AMENDMENT NO. 13 TO SALE AND SERVICING AGREEMENT (VFCC Transaction with Ares Capital CP Funding LLC)

Exhibit 10.1

EXECUTION COPY

AMENDMENT NO. 13 TO SALE AND SERVICING AGREEMENT
(VFCC Transaction with Ares Capital CP Funding LLC)

THIS AMENDMENT NO. 13 TO THE SALE AND SERVICING AGREEMENT, dated as of May 7, 2009 (this “Amendment”), is entered into in connection with that certain Sale and Servicing Agreement, dated as of November 3, 2004 (as amended, modified, waived, supplemented or restated through the date hereof, the “Sale and Servicing Agreement”), by and among Ares Capital CP Funding LLC, as the borrower (together with its successors and assigns in such capacity, the “Borrower”), Ares Capital Corporation, as the originator (together with its successors and assigns in such capacity, the “Originator”) and as the servicer (together with its successors and assigns in such capacity, the “Servicer”), each of the Conduit Purchasers and Institutional Purchasers from time to time party thereto, each of the Purchaser Agents from time to time party thereto, Wachovia Capital Markets, LLC, as the Administrative Agent (together with its successors and assigns in such capacity, the “Administrative Agent”) and as the Purchaser Agent with respect to Variable Funding Capital Company LLC (f/k/a Variable Funding Capital Corporation), as Conduit Purchaser (together with its successors and assigns in such capacity, the “VFCC Agent”), U.S. Bank National Association, as the trustee (together with its successors and assigns in such capacities, the “Trustee”), and Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio Services) as the backup servicer (together with its successors and assigns in such capacity, the “Backup Servicer”).  Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Sale and Servicing Agreement.

R E C I T A L S

WHEREAS, the above-named parties have entered into the Sale and Servicing Agreement;

WHEREAS, the parties hereto desire to acknowledge that Ares Capital CP Funding II LLC, a Delaware limited liability company, has become a party to the Sale and Servicing Agreement as a guarantor (in such capacity, a “Guarantor”) and hereby assumes its obligations as a Guarantor pursuant to and in accordance with the Sale and Servicing Agreement; and

WHEREAS, pursuant to and in accordance with Section 13.1 of the Sale and Servicing Agreement, the parties hereto desire to further amend the Sale and Servicing Agreement, in certain respects as provided herein;

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

SECTION 1.         AMENDMENTS.

The Sale and Servicing Agreement, including all exhibits and schedules thereto, is hereby amended such that, after giving effect to all such amendments, it shall read in its entirety as Exhibit A attached hereto.

SECTION 2.         SECURITY INTEREST.

(a)           The parties to this Amendment intend that the conveyance of the Collateral by the Borrower to the applicable Purchasers be treated as sales for all purposes other than financial accounting purposes.  If, despite such intention, a determination is made that such transactions not be treated as sales, then the parties hereto intend that this Amendment and the Sale and Servicing Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the applicable Purchasers to the Borrower under Applicable Law.  In addition to, and not in limitation of, any ownership interest now or hereafter acquired by any Purchasers, the Borrower hereby transfers, conveys, assigns and grants as of the Thirteenth Amendment Effective Date to the Trustee, for the benefit of the Secured Parties, a lien and continuing security interest in all of the Borrower’s right, title and interest in, to and under (but none of the obligations under) all Collateral (including any Hedging Agreements), whether now existing or hereafter arising or acquired by the Borrower, and wherever the same may be located, to secure the prompt, complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Aggregate Unpaids of the Borrower arising in connection with this Amendment, and the Sale and Servicing Agreement and each other Transaction Document, whether now or hereafter existing, due or to become due, direct or indirect, or absolute or contingent, including, without limitation, all Aggregate Unpaids.  The assignment under this Section 2(a) and under Section 9.1 of the Sale and Servicing Agreement does not constitute and is not intended to result in a creation or an assumption by the Trustee, the Administrative Agent, the Purchaser Agents, any Hedge Counterparty, the Liquidity Banks or any of the Secured Parties of any obligation of the Borrower or any other Person in connection with any or all of the Collateral or under any agreement or instrument relating thereto.  Anything herein to the contrary notwithstanding, (a) the Borrower shall remain liable under the Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Amendment and the Sale and Servicing Agreement had not been executed, (b) the exercise by the Trustee, for the benefit of the Secured Parties, of any of its rights in the Collateral shall not release the Borrower from any of its duties or obligations under the Collateral, and (c) none of the Administrative Agent, the Trustee, the Purchaser Agents, any Hedge Counterparty, the Liquidity Banks or any Secured Party shall have any obligations or liability under the Collateral by reason of this Amendment or the Sale and Servicing Agreement, nor shall the Administrative Agent, the Trustee, the Purchaser Agents, any Hedge Counterparty, the Liquidity Banks or any Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.

(b)           Notwithstanding the grant of the security interest in Section 2(a) above, it is not the intent of the parties hereto that this Amendment terminate, renew, change or modify the security interest that was granted under the Sale and Servicing Agreement as of the Closing Date, and the parties hereto hereby affirm that the security interest granted under the Sale and Servicing Agreement as of the Closing Date remains in full force and effect.  It is the intent of the parties hereto that all obligations are secured by the Collateral pursuant to the grants of the security interest in both Section 2(a) above and in the Sale and Servicing Agreement.

(c)           The Borrower authorizes the Trustee (acting at the direction of the Administrative Agent) to file one or more financing statements (each, a “Financing Statement”) describing the

2

Collateral, in any filing offices where the Administrative Agent deems it appropriate.  Any Financing Statement may describe the Collateral as “all assets” or “all personal property, whether now owned or later acquired” or a similar general phrase.

SECTION 3.         WAIVER.

Solely with respect to the Loans listed on Exhibit B attached hereto (the “Participation Loans”), each of the Borrower, the Servicer, the Administrative Agent, the Trustee and each Purchaser and its related Purchaser Agent hereby agree to a one-time waiver of clause (ff) of the definition of Eligible Loan as set forth in Section 1.1 of the Sale and Servicing Agreement and agree that the Participation Loans shall be subject to the grant in Section 2(a) of this Amendment and shall be included in the Collateral as of the date hereof; provided that any Participation Loan that subsequently complies with clause (ff) of the definition of Eligible Loan (without giving effect to this waiver) shall, at such time, no longer be a “Participation Loan”; provided, further, that if (i) on May 15, 2009, the aggregate Outstanding Loan Balance of the Participation Loans included in the Collateral exceeds $50,000,000 and (ii) on May 30, 2009, the aggregate Outstanding Loan Balance of the Participation Loans included in the Collateral exceeds $20,000,000, in each case then the Administrative Agent may, in its sole discretion, deem (by written notice to the Borrower and the Servicer) one or more Participation Loans to be Warranty Loans in a sufficient amount to reduce the aggregate Outstanding Principal Balance of the Participation Loans included in the Collateral to not exceed $50,000,000 (in the case of clause (i) hereof) or $20,000,000 (in the case of clause (ii) hereof).  This waiver shall expire on June 6, 2009, at which point all Participation Loans included in the Collateral shall, without any further action by any party, be deemed to be Warranty Loans.

SECTION 4.         CONSENT.

(a)           Pursuant to Section 5.2(j) of the Sale and Servicing Agreement, the Administrative Agent and each Purchaser Agent hereby consent to the amendment to the operating agreement of the Borrower as set forth on Exhibit C attached hereto.

(b)           Pursuant to Section 5.2(j) of the Sale and Servicing Agreement, the Administrative Agent and each Purchaser Agent hereby consent to the amendment to the Sale Agreement as set forth on Exhibit D attached hereto.

(c)           The Administrative Agent and each Purchaser Agent hereby consent, direct and authorize the Trustee to enter into this Amendment.

SECTION 5.         Agreement in Full Force and Effect as AMENDED.

Except as specifically amended hereby, all provisions of the Sale and Servicing Agreement are hereby ratified and shall remain in full force and effect.  After this Amendment becomes effective, all references to the Sale and Servicing Agreement, and corresponding references thereto or therein such as “hereof,” “herein,” or words of similar effect referring to the Sale and Servicing Agreement shall be deemed to mean the Sale and Servicing Agreement as amended hereby.  This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Sale and Servicing Agreement other than as expressly set forth herein, and shall not constitute a novation of the Sale and Servicing Agreement.

3

SECTION 6.         Representations.

(a)           Each of the Originator, the Servicer and the Borrower, severally for itself only, represents and warrants as of the date of this Amendment as follows:

(i)            it is duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization;

(ii)           the execution, delivery and performance by it of this Amendment and the Sale and Servicing Agreement as amended hereby are within its powers, have been duly authorized, and do not contravene (A) its charter, by-laws, or other organizational documents, or (B) any Applicable Law;

(iii)          no consent, license, permit, approval or authorization of, or registration, filing or declaration with any governmental authority, is required in connection with the execution, delivery, performance, validity or enforceability of this Amendment and the Sale and Servicing Agreement as amended hereby by or against it;

(iv)          this Amendment has been duly executed and delivered by it;

(v)           each of this Amendment and the Sale and Servicing Agreement as amended hereby constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally or by general principles of equity;

(vi)          it is not in default under the Sale and Servicing Agreement, as amended hereby; and

(vii)         upon giving effect to this Amendment, there is no Termination Event, Unmatured Termination Event, or Servicer Default.

(b)           Each of the Originator, the Servicer and the Borrower, severally for itself only, represents and warrants as of the date of this Amendment that there are no court or administrative orders, writs, judgments or decrees specifically directed to any of the Originator, the Servicer and the Borrower that are material to the financial condition or results of operations of any of the Originator, the Servicer and the Borrower.

(c)           Each of the Originator, the Servicer and the Borrower, severally for itself only, represents and warrants as of the date of this Amendment that, to its respective knowledge, there are no legal or governmental proceedings pending or threatened (i) asserting the invalidity of any of this Amendment, the Sale and Servicing Agreement, Amendment No. 1 to Sale Agreement dated as of the date hereof, the Sale Agreement and the Third Amended, Restated and Substituted Variable Funding Certificate dated as of the date hereof (collectively, the “Operative Documents”), (ii) seeking to prevent the consummation by any of the Originator, the Servicer or the Borrower of any of the transactions contemplated by the Operative Documents or (iii) which might materially and adversely affect the performance by any of the Originator, the Servicer or the Borrower of its respective obligations under the Operative Documents.

4

SECTION 7.         Conditions to Effectiveness.

The effectiveness of this Amendment is conditioned upon: (i) payment of the outstanding fees and disbursements of the Purchasers; (ii) payment of the outstanding fees and disbursements of Dechert LLP, as counsel to the Administrative Agent and the Purchasers; (iii) delivery of executed signature pages by all parties hereto to the Administrative Agent; (iv) delivery of the duly executed Third Amended, Restated and Substituted Variable Funding Certificate in the name of “Wachovia Bank, National Association, as the Institutional Purchaser” and in the face amount equal to $225,000,000; and (v) delivery of favorable opinions of counsel for the Originator, the Borrower and the Servicer in form and substance reasonably satisfactory to the Administrative Agent.

SECTION 8.         Miscellaneous.

(a)           Without in any way limiting any other obligation hereunder or under the Transaction Documents, the Borrower agrees to provide, from time to time, any additional documentation and to execute additional acknowledgements, amendments, instruments or other agreements as may be reasonably requested and required by the Administrative Agent to effectuate the foregoing.

(b)           This Amendment may be executed in any number of counterparts (including by facsimile), and by the different parties hereto on the same or separate counterparts, each of which shall be deemed to be an original instrument but all of which together shall constitute one and the same agreement.

(c)           The descriptive headings of the various sections of this Amendment are inserted for convenience of reference only and shall not be deemed to affect the meaning or construction of any of the provisions hereof.

(d)           This Amendment may not be amended or otherwise modified except as provided in the Sale and Servicing Agreement.

(e)           The failure or unenforceability of any provision hereof shall not affect the other provisions of this Amendment or the Sale and Servicing Agreement.

(f)            Whenever the context and construction so require, all words used in the singular number herein shall be deemed to have been used in the plural, and vice versa, and the masculine gender shall include the feminine and neuter and the neuter shall include the masculine and feminine.

(g)           This Amendment and the Sale and Servicing Agreement represent the final agreement between the parties only with respect to the subject matter expressly covered hereby and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements between the parties.  There are no unwritten oral agreements between the parties.

(h)           THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF

5

LAW PROVISIONS SET FORTH IN THE SALE AND SERVICING AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS SET FORTH IN THE SALE AND SERVICING AGREEMENT.

[Remainder of Page Intentionally Left Blank]

6

IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

Ares Capital CP Funding LLC
Amendment No. 13 to Sale and Servicing Agreement

[SIGNATURES CONTINUED ON FOLLOWING PAGE]

Ares Capital CP Funding LLC
Amendment No. 13 to Sale and Servicing Agreement

Ares Capital CP Funding LLC
Amendment No. 13 to Sale and Servicing Agreement

EXHIBIT A

CONFORMED SALE AND SERVICING AGREEMENT

EXECUTION COPY

Conformed Copy
(through Amendment No. 13)

U.S. $225,000,000

SALE AND SERVICING AGREEMENT

by and among

ARES CAPITAL CORPORATION,
as the Originator and as the Servicer

ARES CAPITAL CP FUNDING LLC,
as the Borrower

ARES CAPITAL CP FUNDING II LLC,
as the Guarantor

EACH OF THE CONDUIT PURCHASERS AND INSTITUTIONAL PURCHASERS
FROM TIME TO TIME PARTY HERETO,
as the Purchasers

EACH OF THE PURCHASER AGENTS FROM TIME TO TIME PARTY HERETO,
as the Purchaser Agents

WACHOVIA CAPITAL MARKETS, LLC,
as the Administrative Agent

U.S. BANK NATIONAL ASSOCIATION,
as the Trustee

and

LYON FINANCIAL SERVICES, INC. (D/B/A U.S. BANK PORTFOLIO SERVICES),
as the Backup Servicer

Dated as of November 3, 2004

TABLE OF CONTENTS

i

TABLE OF CONTENTS

(continued)

ii

TABLE OF CONTENTS

(continued)

iii

TABLE OF CONTENTS

(continued)

iv

TABLE OF CONTENTS

(continued)

v

EXHIBITS

THIS SALE AND SERVICING AGREEMENT (as amended, modified, waived, supplemented, restated or replaced from time to time, this “Agreement”) is made as of November 3, 2004, by and among:

(1)           ARES CAPITAL CORPORATION, a Maryland corporation (“Ares Capital Corporation”), as the originator (together with its successors and assigns in such capacity, the “Originator”), and as the servicer (together with its successors and assigns in such capacity, the “Servicer”);

(2)           ARES CAPITAL CP FUNDING LLC, a Delaware limited liability company, as the borrower (together with its successors and assigns in such capacity, the “Borrower”);

(3)           ARES CAPITAL CP FUNDING II LLC, a Delaware limited liability company, as the guarantor (together with its successors and assigns in such capacity, the “Guarantor”);

(4)           EACH OF THE CONDUIT PURCHASERS FROM TIME TO TIME PARTY HERETO, as a Conduit Purchaser;

(5)           EACH OF THE INSTITUTIONAL PURCHASERS FROM TIME TO TIME PARTY HERETO, as an Institutional Purchaser;

(6)           EACH OF THE PURCHASER AGENTS FROM TIME TO TIME PARTY HERETO, as a Purchaser Agent;

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

(8)           LYON FINANCIAL SERVICES, INC., a Minnesota corporation, doing business as U.S. Bank Portfolio Services (“Lyon”), not in its individual capacity but as the backup servicer (together with its successors and assigns in such capacity, the “Backup Servicer”); and

(9)           U.S. BANK NATIONAL ASSOCIATION, a national banking association (“U.S. Bank”), not in its individual capacity but as the trustee (together with its successors and assigns in such capacity, the “Trustee”).

R E C I T A L S

WHEREAS, the parties hereto, other than the Guarantor, previously entered into the Sale and Servicing Agreement dated as of November 3, 2004 (such agreement, as amended, modified or waived prior to the date hereof, the “Existing Agreement”);

WHEREAS, Section 13.1 of the Existing Agreement provides that no amendment shall be effective without the written agreement of the Borrower, the Administrative Agent, the Trustee and each Purchaser and its related Purchaser Agent;

WHEREAS, on the Thirteenth Amendment Effective Date, the parties hereto wish to amend the Existing Agreement in order to make certain changes agreed to by the parties hereto, including the addition of the Guarantor as a party hereto; and

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

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

ARTICLE I

DEFINITION

Section 1.1.                                Certain Defined Terms.

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

“1940 Act”:  The Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.

“Account”:  Any of the Collection Account, the Principal Collections Account, the Interest Collections Account and any sub-accounts thereof deemed appropriate or necessary by the Administrative Agent or the Trustee for convenience in administering such accounts.

“Accreted Interest”:  Interest accrued on a Loan that is added to the principal amount of such Loan instead of being paid as interest as it accrues.

