreement or the Certificates shall be payable solely in accordance with
the priority set forth in Section 7.05 of the Sale and Servicing
Agreement until the final discharge of the Indenture, and no Certificateholder
shall have any recourse against the Trust except in accordance therewith. The
provisions of this Section 11.09 shall survive any termination of this
Agreement.


Section
11.10         Headings.


The headings of the
various Articles and Sections herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.


Section
11.11         GOVERNING LAW.


THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.


[Remainder
of Page Intentionally Left Blank.]



 35














 


 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
respective officers hereunto duly authorized, as of the day and year first
above written.


	
  

  	
  ARCC CLO 2006 LLC, as Trust Depositor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Ares Capital Corporation, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michael Arougheti

  
	
   

  	
  Name:

  	
   

  	
  Michael Arougheti

  
	
   

  	
  Title: 

  	
   

  	
  President

  
							



 


ARCC Commercial Loan
Trust 2006


Amended and Restated
Trust Agreement









 



 


IN WITNESS WHEREOF,
the parties hereto have caused this Trust Agreement to be duly executed by
their respective officers hereunto duly authorized, as of the day and year
first above written.


	
  

  	
  WILMINGTON
  TRUST COMPANY, as Owner

  
	
   

  	
  Trustee and as the Trust Company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Michele C.
  Harra

  
	
   

  	
  Name:

  	
   

  	
  Michele C. Harra

  
	
   

  	
  Title: 

  	
   

  	
  Financial
  Services Officer

  
						



 









 



 


IN WITNESS WHEREOF,
the parties hereto have caused this Trust Agreement to be duly executed by
their respective officers hereunto duly authorized, as of the day and year
first above written.


	
  

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as

  
	
   

  	
  Trustee, hereby accepts the appointment as 

  
	
   

  	
  Certificate Registrar and Paying Agent pursuant to

  
	
   

  	
  Sections 3.04 and 3.09
  hereof.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Joel D. Cough

  
	
   

  	
  Name:

  	
   

  	
  Joel D. Cough

  
	
   

  	
  Title: 

  	
   

  	
  Assistant Vice President

  
						



 















 


EXHIBIT A


FORM OF
TRUST CERTIFICATE


THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR
ANY STATE SECURITIES LAWS.  THE HOLDER
HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE
STATE SECURITIES LAWS AND TO A PERSON WHO HAS FURNISHED TO THE OWNER TRUSTEE
(A) AN INVESTMENT LETTER TO THE EFFECT THAT SUCH PURCHASER IS THE TRUST
DEPOSITOR OR AN AFFILIATE THEREOF, OR A QUALIFIED INSTITUTIONAL BUYER FOR
PURPOSES OF RULE 144A UNDER THE ACT AND (B) IF REQUIRED, AN OPINION OF COUNSEL
SATISFACTORY TO THE OWNER TRUSTEE.


THIS CERTIFICATE MAY NOT BE ACQUIRED
DIRECTLY OR INDIRECTLY BY, ON BEHALF OF OR WITH ANY ASSETS OF ANY EMPLOYEE
BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”) THAT IS SUBJECT TO TITLE I OF
ERISA OR A “PLAN” AS DEFINED IN AND SUBJECT TO SECTION 4975 OF THE CODE (A “BENEFIT
PLAN”).  FURTHER, THIS CERTIFICATE
MAY BE TRANSFERRED ONLY TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION
7701(a)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.


THIS CERTIFICATE IS NOT GUARANTEED OR
INSURED BY ANY GOVERNMENTAL AGENCY.