“Accrual Period”:  With respect to each Advance (or portion thereof), (a) with respect to the first Payment Date, the period commencing on the Closing Date and ending on the last day of the calendar month preceding the first Payment Date, (b) with respect to the final Payment Date, the period commencing on the first day of the calendar month in which the preceding Payment Date occurred and ending on the final Payment Date, and (c) with respect to any other Payment Date, the period commencing on the first day of the calendar month in which the preceding Payment Date occurred and ending on the last day of the calendar month immediately preceding the month in which the Payment Date occurs.

“Additional Amount”:  Defined in Section 2.16.

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

2

denominator of which is equal to 100% minus the Eurodollar Reserve Percentage for such Accrual Period.

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

“Advance”: Defined in Section 2.1(b).

“Advance Rate”:  With respect to any type of Loan on any Measurement Date, the corresponding percentage for such type of Loan (such type to be determined as of the applicable Cut-Off Date of each Loan) set forth below:

ELIGIBLE LOANS

For the avoidance of doubt, with respect to any Agented Notes, the applicable Advance Rate will be determined by reference to the type of the applicable underlying Loan.

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

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

“Affiliate”:  With respect to a Person, means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person, or is a director or officer of such Person; provided, however, that for purposes of determining whether any Loan is an Eligible Loan or any Obligor is an Eligible Obligor, the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common Financial Sponsor.  For purposes of this definition, “control,” when used with respect to any specified Person means the possession, directly or indirectly, of the power to vote 20% or more of the voting securities of such Person or to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“Agented Note”:  Any Loan (a) originated as a part of a syndicated loan transaction that has been closed (without regard to any contemporaneous or subsequent syndication of such

3

Loan) prior to such Loan becoming part of the Collateral and (b) with respect to which, upon an assignment of the note under the Sale Agreement to the Borrower, the Borrower, as assignee of the note, will have all of the rights but none of the obligations of the Originator with respect to such note and the Related Property.

“Aggregate Outstanding Loan Balance” or “AOLB”:  On any date of determination, the sum of the Outstanding Loan Balances of all Eligible Loans included as part of the Collateral on such date, minus the Outstanding Loan Balances of any Charged-Off Loans.

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

“Agreement”:  Defined in the Preamble.

“Alternative Rate”:  For any day during any Accrual Period, (i) with respect to any Institutional Purchaser, an interest rate per annum equal to the LIBOR Rate and (ii) with respect to any Conduit Purchaser, an interest rate per annum equal to the Adjusted Eurodollar Rate; provided that the Alternative Rate shall be the Base Rate if a Eurodollar Disruption Event occurs.

“Amortization Period”:  The period beginning on the date on which the Termination Date is declared or occurs automatically pursuant to Section 10.2(a), and ending on the Collection Date.

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

“Appraisal”:  With respect to any Mortgaged Property as to which an appraisal is required or permitted to be performed pursuant to the terms of this Agreement, an appraisal performed in conformance with the guidelines established by the Appraisal Institute.

“Appraisal Institute”:  The international membership association of real estate appraisers.

4

“Approved Valuation Firm”: Each of (i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, (ii) Lincoln International LLC (f/k/a Lincoln Partners LLC), (iii) Duff & ▇▇▇▇▇▇ Corp. and (iv) Valuation Research Corporation, and any other nationally recognized valuation firm approved by the Administrative Agent in its sole reasonable discretion.

“Ares LIBOR Rate”:  The rate per annum appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, as the rate for Dollar deposits with a one-month, a two-month or a three-month maturity, as applicable, as and when determined in accordance with the applicable Underlying Instruments.

“Ares Prime Rate”:  The rate designated by certain reference lenders in the Underlying Instruments from time to time as its prime rate in the United States, such rate to change as and when the designated rate changes; provided, however, the Ares Prime Rate is not intended to be lowest rate of interest charged by the Originator in connection with extensions of credit to debtors.

“Asset Coverage Ratio”: The ratio, determined on a consolidated basis, without duplication, in accordance with GAAP, of (a) the fair market value of the total assets of Ares Capital Corporation and its Subsidiaries as required by, and in accordance with, the 1940 Act and any orders of the Securities and Exchange Commission issued to the Originator, to be determined by the Board of Directors of the Originator and reviewed by its auditors, less all liabilities (other than Indebtedness, including Indebtedness hereunder) of Ares Capital Corporation and its Subsidiaries, to (b) the aggregate amount of Indebtedness of Ares Capital Corporation and its Subsidiaries.

“Assigned Value”: The value assigned to each Loan included in the Collateral by the Administrative Agent in its sole reasonable discretion as of the Thirteenth Amendment Effective Date and any applicable Cut-Off Date, and amended by the Administrative Agent in its sole reasonable discretion at anytime following an Assigned Value Adjustment Event; provided, however, that (a) the Assigned Value of any Priced Loan shall not be less than the price quoted therefor (if any) by such pricing service as selected by the Administrative Agent and (b) the Assigned Value shall not be based upon the practices set forth in FASB Statement No. 157 or any pronouncement, statement, rule or amendment with respect to GAAP-mandated ▇▇▇▇-to-market requirements, but rather shall be based on the amortized cost adjusted for any credit impairment of such Loan.  In the event the Borrower disagrees with the Administrative Agent’s determination of the Assigned Value of a Loan, the Borrower may (at its expense) retain any Approved Valuation Firm to value such Loan and if the value determined by such firm is greater than the Administrative Agent’s determination of the Assigned Value, such firm’s valuation shall become the Assigned Value of such Loan; provided that the Assigned Value of such Loan shall be the value assigned by the Administrative Agent until such valuation firm has determined its value.  The value determined by such firm shall be based on the amortized cost adjusted for any credit impairment of such Loan.  The Assigned Value of any Loan may be increased at the sole

5

reasonable discretion of the Administrative Agent upon improvement in the Net Leverage Ratio or the Interest Coverage Ratio of such Loan, as the case may be, as part of an Assigned Value Adjustment Event; provided that such Assigned Value may not increase above the Assigned Value given to such Loan on the Thirteenth Amendment Effective Date or any applicable Cut-Off Date.  The Administrative Agent shall promptly notify the Servicer of any change effected by the Administrative Agent of the Assigned Value of any Loan.

“Assigned Value Adjustment Event”: With respect to any Loan, the occurrence of any one or more of the following events:

(i)            a Material Modification (in accordance with clauses (b)-(c) and clauses (e)-(g) of the definition thereof) occurs with respect to such Loan;

(ii)           the Net Leverage Ratio for any Relevant Test Period of the related Obligor with respect to such Loan is more than 0.50x higher than such Net Leverage Ratio as calculated on the Thirteenth Amendment Effective Date or any applicable Cut-Off Date; or

(iii)          the Interest Coverage Ratio for any Relevant Test Period of the related Obligor with respect to such Loan is less than 90% of the Interest Coverage Ratio with respect to such Loan as calculated on the Thirteenth Amendment Effective Date or any applicable Cut-Off Date.

“Assignment of Mortgage”:  An assignment of the Mortgage, notice of transfer or equivalent instrument in recordable form sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to effect the assignment of the Mortgage to the Trustee, which assignment, notice of transfer or equivalent instrument may be in the form of one or more blanket assignments covering the Loans secured by Mortgaged Properties located in the same jurisdiction, if permitted by Applicable Law.

“Attached Equity”: With respect to any Loan, any stock, partnership or membership interest, beneficial interest or other equity security, warrant, option, or any right, including, without limitation, any registration right, with respect to the foregoing received by the Originator in connection with the origination or acquisition of such Loan.

“Available Funds”:  With respect to any Payment Date, all immediately available amounts on deposit in the Collection Account (including, without limitation, any Collections and Servicer Advances).

“Average Life”:  For any Loan, as of any date of determination, the number determined by multiplying the amount of each Scheduled Payment of principal to be paid after such date of determination by the number of years (rounded to the nearest hundredth) from such date of determination until such Scheduled Payment of principal is due.

“Backup Servicer”:  Defined in the Preamble.

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

6

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

“Backup Servicing Fee”:  The fee set forth as such in the Backup Servicer Fee Letter.

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

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

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

“Borrower”:  Defined in Preamble.

“Borrower Guaranty”:  The guaranty executed by the Borrower in favor of Wachovia Bank, National Association on behalf of the “Secured Parties” (as defined in the CP Funding II Financing) in connection with the CP Funding II Financing.

“Borrowing Base”:  As of any Measurement Date, an amount equal to (i) the Aggregate Outstanding Loan Balance, after giving effect to all Loans added to and removed from the Collateral on such date, minus (ii) the Outstanding Loan Balances of all Delinquent Loans; provided, however, that with respect to each date that is a Measurement Date solely as of a result of clause (vi) of the definition thereof, the Borrowing Base will only be modified by the change in the Assigned Value of the related Loan.

“Borrowing Base Certificate”:  Each certificate, in the form of Exhibit A-4, required to be delivered by the Borrower with each Borrowing Notice or each Repayment Notice, as applicable, on each Measurement Date.

“Borrowing Notice”:  Each notice required to be delivered by the Borrower prior to the Thirteenth Amendment Effective Date in respect of the Initial Advance and each incremental Advance.

“Breakage Costs”:  With respect to any Purchaser, any amount or amounts as shall compensate such Purchaser for any loss, cost or expense incurred by such Purchaser (as determined by the applicable Purchaser Agent on behalf of such Purchaser, in such Purchaser Agent’s sole discretion) as a result of a prepayment by the Borrower of Advances Outstanding or Interest.  All Breakage Costs shall be due and payable hereunder upon demand, in accordance with the terms hereof.  The determination by the applicable Purchaser Agent of the amount of any such loss, cost or expense shall be set forth in a written notice to the Borrower and shall be conclusive absent manifest error.

“Business Day”:  Any day (other than a Saturday or a Sunday) on which commercial banks are not required or authorized to be closed in New York, New York, Charlotte, North Carolina, Boston, Massachusetts, Minneapolis, Minnesota or Florence, South Carolina.

7

“Canadian Dollar”: The lawful currency of Canada.

“Call Premium”: An amount equal to 1.00% of the Facility Amount.

“Capital Lease Obligations”: With respect to any entity, the obligations of such entity to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such entity under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

“Certificated Security”:  The meaning specified in Section 8-102(a)(4) of the UCC.

“Change of Control”:  Any of the following:

(a)           The Management Agreement shall fail to be in full force and effect;

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

(c)           the failure by the Originator to own 100% of the limited liability company membership interests in the Borrower; or

(d)           the dissolution, termination or liquidation in whole or in part, transfer or other disposition of all or substantially all of the assets of, Ares Capital Corporation.

“Change of Tax Law”:  Any change in application or public announcement of an official position under or any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of any jurisdiction in which an Obligor is organized), or any political subdivision or taxing authority of any of the foregoing, affecting taxation, or any proposed change in such laws or change in the official application, enforcement or interpretation of such laws, regulations or rulings (including a holding by a court of competent jurisdiction), or any other action taken by a taxing authority or court of competent jurisdiction in the relevant jurisdiction, or the official proposal of any such action.

“Charged-Off Loan”:  A Loan as to which any of the following first occurs:  (i) the Servicer has determined in accordance with the Servicing Standard that such Loan is not collectible, (ii) the Loan has been a Delinquent Loan for a period of 60 days or more (without giving effect to any Servicer Advance thereon or any grace period permitted in the related Underlying Instruments), (iii) the related Obligor is subject to an Insolvency Event or (iv) the related Obligor is not Solvent or such Loan is on non-accrual status, as reasonably determined by the Servicer in accordance with the Credit Policy and the Servicing Standard.

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

“Clearing Corporation”:  The meaning specified in Section 8-102(a)(5) of the UCC.

8

“Closing Counsel”:  Legal counsel responsible for closing the origination or acquisition of any Loan on behalf of the Originator which is sold to the Borrower under the Sale Agreement and financed by the Borrower under this Agreement.

“Closing Date”:  November 3, 2004.

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

“Collateral”:  All right, title, and interest (whether now owned or hereafter acquired or arising, and wherever located) of the Borrower in the property identified in clauses (i) - (iv) below and all accounts, cash and currency, chattel paper, tangible chattel paper, electronic chattel paper, copyrights, copyright licenses, equipment, fixtures, contract rights, general intangibles, instruments, certificates of deposit, certificated securities, uncertificated securities, financial assets, securities entitlements, commercial tort claims, deposit accounts, inventory, investment property, letter-of-credit rights, software, supporting obligations, accessions, and other property consisting of, arising out of, or related to any of the following (in each case excluding the Retained Interest and the Excluded Amounts):

(i)  the Loans, and all monies due or to become due in payment under such Loans on and after the related Cut-Off Date, including, but not limited to, all Collections, but excluding any related Attached Equity;

(ii)  all Related Security with respect to the Loans referred to in clause (i);

(iii)  the Accounts and all Permitted Investments purchased with funds on deposit in the Accounts; and

(iv)  all income and Proceeds of the foregoing.

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

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

“Collection Period”:  With respect to the first Payment Date, the period from and including the Closing Date to and including the Determination Date preceding the first Payment Date and with respect to the last Payment Date, the period from but excluding the Determination Date preceding the previous Payment Date to and including the last Payment Date; and at any other time, the period from but excluding the Determination Date preceding the previous Payment Date to and including the Determination Date preceding the current Payment Date.

“Collections”:  (a) All cash collections and other cash proceeds of any Loan, including, without limitation or duplication, any Interest Collections, Principal Collections, amendment fees, late fees, waiver fees or other amounts received in respect thereof (but excluding any Excluded Amounts), (b) interest earnings on Permitted Investments or otherwise in any Account, (c) any cash proceeds or other funds received by the Borrower or the Servicer with respect to any Related Security (including from any guarantors) and (d) all payments received pursuant to any Hedging Agreement or Hedge Transaction.

9

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

“Commitment”:  With respect to each Purchaser, the commitment of such Purchaser to make Advances in accordance herewith in an amount not to exceed such Purchaser’s Pro Rata Share of the aggregate Advances Outstanding.

“Concentration Account”:  The account maintained at the Concentration Account Bank, subject to the Intercreditor Agreement, for the purpose of receiving Collections, the details of which are set forth on Schedule II, as such schedule may be amended from time to time.

“Concentration Account Bank”:  U.S. Bank National Association, a national banking association.

“Conduit Purchaser”:  VFCC and each other commercial paper conduit as may from time to time become a Purchaser hereunder in the sole discretion of the Administrative Agent by executing and delivering a Joinder Supplement to the Administrative Agent and the Borrower.

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

“CP Funding II Financing”:  The senior secured revolving financing transaction between Ares Capital CP Funding II LLC, Wachovia Bank, National Association and the other parties thereto, to be entered into on or about June 30, 2009.

“CP Rate”:  With respect to any Conduit Purchaser for any day during any Accrual Period, the per annum rate equal to (a) the rate (expressed as a percentage and an interest yield equivalent and calculated on the basis of a 360-day year) or, if more than one rate, the weighted average thereof, paid or payable by such Conduit Purchaser from time to time as interest on or otherwise in respect of the Commercial Paper Notes issued by such Conduit Purchaser that are allocated, in whole or in part, by such Purchaser’s Purchaser Agent to fund the purchase or maintenance of the outstanding Advances made by such Purchaser (and which may also, in the case of a pool-funded Conduit Purchaser, be allocated in part to the funding of other assets of such Conduit Purchaser and which Commercial Paper Notes need not mature on the last day of any Accrual Period) during such Accrual Period as determined by such Conduit Purchaser’s Purchaser Agent, which rates shall reflect and give effect to (i) certain documentation and transaction costs (including, without limitation, dealer and placement agent commissions, and incremental carrying costs incurred with respect to Commercial Paper Notes maturing on dates other than those on which corresponding funds are received by such Conduit Purchaser) associated with the issuance of such Conduit Purchaser’s Commercial Paper Notes, and (ii) other borrowings by such Conduit Purchaser, including borrowings to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market, to the extent such amounts are allocated, in whole or in part, by such Conduit Purchaser’s Purchaser Agent to fund such Conduit Purchaser’s purchase or maintenance of the outstanding Advances made by such Purchaser during such Accrual Period; provided that, if any component of such rate is a discount

10

rate, in calculating the applicable “CP Rate” for such day, such Conduit Purchaser’s Purchaser Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent per annum rate or (b) such other rate as may be set forth as such in such Conduit Purchaser’s Purchaser Fee Letter.

“Credit Policy”:  The written credit policies and procedures manual of the Originator provided to the Administrative Agent on the Closing Date, as such credit policies and procedures manual may be as amended or supplemented from time to time in accordance with Section 5.4(f).

“Cut-Off Date”:  (a) With respect to each Loan added to the Collateral prior to the Thirteenth Amendment Effective Date, the Funding Date of the Advance in respect thereof, (b) with respect to any additional Eligible Loan pledged pursuant to Section 2.6(a), the Pledge Date in respect thereof, (c) with respect to any Substitute Loan added to the Collateral pursuant to Section 2.18(a), the Substitution Date in respect thereof and (d) with respect to any Substitute Loan added to the Collateral for a Warranty Loan pursuant to Section 2.18(b), the Retransfer Date in respect thereof.

“Defaulted Loan Sale”:  Defined in Section 2.18(c)(i).

“Defaulted Loan Sale Date”:  The Business Day identified by the Borrower to the Administrative Agent and the Trustee in a Defaulted Loan Sale Notice as the proposed date of a Defaulted Loan Sale.

“Defaulted Loan Sale Notice”:  Defined in Section 2.18(c)(i)(1).

“Delinquent Loan”:  A Loan (other than a Charged-Off Loan) as to which any of the following occurs:  (a) all or any portion of any one or more payments of principal or interest thereunder remains unpaid for at least five (5) days from the original due date for such payment (without giving effect to any Servicer Advance thereon or any grace period permitted in the Underlying Instruments); (b) a Material Modification of the type described in clause (b), (c) or (f) of the definition thereof has occurred with respect to such Loan; (c) the related Obligor is not paying any of the accrued and unpaid interest on a current basis for at least five (5) days from the original date for such payment (without giving effect to any Servicer Advance thereon or any grace period permitted in the Underlying Instruments); or (d) consistent with the Servicing Standard, such Loan would be classified as delinquent by the Servicer.

“Determination Date”:  The last day of each calendar month.

“DIP Loan”:  Any post-petition loan to any obligor that is a debtor-in-possession pursuant to the Bankruptcy Code.

“Discretionary Sale”:  Defined in Section 2.20(a).

“Discretionary Sale Date”: The Business Day identified by the Borrower to the Administrative Agent and the Trustee in a Discretionary Sale Notice as the proposed date of a Discretionary Sale.

11

“Discretionary Sale Notice”:  Defined in Section 2.20(a)(i).

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

“EBITDA”: With respect to any period and any Loan, the meaning of “EBITDA,” “Adjusted EBITDA” or any comparable definition in the Underlying Instruments for each such Loan, and in any case that “EBITDA,” “Adjusted EBITDA” or such comparable definition is not defined in such Underlying Instruments, an amount, for the principal obligor on such Loan and any of its parents or Subsidiaries that are obligated pursuant to the Underlying Instruments for such Loan (determined on a consolidated basis without duplication in accordance with GAAP) equal to earnings from continuing operations for such period plus interest expense, income taxes and unallocated depreciation and amortization for such period (to the extent deducted in determining earnings from continuing operations for such period), and any other item the Borrower and the Administrative Agent mutually deem to be appropriate.

“Eligible Bid”:  A bid made in good faith (and acceptable as a valid bid in the Administrative Agent’s reasonable discretion) by a bidder for all or any portion of the Collateral in connection with a sale of the Collateral in whole or in part pursuant to Section 10.2.

“Eligible Loan”:  On any Measurement Date, each Loan:

(A)          for which the Administrative Agent, the Trustee and the Backup Servicer have received, no later than 12:00 p.m. on the day prior to the applicable Cut-Off Date, the following:

(1)           a faxed or e-mailed copy of the duly executed original promissory note for the Loan (other than in the case of a Noteless Loan) and if any Loan is closed in escrow, a certificate in the form of Exhibit L from the closing attorneys of such Loans certifying as to their possession of the Required Loan Documents; provided that, notwithstanding the foregoing, as to any Loan acquired after the initial Funding Date, the Required Loan Documents shall be in the possession of the Trustee within five Business Days of the applicable Cut-Off Date; and

(2)           a Certificate of Assignment in the form of Exhibit A to the Sale Agreement, including Schedule I thereto, and

(B)           that satisfies each of the following eligibility requirements:

(a)           such Loan is underwritten as (i) a cash flow loan where the source of repayment is ongoing cash flow of the Obligor, (ii) an asset-based loan where the source of repayment is liquidation of collateral (including real estate), or (iii) some combination thereof;

(b)           such Loan is evidenced by a promissory note (other than in the case of a Noteless Loan), a credit agreement containing an express promise to pay, a security agreement or instrument and related loan documents that have been duly authorized and executed, are in full force and effect and constitute the legal, valid, binding and absolute and unconditional payment obligation of the related Obligor, enforceable against such Obligor in accordance with their terms (subject, as to enforcement only, to applicable bankruptcy, insolvency, moratorium

12

or other similar laws affecting the rights of creditors generally and to general principles of equity, whether considered in a suit at law or in equity), and there are no conditions precedent to the enforceability or validity of the Loan that have not been satisfied or validly waived;

(c)           such Loan does not contravene any Applicable Law (including, without limitation, laws, rules and regulations, if applicable, relating to usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices, licensing and privacy) and no part thereof is in violation of any Applicable Law;

(d)           such Loan is denominated and payable only in Dollars in the United States and does not permit the currency or country in which such Loan is payable to be changed provided that certain Loans may be denominated in Sterling, Euros or Canadian dollars but payable in Dollars subject to currency hedging approved by the Administrative Agent (in its sole discretion);

(e)           such Loan (i) was originated and underwritten, or purchased and re-underwritten, by the Originator including, without limitation, the completion of a due diligence and, if applicable, a collateral assessment and (ii) is fully documented in a manner consistent with the Credit Policy and such Loan is being serviced by the Servicer in accordance with the Servicing Standard;

(f)            such Loan (i) if a First Lien Loan, Last-Out First Lien Loan or Second Lien Loan has an original term to maturity that does not exceed 96 months and (ii) if a Subordinated Loan, has an original term to maturity that does not exceed 120 months;

(g)           all of the original or certified Required Loan Documents, acceptable to the Administrative Agent and the Originator, with respect to such Loan have been, or will be, delivered to the Trustee on or prior to the applicable Cut-Off Date, except as otherwise provided in Section 3.2(c), and all Servicing Files are being or shall be maintained at the principal place of business of the Servicer in Los Angeles, California in accordance with documented safety procedures approved by the Administrative Agent;

(h)           as of the applicable Cut-Off Date, such Loan is not delinquent in payment and, since its origination by the Originator or, in the case of any Loan not originated by the Originator, acquisition by the Originator, such Loan has never been more than 30 days delinquent in payment of either principal or interest;

(i)            such Loan is not a Materially Modified Loan (in accordance with clauses (a) and (d) of the definition of Material Modification) and such Loan is not a loan (including, without limitation, a new loan that replaced a prior loan by the Originator or any of its Affiliates to the Obligor that was a Delinquent Loan or a Charged-Off Loan) or extension of credit by the Originator to the Obligor for the purpose of (i) making any past due principal, interest or other payments due on such Loan, (ii) preventing such Loan or any other loan to the related Obligor from becoming past due or (iii) causing a Delinquent Loan or a Charged-Off Loan to cease to be so classified;

(j)            [Reserved];

13

(k)           such Loan is eligible under its Underlying Instruments (giving effect to the provisions of Sections 9-406 and 9-408 of the UCC) to be sold to the Borrower and to have a security interest therein granted to the Trustee, for the benefit of the Secured Parties, and such Loan does not contain any restrictions on further assignments or transferability to the related special purpose entity issuer in connection with any Permitted Securitization other than the execution of an assignment agreement;

(l)            such Loan either (i) contains the confidentiality provision set forth on Exhibit N or (ii) does not contain a confidentiality provision that restricts or purports to restrict the ability of the Trustee or any Secured Party to exercise their rights under this Agreement, including, without limitation, their rights to review the related Loan File;

(m)          such Loan provides for periodic payments of a portion of accrued and unpaid interest in cash on a current basis, no less frequently than quarterly;

(n)           all material consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority or any other Person required by the Originator or the Borrower to be obtained, effected or given in connection with the Originator’s or the Borrower’s making, acquisition, transfer or performance of such Loan have been duly obtained, effected or given and are in full force and effect;

(o)           such Loan does not permit interest to be capitalized in its entirety or contain payment obligations relating to “put rights” by the related Obligor;

(p)           such Loan is an “Eligible Asset” as defined in Rule 3a-7 under the 1940 Act;

(q)           such Loan is Registered;

(r)            such Loan, together with the Related Security, has been sold to the Borrower pursuant to (and in accordance with) the Sale Agreement, and the Borrower has good and marketable title, to such Loan and Related Security, free and clear of all Liens (other than Permitted Liens);

(s)           the Loan (together with the Collections and Related Security related thereto), has been the subject of a grant of a valid and first priority perfected security interest by the Borrower in favor of the Trustee, on behalf of the Secured Parties;

(t)            the Obligor with respect to such Loan is an Eligible Obligor;

(u)           all information provided by the Borrower or the Servicer to the Administrative Agent or the Trustee in writing with respect to the Loan is true and correct in all material respects as of the date such information is provided;

(v)           such Loan (A) is not an Equity Security and (B) does not provide for the conversion or exchange into an Equity Security at any time on or after the date it is included as part of the Collateral;

14

(w)          such Loan does not require the Borrower to make future advances to the Obligor under the related Underlying Instruments (which, for the avoidance of doubt, shall not include advances or Loans allowed to be made at the discretion of the Borrower and/or the other lenders for such Loan);

(x)            such Loan is not a Loan with respect to which interest required by the Underlying Instrument to be paid in cash has previously been deferred or capitalized as principal and not subsequently paid in full, unless the Obligor has commenced paying in cash current interest required to be paid in cash;

(y)           no selection procedure adverse to the interests of the Administrative Agent, the Purchaser Agents or the Secured Parties was utilized by the Borrower or the Originator in the selection of such Loan for inclusion in the Collateral;

(z)            the acquisition of such Loan will not cause the Borrower or the pool of Collateral to be required to register as an investment company under the 1940 Act and if the issuer of such Loan is excepted from the definition of an “investment company” solely by reason of Section 3(c)(1) of the 1940 Act, then either (A) such security does not constitute a “voting security” for purposes of the 1940 Act or (B) the aggregate amount of such security held by the Borrower is less than 10% of the entire issue of such security;

(aa)         such Loan does not constitute Margin Stock;

(bb)         such Loan is not subject to withholding tax unless the Obligor thereon is required under the terms of the related Underlying Instrument to make “gross-up” payments that cover the full amount of such withholding tax on an after-tax basis in the event of a Change of Tax Law;

(cc)         the proceeds of such Loan will not be used to finance activities of the type engaged in by businesses classified under NAICS Codes 2361 (Residential Building Construction), 2362 (Nonresidential Building Construction), 2371 (Utility System Construction), or 2372 (Land Subdivision);

(dd)         such Loan has been purchased or acquired by the Originator (or directly by the Borrower) for an amount not less than 65% of the par value of such Loan outstanding as of the date of such purchase or acquisition unless otherwise approved in writing by the Administrative Agent in its sole discretion;

(ee)         [Reserved];

(ff)           such Loan is not a Participation;

(gg)         if such Loan is an Agented Note:

(i)            the related Underlying Instruments shall include a note purchase or similar agreement containing (x) provisions relating to the appointment and duties of a payment agent and a collateral agent (which, in the case of a Loan originated by the Originator, shall be the Originator or a wholly-owned Subsidiary of the

15

Originator) and in such capacity such agent has the right to receive and collect payments and to enforce the Obligor’s obligations on behalf of all holders of the Obligor’s underlying indebtedness at the direction of the requisite majority of the underlying lenders and (y) if such Agented Note was issued in a transaction involving more than one class of notes, intercreditor provisions;

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

(iii)          all required notifications, if any, have been given to the collateral agent, the payment agent and any other parties required by the Underlying Instruments of, and all required consents, if any, have been obtained with respect to, the Originator’s assignment of such Agented Note and the Originator’s right, title and interest in the Related Property to the Borrower and the Trustee’s security interest therein on behalf of the secured parties;

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

(v)           all notes of the Obligor of the same priority are cross-defaulted and the Related Property securing such notes is held by the collateral agent for the benefit of all holders of the notes and all holders of such notes (A) have an undivided pari passu interest in the Related Property securing such notes, (B) are secured by, and share in the proceeds of the sale or other disposition of, such Related Property on a pro rata basis and (C) may transfer or assign their right, title and interest in the Related Property;

(hh)         if such Loan is a Material Mortgage Loan:

(i)            the Loan is secured by the related Mortgage, which has been properly recorded (or, if not properly recorded, has been submitted in proper form for recording) and establishes and creates a valid, enforceable and subsisting first priority security interest on the related Mortgaged Property subject only to the following permitted encumbrances: (a) the Lien of current real property taxes and assessments; (b) covenants, conditions and restrictions, rights of way, easements and other matters of public record as of the date of recording of such Mortgage, such exceptions appearing of record being acceptable to mortgage lending institutions generally in the area wherein the Mortgaged Property is located or specifically reflected in the Appraisal obtained by the Originator in connection with the origination of the related Loan; and (c) other matters to which like properties are commonly subject which do not materially and adversely interfere with the value of

16

or current principal use of the related Mortgaged Property or the benefits of the security intended to be provided by such Mortgage;

(ii)           the Lien of the related Mortgage is insured by a Title Policy or its equivalent, issued by a nationally recognized title insurance company licensed to do business in the state in which the Mortgaged Property is located, insuring the Originator of such Loan, its successors and assigns, as to the first priority Lien of the related Mortgage in the original principal amount of such Loan after all advances of principal, subject only to customary Liens permitted under the Mortgage (or, if a Title Policy has not yet been issued in respect of such Loan, a policy meeting the foregoing description is evidenced by a commitment for title insurance “marked-up” at the closing of such loan); (ii) each Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) is in full force and effect, all premiums thereon have been paid and no material claims have been made thereunder and no claims have been paid thereunder; (iii) the Originator, the Borrower and the Servicer have not, by act or omission, done anything that would materially impair the coverage under such Title Policy; (iv) the Title Policy is freely transferable or assignable by the Originator, and the Borrower; and (iv) immediately following the transfer and assignment of the related Loan to the Secured Parties, such Title Policy (or, if it has yet to be issued, the coverage to be provided thereby) will inure to the benefit of the Secured Parties without the consent of or notice to the insurer;

(iii)          any related Mortgage contains customary and enforceable provisions, which render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security, including, (x) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (y) otherwise by judicial foreclosure, and there is no homestead or other exemption available to the Obligor which would materially interfere with the right to sell the Mortgaged Property related to such Loan at a trustee’s sale or the right to foreclose the Mortgage;

(iv)          all escrow deposits relating to such Loan that are, as of the applicable Cut-Off Date, required to be deposited with the mortgagee or its agent have been so deposited;

(v)           there is no delinquent tax or assessment Lien on any Mortgaged Property which is the primary Collateral for the related Material Mortgage Loan, and each such Mortgaged Property is free of material damage and is in good repair;

(vi)          there are no material defaults in complying with the terms of any applicable related Mortgage, and all taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable;

17

(vii)         the related Loan File contains a valid Appraisal, an Environmental Site Assessment, and, in the case of any Loan either (x) having an Outstanding Loan Balance of $5,000,000 or greater or (y) with respect to which the related Mortgaged Property is at least 25 years old, an engineering report;

(viii)        the terms of such Loan require that improvements on the related Mortgaged Property be insured by a generally acceptable carrier against loss under a hazard insurance policy with extended coverage and conforming to the requirements of the Agreement, and all such insurance policies are in full force and effect;

(ix)           no proceeding for the condemnation of all or any material portion of the related Mortgaged Property has commenced or been threatened;

(x)            the related Mortgaged Property was subject to one or more Environmental Site Assessments (or an update of a previously conducted Environmental Assessment), which were performed on behalf of the Originator, or as to which the related report was delivered to the Originator in connection with its origination or acquisition of such Loan, and the Originator, the Borrower and the Servicer have no knowledge of any material and adverse environmental conditions or circumstance affecting such Mortgaged Property;

(xi)           none of the Originator, the Borrower or the Servicer have taken any action with respect to such Loan or the related Mortgaged Property that could subject the Secured Parties, or their respective successors and assigns in respect of such Loan, to any liability under CERCLA or any other applicable federal, state or local Environmental Law, and none of the Originator, the Borrower or the Servicer have received any actual notice of a material violation of CERCLA or any applicable federal, state or local Environmental Law with respect to the related Mortgaged Property;

(xii)          the interest of the related Obligor in the related Mortgaged Property consists of an Interest in Real Property constituting part of such Mortgaged Property;

(xiii)         based on surveys and/or the related Title Policy obtained in connection with the origination of such Loan, as of the date of such origination, no improvement that was included for the purpose of determining the Appraised Value of the related Mortgaged Property at the time of origination of such Loan lay outside the boundaries and building restriction lines of such property to any material extent (unless affirmatively covered by the Title Policy), and no improvements on adjoining properties encroached upon such Mortgaged Property to any material extent; and (ii) based upon opinions of counsel and/or other due diligence customarily performed by the Originator, the improvements located on or forming part of such Mortgaged Property comply in all material respects with applicable zoning laws and ordinances (except to the extent that they may constitute legal non-conforming uses);

18

(xiv)        as of the date of origination of such Loan, the related Obligor or operator of the related Mortgaged Property was in possession of all material licenses, permits and authorizations required by Applicable Law for the ownership and operation of the related Mortgaged Property as it was then operated;

(xv)         the related Mortgage provides that Insurance Proceeds and condemnation proceeds will be applied for one of the following purposes: either to restore or repair such Mortgaged Property, or to repay the principal of such Loan, or otherwise at the option of the holder of the related Mortgage;

(xvi)        such Loan contains provisions for the acceleration of the payment of the unpaid principal balance of such Loan if, without obtaining consent of the holder of the promissory note complying with the requirements of such Loan, the related Mortgaged Property, or any controlling interest therein, is directly or indirectly transferred or sold, unless otherwise approved in writing by the Administrative Agent in its sole discretion;

(xvii)       the Assignment of Leases and Rents, if any, establishes and creates a valid, subsisting and, subject only to Permitted Liens, enforceable lien and security interest in the related Obligor’s interest in the material leases pursuant to which any person is entitled to occupy, use or possess all or any portion of the Mortgaged Property;

(xviii)      if such Mortgage is a deed of trust, a trustee, duly qualified under Applicable Law to serve as such, has been properly designated and currently so serves, and no fees or expenses are payable to such trustee by the Originator, the Borrower, the Servicer, the Purchasers or any transferee thereof, except in connection with a sale after default by the related Obligor or in connection with any full or partial release of the related Mortgaged Property or related security for the related Loan; and

(xix)         if such Mortgaged Property is in an area identified in the Federal Register by the Federal Emergency Management Agency as having special flood hazards, a flood insurance policy is in effect with respect to such Mortgaged Property with a generally acceptable carrier in an amount representing coverage described in the Agreement.