NO CERTIFICATE MAY BE ACQUIRED OR
OWNED BY ANY PERSON THAT IS CLASSIFIED FOR U.S. FEDERAL INCOME TAX PURPOSES AS
A PARTNERSHIP, SUBCHAPTER S CORPORATION OR GRANTOR TRUST UNLESS SUCH PERSON
REPRESENTS IN WRITING THAT (I) THE VALUE OF THE CERTIFICATES AND CLASS E NOTES
PROPOSED TO BE TRANSFERRED TO SUCH PERSON, TOGETHER WITH THE VALUE OF ANY
CERTIFICATES AND TRUST CERTIFICATES ALREADY HELD BY SUCH PERSON, WILL NOT
CONSTITUTE SUBSTANTIALLY ALL OF THE VALUE OF THE ASSETS OF SUCH PERSON AND (II)
SUCH PERSON IS NOT PART OF ANY ARRANGEMENT THE PRINCIPAL PURPOSE OF WHICH IS TO
CAUSE THE CERTIFICATES AND CLASS E NOTES TO BE TREATED AS OWNED BY 100 PERSONS
OR LESS WITHIN THE MEANING OF TREAS. REG. § 1.7704 1(H)(1)(II).


NO CERTIFICATE (OR INTEREST THEREIN)
MAY BE ACQUIRED BY ANY PERSON UNLESS SUCH PERSON REPRESENTS THAT IT HAS NOT
ACQUIRED THE CERTIFICATES PURSUANT TO A TRADE ON AN “ESTABLISHED SECURITIES
MARKET” AND AGREES THAT IT WILL NOT TRADE ANY CERTIFICATES ON AN “ESTABLISHED
SECURITIES MARKET.” FOR THIS



 A-1-1
 






 



 


PURPOSE, THE TERM “ESTABLISHED
SECURITIES MARKET” INCLUDES ANY NATIONAL SECURITIES EXCHANGE REGISTERED UNDER
SECTION 6 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, OR EXEMPTED FROM
REGISTRATION BECAUSE OF THE LIMITED VOLUME; ANY FOREIGN SECURITIES EXCHANGE
THAT, UNDER THE LAWS OF THE JURISDICTION WHERE IT IS ORGANIZED, SATISFIES
REGULATORY REQUIREMENTS THAT ARE ANALOGOUS TO THE REGULATORY REQUIREMENTS
IMPOSED UNDER THE SECURITIES EXCHANGE ACT OF 1934; ANY REGIONAL OR LOCAL
EXCHANGE; AND ANY INTERDEALER QUOTATION SYSTEM THAT REGULARLY DISSEMINATES FIRM
BUY AND SELL QUOTATIONS BY IDENTIFIED BROKERS OR DEALERS, BY ELECTRONIC MEANS
OR OTHERWISE.


NO TRANSFER, SALE, PLEDGE OR OTHER
DISPOSITION OF ONE OR MORE CERTIFICATES (A “TRANSFER”) SHALL BE MADE UNLESS
SIMULTANEOUSLY WITH THE TRANSFER (1) A PROPORTIONATE AMOUNT OF CLASS E NOTES
ARE TRANSFERRED SO THAT THE PERCENTAGE INTEREST OF THE CERTIFICATES SO
TRANSFERRED EQUALS THE PERCENTAGE INTEREST OF THE CLASS E NOTES SO TRANSFERRED,
(2) THE TRANSFERS OF THE CERTIFICATES AND CLASS E NOTES REFERRED TO HEREIN ARE
MADE TO THE SAME PERSON AND (3) THE PERCENTAGE INTEREST OF THE CERTIFICATES AND
CLASS E NOTES, RESPECTIVELY, SO TRANSFERRED IS NO LESS THAN TEN (10%) PERCENT.



 A-1-2
 






 



 


	
  NUMBER           

  	
   

  	
  CUSIP NO.         

  	
   

  	
  PERCENTAGE
  INTEREST:           

  



 


ARCC
COMMERCIAL LOAN TRUST 2006


CERTIFICATE


Evidencing a beneficial ownership interest in the
Trust, as defined below, the property of which includes primarily the Loans
transferred to the Trust by ARCC CLO 2006 LLC.


(This
Certificate does not represent an interest in or obligation of ARCC CLO 2006
LLC, Ares Capital Corporation (the “Servicer”) or the Owner Trustee (as
defined below) (as such or in its individual capacity) or any of their
respective affiliates, except to the extent described below.)