(ii) such Loan is not subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, by the related Obligor (including any account debtor or Person obligated to make payments on such Loan to such Obligor), nor will the operation of any of the terms of the Underlying Instruments, or the exercise of any right thereunder, render the Underlying Instruments unenforceable in whole or in part, or subject to any right of rescission, set-off, counterclaim or defense, including the defense of usury, and no such right of rescission, set-off, counterclaim or defense has been asserted with respect thereto, and the Underlying Instruments with respect to the Loan provide for an affirmative waiver by the related Obligor of all rights of rescission, set-off and counterclaim against the Originator and its assignees;

19

(jj) the Borrower has caused, and will cause, to be performed any and all acts reasonably required to be performed to preserve the rights and remedies of the Trustee and the Secured Parties in any Insurance Policies applicable to the Loan including, without limitation, in each case, any necessary notifications of insurers, assignments of policies or interests therein, and establishments of co-insured, joint loss payee and mortgagee rights in favor of the Trustee and the Secured Parties;

(kk)            such Loan is not a DIP Loan; and

(ll) such Loan has been approved by the Administrative Agent in its sole discretion (for the avoidance of doubt, the Loans that comprise the Loan List set forth on Schedule IV as of the Thirteenth Amendment Effective Date shall be deemed approved).

“Eligible Obligor”:  On Measurement Date, any Obligor that:

(i)            is a business organization (and not a natural person) duly organized and validly existing under the laws of its jurisdiction of organization;

(ii)           is a legal operating entity or holding company;

(iii)          has not entered into the Loan primarily for personal, family or household purposes;

(iv)          is not a Governmental Authority;

(v)           is not an Affiliate of the Borrower, the Originator or the Servicer (so long as the Servicer is an Affiliate of or the Borrower);

(vi)          such Obligor’s principal office is located in the United States, Canada, any Group I Country, any Group II Country or any Group III Country;

(vii)         is not in the nuclear waste, biotechnology, natural resource exploration or internet industry (other than Obligors in the business of wholesale purchasing and reselling of natural gas or electricity, the Loans to which have been appropriately hedged) unless approved in writing by the Administrative Agent in its sole discretion; and

(viii)        is not (and has not been for at least four years) the subject of an Insolvency Event, and, as of the date on which such Loan becomes part of the Collateral, such Obligor is not in financial distress and has not experienced a material adverse change in its condition, financial or otherwise, as determined by the Servicer, unless approved in writing by the Administrative Agent (which approval shall not be unreasonably withheld).

“Eligible Repurchase Obligations”:  Repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the

20

United States, in either case entered into with a depository institution or trust company (acting as principal) described in clause (iii)(b) of the definition of Permitted Investments.

“Entitlement Holder”:  The meaning specified in Section 8-102(a)(7) of the UCC.

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

“Environmental Site Assessment”:  With respect to any Mortgaged Property, a “Phase I assessment” or “Phase II assessment” conducted in accordance with ASTM Standard E 1527-97 or any successor thereto published by the American Society for Testing and Materials Standard.

“Equity Security”:  (i) Any equity security or any other security that is not eligible for purchase by the Borrower as a Loan, (ii) any security purchased as part of a “unit” with a Loan and that itself is not eligible for purchase by the Borrower as a Loan, and (iii) any obligation that, at the time of commitment to acquire such obligation, was eligible for purchase by the Borrower as a Loan but that, as of any subsequent date of determination, no longer is eligible for purchase by the Borrower as a Loan, for so long as such obligation fails to satisfy such requirements.

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

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

“Euro”:  The lawful currency of Participating Member States.

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

21

“Eurodollar Disruption Event”:  The occurrence of any of the following:  (a) any Liquidity Bank or any Institutional Purchaser shall have notified the Administrative Agent of a determination by such Liquidity Bank or any of its assignees or participants that it would be contrary to law or to the directive of any central bank or other Governmental Authority (whether or not having the force of law) to obtain United States dollars in the London interbank market to fund any Advance, (b) any Liquidity Bank or any Institutional Purchaser shall have notified the Administrative Agent of the inability, for any reason, of such Liquidity Bank or any of its assignees or participants or such Institutional Purchaser, as applicable, to determine the Adjusted Eurodollar Rate, (c) any Liquidity Bank or any Institutional Purchaser shall have notified the Administrative Agent of a determination by such Liquidity Bank or any of its assignees or participants or such Institutional Purchaser, as applicable, that the rate at which deposits of United States dollars are being offered to such Liquidity Bank or any of its assignees or participants or such Institutional Purchaser in the London interbank market does not accurately reflect the cost to such Liquidity Bank, such assignee or such participant or such Institutional Purchaser of making, funding or maintaining any Advance or (d) any Liquidity Bank or any Institutional Purchaser shall have notified the Administrative Agent of the inability of such Liquidity Bank or any of its assignees or participants or such Institutional Purchaser, as applicable, to obtain United States dollars in the London interbank market to make, fund or maintain any Advance.

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

“Excepted Persons”:  Defined in Section 13.13(a).

“Exchange Act”:  The United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded Amounts”:  (a) Any amount received in the Concentration Account with respect to any Loan included as part of the Collateral, which amount is attributable to the payment of any tax, fee or other charge imposed by any Governmental Authority on such Loan or on any Related Property and (b) any amount received in the Collection Account or other Account representing (i) any amount representing a reimbursement of insurance premiums, (ii) any escrows relating to taxes, insurance and other amounts in connection with Loans which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under the Underlying Instruments, (iii) any amount received in the Collection Account with respect to any Loan retransferred or substituted for upon the occurrence of a Warranty Event or that is otherwise replaced by a Substitute Loan, or that is otherwise sold by the Borrower pursuant to Section 2.18, Section 2.19 or Section 2.20, to the extent such amount is attributable to a time after the effective date of such replacement or sale and (iv) any amounts paid in respect of Attached Equity.

22

“Facility Amount”:  The lesser of (a) $225,000,000, as such amount may vary from time to time upon the written agreement of the parties hereto, and (b) the Advances Outstanding.

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

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

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

“Financial Asset”:  The meaning specified in Section 8-102(a)(9) of the UCC.

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

“First Lien Loan”:  Except as otherwise designated by the Administrative Agent on the Thirteenth Amendment Effective Date or the applicable Cut-Off Date and set forth on Schedule IV, any Term Loan that (i) is secured by a valid and perfected first priority Lien on all of the Obligor’s assets constituting Related Property for the Loan, subject to such exceptions that are generally acceptable to lending institutions in connection with their regular commercial lending activities, and such other exceptions to which similar Related Property is commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by the related Underlying Instruments and UCC financing statements, (ii) has a Loan-to-Value Ratio not greater than 60%, and (iii) provides that the payment obligation of the Obligor on such Loan is either senior to, or pari passu with, all other Indebtedness of such Obligor.

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

“Fixed Rate Loan”:  A Loan other than a Floating Rate Loan.

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

“Funding Date”: With respect to any Advance prior to the Thirteenth Amendment Effective Date, the Business Day following the Business Day of receipt by the Administrative

23

Agent, the Trustee and each Purchaser Agent of a Borrowing Notice and other required deliveries in accordance with Section 2.3.

“Funding Request”:  Prior to the Thirteenth Amendment Effective Date, a Borrowing Notice requesting an Advance and including the items required by Section 2.3.

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

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

“Group I Country”:  Any of The Netherlands, the United Kingdom, Australia and New Zealand.

“Group II Country”:  Any of Germany, Ireland, Sweden and Switzerland.

“Group III Country”:  Any of Austria, Belgium, Denmark, Finland, France, Iceland, Liechtenstein, Luxembourg, Norway and Spain.

“Guaranteed Obligations”:  Defined in Section 14.1.

“Guarantor”:  Defined in Preamble.

“Guaranty”:  The guaranty of the Guarantor set forth in Article XIV.

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

“Hazardous Materials”: All materials subject to any Environmental Law, including, without limitation, materials listed in 49 C.F.R. § 172.010, materials defined as hazardous pursuant to § 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, flammable, explosive or radioactive materials, hazardous or toxic wastes or substances, lead-based materials, petroleum or petroleum distillates or asbestos or material containing asbestos, polychlorinated biphenyls, radon gas, urea formaldehyde and any substances classified as being “in inventory”, “usable work in process” or similar classification that would, if classified as unusable, be included in the foregoing definition.

“Hedge Amount”:  On any day that (a) the Weighted Average Coupon is less than LIBOR Rate plus 5.0%, the Hedge Amount shall be an amount as determined by the Administrative Agent in its sole discretion and (b) the Weighted Average Coupon is greater than or equal to the LIBOR Rate plus 5.0%, the Hedge Amount shall be $0.  The Hedge Amount for Floating Rate Loans is $0.

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

24

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

“Hedge Counterparty”:  Means, to the extent of any Hedging Agreement entered into in connection with this Agreement, (1) Wachovia and (2) any other entity, to the extent that such other entity (a) on the date of entering into a Hedging Agreement (i) is an interest rate swap dealer that has been approved in writing by the Administrative Agent, and (ii) has a long-term unsecured debt rating of not less than “A” by S&P, not less than “A2” by ▇▇▇▇▇’▇ and not less than “A-” by Fitch (if such entity is rated by Fitch) (the “Long-term Rating Requirement”) and a short-term unsecured debt rating of not less than “A-1” by S&P, not less than “P-1” by ▇▇▇▇▇’▇ and not less than “F-1” by Fitch (if such entity is rated by Fitch) (the “Short-term Rating Requirement”), and (b) in a Hedging Agreement (i) consents to the assignment of the Borrower’s rights under the Hedging Agreement to the Trustee on behalf of the Secured Parties pursuant to Section 5.3(b) and (ii) agrees that in the event that ▇▇▇▇▇’▇, S&P or Fitch reduces its long-term unsecured debt rating below the Long-term Rating Requirement, or reduces its short-term unsecured debt rating below the Short-term Rating Requirement, it shall either collateralize its obligations in a manner satisfactory to the Administrative Agent or transfer its rights and obligations under each Hedge Transaction to another entity that meets the requirements of clause (a) and (b) hereof which has entered into a Hedging Agreement with the Borrower on or prior to the date of such transfer.

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

“Hedge Transaction”:  Each interest rate swap transaction, Interest Rate Cap Transaction, Interest Rate Floor Transaction or other derivative transaction approved in writing by the Administrative Agent, between the Borrower and a Hedge Counterparty that is entered into pursuant to Section 5.3(a) and is governed by a Hedging Agreement.

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

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

25

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

“Indebtedness”:

(i) with respect to any Obligor under any Loan, for the purposes of the definition of the Interest Coverage Ratio and the Net Leverage Ratio, the meaning of “Indebtedness” or any comparable definition in the Underlying Instruments for each such Loan, and in any case that “Indebtedness” or such comparable definition is not defined in such Underlying Instruments, without duplication, (a) all obligations of such entity for borrowed money or with respect to deposits or advances of any kind, (b) all obligations of such entity evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such entity under conditional sale or other title retention agreements relating to property acquired by such entity, (d) all obligations of such entity in respect of the deferred purchase price of property or services (excluding current accounts payable incurred in the ordinary course of business), (e) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such entity, whether or not the indebtedness secured thereby has been assumed, (f) all guarantees by such entity of indebtedness of others, (g) all Capital Lease Obligations of such entity, (h) all obligations, contingent or otherwise, of such entity as an account party in respect of letters of credit and letters of guaranty and (i) all obligations, contingent or otherwise, of such entity in respect of bankers’ acceptances; and

(ii) for all other purposes, with respect to any Person at any date, (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services (other than current liabilities incurred in the ordinary course of business and payable in accordance with customary trade practices) or that is evidenced by a note, bond, debenture or similar instrument or other evidence of indebtedness customary for indebtedness of that type, (b) all obligations of such Person under leases that have been or should be, in accordance with GAAP, recorded as capital leases, (c) all obligations of such Person in respect of acceptances issued or created for the account of such Person, (d) all liabilities secured by any Lien on any property owned by such Person even though such Person has not assumed or otherwise become liable for the payment thereof, (e) all indebtedness, obligations or liabilities of that Person in respect of derivatives, and (f) all obligations under direct or indirect guaranties in respect of obligations (contingent or otherwise) to purchase or otherwise acquire, or to otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kind referred to in clauses (a) through (e) of this clause (ii).

“Indemnified Amounts”:  Defined in Section 11.1.

“Indemnified Parties”:  Defined in Section 11.1.

“Indorsement”:  The meaning specified in Section 8-102(a)(11) of the UCC, and “Indorsed” has a corresponding meaning.

“Initial Advance”:  The first Advance hereunder.

26

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

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

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

“Institutional Purchaser”:  Each financial institution other than a Conduit Purchaser which may from time to time become a Purchaser hereunder in the sole discretion of the Administrative Agent by executing and delivering a Joinder Supplement to the Administrative Agent and the Borrower.

“Instrument”:  The meaning specified in Section 9-102(a)(47) of the UCC.

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

“Insurance Proceeds”:  Any amounts received on or with respect to a Loan under any Insurance Policy or with respect to any condemnation proceeding or award in lieu of condemnation which is neither required to be used to restore, improve or repair the related real estate nor required to be paid to the Obligor under the Underlying Instruments.

“Intercreditor Agreement”:  The Concentration Account and Intercreditor Agreement, dated as of November 3, 2004 among the Servicer, the Trustee, the Concentration Account Bank, the Administrative Agent and each securitization agent that from time to time executes a joinder thereto, as amended, modified, waived, supplemented or restated from time to time.

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

27

where:

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

“Interest Collections”:  Any and all amounts of collections received with respect to the Collateral other than Principal Collections that are deposited into the Collection Account, or received by or on behalf of the Borrower by the Servicer or the Originator in respect of a Loan, including, without limitation, Insurance Proceeds, whether in the form of cash, checks, wire transfers, electronic transfers or any other form of cash payment.

“Interest Collections Account”:  Defined in Section 6.4(h).

“Interest Coverage Ratio”: With respect to any Loan for any Relevant Test Period, the meaning of “Interest Coverage Ratio” or any comparable definition in the Underlying Instruments for each such Loan, and in any case that “Interest Coverage Ratio” or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) EBITDA to (b) Interest Obligations.

“Interest Obligations”: With respect to any period and any Loan, for the Obligor on such Loan and, to the extent included in the corresponding calculation of EBITDA, any of its parents or Subsidiaries that are obligated pursuant to the Underlying Instruments for such Loan (determined on a consolidated basis without duplication in accordance with GAAP), the meaning of “Interest Obligations” or any comparable definition in the Underlying Instruments for each such Loan, and in any case that “Interest Obligations” or such comparable definition is not defined in such Underlying Instruments, all cash interest in respect of Indebtedness (including the interest component of any payments in respect of Capital Lease Obligations) accrued during such period (whether or not actually paid during such period).

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

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

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

28

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

“Interest Rate Cap Transaction” means any Hedge Transaction with respect to which the related Hedge Counterparty is required to make periodic payments to the Borrower in an amount equal to the excess, if any, of the applicable floating rate of interest over a fixed strike rate multiplied by a specified notional amount, provided that the fixed strike rate of any such transaction shall be no greater than the then current coupon rate of the applicable Fixed Rate Loan minus 5.5%.

“Interest Rate Floor Transaction” means any Hedge Transaction acceptable to the Administrative Agent with respect to which the Borrower is required to make periodic payments to the related Hedge Counterparty in an amount equal to the excess, if any, of a fixed strike rate over the applicable floating rate of interest multiplied by a specified notional amount.

“Interests in Real Property”:  A fee simple interest, a financeable estate for years or a leasehold interest in each case in real property.

“Investment”:  With respect to any Person, any direct or indirect loan, advance or investment by such Person in any other Person, whether by means of share purchase, capital contribution, loan or otherwise, excluding the acquisition of Loans pursuant to the Sale Agreement.

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

“Joinder Supplement”:  An agreement among the Borrower, a Purchaser, a Purchaser Agent and the Administrative Agent in the form of Exhibit M to this Agreement (appropriately completed) delivered in connection with a Person becoming a Purchaser hereunder after the Closing Date.