THIS CERTIFIES THAT ARCC
CLO 2006 LLC is the registered owner of the nonassessable, fully paid,
beneficial ownership interest in ARCC COMMERCIAL LOAN TRUST 2006 (the “Trust”)
formed by ARCC CLO 2006 LLC, in the Percentage Interest evidenced hereby.


The Trust was created
pursuant to a Trust Agreement, dated as of June 21, 2006 (as amended and
restated as of July 7, 2006 and as further amended, modified, restated, waived,
substituted or supplemented from time to time, the “Trust Agreement”),
between ARCC CLO 2006 LLC, as trust depositor (the “Trust Depositor”),
and Wilmington Trust Company, as owner trustee (the “Owner Trustee”), a
summary of certain of the pertinent provisions of which is set forth
below.  To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
the Trust Agreement.


This Certificate is one
of a duly authorized issue of ARCC Commercial Loan Trust 2006 Certificates
(herein called the “Certificates”). 
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Certificate by virtue of its acceptance hereof assents and by which such
holder is bound.


Under the Trust Agreement,
there will be distributed on the 20th day of each December, March, June and
September or, if such 20th day is not a Business Day, the next Business
Day (each, a “Distribution Date”), commencing on December 20, 2006, to
the Person in whose name this Trust Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the
Distribution Date (the “Record Date”), such Certificateholder’s
Percentage Interest in the amount to be distributed to Certificateholders on
such Distribution Date pursuant to the terms of the Sale and Servicing
Agreement and the Indenture.


The Holder of this
Certificate acknowledges and agrees that its rights to receive distributions in
respect of this Certificate are subordinated to the rights of the Noteholders
as described in the Sale and Servicing Agreement and the Indenture.


It is the intent of the
Trust Depositor, the Servicer, the Class E Noteholders and the
Certificateholders that, (i) in the event that the Certificates and the Class E
Notes are owned by a single Holder, for federal income tax purposes, the Trust
will be treated as a division of such



 A-1-3
 






 



 


Holder, and such Holder, by acceptance of the
Certificates and the Class E Notes, agrees to take no action inconsistent with
such treatment and (ii) in the event that the Certificates and/or the Class E
Notes are owned by more than one Holder, for federal income tax purposes, the
Trust will be treated as a partnership, the partners of which are the
Certificateholders and the Class E Noteholders, and the Certificateholders and
the Class E Noteholders, by acceptance of a Certificate and a Class E Note,
respectively, agree to treat the Certificates and the Class E Notes as equity
and to take no action inconsistent with such treatment.


Each Certificateholder,
by its acceptance of a Certificate, covenants and agrees that such
Certificateholder, will not prior to the date which is one year and one day
(or, if longer, the applicable preference period then in effect) after the
payment in full of each Class of Notes rated by any Rating Agency, institute
against the Trust, or join in any institution against the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates,
the Notes, the Trust Agreement or any of the other Transaction Documents.


Distributions on this
Certificate will be made as provided in the Trust Agreement by the Paying Agent
by wire transfer or check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon. 
Except as otherwise provided in the Trust Agreement and notwithstanding
the above, the final distribution on this Certificate will be made after due
notice by the Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained for that purpose by the Paying Agent.


Reference is hereby made
to the further provisions of this Certificate set forth on the reverse hereof,
which further provisions shall for all purposes have the same effect as if set
forth at this place.


Unless the certificate of
authentication hereon shall have been executed by an authorized officer of the
Owner Trustee or the Certificate Registrar, by manual signature, this
Certificate shall not entitle the Holder hereof to any benefit under the Trust Agreement
or the Sale and Servicing Agreement or be valid for any purpose.


THIS
CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH  THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.



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IN
WITNESS WHEREOF, the Owner Trustee or the Certificate
Registrar, on behalf of the Trust and not in its individual capacity, has
caused this Certificate to be duly executed.