“Large Obligor Coverage Amount”:  As of any Measurement Date, an amount equal to the sum of the Outstanding Loan Balances of all Eligible Loans (excluding Charged-Off Loans and Delinquent Loans) attributable to the five Obligors having the largest aggregate Outstanding Loan Balance (excluding Charged-Off Loans and Delinquent Loans) included in the Borrowing Base on such date.

“Last-Out First Lien Loan”:  Except as otherwise designated by the Administrative Agent on the Thirteenth Amendment Effective Date or the applicable Cut-Off Date and set forth on Schedule IV, any Term Loan that (i) is secured by a valid and perfected first priority Lien on all of the Obligor’s assets constituting Related Property for the Loan, subject to such exceptions that are generally acceptable to lending institutions in connection with their regular commercial lending activities, and such other exceptions to which similar Related Property is commonly subject and which do not individually, or in the aggregate, materially and adversely affect the benefits of the security intended to be provided by the related Underlying Instruments and UCC

29

financing statements, and (ii) is not by its terms (and is not expressly permitted by its terms to become) subordinate in right of payment to any other obligation for borrowed money of the Obligor of such Loan, other than with respect to the liquidation of such Obligor or such Related Property.

“LIBOR Rate”:  For any day during the Accrual Period, with respect to any Advance (or portion thereof) (a) the rate per annum appearing on Page 3750 of the Bridge Telerate Service (formerly Dow ▇▇▇▇▇ Market Service) (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, as the rate for dollar deposits with a one-month maturity; (b) if for any reason the rate specified in clause (a) of this definition does not so appear on Page 3750 of the Bridge Telerate Service (or any successor or substitute page or any such successor to or substitute for such service), the rate per annum appearing on Reuters Screen LIBOR01 Page (or any successor or substitute page) as the London interbank offered rate for deposits in dollars at approximately 11:00 a.m., London time, for such day, provided, if such day is not a Business Day, the immediately preceding Business Day, for a one-month maturity; and (c) if the rate specified in clause (a) of this definition does not so appear on Page 3750 of the Bridge Telerate Service (or any successor or substitute page or any such successor to or substitute for such service) and if no rate specified in clause (b) of this definition so appears on Reuters Screen LIBOR01 Page (or any successor or substitute page), the interest rate per annum at which dollar deposits of $5,000,000 and for a one-month maturity are offered by the principal London office of WBNA in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, for such day.

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

“Lien Release Dividend”:  Defined in Section 2.21(a).

“Lien Release Dividend Date”:  The date specified by the Borrower, which date may be any Business Day, provided written notice is given in accordance with Section 2.21(a).

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

30

“Liquidity Agreement”:  Means any agreement entered into in connection with this Agreement pursuant to which a Liquidity Bank agrees to make purchases from or advances to, or purchase assets from, any Conduit Purchaser in order to provide liquidity support for such Conduit Purchaser’s Advances hereunder, which in the case of the agreement entered into by Wachovia for the benefit of VFCC shall have an initial term of 364 days.

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

“Loan”:  Any First Lien Loan, Last-Out First Lien Loan, Second Lien Loan or Subordinated Loan originated or acquired by the Originator in the ordinary course of its business, which loan includes, without limitation, (i) the Required Loan Documents and Loan File, and (ii) all right, title and interest of the Originator in and to the loan and any Related Property, but excluding, in each case, the Retained Interest, any Attached Equity and Excluded Amounts and which loan was purchased by the Borrower under the Sale Agreement and owned by the Borrower on the initial Funding Date (as set forth on the Loan List delivered on the initial Funding Date) or acquired by the Borrower after the initial Funding Date pursuant to the delivery of a Loan Assignment (as defined in the Sale Agreement) and listed on a schedule to such Loan Assignment.

“Loan Checklist”:  The list delivered by or on behalf of the Borrower to the Trustee that identifies each of the items contained in the related Loan File which constitute Required Loan Documents.

“Loan File”:  With respect to any Loan and the Related Security, copies of each of the Required Loan Documents and duly executed originals (to the extent required by the Credit Policy and the Servicing Standard) and copies of any other Records relating to such Loan and Related Security.

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

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

“Loan-to-Liquidation Value Ratio” or “LLV”: With respect to any Loan as of any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is equal to the maximum availability (as provided in the applicable Underlying Instruments) of such Loan and (ii) the denominator of which is equal to the liquidation value of the Related Property securing such Loan that is subject to a valid and first priority perfected security interest in favor of the Originator (as determined by the Servicer in accordance with the Credit Policy and the Servicing Standard).

“Loan-to-Value Ratio” or “LTV”:  With respect to any Loan, as of any date of determination, the percentage equivalent of a fraction, (i) the numerator of which is equal to the commitment amount as provided in the applicable Underlying Instruments of such Loans plus the commitment amount of any other senior or pari passu Indebtedness of the related Obligor

31

(including, in the case of revolving loans and delayed draw loans, the maximum availability thereof) and (ii) the denominator of which is equal to the enterprise value of the Related Property securing such Loan (as determined by the Originator in accordance with the Credit Policy and the Servicing Standard unless the Administrative Agent in its sole discretion disagrees with such determination, in which case the decision of the Administrative Agent as to the enterprise value of the Related Property shall be conclusive and binding on the parties hereto absent manifest error).

“MAI”:  Member of the Appraisal Institute.

“Management Agreement”:  The Investment Advisory and Management Agreement, dated as of September 30, 2004, between Ares Capital Corporation and Ares Capital Management LLC.

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

“Material Adverse Effect”:  With respect to any event or circumstance, means a material adverse effect on (a) the business, condition (financial or otherwise), operations, performance or properties of the Originator, the Servicer or the Borrower, (b) the validity, enforceability or collectability of this Agreement or any other Transaction Document or the validity, enforceability or collectability of the Loans generally or any material portion of the Loans, (c) the rights and remedies of the Trustee, the Administrative Agent, the Purchasers, the Purchaser Agents and the Secured Parties with respect to matters arising under this Agreement or any other Transaction Document, (d) the ability of each of the Borrower, the Servicer, to perform their respective obligations under this Agreement or any other Transaction Document, or (e) the status, existence, perfection, priority or enforceability of the Administrative Agent’s, each Purchaser Agent’s, or the other Secured Parties’ lien on the Collateral.

“Material Modification”:  Any amendment or waiver of, or modification or supplement to, an Underlying Instrument governing a Loan executed or effected on or after (i) the date on which the Originator originated or acquired such Loan, in the case of a Loan purchased by the Borrower from the Originator, or (ii) the date on which the Borrower acquired such Loan, in the case of a Loan purchased by the Borrower from any Person other than the Originator, that:

(a)           reduces or forgives any or all of the principal amount due under such Loan;

(b)           delays or extends the required or scheduled amortization in any way that increases the Average Life of such Loan; provided, however, that the Average Life of such Loan may be increased by not more than 20% from its Average Life on the related Cut-Off Date if the Net Leverage Ratio of such Loan is not more than 85% of the maximum established in the Net Leverage Ratio covenant of such Loan;

(c)           waives one or more interest payments, permits any interest due in cash to be deferred or capitalized and added to the principal amount of such Loan (other than any deferral or capitalization already allowed by the terms of the Underlying Instruments of any PIK Loan), or reduces the spread or coupon with respect to such Loan; provided, however, that such spread or coupon may be reduced a maximum of one time and by not more than 20% from the spread

32

or coupon on the related Cut-Off Date; provided that the Interest Coverage Ratio of such Loan is greater than 2.0:1 at the time of such reduction;

(d)           contractually or structurally subordinates such Loan by operation of a priority of payments, turnover provisions, the transfer of assets in order to limit recourse to the related Obligor or the granting of Liens (other than Permitted Liens) on any of the Related Property securing such Loan;

(e)           substitutes, alters or releases the Related Property securing such Loan, and each such substitution, alteration or release, as determined in the sole reasonable discretion of the Administrative Agent, materially and adversely affects the value of such Loan;

(f)            provides additional funds to the Obligor of such Loan with the intent of keeping that Loan current; or

(g)           amends, waives, forbears, supplements or otherwise modifies (i) the meaning of “Net Leverage Ratio” or “Interest Coverage Ratio” or any respective comparable definitions in the Underlying Instruments for such Loan or (ii) any term or provision of such Underlying Instruments referenced in or utilized in the calculation of the “Net Leverage Ratio” or “Interest Coverage Ratio” or any respective comparable definitions for such Loan, in either case in a manner that, in the sole reasonable judgment of the Administrative Agent, is materially adverse to the Secured Parties.

“Materially Modified Loan”:  Any Loan subject to a Material Modification, unless otherwise deemed not to constitute a Materially Modified Loan by the Administrative Agent in its sole discretion.

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

“Maximum Availability”:  At any time, an amount equal to the least of: (i) the Facility Amount; (ii)(A) the product of the Borrowing Base and the Weighted Average Advance Rate plus (B) the amount on deposit in the Principal Collections Account received in reduction of the Outstanding Loan Balance of any Loan; and (iii)(A) the Borrowing Base minus (B) the Large Obligor Coverage Amount plus (C) the amount on deposit in the Principal Collections Account received in reduction of the Outstanding Loan Balance of any Loan.

“Measurement Date”:  Each of the following:  (i) the Closing Date; (ii) each Determination Date; (iii) each Reporting Date, (iv) each Cut-Off Date, (v) the date of any Borrowing Notice or any Repayment Notice; (vi) the date on which an Assigned Value for any Eligible Loan is changed; (vii) any Optional Sale Date; (viii) the date as of which any Loan becomes a Delinquent Loan or a Charged-Off Loan; (ix) any Discretionary Sale Date; (x) any

33

Defaulted Loan Sale Date; and (xi) any other date that the Administrative Agent reasonably requests.

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

“Mortgage”:  The mortgage, deed of trust or other instrument creating a first or second Lien on an Interest in Real Property securing a Loan subject to this Agreement, including the Assignment of Leases and Rents related thereto.

“Mortgaged Property”:  The underlying Interests in Real Property which are subject to the Lien of a Mortgage that secures a Loan, consisting of Interests in Real Property in a parcel or parcels of land, at least one of which parcels is improved by a commercial building or facility, together with Interests in Real Property in such commercial building or facility and any personal property, fixtures, leases and other property or rights pertaining to such land, commercial building or facility which are subject to the related Mortgage.

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

“NAICS Codes”:  The North American Industry Classification System codes by four digits.

“Net Leverage Ratio”: With respect to any Loan for any Relevant Test Period, the meaning of “Net Leverage Ratio” or any comparable definition in the Underlying Instruments for each such Loan, and in any case that “Net Leverage Ratio” or such comparable definition is not defined in such Underlying Instruments, the ratio of (a) Indebtedness minus Unrestricted Cash to (b) EBITDA.

“Nonrecoverable Advance”:  Any Servicer Advance which, if made by the Servicer in respect of a Loan, in the reasonable good faith judgment of the Servicer would not be ultimately recoverable by the Servicer from the net proceeds and collections received solely with respect to such Loan, and/or the Related Property, including any escrowed amounts.

“Noteless Loan”: A Loan with respect to which the Underlying Instruments (i) do not require the Obligor to execute and deliver a promissory note to evidence the indebtedness created under such Loan or (ii) require any holder of the indebtedness created under such Loan to affirmatively request a promissory note from the related Obligor.

“Obligor”:  With respect to any Loan, any Person or Persons obligated to make payments pursuant to or with respect to such Loan, including any guarantor thereof.

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

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

34

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

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

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

“Other Costs”:  Defined in Section 13.9(c).

“Other Parties”:  Defined in Section 14.7(c).

“Outstanding Loan Balance”:  As of any Measurement Date, with respect to any Loan, the lesser of (a) the Assigned Value of such Loan as of the end of the most recent date of determination and (b) the outstanding principal balance of such Loan (exclusive of any interest and Accreted Interest).  The Outstanding Loan Balance of (x) any Prepaid Loan which has been prepaid in full or (y) any Equity Security shall equal $0.  For the avoidance of doubt, any principal amount previously covered by a Servicer Advance will be excluded from the principal amounts outstanding for purposes of this definition.

“Participating Member States”:  Means any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

“Participation”:  A participation interest in all or a portion of a loan.

“Payment Date”:  The 15th day of each April, July, October and January or, if such day is not a Business Day, the next succeeding Business Day, commencing in January, 2005.

“Payment Duties”:  Defined in Section 8.2(b).

“Pension Plans”:  Defined in Section 4.3(p).

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

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

(b)           demand deposits, time deposits or certificates of deposit of depository institutions or trust companies incorporated under the laws of the United States or any state thereof and subject to supervision and examination by federal or state banking or depository

35

institution authorities; provided, however, that at the time of the Borrower’s investment or contractual commitment to invest therein, the commercial paper, if any, and short-term unsecured debt obligations (other than such obligation whose rating is based on the credit of a Person other than such institution or trust company) of such depository institution or trust company shall have a credit rating from Fitch and each Rating Agency in the Highest Required Investment Category granted by Fitch and such Rating Agency;

(c)           commercial paper, or other short term obligations, having, at the time of the Borrower’s investment or contractual commitment to invest therein, a rating in the Highest Required Investment Category granted by each Rating Agency and Fitch;

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

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

(f)            investments in taxable money market funds or other regulated investment companies having, at the time of the Borrower’s investment or contractual commitment to invest therein, a rating of the Highest Required Investment Category from each Rating Agency and Fitch (if rated by Fitch);

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

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

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

“Permitted Liens”:  Any of the following as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced (a) Liens for state, municipal or other local taxes if such taxes shall not at the time be due and payable or if a Person shall currently be contesting the validity thereof in good faith by appropriate proceedings and with respect to which reserves in accordance with GAAP have been provided on the books of such Person, (b) Liens imposed by law, such as materialmen’s, warehousemen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar Liens, arising by operation of law in the ordinary course of business for sums that are not overdue or are being contested in good faith, (c) Liens granted pursuant to or by the Transaction Documents and (d) with respect to any Subordinated Loan, Liens in favor of senior lenders with respect to the related Obligor, its property and assets.

36

“Permitted Refinancing”:  Any refinancing transaction undertaken by the Originator, the Borrower or an Affiliate of the Originator that is secured, directly or indirectly, by any Loan currently or formerly included in the Collateral or any portion thereof or any interest therein released from the Lien of this Agreement.

“Permitted Securitization”:  Any private or public term or conduit securitization transaction (a) undertaken by the Originator, the Borrower or an Affiliate of the Originator, that is secured, directly or indirectly, by any Loan currently or formerly included in the Collateral or any portion thereof or any interest therein released from the Lien of this Agreement, including, without limitation, any collateralized loan obligation or collateralized debt obligation offering or other asset securitization and (b) in the case of a term securitization in which the Originator or an Affiliate thereof or underwriter or placement agent has agreed to purchase or place 100% of the equity and non-investment grade tranches of notes issued in such term securitization transaction.  For the avoidance of doubt, notwithstanding any agreement by the Originator or an Affiliate to purchase or place 100% of the equity in such term securitization transaction, any such party agreeing to so purchase or place may designate other Persons as purchasers of such equity provided such party or parties remain primarily liable therefor if such designees fail to purchase or place in connection with the closing date of such term securitization and/or, after the closing of such term securitization, may transfer equity it purchases at the closing thereof.

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

“PIK Loan”:  A Loan which provides for a portion of the interest that accrues thereon to be added to the principal amount of such Loan for some period of the time prior to such Loan requiring the current cash payment of such previously capitalized interest, which cash payment shall be treated as an Interest Collection at the time it is received.

“Pledge Date”:  With respect to any additional Eligible Loan pledged pursuant to Section 2.6(a), the Business Day following the Business Day of receipt by the Administrative Agent, the Trustee and each Purchaser Agent of a Repayment Notice and other required deliveries in accordance with Section 2.6(b).

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

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

“Prepayments”:  Any and all partial or full prepayments on or with respect to a Loan (including, with respect to any Loan and any Collection Period, any Scheduled Payment, Finance Charge or portion thereof that is due in a subsequent Collection Period that the Servicer has received, and pursuant to the terms of Section 6.4(b) expressly permitted the related Obligor to make, in advance of its scheduled due date, and that will satisfy such Scheduled Payment on such due date).

37

“Priced Loan”:  Any Loan that has an observable quote from LoanX ▇▇▇▇-It Partners or Loan Pricing Corporation, or from another pricing service selected by the Administrative Agent in its sole discretion.

“Prime Rate”:  The rate announced by Wachovia from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes.  The Prime Rate is not intended to be the lowest rate of interest charged by Wachovia or any other specified financial institution in connection with extensions of credit to debtors.

“Principal Collections”:  Any and all amounts of Collections received in respect of any principal due and payable under the Loans, from or on behalf of Obligors that are deposited into the Collection Account (including, without limitation, the principal portion of any Scheduled Payment or of any repurchase amount paid by the Originator to repurchase a Loan pursuant to Section 6.1 of the Sale Agreement), or received by or on behalf of the Borrower by the Servicer or the Originator in respect of a Loan and all Recoveries, whether in the form of cash, checks, wire transfers, electronic transfers or any other form of cash payment.

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

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

“Program Fee”:  With respect to any Purchaser, the “program fee” set forth in the applicable Purchaser Fee Letter.