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARCC COMMERCIAL LOAN TRUST 2006

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  WILMINGTON TRUST COMPANY,

  solely as Owner Trustee and not in its

  individual capacity

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  



 


OWNER TRUSTEE’S CERTIFICATE OF AUTHENTICATION


This is one of the Certificates of ARCC Commercial
Loan Trust 2006 referred to in the within-mentioned Trust Agreement.


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  WILMINGTON TRUST COMPANY,
  solely as

  Owner Trustee and not in its individual capacity

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  or

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,
  as

  Certificate Registrar

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  



 



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[REVERSE
OF CERTIFICATE]


The Certificates do not
represent an obligation of, or an interest in, the Trust Depositor, the
Servicer, the Owner Trustee or any affiliates of any of them and no recourse
may be had against such parties or their assets, except as expressly set forth
or contemplated herein or in the Trust Agreement, the Indenture or the
Transaction Documents.  In addition, this
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries with respect
to the Loans (and certain other amounts), all as more specifically set forth
herein and in the Transaction Documents. 
A copy of each of the Transaction Documents may be examined by any
Certificateholder upon written request during normal business hours at the
principal office of the Trust Depositor and at such other places, if any,
designated by the Trust Depositor.


The Trust Agreement
permits, with certain exceptions therein provided, the amendment thereof and
the modification of the rights and obligations of the Trust Depositor and the rights
of the Certificateholders under the Trust Agreement at any time, by the Trust
Depositor and the Owner Trustee with the consent of the holders of the
Certificates evidencing not less than a majority of the outstanding Percentage
Interest and of the holders of the Majority Noteholders, each voting as a
class.  Any such consent by the holder of
this Certificate shall be conclusive and binding on such holder and on all
future holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent is made upon this Certificate.  The Trust Agreement also permits the
amendment thereof, in certain limited circumstances, without the consent of the
holders of any of the Certificates.


As provided in the Trust
Agreement and subject to certain limitations therein set forth, the transfer of
this Certificate is registerable in the Certificate Register upon surrender of
this Certificate for registration of transfer at the offices or agencies of the
Certificate Registrar, accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed
by the holder hereof or such holder’s attorney duly authorized in writing, and
thereupon one or more new Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.  The initial Certificate
Registrar appointed under the Trust Agreement is U.S. Bank National
Association.


The Certificates are
issuable only as registered Certificates without coupons in minimum Percentage
Interests of 10% and integral multiples of 1% in excess thereof; provided that one Certificate may be
issued in a different denomination.  As
provided in the Trust Agreement and subject to certain limitations therein set
forth, Certificates are exchangeable for new Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
holder surrendering the same.  No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.


The Owner Trustee, the
Certificate Registrar and any agent of the Owner Trustee or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.



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This Certificate may not
be acquired directly or indirectly by, on behalf of or with any assets of any
employee benefit plan as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) that is subject to
Title I of ERISA or a “plan” as defined in and subject to Section 4975 of the
Code (a “Benefit Plan”).  By
accepting and holding this Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not any of the foregoing entities.


This Certificate may not be transferred to any person
who is not a U.S. Person, as such term is defined in Section 7701(a)(30) of the
Internal Revenue Code, as amended.


Each purchaser of the
Certificates shall be required, prior to purchasing a Certificate, to execute
the Purchaser’s Representation and Warranty Letter in the form attached to the
Trust Agreement as Exhibit C.


The obligations and
responsibilities created by the Trust Agreement and the Trust created thereby
shall terminate upon (i) the payment to Certificateholders of all amounts
required to be paid to them pursuant to the Trust Agreement and the Sale and
Servicing Agreement and the disposition of all property held as part of the
Trust and (ii) the written consent of the Certificateholders.  The Servicer on behalf of the Trustee has the
option to cause the sale of the corpus of the Trust at a price and pursuant to
auction procedures specified in the Indenture and the Sale and Servicing
Agreement, and such sale of the receivables and other property of the Trust
will effect early retirement of the Certificates.