“Pro Rata Share”:  With respect to a Purchaser, the percentage set forth next to such Lender’s name on Annex B hereto, which schedule may be updated by the Administrative Agent (with notice to the Borrower) from time to time.

“Purchaser”:  Any Conduit Purchaser or Institutional Purchaser.

“Purchaser Agent”:  With respect to (i) VFCC, the VFCC Agent, (ii) each Conduit Purchaser which may from time to time become party hereto, the Person designated as the “Purchaser Agent” with respect to such Purchaser in the applicable Joinder Supplement (iii) each Institutional Purchaser which may from time to time become a party hereto, each shall be deemed to be its own Purchaser Agent.

“Purchaser Agent’s Account”:  With respect to (i) VFCC, a special account (number 2000002391825) at Wachovia and (ii) each Purchaser which may become a party hereto after the Closing Date, a special account having the account number and located at the financial institution specified in the applicable Joinder Supplement.

“Purchaser Fee Letter”:  Each fee letter agreement that shall be entered into by and among the Borrower, the Servicer, the applicable Purchaser and its related Purchaser Agent in connection with the transactions contemplated by this Agreement, as amended, modified, waived, supplemented, restated or replaced from time to time.

38

“Qualified Institutional Buyer”: The meaning given in Rule 144A.

“Qualified Institution”:  A depository institution or trust company acceptable to the Administrative Agent and a depository institution organized under the laws of the United States of America or any one of the States thereof or the District of Columbia (or any domestic branch of a foreign bank), (i)(a) that has either (1) a long-term unsecured debt rating of “A” or better by S&P, “A2” or better by Moody’s and “A” or better by Fitch, if rated by Fitch, or (2) a short-term unsecured debt rating or certificate of deposit rating of “A-1” or better by S&P, “P-1” or better by Moody’s or “A-1” or better by Fitch, if rated by Fitch, (b) the parent corporation of which has either (1) a long-term unsecured debt rating of “A” or better by S&P, “A2” or better by Moody’s and “A” or better by Fitch, if rated by Fitch, or (2) a short-term unsecured debt rating or certificate of deposit rating of “A-1” or better by S&P, “P-1” or better by Moody’s and “A-1” or better by Fitch, if rated by Fitch, or (c) is otherwise acceptable to the Administrative Agent and (ii) the deposits of which are insured by the Federal Deposit Insurance Corporation.

“Rating Agency”:  Each of S&P, ▇▇▇▇▇’▇, Fitch and any other rating agency that has been requested to issue a rating with respect to the commercial paper notes issued by any Conduit Purchaser.

“Records”:  All documents relating to the Loans, including books, records and other information executed in connection with the origination or acquisition of the Collateral or maintained with respect to the Collateral and the related Obligors that the Borrower, the Originator or the Servicer have generated, in which the Borrower, the Originator or the Servicer have acquired an interest pursuant to the Sale Agreement or in which the Borrower, the Originator or the Servicer have otherwise obtained an interest.

“Recoveries”:  As of the time any Related Property with respect to any Charged-Off Loan is sold, discarded or abandoned (after a determination by the Servicer that such Related Property has little or no remaining value) or otherwise determined to be fully liquidated by the Servicer in accordance with the Credit Policy and the Servicing Standard, the proceeds from the sale of the Related Property, the proceeds of any related Insurance Policy, any other recoveries with respect to such Charged-Off Loan, the Related Property, and amounts representing late fees and penalties, net of Liquidation Expenses and amounts, if any, received that are required under such Charged-Off Loan to be refunded to the related Obligor.

“Registered”: With respect to any debt obligation, a debt obligation that was issued after July 18, 1984 and that is in registered form for purposes of the Code.

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

“Related Property”:  With respect to a Loan, any property or other assets designated and pledged or mortgaged as collateral to secure repayment of such Loan, including, without limitation, Mortgaged Property and/or a pledge of the stock, membership or other ownership interests in the related Obligor and all Proceeds from any sale or other disposition of such property or other assets.

39

“Related Security”:  As used in (1) the Sale Agreement, all of the Originator’s right, title and interest in and to the items set forth in clauses (a) through (d) and (i) hereof, and (2) this Agreement, all of the Borrower’s right, title and interest in and to:

(a)           any Related Property securing a Loan and all Recoveries related thereto, all payments paid in respect thereof and all monies due, to become due and paid in respect thereof accruing after the applicable Cut-Off Date and all liquidation proceeds;

(b)           all Required Loan Documents, Loan Files related to any Loan, any Records, and the documents, agreements, and instruments included in the Loan File or Records;

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

(d)           all Liens, guaranties, indemnities, warranties, letters of credit, accounts, bank accounts and property subject thereto from time to time purporting to secure or support payment of any Loan, together with all UCC financing statements, mortgages or similar filings signed or authorized by an Obligor relating thereto;

(e)           the Accounts and the Concentration Account, to the extent amounts on deposit therein or credited thereto relate to the Collateral, together with all cash and investments in each of the foregoing other than amounts earned on investments therein (excluding any Excluded Amounts that may be on deposit therein);

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

(g)           the Sale Agreement (including, without limitation, rights of recovery of the Borrower against the Originator) and the assignment to the Trustee, for the benefit of the Secured Parties, of all UCC financing statements filed by the Borrower against the Originator under or in connection with the Sale Agreement;

(h)           the Sale Agreement and the assignment to the Trustee of all UCC financing statements filed by the Borrower against the Originator under or in connection with the Sale Agreement;

(i)            all records (including computer records) with respect to the foregoing; and

(j)            all collections, income, payments, proceeds and other benefits of each of the foregoing.

“Relevant Test Period”: With respect to any Loan, the relevant test period for the calculation of Net Leverage Ratio or Interest Coverage Ratio, as applicable, for such Loan in the Underlying Instruments or, if no such period is provided for therein, for Obligors delivering monthly financing statements, each period of the last twelve consecutive reported calendar months, and for Obligors delivering quarterly financing statements, each period of the last four consecutive reported fiscal quarters of the principal Obligor on such Loan; provided, however, that with respect to any Loan for which the relevant test period is not provided for in the Underlying Instruments, if an Obligor is a newly-formed entity as to which twelve consecutive calendar months have not yet elapsed, “Relevant Test Period” shall initially include the period

40

from the date of formation of such Obligor to the end of the twelfth calendar month or fourth fiscal quarter (as the case may be) from the date of formation, and shall subsequently include each period of the last twelve consecutive reported calendar months or four consecutive reported fiscal quarters (as the case may be) of such Obligor.

“Repayment Notice”:  Each written notice required to be delivered by the Borrower in respect of (a) any repayment of Advances or any pledge of additional Eligible Loans, in each case to pay any Required Advance Reduction Amount pursuant to Section 2.6(b), in the form of Exhibit A-2, or (b) any reduction of the Advances Outstanding pursuant to Section 2.4(b), in the form of Exhibit A-2.

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

“Reporting Date”:  The date that is two Business Days prior to the 15th of each calendar month (unless in such month a Payment Date occurs, in which case two Business Days prior to such Payment Date), commencing December 13, 2004.

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

“Required Loan Documents”:  For each Loan, originals (except as otherwise indicated) of the following documents or instruments:

(a)           (i) other than in the case of a Noteless Loan, the original or, if accompanied by a “lost note” affidavit and indemnity, a copy of, the underlying promissory note, endorsed by the Borrower or the prior holder of record either in blank or to the Trustee (and evidencing an unbroken chain of endorsements from each prior holder thereof evidenced in the chain of endorsements to the Trustee), with any endorsement to the Trustee to be in the following form: “U.S. Bank National Association, as Trustee for the Secured Parties”, and (ii) in the case of a Noteless Loan, (x) a copy of each transfer document or instrument relating to such Noteless Loan evidencing the assignment of such Noteless Loan to the Originator, from the Originator to the Borrower and from the Borrower either to the Trustee or in blank, and (y) a copy of the Loan Register with respect to such Noteless Loan;

(b)           originals or copies of each of the following, to the extent applicable to the related Loan: any related loan agreement, credit agreement, note purchase agreement, security agreement (if separate from any Mortgage), sale and servicing agreement, acquisition agreement, subordination agreement, intercreditor agreement or similar instruments, guarantee, Insurance Policy, assumption or substitution agreement or similar material operative document, in each case together with any amendment or modification thereto, as set forth on the Loan Checklist;

(c)           if any Loan is secured by a Mortgage:

(i)            either (i) the original Mortgage, the original Assignment of Leases and Rents, if any, and the originals of all intervening assignments, if any, of the Mortgage and Assignments of Leases and Rents with evidence of recording thereon,

41

(ii) copies thereof certified by the Servicer, by Closing Counsel or by a title company or escrow company to be true and complete copies thereof where the originals have been transmitted for recording until such time as the originals are returned by the public recording office or (iii) copies certified by the public recording offices where such documents were recorded to be true and complete copies thereof in those instances where the public recording offices retain the original or where the original recorded documents are lost; and

(ii)           an Assignment of Mortgage and of any other material recorded security documents (including any Assignment of Leases and Rents) in recordable form, executed by the Borrower or the prior holder of record, in blank or to the Trustee (and evidencing an unbroken chain of assignments from the prior holder of record to the Trustee), with any assignment to the Trustee to be in the following form: “U.S. Bank National Association, as Trustee for the Secured Parties”;

(d)           with respect to any Loan originated by the Originator and with respect to which the Originator acts as administrative agent (or in a comparable capacity), either (i) copies of the UCC-1 Financing Statements, if any, and any related continuation statements, each showing the Obligor as debtor and the Trustee as total assignee or showing the Obligor, as debtor and the Originator as secured party and each with evidence of filing thereon, or (ii) copies of any such financing statements certified by the Servicer to be true and complete copies thereof in instances where the original financing statements have been sent to the appropriate public filing office for filing.

“Required Purchasers”:  The Conduit Purchasers and/or Institutional Purchasers representing an aggregate of more than 66.67% of the aggregate Commitments of the Conduit Purchasers and the Institutional Purchasers then in effect; provided, however, that for the purposes of determining the Required Purchasers, in the event that an Institutional Purchaser or a Conduit Purchaser (or its related Liquidity Bank on its behalf) fails to provide funding for an Advance hereunder for which all conditions precedent have been satisfied, such Institutional Purchaser or Conduit Purchaser, as applicable, shall not constitute a Required Purchaser hereunder (and the Commitment of such Institutional Purchaser or Conduit Purchaser, as applicable, shall be disregarded for purposes of determining whether the consent of the Required Purchasers has been obtained).

“Required Reports”:  Collectively, the Servicing Report required pursuant to Section 6.10(b), the Servicer’s Certificate required pursuant to Section 6.10(c), the financial statements of the Servicer required pursuant to Section 6.10(d), the tax returns of the Borrower and the Servicer required pursuant to Section 6.10(e), the financial statements and valuation reports of each Obligor required pursuant to Section 6.10(f), the annual statements as to compliance required pursuant to Section 6.11, and the annual independent public accountant’s report required pursuant to Section 6.12.

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

42

“Restricted Junior Payment”:  (i) Any dividend or other distribution, direct or indirect, on account of any class of membership interests of the Borrower now or hereafter outstanding, except a dividend paid solely in interests of that class of membership interests or in any junior class of membership interests of the Borrower; (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any class of membership interests of the Borrower now or hereafter outstanding, (iii) any payment made to redeem, purchase, repurchase or retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire membership interests of the Borrower now or hereafter outstanding, and (iv) any payment of management fees by the Borrower (except for reasonable management fees to the Originator or its Affiliates in reimbursement of actual management services performed).  For the avoidance of doubt, (x) payments and reimbursements due to the Servicer in accordance with this Agreement or any other Transaction Document do not constitute Restricted Junior Payments, and (y) distributions by the Borrower to holders of its membership interests of Loans or of cash or other proceeds relating thereto which have been repurchased or substituted by the Borrower in accordance with this Agreement shall not constitute Restricted Junior Payments.

“Retained Interest”:  With respect to any Agented Note that is transferred by the Originator to the Borrower and by the Borrower to the Purchasers, (i) all of the obligations, if any, of the agent(s) under the documentation evidencing such Agented Note and (ii) the applicable portion of the interests, rights and obligations under the documentation evidencing such Agented Note that relate to such portion(s) of the indebtedness that is owned by another lender.

“Retransfer Date”:  Defined in Section 2.18(b).

“Retransfer Price”:  Defined in Section 2.18(b).

“Review Criteria”:  Defined in Section 8.2(b).

“Rule 144A”:  Rule 144A under the Securities Act.

“S&P”:  Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.

“S&P Rating”:  With respect to any Loan, as of any date of determination, if such Loan is rated by S&P, such S&P rating.

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

“Scheduled Payment”:  Each scheduled payment of principal and/or interest required to be made by an Obligor on the related Loan, as adjusted pursuant to the terms of the related Required Loan Documents.

“Second Lien Loan”:  Except as otherwise designated by the Administrative Agent on the Thirteenth Amendment Effective Date or the applicable Cut-Off Date and set forth on Schedule

43

IV, any Term Loan that (i) is secured by a valid and perfected second priority security interest on all of the Obligor’s assets constituting Related Property for the Loan (whether or not there is also a security interest of a higher or lower priority in additional collateral), (ii) with respect to priority of payment obligations is pari passu with the indebtedness of the holder with the first priority security interest except after an event of default thereunder, (iii) pursuant to an intercreditor agreement between the Borrower and the holder of such first priority security interest, the amount of the indebtedness covered by such first priority security interest is limited (in terms of aggregate dollar amount or percent of outstanding principal or both), and (iv) has a Loan-to-Value Ratio of not greater than 70%.

“Secured Party”:  (i) Each Purchaser, (ii) the Administrative Agent and each Purchaser Agent, (iii) Wachovia Bank, National Association, to the extent any payments are owed thereto in connection with the Borrower Guaranty, and (iv) each Hedge Counterparty that at the time of entering into a Hedging Agreement is either a Purchaser or an Affiliate of the VFCC Agent if that Affiliate is a Hedge Counterparty that executes a counterpart of this Agreement agreeing to be bound by the terms of this Agreement applicable to a Secured Party.

“Securities Account”:  The meaning specified in Section 8-501 of the UCC.

“Securities Account Control Agreement”:  The Securities Account Control Agreement, dated as of the date hereof, among Ares Capital Corporation, as the debtor, the Servicer, U.S. Bank, as the Trustee and as the Securities Intermediary, as the same may be amended, modified, waived, supplemented or restated from time to time.

“Securities Act”:  The U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Securities and Exchange Commission”:  The U.S. Securities and Exchange Commission.

“Securities Intermediary”:  (i) A Clearing Corporation; or (ii) a Person, including a bank or broker, that in the ordinary course of its business maintains Securities Accounts for others and is acting in that capacity.

“Security”:  The meaning specified in Section 9-102(a)(15) of the UCC.

“Security Certificate”:  The meaning specified in Section 8-102(a)(16) of the UCC.

“Security Entitlement”:  The meaning specified in Section 8-102(a)(17) of the UCC.

“Servicer”: Ares Capital Corporation and each successor appointed as Successor Servicer pursuant to Section 6.16(a).

“Servicer Advance”:  An advance of Scheduled Payments made by the Servicer with respect to a Loan pursuant to Section 6.5.

“Servicer Default”:  Defined in Section 6.15.

44

“Servicer Termination Notice”:  Defined in Section 6.15.

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

“Servicing Fee”:  The fee payable to the Servicer on each Payment Date in arrears in respect of each Collection Period, which fee shall be equal to the product of (i) 0.50% (or, if the Backup Servicer is the successor Servicer, 1.00%), (ii) the numerical mean of the Aggregate Outstanding Loan Balance on the first day and on the last day of the related Collection Period and (iii) the actual number of days in such Collection Period divided by 360.

“Servicing File”:  For each Loan, the following documents or instruments:

(a)           copies of each of the Required Loan Documents;

(b)           with respect to any Material Mortgage Loan:

(i)       the original or a copy of the lender’s title insurance policy or a written commitment to issue such title insurance policy issued on or about the date of the origination of such Loan, together with all endorsements or riders (or copies thereof) that were issued with or subsequent to the issuance of such policy or commitment, or, with respect to each Loan not covered by a lender’s title insurance policy to the extent customary in the applicable jurisdiction, an attorney’s opinion of title given by an attorney licensed to practice law in the jurisdiction where the related Mortgaged Property is located, or, if such policy or commitment has not been issued and if the related Loan was funded through a title insurance company or other comparable closing agent pursuant to escrow instructions or lender’s closing instructions precluding the title insurance company or such agent from funding until the title insurance company is prepared to issue the required title insurance coverage, a copy of such escrow instructions or lender’s closing instructions;

(ii)           the originals or copies of any environmental indemnity agreement;

(iii)          each Appraisal of the related Mortgaged Property;

(iv)          any Environmental Site Assessment in the possession of the Servicer relating to the related Mortgaged Property;

(c)           any other portion of the Loan File which is not part of the Required Loan Documents.