 A-1-7
 






 



 


ASSIGNMENT


FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto


PLEASE INSERT
SOCIAL SECURITY OR

OTHER IDENTIFYING NUMBER OF ASSIGNEE


	
   

  
	
  (Please print or type name
  and address, including postal zip code, of assignee)

  
	
   

  
	
   

  
	
  the within
  Certificate, and all rights thereunder, hereby irrevocably constituting and
  appointing

  
	
   

  
	
   

  
	
  to transfer said
  Certificate on the books of the Certificate Registrar, with full power of
  substitution in the premises.

  
	
   

  
	
   

  	
   

  
	
  Dated:

  



 


	
  

  	
   

  	
  *

  
	
   

  	
  Signature
  Guaranteed:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  *

  



 






* NOTICE:  The signature to this assignment must
correspond with the name as it appears upon the face of the within Certificate
in every particular, without alteration, enlargement or any change
whatever.  Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.



 A-1-8














 


EXHIBIT
B


CERTIFICATE
OF TRUST

OF

ARCC COMMERCIAL LOAN TRUST 2006


This Certificate of Trust
of ARCC Commercial Loan Trust 2006 (the “Trust”), is being duly executed
and filed by the undersigned, as owner trustee, to form a statutory trust under
the Delaware Statutory Trust Act (12 Del. Code, § 3801 et seq.) (the “Act”).


1.             Name.  The name of the statutory trust formed hereby
is ARCC Commercial Loan Trust 2006 .


2.             Delaware Trustee.  The name and business address of the owner
trustee of the Trust having its principal place of business in the State of
Delaware is Wilmington Trust Company, 1100 North Market Street, Wilmington,
Delaware 19801, Attention: Corporate Trust Administration.


3.             Effective Date.  This Certificate of Trust shall be effective
upon its filing with the Secretary of State of the State of Delaware.


IN WITNESS WHEREOF,
the undersigned being the only owner trustee of the Trust, has duly executed
this Certificate of Trust in accordance with Section 3811(a)(1) of the Act.


 


	
  

  	
   

  	
  WILMINGTON TRUST COMPANY, not in its

  individual capacity but solely as owner trustee of

  the Trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 



 B-1-1














 


EXHIBIT
C


[Form of
Purchaser’s Representation and Warranty Letter]


ARCC Commercial
Loan Trust 2006

c/o Wilmington Trust Company, as Owner Trustee

1100 North Market Street

Wilmington, Delaware  19801

Attention:  Corporate Trust
Administration


Re:          ARCC Commercial Loan Trust 2006


Ladies and Gentlemen:


In connection with our
proposed acquisition of Certificates (the “Certificates”) issued under
the Trust Agreement, dated as of June 21, 2006 (as amended and restated as of
July 7, 2006 and as further amended, modified, restated, replaced, waived,
substituted, supplemented or extended from time to time, the “Agreement”;
capitalized terms used but not defined herein shall have the meanings given to
such terms in the Agreement), between ARCC CLO 2006 LLC, as Trust Depositor
(the “Trust Depositor”), and Wilmington Trust Company, as Owner Trustee,
the undersigned (the “Purchaser”) represents, warrants and agrees that:


4.             It is the Trust Depositor or an Affiliate thereof, or a
Qualified Institutional Buyer (a “QIB”) for purposes of Rule 144A under
the Securities Act and is acquiring the Certificates for its own institutional
account or for the account of a QIB.


5.             It is not an employee benefit plan as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)
that is subject to Title I of ERISA or a “plan” as defined in and subject to
Section 4975 of the Code (a “Benefit Plan”), and is not acquiring
Certificates directly or indirectly by, on behalf of or with any assets of any
such Benefit Plan.


6.             It is a U.S. Person as defined in Section 7701(a)(30) of
the Code.


7.             It has such knowledge and experience
in evaluating business and financial matters so that it is capable of
evaluating the merits and risks of an investment in the Certificates.  It understands the full nature and risks of
an investment in the Certificates and based upon its present and projected net
income and net worth, it believes that it can bear the economic risk of an
immediate or future loss of its entire investment in the Certificates.