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

“Servicing Standard”:  Shall mean, with respect to any Loans included in the Collateral, to service and administer such Loans on behalf of the Secured Parties in accordance with Applicable Law, the terms of this Agreement, the Underlying Instruments, all customary and usual servicing practices for loans like the Loans and, to the extent consistent with the foregoing, (a)(i) if the Servicer is the Originator or an Affiliate thereof, the higher of: (A) the customary and

45

usual servicing practices that a prudent loan investor or lender would use in servicing loans like the Loans for its own account, and (B) the same care, skill, prudence and diligence with which the Servicer services and administers loans for its own account or for the account of others, and (ii) if the Servicer is not the Originator or an Affiliate thereof, the same care, skill, prudence and diligence with which the Servicer services and administers loans for its own account or for the account of others; (b) with a view to maximize the value of the Loans; and (c) without regard to: (i) any relationship that the Servicer or any Affiliate of the Servicer may have with any Obligor or any Affiliate of any Obligor, (ii) the Servicer’s obligations to incur servicing and administrative expenses with respect to a Loan, (iii) the Servicer’s right to receive compensation for its services hereunder or with respect to any particular transaction, (iv) the ownership by the Servicer or any Affiliate thereof of any Loans, (v) the ownership, servicing or management for others by the Servicer of any other loans or property by the Servicer or (vi) any relationship that the Servicer or any Affiliate of the Servicer may have with any holder of other loans of the Obligor with respect to such Loans.

“Shareholders’ Equity”: At any date, the amount determined on a consolidated basis, without duplication, in accordance with GAAP, of shareholders equity for the Servicer and its Subsidiaries at such date.

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

“Sterling”:  The lawful currency of the United Kingdom.

“Subordinated Loan”:  Except as otherwise designated by the Administrative Agent on the Thirteenth Amendment Effective Date or the applicable Cut-Off Date and set forth on Schedule IV, any Term Loan that (i) may or may not be secured by a Lien on the Obligor’s assets constituting Related Property for the Loan, (ii) has a Loan-to-Value Ratio not greater than 75%, and (iii) contains terms which, upon the occurrence of an event of default under the Underlying Instruments or in the case of any liquidation or foreclosure on the Related Property, provide that the Borrower’s portion of such Loan would be paid only after the other creditors to such Obligor (including any lender party making any First Lien Loan, Last-Out First Lien Loan, Second Lien Loan or Subordinated Loan whose right to payment is contractually senior to the Borrower) is paid in full.

46

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

“Substitute Loan”:  Defined in Section 2.18(a).

“Substitution Date”:  Defined in Section 2.18(a).

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

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

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

“Term Period”:  The period commencing on the Thirteenth Amendment Effective Date and ending on the day preceding the Termination Date.

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

“Term Securitization”:  A Permitted Securitization which is a term securitization transaction.

“Termination Date”:  The earliest of (a) the date of the termination in whole of the Facility Amount pursuant to Section 2.4(b), (b) the Business Day designated by the Borrower to the Administrative Agent and each Purchaser Agent as the Termination Date at any time following two Business Days prior written notice thereof to the Administrative Agent and each Purchaser Agent, (c) May 7, 2012 or such later date as is agreed to in writing by the Borrower, the Servicer, the Administrative Agent and the Purchaser Agents, and (d) the date of the declaration of the Termination Date or the date of the automatic occurrence of the Termination Date pursuant to Section 10.2(a).

“Termination Event”:  Defined in Section 10.1.

“Thirteenth Amendment Effective Date”:  May 7, 2009.

“Title Policy”:  An ALTA lender’s title insurance policy.

“Transaction”:  Described in Section 3.2.

“Transaction Documents”:  This Agreement, the Sale Agreement, each Hedging Agreement, the Intercreditor Agreement, the Securities Account Control Agreement, each

47

Variable Funding Certificate, each Purchaser Fee Letter, any Joinder Supplement, any Transferee Letter, the Backup Servicer Fee Letter, the Trustee Fee Letter, and any additional document the execution of which is necessary or incidental to carrying out the terms of the foregoing documents.

“Transferee Letter”:  Defined in Section 13.16.

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

“Trustee”:  U.S. Bank, not in its individual capacity, but solely as Trustee, its successor in interest pursuant to Section 8.3 or such Person as shall have been appointed Trustee pursuant to Section 8.5.

“Trustee Fee”:  The fee set forth as such in the Trustee Fee Letter.

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

“Trustee Termination Notice”:  Defined in Section 8.5.

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

“Uncertificated Security”:  The meaning specified in Section 8-102(a)(l8) of the UCC.

“Underlying Instruments”:  The loan agreement, credit agreement or other agreement pursuant to which a Loan has been issued or created and each other agreement that governs the terms of or secures the obligations represented by such Loan or of which the holders of such Loan are the beneficiaries.

“United States”:  The United States of America.

“Unmatured Termination Event”:  Any event (other than events described in Section 10.1(c) and 10.1(d) (in the case of Section 10.1(d), due to the occurrence of an event described in Section 6.15(d)) that, with the giving of notice or the lapse of time, or both, would become a Termination Event.

“Unrestricted Cash”: The meaning of “Unrestricted Cash” or any comparable definition in the Underlying Instruments for each Loan, and in any case that “Unrestricted Cash” or such comparable definition is not defined in such Underlying Instruments, all cash available for use for general corporate purposes and not held in any reserve account or legally or contractually restricted for any particular purposes or subject to any lien (other than blanket liens permitted under or granted in accordance with such Underlying Instruments).

48

“Variable Funding Certificate” or “VFC”:  Defined in Section 2.1(a).

“VFCC”:  Variable Funding Capital Company LLC, a Delaware limited liability company, as a Purchaser, together with its successors and assigns in such capacity.

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

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

“Warranty Event”:  As to any Loan, the discovery that as of the related Cut-Off Date for such Loan there existed a breach of any representation or warranty relating to such Loan (other than any representation or warranty that the Loan satisfies the criteria of the definition of Eligible Loan) and the failure of Borrower to cure such breach, or cause the same to be cured, within 30 days after the earlier occur of the Borrower’s receipt of notice thereof from the Administrative Agent or the Borrower becoming aware thereof.

“Warranty Loan”:  Any Loan that fails to satisfy any criteria of the definition of Eligible Loan as of the applicable Cut-Off Date for such Loan or any Loan with respect to which a Warranty Event has occurred; provided that, any Loan approved by the Administrative Agent in accordance with clause (ll) of the definition of Eligible Loan on the Thirteenth Amendment Effective Date or any subsequent Cut-Off Date (as applicable) shall not be a Warranty Loan due to the failure of such Loan to satisfy the requirements of clause (ll) of the definition of Eligible Loan on any date thereafter.

“Weighted Average Advance Rate”:  For the Advances Outstanding on any day, the weighted average of the Advance Rates applicable to all Eligible Loans on such day, weighted according to the proportion of the Aggregate Outstanding Loan Balance that each type of Loan forming a part of the Collateral represents; provided, however, that notwithstanding anything to the contrary contained herein, the Weighted Average Advance Rate may not exceed 40%.

“Weighted Average Coupon”:  As of any Determination Date, a fraction (expressed as a percentage and rounded up to the next 0.001%), (a) the numerator of which is the sum of the products determined by multiplying the Outstanding Loan Balance of each Fixed Rate Loan (excluding Charged-Off Loans and Delinquent Loans) in the Collateral as of such Determination Date by the interest rate payable by the Obligor thereof, and (b) the denominator of which is the sum of the Outstanding Loan Balances of all Fixed Rate Loans (excluding Charged-Off Loans and Delinquent Loans) in the Collateral as of such Determination Date; provided that for purposes of this definition: (i) no contingent payment of interest will be included in such calculation; and (ii) any stated coupon shall exclude any portion of the interest that is currently being deferred.

“Weighted Average Life”:  As of any Measurement Date, the number determined as follows:  (i) for each Loan included in the Borrowing Base as of such date, by multiplying the amount of each Scheduled Payment of principal to be paid after such Measurement Date by the number of years (rounded to the nearest hundredth) from such Measurement Date until such Scheduled Payment of principal is due; (ii) summing all of the products calculated pursuant to

49

clause (i); and (iii) dividing the sum calculated pursuant to clause (ii) by the sum of all Scheduled Payments of principal due on all the Loans included in the Borrowing Base as of such date.

Section 1.2.                                Other Terms.

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

Section 1.3.                                Computation of Time Periods.

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

Section 1.4.                                Interpretation.

In each Transaction Document, unless a contrary intention appears:

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

(f)            reference to the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;

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

50

ARTICLE II

THE VARIABLE FUNDING CERTIFICATES

Section 2.1.                                The Variable Funding Certificates.

(a)           On the terms and conditions hereinafter set forth, the Borrower shall deliver (i) on the Closing Date, to each Purchaser Agent at the applicable address set forth on Annex A to this Agreement, and (ii) on the effective date of any Joinder Supplement, to each additional Purchaser Agent, at the address set forth in the applicable Joinder Supplement, a duly executed variable funding certificate in substantially the form of Exhibit B (each, a “Variable Funding Certificate” or “VFC”), dated as of the date of this Agreement, each in a face amount equal to the applicable Purchaser’s Commitment as of the Closing Date or the effective date of any Joinder Supplement, as applicable, and otherwise duly completed.  Each Variable Funding Certificate shall evidence an undivided ownership interest in the Collateral purchased by a Purchaser in an amount equal, at any time, to the percentage equivalent of a fraction, (i) the numerator of which is the outstanding Advances by such Purchaser under the applicable VFC on such day and (ii) the denominator of which is the Advances Outstanding on such day.  Interest shall accrue, and each VFC shall be payable, as described herein.  Each Purchaser hereby represents and warrants that such Purchaser is a Qualified Institutional Buyer.

(b)           Prior to the Thirteenth Amendment Effective Date, the Borrower could, at its option, request the Conduit Purchasers and the Institutional Purchasers to make advances and pre-funded advances of funds (each, an “Advance”) under the VFCs pursuant to a Funding Request, in an aggregate amount not to exceed the availability of funds then in effect under this Agreement as of the proposed Funding Date of the Advance.  Following the receipt of a Funding Request, subject to the terms and conditions hereinafter set forth, prior to the Thirteenth Amendment Effective Date, the Conduit Purchasers and the Institutional Purchasers funded such Advance. Notwithstanding anything to the contrary herein, no Purchaser was obligated to provide the Borrower with aggregate funds in connection with an Advance that would have exceeded the least of (i) such Purchaser’s unused Commitment then in effect, (ii) the aggregate unused Commitments then in effect and (iii) the availability of funds then in effect under this Agreement on the proposed Funding Date of such Advance.

(c)           [Reserved].

(d)           The Borrower may, within 60 days but not less than 45 days prior to the date set forth in clause (c) of the definition of Termination Date, by written notice to each Purchaser Agent, make a request for each Purchaser Agent to extend the date set forth in clause (c) of the definition of Termination Date for an additional period of up to 364 days.  Each Purchaser Agent will give prompt notice to the applicable Purchaser of its receipt of such request, and each Purchaser shall make a determination, in their sole discretion, not less than 15 days prior to the expiration of the date set forth in clause (c) of the definition of Termination Date as to whether or not it will agree to the applicable extension requested.  The failure of a Purchaser Agent to provide timely notice of its decision to the Borrower shall be deemed to constitute a refusal by such Purchaser to extend the date set forth in clause (c) of the definition of Termination Date.  The Borrower confirms that each Purchaser, in its sole and absolute

51

discretion, without regard to the value or performance of the Loans or any other factor, may elect not to extend the date set forth in clause (c) of the definition of Termination Date.

(e)           [Reserved].

(f)            Notwithstanding anything contained in this Section 2.1 or elsewhere in this Agreement to the contrary, upon and after the Thirteenth Amendment Effective Date, no Advances shall be made hereunder.

Section 2.2.                                [Reserved].

Section 2.3.                                Procedures for Advances by Conduit Purchasers and Institutional Purchasers.

(a)           Prior to the Thirteenth Amendment Effective Date, subject to the limitations set forth in Section 2.1(b), the Borrower could request an Advance from the Conduit Purchasers and the Institutional Purchasers by delivering to the Purchaser Agents at certain times the information and documents set forth in this Section 2.3.

(b)           No later than 2:00 p.m. on the Business Day prior to the proposed Funding Date, the Borrower (or the Servicer on its behalf) shall deliver:

(i)            to the Administrative Agent and the Trustee, written notice of such proposed Funding Date (including a duly completed Borrowing Base Certificate updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof);

(ii)           to the Administrative Agent, a description of the Obligor and the Loan or Loans to be funded by the proposed Advance;

(iii)          to the Administrative Agent, a wire disbursement and authorization form, to the extent not previously delivered;

(iv)          to the Administrative Agent and the Trustee, a duly completed Funding Request which shall (a) specify the desired amount of such Advance, which amount must be at least equal to $500,000, to be allocated to each Conduit Purchaser and each Institutional Purchaser in accordance with its Pro Rata Share, (b) specify the proposed Funding Date of such Advance, (c) specify the Loans to be financed on such Funding Date (including the appropriate file number, Outstanding Loan Balance for each Loan and identifying each Loan by type and proposed Advance Rate applicable to each such Loan and any other information reasonably requested by the Trustee to permit it to properly account for such Loan) and (d) include a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied.

Each Funding Request shall be irrevocable.  If any Funding Request is received by the Administrative Agent and each Purchaser Agent after 2:00 p.m. on the Business Day prior to the Business Day for which such Advance is requested or on a day that is not a Business Day, such

52

Funding Request shall be deemed to be received by the Administrative Agent and each Purchaser Agent at 9:00 a.m. on the next Business Day.

(c)           On the proposed Funding Date, subject to the limitations set forth in Section 2.1(b) and upon satisfaction of the applicable conditions set forth in Article III, each Conduit Purchaser and each Institutional Purchaser shall make available to the Borrower in same day funds, at such bank or other location reasonably designated by Borrower in the Funding Request given pursuant to this Section 2.3, an amount equal to such Purchaser’s Pro Rata Share of the least of (i) the amount requested by the Borrower for such Advance, (ii) the aggregate unused Commitments then in effect and (iii) an amount equal to the availability of funds under this Agreement on such Funding Date.

(d)           On each Funding Date related to an Advance, the obligation of each Conduit Purchaser and each Institutional Purchaser to remit its Pro Rata Share of any such Advance shall be several from that of each other Purchaser and the failure of any Conduit Purchaser or Institutional Purchaser to so make such amount available to the Borrower shall not relieve any other Purchaser of its obligation hereunder.

(e)           Notwithstanding anything contained in this Section 2.3 or elsewhere in this Agreement to the contrary, on and after the Thirteenth Amendment Effective Date, no additional Advances shall be made by the Purchasers.

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

(a)           [Reserved].

(b)           The Borrower shall be entitled at its option, at any time prior to the occurrence of a Termination Event, to reduce the Advances Outstanding; provided that (i) in the case of any such reduction relating to Advances, the Borrower shall deliver to the Administrative Agent and each Purchaser Agent (with a copy to the Trustee and the Backup Servicer) a Repayment Notice one Business Day prior to any such reduction, (ii) any reduction of the Advances Outstanding (other than with respect to repayments of Advances Outstanding made by the Borrower to reduce Advances Outstanding such that the Advances Outstanding does not exceed the Maximum Availability) shall be in a minimum amount of $500,000 and in integral multiples of $100,000 in excess thereof, and (iii) in the case of a prepayment of all or substantially all of the Advances Outstanding (calculated immediately prior to giving effect to such prepayment) to zero on or prior to May 7, 2010, the Borrower shall pay to the Administrative Agent the Call Premium; provided, however, that no Call Premium shall be payable by the Borrower to the extent the Advances Outstanding are equal to or greater than $1,000,000 after giving effect to such prepayment.  In connection with any such reduction of Advances Outstanding, the Borrower shall deliver to each Purchaser Agent (i) instructions to reduce such Advances Outstanding and (ii) funds sufficient to repay such Advances Outstanding, together with all accrued Interest, Breakage Costs, Hedge Breakage Costs and any Call Premium; provided that, no such reduction shall be given effect unless (x) the Borrower has complied with the terms of any Hedging Agreement requiring that one or more Hedge Transactions be terminated in whole or in part as the result of any such reduction of the

53

Advances Outstanding, and has paid in full all Hedge Breakage Costs owing to the relevant Hedge Counterparty for any such termination and (y) sufficient funds have been remitted to pay all such amounts in the succeeding sentence in full.  The Administrative Agent shall apply amounts received from the Borrower pursuant to this Section 2.4(b) to the payment of any Hedge Breakage Costs, to the pro rata reduction of the Advances Outstanding, to the payment of accrued Interest on the amount of the Advances Outstanding to be repaid and to the payment of any Breakage Costs.  Any Repayment Notice relating to any repayment pursuant to this Section 2.4(b) shall be irrevocable.

Section 2.5.                                Determination of Interest.

Each applicable Purchaser Agent shall determine the CP Rate and the Interest, as applicable, for its related Purchaser (including unpaid Interest related thereto, if any, due and payable on a prior Payment Date) to be paid by the Borrower with respect to each Advance on each Payment Date for the related Accrual Period and shall advise the Servicer thereof on the third Business Day prior to such Payment Date.

Section 2.6.                                Required Advance Reduction Amount Payments.