8.             It understands that the Certificates
will be offered in a transaction not involving any public offering within the
meaning of the Securities Act, and that, if in the future it decides to resell,
pledge or otherwise transfer any Certificates, such Certificates may be resold,
pledged or transferred only (a) to a person who the seller reasonably believes
is a QIB that purchases for its own account or for the account of another QIB
or (b) pursuant to an effective registration statement under the Securities
Act.



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9.             It understands that each Certificate
will bear a legend substantially to the following effect:


THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES LAWS.  THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND TO
A PERSON WHO HAS FURNISHED TO THE OWNER TRUSTEE (A) AN INVESTMENT LETTER TO THE
EFFECT THAT SUCH PURCHASER IS THE TRUST DEPOSITOR OR AN AFFILIATE THEREOF, OR A
QUALIFIED INSTITUTIONAL BUYER FOR PURPOSES OF RULE 144A UNDER THE ACT AND (B)
IF REQUIRED, AN OPINION OF COUNSEL SATISFACTORY TO THE OWNER TRUSTEE.


THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY
BY, ON BEHALF OF OR WITH ANY ASSETS OF ANY EMPLOYEE BENEFIT PLAN AS DEFINED IN
SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”) THAT IS SUBJECT TO TITLE I OF ERISA OR A “PLAN” AS DEFINED IN
AND SUBJECT TO SECTION 4975 OF THE CODE (A “BENEFIT PLAN”).  FURTHER, THIS TRUST CERTIFICATE MAY BE
TRANSFERRED ONLY TO A UNITED STATES PERSON WITHIN THE MEANING OF SECTION
7701(a)(30) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.


THIS
CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.


NO TRANSFER, SALE, PLEDGE OR OTHER DISPOSITION OF ONE OR MORE
CERTIFICATES (A “TRANSFER”) SHALL BE MADE UNLESS SIMULTANEOUSLY WITH THE
TRANSFER (1) A PROPORTIONATE AMOUNT OF CLASS E NOTES ARE TRANSFERRED SO THAT
THE PERCENTAGE INTEREST OF THE CERTIFICATES SO TRANSFERRED EQUALS THE
PERCENTAGE INTEREST OF THE CLASS E NOTES SO TRANSFERRED, (2) THE TRANSFERS OF
THE CERTIFICATES AND CLASS E NOTES REFERRED TO HEREIN ARE MADE TO THE SAME
PERSON, AND (3) THE PERCENTAGE INTEREST OF THE CERTIFICATE AND THE CLASS E
NOTES, RESPECTIVELY, SO TRANSFERRED IS NO LESS THAN TEN (10%) PERCENT.


10.           It is acquiring the Certificates for
its own account and not with a view to the public offering thereof in violation
of the Securities Act (subject, nevertheless, to the understanding that
disposition of its property shall at all times be and remain within its
control).


11.           It
has been furnished with all information regarding the Trust and Certificates which
it has requested from the Trust and the Trust Depositor.



 C-1-2
 






 



 


12.           Neither it nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise disposed of any
Certificate, any interest in any Certificate or any other similar security to,
or solicited any offer to buy or accept a transfer, pledge or other disposition
of any Trust Certificate, any interest in any Certificate or any other similar
security from, or otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with, any person in any manner or made any general solicitation by means of
general advertising or in any other manner, which would constitute a
distribution of the Certificates under the Securities Act or which would
require registration pursuant to the Securities Act nor will it act, nor has it
authorized or will authorize any person to act, in such manner with respect to
any Certificate.


13.           It
is an institutional accredited investor within the meaning of Rule
501(a)(1)-(3) or (7) under the Securities Act.


14.           It also is acquiring Class E Notes
such that the Percentage Interest of the Class E Notes being acquired and the
Percentage Interest of the Certificates being acquired to all Certificates are
equal.


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Very truly yours,

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NAME OF PURCHASER

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NOTE: To be executed by an

  executive officer

  
								



 



 C-1-3