(a)                                          In addition to any other obligation of the Borrower to pay any Required Advance Reduction Amount pursuant to the terms of this Agreement, if, on any day prior to the Collection Date, any Required Advance Reduction Amount is outstanding, the Borrower shall, within five (5) Business Days, pay such Required Advance Reduction Amount in its entirety by effecting one or more of the following actions in order to eliminate such condition as of such date of determination: (i) repay Advances in the amount necessary, after giving effect to any pledge pursuant to clause (ii), to pay in full such Required Advance Reduction Amount, and/or (ii) subject to the approval of the Administrative Agent in its sole discretion (and the Administrative Agent will use reasonable efforts to give such approval in a timely fashion), pledge additional Eligible Loans, which shall be included in the Collateral and added to the Loan List, in the amount necessary to pay in full such Required Advance Reduction Amount.

(b)                                         No later than 2:00 p.m. on the Business Day prior to the proposed repayment of Advances or pledge of additional Eligible Loans pursuant to Section 2.6(a), the Borrower (or the Servicer on its behalf) shall deliver (i) to the Administrative Agent and each Purchaser Agent (with a copy to the Trustee and the Backup Servicer), a Repayment Notice (including a duly completed Borrowing Base Certificate, updated to the date such repayment or pledge is being made and giving pro forma effect to such repayment or pledge), and (ii) to the Administrative Agent, a description of any Loan and each Obligor of such Loan to be pledged and added to the Loan List.  Any Repayment Notice relating to any repayment or any pledge pursuant to this Section 2.6(b) shall be irrevocable.  For the avoidance of doubt, no Advances shall be made pursuant to the repayment of Advances or pursuant to the pledge of additional Eligible Loans.

Section 2.7.                                Notations on Variable Funding Certificates.

Each Purchaser Agent is hereby authorized to enter on a schedule attached to the VFC with respect to each Conduit Purchaser and each Institutional Purchaser a notation (which may

54

be computer generated) or to otherwise record in its internal books and records or computer system with respect to each Advance under the VFC made by the applicable Purchaser of (a) the date and principal amount thereof and (b) each payment and repayment of principal thereof.  Any such recordation shall, absent manifest error, constitute prima facie evidence of the outstanding Advances under each VFC.  The failure of any Purchaser Agent to make any such notation on the schedule attached to the applicable VFC shall not limit or otherwise affect the obligation of the Borrower to repay the Advances in accordance with the terms set forth herein.

Section 2.8.                                Principal Repayments.

(a)                                          Advances Outstanding shall be repaid as and when necessary to cause the Advances Outstanding not to exceed the Maximum Availability.

(b)                                         [Reserved].

(c)                                          All repayments of any Advance or any portion thereof shall be made together with payment of (i) all Interest accrued and unpaid on the amount repaid to (but excluding) the date of such repayment, (ii) all Breakage Costs, (iii) all Hedge Breakage Costs, and (iv) any Call Premium.

Section 2.9.                                Settlement Procedures During the Term Period.

(a)                                 On each Payment Date during the Term Period, the Servicer shall direct the Trustee to pay pursuant to the Servicing Report (and the Trustee shall make payment from the Interest Collections in the Collection Account to the extent of Available Funds, in reliance on the information set forth in such Servicing Report and without any independent verification of such information) to the following Persons, the following amounts in the following order of priority:

(1)                                  pro rata in accordance with the amounts due under this clause, to each Hedge Counterparty, any amounts (other than any Hedge Breakage Costs) owing to that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s);

(2)                                  pro rata in accordance with the amounts due under this clause, to the extent not paid by the Originator, to the Backup Servicer and the Trustee, (a) in an amount equal to any accrued and unpaid Backup Servicing Fees, Trustee Fees and Transition Expenses, (b) to the Administrative Agent, for the benefit of each Purchaser or the Administrative Agent, as applicable, all accrued and unpaid fees and expenses (including attorneys’ fees, costs and expenses) payable by Borrower to the Administrative Agent or such Purchaser under the Transaction Documents, and (c) incurred but unreimbursed reasonable third-party, out-of-pocket expenses relating to their respective duties as Backup Servicer or Trustee hereunder, in respect of which the Backup Servicer or the Trustee, as applicable, has provided prior written notice to the Servicer and the Administrative Agent, for the payment thereof; provided that amounts payable pursuant to this clause (c) shall not exceed $15,000 for any Payment Date;

55

(3)                                  to the Servicer, in an amount equal to any unreimbursed Servicer Advances (but solely to the extent of Collections in respect of the Loan for which such Servicer Advance was made);

(4)                                  to the Servicer, in an amount equal to any accrued and unpaid Servicing Fees to the end of the related Collection Period;

(5)                                  pro rata in accordance with the amounts due under this clause, to each Purchaser Agent, in an amount equal to any accrued and unpaid Interest, Program Fee and Breakage Costs;

(6)                                  [Reserved];

(7)                                  pro rata in accordance with the amounts due under subclauses (a) and (b) of this clause (7), (a)(i) on and after the Payment Date in October 2009 (or such later Payment Date agreed to in writing between the Borrower, the Servicer, the Administrative Agent and each Purchaser) if the CP Funding II Financing has not closed, to each Purchaser Agent for the account of the applicable Purchaser, in an amount necessary to reduce the Advances Outstanding and Aggregate Unpaids to zero, otherwise (ii) to each Purchaser Agent for the account of the applicable Purchaser, if the Required Advance Reduction Amount is greater than zero, an amount necessary to reduce the Required Advance Reduction Amount to zero, pro rata in accordance with the amount of Advances Outstanding hereunder, and (b) pro rata in accordance with the amounts due under this subclause (b), to each Hedge Counterparty, any Hedge Breakage Costs owing to that Hedge Counterparty under its respective Hedging Agreement (not caused by any default of the Hedge Counterparty or any of its Affiliates under such Hedging Agreement);

(8)                                  pro rata in accordance with the amounts due under this clause, to the Administrative Agent, each Purchaser Agent, any applicable Purchaser, the Backup Servicer, the Trustee, the Affected Parties, the Indemnified Parties or the Secured Parties, all other amounts, including, without duplication, any Hedge Breakage Costs owing to each Hedge Counterparty under its respective Hedging Agreement (caused by any default of the Hedge Counterparty or any of its Affiliates under such Hedging Agreement), Increased Costs, Taxes or Indemnified Amounts, but other than the principal of Advances Outstanding, then due under this Agreement;

(9)                                  to the Servicer, in an amount equal to the sum of (i) any unreimbursed Servicer Advances, to the extent not paid pursuant to clause 2 above, and (ii) any Nonrecoverable Advance;

(10)                            to Wachovia Bank, National Association, on account of any due and payable “Obligations” under and as defined in the CP Funding II Financing, to the extent a claim has been made therefor under the Borrower Guaranty; and

(11)                            any remaining amount shall be distributed to the Borrower.

56

(b)                                On each Payment Date during the Term Period, the Servicer shall direct the Trustee to pay pursuant to the Servicing Report (and the Trustee shall make payment from the Principal Collections in the Collection Account to the extent of Available Funds, in reliance on the information set forth in such Servicing Report and without any independent verification of such information) to the following Persons, the following amounts in the following order of priority:

(1)                                  to those parties in respect of the payments to be made pursuant to Section 2.9(a)(1)-(5) in the priority set forth therein, to the extent not paid in full pursuant to the Interest Collections;

(2)                                  pro rata in accordance with the amounts due under subclauses (a) and (b) of this clause (2), (a) to each Purchaser Agent for the account of the applicable Purchaser, an amount necessary to reduce the Advances Outstanding and Aggregate Unpaids to zero, and (b) pro rata in accordance with the amounts due under this subclause (b), to each Hedge Counterparty, any Hedge Breakage Costs owing to that Hedge Counterparty under its respective Hedging Agreement (not caused by any default of the Hedge Counterparty or any of its Affiliates under such Hedging Agreement);

(3)                                  pro rata in accordance with the amounts due under this clause, to the Administrative Agent, each Purchaser Agent, any applicable Purchaser, the Backup Servicer (including in its capacity as the successor Servicer), the Trustee, the Affected Parties, the Indemnified Parties or the Secured Parties, all other amounts, including, without duplication, any Hedge Breakage Costs (caused by any default of the Hedge Counterparty or any of its Affiliates under such Hedging Agreement), Increased Costs, Taxes or Indemnified Amounts then due under this Agreement; and

(4)                                  any remaining amount shall be distributed to the Borrower.

Section 2.10.                         Settlement Procedures During the Amortization Period.

(a)                                 On each Payment Date during the Amortization Period, the Servicer shall direct the Trustee to pay pursuant to the Servicing Report (and the Trustee shall make payment from the Collection Account to the extent of Available Funds, in reliance on the information set forth in such Servicing Report and without any independent verification of such information) to the following Persons, the following amounts in the following order of priority:

(1)                                  pro rata in accordance with the amounts due under this clause, to each Hedge Counterparty, any amounts (other than any Hedge Breakage Costs) owing to that Hedge Counterparty under its respective Hedging Agreement in respect of any Hedge Transaction(s);

(2)                                  pro rata in accordance with the amounts due under this clause, to the extent not paid by the Originator, to the Backup Servicer and the Trustee, (a) in an amount equal to any accrued and unpaid Backup Servicing Fees, Trustee Fees and Transition Expenses, (b) to the Administrative Agent, for the benefit of each Purchaser or the Administrative Agent, as applicable, all accrued and unpaid fees and expenses (including attorneys’ fees, costs and expenses) payable by Borrower to the

57

Administrative Agent or such Purchaser under the Transaction Documents, and (c) incurred but unreimbursed reasonable third-party, out-of-pocket expenses relating to their respective duties as Backup Servicer or Trustee hereunder, in respect of which the Backup Servicer or the Trustee, as applicable, has provided prior written notice to the Servicer and the Administrative Agent, for the payment thereof; provided that amounts payable pursuant to this clause (c) shall not exceed $15,000 for any Payment Date;

(3)                                  to the Servicer, in an amount equal to any unreimbursed Servicer Advances (but solely to the extent of Collections in respect of the Loan for which such Servicer Advance was made);

(4)                                  to the Servicer, in an amount equal to any accrued and unpaid Servicing Fees to the end of the related Collection Period;

(5)                                  pro rata in accordance with the amounts due under this clause, to each Purchaser Agent, in an amount equal to any accrued and unpaid Interest, Program Fee and Breakage Costs;

(6)                                  [Reserved];

(7)                                  pro rata in accordance with the amounts due under subclauses (a) and (b) of this clause (7), (a) to each Purchaser Agent for the account of the applicable Purchaser, in an amount necessary to reduce the Advances Outstanding and Aggregate Unpaids to zero, and (b) pro rata in accordance with the amounts due under this subclause (b), to each Hedge Counterparty, any Hedge Breakage Costs owing to that Hedge Counterparty under its respective Hedging Agreement (not caused by any default of the Hedge Counterparty or any of its Affiliates under such Hedging Agreement);

(8)                                  pro rata in accordance with the amounts due under this clause, to the Administrative Agent, each Purchaser Agent, the applicable Purchaser, the Backup Servicer, the Trustee, the Affected Parties, the Indemnified Parties, or the Secured Parties, all other amounts, including, without duplication, any Hedge Breakage Costs owing to each Hedge Counterparty under its respective Hedging Agreement (caused by any default of the Hedge Counterparty or any of its Affiliates under such Hedging Agreement), Increased Costs, Taxes or Indemnified Amounts then due under this Agreement;

(9)                                  to the Servicer, in an amount equal to the sum of (i) any unreimbursed Servicer Advances, to the extent not paid pursuant to clause (2) above, and (ii) any Nonrecoverable Advance;

(10)                            to Wachovia Bank, National Association, on account of any due and payable “Obligations” under and as defined in the CP Funding II Financing, to the extent a claim has been made therefor under the Borrower Guaranty; and

(11)                            any remaining amounts shall be distributed to the Borrower.

58

Section 2.11.                         Collections and Allocations.

(a)                                          Collections.  The Servicer shall promptly identify any collections received as being on account of Interest Collections, Principal Collections or other Collections and shall transfer, or cause to be transferred, all Collections received in the Concentration Account or received directly by it to the Collection Account by the close of business on the second Business Day after such Collections are received.  Upon the transfer of Collections to the Collection Account, the Servicer shall segregate Principal Collections and Interest Collections and transfer the same to the Principal Collections Account and the Interest Collections Account, respectively.  The Servicer shall further include a statement as to the amount of Principal Collections and Interest Collections on deposit in the Principal Collections Account and the Interest Collections Account on each Reporting Date in the Servicing Report delivered pursuant to Section 6.10(b).

(b)                                         Initial Deposits.  On the Cut-Off Date with respect to any Loan, the Servicer will deposit into the Collection Account all Collections received in respect of Eligible Loans being transferred to and included as part of the Collateral on such date.

(c)                                          Excluded Amounts.  With the prior written consent of the Administrative Agent (a copy of which will be provided by the Servicer to the Backup Servicer), the Servicer may withdraw from the Collection Account any deposits thereto constituting Excluded Amounts if the Servicer has, prior to such withdrawal and consent, delivered to the Administrative Agent and each Purchaser Agent a report setting forth the calculation of such Excluded Amounts in form and substance satisfactory to the Administrative Agent and each Purchaser Agent in their sole discretion.

(d)                                         Investment of Funds.  Until the occurrence of a Termination Event, to the extent there are uninvested available amounts deposited in the Collection Account on or before 3:00 p.m., all such amounts shall be invested in Permitted Investments selected by the Servicer in written instructions delivered to the Trustee and the Administrative Agent (which may be in the form of standing instructions) that mature no later than the Business Day immediately preceding the next Payment Date; to the extent that there are uninvested available funds deposited after 3:00 p.m. but prior to 4:00 p.m., such funds shall be swept into an overnight funds investment which shall be a Permitted Investment selected by the Servicer in written instructions delivered to the Trustee and the Administrative Agent (which may be in the form of standing instructions).  From and after the occurrence of a Termination Event, to the extent there are uninvested amounts in the Collection Account (net of losses and investment expenses), all amounts may be invested in Permitted Investments selected by the Trustee, or the Administrative Agent on its behalf, that mature no later than the Business Day immediately preceding the next Payment Date.  All earnings (net of losses and investment expenses) thereon shall be retained or deposited into the Collection Account and shall be applied on each Payment Date pursuant to the provisions of Section 2.9 and Section 2.10.  All investments shall be subject to availability.  Absent receipt of instructions as contemplated herein, the Trustee shall have no obligation to invest any funds.

Section 2.12.                         Payments, Computations, Etc.

(a)                                          Unless otherwise expressly provided herein, all amounts to be paid or deposited by the Borrower or the Servicer hereunder shall be paid or deposited in accordance with the

59

terms hereof no later than 11:00 a.m. on the day when due in lawful money of the United States in immediately available funds and any amount not received before such time shall be deemed received on the next Business Day.  The Borrower or the Servicer, as applicable, shall, to the extent permitted by law, pay to the Secured Parties interest on all amounts not paid or deposited when due hereunder at 2.0% per annum above the Base Rate, payable on demand; provided, however, that such interest rate shall not at any time exceed the maximum rate permitted by Applicable Law.  Such interest shall be for the account of, the applicable Secured Party.  All computations of interest and other fees hereunder shall be made on the basis of a year consisting of 360 days (other than calculations with respect to the Base Rate which shall be based on a year consisting of 365 or 366 days, as applicable) for the actual number of days elapsed.

(b)                                         Whenever any payment hereunder shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of Interest or any fee payable hereunder, as the case may be.  For avoidance of doubt, to the extent that Available Funds are insufficient on any Payment Date to satisfy the full amount of any Increased Costs pursuant to Section 2.9(a)(8) or Section 2.10(a)(8), such unpaid amounts shall remain due and owing and shall accrue interest as provided in this Section 2.12 until repaid in full.

(c)                                          Prior to the Thirteenth Amendment Effective Date, if any Advance requested by the Borrower and approved by the applicable Purchaser pursuant to Section 2.3 is not, for any reason made or effectuated, as the case may be, on the date specified therefor, the Borrower shall indemnify the applicable Purchaser against any reasonable loss, cost or expense incurred by the applicable Purchaser including, without limitation, any loss (including loss of anticipated profits, net of anticipated profits in the redeployment of such funds in the manner determined by each Purchaser), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the applicable Purchaser to fund or maintain such Advance.

(d)                                         If the Administrative Agent disagrees with the computation of any amounts to be paid or deposited by the Borrower or the Servicer hereunder, or upon their respective instructions, it shall so notify the Borrower, the Servicer and the Trustee in writing and in reasonable detail to identify the specific disagreement. If such disagreement cannot be resolved, the determination of the Administrative Agent as to such amounts shall be conclusive and binding on the parties hereto absent manifest error.  Upon receipt of written notice from the Administrative Agent of such disagreement, the Trustee shall comply with the Administrative Agent’s written instructions with respect to the holding back (pending resolution), payment or deposit of any such amounts as so determined by the Administrative Agent.  The Trustee shall be protected in acting upon the written instructions of the Administrative Agent and shall have no responsibility to verify, reconcile or recompute any determination of the Administrative Agent.

Section 2.13.                         [Reserved].

60

Section 2.14.                         Fees.